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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).
MITCHELL et al. v. UNITED STATES.
No. 2207.
Circuit Court of Appeals, Tenth Circuit
March 18, 1941.
C. Ray Smith, of Santa Fe, N. M. (Hugh B. Woodward and R. F. Deacon Arledge, both of Albuquerque, N. M., on the brief), for appellant.
Everett M. Grantham, U. S. Atty., of Sante Fe, N. M. (Gilberto Espinosa, Asst. U. S. Atty., of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.
BRATTON, Circuit Judge.
This appeal brings here for review the conviction and sentence of H. Dulaney Mitchell upon the first count of an indictment charging a violation of the mail fraud statute, section 215 of the Criminal Code, 18 U.S.C.A. § 338. The count charged that, having devised and intending to devise a scheme to defraud and to obtain money and property from Alma E. Doering by false and fraudulent pretenses, representations and promises, appellant stated to her that he represented a major oil company and was authorized to purchase oil leases for it; that he presented to her a false and fictitious letter purporting to be from the company giving him such authority; that he represented that the company had fixed a value of $50 per acre on oil leases covering land in Chaves County, New Mexico; that he had a client in Camden, New Jersey, who was a barber and who owned a lease covering 80 acres of such land;- that he could sell such lease to the victim for $10 per acre and that the oil company •.would purchase it from her at $50 per acre; that in order to further induce her to purchase the lease covering the land in Chaves County, he represented to her that the company would purchase- from her certain leases which she owned covering land in San Miguel County, New Mexico, at $25 per acre, or a total consideration of $4,000; that if she would purchase the lease covering the land in Chaves County at $10 per acre, he would see that a check of the company for $4,000 would be given her in a few days; that all of such representations and pretenses were false and fraudulent, and were made with the intent and purpose of securing sums of money from the victim; and that appellant was actually engaged in finding purchasers for leases on land in New Mexico owned by one Dorothy Heard. It was further charged that for' the purpose of executing such scheme, appellant caused to be delivered by mail to the Commissioner of Public Lands of the State of New Mexico, at Santa Fe, an envelope containing an assignment of an oil and gas lease signed by Dorothy Heard.
It is contended that the trial court erred in refusing to direct a verdict of not guilty for the reason that the scheme laid in the indictment had terminated at the time the mails were used. There was no conflict in the evidence. Alma E. Doering resided at Germantown, Pennsylvania, and she owned oil leases covering land in San Miguel County, New, Mexico. Appellant called on. her at her home, introduced-himself as H. D. Morton, stated that he represented a major oil company, exhibited a letter which purported to be from such company, examined her leases, and said that his company would pay $25 per acre for them. She replied that she did not expect to sell all of them for that price but would sell half of them. He then stated that he had a proposition to make, but he apparently left without making it. He returned’ later, and on that occasion represented to her' that he could buy from a person in Camden, New Jersey, a lease covering 80 acres at $10 per acre and that his company would buy it for $50 per acre, and he asked her to advance $800 with which to buy it. She stated that she had only $600. He took $200 out of his pocket and said that he would furnish that amount. The two went to the bank together. She obtained $600 in cash and delivered it. to him. He left with the statement that he was going to Camden to get the lease. He returned an hour or more later with a written assignment signed by Dorothy Heard, assigning to the victim a lease covering 80 acres of land in Chaves County. He delivered the assignment to the victim, and stated that it would have to be recorded and that she would have to write the letter. He then gave her $5 with which to pay for the recording, they went to the post office together, she mailed the assignment to the Commissioner of Public Lands of New Mexico, he left, she did not see him again, and she never got the check.
That Alma E. Doering was cheated and defrauded in a brazen manner is clear beyond doubt. But it must be kept in mind that the indictment did not undertake to charge in any form a general continuing scheme to defraud various persons, including Alma E. Doering, and the use of the mails during its life. Neither did it charge a continuing conspiracy to use the mails to promote such a scheme. Instead, it charged a specific scheme for the exclusive purpose of defrauding only one person out of money and property, and the proof showed a scheme to defraud her 'out of a definite sum in money. The scheme, as laid in the indictment and established by the proof, was consummated and completed when appellant received the money from her. The mails had not been used up to that time. It was after the receipt of the money, after the two had separated, after he had been gone for an hour or more, and after he had returned and delivered the assignment to her that the envelope was deposited in the post office for transmission and delivery to the addressee. The use of the mails after a scheme of the kind and nature charged and established here has been fully consummated and completed in all of its parts cannot be in furtherance of such scheme, within the intent and meaning of section 215, supra. McNear v. United States, 10 cir., 60 F.2d 861; Armstrong v. United States, 10 Cir., 65 F.2d 853; Little v. United States, 10 Cir., 73 F.2d 861, 96 A.L.R. 889; Merrill v. United States, 9 Cir., 95 F.2d 669; Stewart v. United States, 8 Cir., 119 F. 89.
The government contends very earnestly that the scheme charged in the indictment necessarily contemplated the recording of the assignment in the office of the Commissioner of Public Lands; that appellant intended to deliver the agreed title, that is, a lease assignment properly approved by the commissioner and recorded in his office; and that the mails were used to accomplish that part of the scheme. An entirely different situation would be presented if» the indictment charged in any form that the scheme included the approval and recordation of the assignment. But in charging the nature of the scheme, the indictment was utterly silent in‘that respect. It therefore cannot be said that approval and recordation were necessarily a part of the scheme, and that the mails were used in furtherance of that part. To so hold would be the equivalent of reading language into the indictment. The rule of general approval that all parts of an indictment should be taken into consideration and that it should be reasonably construed does not warrant a court in supplying omitted language which is essential to a necessary element of the offense.
The government seeks to invoke the rule that the sending of a so-called lulling communication through the mails after the victim has parted with money or something else of value constitutes an offense within the statute. Preeman v. United States, 7 Cir. 244 F. 1, certiorari denied 245 U.S. 654, 38 S.Ct. 12, 62 L.Ed. 533; Newingham v. United States, 3 Cir., 4 F.2d 490, certiorari denied 268 U.S. 703, 45 S.Ct. 638, 69 L.Ed. 1166; Lewis v. United States, 9 Cir., 38 F.2d 406; Bogy v. United States, 6 Cir., 96 F.2d 734, certiorari denied 305 U.S. 608, 59 S.Ct. 68, 83 L.Ed. 387; Creech v. Hudspeth, 10 Cir., 112 F.2d 603. That rule has appropriate application where the indictment charges a continuing scheme and the communication is transmitted by mail during its existence, or where the indictment charges a scheme which contemplates and consists of several parts and the mails are used in furtherance of it before it is fully completed. Cf. Corbett v. United States, 8 Cir., 89 F.2d 124. But, repeating, this indictment did not charge such a scheme. Neither did it charge as a part or element of the scheme that appellant would lull the victim by causing her to mail the assignment for approval and recordation, or otherwise. The scheme, as laid in the indictment, had been fully consummated and completed in all its parts before the mails were used. It therefore is manifest that the rule which brings the mailing of a lulling communication within the statute has no application here.
The judgment is reversed and the cause remanded.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_weightev
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
LANGWA v. GORTON-PEW VESSELS CO.
No. 2665.
Circuit Court of Appeals, First Circuit.
June 7, 1932.
Action by Peter B. Langwa, administrator of the estate of Leo J. Langwa, deceased, against the Gorton-Pew Vessels Company. From a judgment dismissing the action, plaintiff appeals.
Judgment vacated, and ease remanded for trial.
A. F. Christiansen, of Boston, Mass., for appellant.
John J. Heffernan and Sawyer, Hardy, Stone & Morrison, all of Boston, Mass., for appellee.
Before BINGHAM and WILSON, Circuit Judges, and McLELLAN, District Judge.
BINGHAM, Circuit Judge.
This is an appeal from, a judgment of the District Court of Massachusetts of November 19, 1931, directing an involuntary nonsuit or dismissal of the plaintiff’s ca,se. The action is a suit at law under section 33 of the Merchant Marine Act of Congress of June 5, 1920, e. 250, 41 Stat. 1007 (46 USC A § 688), amending section 20 of the act of March 4, 1915 (38 Stat. 1185), to recover for the death of the plaintiff’s intestate, Leo J. Langwa. The amount involved is $20,000.
In the writ, issued April 17, 1931, the accident is alleged to have occurred on the 29th day of May, 1929, while the plaintiff’s intestate was employed by the defendant as a seaman on its schooner the Georgia. It is not questioned but that the declaration states a cause of action and that the suit was seasonably' brought. The answer is a general denial and that deceased was guilty of contributory negligence.
On November 10,1931, the ease was called for trial, a jury was drawn, and, plaintiff’s counsel having finished his opening statement, the court ruled that the evidence recounted in the opening statement was insufficient, discharged the jury, and ordered the case dismissed, subject to plaintiff’s exception. November 19, 1931, judgment was entered dismissing the action, from which this appeal is taken.
The errors complained of are to the action of the court: (1) In , dismissing the plaintiffs ease on the opening statement; (2) in refusing to allow him. to introduce evidence in support of his case; and (3) in entering judgment on the order of dismissal.
In the view we take of the ease we do not find it necessary to set out the declaration or state what plaintiff’s counsel offered to prove in his opening statement. It is to be noted, however, that this is a jury ease; that the amount involved is more than $20; that the right to a jury trial was not waived; and that the involuntary nonsuit or dismissal was ordered without the jury having participated in the disposition of the ease by returning a verdict for the defendant at the direction of the court. And it may be said that, even in some state courts, where, at the close of plaintiff’s evidence, the court has power to order an involuntary nonsuit and enter judgment for the defendant for insufficiency of the plaintiff’s evidence, such power could not be exercised against the plaintiff’s objection where he had not been allowed to introduce his evidence and where he had not agreed that his opening statement set forth all the evidence which he would be able to submit were he given an opportunity to introduce his evidence. See Ordway v. Railroad, 69 N. H. 429, 45 A. 243.
But with the method of jury trial in state courts in general we are not here concerned. The Seventh Amendment to the Constitution of the United States declares:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
In the federal courts the rule is and has been since an early day that a nonsuit or dismissal for insufficiency of evidence cannot be granted without the plaintiff’s consent. The reason for the rule, as given in the early decisions of the Supreme Court, was that the plaintiff had a right by law to a trial by a jury and to have the ease submitted to them. Doe ex dem. Elmore v. Grymes, 1 Pet. 469, 7 L. Ed. 224; Crane v. Morris, 6 Pet. 598, 8 L. Ed. 514; Silsby v. Foote, 14 How. 218, 14 L. Ed: 394; Castle v. Bullard, 23 How. 172, 16 L. Ed. 424.
In Doe ex dem. Elmore v. Grymes, supra, the plaintiff having introduced his evidence, the defendant’s counsel moved for a nonsuit on the ground that the evidence failed to sustain certain points essential to the plaintiff’s case. The circuit court ordered a nonsuit to be entered against the objection of the plaintiff and he prosecuted a writ of error from the Supreme Court. In that court, in an opinion written by Chief Justice Marshall, it was said:
“The Court * * * is of opinion that the Circuit Court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law to a trial by a jury, and to have had the ease submitted to them. He might agree to a nonsuit; but if he did not so choose, the Court could not compel him to submit to it.”
The dissenting opinion in that case would seem to indicate that the rule laid down in the majority opinion was based on the plaintiff’s constitutional right to a trial by jury, for the next to the last paragraph of the dissenting opinion undertakes to answer the constitutional objection, and that opinion also states that the practice in the states then constituting the Sixth Circuit was to grant involuntary nonsuits for insufficiency of the plaintiff’s evidence and that the circuit courts in the Sixth Circuit had, acting under the Acts of 1789 and 1792 (1 Stat. 93, 276), adopted the practice existing in the states of. that circuit. See Act May 8, 1792, e. 36, § 2 (1 Stat. 276).
In Coughran v. Bigelow, 164 U. S. 301, 17 S. Ct. 117, 119, 41 L. Ed. 442, decided in 1896, an involuntary nonsuit had been ordered in the territorial court of Utah for insufficiency of the plaintiff’s evidence. When the case reached the Supreme Court it was pointed out that the eases “which held that the circuit court of the United States had no authority to order peremptory non-suits were based, not upon a constitutional right of a plaintiff to have the verdict of a jury, even if his evidence was insufficient to sustain his ease, but upon the absence of authority, whether [either] statutory or by a rule promulgated by this court.” But as, by the Conformity Act of 1872, re-enacted in section 914 of the Revised Statutes (28 US CA § 724), the courts of the United States ax’e inquired to conform, in questions of “practice, pleadings, and 'forms and modes of proceeding” to those existing in the courts of the state in which the trial is had, and “as there was a statute of the territory of Utah authorizing courts to enter judgments of pex’emptory nonsuit, there was no exTor in the trial court in granting the motion for a nonsuit in the present ease, nor in the judgment of the supi-eme court affirming such ruling, if, indeed, upon the entire evidence adduced by the plaintiffs, enough did not appear to sustain a verdict.” The decision in that ease was based largely on a like decision in Central Transportation Co. v. Pullman’s Palace Car Co., 139 U. S. 24, 38, 11 S. Ct. 478, 35 L. Ed. 55, decided in 1891; which also held that a compulsory judgment of non-suit or dismissal for insufficiency of evidence was rcviewable on appeal or writ of error at the plaintiffs instance. This decision did not expressly pass upon the constitutional question, but in the Goughian Case it. was regarded as having done so.
In Slocum v. New York Life Insurance Co., 228 U. S. 361, 33 S. Ct. 523, 57 L. Ed. 879, decided in 1913, the court had under consideration the Seventh Amendment of the Constitution and entered upon an elaborate discussion of what the right of trial by j tuyas there granted consisted. At page 392 of 228 U. S., 33 S. Ct. 523, 534, Judge Van Dev anter, writing the opinion of the court and speaking of the nature and use of a nonsuit at common law, said:
“A nonsuit at common law was a. dismissal of the plaintiffs action without an adjudication, other than the imposition of costs, and eonsiituted no bar to another action for the same cause. Originally granted where the plaintiff made default when his presence was required, or otherwise failed to proceed in due course, it came to be applied on the trial when, although actually present, he chose, in view of the state of his evidence, not to risk an adverse verdict. Hut unless he assented to being nonsuited on the evidence, it was essential that a verdict be taken, even although it was certain to be against Km. In other wot ds, such a nonsuit was always -voluntary, and never compulsory.” (Italics ours.)
And on page 394 of 228 U. S., 33 S. Ct. 523, 535, in commenting on the nature and effect of a. compulsory nonsuit and the early decisions of the Supreme Court upon the question, it was said:
“The question whether a compulsory non-suit could be ordered on the evidence was presented to this court in 1828 in Iloe ex dem. Elmore v. Grymes, 1 Pet. 469, 7 L. Ed. 224, a case in which the circuit court, conceiving that the plaintiff's evidence was insufficient to sustain a verdict in his fa.vor, had non-suited Mm without Ms assent. Speaking for all the members of this court but one, Chief Justice Marshall disposed of the question by saying [page 471 of 1 Pet.] : ‘The circuit court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law to a, trial by a. jury, and to have had the case submitted to them, lie might agree to a nonsuit; but if ho did not so choose, the court could not compel him to submit to it.’ The decision in that case was approved and reaffirmed in D’Wolf v. Raband, 1 Pet. 476, 497, 7 L. Ed. 227, 236; Crane v. Morris, 6 Pet. 598, 609, 8 L. Ed. 514, 518, where Mr. Justice Story said the point was no longer 'open for controversy;’ Gilsby v. Foote, 14 How. 218, 222, 14 L. Ed. 394, 396, and Castle v. Bullard, 23 How. 172, 183, 16 L. Ed. 424, 427.”
And on the same page and page 397 of 228 TI. S., 33 S. Ct. 523, it is pointed.out that, under the Seventh Amendment, interpreted in file light of common-law rules in respect to nonsuits, a, plaintiff has the right to have the verdict of the jury taken, and that a compulsory nonsuit for insufficiency of evidence, which 'looks to the arrest of the trial and a dismissal of the case, can be sustained, if at all, only where the law of the jurisdiction where the case is tried contemplates that such nonsuit shall leave the merits of the ease undetermined and the plaintiff free to sue again for the same cause. And on pages 395, 396, and 397 of 228 U. S., 33 S. Ct. 523, 535, the court apparently questions the soundness o-f the conclusions reached in the Pullman’s Palaee Car Co. and the Coughran Cases, that the procedure authorized by the statute of Pennsylvania and the statute of Utah did not infringe the plaintiff’s right to a jury trial under the Seventh Amendment, notwithstanding that, under those statutes and practice, the compulsory nonsuit did not determine the merits of the ease and left, the plaintiff free to bring another suit for the same cause. In speaking of these cases the court said:
“We come now to two decisions in this court which, although not involving the real question here, namely, the power of a Federal court to re-examine, otherwise than according to the rules of the common law, issues of fact which have been determined by the verdict of a jury, yet have such an indirect bearing thereon that they ought not to be pas led unnoticed.
“In Central Transp. Co. v. Pullman’s Palace Car Co., 139 U. S. 24, 38, 11 S. Ct. 478, 35 L. Ed. 55, 60, a case coining here from the eastern district of Pennsylvania, it appeared that on a trial to the circuit court and a jury the court, following a statute of the, state, liad entered a compulsory nonsuit which, according to the elate law, terminated that suit, but was not an adjudication of the merits, or a bar to another suit on the same' cause of action. This court, deeming it im-l portanfc to notice the question of its own) jurisdiction, proceeded to inquire whether", such a judgment was subject to review on writ of error, and in the course of the inquiry expressed the opinion- that the state statute established a practice or mode of procedure which the conformity provisions of the Federal statutes required the circuit court to follow. But it was stated that the question was ‘not mentioned by counsel in argument/ and, as the opinion contains no reference to the right of trial by jury or to the 7th Amendment, it well may be that the bearing of the latter on the applicability of the state statute to the trial in the circuit court was not actually considered.
“The other ease is Coughran v. Bigelow, 164 U. S. 301, 17 S. Ct. 117, 41 L. Ed. 442, which originated in a territorial court, -where the 7th Amendment was applicable. On a trial by jury a compulsory nonsuit was entered according to a local statute, for an insufficiency in the plaintiff’s evidence, without prejudice to his right to sue again, and when the ease came here the judgment was affirmed, it being directly held that granting such a nonsuit does not infringe the constitutional right.
“Of these two cases it is to- be observed:
(1) Although, they hold, oneNby implication and the other expressly, that the constitutional right of trial by jury is not invaded by a statute authorizing the 'court to enter a compulsory nonsuit against a plaintiff for an insufficiency in his evidence, when he is 'not thereby prevented from suing again on the same cause of’action, they neither hold nor Suggest that, consistently with that right, the court can refuse to take the verdict of the jury, or disregard it when taken, and enter a binding judgment on the evidence.'
(2) Assuming, without so deciding, that they should be accepted and followed in respect of the particular matter to which they are addressed, that is, the granting of an involuntary nonsuit which leaves the merits unadju-dieated, they afford no justification whatever for overruling or departing from the repeated decisions of this court, reaching back to the beginning of the last century, wherein it uniformly has been held (a) that we must look to the common law for a definition of the nature and extent of the right of trial by jury which the Constitution declares ‘shall be preserved/ (b) that the right so preserved is the right to have the issues of fact presented by the pleadings tried by a jury of twelve, under the direction and superintendence of the court; '(e) that the rendition of a verdict is of the substanee of the right, because to dispense with a verdict is to eliminate the jury, which is no less a part of the tribunal charged with the trial than is the court; and (d) that when the issues have been so tried and a verdict rendered they cannot be re-examined otherwise than on a new trial granted by the court in which the first trial was had, or ordered by the appellate court for some error of law affecting the verdict.”
But with the question whether a compulsory nonsuit violates a plaintiff’s constitutional right to a jury trial under the Seventh Amendment in jurisdictions where, under a statute and the practice there existing, such nonsuit is authorized and it is provided that it shall not determine the merits of the ease and shall leave the plaintiff free to bring another suit for the samé cause, we are not concerned; for, in the state of Massachusetts, the district in which this suit was tried, there is no statute of the character above stated authorizing a compulsory non-suit for insufficiency of evidence, and, according to- the decisions of that state, no practice there exists authorizing its courts to order an involuntary nonsuit for insufficiency of evidence. In fact, it is there held that the plaintiff cannot be nonsuited against his consent. Marshall v. Merritt, 97 Mass. 516; Mitchell v. Marine Insurance Co., 6 Pick. (Mass.) 117. As the law of Massachusetts, statutory or otherwise, does not authorize a compulsory nonsuit for insufficiency of evidence, the Conformity Act, if given effect, would not aid the ruling of the District Court, for the rule of practice in Massachusetts is the same as the rule announced by Chief Justice Marshall in 1828 for the federal courts. Board" of Commissioners of City and County of Denver v. Home Savings Bank (C. C. A.) 200 F. 28, 35. It follows, therefore, that the District Judge, if the plaintiff had been permitted to submit his evidence, would have been without power to order a compulsory nonsuit for insufficiency of the evidence. But in this ease it must be recalled that the plaintiff was not even permitted to introduce his evidence.
For these reasons, the judgment of the District Court is vacated, and the ease is remanded to that court for trial; costs in this court to the appellant.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_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.
LANIER v. SOUTH CAROLINA
No. 85-5260.
Decided November 4, 1985
Per Curiam.
The motion for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted.
Petitioner was convicted of armed robbery. He contends that his confession should have been suppressed because it was the product of an illegal arrest. The South Carolina Court of Appeals affirmed the trial court’s rejection of his motion to suppress the confession:
“Assuming, without deciding, that Lanier’s arrest was illegal, we nevertheless hold his confession was admissible. A confession made while the accused is in custody before any warrant for his arrest has been issued is not per se inadmissible. State v. Funchess, 255 S. C. 385, 179 S. E. 2d 25, cert. denied, 404 U. S. 915, 92 S. Ct. 236, 30 L. Ed. 2d 189 (1971). Voluntariness remains as the test of admissibility. Id. Even if the arrest was illegal, the confession will be admissible if it is freely and voluntarily given. State v. Plath, 277 S. C. 126, 284 S. E. 2d 221 (1981). Since Lanier does not claim his confession was not voluntary, his argument that the confession was inadmissible is without merit.” App. to Pet. for Cert. A-2.
The South Carolina Supreme Court declined further review.
Under well-established precedent, “the fact that [a] confession may be ‘voluntary’ for purposes of the Fifth Amendment, in the sense that Miranda warnings were given and understood, is not by itself sufficient to purge the taint of the illegal arrest. In this situation, a finding of ‘voluntariness’ for purposes of the Fifth Amendment is merely a threshold requirement for Fourth Amendment analysis.” Taylor v. Alabama, 457 U. S. 687, 690 (1982). See also Dunaway v. New York, 442 U. S. 200, 217-218 (1979); Brown v. Illinois, 422 U. S. 590, 602 (1975). . The reasoning of the South Carolina Court of Appeals is inconsistent with those cases. We therefore vacate the judgment and remand the case to that court for further proceedings.
It is so ordered.
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
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211. Court of Private Land Claims
Answer:
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sc_casesource
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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.
PENNSYLVANIA BUREAU OF CORRECTION v. UNITED STATES MARSHALS SERVICE et al.
No. 84-489.
Argued October 15, 1985 —
Decided November 18, 1985
Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Rehnquist, and O’Con-nor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 43.
Leroy S. Zimmerman, Attorney General of Pennsylvania, argued the cause for petitioner. With him on the briefs were Maria Parisi Vickers, Andrew S. Gordon, and Allen C. War-shaw, Senior Deputy Attorneys General.
Mark I. Levy argued the cause for respondents. With him on the brief were Acting Solicitor General Fried, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, and Barbara L. Herwig.
Justice Powell
delivered the opinion of the Court.
The question presented is whether a United States district court may compel the United States Marshals Service to transport state prisoners to the federal courthouse to testify in an action brought under 42 U. S. C. § 1983 by a state prisoner against county officials.
I — <
In June 1980, Richard Garland brought suit under 42 U. S. C. § 1983 against various Philadelphia County officials in the United States District Court for the Eastern District of Pennsylvania, alleging that he had been beaten and harassed by the defendant deputy sheriffs and prison guards. At the time Garland filed this suit, he was incarcerated in the Philadelphia County jail, but was subsequently transferred to a state facility. The District Court assigned the action to a Magistrate for disposition on the merits.
In December 1982, the Magistrate issued writs of habeas corpus ad testificandum to produce five witnesses, including plaintiff Garland. At that time, Garland was in a state correctional facility in Huntingdon, approximately 220 miles from Philadelphia. The other four witnesses were all confined in state facilities over 100 miles from Philadelphia. The orders directed the Wardens of the state facilities to transport inmates from state prison to the county jail nearest the federal courthouse in Philadelphia. The orders then commanded the United States Marshals Service (Marshals) to transport the inmates from that county facility to the federal court and to maintain custody of them during trial. The Marshals unsuccessfully moved for reconsideration of that portion of the order that directed them to transport the state prisoners from the county jail to the federal courthouse and to guard them during trial.
On the Marshals’ appeal from this denial, the Court of Appeals for the Third Circuit reversed in part, holding that the All Writs Act did not confer power upon the District Court “to compel non-custodians to bear the expense of [the production of witnesses] simply because they have access to a deeper pocket.” Garland v. Sullivan, 737 F. 2d 1283, 1287 (1984) (emphasis in original). The Court of Appeals did find, however, that the District Court has the power to compel the Marshals to take custody of state prisoners while those prisoners are in the federal courthouse in connection with federal judicial proceedings. Ibid. Finally, the court held that the District Court could order the Marshals to take custody of state prisoners if the trial court made a specific finding that special security risks required that state prisoner-witnesses be in the Marshals’ custody away from the federal courthouse. Id., at 1289.
The Commonwealth Bureau of Correction (Commonwealth) petitioned this Court for a writ of certiorari on the question whether a federal court can command the Marshals to share responsibility with state officials for transporting state inmates to the federal courthouse when neither the State nor any state official is a party. Because this case presents a recurrent problem on which the Circuits differ, we granted the writ. 469 U. S. 1206 (1985). We find that there is no statutory authority for a United States district court to command the Marshals to take custody of state prisoners outside the federal courthouse during the normal course of producing state prisoner-witnesses for trial, and accordingly affirm.
II
The Commonwealth argues that the Marshals have a statutory obligation to obey the lawful orders and writs of the federal courts, 28 U. S. C. § 569(b), and are statutorily authorized to expend funds for the specific purpose of transporting prisoners, § 567. It also contends that these provisions recognize the authority of the district courts to seek assistance from the Marshals. Two Circuits have summarily agreed. Ford v. Allen, 728 F. 2d 1369, 1370 (CA11 1984) (per curiam); Ballard v. Spradley, 557 F. 2d 476, 481 (CA5 1977). Two other Circuits have relied in part on these provisions in imposing the responsibility for transport upon the Marshals. Wiggins v. County of Alameda, 717 F. 2d 466 (CA9 1983), cert. denied sub nom. California Dept. of Corrections v. United States, 465 U. S. 1070 (1984); Ford v. Carballo, 577 F. 2d 404 (CA7 1978). The Court of Appeals for the Third Circuit is the only Circuit to deny a district court authority to compel the Marshals to assist in transporting state prisoner-witnesses to the federal courthouse.
Sections 569(b) and 567 merely enumerate obligations of the Marshals. The Marshals must obey the mandates of federal courts and transport prisoners if the court so orders. The courts’ authority to issue such writs, however, must derive from some independent statutory source. We therefore must look to the habeas corpus statute or the All Writs Act to see if they authorize federal courts to order the transportation of state prisoners to the federal courthouse.
r-4 HH » — I
The Court of Appeals reasoned that the Magistrate’s order amounted to a writ of habeas corpus ad testificandum properly directed only to the custodian, and that there was no basis in the habeas corpus statute for the District Court’s authority to direct a writ ad testificandum to a noncustodian. We agree.
Since 1867, the writ of habeas corpus has incorporated the common-law command that the writ “shall be directed to the person in whose custody the party is detained.” Act of Feb. 5, 1867, ch. 28, 14 Stat. 386 (emphasis added). See In re Thaw, 166 F. 71, 74-75 (CA3 1908). It was the custodian who then was to “make return of said writ and bring the party before the judge who granted the writ.” Ibid. Congress preserved this unambiguous directive throughout subsequent revisions, and the current habeas corpus statute states that the writ “shall be directed to the person having custody of the person detained.” 28 U. S. C. §2243. Section 2243 also specifically provides that “the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.”
The language of the statute thus expressly commands the custodian to bring his prisoner to the court, but extends this duty to no other. See also Fed. Rule Civ. Proc. 81(a)(2) (“The writ of habeas corpus . . . shall be directed to the person having custody of the person detained”). We find no evidence in the language of §§ 2241 and 2243, in their legislative history, or in the common-law writ ad testificandum to suggest that courts are also empowered to cause third parties who are neither custodians nor parties to the litigation to bear the cost of producing the prisoner in a federal court. We therefore conclude that there is no basis in the habeas corpus statute for a federal court to order the Marshals to transport state prisoners to the federal courthouse.
> hH
Finally, the Commonwealth argues that the All Writs Act, 28 U. S. C. § 1651, confers authority upon a district court to order the Marshals to transport state prisoners to and from the federal courthouse in connection with federal litigation. It argues that the “deluge of. . . civil rights actions” calls for “creative” use of federal judicial power to alleviate the drain on the States’ fiscs from the transport of inmates to and from federal courthouses.
It is true that this Court consistently has construed the All Writs Act to authorize a federal court “to issue such commands ... as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” United States v. New York Telephone Co., 434 U. S. 159, 172 (1977). This Court also has held that the supplemental powers of the Act are not limited to situations where it is “necessary” to issue the writ or order “in the sense that the court could not otherwise physically discharge its appellate duties.” Adams v. United States ex rel. McCann, 317 U. S. 269, 273 (1942). An examination of the language of the All Writs Act, its legislative history, and our decisions construing it convinces us, however, that the Act does not authorize a district court to order the Marshals to transport state prisoners from state prisons to the federal courthouse in the ordinary course of litigation in federal courts.
The All Writs Act originally was codified in § 14 of the Judiciary Act of 1789, 1 Stat. 81-82, which provided that
“all the . . . courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”
Our early view of the scope of the all writs provision confined it to filling the interstices of federal judicial power when those gaps threatened to thwart the otherwise proper exercise of federal courts’ jurisdiction. McClung v. Silliman, 6 Wheat. 598 (1821); McIntire v. Wood, 7 Cranch 504 (1813). This limitation is especially significant in construing federal courts’ power to issue writs of habeas corpus ad testifican-dum: The Judiciary Act of 1789 codified the ad testificandum writ in the same section as the all writs provision.
The original phrase “not specifically provided for by statute” remained in the all writs section until 1948. Although the legislative history is scant, it appears that Congress then merely consolidated various provisions into § 1651 and made “necessary changes in phraseology” without substantive amendment. See H. R. Rep. No. 308, 80th Cong., 1st Sess., A144 (1947); see also id., at 5. The legislative history did, however, state that the new section was “expressive of the construction recently placed upon [the all writs provision] by the Supreme Court in U. S. Alkali Export Assn. [v. United States, 325 U. S. 196 (1945)].” Id., at A145. In United States Alkali, the Court rejected use of the all writs provision to enable the Court to review a lower court’s determination where jurisdiction did not lie under an express statutory provision. Chief Justice Stone wrote:
“The writs may not be used as a substitute for an authorized appeal; and where, as here, the statutory scheme permits appellate review of interlocutory orders only on appeal from the final judgment, review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews.” 325 U. S., at 203.
Although Congress dropped the phrase “not specifically provided for by statute” in its 1948 consolidation, we conclude that it apparently intended to leave the all writs provision substantially unchanged. That intention and the favorable reference to United States Alkali convince us that the 1948 changes in phraseology do not mark a congressional expansion of the powers of federal courts to authorize issuance of any “appropriate” writ.
Nevertheless, the Commonwealth, relying on United States v. New York Telephone Co., supra, at 171, as well as Harris v. Nelson, 394 U. S. 286, 299 (1969), and Price v. Johnston, 334 U. S. 266, 282 (1948), insists that under the All Writs Act the District Court can order the Marshals to transport state prisoners upon a mere statement that such an order would be “necessary or appropriate.” As summarized in the margin below, these cases are clearly distinguishable and lend little support to the Commonwealth’s argument.
The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. We need not categorically rule out reliance on the All Writs Act and the use of Marshals in procuring or safeguarding state prisoner-witnesses in the course of federal litigation. There may be exceptional circumstances in which a district court can show clearly the inadequacy of traditional habeas corpus writs, such as where there are serious security risks. In such circumstances, a district court may find it “necessary or appropriate” for Marshals to transport state prisoners. We therefore leave open the question of the availability of the All Writs Act to authorize such an order where exceptional circumstances require it.
V
We conclude, at least in the absence of an express finding of exceptional circumstances, that neither a magistrate nor a district court has authority to order the Marshals to transport state prisoners to the federal courthouse to testify in an action brought by a state prisoner under 42 U. S. C. § 1983 against county officials. Accordingly, we affirm the Court of Appeals for the Third Circuit.
It is so ordered.
The Marshals are within the Executive Branch of the Federal Government. The Marshal for each district is appointed by the President, 28 U. S. C. § 561(a), is subject to the supervision and direction of the Attorney General, see, e. g., §§562, 567, 569(c), 571(a) and (d), and is funded through Department of Justice appropriations, e. g., §567.
Judge Becker concurred in the judgment, believing the court to be bound by McClung v. Silliman, 6 Wheat. 598 (1821), and McIntire v. Wood, 7 Cranch 504 (1813). He hoped that this Court would “find that, because statutes can adapt to fit the needs of changing times, the All Writs Act now permits what, in the time of Mclntire and McClung it did not.” 737 F. 2d, at 1292 (footnote omitted). Judge Atkins, sitting by designation from the Southern District of Florida, concurred in part and dissented in part, believing that the Third Circuit could impose a duty on the Marshals to transport state prisoners. Ibid.
The propriety of that part of the order commanding the Marshals to take custody of the state prisoners while they are in the federal courthouse is not specifically before us. The Marshals have conceded that they are responsible for the custody of state prisoners in the federal courthouse as witnesses or parties.
The habeas corpus statute provides in pertinent part that the writ “shall be directed to the person having custody of the person detained,” and that “the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.” 28 U. S. C. §2243.
Carbo v. United States, 364 U. S. 611 (1961), does not support an expansive reading of the power conferred upon federal district courts by the writ of habeas corpus ad testificandum. In Carbo, the Court found that although § 2241 contained an express territorial limitation of “[w]rits of habeas corpus,” 28 U. S. C. § 2241(a), the limitation applied to habeas corpus ad subjiciendum, but not to habeas corpus ad prosequendum. The Commonwealth similarly argues that the provisions in § 2243 that direct the custodian to produce the prisoners in court do not apply to the writ ad testificandum but instead are limited to the Great Writ, habeas corpus ad subjiciendum.
Carbo’s expansive reading of the statute was consistent with common-law procedure and requirements applied to the writ ad prosequendum and with the legislative history of § 2241(a). 364 U. S., at 615-618. But this ease involves the writ ad testificandum, which has been confined in its application to the actual custodian of the prisoners from before its initial codification in 1789 to the present. We therefore do not believe that Carbo justifies a more expansive view of the writ of habeas corpus ad testificandum today.
The All Writs Act provides in pertinent part:
“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.”
In United States v. New York Telephone Co., 484 U. S. 159 (1977), the Court held that a District Court could under the All Writs Act compel a third party, the New York Telephone Company, to assist the Federal Bureau of Investigation in installing devices under a warrant that would register the numbers dialed on certain telephones. In that case the All Writs Act filled a gap in federal statutes by granting the District Court jurisdiction over the only party capable of installing the devices. In the instant case, by contrast, the habeas corpus statute already expressly provides for the issuance of a writ “to the person having custody of the person detained.”
In Price v. Johnston, 334 U. S. 266 (1948), the Court held that a Court of Appeals could order a prisoner to be brought before it to argue his own appeal, finding that the All Writs Act was a mechanism to achieve the “rational ends of law. ” Id., at 282. In Price, however, there was no alternative way to bring the prisoner before the court. In the present ease, the traditional writ ad testificandum is sufficient. Similarly, Harris v. Nelson, 394 U. S. 286 (1969), held that the District Court in that case had no alternative means of providing an effective habeas corpus proceeding except by use of an extraordinary writ. New York Telephone, Price, and Harris afforded resort to the All Writs Act to fill statutory interstices. We do not find their reasoning controlling here, where a writ ad testifican- dum directed to the custodian indisputably provides a district court with a means of producing a prisoner-witness.
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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_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Paul T. HILL (83-5587), Roscoe M. Hill (83-5588), Defendants-Appellants.
Nos. 83-5587, 83-5588.
United States Court of Appeals, Sixth Circuit.
Argued May 8, 1984.
Decided June 29, 1984.
Rehearing and Rehearing En Banc Denied Oct. 24, 1984.
James A.H. Bell (argued), Knoxville, Tenn., for Paul T. Hill.
Ralph Harwell (argued), Knoxville, Tenn., for Roscoe M. Hill.
John W. Gill, U.S. Atty., Mike Haynes, Asst. U.S. Atty. (argued), Knoxville, Tenn., for plaintiff-appellee.
Before EDWARDS and CONTIE, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.
In this appeal, two brothers, Paul and Roscoe Hill, seek reversal of their convictions on drug conspiracy charges after trial in the United States District Court for the Eastern District of Tennessee. Although the appellants argue four separate claims of reversible error, we found our reversal for new trial on only one of the four. We do so without deciding the trial judge’s rulings on the other three issues since they are unlikely to recur on the new trial in the same form, if at all.
The error which does require new trial in our view is phrased thus by appellants in their first issue: “[Was] the trial court’s refusal, during voir dire examination, to question the prospective jurors as requested by the defendants regarding reasonable doubt, [and] the presumption of innocence ... an abuse of discretion [which] deprived the defendants of a fair trial?”
Jury instructions concerning the presumption of innocence and proof beyond reasonable doubt are fundamental rights possessed by every citizen charged with a crime in these United States. This circuit has held that a fairly phrased question concerning whether or not a juror could accord such rights to a defendant in a criminal trial must, if requested, be submitted by the trial court as a fundamental part of voir dire. See United States v. Blount, 479 F.2d 650, 651 (6th Cir.1973). See also United States v. Johnson, 584 F.2d 148, 155 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979), and see generally, Irvin v. Dowd, 366 U.S. 717, 722, 723, 81 S.Ct. 1639, 1642, 1643, 6 L.Ed.2d 751 (1961).
This court has recently dealt with the requirements for testing the impartiality of prospective jurors and securing a fundamentally fair trial. See United States v. Blanton, 719 F.2d 815 (6th Cir.1983) en banc, cert. denied, — U.S. -, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984). In the Blanton case, the trial judge conducted the jury voir dire exclusively, as did the judge in the instant case. In the Blanton case, the trial judge’s voir dire filled 289 pages of the trial record. In our instant case, the record of voir dire is 12 pages long.
The trial judge did give standard instructions on both of these issues during his charge to the jury and no issue is presented as to his charge. It is his failure after request to ask the venire (either individually or collectively) whether they could accord the defendants the presumption of innocence and the requirement of proof of guilt beyond reasonable doubt which is at issue. A negative answer or even a hesitant one from any prospective juror would surely have produced a defense challenge and, if the judge did not excuse the prospective juror, the exercise of a peremptory challenge by defense counsel.
The peremptory challenge right is a fundamental part of a criminal trial and its violation requires reversal without a showing of prejudice as is shown below.
In Swain v. Alabama, the Supreme Court said:
In contrast to the course in England, where both peremptory challenge and challenge for cause have fallen into disuse, peremptories were and are freely used and relied upon in this country, perhaps because juries here are drawn from a greater cross-section of a heterogeneous society. The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. See Lewis v. United States, 146 U.S. 370, 376 [13 S.Ct. 136, 138, 36 L.Ed. 1011]. Although “[t]here is nothing in the Constitution of the United States which requires the Congress [or the States] to grant peremptory challenges,” Stilson v. United States, 250 U.S. 583, 586 [40 S.Ct. 28, 30, 63 L.Ed. 1154], nonetheless the challenge is “one of the most important of the rights secured to the accused,” Pointer v. United States, 151 U.S. 396, 408 [14 S.Ct. 410, 414, 38 L.Ed. 208]. The denial or impairment of the right is reversible error without a showing of prejudice, Lewis v. United States, supra; Harrison v. United States, 163 U.S. 140, 16 S.Ct. 961, 41 L.Ed. 104; cf. Gulf, Colorado & Santa Fe R. Co. v. Shane, 157 U.S. 348, 15 S.Ct. 641, 39 L.Ed. 727. “For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” Lewis v. United States, supra, 146 U.S. at 378, 13 S.Ct. at 139.
The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that “to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison, 349 U.S. 133,136 [75 S.Ct. 623, 625, 99 L.Ed. 942], Indeed the very availability of peremptories allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause. Although historically the incidence of the prosecutor’s challenge has differed from that of the accused, the view in this country has been that the system should guarantee “not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held.” Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578.
Swain v. Alabama, 380 U.S. 202, 218-20, 85 S.Ct. 824, 834-36, 13 L.Ed.2d 759 (1965); see also Irvin v. Dowd, 366 U.S. 717, 723-24, 81 S.Ct. 1639, 1642-44, 6 L.Ed.2d 751 (1961).
This court has repeatedly followed the doctrine set forth above. In United States v. Blount, the court said:
The primary purpose of the voir dire of jurors is to make possible the empanel-ling of an impartial jury through questions that permit the intelligent exercise of challenges by counsel. Wright, 2 Federal Practice and Procedure ¶ 382 (1969). It follows, then, that a requested question should be asked if an anticipated response would afford the basis for a challenge for cause. See e.g., United States v. Carter, 440 F.2d 1132 (6th Cir.1971); Brown v. United States, 119 U.S.App.D.C. 203, 338 F.2d 543 (D.C.Cir.1964); United States v. Napoleone, 349 F.2d 350 (3d Cir.1965). Certainly, a challenge for cause would be sustained if a juror expressed his incapacity to accept the proposition that a defendant is presumed to be innocent despite the fact that he has been accused in an indictment or information. It is equally likely that careful counsel would exercise a peremptory challenge if a juror replied that he could accept this proposition of law on an intellectual level but that it troubled him viscerally because folk wisdom teaches that where there is smoke there must be fire. Accordingly, the failure of the trial judge to ask the question upon request was erroneous and since the failure may have resulted in the denial of an impartial jury, the error cannot be dismissed as harmless. See Brown v. United States, supra (Burger, J.).
479 F.2d at 651.
In United States v. Johnson, we said:
We have previously noted that the “essential function of voir dire is to allow for the impaneling of a fair and impartial jury through questions which permit the intelligent exercise of challenges by counsel.” United States v. Anderson, 562 F.2d 394, 398 (6th Cir.1977) (footnote omitted); United States v. Blount, 479 F.2d 650, 651 (6th Cir.1973). A trial court commits reversible error if, by unduly restricting voir dire, it substantially impairs the peremptory challenge right. See Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Blount, supra, 479 F.2d at 651; United States v. Rucker, 557 F.2d 1046, 1048-49 (4th Cir.1977).
584 F.2d at 155.
The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_certreason
|
A
|
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.
UNITED STATES v. JONES.
No. 556.
Decided April 13, 1953.
Solicitor General Cummings for the United States.
Patrick C. Whitaker and Thomas P. Whitaker for appellee.
■Per Curiam.
Invoking the Criminal Appeals Act, 18 U. S. C. § 3731, the Government appeals from a dismissal of a two-count information charging appellee with violations of the Civil Rights Act, 18 U. S. C. § 242.
The District Court construed the information to charge that appellee, an officer in a Florida state prison, whipped certain prisoners entrusted to his custody “for the purpose and with the intent of disciplining said prisoners.” The District Court held that mere disciplinary action by state prison officials is no offense under the Civil Rights Act, supra, and dismissed the information. 108 F. Supp. 266.
On appeal, the Government predicates its argument for reversal upon the assumption that the information charges far more than the District Court found it charged. The Government construes the information to charge that appellee wilfully extorted confessions of violations of prison rules from the prisoners and wilfully inflicted illegal summary punishment upon them, in violation of the laws of Florida and the Constitution of the United States. Thus, the Government’s appeal — the theory of the prosecution — is based upon a construction of the information which differs significantly from the construction which the District Court has placed upon it.
The Criminal Appeals Act, supra, strictly limits the scope of our jurisdiction over this appeal. We may only entertain questions relating to the construction of the Civil Rights Act, supra, and its applicability to this information. We cannot re-examine the information and construe it de novo, for we are bound by the District Court’s construction. United States v. Borden Co., 308 U. S. 188 (1939).
Under the Criminal Appeals Act, we have the power to remand this case to the Court of Appeals if we are of the “opinion” that the appeal “should have been taken to a court of appeals.” 18 U. S. C. § 3731. We think this case is appropriate for the exercise of the power which Congress has entrusted to our discretion. The initial issue — and a critical issue — raised by the Government’s appeal obviously involves questions relating to the correctness of the District Court’s construction of the information and not to that court’s interpretation of the scope of the Civil Rights Act, supra. Those questions cannot be resolved in a direct appeal to this Court, but they can be reviewed should the case be remanded to the Court of Appeals for the Fifth Circuit. Accordingly, we remand this appeal to the Court of Appeals for further proceedings in that court.
It is so ordered.
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:
|
sc_issuearea
|
F
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
Supap KIRTSAENG, dba Bluechristine99, Petitioner
v.
JOHN WILEY & SONS, INC.
No. 15-375.
Supreme Court of the United States
Argued April 25, 2016.
Decided June 16, 2016.
E. Joshua Rosenkranz, New York, NY, for Petitioner.
Paul M. Smith, Washington, DC, for Respondent.
Elaine J. Goldenberg for the United States as amicus curiae, by special leave of the Court, supporting the respondent.
Sam P. Israel, Eleonora Zlotnikova, Sam P. Israel, P.C., New York, NY, E. Joshua Rosenkranz, Annette L. Hurst, Lisa T. Simpson, Thomas M. Bondy, Andrew D. Silverman, Christopher J. Cariello, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Petitioner.
Paul M. Smith, Matthew S. Hellman, Ishan K. Bhabha, Jenner & Block LLP, Washington, DC, for Respondent.
Justice KAGAN delivered the opinion of the Court.
Section 505 of the Copyright Act provides that a district court "may ... award a reasonable attorney's fee to the prevailing party." 17 U.S.C. § 505. The question presented here is whether a court, in exercising that authority, should give substantial weight to the objective reasonableness of the losing party's position. The answer, as both decisions below held, is yes-the court should. But the court must also give due consideration to all other circumstances relevant to granting fees; and it retains discretion, in light of those factors, to make an award even when the losing party advanced a reasonable claim or defense. Because we are not certain that the lower courts here understood the full scope of that discretion, we return the case for further consideration of the prevailing party's fee application.
I
Petitioner Supap Kirtsaeng, a citizen of Thailand, came to the United States 20 years ago to study math at Cornell University. He quickly figured out that respondent John Wiley & Sons, an academic publishing company, sold virtually identical English-language textbooks in the two countries-but for far less in Thailand than in the United States. Seeing a ripe opportunity for arbitrage, Kirtsaeng asked family and friends to buy the foreign editions in Thai bookstores and ship them to him in New York. He then resold the textbooks to American students, reimbursed his Thai suppliers, and pocketed a tidy profit.
Wiley sued Kirtsaeng for copyright infringement, claiming that his activities violated its exclusive right to distribute the textbooks. See 17 U.S.C. §§ 106(3), 602(a)(1). Kirtsaeng invoked the "first-sale doctrine" as a defense. That doctrine typically enables the lawful owner of a book (or other work) to resell or otherwise dispose of it as he wishes. See § 109(a). But Wiley contended that the first-sale doctrine did not apply when a book (like those Kirtsaeng sold) was manufactured abroad.
At the time, courts were in conflict on that issue. Some thought, as Kirtsaeng did, that the first-sale doctrine permitted the resale of foreign-made books; others maintained, along with Wiley, that it did not. And this Court, in its first pass at the issue, divided 4 to 4. See Costco Wholesale Corp. v. Omega, S.A., 562 U.S. 40, 131 S.Ct. 565, 178 L.Ed.2d 470 (2010) (per curiam ). In this case, the District Court sided with Wiley; so too did a divided panel of the Court of Appeals for the Second Circuit. See 654 F.3d 210, 214, 222 (2011). To settle the continuing conflict, this Court granted Kirtsaeng's petition for certiorari and reversed the Second Circuit in a 6-to-3 decision, thus establishing that the first-sale doctrine allows the resale of foreign-made books, just as it does domestic ones. See Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. ----, ----, 133 S.Ct. 1351, 1355-1356, 185 L.Ed.2d 392 (2013).
Returning victorious to the District Court, Kirtsaeng invoked § 505 to seek more than $2 million in attorney's fees from Wiley. The court denied his motion. Relying on Second Circuit precedent, the court gave "substantial weight" to the "objective reasonableness" of Wiley's infringement claim. See No. 08-cv-07834 (S.D.N.Y., Dec. 20, 2013), App. to Pet. for Cert. 18a, 2013 WL 6722887, *4. In explanation of that approach, the court stated that "the imposition of a fee award against a copyright holder with an objectively reasonable"-although unsuccessful-"litigation position will generally not promote the purposes of the Copyright Act." Id., at 11a (quoting Matthew Bender & Co. v. West Publishing Co., 240 F.3d 116, 122 (C.A.2 2001) (emphasis deleted)). Here, Wiley's position was reasonable: After all, several Courts of Appeals and three Justices of the Supreme Court had agreed with it. See App. to Pet. for Cert. 12a. And according to the District Court, no other circumstance "overr[o]de" that objective reasonableness, so as to warrant fee-shifting. Id., at 22a. The Court of Appeals affirmed, concluding in a brief summary order that "the district court properly placed 'substantial weight' on the reasonableness of [Wiley's] position" and committed no abuse of discretion in deciding that other "factors did not outweigh" the reasonableness finding. 605 Fed.Appx. 48, 49, 50 (C.A.2 2015).
We granted certiorari, 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016), to resolve disagreement in the lower courts about how to address an application for attorney's fees in a copyright case.
II
Section 505 states that a district court "may ... award a reasonable attorney's fee to the prevailing party." It thus authorizes fee-shifting, but without specifying standards that courts should adopt, or guideposts they should use, in determining when such awards are appropriate.
In Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), this Court recognized the broad leeway § 505 gives to district courts-but also established several principles and criteria to guide their decisions. See id., at 519, 114 S.Ct. 1023 (asking "what standards should inform" the exercise of the trial court's authority). The statutory language, we stated, "clearly connotes discretion," and eschews any "precise rule or formula" for awarding fees. Id., at 533, 534, 114 S.Ct. 1023. Still, we established a pair of restrictions. First, a district court may not "award[ ] attorney's fees as a matter of course"; rather, a court must make a more particularized, case-by-case assessment. Id., at 533, 114 S.Ct. 1023. Second, a court may not treat prevailing plaintiffs and prevailing defendants any differently; defendants should be "encouraged to litigate [meritorious copyright defenses] to the same extent that plaintiffs are encouraged to litigate meritorious claims of infringement." Id., at 527, 114 S.Ct. 1023. In addition, we noted with approval "several nonexclusive factors" to inform a court's fee-shifting decisions: "frivolousness, motivation, objective unreasonableness[,] and the need in particular circumstances to advance considerations of compensation and deterrence." Id., at 534, n. 19, 114 S.Ct. 1023. And we left open the possibility of providing further guidance in the future, in response to (and grounded on) lower courts' evolving experience. See id., at 534-535, 114 S.Ct. 1023 ; Martin v. Franklin Capital Corp., 546 U.S. 132, 140, n., 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (noting that Fogerty was not intended to be the end of the matter).
The parties here, though sharing some common ground, now dispute what else we should say to district courts. Both Kirtsaeng and Wiley agree-as they must-that § 505 grants courts wide latitude to award attorney's fees based on the totality of circumstances in a case. See Brief for Petitioner 17; Brief for Respondent 35. Yet both reject the position, taken by some Courts of Appeals, see supra, at 1984, n. 1, that Fogerty spelled out the only appropriate limits on judicial discretion-in other words, that each district court should otherwise proceed as it sees fit, assigning whatever weight to whatever factors it chooses. Rather, Kirtsaeng and Wiley both call, in almost identical language, for "[c]hanneling district court discretion towards the purposes of the Copyright Act." Brief for Petitioner 16; see Brief for Respondent 21 ("[A]n appellate court [should] channel a district court's discretion so that it ... further[s] the goals of the Copyright Act"). (And indeed, as discussed later, both describe those purposes identically. See infra, at 1986.) But at that point, the two part ways. Wiley argues that giving substantial weight to the reasonableness of a losing party's position will best serve the Act's objectives. See Brief for Respondent 24-35. By contrast, Kirtsaeng favors giving special consideration to whether a lawsuit resolved an important and close legal issue and thus "meaningfully clarifie[d]" copyright law. Brief for Petitioner 36; see id., at 41-44.
We join both parties in seeing a need for some additional guidance respecting the application of § 505. In addressing other open-ended fee-shifting statutes, this Court has emphasized that "in a system of laws discretion is rarely without limits." Flight Attendants v. Zipes, 491 U.S. 754, 758, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989) ; see Halo Electronics, Inc. v. Pulse Electronics, Inc., --- U.S. ----, ----, 136 S.Ct. 1923, 1931, --- L.Ed.2d ----, 2016 WL 3221515 (2016)ante, at 8. Without governing standards or principles, such provisions threaten to condone judicial "whim" or predilection. Martin, 546 U.S., at 139, 126 S.Ct. 704 ; see also ibid. ("[A] motion to [a court's] discretion is a motion, not to its inclination, but to its judgment; and its judgment is to be guided by sound legal principles" (quoting United States v. Burr, 25 F.Cas. 30, 35 (No. 14,692d) (C.C.Va.1807) (Marshall, C. J.))). At the least, utterly freewheeling inquiries often deprive litigants of "the basic principle of justice that like cases should be decided alike," Martin, 546 U.S., at 139, 126 S.Ct. 704 -as when, for example, one judge thinks the parties' "motivation [s]" determinative and another believes the need for "compensation" trumps all else, Fogerty, 510 U.S., at 534, n. 19, 114 S.Ct. 1023. And so too, such unconstrained discretion prevents individuals from predicting how fee decisions will turn out, and thus from making properly informed judgments about whether to litigate. For those reasons, when applying fee-shifting laws with "no explicit limit or condition," Halo, --- U.S. at, ----, --- S.Ct., at --- -, ante, at 8, we have nonetheless "found limits" in them-and we have done so, just as both parties urge, by looking to "the large objectives of the relevant Act," Zipes, 491 U.S., at 759, 109 S.Ct. 2732 (internal quotation marks omitted); see supra, at 1985 - 1986.
In accord with such precedents, we must consider if either Wiley's or Kirtsaeng's proposal well advances the Copyright Act's goals. Those objectives are well settled. As Fogerty explained, "copyright law ultimately serves the purpose of enriching the general public through access to creative works." 510 U.S., at 527, 114 S.Ct. 1023 ; see U.S. Const., Art. I, § 8, cl. 8 ("To promote the Progress of Science and useful Arts"). The statute achieves that end by striking a balance between two subsidiary aims: encouraging and rewarding authors' creations while also enabling others to build on that work. See Fogerty, 510 U.S., at 526, 114 S.Ct. 1023. Accordingly, fee awards under § 505 should encourage the types of lawsuits that promote those purposes. (That is why, for example, Fogerty insisted on treating prevailing plaintiffs and prevailing defendants alike-because the one could "further the policies of the Copyright Act every bit as much as" the other. 510 U.S., at 527, 114 S.Ct. 1023. ) On that much, both parties agree. Brief for Petitioner 37; Brief for Respondent 29-30. The contested issue is whether giving substantial weight to the objective (un)reasonableness of a losing party's litigating position-or, alternatively, to a lawsuit's role in settling significant and uncertain legal issues-will predictably encourage such useful copyright litigation.
The objective-reasonableness approach that Wiley favors passes that test because it both encourages parties with strong legal positions to stand on their rights and deters those with weak ones from proceeding with litigation. When a litigant-whether plaintiff or defendant-is clearly correct, the likelihood that he will recover fees from the opposing (i.e., unreasonable) party gives him an incentive to litigate the case all the way to the end. The holder of a copyright that has obviously been infringed has good reason to bring and maintain a suit even if the damages at stake are small; and likewise, a person defending against a patently meritless copyright claim has every incentive to keep fighting, no matter that attorney's fees in a protracted suit might be as or more costly than a settlement. Conversely, when a person (again, whether plaintiff or defendant) has an unreasonable litigating position, the likelihood that he will have to pay two sets of fees discourages legal action. The copyright holder with no reasonable infringement claim has good reason not to bring suit in the first instance (knowing he cannot force a settlement and will have to proceed to judgment); and the infringer with no reasonable defense has every reason to give in quickly, before each side's litigation costs mount. All of those results promote the Copyright Act's purposes, by enhancing the probability that both creators and users (i.e., potential plaintiffs and defendants) will enjoy the substantive rights the statute provides.
By contrast, Kirtsaeng's proposal would not produce any sure benefits. We accept his premise that litigation of close cases can help ensure that "the boundaries of copyright law [are] demarcated as clearly as possible," thus advancing the public interest in creative work. Brief for Petitioner 19 (quoting Fogerty, 510 U.S., at 527, 114 S.Ct. 1023 ). But we cannot agree that fee-shifting will necessarily, or even usually, encourage parties to litigate those cases to judgment. Fee awards are a double-edged sword: They increase the reward for a victory-but also enhance the penalty for a defeat. And the hallmark of hard cases is that no party can be confident if he will win or lose. That means Kirtsaeng's approach could just as easily discourage as encourage parties to pursue the kinds of suits that "meaningfully clarif[y]" copyright law. Brief for Petitioner 36. It would (by definition) raise the stakes of such suits; but whether those higher stakes would provide an incentive-or instead a disincentive-to litigate hinges on a party's attitude toward risk. Is the person risk-preferring or risk-averse-a high-roller or a penny-ante type? Only the former would litigate more in Kirtsaeng's world. See Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 428 (1973) (fees "make[ ] the expected value of litigation less for risk-averse litigants, which will encourage [them to] settle[ ]"). And Kirtsaeng offers no reason to think that serious gamblers predominate. See, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 636, n. 8, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981) ("Economists disagree over whether business decisionmakers[ ] are 'risk averse' "); CIGNA Corp. v. Amara, 563 U.S. 421, 430, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011) ("[M]ost individuals are risk averse"). So the value of his standard, unlike Wiley's, is entirely speculative.
What is more, Wiley's approach is more administrable than Kirtsaeng's. A district court that has ruled on the merits of a copyright case can easily assess whether the losing party advanced an unreasonable claim or defense. That is closely related to what the court has already done: In deciding any case, a judge cannot help but consider the strength and weakness of each side's arguments. By contrast, a judge may not know at the conclusion of a suit whether a newly decided issue will have, as Kirtsaeng thinks critical, broad legal significance. The precedent-setting, law-clarifying value of a decision may become apparent only in retrospect-sometimes, not until many years later. And so too a decision's practical impact (to the extent Kirtsaeng would have courts separately consider that factor). District courts are not accustomed to evaluating in real time either the jurisprudential or the on-the-ground import of their rulings. Exactly how they would do so is uncertain (Kirtsaeng points to no other context in which courts undertake such an analysis), but we fear that the inquiry would implicate our oft-stated concern that an application for attorney's fees "should not result in a second major litigation." Zipes, 491 U.S., at 766, 109 S.Ct. 2732 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ). And we suspect that even at the end of that post-lawsuit lawsuit, the results would typically reflect little more than educated guesses.
Contrary to Kirtsaeng's view, placing substantial weight on objective reasonableness also treats plaintiffs and defendants even-handedly, as Fogerty commands. No matter which side wins a case, the court must assess whether the other side's position was (un)reasonable. And of course, both plaintiffs and defendants can (and sometimes do) make unreasonable arguments. Kirtsaeng claims that the reasonableness inquiry systematically favors plaintiffs because a losing defendant "will virtually always be found to have done something culpable." Brief for Petitioner 29 (emphasis in original). But that conflates two different questions: whether a defendant in fact infringed a copyright and whether he made serious arguments in defense of his conduct. Courts every day see reasonable defenses that ultimately fail (just as they see reasonable claims that come to nothing); in this context, as in any other, they are capable of distinguishing between those defenses (or claims) and the objectively unreasonable variety. And if some court confuses the issue of liability with that of reasonableness, its fee award should be reversed for abuse of discretion.
All of that said, objective reasonableness can be only an important factor in assessing fee applications-not the controlling one. As we recognized in Fogerty, § 505 confers broad discretion on district courts and, in deciding whether to fee-shift, they must take into account a range of considerations beyond the reasonableness of litigating positions. See supra, at 1985. That means in any given case a court may award fees even though the losing party offered reasonable arguments (or, conversely, deny fees even though the losing party made unreasonable ones). For example, a court may order fee-shifting because of a party's litigation misconduct, whatever the reasonableness of his claims or defenses. See, e.g., Viva Video, Inc. v. Cabrera, 9 Fed.Appx. 77, 80 (C.A.2 2001). Or a court may do so to deter repeated instances of copyright infringement or overaggressive assertions of copyright claims, again even if the losing position was reasonable in a particular case. See, e.g., Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 593-595 (C.A.6 2008) (awarding fees against a copyright holder who filed hundreds of suits on an overbroad legal theory, including in a subset of cases in which it was objectively reasonable). Although objective reasonableness carries significant weight, courts must view all the circumstances of a case on their own terms, in light of the Copyright Act's essential goals.
And on that score, Kirtsaeng has raised serious questions about how fee-shifting actually operates in the Second Circuit. To be sure, the Court of Appeals' framing of the inquiry resembles our own: It calls for a district court to give "substantial weight" to the reasonableness of a losing party's litigating positions while also considering other relevant circumstances. See 605 Fed.Appx., at 49-50 ; Matthew Bender, 240 F.3d, at 122. But the Court of Appeals' language at times suggests that a finding of reasonableness raises a presumption against granting fees, see ibid. ; supra, at 1983 - 1985-and that goes too far in cabining how a district court must structure its analysis and what it may conclude from its review of relevant factors. Still more, district courts in the Second Circuit appear to have overly learned the Court of Appeals' lesson, turning "substantial" into more nearly "dispositive" weight. As Kirtsaeng notes, hardly any decisions in that Circuit have granted fees when the losing party raised a reasonable argument (and none have denied fees when the losing party failed to do so). See Reply Brief 15. For these reasons, we vacate the decision below so that the District Court can take another look at Kirtsaeng's fee application. In sending back the case for this purpose, we do not at all intimate that the District Court should reach a different conclusion. Rather, we merely ensure that the court will evaluate the motion consistent with the analysis we have set out-giving substantial weight to the reasonableness of Wiley's litigating position, but also taking into account all other relevant factors.
* * *
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Compare, e.g., Matthew Bender & Co. v. West Publishing Co., 240 F.3d 116, 122 (C.A.2 2001) (giving substantial weight to objective reasonableness), with, e.g., Bond v. Blum, 317 F.3d 385, 397-398 (C.A.4 2003) (endorsing a totality-of-the-circumstances approach, without according special significance to any factor), and with, e.g., Hogan Systems, Inc. v. Cybresource Int'l, Inc., 158 F.3d 319, 325 (C.A.5 1998) (presuming that a prevailing party receives fees).
This case serves as a good illustration. Imagine you are Kirtsaeng at a key moment in his case-say, when deciding whether to petition this Court for certiorari. And suppose (as Kirtsaeng now wishes) that the prevailing party in a hard and important case-like this one-will probably get a fee award. Does that make you more likely to file, because you will recoup your own fees if you win? Or less likely to file, because you will foot Wiley's bills if you lose? Here are some answers to choose from (recalling that you cannot confidently predict which way the Court will rule): (A) Six of one, half a dozen of the other. (B) Depends if I'm feeling lucky that day. (C) Less likely-this is getting scary; who knows how much money Wiley will spend on Supreme Court lawyers? (D) More likely-the higher the stakes, the greater the rush. Only if lots of people answer (D) will Kirtsaeng's standard work in the way advertised. Maybe. But then again, maybe not.
Kirtsaeng also offers statistics meant to show that in practice, even if not in theory, the objective reasonableness inquiry unduly favors plaintiffs; but the Solicitor General as amicus curiae has cast significant doubt on that claim. According to Kirtsaeng, 86% of winning copyright holders, but only 45% of prevailing defendants, have received fee awards over the last 15 years in the Second Circuit (which, recall, gives substantial weight to objective reasonableness). See Reply Brief 17-18; supra, at 1983 - 1985. But first, the Solicitor General represents that the overall numbers are actually 77% and 53%, respectively. See Tr. of Oral Arg. 41. And second, the Solicitor General points out that all these percentages include default judgments, which almost invariably give rise to fee awards-but usually of a very small amount-because the defendant has not shown up to oppose either the suit or the fee application. When those cases are taken out, the statistics look fairly similar: 60% for plaintiffs versus 53% for defendants. See id., at 42. And of course, there may be good reasons why copyright plaintiffs and defendants do not make reasonable arguments in perfectly equal proportion.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_applfrom
|
E
|
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).
NEWSOM et al. v. E. I. DU PONT DE NEMOURS & CO.
No. 10740.
United States Court of Appeals Sixth Circuit.
April 14, 1949.
Whitworth Stokes, of Nashville, Tenn. (Lewis S. Pope, T. J. Sterritt, John Inscho and Whitworth Stokes, all of Nashville, Tenn., on the brief), for appellants.
Charles L. Cornelius, of Nashville, Tenn. (Charles L. Cornelius, of Nashville, Tenn., and C. M. Spargo, of Wilmington, Del., on the brief), for appellee.
Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
ALLEN, Circuit Judge.
This is an appeal from the judgment of the District Court in consolidated cases which dismissed actions brought on behalf of appellants and other employees of ap-pellee similarly situated.
The complaint prays judgment against the appellee for all overtime work (all time worked or spent in waiting or walking or 'traveling in excess of 40 hours per week in any one workweek) plus liquidated damages and attorneys’ fees. The activities for which compensation is sought are described as being certain preliminary activities after arriving at the places of work, such as putting on aprons and overalls, removing shirts, taping or greasing arms, putting on finger cots, preparing equipment for productive work, turning on switches for lights and machinery, opening windows, and assembling and sharpening tools, and other work necessary to the employment. It is averred that the appellants were required to walk or travel a great many minutes a day solely upon the premises of the appellee, as a necessary prerequisite to productive work, and that the routes employed and the time allowed were under the constant control and supervision of the appellee.
It is also alleged that “At the end of every particular shift, it was necessary that plaintiffs remove grease, gloves, wrappings and other special equipment and appliances, and in a great many instances they were required by the defendant’s regulations to take a shower hath as a safety precaution for the benefit of the defendant.”
Filed after the enactment of the Portal-to-Portal Act, 29 U.S.C.A. § 251 et seq., the amended complaint alleges that under the bargaining contract made between appellee and its employees on September 2, 1944, it was specifically provided in writing that “Time and one-half or double time will be paid when required by law or Government regulation.”
It was also alleged that another paragraph of the contract expressly provided:
“(a) Time and one-half will be paid to hourly roll employees:
“1. For hours worked in excess of eight (8) when more than eight (8) hours are worked consecutively except that, when an employee receives overtime premiums under Company rules for work prior to the start of his regularly 'scheduled work period, overtime premiums for hours worked in excess of eight (8) will be off-set by the overtime premiums payable under such Company rules.”
The answer set up that the contract of September 2, 1944, was written during the war emergency, and that the provision as to time and a half or double time was inserted because there was then in full force and effect a government wartime regulation embodied in Executive Order No. 9240, 40 U.S.C.A. § 326 note, effective October 1, 1942, which provided:
“(1) Where because of emergency conditions an employee is required to work for seven consecutive days in any regularly scheduled workweek a premium wage of double time compensation shall be paid for work on the seventh day
“(2) Where required by the provisions of law or employment contracts, not more than time and one-half wage compensation shall be paid for work in excess of eight hours in any day or forty hours in any workweek or for work performed on the sixth day worked in any regularly scheduled workweek.”
This order was revoked after the encl of hostilities in August, 1945, by Executive Order, 9601, 40 U.S.C.A. § 326 note.
A new bargaining contract made on January 2, 1946, between appellee and its employees omitted the provision that time and a half or double time should be paid when required by law or government regulation, but retained the provision that time and a half should be paid for consecutive hours, worked in excess of eight.
No reply to the answer was filed, and" appellee then moved to dismiss the actions-upon the ground that the District Court had no jurisdiction of the subject-matter, and that the amended complaints do not state a. cause of action within the provisions of the-Portal-to-Portal Act of 1947, 29 U.S.C., §; 251 et seq., 29 U.S.C.A. § 251 et seq.
The District Court granted the motion,, and dismissed the action.
Appellants contend that the judgment should be reversed, on the ground (1) that their claims fall within the exception contained in the Portal-to-Portal Act; and (2)< that if the Portal-to-Portal Act be construed as barring these actions, it is unconstitutional.
The controlling section of the Portal-to-Portal Act of 1947, 29 U.S.C., § 252(a) (1} and (2), 29 U.S.C.A. § 252(a) (1, 2), is as-follows:
“No employer shall be subject to any liability or punishment under the Fair Labor Standards Act of 1938, as amended * * * on account of the failure of such employer to pay an employee minimum! wages, or to pay an employee overtime-compensation, for or on account of any activity of an employee engaged in prior to-the date of the enactment of this Act, except an activity which was compensable by either—
“(1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or
“(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee was employed, covering such activity * * *.”
Also pertinent is § 252(d), which reads:
“No court of the United States * * * shall have jurisdiction of any action or proceeding, whether instituted prior to or after the date of the enactment of this Act [May 14, 1947], to enforce liability or impose punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, under the Walsh-Healey Act, or under the Bacon-Davis Act, to the extent that such action or proceeding seeks to enforce any liability or impose any punishment with respect to an activity which was not compensable under subsections (a) and (b) of this section.”
As the case was decided on motion to dismiss, we assume the existence of the facts well-pleaded in the complaint. Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853.
Appellants contend that the provision of the contract of September 2, 1944, that time and a half or double time should be paid when required by law or government regulation, expressly incorporated the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., into the contract and thereby brought the activities described in the complaint within the exception of the Portal-to-Portal Act. It may be noted that the Fair Labor Standards Act does not provide for double time, and in that respect the provision of the contract would seem to apply to Executive Order 9240, which does provide for time and a half and also for double time. However, the contract provision of September 2, 1944, clearly refers to overtime payments “required by law,” and hence by reference includes the requirement of the Fair Labor Standards Act concerning such payments. Interstate Consolidated Street Ry. Co. v. Commonwealth of Mass., 207 U.S. 79, 84, 28 S.Ct. 26, 52 L.Ed. 111, 12 Ann. Cas. 555. But the fact that the Fair Labor Standards Act is written into and becomes part of an express labor-management contract does not call for reversal of the judgment below. The exception of the Portal-to-Portal Act, 29 U.S.C., § 252(a) (1) and (2), 29 U.S.C.A. § 252(a) (1, 2), does not apply to any and all activities engaged in by employees, but only to such as are expressly compensable under a written or nonwritten contract or custom or practice in effect covering the activity. In order that activities be expressly compensable under this provision they must be specifically described. A contract which does not refer to and specify the activities for which compensation is to be made does not bring the exception into force. It is undisputed on this record that the parties, in executing the contract of September 2, 1944, did not contemplate that the activities described in the complaint should be paid for. Such activities, at that time and always, prior to the decision in Tennessee Coal, Iron & Rd. Co. v. Muscoda Local No. 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014; Jewell Ridge Coal Corp. v. Local No. 6167, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534; and Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 696, 66 S.Ct. 1187, 90 L.Ed. 1515, had been considered as incidental to and included in the productive work and compensated for by the rate of pay on the particular job. The first requisite, then, for the existence of a contract between the parties to pay for these particular activities, namely, a meeting of the minds, was completely lacking. The transactions in controversy fall squarely within the situation described in the findings and declaration of policy of the Congress made in § 1(a) (5) of the Portal-to-Portal Act, 29 U.S.C., § 251(a) (5), 29 U.S.C.A. § 251 (a) (5), namely, that if this recovery is allowed, it will give payment to employees for engaging in activities no compensation for which had been contemplated by either the employer or employee at the time they were engaged in.
The Fair Labor Standards Act, although incorporated by reference into the contract, does not fill this gap, for it contains no provision with reference to the activities for which recovery is here sought. It embodies provisions regulating minimum wages and maximum hours of work in industry generally. The Act does not define work or workweek, nor say anything as to whether or not preliminary or incidental activities shall be compensable. Section 7, which fixes the maximum hours of a workweek and forbids employment for any time in excess thereof unless time and a half is paid for overtime, 29 U.S.C., § 207, 29 U.S. C.A. § 207, makes no reference to pay for activities such as are here involved. While the provisions of the Fair Labor Standards Act became part of the express contract under the bargaining agreement of September 2, 1944, this incorporation of the statute by reference does not add an express provision covering the particular activities, and therefore the exception of the Portal-to-Portal Act does not apply.
The Portal-to-Portal Act, which became law subsequent to the enactment of the Fair Labor Standards Act, was framed with specific reference to activities such as those involved herein. As has often been repeated, it was passed in order to bar the innumerable claims that were being filed under the Fair Labor Standards Act in order to take advantage of the decisions in Tennessee Coal, Iron & Rd. Co. v. Muscoda Local 123; Jewell Ridge Coal Corp. v. Local No. 6167; and Anderson v. Mt. Clemens Pottery Co., supra. Appellants in effect ask us to read these interpretations into the contract in suitj although with certain exceptions the Portal-to-Portal Act expressly repealed them. Seese v. Bethlehem Steel Co., 4 Cir., 168 F.2d 58, 62. Such a construction would nullify both the purpose and the provisions of the Portal-to-Portal Act. There being no allegation or proof of the existence of an express contract or custom to pay for the activities described in the complaint, they are barred. The District Court had no jurisdiction of them, 29 U.S.C., § 252(d), 29 U.S.C.A. § 252(d), and a cause of action is not stated.
Appellants contend, however, that the provision which was written in all bargaining contracts from September 2, 1944, to the present time, that time and a half for overtime should be paid “for hours worked in excess of eight * * *” constitutes an express written contract within the protection of the exception and independent of the Fair Labor Standards Act. Since certain of these identical provisions were written into the contracts after the adjudication of the Tennessee Coal, Iron & Rd. Co., the Jewell Ridge Coal Corp. and the Anderson cases, supra, it cannot be successfully contended by the appellee that ft did not contemplate that non-productive and incidental activities such as those described in the complaint were work within the Fair Labor Standards Act as interpreted by the Supreme Court in those decisions. However, since the individual contracts of the 334 appellants are independent of statute, the relief sought is not common to all. Rule 23(a) (3), Federal Rules of Civil Procedure, 28 U.S.C.A. Each appellant has a separate and distinct cause of action, and was required to allege that as to him the mattér in controversy exceeds the jurisdictional amount of $3,000. Pinel v. Pinel, 240 U.S. 594, 596, 36 S.Ct. 416, 60 L.Ed. 817; Fisch v. General Motors Corp., 6 Cir., 169 F.2d 266, 274. Since such allegations are lacking, the District Court did not err in dismissing the complaint.
The constitutionality of the Portal-to-Portal Act has also been considered recently by this court in Rogers Cartage Co. v. Reynolds, 166 F.2d 317. While different sections of the Act, namely, § 9 and § 11, 29 U.S.C.A. §§ 258, 260, were there construed the constitutionality of the Act was attacked upon grounds similar to those relied on herein. An exhaustive consideration of the validity of the Act was given by this court in Fisch v. General Motors Corp., supra, and its constitutionality was sustained. Cf. Seese v. Bethlehem Steel Co., supra. We adhere to our previous decisions, and deem it unnecessary further to discuss this portion of appellants’ argument.
The judgment of the District Court is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_interven
|
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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
HORIZON AIR INDUSTRIES, INC. d/b/a Horizon Air, Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, Respondent, San Juan Airlines, Inc., Intervenor (Two Cases).
Nos. 87-1429, 87-1747.
United States Court of Appeals, District of Columbia Circuit.
Argued May 3, 1988.
Decided June 28, 1988.
Marshall S. Sinick, with whom Scott T. Kragie and Stephen A. Alterman, Washington, D.C., were on the brief, for petitioner.
Robert D. Young, Atty., Dept, of Transp., with whom B. Wayne Vance, General Counsel, Kenneth N. Weinstein, Deputy Asst. General Counsel and Thomas L. Ray, Atty., Dept, of Transp., Washington, D.C., were on the brief, for respondent. Robert B. Nicholson and Laura Heiser, At-tys., Dept, of Justice, Washington, D.C., also entered appearances for respondent.
Aaron A. Goerlich, Eileen M. Gleimer and James M. Burger, Washington, D.C., were on the brief for intervenor, San Juan Airlines, Inc.
Before EDWARDS and WILLIAMS, Circuit Judges, and WEIGEL , Senior District Judge.
Of the U.S. District Court for the Northern District of California, sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion for the Court filed by Circuit Judge WILLIAMS.
WILLIAMS, Circuit Judge:
We deal here with a vestige of the system of air transport regulation that prevailed from the passage of the Civil Aeronautics Act of 1938, Pub.L. No. 75-706, 52 Stat. 973 (1938), until the Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705 (1978) (codified in scattered sections of 49 U.S.C.). The former allowed carriers to enter specific markets only on approval of the Civil Aeronautics Board and to charge only rates approved by the Board. For purely domestic interstate markets, deregulation eliminated government control over entry and prices, the architects expecting that open entry would drive rates to competitive levels. See Civil Aeronautics Board Practices and Procedures, Report of the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary of the United States Senate, 94th Cong., 1st Sess. 62-63 (1975). But because foreign nations did not move with us to a system of open entry, Congress reserved for the Department of Transportation the task of selecting American carriers for routes that remained subject to entry control. See 49 U.S.C. § 1371 (1982) (governing issuance of certificates of public convenience and necessity); 49 U.S.C. § 1551(b)(1)(B) (1982) (transfer of functions of CAB); 49 U.S.C. § 1551(a) (1982) (eliminating domestic route and rate regulation).
In January 1987 Canada and the United States agreed to allow one carrier from each nation to provide non-stop commuter-type service — in effect service with planes having 60 or fewer seats — between Seattle-Tacoma and Vancouver. This was to supplement the existing non-stop service in large commercial jets offered by United and Pacific Western. Horizon Air and San Juan Airlines applied for the United States slot. The Department initially opted for Horizon, but, characterizing the matter as a “very close case,” it cast its decision as an order to interested persons to show cause why it should not persevere in that view. Seattle-Vancouver Service Case, Dkt. No. 44716, Order 87-6-11 (June 5, 1987) (“Show Cause Order”), reprinted in Joint Appendix (“J.A.”) at 17-27. San Juan responded vigorously to the invitation; on the second round it prevailed, receiving exclusive authority for commuter service for a five-year period. Seattle-Vancouver Service Case, Dkt. No. 44716, Order 87-7-53 (July 22, 1987) (“Final Order”), reprinted in J.A. at 28-34.
In its final decision the Department focused on San Juan’s “historic interest and presence” in the Seattle-Vancouver market, which had taken the form of providing one-stop service via Bellingham. Final Order, J.A. at 29. At the same time, it downgraded the importance that it had initially attached to Horizon’s superior “route integration” — i.e., its “behind service” between the gateway city, Seattle-Tacoma, and Portland and Eugene. Final Order, J.A. at 28-31. Finally, it accepted San Juan’s argument that its past practice of adding extra sections to popular flights offset the advantages of Horizon’s more diverse fleet of aircraft. Id. at 33. We will return to these matters in more detail in considering Horizon’s objections.
Horizon identifies four faults in the decision, three substantive, one procedural. We consider each in turn, but reject them all.
I. San Juan’s Historic Interest in the Market
In its Final Order the Department noted that the successful applicant would have to fill a niche in a market dominated by the two larger carriers, and determined that San Juan’s store of good will in both cities and its “impressive” record as a competitor would give it significant advantages over Horizon, which would start from scratch in Vancouver. Id. at 29-30. These pluses, it thought, justified reversing its prior view, which had discounted San Juan’s position as “incumbent” in the Seattle-Vancouver market. The Department expressly disclaimed any reliance on the diversion of revenues that San Juan might suffer if Horizon were chosen. Id. at 33-34.
Horizon’s objection to the Department’s reliance on San Juan’s past participation in the Seattle-Vancouver market has two related strands. First, citing the Department’s Notice of Proposed Rulemaking, Limited-Entry Markets ... Procedures and Criteria for Selecting Carriers (the “NPRM”), 50 Fed.Reg. 38,539 (1985), Horizon contends that the Department itself had ruled that incumbency or historic interest was a proper consideration only in the context of renewal applications. Horizon Brief at 23-26. We cannot agree.
We note at the outset that literal incumbency could by definition be relevant only in the renewal context. Here the Department relied on a sort of quasi-incumbency — San Juan’s historic provision of service in a closely related market, that of one-stop service between the two cities.
The record flatly contradicts Horizon’s theory that the Department explicitly disclaimed interest in incumbency outside the renewal context. It is quite true that in the NPRM the Department said: “This criterion [incumbency] has come into play only in the context of renewal applications.” 50 Fed.Reg. at 38,547 (emphasis added). Notice that even there the statement is only an empirical observation about past practice. More important, its final policy statement on the matter omitted any such limitation. There the Department simply stated affirmatively that the Department would apply a rebuttable presumption in favor of renewal applicants. See Final Rule and Policy Statement, Limited-Entry Markets ... Procedures and Criteria for Selecting Carriers, 51 Fed.Reg. 43,180, 43,187 (1986) (“Policy Statement” or “Statement”). (The full document is entitled “Final Rule and Policy Statement” only because it also contained rules setting five years as the duration of its certificates and requiring 90 days’ notice from carriers terminating service. See id. at 43,188. The Department expressly reserved its authority to change selection criteria case-by-case rather than by rulemaking. See NPRM, 50 Fed.Reg. at 38,539.)
Thus Horizon could prevail on this contention only if it established that the Policy Statement’s reference to incumbency in the renewal context carried a negative implication that it should be excluded in all other contexts. Even then, the Department would be free to change views adopted in the Policy Statement so long as it adequately explained the shift. See Vietnam Veterans of America v. Secretary of the Navy, 843 F.2d 528, 537-38, 539 (D.C.Cir.1988). In any event, we think the Department was free to reject Horizon’s reading of its Statement.
The Policy Statement explicitly leaves the door open to reliance on unmentioned factors:
While these criteria represent the major decisional elements in most selection cases, there may be other factors which the Department will wish to consider, depending upon the particular circumstances of each proceeding.
51 Fed.Reg. at 43,187. The sentence is, to be sure, somewhat oddly located, tucked away in a discussion of one specific criterion (“Ability to Enter a Market Quickly”). But other clues confirm its evident meaning. Introducing its discussion of the criteria, the Statement says that the “major elements of consideration ... will include the factors listed below,” id. at 43,186 (emphasis added), leaving open the issue of exclusivity and suggesting that it might consider at least minor unlisted factors. Further, at its end the Statement says that “the views of civic parties have historically been afforded substantial weight ... and the Department fully intends to continue this policy.” Id. at 43,187. As the views of civic parties are not enumerated as selection criteria, the passage suggests non-exclusivity.
But even assuming that the list were intended to be exclusive, we think the Department was entitled to read it as allowing consideration of quasi-incumbency in appropriate non-renewal cases. At least two reasons for favoring incumbents in the renewal context seem relevant to the quasi-incumbency situation as well: their track record suggests the likelihood of future success, and, because of their established reputation, the incremental costs of securing customers will be relatively low. It would seem a perverse reading of the Policy Statement to say that it disdained consideration of those features even in a case where they were logically just as relevant as in the core case explicitly identified. In any event, the Department’s view of its carrier selection criteria is controlling unless it is “plainly erroneous or inconsistent” with the language of the Policy Statement. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977); Action Alliance of Senior Citizens v. Bowen, 846 F.2d 1449, 1457 (D.C.Cir.1988). As it is not, we decline to find the negative implication urged by Horizon.
Horizon also suggests that the Department’s emphasis on San Juan’s three years of service in the Seattle-Vancouver market is little more than a thinly veiled attempt to protect San Juan from a possible diversion of traffic and revenues — a factor that, according to the NPRM, the CAB had excluded from consideration in the “era of deregulation.” See 50 Fed.Reg. at 38,547. Even assuming the Department intended to bar consideration of diversionary effect, we find no violation. In the Final Order the Department explicitly said that it did not consider the diversionary impact on San Juan of awarding the route to Horizon, J.A. at 33-34, and Horizon suggests no reason to question the Department’s good faith. Instead the Department stressed the positive reasons to give quasi-incumbency weight — particularly San Juan’s reputation and brand name recognition and the value of its track record as an indicator of future service. J.A. at 29-30. We take the Department at its word.
II. DOT’S Failure to Explicitly Consider Market Structure
Horizon’s second line of attack focuses on “market structure” — “the impact that a route award will have on the overall level of competition in a particular market.” Policy Statement, 51 Fed.Reg. at 43,186. The Department’s Final Order failed to discuss the competitive effects of the competing applications. Horizon claims that the award to San Juan will spawn less competition than would an award to Horizon and that at least in these circumstances failure to discuss the issue renders the outcome arbitrary and capricious. Horizon Brief at 27-30. We think not.
We note at the outset that nothing in the Air Deregulation Act or in the Policy Statement requires the Department to explicitly analyze the effect on market structure in every case. The Act merely stated as a general goal “maximum reliance on competitive market forces,” 49 U.S.C.App. § 1302(a)(4); this generalization can hardly be read as a clear directive to focus on competitive effects in inherently non-market-oriented proceedings for award of international routes. As noted above, the Department’s Policy Statement simply described and adopted the CAB’s unstructured practice of “varying the weight accorded each criterion from case to case, depending on the particular circumstances of each proceeding.” Policy Statement, 51 Fed.Reg. at 43,186. In the face of that clearly stated intention, we cannot accept Horizon’s claim that the Department has bound itself to analyse the competitive implications in every comparative proceeding, no matter how insignificant the difference between the proposals in this dimension. See also Frontier Airlines v. CAB, 439 F.2d 634, 637 n. 4 (D.C.Cir.1971) (CAB need not deal in detail with every aspect of matter in route award proceeding); Outagamie County v. CAB, 355 F.2d 900, 906 (7th Cir.1966) (same).
It remains to be determined whether the circumstances of this case were such that the Department ought to have addressed itself to the asserted anti-competitive effects of victory for San Juan. Where no party gives the Department a plausible reason to believe that it has a material advantage on a specific criterion, we think that ordinarily the Department can ignore that criterion.
The Department’s concern for market structure has two separate facets: in-tergateway competition (competition among airlines at different U.S. gateways serving a common foreign destination) and intragateway competition (competition among carriers on the particular route). See NPRM, 50 Fed.Reg. at 38,456; Policy Statement, 51 Fed.Reg. at 43,186-87. We may at the outset put aside the first. Horizon never raised the issue in its brief or submissions to the Department below, concentrating solely on intragateway competition. Brief of Horizon Air Industries in Seattle-Vancouver Service Case, reprinted in J.A. at 87 (quoting definition of intra-gateway competition in the Policy Statement, 51 Fed.Reg. at 43,187). Because Horizon failed to raise this issue with the Department, it is barred by statute from raising it here. 49 U.S.C. § 1486(e) (1982) (court may not review objection to order of the Department unless the objection was raised with the Department); Air Line Pilots Association v. DOT, 838 F.2d 563, 567 (D.C.Cir.1988); Air Line Pilots Association v. CAB, 502 F.2d 453, 457 (D.C.Cir.1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1391, 43 L.Ed.2d 652 (1975).
As to intragateway competition, Horizon contends first that the Department “passed up the opportunity to increase the number of competitors serving [Vancouver] from the Seattle gateway.” Horizon Brief at 28. The argument is based on the quite shaky assumption that San Juan would go on blithely providing one-stop service from Seattle to Vancouver in the face of competition from two non-stop commuter carriers and two non-stop jet carriers. Before its interment in 1985 the CAB consistently operated under the opposite — and we think more plausible — assumption that carriers offering one-stop service have great difficulty competing with non-stop carriers on the same route. See, e.g., California-Alberta Route Proceeding, 76 C.A.B. 824, 828 (1978). In short, Horizon’s argument here was not so colorably powerful as to require explicit Department analysis.
Horizon also points to a “code sharing” agreement entered into by San Juan and United shortly before San Juan’s selection. See Seattle-Vancouver Service Case, Dkt. No. 44716, Order 87-10-10 (October 7, 1987) (“Reconsideration Order”), reprinted in J.A. at 35. Under the agreement San Juan will be identified by United’s two-letter code in the Official Airline Guide and in computer reservation systems, and United may hold itself out as providing service wherever San Juan flies. But San Juan will remain an independently owned and operated airline with a separate identity, and will retain sole authority to set its schedules and fares; the agreement gives United neither a financial interest in San Juan nor any control over the smaller airline’s operations. See Reconsideration Order, J.A. at 35, 37.
The agreement originally covered all of San Juan’s operations, but the Department (at Horizon’s urging) conditioned its route award on San Juan’s agreement not to share United’s code in the Seattle-Vancouver market. Reconsideration Order, J.A. at 40. This at least partly met Horizon’s contention that the agreement would temper San Juan’s willingness to compete aggressively with United on the Seattle-Vancouver route. Moreover, though the Department faulted San Juan for not bringing the agreement to its attention, id. at 39 n. 11, it concluded that the agreement as modified would have few anticompetitive effects, id. at 3-6, and would not undercut the basis for choosing San Juan over Horizon, id. at 4. Note that the Department did expressly consider this issue, so it cannot be faulted for giving it the silent treatment.
Horizon argues, however, that even the residue of the agreement will dampen San Juan’s competitive ardor in the Seattle-Vancouver market. But the Department reasoned that commuter service in small, plodding prop-driven planes would not in any event impose a severe competitive constraint on pricing or service by jet setters United and Pacific Western. Id. at 39-40. This judgment, in the area of the Department’s expertise, is plausible enough to require our deference.
III. Route Integration
Horizon provided service between the gateway (Seattle) and Portland and Eugene, and proposed that its service on the contested route should (at least in part) take the form of single-plane extension of that service. This led the Department in its original decision to find its proposed route integration “clearly superior.” Show Cause Order, J.A. at 25. In the Final Order, however, DOT concluded that Horizon’s superior behind service was outweighed by San Juan’s edge in market identity and flight frequency. Final Order, J.A. at 29. Horizon attacks this flip-flop, arguing essentially that DOT should have accorded Horizon’s advantage in route integration nearly-dispositive weight. Horizon Brief at 30-38.
In its Final Order the Department noted that San Juan’s one-stop Portland-Belling-ham-Vancouver service (inaugurated after it submitted its original proposal) somewhat offset Horizon’s advantage. J.A. at 31. Even so, the Department candidly recognized that Horizon’s proposed behind service to Portland remained superior. Id. at 30. But it placed less emphasis on the advantage than it originally had because it recognized that the vast majority of Seattle-Vancouver passengers would either be purely local travellers or passengers connecting with flights to or from cities other than Portland — evidently about 90 percent. See Final Order, J.A. at 31 n. 6. It reasoned that San Juan’s more frequent flights would benefit both connecting passengers and the substantial number of local passengers, whereas Horizon’s behind service to Portland would benefit a much smaller percentage of the market. Id. at 31. This was a reasonable judgment for the Department to make in its role as a surrogate for individual consumers expressing preferences through a market.
IV. Late Submissions by San Juan
Horizon argues that the Department erred by permitting San Juan to update the record at two points in the proceedings. Horizon Brief at 38-42. First, following the submission of service proposals by both airlines, San Juan revised its proposal to reflect its initiation of one-stop service between Portland and Vancouver and its agreement to purchase two new 19-seat aircraft. J.A. at 81. Second, in response to the Show Cause Order, San Juan gave further details of its interline agreements with other carriers. J.A. at 113-14.
The Department suggests that all the new data is quite trivial. Respondent’s Brief at 48. We cannot accept this view. In its Final Order the Department explicitly considered San Juan’s new Portland-Bell-ingham-Vancouver service as material on the route integration issue, J.A. at 31, and indeed the information closely parallels data that the CAB had refused to consider simply because of the applicant’s delay in bringing it to the Board’s attention, see United States-Brazil/Argentina All-Cargo Exemption, 96 C.A.B. 75, 79 n. 9 (1982) (refusing to consider applicant’s single-plane behind service).
Nonetheless, we find no error. The Department has not bound itself to act as a procedural martinet, enforcing every procedural nicety to the letter. Thus it is free to be informal, so long as it does not trench on parties’ opportunities to be heard fairly. Although the Department conceded that the revisions were somewhat out of the ordinary, Show Cause Order, J.A. at 25 n. 18; Final Order, J.A. at 33 n. 12, it concluded that in “non-oral evidentiary proceedings involving smaller carriers” it was appropriate to “afford parties greater latitude,” id. It avoided any prejudice to Horizon by giving it an opportunity to respond. Horizon seized the chance on both points, see J.A. at 165-66 (Horizon’s letter responding to San Juan’s revised proposal); J.A. at 122-31 (Horizon’s brief in reply to San Juan’s response to the Show Cause Order), and the Department considered the responses in its orders. See, e.g., Show Cause Order, J.A. at 19 n. 3, 25 n. 18; Final Order, J.A. at 28 & n. 2, 33 n. 12.
* * * * * *
Finding no error, we deny the petition for review.
. The Department defines a “commuter air carrier” as an "air taxi operator” which operates scheduled service five or more times a week between two cities. 14 C.F.R. § 298.2(f) (1987). An “air taxi operator” is in turn defined as a carrier which does not “utilize large aircraft.” 14 C.F.R. § 298.3(a)(1). The Department's regulations consider any airplane with more than 60 seats a "large aircraft.” 14 C.F.R. § 298.2(i).
. "Behind service,” sometimes called “beyond service,” refers to service between a U.S. gateway and a second U.S. destination. That is, viewing the route from the foreign city, the second city is “behind" the gateway.
. Contrary to Horizon’s assertion, San Juan had notified the Department of its practice of adding extra sections at peak periods in its initial brief prior to the Show Cause Order. See Brief of San Juan Airlines in Seattle* Vancouver Service Case, J.A. at 103. San Juan had also informed the Department that it planned to use 19-seat Dormer aircraft prior to the Show Cause Order. See J.A. at 81.
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
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.
LOCAL 814, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Karl J. Leib, Jr., Intervenor. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SANTINI BROTHERS, INC., Respondent.
Nos. 74-1036, 74-1243.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 15, 1975.
Decided April 30, 1975.
Bruce H. Simon, New York City, of the bar of the Supreme Court of New York, pro hac vice, by special leave of court with whom H. Reed Ellis, New York City, was on the brief for petitioners in 74 — 1036 and respondent in 74— 1243.
Alan Banov, Atty., N. L. R. B., with whom Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick H. Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Robert A. Giannasi, Asst. Gen. Counsel, N. L. R. B., were on the brief for respondent in 74 — 1036 and petitioner in 74-1243.
Karl J. Leib, Jr., Miami, Fla., was on the brief for intervenor.
Before BAZELON, Chief Judge, and TAMM and ROBB, Circuit Judges.
Opinion
PER CURIAM.
Opinion filed by Chief Judge BAZELON, concurring in part and dissenting in part.
PER CURIAM:
This case involves a determination by the National Labor Relations Board (the Board) that Local 814 of the Teamsters Union violated sections 8(b)(4) and 8(e) of the National Labor Relations Act, 29 U.S.C. §§ 158(b)(4) and 158(e) (1970), by entering into and attempting to enforce a provision of its collective bargaining agreement with Santini Brothers, Inc. For the reasons stated herein, we remand the record for clarification.
Prior to 1948, movers of household goods and office furniture in the New York metropolitan area utilized employees represented by Local 814 of the Teamsters Union to perform all aspects of their business. However, in that year, a large interstate moving company began utilizing “owner-operators” for so-called long distance hauling, moves in excess of 500 miles. The owner-operators own the tractors that pull the trailers used in long distance moving, contract with the moving companies for hauling business and generally lease the trailers from the company. This method of performing long distance hauling proved attractive to both drivers and companies, and presently, the twenty New York area carriers that perform the bulk of long distance hauling use owner-operators. Santini Brothers, Inc., one of the largest movers in that area, began using owner-operators in 1962 to counteract the deterioration in its long distance moving business as its best drivers became owner-operators for competitors; by 1967, Santini used owner-operators for virtually all of its long distance moving.
Local 814’s concern with the practice of using owner-operators first manifested itself in the 1962 — 1965 collective bargaining agreement between the union and the Moving and Storage Industry of New York, a multi-employer bargaining unit representing approximately 300 area moving and storage companies including Santini. This agreement, and subsequent contracts through 1971, provided that: “the owner-operator, commission or percentage method of operation shall not be practiced on local work covered by this agreement. The percentage or commission method of operation shall likewise not be practiced on long distance moving.” These agreements also provided for joint study to explore the effects of utilizing owner-operators for long distance hauling.
In the 1971 negotiations between the union and the industry, the union demanded that all persons involved in long distance moving be treated as employees under the contract, regardless of whether they had been defined as owner-operators. From initial opposition, the employers acceded to .the union’s demands, accepting the following provision in Article 24 of the agreement.
A.l. All persons performing long distance driving under contract to an employer covered by this agreement (whether as “owner-operator,” “percentage driver,” “commission driver,” or otherwise) shall be covered by this agreement as employees (hereinafter referred to as contract employees).
Since the collective bargaining agreement contained a union security clause, the effect of this provision was to require that the owner-operators join Local 814 or lose their contracts.
The union sought to enforce Article 24 in the spring and summer of 1972 by advising Santini that it was violating the agreement and by notifying the owner-operators that they were required to join the union. On October 30, 1972, Local 814 engaged in a work stoppage to protest Santini’s failure to implement Article 24. The work stoppage ended only after Santini’s President agreed to transmit signed membership applications from the owner-operators as he obtained them and to forbid nonsigners to load or unload in the New York metropolitan area. Several owner-operators refused to apply for membership. Thereafter, Santini allowed those who joined Local 814 to load and unload in New York, but not those who refused to join.
On November 8, 1972, Karl J. Lieb, on behalf of several owner-operators, filed unfair labor practice charges against Local 814 and Santini. On June 29, 1973, an Administrative Law Judge (ALJ) found that Local 814 had violated the “secondary boycott” provisions of the National Labor Relations Act and that Local 814 and Santini had entered into an illegal agreement because Article 24 was a prohibited “hot cargo” clause. On January 8, 1974, the Board affirmed this decision without comment. Local 814, Teamsters (Santini Brothers, Inc.) 208 NLRB No. 22 (1974).
By adopting the ALJ’s opinion, the Board held that the owner-operators were not employees within the meaning of section 2(3) of the Act, 29 U.S.C. § 152(3) (1970), but rather were “independent contractors.” Therefore, the Board concluded that Article 24 itself and the union activity aimed at enforcing Article 24 were directed at forcing Santini to engage in conduct prohibited by the Act, specifically to coerce the independent contractors to join the union or to cease doing business with them.
Local 814 contends initially that the Board erred in concluding that the union violated sections 8(b)(4) and 8(e) of the Act, for even if the owner-operators were independent contractors, Article 24 is a legitimate work preservation clause. We cannot agree. As written, Article 24 neither establishes union work standards for the subcontracting of work nor requires that specific work be done by members of the bargaining unit. Rather, Article 24 purports to require the owner-operators to join the union by defining them as “employees,” and hence subjecting them to the union security agreement.. If Article 24 were drafted to require that only members of Local 814 may engage in long distance hauling or that any subcontracting to owner-operators must be consistent with union work standards, the case would be much different. However, the provision before us is clearly a union signatory agreement violative of sections 8(b)(4) and 8(e) if the owner-operators are not “employees.”
As to this question, the Board adopted the opinion of the ALJ, which concluded that the owner-operators were not employees within the meaning of section 2(3) of the National Labor Relations Act. However, shortly thereafter, the Board also adopted the decision of another ALJ in Local 814, Teamsters (Molloy Brothers Moving and Storage, Inc.), 208 N.L.R.B. No. 43 (1974), which concluded that owner-operators who contracted with another member of the Moving and Storage Industry of New York were employees within the meaning of the Act. We believe the two decisions are factually similar and ostensibly inconsistent. Because the Board has not explained its reasons for reaching different results, see Greater Boston Television Corp. v. F. C. C., 143 U.S.App.D.C. 383, 444 F.2d 841, 850-52 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971), we remand the record for clarification. If the Board finds the two indistinguishable, it should so inform the court. See N. L. R. B. v. Metropolitan Life Insurance Co., 380 U.S. 438, 442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).
Chief Judge Bazelon dissents from the scope of this remand, arguing that it can only produce a post hoc rationalization for the Board’s actions. We cannot agree. This court has continually stressed that we are partners with, rather than adversaries to, the administrative agencies. See, e. g., Greater Boston Television Corp., v. F. C. C., supra, 444 F.2d at 851. As such, we think it only fair to give the agency a full and frank opportunity to explicate its actions before we consider reversal. While the possibility exists that the agency will offer a post hoc rationalization, that possibility also exists under Judge Bazelon’s broader proposal. Indeed, we believe that Judge Bazelon’s proposal would heighten the possibility that the agency might substitute rationalization for reasoning, since his call for a “thorough reconsideration of the doctrinal quicksand in this area” would place the court firmly in an adversary position to the Board.
Moreover, we cannot agree with the dissent’s characterization of the circumstances under which the remand for clarification may be utilized. Most recently, this device was utilized in Local 441, IBEW v. N. L. R. B., 167 U.S.App. D.C. 53, 510 F.2d 1274 (1975) the division sought clarification, inter alia, of the Board’s position concerning the legal effect of the conduct at issue. We therefore believe that the remand for clarification remains a useful and appropriate device for determining that an agency has engaged in reasoned decision making.
So ordered.
. On November 10, 1972, the Union requested that Santini discharge 13 owner-operators for not joining the Union and paying dues. Santini refused and another work stoppage occurred on November 20. On January 22, 1973, the Board’s Regional Director sought a preliminary injunction against the Union under section 10(7) of the Act, 29 U.S.C. § 160(1) (1970). The injunction was granted on March 16, 1973. Danielson v. Local 814, Teamsters, 355 F.Supp. 1293 (S.D.N.Y.1973).
. Section 8(b)(4)(i), (ii)(A), (B), 29 U.S.C. § 158(b)(4)(i), (ii)(A), (B) (1970).
. Section 8(e), 29 U.S.C. § 158(e) (1970).
. See National Woodwork Mfg. Ass’n. v. N. L. R. B„ 386 U.S. 612, 87 S.Ct. 1250, 18 L.Ed.2d 357 (1967); Orange Belt Dist. Council No. 48 v. N. L. R. B., 117 U.S.App.D.C. 233, 328 F.2d 534 (1964).
. See Local 1288, Retail Clerks v. N. L. R. B., 129 U.S.App.D.C. 92, 390 F.2d 858, 861-62 (1968); A. Duie Pyle, Inc. v. N. L. R. B„ 383 F.2d 772, 777-78 (3rd Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968); cf. Denver Bldg. & Constr. Trades Council v. N. L. R. B., 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951); Marriot Corp. v. N. L. R. B., 491 F.2d 367 (9th Cir.), cert. denied sub nom. International Ass’n of Machinists v. N. L. R. B., 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 121 (1974); Local 710, Meat & Highway Drivers v. N. L. R. B., 118 U.S.App.D.C. 287, 335 F.2d 709 (1964); Local 5, Plumbers & Pipefitters v. N. L. R. B., 116 U.S.App.D.C. 100, 321 F.2d 366 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1964); District No. 9, Machinists v. N. L. R. B.,114 U.S.App.D.C. 287, 315 F.2d 33, 36 (1962); Washington Oregon Shingle Weavers Dist. Council, 101 N.L.R.B. 1159 (1952), aff’d, 211 F.2d 149 (9th Cir. 1954). See also N. L. R. B. v. Local 825, Operating Eng’rs, 400 U.S. 297, 91 S.Ct. 402, 27 L.Ed.2d 398 (1971). Of course, if the owner-operators were “employees” (and thus presumably within the union’s jurisdiction and certification), then the union’s actions are permissible attempts to enforce a union security agreement on its unit employees. Absent state law to the contrary, union security agreements are permitted under present law subject to certain restrictions. NLRA §§ 8(a)(3), (b)(2), (5), 14(b), 29 U.S.C. §§ 158(a)(3), (b)(2), (5), 164(b) (1970). On the relationship of a finding of “independent contractor” status and a finding of a violation of the secondary boycott provisions of the NLRA, see Local 417, Carpet Layers v. N. L. R. B„ 151 U.S.App.D.C. 338, 467 F.2d 392, 399-401, 404-06 (1972).
. The Administrative Law Judge in Santini Brothers, although cognizant of his colleague’s position in Molloy Brothers, did not attempt to distinguish the two cases.
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_casesource
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026
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
UNITED STATES v. BOYLE, EXECUTOR OF THE ESTATE OF BOYLE
No. 83-1266.
Argued October 10, 1984
Decided January 9, 1985
Burger, C. J., delivered the opinion for a unanimous Court. Brennan, J., filed a concurring opinion, in which Marshall, Powell, and O’Connor, JJ., joined, post, p. 252.
Albert G. Lauber, Jr., argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Archer, CarletonD. Powell, and Jo-Ann Horn.
Thomas E. Davies argued the cause and filed a brief for respondent.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to resolve a conflict among the Circuits on whether a taxpayer’s reliance on an attorney to prepare and file a tax return constitutes “reasonable cause” under § 6651(a)(1) of the Internal Revenue Code, so as to defeat a statutory penalty incurred because of a late filing.
f — (
A
Respondent, Robert W. Boyle, was appointed executor of the will of his mother, Myra Boyle, who died on September 14, 1978; respondent retained Ronald Keyser to serve as attorney for the estate. Keyser informed respondent that the estate must file a federal estate tax return, but he did not mention the deadline for filing this return. Under 26 U. S. C. § 6075(a), the return was due within nine months of the decedent’s death, i. e., not later than June 14, 1979.
Although a businessman, respondent was not experienced in the field of federal estate taxation, other than having been executor of his father’s will 20 years earlier. It is undisputed that he relied on Keyser for instruction and guidance. He cooperated fully with his attorney and provided Keyser with all relevant information and records. Respondent and his wife contacted Keyser a number of times during the spring and summer of 1979 to inquire about the progress of the proceedings and the preparation of the tax return; they were assured that they would be notified when the return was due and that the return would be filed “in plenty of time.” App. 39. When respondent called Keyser on September 6, 1979, he learned for the first time that the return was by then overdue. Apparently, Keyser had overlooked the matter because of a clerical oversight in omitting the filing date from Keyser’s master calendar. Respondent met with Keyser on September 11, and the return was filed on September 13, three months late.
B
Acting pursuant to 26 U. S. C. § 6651(a)(1), the Internal Revenue Service assessed against the estate an additional tax of $17,124.45 as a penalty for the late filing, with $1,326.56 in interest. Section 6651(a)(1) reads in pertinent part:
“In case of failure ... to file any return ... on the date prescribed therefor . . . , unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate . . . .” (Emphasis added.)
A Treasury Regulation provides that, to demonstrate “reasonable cause,” a taxpayer filing a late return must show that he “exercised ordinary business care and prudence and was nevertheless unable to file the return within the prescribed time.” 26 CFR §301.6651-1(c)(1) (1984).
Respondent paid the penalty and filed a claim for a refund. He conceded that the assessment for interest was proper, but contended that the penalty was unjustified because his failure to file the return on time was “due to reasonable cause,” i. e., reliance on his attorney. Respondent brought suit in the United States District Court, which concluded that the claim was controlled by the Court of Appeals’ holding in Rohrabaugh v. United States, 611 F. 2d 211 (CA7 1979). In Rohrabaugh, the United States Court of Appeals for the Seventh Circuit held that reliance upon counsel constitutes “reasonable cause” under § 6651(a)(1) when: (1) the taxpayer is unfamiliar with the tax law; (2) the taxpayer makes full disclosure of all relevant facts to the attorney that he relies upon, and maintains contact with the attorney from time to time during the administration of the estate; and (3) the taxpayer has otherwise exercised ordinary business care and prudence. 611 F. 2d, at 215, 219. The District Court held that, under Rohrabaugh, respondent had established “reasonable cause” for the late filing of his tax return; accordingly, it granted summary judgment for respondent and ordered refund of the penalty. A divided panel of the Seventh Circuit, with three opinions, affirmed. 710 F. 2d 1251 (1983).
We granted certiorari, 466 U. S. 903 (1984), and we reverse.
II
A
Congress’ purpose in the prescribed civil penalty was to ensure timely filing of tax returns to the end that tax liability will be ascertained and paid promptly. The relevant statutory deadline provision is clear; it mandates that all federal estate tax returns be filed within nine months from the decedent’s death, 26 U. S. C. 6076(a). Failure to comply incurs a penalty of 5 percent of the ultimately determined tax for each month the return is late, with a maximum of 25 percent of the base tax. To escape the penalty, the taxpayer bears the heavy burden of proving both (1) that the failure did not result from “willful neglect,” and (2) that the failure was “due to reasonable cause.” 26 U. S. C. § 6651(a)(1).
The meaning of these two standards has become clear over the near-70 years of their presence in the statutes. As used here, the term “willful neglect” may be read as meaning a conscious, intentional failure or reckless indifference. See Orient Investment & Finance Co. v. Commissioner, 83 U. S. App. D. C. 74, 75, 166 F. 2d 601, 602 (1948); Hatfried, Inc. v. Commissioner, 162 F. 2d 628, 634 (CA3 1947); Janice Leather Imports Ltd. v. United States, 391 F. Supp. 1235, 1237 (SDNY 1974); Gemological Institute of America, Inc. v. Riddell, 149 F. Supp. 128, 131-132 (SD Cal. 1957). Like “willful neglect,” the term “reasonable cause” is not defined in the Code, but the relevant Treasury Regulation calls on the taxpayer to demonstrate that he exercised “ordinary business care and prudence” but nevertheless was “unable to file the return within the prescribed time.” 26 CFR §301.6651(c)(l)(1984); accord, e. g., Fleming v. United States, 648 F. 2d 1122, 1124 (CA7 1981); Ferrando v. United States, 245 F. 2d 582, 587 (CA9 1957); Haywood Lumber & Mining Co. v. Commissioner, 178 F. 2d 769, 770 (CA2 1950); Southeastern Finance Co. v. Commissioner, 153 F. 2d 205 (CA5 1946); Girard Investment Co. v. Commissioner, 122 F. 2d 843, 848 (CA3 1941); see also n. 1, supra. The Commissioner does not contend that respondent’s failure to file the estate tax return on time was willful or reckless. The question to be resolved is whether, under the statute, reliance on an attorney in the instant circumstances is a “reasonable cause” for failure to meet the deadline.
B
In affirming the District Court, the Court of Appeals recognized the difficulties presented by its formulation but concluded that it was bound by Rohrabaugh v. United States, 611 F. 2d 211 (CA7 1979). The Court of Appeals placed great importance on the fact that respondent engaged the services of an experienced attorney specializing in probate matters and that he duly inquired from time to time as to the progress of the proceedings. As in Rohrabaugh, see id., at 219, the Court of Appeals in this case emphasized that its holding was narrowly drawn and closely tailored to the facts before it. The court stressed that the question of “reasonable cause” was an issue to be determined on a case-by-case basis. See 710 F. 2d, at 1253-1254; id., at 1254 (Coffey, J., concurring).
Other Courts of Appeals have dealt with the issue of “reasonable cause” for a late filing and reached contrary conclusions. In Ferrando v. United States, 245 F. 2d 582 (CA9 1957), the court held that taxpayers have a personal and nondelegable duty to file a return on time, and that reliance on an attorney to fulfill this obligation does not constitute “reasonable cause” for a tardy filing. Id., at 589. The Fifth Circuit has similarly held that the responsibility for ensuring a timely filing is the taxpayer’s alone, and that the taxpayer’s reliance on his tax advisers — accountants or attorneys — is not a “reasonable cause.” Millette & Associates v. Commissioner, 594 F. 2d 121, 124-125 (per curiam), cert. denied, 444 U. S. 899 (1979); Logan Lumber Co. v. Commissioner, 365 F. 2d 846, 854 (1966). The Eighth Circuit also has concluded' that reliance on counsel does not constitute “reasonable cause.” Smith v. United States, 702 F. 2d 741, 743 (1983) (per curiam); Boeving v. United States, 650 F. 2d 493, 495 (1981); Estate of Lillehei v. Commissioner, 638 F. 2d 65, 66 (1981) (per curiam).
► — I HH h-i
We need not dwell on the similarities or differences in the facts presented by the conflicting holdings. The time has come for a rule with as “bright” a line as can be drawn consistent with the statute and implementing regulations. Deadlines are inherently arbitrary; fixed dates, however, are often essential to accomplish necessary results. The Government has millions of taxpayers to monitor, and our system of self-assessment in the initial calculation of a tax simply cannot work on any basis other than one of strict filing standards. Any less rigid standard would risk encouraging a lax attitude toward filing dates. Prompt payment of taxes is imperative to the Government, which should not have to assume the burden of unnecessary ad hoc determinations.
Congress has placed the burden of prompt filing on the executor, not on some agent or employee of the executor. The duty is fixed and clear; Congress intended to place upon the taxpayer an obligation to ascertain the statutory deadline and then to meet that deadline, except in a very narrow range of situations. Engaging an attorney to assist in the probate proceedings is plainly an exercise of the “ordinary business care and prudence” prescribed by the regulations, 26 CFR § 301.6651 — 1(c)(1) (1984), but that does not provide an answer to the question we face here. To say that it was “reasonable” for the executor to assume that the attorney would comply with the statute may resolve the matter as between them, but not with respect to the executor’s obligations under the statute. Congress has charged the executor with an unambiguous, precisely defined duty to file the return within nine months; extensions are granted fairly routinely. That the attorney, as the executor’s agent, was expected to attend to the matter does not relieve the principal of his duty to comply with the statute.
This case is not one in which a taxpayer has relied on the erroneous advice of counsel concerning a question of law. Courts have frequently held that “reasonable cause” is established when a taxpayer shows that he reasonably relied on the advice of an accountant or attorney that it was unnecessary to file a return, even when such advice turned out to have been mistaken. See, e. g., United States v. Kroll, 547 F. 2d 398, 395-396 (CA7 1977); Commissioner v. American Assn. of Engineers Employment, Inc., 204 F. 2d 19, 21 (CA7 1953); Burton Swartz Land Corp. v. Commissioner, 198 F. 2d 558, 560 (CA5 1952); Haywood Lumber & Mining Co. v. Commissioner, 178 F. 2d, at 771; Orient Investment & Finance Co. v. Commissioner, 83 U. S. App. D. C., at 75, 166 F. 2d, at 603; Hatfried, Inc. v. Commissioner, 162 F. 2d, at 633-635; Girard Investment Co. v. Commissioner, 122 F. 2d, at 848; Dayton Bronze Bearing Co. v. Gilligan, 281 F. 709, 712 (CA6 1922). This Court also has implied that, in such a situation, reliance on the opinion of a tax adviser may constitute reasonable cause for failure to file a return. See Commissioner v. Lane-Wells Co., 321 U. S. 219 (1944) (remanding for determination whether failure to file return was due to reasonable cause, when taxpayer was advised that filing was not required).
When an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice. Most taxpayers are not competent to discern error in the substantive advice of an accountant or attorney. To require the taxpayer to challenge the attorney, to seek a “second opinion,” or to try to monitor counsel on the provisions of the Code himself would nullify the very purpose of seeking the advice of a presumed expert in the first place. See Haywood Lumber, supra, at 771. “Ordinary business care and prudence” do not demand such actions.
By contrast, one does not have to be a tax expert to know that tax returns have fixed filing dates and that taxes must be paid when they are due. In short, tax returns imply deadlines. Reliance by a lay person on a lawyer is of course common; but that reliance cannot function as a substitute for compliance with an unambiguous statute. Among the first duties of the representative of a decedent’s estate is to identify and assemble the assets of the decedent and to ascertain tax obligations. Although it is common practice for an executor to engage a professional to prepare and file an estate tax return, a person experienced in business matters can perform that task personally. It is not unknown for an executor to prepare tax returns, take inventories, and carry out other significant steps in the probate of an estate. It is even not uncommon for an executor to conduct probate proceedings without counsel.
It requires no special training or effort to ascertain a deadline and make sure that it is met. The failure to make a timely filing of a tax return is not excused by the taxpayer’s reliance on an agent, and such reliance is not “reasonable cause” for a late filing under § 6651(a)(1). The judgment of the Court of Appeals is reversed.
It is so ordered.
The Internal Revenue Service has articulated eight reasons for a late filing that it considers to constitute “reasonable cause.” These reasons include unavoidable postal delays, the taxpayer’s timely filing of a return with the wrong IRS office, the taxpayer’s reliance on the erroneous advice of an IRS officer or employee, the death or serious illness of the taxpayer or a member of his immediate family, the taxpayer’s unavoidable absence, destruction by casualty of the taxpayer’s records or place of business, failure of the IRS to furnish the taxpayer with the necessary forms in a timely fashion, and the inability of an IRS representative to meet with the taxpayer when the taxpayer makes a timely visit to an IRS office in an attempt to secure information or.aid in the preparation of a return. Internal Revenue Manual (CCH) § 4350, (24) ¶ 22.2(2) (Mar. 20, 1980) (Audit Technique Manual for Estate Tax Examiners). If the cause asserted by the taxpayer does not implicate any of these eight reasons, the district director determines whether the asserted cause is reasonable. “A cause for delinquency which appears to a person of ordinary prudence and intelligence as a reasonable cause for delay in filing a return and which clearly negatives willful neglect will be accepted as reasonable.” Id., ¶ 22.2(3).
Section 6081(a) of the Internal Revenue Code authorizes the IRS to grant “a reasonable extension of time,” generally no longer than six months, for filing any return.
Congress added the relevant language to the tax statutes in 1916. For many years before that, § 3176 mandated a 50 percent penalty “in ease of a refusal or neglect, except in cases of sickness or absence, to make a list or return, or to verify the same . . . .” Rev. Stat. §3176 (emphasis added). The Revenue Act of 1916 amended this provision to require the 50 percent penalty for failure to file a return within the prescribed time, “except that, when a return is voluntarily and without notice from the collector filed after such time and it is shown that the failure to file it was due to a reasonable cause and not due to willful neglect, no such addition shall be made to the tax.” Revenue Act of 1916, ch. 463, § 16,39 Stat. 756, 775 (emphasis added). No committee reports or congressional hearings or debates discuss the change in language. It would be logical to assume that Congress intended “willful neglect” to replace “refusal” — both expressions implying intentional failure — and “[absence of] reasonable cause” to replace “neglect” — both expressions implying carelessness.
Respondent contends that the statute must be construed to apply a standard of willfulness only, and that the Treasury Regulation is incompatible with this construction of the statute. He argues that the Regulation converts the statute into a test of “ordinary business care,” because a taxpayer who demonstrates ordinary business care can never be guilty of “willful neglect.” By construing “reasonable cause” as the equivalent of “ordinary business care,” respondent urges, the IRS has removed from consideration any question of willfulness.
We cannot accept this reasoning. Congress obviously intended to make absence of fault a prerequisite to avoidance of the late-filing penalty. See n. 3, supra. A taxpayer seeking a refund must therefore prove that his failure to file on time was the result neither of carelessness, reckless indifference, nor intentional failure. Thus, the Service’s correlation of “reasonable cause” with “ordinary business care and prudence” is consistent with Congress’ intent, and over 40 years of case law as well. That interpretation merits deference. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844, and n. 14 (1984).
Although at one point the Court of Appeals for the Sixth Circuit held that reliance on counsel could constitute reasonable cause, see In re Fisk’s Estate, 203 F. 2d 358, 360 (1953), the Sixth Circuit appears now to be following those courts that have held that the taxpayer has a nondelegable duty to ascertain the deadline for a return and ensure that the return is filed by that deadline. See Estate of Geraci v. Commissioner, 32 TCM 424, 425 (1973), aff’d, 502 F. 2d 1148 (CA6 1974), cert. denied, 420 U. S. 992 (1975); Estate of Duttenhofer v. Commissioner, 49 T. C. 200, 205 (1967), aff’d, 410 F. 2d 302 (CA6 1969) (per curiam).
The administrative regulations and practices exempt late filings from the penalty when the tardiness results from postal delays, illness, and other factors largely beyond the taxpayer’s control. See supra, at 243, and n. 1. The principle underlying the IRS regulations and practices— that a taxpayer should not be penalized for circumstances beyond his control — already recognizes a range of exceptions which there is no reason for us to pass on today. This principle might well cover a filing default by a taxpayer who relied on an attorney or accountant because the taxpayer was, for some reason, incapable by objective standards of meeting the criteria of “ordinary business care and prudence.” In that situation, however, the disability alone could well be an acceptable excuse for a late filing.
But this case does not involve the effect of a taxpayer’s disability; it involves the effect of a taxpayer’s reliance on an agent employed by the taxpayer, and our holding necessarily is limited to that issue rather than the wide range of issues that might arise in future cases under the statute and regulations. Those potential future cases are purely hypothetical at the moment and simply have no bearing on the issue now before us. The concurring opinion seems to agree in part. After four pages of discussion, it concludes:
“Because the respondent here was fully capable of meeting the required standard of ordinary business care and prudence, we need not decide the issue of whether and under what circumstances a taxpayer who presents evidence that he was unable to adhere to the required standard might be entitled to relief from the penalty.” Post, at 255.
This conclusion is unquestionably correct. See also, e. g., Reed v. Ross, 468 U. S. 1, 8, n. 5 (1984); Heckler v. Day, 467 U. S. 104, 119, nn. 33 and 34 (1984); Kosak v. United States, 465 U. S. 848, 853, n. 8 (1984); Bell v. New Jersey, 461 U. S. 773, 779, n. 4 (1983).
Many systems that do not collect taxes on a self-assessment basis have experienced difficulties in administering tax collection. See J. Wagner, France’s Soak-the-Rieh Tax, Congressional Quarterly (Editorial Research Reports), Oct. 12, 1982; Dodging Taxes in the Old World, Time, Mar. 28, 1983, p. 32.
A number of courts have indicated that “reasonable cause” is a question of fact, to be determined only from the particular situation presented in each particular case. See, e. g., Estate of Mayer v. Commissioner, 351 F. 2d 617 (CA2 1965) (per curiam), cert. denied, 383 U. S. 935 (1966); Coates v. Commissioner, 234 F. 2d 459, 462 (CA8 1956). This view is not entirely correct. Whether the elements that constitute “reasonable cause” are present in a given situation is a question of fact, but what elements must be present to constitute “reasonable cause” is a question of law. See, e. g., Haywood Lumber & Mining Co. v. Commissioner, 178 F. 2d 769, 772 (CA2 1950); Daley v. United States, 480 F. Supp. 808, 811 (ND 1979). When faced with a recurring situation, such as that presented by the instant case, the courts of appeals should not be reluctant to formulate a clear rule of law to deal with that situation.
Courts have differed over whether a taxpayer demonstrates “reasonable cause” when, in reliance on the advice of his accountant or attorney, the taxpayer files a return after the actual due date but within the time the adviser erroneously told him was available. Compare Sanderling, Inc. v. Commissioner, 571 F. 2d 174, 178-179 (CA3 1978) (finding “reasonable cause” in such a situation); Estate of Rapelje v. Commissioner, 73 T. C. 82, 90, n. 9 (1979) (same); Estate of DiPalma v. Commissioner, 71 T. C. 324, 327 (1978) (same), acq., 1979-1 Cum. Bull. 1; Estate of Bradley v. Commissioner, 33 TCM 70, 72-73 (1974) (same), aff’d, 511 F. 2d 527 (CA6 1975), with Estate of Kerber v. United States, 717 F. 2d 454, 454-455, and n. 1 (CA8 1983) (per curiam) (no “reasonable cause”), cert. pending, No. 83-1038; Smith v. United States, 702 F. 2d 741, 742 (CA8 1983) (same); Sarto v. United States, 563 F. Supp. 476, 478 (ND Cal. 1983) (same). We need not and do not address ourselves to this issue.
Question: What is the court whose decision the Supreme Court reviewed?
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200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_r_bus
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Adam Frederick CHAPMAN, Plaintiff-Appellant, v. POWERMATIC, INC., Defendant-Appellee.
No. 91-7164.
United States Court of Appeals, Fifth Circuit.
Aug. 26, 1992.
Rehearing and Rehearing En Banc Denied Sept. 21, 1992.
Charles W. McGarry, Kim R. Thorne, Grand Prairie, Tex., for plaintiff-appellant.
Mark A. Shank, William L. Davis, Clark West Keller Butler & Ellis, Dallas, Tex., for defendant-appellee.
Before GOLDBERG, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Adam Frederick Chapman (Chapman), a student at Duncanville High School in Dun-canville, Texas, was injured when his right hand came into contact with a wood planer in the wood-working shop of the high school. Shortly thereafter, on March 27, 1990, Chapman’s attorney sent a letter to Powermatic, Inc., (Powermatic), the manufacturer of the wood planer, advising Pow-ermatic that it was a potential defendant and that Chapman had incurred medical expenses in the amount of $67,196.48. Additionally, in April 1990, Chapman provided the investigative service hired by Power-matic with copies of Chapman’s medical bills.
On June 28, 1990, Chapman sued Power-matic in state court alleging numerous causes of action. The petition was served on Powermatic on July 10, and Powermatic filed its answer on July 26. The petition revealed that there was complete diversity of citizenship between the two parties, but it did not plead for a specific amount of damages. On August 17, 1990, Chapman answered the first set of interrogatories that Powermatic had served on him in which Chapman stated that he had suffered damages in excess of $800,000. On August 27, Powermatic filed a notice of removal in the United States District Court for the Northern District of Texas (the “USDC). In response, Chapman moved to have the case remanded to state court contending that Powermatic did not timely remove the case. The USDC denied Chapman’s motion to remand holding that the “[djefendant removed this case within 30 days from the time it received answers to interrogatories stating that the amount in controversy was over $50,000. This case was timely removed pursuant to 28 U.S.C. § 1446(b).” The case proceeded to trial before a jury; and at the conclusion of the trial, the jury found that Powermatic did not cause Chapman’s injuries. The USDC entered a take nothing judgment on the jury’s verdict. Chapman appeals the USDC’s denial of his motion to remand.
DISCUSSION
Both parties agree that the requirements for diversity jurisdiction exist in this case: the “matter in controversy exceeds the sum or value of $50,000,” and the parties are “citizens of different states.” 28 U.S.C. § 1332(a). What the parties do not agree on, however, and what Chapman’s appeal concerns, is whether Powermatic timely removed the case to federal court pursuant to 28 U.S.C. § 1446(b). Section 1446(b) provides in pertinent part that:
[the] notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based_
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable....
In essence, when read as a whole, § 1446(b) provides a two-step test for determining whether a defendant timely removed a case. The first paragraph provides that if the case stated by the initial pleading is removable, then notice of removal must be filed within thirty days from the receipt of the initial pleading by the defendant; and the second paragraph provides, if the case stated by the initial pleading is not removable, then notice of removal must be filed within thirty days from the receipt of an amended pleading, motion, order, or other paper from which the defendant can ascertain that the case is removable.
A. Initial Pleading
Relying on the first paragraph of § 1446(b), Chapman contends that the district court erred in not remanding the case to state court because Powermatic did not remove the case within thirty days from its receipt of the initial pleading. To support his contention that the district court erred Chapman argues that all pleadings fall into one of three categories: (1) removable, (2) nonremovable, and (3) indeterminate as to removability. The initial pleading in this case was indeterminate as to removability, Chapman contends, because it revealed that there was complete diversity of citizenship between the parties, but it pled for an indeterminate amount of damages. When a pleading is indeterminate as to removability, Chapman contends, a defendant is under a duty to exercise due diligence in determining whether the case is in fact removable. Applying that duty of due diligence to the facts of the present case, Chapman contends that Powermatic was required under the first paragraph of § 1446(b) to remove the case within 30 days from its receipt of the initial, pleading, because the initial pleading revealed that there was complete diversity of citizenship between the parties, and Powermatic knew or in the exercise of due diligence should have known that the amount in controversy exceeded $50,000.
We have found no circuit court opinions that address whether a defendant is under a duty to exercise due diligence in determining the amount in controversy when the initial pleading does not reveal such an amount, and the district court opinions addressing this question are in disagreement. In large part, Chapman bases his contention that Powermatic did not timely remove the case on the district court opinion of Mielke v. Allstate Insurance Company, 472 F.Supp. 851 (E.D.Mich.1979). In Mielke, the initial pleading of the plaintiff did not contain a specific demand for damages, however, before the defendant had received the initial pleading, the plaintiff had sent the defendant copies of medical bills and expenses that revealed that he was seeking damages in excess of the minimum jurisdictional amount of the federal court. Additionally, the defendant admitted that it had actual knowledge that the plaintiff was seeking damages in excess of the jurisdictional minimum. Forty-five days after receiving the initial pleading, but only thirty days after receiving an amended pleading revealing that the amount in controversy was in excess of five million dollars, the defendant removed the case. After removal, the district court remanded the case to state court holding that removal of the case was untimely because the defendant should have ascertained from the circumstance and the initial pleading that the defendant was seeking damages in excess of the minimum jurisdictional amount. The court stated that “there is no reason to allow a defendant additional time if the presence of grounds for removal are unambiguous in light of the defendant’s knowledge and the claims made in the initial complaint.” Id. at 853.
We disagree with the opinion of the district court in Mielke, and conclude that for the purposes of the first paragraph of § 1446(b), the thirty day time period in which a defendant must remove a case starts to run from defendant’s receipt of the initial pleading only when that pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court. We adopt this rule because we conclude that it promotes certainty and judicial efficiency by not requiring courts to inquire into what a particular defendant may or may not subjectively know. The rule announced in Mielke, which Chapman proposes that we adopt, in contrast, would needlessly inject uncertainty into a court’s inquiry as to whether a defendant has timely removed a case, and as a result would require courts to expend needlessly their resources trying to determine what the defendant knew at the time it received the initial pleading and what the defendant would have known had it exercised due diligence. Moreover, the rule in Mielke would encourage defendants to remove prematurely cases in which the initial pleading does not affirmatively reveal that the amount in controversy is in excess of $50,000 so as to be sure that they do not accidentally waive their right to have the case tried in a federal court. We believe the better policy is to focus the parties’ and the court’s attention on what the initial pleading sets forth, by adopting a bright line rule requiring the plaintiff, if he wishes the thirty-day time period to run from the defendant’s receipt of the initial pleading, to place in the initial pleading a specific allegation that damages are in excess of the federal jurisdictional amount.
B. Other Paper
Chapman’s second contention is that even if the initial pleading did not state a case that was removable pursuant to the first paragraph of § 1446(b), Power-matic’s removal was still untimely pursuant to the second paragraph of § 1446(b). The medical bills and demand letter delivered by Chapman to Powermatic before it was sued revealing that Chapman was seeking damages in excess of $50,000, Chapman contends, were “other paper” within the meaning of the second paragraph of § 1446(b). Therefore, Chapman contends, Powermatic’s receipt of that “other paper” (medical bills and demand letter) before it was sued, revealing that the amount in controversy exceeded $50,-000, coupled with Powermatic’s receipt of the initial pleading revealing complete diversity of citizenship between the parties, triggered the thirty-day time limit of the second paragraph of § 1446(b). In other words, Chapman contends that “other paper” for purposes of the second paragraph of § 1446(b) may come prior to the defendant’s receipt of the initial pleading. And if this occurs, Chapman contends, that the thirty-day time period begins to run from the time that the defendant received the initial pleading.
Chapman bases his contention on the opinion of the district court in Central Iowa Agri-Systems v. Old Heritage Advertisers and Publishers, Inc., 727 F.Supp. 1304 (S.D. Iowa 1989). In Central Iowa, the plaintiffs initial pleading did not allege a specific amount of damages, but the plaintiff had sent the defendant a demand letter before he sued in which the plaintiff stated that he conservatively estimated his damages to be in excess of $40,000. That pre-suit demand letter, the court held, was an “other paper” for purposes of the second paragraph of § 1446(b) from which the defendant could ascertain that the case was removable. Therefore, the court held that the defendant’s removal of the case was untimely because the defendant did not remove within thirty days from its receipt of the initial pleading.
We decline to follow the district court’s opinion in Central Iowa and consequently reject Chapman’s contention, because we conclude that both are in conflict with the plain language of the removal statute. The plain language of the second paragraph of § 1446(b) requires that if an “other paper” is to start the thirty-day time period, a defendant must receive the “other paper” after receiving the initial pleading. The second paragraph of § 1446(b) applies by its terms only “if the case stated by the initial pleading is not removable.... ” 28 U.S.C. § 1446(b). More important, the second paragraph of § 1446(b) requires that the defendant remove the case, if at all, within 30 days after receipt of an “other paper” from which the defendant may first ascertain that the case is removable. Logic dictates that a defendant can “first” ascertain whether a case is removable from an “other paper” only after receipt of both the initial pleading and that “other paper”; and therefore the thirty-day time period begins to run, not from the receipt of the initial pleading, but rather from the receipt of the “other paper” revealing that the case is removable. Chapman would have us adopt a rule which would be clearly inconsistent with the plain language of the second paragraph of § 1446(b), which states that “a notice of removal may be filed within thirty days after receipt by the defendant ... [of an] other paper from which it may first be ascertained that the case is one which is or has become removable.... ” By its plain terms the statute requires that if an “other paper” is to trigger the thirty-day time period of the second paragraph of § 1446(b), the defendant must receive the “other paper” only after it receives the initial pleading. Finally, we believe that our holding that the “other paper” must be received after the filing of the initial pleading is supported by the recitation in the second paragraph of § 1446(b) of the words “amended pleading, motion, order” before the words “or other paper,” which clearly refer to actions normally and logically occurring after the filing of the initial pleading. Clearly the answer to interrogatory which triggered the filing of the notice of removal in this case is such an “other paper.”
We find the plain language of the statute to be clear in this regard and as such we are bound to follow it. “[I]n any case requiring statutory construction, the High Court has instructed us to adhere to the plain language of the law unless ‘literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.’ ” In re Meyerland Co., 960 F.2d 512, 516 (5th Cir.1992), (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982)). We conclude that adhering to the plain language of the second paragraph of § 1446(b) by requiring that an “other paper,” in order to trigger the thirty-day time period, be received by a defendant only after that defendant has received the initial pleading does not “produce a result demonstrably at odds with the intentions of its drafters,” but, instead, produces a result that is entirely consistent with the intentions of its drafters. Id.
In summation, we hold that Powermatic timely removed this case because: (1) the initial pleading was not removable pursuant to the first paragraph of § 1446(b), since it did not reveal on its face that the amount in controversy was in excess of $50,000; and (2) the medical bills and demand letter received by Powermatic did not begin the running of the thirty-day time period of the second paragraph of § 1446(b), since Powermatic received the medical bills and demand letter before it received the initial pleading.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Before Chapman sued Powermatic the investigative service interviewed Chapman, took photographs of his injuries, obtained a copy of a report from his surgeon describing his injuries, and obtained copies of witnesses’ statements.
. Chapman sued Powermatic under the theories of negligence, strict liability, breach of warranty, and the Deceptive Trade Practices Act.
. Chapman’s initial petition stated that he had "suffered damages in excess of the minimum jurisdictional limits of the court.” A question exists whether there is a minimum jurisdictional limit in Texas district court, which is where the suit was initially filed, although one commentator has opined that the jurisdictional minimum is five hundred dollars. See W. Dorsa-neo, 1 Tex.Lit.Guide § 2.01 [3][b][ii] (1989); See also City of Mesquite v. Moore, 800 S.W.2d 617, 621 n. 1 (Tex.App. — Dallas 1990, no writ).
Texas Rule of Civil Procedure 47(b) states that “an original pleading ... shall contain (b) in all claims for unliquidated damages only the statement that the damages sought are within the jurisdictional limits of the court, ... ”; See also La.Code Civ.Proc.Ann.Art. 893(A)(1) ("No specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand. The prayer for relief shall be for such damages as are reasonable in the premises. If a specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial or for other purposes, a general allegation that the claim exceeds or is less than the requisite amount is sufficient.”) In our opinion, neither T.R.C.P. 47(b) nor La.Code Civ.Proc.Ann. art. 893(A)(1) prohibit a plaintiff from alleging in his initial pleading that the damages exceed the minimum jurisdictional amount of the federal court.
. Powermatic tacitly concedes that it knew that the amount in controversy exceeded the $50,000 minimum jurisdictional limit of the federal court when it received the initial pleading.
.See e.g. Mielke v. Allstate Insur. Comp., 472 F.Supp. 851 (E.D.Mich.1979); Turner v. Wilson Foods Corp., 711 F.Supp. 624, 626 (N.D.Ga.1989) (initial pleading was held to put the defendant on notice that the amount in controversy exceeded $10,000 when the initial pleading alleged severe burns, permanent scarring, pain and suffering, and lifelong medical expenses, but did not specify an amount of damages); Rickman v. Zimmer, Inc., 644 F.Supp. 540, 542 (S.D.Fla.1986) (initial pleading that alleged serious personal injuries was held to place the defendant on notice that the case was removable, even though the plaintiff merely alleged that his damages exceeded the state court’s minimum jurisdictional amount); Lee v. Altamil Corp., 457 F.Supp. 979, 981 (M.D.Fla.1978) (initial pleading merely alleging that the plaintiff’s damages exceeded the state jurisdictional minimum of $2,500 was held to adequately place the defendant on notice of the substantial damages involved); But see contra Rowe v. Marder, 750 F.Supp. 718, 721 (W.D.Pa.1990), aff'd 935 F.2d 1282 (3rd Cir.1991) (court held that “initial pleading” did not begin the running of the thirty day time period for removal when it did not allege a specific amount of damages, even though the defendant probably knew that the damages would exceed $50,000).
. Should a defendant choose to remove a case within thirty days from its receipt of an initial pleading that does not reveal on its face that the plaintiff is seeking damages in excess of the jurisdictional minimum, the federal court may either: (1) look to the petition for removal, (2) make an independent appraisal of the amount of the claim, or suggest that the defendant is free to do so, or (3) remand the action. Rollwitz v. Burlington Northern R.R., 507 F.Supp. 582, 585 (D.Mont.1981); Coleman v. Southern Norfolk, 734 F.Supp. 719 (E.D.La.1990); See also Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3725 at 423, 426-27.
. The minimum jurisdictional limit of the federal court applicable at this time was $10,000.
. We express no opinion as to whether the medical bills and demand letter would otherwise be adequate as "other paper" for purposes of the second paragraph of § 1446(b).
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:
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songer_r_subst
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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 respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Matter of CENTRAL METALLIC CASKET CO., Inc., Bankrupt. ATLAS PLYWOOD CORPORATION and Thirty-Nine (39) Other Creditors, Appellants, v. CENTRAL METALLIC CASKET CO., Inc., Bankrupt; International Rolling Mills, a Creditor; Elizabeth Forke, a Creditor; State of Wisconsin Industrial Commission, a Creditor, Appellees.
No. 12619.
United States Court of Appeals Seventh Circuit.
Jan. 12, 1960.
Jacob N. Gross, Chicago, Ill., Brussell & Gross, Chicago, Ill., for appellants.
W. H. Putnam, Madison, Wis., for Industrial Commission of Wis.
Walter F. Boye, Chicago, Ill., for E. Forke.
Thomas G. Godfrey, Godfrey, Godfrey & Neshek, Elkhorn, Wis., for Central Metallic Casket Co., Inc.
Irving A. Gordon, Chicago, Ill., John J. Ottusch, Wickham, Borgelt, Skogstad & Powell, Harry F. Franke, Milwaukee, Wis., for International Rolling Mills.
Before DUFFY and ENOCH, Circuit Judges, and MERCER, District Judge.
DUFFY, Circuit Judge.
This is an appeal from an order of the District Court confirming and sustaining an order of a Referee in Bankruptcy. United American Metal Corporation and Atlas Plywood Corporation and thirty-nine other creditors filed a petition with the Referee requesting that all funds, choses in action and other property in the possession and control of the Trustee herein be distributed pro rata to petitioners and the members of the class they represent, free and clear of all encumbrances, and subject only to the costs of administration and other costs herein.
The Referee entered Findings of Fact and Conclusions of Law and an order denying the petition. The District Court sustained the Findings of Fact and Con-elusions of Law, and approved the decision of the Referee.
Central Metallic Casket Company, an Illinois corporation, was organized about 1919. It conducted a business of manufacturing metallic caskets in Chicago, Illinois, from the date of its organization until May 20, 1955. In 1954, the corporation sold its factory building in Chicago and agreed to deliver and thereafter, did deliver possession thereof to the purchaser on May 20, 1955. A transfer of the assets of the corporation was discussed by the officers, directors and stockholders of the Illinois corporation at several meetings prior to May 20,1955.
A lease was taken in the name of the Wisconsin corporation on a factory building in Williams Bay, Wisconsin, on a date prior to May 20, 1955. The machinery, equipment and other assets of the Illinois corporation were moved to the factory building in Wisconsin during a period commencing May 20, 1955. The last of the property had been removed from Illinois by June 1, 1955.
On July 5, 1955, the Central Metallic Casket Co., Inc., was organized as a Wisconsin corporation. The officers and stockholders were the same as those of the Illinois corporation. The organizational meeting of the Wisconsin corporation was held July 8, 1955. The minutes reveal that the Wisconsin corporation assumed all the debts and obligations of the Illinois corporation.
The Wisconsin corporation began manufacturing operations and incurred additional obligations. On April 3, 1956, the Wisconsin corporation was adjudicated a bankrupt following the filing by certain creditors of the Illinois corporation of an involuntary petition in bankruptcy. The assets were sold pursuant to an order of the Referee for approximately $40,-000.00. There are thirty unsecured creditors of the Wisconsin corporation with claims approximating $8,000.00. There are about one hundred thirty unsecured creditors of the Illinois corporation whose claims total $50,600.00. In addition, there are priority tax creditors such as the United States of America and the Industrial Commission of Wisconsin, whose claims as filed exceed $46,000.00.
The petitioners were general creditors of the Illinois corporation at the time of the transfer of the assets. They appeared at the first meeting of creditors of the Bankrupt herein, and joined with others in nominating and selecting the Trustee in Bankruptcy. They filed claims as general, unsecured creditors of the Bankrupt.
Petitioners claim that as the transfer of assets was made without compliance with the Illinois Bulk Sales Act (Ul.Rev. Stat. Ch. 1211/2, § 78 et seq.), such transfer was void. It is admitted that written notice of the transfer of the fixtures, machinery and equipment from the Illinois corporation to the corporation now bankrupt was not given to the then existing creditors.
At the outset, we are confronted with a motion by appellees to dismiss the appeal. By order, this motion was taken with the case on the hearing on the merits. In support of the motion it is urged that an unsecured creditor has no standing to appeal from an adverse decision of the trial court without first having obtained permission to do so. Petitioners argue that whether or not there was a violation of the Illinois Bulk Sales Act, there was no justiciable harm or legal damage to the appellants. It is argued that appellants were not deprived of any security or lien rights which they had or to which they were entitled prior to the transfer. Movants say that appellants were unsecured general creditors prior to the transfer and that they were in the same position at the time they attempted to take this appeal.
The Trustee in Bankruptcy never joined with appellants in their petition for review and the subsequent appeal to this Court. Appellants did not secure or attempt to secure the permission of the District Court to prosecute this appeal in the name of the Trustee.
It is well established that actions upon behalf of a bankrupt estate must be prosecuted by the Trustee or in his name by leave of court. In re Chakos, 7 Cir., 24 F.2d 482, 486. However, in the case at bar, the interest of the petitioners is adverse to the bankrupt estate. They claim title to the funds realized from the sale of the assets of the bankrupt.
Both sides rely on In re Tyne, 7 Cir., 261 F.2d 249. In that case we stated that an individual general creditor ordinarily does not possess standing to appeal unless granted authority to do so in the name of the trustee, citing, inter alia, In re Huntingdon and Broad Top Mountain Railroad and Coal Company, 3 Cir., 213 F.2d 411, 414, and In re Cook’s Motors, Inc., 1 Cir., 142 F.2d 369. But we pointed out that the principle of trustee representation is not always strictly applied and, in the Tyne case, we permitted an unsecured creditor to appeal from an adverse order of the District Court. We stated that 11 U.S.C.A. § 47, sub. b conferred jurisdiction to entertain a direct appeal; that no objection was raised to appellant’s petition to review the order of the referee and that allowance of the appeal would prevent further delay in litigation.
Under the circumstances of this case, we hold the appeal herein should not be dismissed because permission had not been granted to prosecute the appeal in the name of the Trustee.
The other point urged for dismissal of the appeal is that appellants have not suffered any justiciable harm or damage, — that there has been no invasion of their legal rights. Appellees argue that appellants were general unsecured creditors before the transfer and retained the same status afterwards. We think such a statement is an oversimplification. A determination of the status of the appellants in the instant case necessitates a consideration by us of the issues on the merits. We, therefore, deny the motion to dismiss the appeal.
The petition of appellants is unusual. It amounts to a petition for reclamation of all the assets of the bankrupt, free and clear of all liens, and subject only to the costs of administration in the bankruptcy proceeding. Appellants asked that the fund be distributed pro rata to them and to the members of the class of creditors of the Illinois corporation which they represent.
Appellants argue that in the case at bar, an Illinois corporation transferred all of its assets located in Illinois, otherwise than in the ordinary course of trade or in the usual prosecution of vendor’s business, without giving its creditors a sworn written statement as required by the Illinois Bulk Sales Act. Ill.Rev.Stat. Ch. 121%, § 78 et seq. Appellants claim that under Illinois law, such a transfer is void, and the succeeding Wisconsin corporation never obtained legal title to these assets.
The District Court held that a transaction in violation of the Illinois Bulk Sales Act is voidable rather than void, and that the appellants’ equity of avoidance has been cut off by the rights of the trustee in bankruptcy who has the standing of an attaching lienholder. In its decision, the District Court said: “Very strong argument could be made that the transfer occurred in Wisconsin and therefore its consequences are to be governed by Wisconsin law.” [170 F.Supp. 327]
Relying principally upon the existence of a lease to a factory building in Williams Bay, Wisconsin, wherein the Wisconsin corporation was named lessee, and which was apparently executed prior to the removal of the assets from Illinois, appellants urge the transfer occurred on the shipment of the assets from Illinois to Wisconsin prior to June 1, 1955. Although the Wisconsin corporation was not then organized, appellants urge the transferee was the Wisconsin corporation having a de facto existence, or the officers of the Wisconsin corporation as .promoters thereof.
We think the minutes of the meeting of the stockholders of the Illinois corporation held in Chicago on June 30, 1955 are of controlling significance. This date was at least one month after the completion of the removal of the property to Wisconsin. After ratifying the action of the Board of Directors in removing all the physical assets of the Illinois corporation to Williams Bay, Wisconsin, a resolution was adopted to organize a Wisconsin corporation under the name “Central Metallic Casket Co., Inc.,” with a capital stock of $25,000.00, and to transfer to said corporation all of its assets upon the Wisconsin corporation assuming all liabilities of the Illinois corporation. As stated heretofore, the filing of the Articles of the Wisconsin corporation was completed on July 5,1955, when they were recorded in Elkhorn, the County Seat of Walworth County, Wisconsin. The organizational meeting of the new corporation was held July 8, 1955.
We think it is clear there was no Wisconsin corporation de jure or de facto which could have been the transferee of the assets of the Illinois corporation on June 1, 1955. The earliest date shown for the authorization to form the new corporation and to transfer the assets thereto, was June 30, 1955. The consideration for the transfer of assets to the new corporation was the assumption of the debts of the Illinois corporation.
We hold the assets of the Illinois corporation were located in Wisconsin at the time the transfer thereof was made to the Wisconsin corporation. The Findings of Fact and Conclusions of Law by the Referee that the transfer was made and completed in Illinois are clearly erroneous. In our opinion, the assets were not transferred to the Bankrupt in violation of the Illinois Bulk Sales Act.
We also think the District Court was on solid ground in holding there was an additional basis for its decision. The District Court held that, assuming arguendo, the provisions of the Illinois Bulk Sales Act were violated by the transfer of the assets to Bankrupt, appellants, nevertheless, are not entitled to obtain all of the assets of the Bankrupt except for the cost of administration. No claim is made that the moving of the assets from Illinois to Wisconsin was secret. After such removal, the Illinois creditors took no action to reduce their claims to a lien. The Illinois Act gives the creditor neither title to nor a lien upon the goods fraudulently transferred. Goldstein v. Greenstone, 223 Ill.App. 511. The District Court described the rights of the Illinois creditors as an equity of avoidance which is merely an inchoate right until asserted and ripened by appropriate judicial proceedings.
The Illinois creditors did not assert any right except as unsecured creditors of Bankrupt. They filed their claims as such in the bankruptcy proceedings; attended the first meeting of creditors and voted for the selection of a Trustee. We think the District Court was correct in holding, under these circumstances, that petitioners (appellants) may not now be heard to insist that they be placed in a select class entitled to all of the assets of the Bankrupt.
Judgment affirmed.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Edward TERRY, Defendant-Appellant.
No. 89-10121.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 16, 1989.
Decided Aug. 14, 1990.
As Amended Nov. 9, 1990.
Alan P. Caplan, San Francisco, Cal., for defendant-appellant.
Robert M. Twiss, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Before SCHROEDER, NELSON and WIGGINS, Circuit Judges.
NELSON, Circuit Judge:
Defendant/Appellant Edward Terry was convicted for being a felon in possession of a firearm. He had been indicted on two drug related counts as well as the firearm count. There was a mistrial on the drug counts.
Terry appeals his conviction on four grounds. He argues that 1) the search of his residence where the gun was discovered was invalid; 2) the drug and firearm counts were misjoined; 3) there was not sufficient evidence to support his conviction; and 4) the trial judge erred by issuing a new instruction which redefined “constructive possession” without first affording counsel an opportunity to evaluate that instruction, formulate objections to it or to suggest a different response.
We find that there was sufficient evidence to convict and that the affidavit underlying the search warrant provided probable cause for the search. However, it was error for the district court to join all three counts and to instruct the jury in the midst of deliberations on a different and incorrect definition of constructive possession. Therefore, we reverse the conviction and remand for retrial.
FACTUAL AND PROCEDURAL BACKGROUND
On June 9, 1989, Terry intended to meet his wife and daughter at her parents’ home in Pittsburg, California. That morning, however, his son David was arrested for possession of methamphetamine. After posting bond for his son, Terry took David to Terry’s home. Shortly thereafter, two or three friends of David’s arrived, stood in the driveway near Terry’s pickup truck whose bed was covered, and spoke with David. Terry and a friend went into the house. After 15-20 minutes Terry came out and drove to Pittsburg.
Approximately 40 miles away from his residence, Terry was stopped by CHP Officer Paul Vacarezza. As he was driving behind Terry’s truck, Vacarezza smelled a strong “chemical type” odor, which he suspected was methamphetamine. After following Terry’s vehicle for awhile Vacarez-za noticed a brownish liquid leaking from the bed of the vehicle. Vacarezza pulled the truck over.
Vacarezza and another officer first searched the cargo area of the truck under the cover. They found a gallon-size plastic milk container in a brown paper bag. Under the driver’s side of the seat the police found plastic baggies containing a white powdery substance and $10,000 in U.S. currency bundled in mixed bills. The white powdery substance tested positive for methamphetamine. The brown liquid tested positive as Phenyl-2-Propanone (P-2P), a precursor chemical for the manufacture of methamphetamine, which is itself a controlled substance under federal law. Terry was arrested and booked.
Eight days after Terry’s arrest, Agent Wertman applied for a warrant to search Terry’s home. Wertman’s accompanying affidavit stated that in his experience methamphetamine traffickers usually keep currency and money derived from drug sales along with paraphernalia and records related to the sale of methamphetamine on their persons, in their residences or in attached structures. On the basis of this affidavit, a search warrant was issued.
Five days later, Agent Wertman and others searched Terry’s home looking for methamphetamine and dangerous drugs, paraphernalia, records, articles of personal property showing the identity of persons in control of the premises, and currency. During the search the agents found nothing listed in the search warrant. However, Officer Stephen Harris found a shotgun on a shelf just inside the closet in the master bedroom.
Terry was subsequently indicted for possession of methamphetamine, distribution and possession of P-2-P with intent to manufacture methamphetamine, and being a felon in possession of a firearm. Because Terry had sustained three previous felony convictions between 1959 and 1973 the government included notice that it would seek sentence enhancement under the Armed Career Criminal Act. Before trial, Terry filed a Motion for Severance of Counts seeking to have the drug offenses tried separately from the firearm offense. The motion was denied.
At trial Agent Wertman and Officer Harris testified as to the actual seizure of the shotgun from the Terrys’ bedroom closet noting that the gun was found on a shelf containing only the shotgun and men’s boots. Wertman testified that the other side of the closet held only women’s clothing. In addition to this testimony, the jury was read a stipulation that defendant had been convicted of a crime for which the maximum punishment included imprisonment in excess of one year and that the seized shotgun had been manufactured outside of the State of California.
One of Terry’s witnesses, Mulcahy, testified that defendant had informed Mulcahy that he was not allowed to possess firearms because he was a felon. Paula Terry, appellant’s wife, testified that the gun was given to her by her cousin for the purposes of protecting her family and that she knew her husband was not allowed to have guns. Paula also testified that she kept the shotgun on the shelf in the only closet which they shared. It was located on this shelf in order to minimize their daughter’s awareness of its presence and her ability to reach it. Paula Terry’s cousin testified that he had given Paula the same shotgun that the government had seized.
At the end of the trial the district court agreed to use the jury instruction that both Terry and the government proposed. When the jury later expressed confusion over the language of the instruction, the judge submitted a new instruction to the jury using language substantially different from that of the first instruction. Defense counsel objected to the second set of jury instructions on constructive possession because its terms had not been defined to the jury and counsel had not been allowed to argue to the jury about how to evaluate the evidence in light of this instruction.
The jury delivered a verdict of “guilty” as to Count Three, the firearms charge, and were 8-4 in favor of acquittal on the drug charges. The Court declared a mistrial as to those counts.
Terry filed a motion opposing the imposition of an enhanced sentence pursuant to 18 U.S.C. § 924(e), which was denied. Terry was sentenced to the mandatory minimum term of imprisonment of 15 years without parole, a fine of $1000 and a 5-year term of supervised release. On March 9,1989 Terry timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
I. Probable Cause to Issue Search Warrant
A. Standard of Review
A magistrate’s determination of probable cause to issue a search warrant is accorded great deference and is reversed only if that determination is clearly erroneous. United States v. Espinosa, 827 F.2d 604, 610 (9th Cir.1987), cert. denied 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988). “[T]he traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... concluding]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1982) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)); United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987). “In borderline cases, preference will be accorded to warrants and to the decision of the magistrate issuing it.” United States v. Martinez, 588 F.2d 1227, 1234 (9th Cir.1987).
B. Legality of the Warrant
The warrant in this case was based on the Wertman affidavit. The affidavit contained two bases for probable cause: 1) the results of the search of Terry’s truck; and 2) Agent Wertman’s past experience that methamphetamine drug traffickers keep drugs, paraphernalia, records and money in their homes or adjoining structures.
A magistrate is permitted to draw reasonable inferences about where evidence is likely to be kept based on the nature of the evidence and the type of offense. United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); United States v. Hendricks, 743 F.2d 653, 655 (9th Cir.1984), cert. denied 470 U.S. 1006, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985). He “need not determine that the evidence sought is in fact on the premises to be searched ... or that the evidence is more likely than not to be found where the search takes place.... The magistrate need only conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit.” United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (citations omitted), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985). Moreover, “a magistrate may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found.” Fannin, 817 F.2d at 1382.
The Ninth Circuit has recognized that “[i]n the case of drug dealers, evidence is likely to be found where the dealers live.” Angulo-Lopez, 791 F.2d at 1399. Under the law of this circuit, then, Agent Wert-man’s first hand knowledge of Terry’s possession of methamphetamine and his experience with other drug dealers provided the magistrate with “a reasonable ground to believe” that contraband might be found in Terry’s residence. United States v. Damitz, 495 F.2d 50, 55 (9th Cir.1974). We find, therefore, that the magistrate had a substantial basis for finding probable cause and issuing the warrant to search Terry’s home.
II. Joinder of the Drug Charges with the Firearm Charge
A. Standard of Review
Misjoinder of charges is a question of law reviewed de novo. United States v. Whitworth, 856 F.2d 1268, 1277 (9th Cir. 1988), cert. denied, — U.S.-, 109 S.Ct. 1541, 103 L.Ed.2d 846 (1989); United States v. Sanchez-Lopez, 879 F.2d 541, 550 (9th Cir.1989).
B. Misjoinder under Rule 8(a)
Before trial, Terry filed a Motion for Relief from Improper Joinder of Counts alleging that the drug charges (counts one and two) had been misjoined with the firearm charge (count three) in violation of Rule 8(a). It was denied. On appeal the government argues that the charges were not misjoined and that Terry waived appellate review by failing to renew the motion to sever at the close of the evidence.
Two offenses may be joined in the indictment under Rule 8(a) “only ‘if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ ” United States v. Smith, 795 F.2d 841, 850 (9th Cir.1986) (quoting Fed.R.Crim.P. 8(a)), cert. denied, 481 U.S. 1032, 107 S.Ct. 1964, 95 L.Ed.2d 535 (1987). The term “transaction” is to be interpreted flexibly and “may comprehend a series of related occurrences.” United States v. Kinslow, 860 F.2d 963, 966 (9th Cir.1988), cert. denied, — U.S. -, 110 S.Ct. 96, 107 L.Ed.2d 60 (1989).
Because Rule 8 is concerned with the propriety of joining offenses in the indictment, the validity of the joinder is determined solely by the allegations in the indictment. See Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Lane, 474 U.S. 438, 447, 106 S.Ct. 725, 731, 88 L.Ed.2d 814 (1986); United States v. Kaufman, 858 F.2d 994, 1003 (5th Cir.1988). The indictment in the case at bar clearly fails to allege any commonality between the first two counts and count III. Count I and II describe an event occurring on June 9,1988 in San Joaquin County. Count III describes an event occurring on June 22, 1988 in another city and county. The drug crimes referred to in Counts I and II are wholly different from the possession of a firearm charge in Count III. No effort is made in the indictment even to suggest that the offenses are of the same or similar character or that they are part of the same transaction or parts of a common scheme.
In addition, the evidence necessary to prove Count III did not overlap with the evidence required to prove Counts I and II. Compare Schaffer, 362 U.S. at 514-15, 80 S.Ct. at 947-48 (finding that when the indictment invites joint proof, the prima facie validity of joinder is shown); United States v. Portac Inc., 869 F.2d 1288, 1294 (9th Cir.1989) (“Joinder is proper when the same facts must be adduced to prove each of the joined offenses.”); United States v. Montes-Cardenas, 746 F.2d 771, 776 (11th Cir.1984) (“Two crimes are connected together if the proof of one crime constitutes a substantial portion of the proof of another.”). When, as in this case, joined offenses are not connected and are not provable by the same evidence, joinder is improper. United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978).
A violation of Rule 8 “requires reversal only if the misjoinder results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 732, 88 L.Ed.2d 814 (1986). Terry argues that he was prejudiced because his association with drugs would necessarily be highly inflammatory in the minds of jurors. We agree. A juror would inevitably be more disturbed about the idea of a “drug dealer” with a gun than a citizen who previously had committed some unknown crime. It is highly probable that this inculpatory characterization of Terry as a drug dealer influenced the jury in determining its verdict.
Finally, the government argues that the issue of impermissible joinder has been waived because the defendant’s “Motion for Relief from Improper Joinder of Counts for Trial Under Federal Rule of Criminal Procedure 8(a)” was not renewed at the end of the trial. While it is clear that a Rule 14 motion to sever must be renewed at the close of the evidence or it is waived, United States v. Burgess, 791 F.2d 676, 678 (9th Cir.1986), there is no such requirement for a Rule 8 motion.
The rationale behind the renewal requirement in the Rule 14 context is inapplicable to Rule 8. A Rule 14 motion must be renewed in order to allow the trial court to assess whether the joinder was prejudicial and to prevent a defendant from deliberately failing to make a meritorious motion and waiting to see what verdict the jury returns. United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988).
A Rule 8 motion, in contrast to Rule 14, disputes the propriety of joining charges in the indictment. Rather than being decided at the discretion of the lower court judge it permits joinder only under certain specific circumstances. With Rule 8, unlike Rule 14, it is not necessary for the “trial court to assess whether a joinder is prejudicial at a time when the evidence is fully developed, the parties are best prepared and the witnesses’ recollections freshest” because the issue is whether the indictment was improperly joined. Free, 841 F.2d at 324. Because the propriety of a Rule 8 joinder is determined solely by the initial allegations of the indictment, there is no need to assess what actually happened in the trial. In addition, there is a requirement that in order to preserve the issue for appeal a Rule 8 motion must be made before jury deliberations. See Smith, 795 F.2d at 850. Thus, there is no opportunity for a defendant to “deliberately fail to make a meritorious motion.” Free, 841 F.2d at 324. For the foregoing reasons, it is unnecessary to renew a Rule 8 misjoinder objection to preserve it for appeal.
III. Sufficiency of the Evidence
A. Standard of Review
“In reviewing the sufficiency of the evidence, we determine whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. The test is whether the evidence and all reasonable inferences which may be drawn from it, when viewed in the light most favorable to the government, sustain the verdict.” United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 70 (1987).
B. Proof Required for Constructive Possession
To prove constructive possession, the government must prove “a sufficient connection between the defendant and the contraband to support the inference that the defendant exercised dominion and control over the substance.” United States v. Disla, 805 F.2d 1340, 1350 (9th Cir.1986). It is not the same as merely knowing the weapon is nearby. “The circumstances of each case must be examined to determine if there is ‘such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant’s dominion and control as if it were actual possession.’ ” United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970) (quoting United States v. Casalinuovo, 350 F.2d 207, 209-11 (2nd Cir.1965)).
There are various ways to prove that a defendant has dominion and control. For example, “[i]f the defendant has exclusive control over the premises where contraband is found, then knowledge and control may be inferred.” United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir.1985). In the more difficult situation where the premises are shared by more than one person, the Ninth Circuit has found that if a party has knowledge of the weapon and both the power and the intention to exercise dominion and control over it, then he has constructive possession. Cousins, 427 F.2d at 384; see also United States v. Rhodes, 713 F.2d 463, 470 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 535, 78 L.Ed.2d 715 (1983); United States v. Espinosa, 827 F.2d 604, 614 n. 6 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988).
Although the issue is close, we find that under the highly deferential standard of review there was sufficient evidence to sustain the verdict. The evidence against Terry centered on the fact that the firearm was found in the closet of his bedroom. Terry and his wife are the owners of the house and sole occupants of the bedroom where the firearm was found. Only Terry’s wife prevented Terry from accessing the gun. Terry was the only person present when the home was searched. The gun was found on the shelf in the closet where both Terry and his wife kept their clothes. The shelf also held men’s boots. Men’s clothing was on the same side of the closet.
Terry provided evidence that the firearm had been given to his wife for her protection and that the only shelves in the closet were on the same side as the men’s clothing. There was no evidence that he had ever touched the gun.
On the basis of this evidence, a rational trier of fact could find that Terry’s knowledge of the gun’s location and his unhindered access to it whenever his wife was not observing gave him constructive possession of the weapon.
IV. Jury Instruction
A. Standard of Review
We review whether a jury instruction was an accurate statement of the law de novo. See United States v. Spillone, 879 F.2d 514 (9th Cir.1989) (“[Wjhether a jury instruction misstated elements of a statutory crime is a question of law and is reviewed de novo.”); United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (questions of law reviewed de novo), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The de novo standard of review is appropriate, where, as in this case, an objection was raised below to the jury instruction. Where no objection is made below, the appropriate standard of review is plain error. Fed.R.Crim.P. 30; United States v. Kelm, 827 F.2d 1319, 1324 (9th Cir.1987). We “ ‘determine whether, viewing the instructions as a whole, the court gave adequate instruction on each element of the case to ensure that the jury fully understood the issues,’ and to determine ‘whether the instruction is misleading or states the law incorrectly to the prejudice of the objecting party.’ ” Espinosa, 827 F.2d at 614 (quoting Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986)).
B. Accuracy of the Constructive Possession Instruction
Both the government and Terry agreed to the first instruction given to the jury:
A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or person, is then in constructive possession of it.
In the midst of jury deliberations, the foreman requested clarification of the term “intention at a given time”. The court elected to give a broad “on or about instruction”, a reminder that the instructions should be considered as a whole, and a rereading of the “constructive possession” instruction. The Court then asked the jurors if that answered their question. In response to the Court’s inquiry, the foreman said:
At a given time, whether that did vary. The word ‘intention’ in that, there was no evidence that we could find that showed that an intention existed to use the weapon and therefore, maybe that would reduce the constructive — or eliminate the constructive possession in the mind of this one individual.
The court asked to be brought the Ninth Circuit Pattern Instruction Book. The Court then told the jury:
Let me now say having given that instruction I don’t like it because you focused in on a problem in that instruction and it’s use of the word ‘intention.’ Let me see if I have another instruction here that might help.
The court read to the jury a new definition of constructive possession:
Possession means having physical control of a thing. That control may be direct, as by actually holding the thing or indirect by having the power to control the thing while someone else may actually be holding it. The jury may find possession where one person alone has possession or where that person shares control with other persons.
The Court then told the jury, “See, that doesn’t use that other — the intention aspect of that other instruction.” The jury was then excused and a copy of the new instruction was delivered to the jury room.
The first constructive possession instruction given to the jury was “a correct statement of the law.” Espinosa, 827 F.2d at 614, n. 6. The second instruction, however, would allow a jury to convict without finding all the necessary components of constructive possession. “While the term ‘constructive possession’ is not free from ambiguity”, United States v. Cousins, 427 F.2d 382, 384 (9th Cir.1970), none of this court’s definitions of the term comport with the second instruction submitted to the jury.
Constructive possession “has been generally defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property.” Id.; Rhodes, 713 F.2d at 471. To sustain a conviction on the basis of constructive possession, “the Government was required to prove that [the defendant] had dominion and control of the [contraband] and knowledge of their existence.... ‘Mere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession.’ ” United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir.1988) (quoting United States v. Rodgriguez, 761 F.2d 1339, 1341 (9th Cir.1985)); United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, — U.S.-, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). Other constructive possession definitions are similar. “A person may not be convicted of illegal possession unless he knows contraband is present and is capable of exercising dominion and control over the contraband.” United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987); Rodriguez, 761 F.2d at 1341; United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir.1987). The government “must produce evidence showing ownership, dominion, or control over the contraband itself or the premises or vehicle in which contraband is concealed.” United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989); Soto, 779 F.2d at 560.
All Ninth Circuit case law requires that the defendant have knowledge of the presence of the contraband as an element of constructive possession. The cases also add some element that distinguishes possession from mere presence or accessibility. It is not enough that a person has the power to control the contraband, in the sense that he simply is in the presence of the contraband and could reach out and take it. Compare United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir.1987) (holding that the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon.).
The 1985 Ninth Circuit Pattern Instruction given in this case by the lower court judge simply required that a person “hav[e] the power to control the thing”. It would allow a conviction based on mere accessibility without knowledge or actual dominion or control. This error has been corrected in the 1989 Pattern Instructions which provide that “[a] person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.” Manual of Model Criminal Jury Instructions for the Ninth Circuit § 3.16 (1989).
Although the first instruction was accurate, its combination with the erroneous supplementary instruction misled the jury. After the judge read the second instruction, the jury was given a written copy of it. The judge also emphasized to the jury that “I don’t like” the first instruction. The court was clearly suggesting to the jury that the second instruction, which would allow conviction on a basis not permitted under the law, was the one they were to follow. Thus, we conclude that the constructive possession instruction given to the jury was improper and we reverse the conviction. See United States v. Bagby, 451 F.2d 920, 927 (9th Cir.1971) (“[A] conviction should not rest on ambiguous and equivocal instructions to the jury on a basic issue”).
CONCLUSION
The judgment is REVERSED and the case is REMANDED for retrial.
. At the trial, none of the evidence was applicable to both counts and none of the witnesses testified as to both counts.
. The government argues that the charges can be joined because a gun found at a residence is integrally related to drug trafficking. They cite to numerous cases none of which allowed the joinder of a drug charge with a firearm charge when the gun was not discovered at the same time and place as the drugs. All the cases cited by the government in support either involve firearms found in defendants’ possession at the time of their arrests, see U.S. v. Mason, 658 F.2d 1263 (9th Cir.1981); U.S. v. Moore, 580 F.2d 360 (9th Cir.) cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978), or guns and ammunition found during the same search or arrest which uncovered the drugs. See U.S. v. Montes-Cardenos, 746 F.2d 771 (11th Cir.1984); U.S. v. Weiner, 534 F.2d 15 (2nd Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976); U.S. v. Romero, 692 F.2d 699 (10th Cir.1982); U.S. v. Mareno, 658 F.2d 1120 (6th Cir.1981); U.S. v. Cannon, 472 F.2d 144 (9th Cir.1972). We never have held that, as a matter of law, a gun offense always can be joined with a drug offense.
. The government suggests that the improper joinder was harmless error because the jury’s split verdict indicated that they could separate the issues in their mind. A mixed verdict alone, however, it not dispositive. As five members of a divided en banc panel of the Eighth Circuit said, we cannot say that ‘the spillover effect of the joinder ... did not taint the jury’s deliberation.... [A]bsent the prejudicial joinder the jury might have acquitted on more counts....’ U.S. v. Grey Bear, 863 F.2d 572, 579 (8th Cir.1988) (opinion of group of five judges who found joinder improper. Note that the district court’s order finding joinder proper was affirmed by an equally divided vote of the court sitting en banc).
. The government cites three cases in support of the proposition that a defendant waives appellant review if he fails to renew a Rule 8 motion. Two of the cases, United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988) and United States v. Burgess, 791 F.2d 676 (9th Cir.1986), discuss Rule 14 motions only. In the third, United States v. Loya, 807 F.2d 1483, 1494 (9th Cir.1987), the court required renewal of a pretrial motion that relied on both Rule 14 and Rule 8. The Loya court cited Burgess, 791 F.2d 676, suggesting that it was referring to the requirements of a Rule 14 motion. There was no discussion of the renewal requirements for a Rule 8 motion.
. The government has asserted incorrectly that they need only prove that Terry had the ability to exercise dominion and control. To prove constructive possession the government must produce evidence showing that a defendant did exercise ownership, dominion or control over the contraband itself or the premises or vehicle in which the contraband is concealed. U.S. v. Shirley, 884 F.2d 1130 (9th Cir.1989).
. In addition appellant argues that his sentence was improperly enhanced on the basis of a prior burglary conviction. Because we are reversing the judgment against Terry it is unnecessary for us to reach the question of a proper sentence.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff, Appellant, v. Andrzej ROSNER, a/k/a Andrew Rosner, Defendant, Appellee.
No. 5278.
United States Court of Appeals First Circuit.
Heard Oct. 1, 1957.
Decided Oct. 28, 1957.
Arnold Williamson, Jr., Asst. U. S. Atty., Providence, R. I., with whom. Joseph Mainelli, U. S. Atty., Providence, R. I., was on the brief, for appellant.
Paul E. Kelley, Providence, R. I., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
The United States is here appealing from an order admitting appellee, Andrew Rosner, to citizenship under the authority of Sec. 328 of the Immigration and Nationality Act of 1952, 66 Stat. 249 (1952), 8 U.S.C.A. § 1439, which provides in part:
“(a) A person who has served honorably at any time in the armed forces of the United States for a period or periods aggregating three years, and, who, if separated from such service, was never separated except under honorable conditions, may be naturalized without having resided, continuously immediately preceding the date of filing such person’s petition, in the United States for at least five years, and in the State in which the petition for naturalization is filed for at least six months, and without having been physically present in the United States for any specified period, if such petition is filed while the petitioner is still in the service or within six months after the termination of such service.”
The Naturalization Examiner made specific findings of fact that the petitioner entered the United States Army on September 27, 1950; that he was honorably relieved from active duty September 26, 1952 and was transferred to the United States Army Reserve September 27, 1952 of which he continued to be a member until his honorable discharge September 6, 1956. However, the Examiner recommended that the petitioner be denied citizenship because of his failure to establish honorable service in the armed forces for a period or periods aggregating three years as required by the above statute.
The district court found that there was substantially no dispute as to the facts and agreed with the Naturalization Examiner that petitioner had spent two years in the United States Army on an active duty basis and that following that active service was a member of the United States Army Reserve on an inactive basis for slightly less than four years. However, the district court found that Sec. 328 did not require the petitioner to be in active service and that because the petitioner was not discharged from the armed forces until approximately six years after his induction and was subject to recall in the event of an emergency during the entire period while a member of the Reserve, it had been shown that he had, in the words of Sec. 328, “served honorably * * * in the armed forces of the United States for a period or periods aggregating three years. * * *"
The United States now contends that the district court erred in its rejection of the Naturalization Examiner’s recommendation of denial of petitioner’s application for citizenship and in its interpretation of Sec. 328.
In a subsidiary argument first mentioned in its brief and not argued or raised before the district court, the United States now contends that petitioner did not comply with Sec. 328(b) (3) in presenting evidence that he had served in the armed forces the requisite period of time. It appears from the record that the Naturalization Examiner had been furnished with: (1) a certificate as required by the Immigration and Nationalization Service from the Adjutant General but that this certificate indicated the petitioner was given an honorable separation or discharge on September 26, 1952; (2) a certificate from a warrant officer that petitioner had been a member of a Ready Reserve unit entitled 1291st USAR Central Group (Reinforcement) from January 1, 1954 to September 6, 1956, and (3) a certificate signed by the same warrant officer certifying that petitioner was a member of the Ready Reserve (Active Status) who had been inducted September 27, 1950, transferred September 27, 1952 to the Reserve and that he “was Honorably Discharged from the Army of the United States” on September 6, 1956. That the Naturalization Examiner found this evidence sufficient to establish that petitioner had been a member of the United States Army Reserve from September 27, 1952 to September 6, 1956 is firmly indicated by a specific conclusion of law he made to that effect and submitted to the district court. No objection was made during the hearing before the district court that the petitioner had not proved that he had been a member of the Reserve following his separation from active service and prior to his honorable discharge. It is a general rule of law that only in exceptional cases will questions not raised and not properly preserved for review in the court below be noticed on appeal. See Duignan v. United States, 1927, 274 U.S. 195, 200, 47 S. Ct. 566, 71 L.Ed. 996; Hutchinson v. Fidelity Inv. Ass’n, 4 Cir., 1939, 106 F.2d 431, 436.
If the Naturalization Examiner had refused to accept petitioner’s evidence it might well have been possible for the petitioner to obtain a certificate from the Adjutant General better describing his period of service in the armed forces. Cf. McCandless v. Furlaud, 1934, 293 U.S. 67, 55 S.Ct. 42, 79 L.Ed. 202. We, therefore, will not undertake to discuss this contention of the United States which was not only made too late, Parker v. Motor Boat Sales, 1941, 314 U.S. 244, 62 S.Ct. 221, 86 L.Ed. 184, but is also a technical one which, if granted in this particular case, would only result in the case being heard again after petitioner secured another certificate from the Adjutant General.
The main issue raised in the appellant’s appeal and by the district court’s decision is concerning the definition of the words “served honorably” in Sec. 328. It is to be noted that Sec. 329 of the Act, 66 Stat. 250 (1952), 8 U.S. C.A. § 1440 provides that “(a) Any person who * * * has served honorably in an active duty status” during World War I or World War II may be naturalized even though he has not met some of the usual requirements necessary for eligibility to citizenship. It seems likely that Congress, if it had meant the words “served honorably” in Sec. 328 to require such service to be in an active duty status, would have inserted that requirement specifically in Sec. 328 as it has done in Sec. 329. Moreover, in 67 Stat. 108 (1953), 8 U.S.C.A. § 1440a, which deals with naturalization through active service in the armed forces after June 29, 1950, it is expressly stated that the person petitioning for naturalization must be one who has “actively served” in the armed forces for a period or periods totalling not less than ninety days. Congress has expressly inserted the words “active” or “actively” in reference to the type of military service required in two sections of the statute dealing with the naturalization of aliens who have served honorably in the armed forces. By its omission of any reference to active service, there is a strong inference that Congress meant the type of military service, required under Sec. 328 to be somewhat different than that required by Sec. 329 and 8 U.S.C.A. § 1440a. Moreover, Sec. 328 requires that the petitioner must have been lawfully admitted for permanent residence. Sec. 329 allows aliens to be naturalized even though they may have entered the United States illegally so long as they were in this country at the time of enlistment or induction. Title 8 U.S.C.A. § 1440a allowed aliens coming under its provisions to be naturalized even though they were not admitted for permanent residence providing they had been lawfully admitted and had been physically present within the United States for a single period of at least one year at the time of entering the armed forces. It would not be illogical to contend that Congress intended to require higher standards of military service in Sec. 329 and 8 U.S.C.A. § 1440a in return for allowing aliens who had not been lawfully admitted to the United States for permanent residence the advantage of practically immediate citizenship under the provisions of Sec. 329 and only a one year period of residence under 8 U.S.C.A. § 1440a.
Sec. 328, on the other hand, requires the alien to have been admitted to this country for permanent residence. It further requires a period of three years in military service, unlike Sec. 329, which sets no minimum length on the period of time served during World War I or World War II and 8 U.S.C.A. § 1440a, which requires a period of ninety days in active military service.
In order to further define the status of the petitioner during the period prior to his discharge from the armed forces it is helpful to refer to the language of Congress in setting up the reserve components of the armed forces.
10 U.S.C. § 651 (Supp. IV. 1957) provides in part that:
“(a) Each male person who becomes a member of an armed force before his twenty-sixth birthday shall serve in the armed forces for a total of eight years, unless he is sooner discharged because of personal hardship under regulations prescribed by the Secretary of Defense or, if he is a member of the Coast Guard while it is operating under the Department of the Treasury, by the Secretary of the Treasury. For the purpose of computing service under this subsection, a member of an armed force may count service in the National Security Training Corps as if it were service in the armed forces.
“(b) Each person covered by subsection (a) who is not a Reserve, and who is qualified, shall, upon his release from active duty, be transferred to a reserve component of his armed force to complete the service required by subsection (a).”
10 U.S.C. § 267 provides:
“(a) There are in each armed force a Ready Reserve, a Standby Reserve, and a Retired Reserve. Each Reserve shall be placed in one of those categories.
“(b) Reserves who are on the inactive status list of a reserve component, or who are assigned to the inactive Army National Guard or the inactive Air National Guard, are in an inactive status. Members in the Retired Reserve are in a retired status. All other Reserves are in an active status.”
It thus appears that Congress intended membership in the Reserve to be an integral part of the required eight years service in the armed forces. A clear distinction is made between “active duty” and “service” in the armed forces in § 651(b).
Under our interpretation of the above statutes, the petitioner has served honorably in the armed forces of the United States for a period of more than three years and having complied with this requirement of Sec. 328, his petition for naturalization was properly granted.
A judgment will be entered affirming the order of the district court.
. “The petitioner shall furnish to the Attorney General, prior to the final hearing upon his petition, a certified statement from the proper executive department for each period of his service upon which he relies for the benefits of this section, clearly showing that such service was honorable and that no discharges from service, including periods of service not relied upon by him for the benefits of this section, were other than honorable. The certificate or certificates herein provided for shall be conclusive evidence of such service and discharge.”
. There was uncontradicted testimony by the petitioner before the district court that following his separation from active service on September 26, 1952 he was transferred to a reserve unit stationed in Pennsylvania, and it appears that on his relocating to Rhode Island he was transferred to the reserve unit named in this certificate.
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_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, Appellee, v. James Leonard BROWN, Defendant-Appellant.
No. 1034, Docket 77-1033.
United States Court of Appeals, Second Circuit.
Argued April 15, 1977.
Decided May 16, 1977.
Jacob Laufer, Asst. U. S. Atty., New York City (Robert B. Fiske, U. S. Atty., S. D. N. Y., Frederick T. Davis, Asst. U. S. Atty., New York City, of counsel), for ap-pellee.
Michael B. Pollack, New York City (Charles L. Weintraub, New York City, of counsel), for defendant-appellant.
Before CLARK, Associate Justice, MOORE and MULLIGAN, Circuit Judges.
Tom C. Clark, Associate Justice, United States Supreme Court, Retired, sitting by designation.
MULLIGAN, Circuit Judge:
The only issue of any substance raised on this appeal is whether the elaborate fraudulent scheme admittedly perpetrated by the appellant James L. Brown constitutes a violation of the antifraud provisions of the federal securities laws. We hold that it does and therefore affirm the conviction. Other claims of error by the trial judge are clearly frivolous and not worthy of comment here.
After an eight-day trial before District Judge Charles S. Haight, Jr. and a jury, a judgment of conviction was entered against Brown on December 23, 1976 in the United States District Court for the Southern District of New York. Brown was convicted on one count of conspiracy to commit securities fraud in violation of 18 U.S.C. § 871 and on eight counts of substantive violations of the federal securities laws, 15 U.S.C. §§ 77q(a) and 77x; 18 U.S.C. § 2. Following Brown’s conviction, Judge Haight sentenced him on the conspiracy count to five years imprisonment, with execution of all but six months suspended, and four and one half years probation commencing upon the termination of incarceration. On the remaining counts sentence was suspended and Brown was placed on periods of four and one half years probation, each to be served concurrently with the period imposed on the conspiracy count. At the time of this appeal, Brown was incarcerated under a sentence imposed for a prior unrelated conviction.
I
The government established by abundant proof at trial principally through the testimony of other conspirators the following facts which are not denied on this appeal. Sometime in March 1972 Brown met with Chester Gray, John Krappman and Harvey Axelrod, all of whom testified for the government, for the purpose of concocting and executing a scheme whereby American Home Products Corporation (AHPC) common stock certificates would be counterfeited. After considerable difficulty, phony stock certificates were finally produced bearing the forged signature of one Gerald L. Smith, an AHPC stockholder. The next step was to exchange the counterfeit AHPC certificates through the transfer agent of AHPC, Manufacturers Hanover Trust Company (MHTC), where Krappman was employed, for genuine certificates in smaller denominations. Axelrod had opened a trading account at Seed Capital Corporation (Seed), a brokerage firm where his relative, Benigno, was employed. The account was in the name of Gerald L. Smith. During October 1972, Seed accepted into the unauthorized Gerald L. Smith trading account 13,000 shares of the newly issued AHPC certificates which while genuine were derived from those which had been counterfeited and forged. Seed then sold the certificates to and through New York brokerage houses. It sold 6,000 shares directly to Weeden & Co. which mailed to Seed written confirmation of the purchase. Seed then sold 6,500 shares through Schweickart & Co. which also mailed confirmations to Seed. The final 500 shares were sold through Fer-kauf & Co. which had its clearing operations handled by Loeb Rhoades & Co.
Seed ultimately delivered the certificates thus spawned through the counterfeit shares bearing the forged name of Gerald L. Smith against payment by the brokerage houses in the total amount of $1.4 million. The money was deposited to Seed’s account and its checks totalling close to that amount were delivered to Axelrod by his relative, Benigno. Axelrod then forged Gerald L. Smith’s endorsement signature on the back of the checks. Benigno subsequently cashed checks at the Irving Trust Co. receiving payment in cash. The money was split up into shares among the swindlers, Brown receiving 50% of about $1.4 million.
II
On this appeal, Brown argues that since the scheme set forth was designed to defraud the transfer agent MHTC and not the investors who purchased genuine stock certificates, for whose protection the Securities Act was intended, it is not within § 77q(a). While this court has noted that the primary purpose of the 1933 Act was to protect investors, SEC v. Guild Films Co., 279 F.2d 485, 489 (2d Cir.), cert, denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); Gilligan, Will & Co. v. SEC, 267 F.2d 461, 463 (2d Cir.), cert, denied, 361 U.S. 896, 80 S.Ct. 200, 4 L.Ed.2d 152 (1959), appellant has not cited and we have not found any case holding that this was its sole purpose and that unless the ultimate purchaser of securities is injured or defrauded the criminal provisions of § 77q(a) are not violated. The language of that section set forth in the margin broadly condemns the employment of “any device, scheme, or artifice to defraud” or the engagement “in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.” There can be no doubt that there was established on trial a device, scheme or artifice to defraud. Stock certificates were counterfeited, the name of an innocent investor, Gerald L. Smith, was forged and the transfer agent was duped into issuing replacement certificates which while facially legitimate were produced as the result of the fraudulent scheme.
The argument that neither the ultimate investors nor Smith were in fact defrauded is based on the proposition that under § 8-311 of the Uniform Commercial Code the investors owned the securities free of any adverse claims of the original owner Gerald L. Smith. Moreover, it is argued that Smith was not injured because under § 8-104 MHTC had the fiduciary obligation of restoring him to his original position by buying identical securities reasonably available on the market as a replacement. The argument is unpersuasive. The fact that Smith might have a civil remedy to replace the stock which defendant Brown and his colleagues converted by counterfeit and forgery hardly prevents him from having been defrauded. One might as well argue that if Brown stole Smith’s fully insured automobile, he was never the victim of a larceny.
(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
We see no purpose in construing the statute so narrowly and we have not in the past. Thus in United States v. Gentile, 530 F.2d 461, 467 (2d Cir.), cert, denied, 426 U.S. 936, 96 S.Ct. 2651, 49 L.Ed.2d 388 (1976) we stated:
While it was noted in the Guild Films case that the Securities Act of 1933 was primarily intended to protect investors, 279 F.2d at 489, there is no reason to doubt that Congress intended that Act to protect defrauded lenders just as much as defrauded buyers.
Similarly here there is no doubt that Congress in the broad language employed in § 77q(a) was intent upon protecting the integrity of the marketplace in which securities are traded. Here MHTC, as the transfer agent for AHPC, plays an integral role in the marketing of securities. MHTC was clearly defrauded as was the innocent investor Smith. The fact that the Uniform Commercial Code might ultimately shift the monetary loss from Smith and the ultimate investors hardly serves to exculpate Brown and his group of fellow thieves, counterfeiters and forgers from criminal responsibility. This was not of course the garden variety of security fraud — its long planned execution, assisted by faithless employees of MHTC and Seed, constituted a massive assault upon innocent investors and brokerage houses and their normal business procedures which we cannot construe the statute to countenance. The fact that there is no litigated fact pattern precisely in point may constitute a tribute to the cupidity and ingenuity of the malefactors involved but hardly provides an escape from the penal sanctions of the securities fraud provisions here involved.
The same may be said for the argument that the use of the mails to send confirmation slips to Seed by the brokerage firms who had purchased the fraudulently derived securities was insufficient to support federal jurisdiction. While it is true that the mails were not utilized to effect the initially fraudulent switch perpetrated at MHTC, nonetheless a necessary part of the scheme was the distribution of the securities so obtained. In Franklin Savings Bank v. Levy, 551 F.2d 521, 524 (2d Cir. 1977), we recently reemphasized our holding in United States v. Cashin, 281 F.2d 669, 673-74 (2d Cir. 1960) (citation omitted) on the issue of the use of the mails as a basis for jurisdiction under the 1933 Act:
The use of the mails need not be central to the fraudulent scheme and may be entirely incidental to it. Indeed, in the very case before us the only alleged use of the mails was to confirm purchases already induced by the defendants’ deceit. No claim is made that fraudulent matter was mailed or even that the mailings alleged were necessary to the execution of the unlawful scheme.
As we have indicated, the other claims made on this appeal have been considered and deemed frivolous.
Judgment affirmed.
. § 77q. Fraudulent interstate transactions (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
(1) to employ any device, scheme, or artifice to defraud, or
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
. In its efforts to facilitate the establishment of a national system for the clearance and settlement of securities transactions, Congress recognized the importance of the transfer agent’s function in the Securities Acts Amendments of 1975, Pub.L.No.94-29, § 15, 89 Stat. 141 (June 4, 1975), codified at 15 U.S.C. § 78q-l. This legislation had its genesis in the “paperwork crisis” of 1968-70, when the failure of the securities and banking industries to process the volume of trading forced more than 100 brokerage firms into liquidation, largely because of record keeping problems. Note, Legislation: Securities Acts Amendments of 1975, 29 Okla. L.Rev. 462, 474 (1976). Clearing agencies and transfer agents are now required to register and to keep records and file reports. Castruc-cio & Tischler, Developments in Federal Securities Regulation — 1975, 31 Bus.Law. 1855, 1886 (1976).
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_stpolicy
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court 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".
CALIFORNIA STATE BOARD OF EQUALIZATION v. GOGGIN.
No. 12727.
United States Court of Appeals Ninth Circuit.
Aug. 21, 1951.
Rehearing Denied Oct. 20, 1951.
Edmund G. Brown, Atty. Gen., State of Cal., James E. Sabine, Deputy Atty. Gen., Edward Sumner, Deputy Atty. Gen., for appellant.
Leslie S. Bowden, Los Angeles, Cal., for appellee.
Frank C. Weller, Hubert F. Laugharn, Thomas S. Tobin, all of Los Angeles, Cal., as amicus curiae.
Before STEPHENS and POPE, Circuit Judges, and FEE, District Judge.
STEPHENS, Circuit Judge.
On February 5, 1946, West Coast Cabinet Works, Inc., a corporation engaged in manufacturing and selling cabinets at retail in California, filed a petition under Chapter 11 of the Bankruptcy Act and George T. Goggin was appointed receiver. From February 5, 1946, until March 11, 1946, Goggin, as receiver, conducted the business of the corporation under authority of the court, made retail sales, and paid the California sales tax thereon. On March 12, 1946, the corporation 'Was adjudicated a bankrupt and Goggin was appointed trustee. Pie continued to conduct the business of the bankrupt until March 22, 1946, and paid the California sales tax on retail sales made.
On March 22, 1946, the trustee was directed by order of the court to sell the assets of the estate. In carrying out the order, the trustee made numerous sales of the personal property of the bankrupt and paid the California sales tax thereon. On March 29, 1946, the trustee sold at retail, by public auction, five trucks which had been used by the bankrupt for delivery purposes in the conduct of the business. The California sales tax was not added to the purchase price and the sales were not reported in the bankrupt’s sales tax return filed by the trustee. ■
The appellant, California State Board of Equalization, made an additional determination of taxes owing from the trustee based upon the sale of the trucks and notice of the assessment was mailed to the trustee. Upon the trustee’s failure to make timely payment, a penalty of ten per cent was added to the. amount claimed to be due.
On petition of the trustee, the court granted an order to show cause directing appellant to appear and give reasons why they should not be permanently restrained and enjoined from enforcing the additional assessment. On November 14, 1946, after a hearing on the order to show cause, the referee enjoined the appellant from enforcing against the trustee any of the provisions of the California sales tax claimed to be due as a result of the sale of the trucks. The district judge affirmed the referee’s order. In re West Coast Cabinet Works, Inc., D.C.Cal.1950, 92 F.Supp. 636.
The contention as to lack of jurisdiction is not well taken.! The court below had jurisdiction to issue the injunction. Title 11 U.S.C.A. §-11, sub. a (15); State Board of Equalization v. Boteler, 9 Cir., 1942, 131 F.2d 386. Title 28 U.S.C.A. § 41(1), [now Title 28 U.S.C.A. § 1341] which provides that no district court shall have' jurisdiction of any suit to enjoin, suspend, or restrain the assessment, levy, or collection of any tax imposed by or pursuant to the laws of any state where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such state did not abridge the power specifically granted to the bankruptcy court to make such judgments as may be necessary for the enforcement of the pro-visions of the Bankruptcy Act. See Lyford v. City of New York, 2 Cir., 1943, 137 F.2d 782; In re California Pea Products, Inc., D.C.Cal.1941, 37 F.Supp. 658. The process of dealing with state tax assessments is one essential to the administration of a bankruptcy estate and does not amount to a suit against the state. Gardner v. New Jersey, 1947, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504.
Appellant contends that the record establishes that the five trucks were sold by the trustee- “during a period in which he was operating the business of the bankrupt * * It is averred that this is established by the stipulation entered into between the State Board of Equalization and the trustee, which states that “During the period from March 12, 1946, to May 1, 1946, George T. Goggin, as trustee for said bankrupt, was engaged in the sale of tangible, personal property at retail * * The stipulation is not to the effect that sales were made while the business was being conducted. The evidence shows that sales of cabinets were made on April 23, 1946, and on May 14, 1946, after and pursuant to the liquidation order.
The continued operation of a bankrupt’s business is a matter within the sound discretion of the court. Title 11 U.S.C.A. § 11, sub. a (5); R. J. Reynolds Tobacco Co. v. A. B. Jones, Inc., 8 Cir., 1931, 54 F.2d 329. The receiver or trustee is not empowered merely by virtue of his appointment to conduct the business of the bankrupt. In re Richter, D.C.N.Y. 1941, 40 F.Supp. 758. When the court on March 22, 1946 ordered liquidation of the assets, the trustee’s authority to conduct the business terminated. The completion and sale of the unfinished cabinets in order that they might be sold as-finished -pieces did not amount to conduct of the business. In re Duke, D.C.Mo.1924,. 15 F.2d 92, 93 (receiver who hired employees for short time to finish caps in-order that they might be sold as finished caps rather than pieces- of cloth did not “conduct the business”).
While it is undisputed, as is indicated, by the stipulation and by the record on-appeal, that retail sales of personal property were made -by the trustee after March 22, 1946, it is also undisputed that in making the sales, the trustee was liquidating the business. The question remains whether or not the California sales tax applies to liquidation sales of personal property made by a trustee in bankruptcy pursuant to court order.
Similar issues were before us in State Board of Equalization v. Boteler, supra, and a reading of that opinion disposes of many of the contentions urged on this appeal. Appellant states that the above decision no longer has vitality because of certain changes since made in the California Sales and Use Tax law.
The tax measure involved is imposed upon all “retailers.” A “retailer” is defined as, inter alia, every person engaged in the business of making sales at retail of tangible personal property. In 1945, some years after the decision in State Board of Equalization v. Boteler, supra, Section ■6005, which defines those included within the meaning of the word “person”, as used in the act, was amended and the words “trustee” and “United States” were added. It is contended that these changes impose the tax upon liquidation sales made by a trustee in bankruptcy through the operation of former Section 124a of Title 28.
We do not feel that the changes made in the California act have the effect which is sought to be placed upon them by appellant. Boteler v. Ingels, 1939, 308 U.S. 57, 521, 60 S.Ct. 29, 84 L.Ed. 78, 442, made it clear that a trustee in bankruptcy who operates a business, does so subject to state taxes. The question which is presented here and which was decided in State Board of Equalization v. Boteler, supra, is not whether the tax applies to a trustee in bankruptcy, but whether it applies to sales made by him in the liquidation of the bankrupt estate pursuant to court order.
The construction of the California tax is a matter of state law which is binding upon us. Richfield Oil Corp. v. State Board of Equalization, 1946, 329 U.S. 69, 67 S.Ct. 156, 91 L.Ed. 80. The California Supreme Court has stated that the tax measure involved is an excise tax for the privilege of conducting a retail business, measured by the gross receipts from sales. Western Lithograph Co. v. State Board of Equalization, 1938, 11 Cal.2d 156, 78 P.2d 731, 171 A.L.R. 838; National Ice & Cold Storage Co. of California v. Pacific Fruit Express Co., 1938, 11 Cal.2d 283, 79 P.2d 380. The fact that the tax has been held applicable to the sale of glasses by an optometrist, Kamp v. Johnson, 1940, 15 Cal.2d 187, 99 P.2d 274, to the sale of used printing equipment in the course of conducting a printing business, Bigsby v. Johnson, 1941, 18 Cal.2d 860, 99 P.2d 268, 118 P.2d 289, to liquor and meals sold by a nonprofit social club to its members, Union League Club v. Johnson, 1941, 18 Cal.2d 275, 115 P.2d 425, and to the transfer of railroad equipment by a railroad corporation primarily engaged in the carriage of freight and passengers, Northwestern Pacific Railroad Company v. State Board of Equalization, 1943, 21 Cal.2d 524, 133 P.2d 400, does not alter the fact that when the trustee in bankruptcy disposed of the trucks here involved “ * * * the sale was not made in the course of conducting a business but in the process of putting an end to a business.” Los Angeles City High School District v. State Board of Equalization, 1945, 71 Cal.App. 2d 486, 163 P.2d 45, 47, referring to our opinion in State Board of Equalization v. Boteler, supra. See also Coca-Cola Co. v. State Board of Equalization, 1945, 25 Cal.2d 918, 156 P.2d 1; People v. Imperial County, 1946, 76 Cal.App.2d 572, 173 P.2d 352; Schneider v. State Board of Equalization, 1944, 62 Cal.App.2d 463, 145 P.2d 90; People v. Thomas, 1940, 37 Cal.App.2d 155, 99 P.2d 294; Banken v. State Board of Equalization, 1947, 79 Cal.App.2d 572, 180 P.2d 400.
More tenable is the construction that the California tax, as indicated by the California courts in the cases referred to, is geared to the federal statute, which is general in nature, making officers appointed by United States courts liable for state taxes if they “conduct any business”. A harmonious application of the federal and state laws here involved leads us to the conclusion that in making the sale of the assets of the bankrupt estate pursuant to court order for the purpose of liquidation, the trustee was not subject to the California sales tax. State Board of Equalization v. Boteler, supra; In re California Pea Products, Inc., supra.
It would be unwise to foster conflict where Congress has manifested a desire for harmony. Any such conflict would necessarily entail an application of the fundamental doctrine that laws, enacted pursuant to power delegated to the United States under the Constitution are the supreme law of the land, and state laws inconsistent therewith are to that extent invalid. McCulloch v. Maryland, 1819, 4 Wheat 316, 17 U.S. 316, 4 L.Ed. 579. Our conclusion, however, adheres not only to our former view, State Board of Equalization v. Boteler, supra, but also to the doctrine that where problems in the sphere of dual sovereignty are involved, legislation should receive a construction which permits both to function with a minimum of interference each with the other. Metcalf & Eddy v. Mitchell, 1926, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384.
Affirmed.
. Title 11 U.S.C.A. § 701 et seq.
. California Revenue and Taxation Code, § 6001 et seq.
. Consult California State Board of Equalization v. Goggin, 9 Cir., 1950, 183 F.2d 489, certiorari denied 340 U.S. 891, 71 S.Ct. 207.
. California Revenue and Taxation Code, § 6051.
. California Revenue and Taxation Code, § 6015, as amended by Cal.Stats., 1943, e. 699, § 3, p. 2455, c. 822, § 1, p. 2620. See later amendment Cal.Stats.1949, c. 728, § 1.5.
. Cal.Stats.1945, ch. 926, § 1.
. “Any receiver, liquidator, referee, trustee, or other officers or agents appointed by any United States court who is authorized by said court to conduct any business, or who does conduct any business, shall, from and after the enactment of this Act, be subject to all State and local taxes applicable to such business the same as if such business were conducted by an individual or corporation * * Act of June 18, 1934, c. 585, 48 Stat. 993. See new Title 28 U.S.C.A. § 960, Act of June 25, 1948, c. 646, 62 Stat. 927.
. Title 28 U.S.C.1940 ed. § 124a, see footnote 7, supra.
Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Plaintiff-Appellee, v. Mark S. ELY, Defendant-Appellant.
No. 89-1393.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 14, 1989.
Decided Aug. 17, 1990.
Eric J. Klumb, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.
Bruce J. Rosen, Fritschler, Pellino, Ro-sen & Mowris, Madison, Wis., for defendant-appellant.
Before POSNER, COFFEY, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
The July 1988 Grand Jury returned a three-count indictment against defendant Mark Ely. Count One charged Ely with conspiring to distribute cocaine (in violation of 21 U.S.C. §§ 841(a)(1) and 846) by regularly receiving cocaine from James Brill for distribution to others. Counts Two and Three charged Ely with committing perjury (in violation of 18 U.S.C. § 1623) when he testified before a grand jury on May 14, 1985. Specifically, Count Two alleged that Ely lied when he told the grand jury he never bought cocaine from Brill; Count Three alleged that Ely lied when he told the grand jury he never sold Brill a white Corvette in exchange for cocaine.
Prior to trial, Ely made a motion to sever the perjury counts from the drug conspiracy count pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 states that “[i]f it appears that a defendant ... is prejudiced by a joinder of offenses ... in an indictment or information or by such joinder for trial together, the court may order ... separate trials of counts ... or provide whatever other relief justice requires.” Ely submitted an in camera affidavit arguing that severance was necessary in order to assure him a fair trial. Ely claimed that he had important testimony to give in defense of the perjury charges; thus, he was willing to waive his fifth amendment right to silence in a perjury trial. At the same time, Ely argued that it was imperative for him not to take the witness stand during a trial on the drug conspiracy charge.
Ely's severance motion was submitted to a magistrate who determined whether or not to grant the motion under the two-part test devised in Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970) and later adopted by this court in United States v. Archer, 843 F.2d 1019 (7th Cir.), cert. denied, 488 U.S. 837, 109 S.Ct. 100, 102 L.Ed.2d 76 (1988). Under that test, severance is required when a defendant demonstrates that he has both (1) important testimony to give concerning some counts and (2) a strong need to refrain from testifying with regard to other counts. Archer, 843 F.2d at 1022; Baker, 401 F.2d at 977. The magistrate concluded that Ely had important testimony to give concerning the perjury counts. Specifically, Ely wanted to testify that he was never placed under oath when he testified before the grand jury in May of 1985. Ely was the only witness who claimed to have personal knowledge of whether or not the oath was administered. While the grand jury foreman, the court reporter and an Assistant United States Attorney all testified that it was the customary practice to swear all witnesses before the grand jury, none could distinctly remember whether Ely had in fact been sworn on May 14, 1985. Because Ely was the only witness with personal knowledge and because failure to administer the oath would be a complete defense to the perjury charges, the magistrate concluded that Ely met the first prong of the two-part Baker test. The district court agreed with this conclusion.
Nonetheless, as the magistrate recommended, the district court denied the severance motion on the ground that Ely failed to satisfy the second part of the Baker test. The magistrate reasoned that Ely did not demonstrate a strong need to remain silent on the drug conspiracy count. The district court agreed, concluding that Ely would not suffer prejudice with regard to the drug conspiracy charge if he testified in a trial in which all three counts were joined. However, the court invited Ely to renew his motion at trial, when the court was in a better position to determine whether Ely would suffer prejudice.
At trial, Ely testified as the only defense witness. On direct examination, Ely admitted that he knowingly lied before the grand jury on May 14, 1985, but claimed that he was never put under oath. On cross-examination, Ely repeatedly invoked the fifth amendment in response to questions about the drug conspiracy-questions that Ely maintains were beyond the scope of direct examination. After the government's cross-examination, Ely renewed his motion for severance; in the alternative, he asked for a mistrial. The district court adhered to its prior ruling and denied both motions. The jury convicted Ely of both the drug conspiracy count and the perjury counts. The court sentenced Ely to eight years for the drug conspiracy count and four years for each of the perjury counts. The perjury sentences were imposed concurrent with each other but consecutive to the drug conspiracy sentence.
Ely concedes that he received a fair trial on the two perjury counts, and thus, does not challenge the perjury convictions on appeal. Ely challenges only his drug conspiracy conviction, advancing two grounds for reversal,. First, Ely contends that the district court erred in allowing the government to ask cross-examination questions pertaining to the drug conspiracy. Second, Ely claims that if the questions pertaining to the drug conspiracy were proper, then the district court erred in declining to sever the drug conspiracy count from the perjury counts. We will address each challenge in turn.
On direct examination, Ely testified that he knowingly lied to IRS Special Agent Tom Larson when Larson interviewed him in March of 1985. Ely also testified that he knowingly and intentionally lied to the grand jury on May 14, 1985. Finally, Ely testified that no one placed him under oath before he testified to the grand jury and that he specifically pointed this out to the Assistant United States Attorney at the grand jury hearing.
The government began its cross-examination by asking Ely why he lied to the grand jury. Ely objected to this question on relevancy grounds; his objection was overruled. In response to the question, Ely pleaded the fifth amendment. Over Ely’s continuing objection, the government asked him whether he lied to the grand jury because he thought he could go to jail; whether he lied to Agent Larson because he thought he could go to jail; whether he was a drug customer of Jim Brill; whether he sold cocaine he purchased from Brill to others and, if he admitted this to the grand jury, whether he believed he would go to jail. Ely pleaded the fifth amendment in response to each of these questions.
The government also read the following grand jury transcript to Ely and asked Ely if he knew he made false statements when he was asked and answered:
Q. Have you ever sold anything to Jim Brill?
A. No, I haven’t.
Q. Have you ever bought anything from him?
A. No, I haven’t.
Q. Did he ever sell cocaine to you?
A. No.
Ely pleaded the fifth in response to this question. In addition, the government asked Ely whether he knowingly gave false answers when he was asked and answered:
Q. When did you purchase this white Corvette?
A. Five years ago.
Q. And you sold it to Joe Brill (Jim Brill’s brother), right?
A. Right.
Q. And how much did Joe Brill pay for it?
A. Five hundred bucks.
Again, Ely took the fifth.
Finally, the government asked Ely whether he was the “Mark” or the “M.E.” on drug ledgers recovered from Jim Brill’s garbage; whether he would plead the fifth amendment to all questions about his cocaine dealings with Brill; and whether he would plead the fifth to all questions relating to his drug activities in 1983, 1984, and 1985. Again, Ely pleaded the fifth amendment in response to each of these questions.
The district court believed that the government’s questions were a proper extension of Ely’s direct examination. Accordingly, the court instructed the jury that it could consider Ely's failure to deny or explain acts of an incriminating nature in reaching a decision on “guilt or innocence.” Ely argues that the government’s cross-examination went beyond the scope of his direct examination because he did not dispute matters pertaining to the drug conspiracy on direct. Ely also objects to the district court’s instruction — because the cross-examination went beyond the scope of direct, the jury should not have been allowed to hear or consider Ely’s fifth amendment pleas in determining guilt or innocence.
A defendant who takes the stand waives his privilege against self-incrimination on matters “reasonably related” to the subject matter of his direct examination. McGautha v. California, 402 U.S. 183, 215, 91 S.Ct. 1454, 1471, 28 L.Ed.2d 711 (1971); Brown v. United States, 356 U.S. 148, 155-56, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958). When a witness forgoes his right not to testify, he cannot then claim to be immune from cross-examination on matters he has chosen to put in dispute through his direct testimony. Id. In United States v. Kimberlin, 805 F.2d 210, 236-37 (7th Cir.1986), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987) and Neely v. Israel, 715 F.2d 1261, 1265 (7th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), we held that it is proper for a district court to allow a jury to hear a defendant plead the fifth amendment if the plea is in response to cross-examination questions that are “reasonably related” to the subject matter of direct.
The government claims that all of its questions on cross-examination were “reasonably related” to Ely’s questions on direct. Thus, relying on Kimberlin and Neely, the government argues that the jury was entitled to hear Ely invoke the fifth amendment. First, the government argues that it was entitled to ask Ely whether he lied to the grand jury when he denied purchasing cocaine from Brill and when he claimed to have sold the Corvette for cash. The government argues that these questions were proper because the perjury counts charged Ely with lying about these specific matters, not just lying in general. We agree. On direct, Ely admitted that he “lied” to the grand jury; he did not identify the questions he lied to. The two perjury counts did not merely charge Ely with lying to the grand jury, however; they charged Ely with lying to two specific lines of questioning — (1) Ely lied when he denied purchasing cocaine from Jim Brill (Count Two) and (2) Ely lied when he denied selling Jim Brill a white Corvette in exchange for cocaine (Count Three). On cross, the government asked Ely whether he lied to the specific questions charged in the indictment. These questions were “reasonably related” to the matter Ely disputed on direct — namely, his guilt on the perjury counts.
The remainder of the government’s questions related (for the most part) to Ely’s motivation for lying to the grand jury. These questions present a closer call since “motivation for lying” is not an element of perjury — the government need only show that Ely knowingly and intentionally lied under oath. The government contends that Ely’s motivation for lying to the grand jury was relevant to Ely’s credibility at trial, particularly the credibility of his testimony about the oath issue. The government argues that if it could demonstrate that Ely lied to the grand jury because he was afraid of going to jail, this would tend to show that Ely lies as a matter of self-preservation — when he fears he could go to jail, he lies, which is what he was doing with regard to the issue of whether the oath was administered. We agree. The questions pertaining to Ely’s motivation for lying were relevant to Ely’s truthfulness on the oath issue; this, in turn, was “reasonably related” to Ely’s guilt on the perjury counts — the issue Ely disputed on direct.
Thus, under Kimberlin and Neely, the government’s cross-examination was proper because it was “reasonably related” to Ely’s direct. Our analysis does not end here, however. Determining whether the cross-examination was proper is not equivalent to determining whether the district court properly denied Ely’s severance motion. Kimberlin and Neely merely illustrate why the jury in this case was entitled to hear Ely invoke the fifth amendment (and draw inferences therefrom) in deciding Ely’s guilt or innocence on the perjury charges — this is not to say the same jury was entitled to determine whether Ely was guilty of the drug conspiracy charge. Therefore, we must now determine whether the district court properly denied Ely’s severance motion in light of the fact that the government was entitled to ask Ely questions pertaining to the drug conspiracy.
We have previously recognized that severance is not mandatory every time a defendant wishes to testify to one charge and remain silent about another. If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant. United States v. Peters, 791 F.2d 1270, 1287 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). On appeal, we will reverse a district court’s ruling regarding a severance motion only if the court abused its discretion. United States v. Hogan, 886 F.2d 1497, 1506 (7th Cir.1989); Archer, 843 F.2d at 1021. For reversal, a defendant must show that he suffered substantial actual prejudice rising to the level of an unfair trial because of the court’s refusal to sever. Willard v. Pearson, 823 F.2d 1141, 1149 (7th Cir.1987); Peters, 791 F.2d at 1287; United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985).
Ely contends that the district court’s refusal to severe denied him a fair trial on the drug conspiracy count. He argues that the government’s cross-examination unfairly prejudiced him because he was repeatedly forced to invoke the fifth amendment in response to questions about the drug conspiracy. In response, the government argues that our decision in United States v. Archer demonstrates that Ely did not satisfy the second part of the Baker severance test — he did not demonstrate a strong need to refrain from testifying about the drug conspiracy count. In Archer, the defendant wanted one prison escape count (Count Two) severed from another prison escape count (Count One) because he wanted to testify about the latter count (Count One) but not the former (Count Two). The defendant claimed that the government could convict him of Count Two only if he testified about Count One. 843 F.2d at 1021-22. We held that the district court properly declined to sever Count Two from Count One because the government offered sufficient and, in fact, overwhelming evidence to convict the defendant of Count Two whether or not the defendant testified about Count One. Id. at 1022-23.
The government contends that the district court’s refusal to sever did not deprive Ely of a fair trial because here, as in Archer, the government presented sufficient evidence to convict Ely of the drug conspiracy charge whether or not Ely took the stand. We agree. In sum, the evidence against Ely was as follows: Kim Geier, a government witness, testified that in 1981 she began purchasing cocaine from Ely. Geier continued to purchase cocaine from Ely into 1984. Russell Buckner, the government’s main witness and a former drug courier for Jim Brill, testified that Jim Brill was Ely’s source of cocaine. Buckner testified that Ely purchased approximately two kilograms of cocaine from Brill each month. Buckner also testified about one occasion in February of 1985 in which he and Brill collected $7,500 from Ely for drug purchases. Other witnesses testified that Brill had told them he purchased a white Corvette from Ely for two ounces of cocaine. Ely lied to IRS Agent Tom Larson about the sale of the Corvette, telling Larson that he did not sell the car to Jim Brill. Ely later lied to the grand jury about the Corvette, telling them that he sold the Corvette to Jim Brill’s brother, Joe Brill, in exchange for cash. Searches of Jim Brill’s garbage from about December, 1983, through July, 1984, revealed drug ledgers with regular entries under the name “Mark,” “Ely” or “M.E.” Finally, telephone records indicate that there were approximately 370 long-distance calls between the telephone numbers of Jim Brill and Ely from June of 1983 through September of 1985.
Ely’s fifth amendment pleas were unquestionably probative of his guilt or innocence on the drug conspiracy charge. If the jury would have acquitted Ely of the drug conspiracy charge but for his fifth amendment pleas, Ely would have been denied a fair trial under Archer. Given the extensive evidence of Ely’s involvement in the drug conspiracy, however, we can say with confidence that the jury would have convicted Ely of the drug conspiracy count whether or not they heard Ely plead the fifth. Ely’s pleas merely amounted to evidence in excess of the required proof beyond a reasonable doubt — accordingly, they did not unfairly prejudice Ely under the test set forth in Archer.
For the foregoing reasons, Ely’s drug conspiracy conviction is Affirmed.
. Ely did not contend that joinder of the counts was inappropriate under Rule 8(a) of the Federal Rules of Criminal Procedure. That Rule states that, "[t]wo or more offenses may be charged in the same indictment ... if the offenses charged ... are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
. Neither Kimberlin nor Neely dealt with severance of counts under Rule 14. Rather, both cases involved defendants who refused to testify on cross about events pertaining to the count of indictment they disputed on direct. See Kimberlin, 805 F.2d at 236-37; Neely, 715 F.2d at 1263-64.
. The government concedes that Ely satisfied the first part of the Baker test — Ely did have important testimony to give concerning the perjury counts.
. In Archer, as here, the government’s cross-examination was "reasonably related" to the defendant's testimony on direct. The defendant in Archer wanted to testify about a count alleging that he possessed a diagram, a board (to be used as a ladder), and a homemade screwdriver with the intent to escape from prison (Count One). The defendant had given an incriminating statement to a prison official admitting his intent to use these objects to escape. At trial, the defendant testified that the prison official coerced his confession by threatening to transfer him to a penitentiary and that he actually never intended to use these objects to escape. 843 F.2d at 1021.
Count Two charged the defendant with possessing a homemade handcuff key with the intent to facilitate an escape. Id. The defendant's testimony about Count One opened the door to cross-examination questions about Count Two. By testifying that his confession to Count One was false, the defendant invited the inference that he was not a person who would attempt to escape from prison and that he was being set up by prison officials. Questions about Count Two were relevant to (1) the defendant’s credibility regarding the claim of a false confession to Count One and (2) the defendant’s intent, plan, motive, and preparation to carry out the escape alleged in Count One.
. In some of our precedents dealing with severance of counts under Rule 14, we have held that denial of severance did not cause the defendant actual prejudice because most of the evidence supporting one count would have been admissible in a separate trial on the other count. See e.g., United States v. Hogan, 886 F.2d 1497, 1506 (7th Cir.1989); United States v. L'Allier, 838 F.2d 234, 241 (7th Cir.1988); Holmes v. Gray, 526 F.2d 622, 623 (7th Cir.1975), cert. denied, 434 U.S. 907, 98 S.Ct. 308, 54 L.Ed.2d 194 (1977). That analysis is not applicable here. Presumptively, Ely would not take the stand in a separate trial on the drug conspiracy count; thus, his fifth amendment pleas in this trial would not have been admissible in a new trial on the drug conspiracy.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_counsel2
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America Plaintiff-Appellee, v. Lester RAMSEY, Defendant-Appellant.
No. 73-1580.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 11, 1974.
Decided Aug 6, 1974.
Rehearing Denied Oct. 2, 1974.
Sam Adam, Chicago, 111., for defendant-appellant.
James R. Thompson, U. S. Atty., Michael D. Groarle, Gary L. Starkman, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
Before SWYGERT, Chief Judge, and PELL and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
This appeal presents the question whether the entire Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which establishes a statutory procedure for obtaining authority to engage in electronic eavesdropping, is unconstitutional “on its face.” Appellant also argues that the wiretap conducted in this case violated the portion of the authorizing order which directed the agents to minimize the interception of nonincriminating statements; and that the trial court erred by failing to grant immunity to a defense witness who exercised his privilege against self-incrimination.
There is no dispute about the fact that critical evidence was obtained by means of a court-authorized wiretap, or about the sufficiency of the evidence supporting the jury verdict finding appellant guilty of conspiring to buy and sell heroin. We treat appellant’s arguments in order.
I.
In his facial challenge to the constitutionality of Title III, appellant argues, first, that authorization to listen continuously to all conversations over a given telephone for 30 days is in the nature of a general search warrant forbidden by the Fourth Amendment and, second, that since the statute fails to require that notice be given to every person whose conversations have been overheard, it confers impermissible authority to conduct secret searches. These arguments have been considered and rejected by other circuits.
Appellant does not argue that the instant wiretap violated his own constitutional rights. At the outset, therefore, we must consider whether appellant has standing to challenge the statute on the ground that its application to other persons in situations different from that before us might be unconstitutional. Under traditional rules of constitutional adjudication, he is not entitled to raise such an objection. Moreover, the Supreme Court has recently admonished us to construe exceptions to the traditional rules narrowly. Thus, in Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, the Court stated: “Application of the overbreadth doctrine is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.” 413 U.S. at 613, 93 S.Ct. at 2916. Similarly, it appears that traditional rules should normally apply to a challenge based on grounds of vagueness.
Nevertheless, in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040, the Court allowed a facial challenge to the validity of a statute authorizing electronic eavesdropping. In support of its action, the Court said only the following:
“Since petitioner clearly has standing to challenge the statute, being indisputably affected by it, we need not consider either the sufficiency of the affidavits upon which the eavesdrop orders were based, or the standing of petitioner to attack the search and seizure made thereunder.”
388 U.S. at 55, 87 S.Ct. at 1882. While this sentence adequately explains why petitioner had standing under Article III of the Constitution, see, e. g., Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, it does not explain why petitioner was entitled to bypass the question of the constitutionality of the statute as applied. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524. Notwithstanding the critical comments on the standing issue found in the separate opinions of Mr. Justice Stewart, Mr. Justice Black, Mr. Justice Harlan, and Mr. Justice White, the majority neither identified the basis for its exception to traditional practice, nor indicated whether a litigant may challenge a statute authorizing electronic eavesdropping no matter how tangential the statute’s impact may be on his own constitutional rights.
The disposition of the standing issue in Berger would appear to be a departure from accepted tradition, and somewhat inconsistent with Broadrick. Nevertheless, since Broadrick did not specifically disapprove of Berger, and since we are not sure Berger can fairly be distinguished from the present case, we conclude that it is our duty to respect it as a viable precedent on the question of standing and to entertain appellant’s challenge.
In a sense, deciding to entertain a facial challenge to a statute such as Title III is more easily said than done. For this statute merely provides safeguards for a procedure which might legitimately be undertaken without any statutory authorization at all. See Katz v. United States, 389 U.S. 347, 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576. Presumably, a declaration of facial invalidity would mean that even though the application of the statute in this and in comparable cases is permissible, there is a range of applications permitted by the statute which exceeds constitutional limitations. But what is the appropriate range? What, in other words, is the test for declaring an authorizing statute facially unconstitutional ?
If we were to conclude, as apparently Judge Aldisert does in his careful op in-ion in United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), that compliance with this statute will make it virtually impossible to violate the Fourth Amendment rights of any citizen, then surely the statute must be upheld. On the other hand, if we should conclude that there is a significant possibility that district judges will from time to time grant overly broad intercept authority without departing from any of the statutory safeguards, does it follow, as Judge Lord reasoned in Whitaker, that the entire statute must fall? Or are we to engage in a form of balancing, attempting to weigh the probable number of impermissible applications of the statute against the number of cases in which it will be applied constitutionally, and then express an empirical judgment about its facial validity?
We find none of the above approaches acceptable and suggest, somewhat tentatively, a slightly different formulation. Realistically, we think we must assume with Judge Lord that from time to time the statute will be applied unconstitutionally in specific cases and, indeed, that over the years the number of such applications may be significant. On the other hand, now that judges have the benefit of the opinion in Berger, reinforced by the statutory admonitions set forth in some detail after careful consideration of the implications of Berger by Congress, we think it is proper to presume that the statute will generally be applied in a constitutional manner.
In Berger the Supreme Court could properly have regarded the New York statute as giving rise to a quite different presumption — one under which it might reasonably have been presumed that the normal administration of the Act would routinely lead to the entry of authorizations for 60-day continuous wiretaps. Such blanket authority to issue general warrants may be considered offensive to the Fourth Amendment without undermining the normal presumption of constitutionality to which we believe this carefully conceived Act of Congress is entitled.
We cannot say that the normal application of Title III will ordinarily lead to results condemned by the Fourth Amendment. Moreover, we are conscious that, even if the statute is susceptible of unconstitutional application, it does contain additional protections, not necessarily mandated by the Constitution, which would be forfeited by a holding of facial invalidity.
Accordingly, without further enlarging upon the constitutional discussion in the many other judicial opinions analyzing Title III, we hold that it is not unconstitutional on its face.
II.
The statute provides that every order authorizing an intercept shall contain a requirement that the authorization be executed as soon as practicable and “shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” In this case, the order authorizing the interception contained a provision directing, in the language of the statute, that the interception of such communications be minimized. Appellant claims that, if he had been accorded a hearing on the issue in the district court, he might have established that the government violated its duty to minimize the interception of innocent conversations. He therefore argues that the district court erred in failing to hold such a hearing.
We are not at all sure that appellant made a sufficient factual showing to require the Court to hold a hearing to determine whether the government violated the minimization requirement in the order. But we assume arguendo that such a breach occurred. On that assumption we must decide whether appellant has standing to complain. The Second Circuit has held that only a subscriber to a telephone has such standing. United States v. Poeta, 455 F.2d 117, 122 (1972). A more liberal interpretation of the statutory purpose would suggest that Congress also intended to protect the privacy interests of members of the subscriber’s family, possibly other regular users of the telephone, and conceivably any casual caller engaging in innocent conversation. But appellant fits none of these descriptions. He was a party to three long distance conversations with John Haygood, the subscriber, each of which related to the heroin transactions which were the specific target of the intercept order. Accordingly, we conclude that appellant’s rights were not infringed even if the government failed to carry out its obligation to minimize. Cf. United States v. Cox, 462 F.2d 1293, 1301-1302.
III.
Finally, there is no merit to the argument that a defendant has a constitutional right to have immunity conferred upon a defense witness who exercises his privilege against self-incrimination. The only support for appellant’s argument is found in a footnote to an opinion holding that Congress has not delegated unlimited power to the judiciary to grant immunity. Earl v. United States, 124 U.S.App.D.C. 77, 361 F.2d 531, 534 (1966). The footnote which suggests that a serious problem might exist if, in the same case, the government obtained critically favorable testimony by granting immunity but refused the same assistance to a defendant, is inapplicable because in the case before us the prosecution did not secure any of its evidence by means of an immunity grant.
The judgment is
Affirmed.
. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 entitled “Wiretapping and Electronic Surveillance” is found at 82 Stat. 211. In § 801 of that Act, Congress set forth its findings supporting the legislation; § 802 enacts a new Chapter 119 of the Criminal Code entitled “Wire Interception and Interception of Oral Communications.” See 18 U.S.C. §§ 2510-2520. Section 803 amended § 605 of the Communications Act of 1934, 47 U.S.C. § 605, to remove the complete prohibition against interception of telephonic communications without the consent of either party. Section 804 established a National, Commission for the review of federal and state laws relating to wiretapping and electronic surveillance.
. On May 4, 1970, telephone intercepts and pen registers were installed on two telephones in Chicago for which John Haygood, 'a co-indictee, was the subscriber. Three conversations between Haygood and appellant, who lived in Detroit, were overheard and introduced at trial; the jury may have inferred that they involved negotiations for the sale of heroin. The government also introduced evidence, apparently obtained at least in part in consequence of the wiretap, of surveillance of a journey made by Ann Ilaygood (John Ilaygood’s wife) fnwn Chicago to Ramsey’s Detroit residence, and back to Chicago, which the jury might reasonably have concluded was made for the purpose of securing a quantity of heroin, which Ilay-good later resold.
. The charge was brought under 21 U.S.C. § 174, repealed Act of Oct. 27, 1970, Pub.L. No.91-513, Title III, § 1101(a)(2), 84 Stat. 1291.
. Appellant also advanced a contention which is now foreclosed by the Supreme Court decision in United States v. Chavez, 410 U.S. 562, 570-575, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Appellant suggested that the authorization for the instant eavesdropping might have been obtained illegally because of the alleged forgery of the signature of Assistant Attorney General Will Wilson on the application for the intercept order and requested a remand for an evidentiary hearing on the issue. Since the record contains an affidavit of former Attorney General John Mitchell stating that he personally initialed a memorandum approving the instant wiretap, the statuory requirements were satisfied. Cf. United States v. Roberts, 477 F.2d 57, 59 (7th Cir. 1973).
. Appellant also suggests that the very existence of wiretapping authority has a chilling effect on free speech and, therefore, the statute violates the First Amendment. See Lopez v. United States, 373 U.S. 427, 450, 83 S.Ct. 1381, 10 L.Ed.2d 462 (Brennan, J., dissenting). If this argument were valid, no statutory authorization of electronic eavesdropping would be constitutional. Plainly that result would be inconsistent with the Supreme Court’s analysis in Katz v. United States, 389 U.S. 347, see especially pages 354-356, 88 S.Ct. 507, 19 L.Ed.2d 576.
. See United States v. Cafero, 473 F.2d 489, 495-497, 498-500 (3rd Cir. 1973); United States v. Tortorello, 480 F.2d 764, 773-774 (2d Cir. 1973). Although the primary claims in the two Cox cases were somewhat different, it is fair to say that the Eighth and Tenth Circuits have also implicitly rejected these arguments. See United States v. Cox, 449 F.2d 679, 685, 687 (10th Cir. 1971); United States v. Cox, 462 F.2d 1293, 1303-1304 (8th Cir. 1972).
. The rationale of Katz v. United States, supra, n. 5, establishes that a wiretap is not prohibited by the Constitution merely because there was no specific statutory authority for its issuance. Appellant does not contest that, in this case, there was compliance with the requirements of the Fourth Amendment. The application for the order authorizing the wiretap — the constitutional equivalent of an application for a search warrant — demonstrated the existence of adequate probable cause; the order itself satisfied the particularity requirements of the Fourth Amendment; and the relevant inter-ce) >ted conversations were among those specifically authorized to be overheard. Appellant does not argue to the contrary. There was no invasion of appellant’s right “to be secure . . . against unreasonable searches and seizures. . . .”
. The Second Circuit considered the standing issue in United States v. Tortorello, supra, n. 6. Its resolution of the issue was predicated on the fact that § 605 of the Federal Communications Act of 1934 (47 U.S.C. § 605) had been amended by § 803 of Title III. Prior to that amendment, the wiretap before them would have been unlawful and the evidence obtained thereby inadmissible. See Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126. Since the evidence which led to appellant’s conviction was rendered admissible by § 803 of Title III, the Court held that he had standing to attack tlie constitutionality of the entire Title on its face. See 480 F.2d at 772.
We cannot accept this reasoning. Title XI of the Crime Control Act consists in its entirety of a separability provision, which expresses Congress’ intent to save the Act from a determination of total invalidity. While there is authority for the view that such a provision cannot be completely dis-positive, see Carter v. Carter Coal Co., 298 U.S. 238, 312-313, 56 S.Ct. 855, 80 L.Ed. 1160, ,to grant standing upon the Second Circuit’s rationale, it would be necessary to hold that the separability provision does not apply to the various parts of Title III. We believe such a holding would be unwarranted. The amendment to the Federal Communications Act is contained in a separate section which does not constitute a part of the newly enacted Chapter 119 of the Criminal Code; that chapter contains the provisions challenged by appellant as unconstitutional. More fundamentally, even though the amendment to the Federal Communications Act was adopted as a part of a comprehensive piece of legislation substituting a lesser prohibition against wiretapping for the previous total prohibition, invalidation of Chapter 119 would not require that the amendment also be stricken down. For surely there is nothing in the Constitution that would prevent Congress from repealing every statutory prohibition against electronic eavesdropping and leaving only the Constitution itself as a safeguard against its abuse.
. The classic statement of the requirements imposed by the judiciary on itself before it will undertake the weighty function of constitutional adjudication is probably Mr. Justice Brandéis’ concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-348, 56 S.Ct. 466, 80 L.Ed. 688. The fifth criterion enunciated therein is that “The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.” Id. at 347, 56 S.Ct. at 483.
This principle ordinarily applies in Fourth Amendment cases. For although the enforcement of the exclusionary rule testifies to the importance of vindicating rights j)ro-tected by the Fourth Amendment, it is generally accepted that only a person whose own interest in privacy or property has been invaded may invoke the benefit of that rule. Cf. Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176.
. The Court described traditional doctrine as follows:
“Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that, statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. See, e. g., Austin v. Aldermen, 7 Wall. 694, 698-699 [19 L.Ed. 224] (1869); Supervisors v. Stanley, 105 U.S. 305, 311-315 [26 L.Ed. 1044] (1881); Hatch v. Reardon, 204 U.S. 152, 160-161 [27 S.Ct. 188, 190-191, 51 L.Ed. 415] (1907); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219-220 [33 S.Ct. 40, 41, 57 L.Ed. 1931 (1912); United States v. Wurzbach [280 U.S. 396], at 399 [50 S.Ct. 167, at 169, 74 L.Ed. 508]; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 [57 S.Ct. 868, 874, 81 L.Ed. 1245] (1937); United States v. Raines, 362 U.S. 17 [80 S.Ct. 519, 4 L.Ed.2d 524] (1960). A closely related principle is that constitutional rights are personal and may not bo asserted vicariously. See McGowan v. Maryland, 366 U.S. 420, 429-430 [81 S.Ct. 1101, 1106-1107, 6 L.Ed.2d 393] (1961). These principles rest, on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Xation’s laws.” 413 U.S. at 610-611, 93 S.Ct. at 2915.
. “To be sure there are statutes that by their terms or as authoritatively construed apply without question to certain activities, but whose application to other behavior is uncertain. The hard-core violator concept makes some sense with regard to such statutes.” Smith v. Gogren, 415 U.S. 566, 577, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974). Since the Court prefaces the quoted language by defining a “hard core violator” as one “to whom the statute was not vague, whatever its implications for those engaged in different conduct,” we infer that the Court might require a litigant objecting to the invalidity of a statute on account of vagueness to allege that the statute was vague as to his conduct.
. “The issue before us, as Mr. Justice White says, is ‘whether this search complied with Fourth Amendment standards.’ For me that issue is an extremely close one in the circumstances of this case. It certainly cannot be resolved by incantation of ritual phrases like ‘general warrant.’ Its resolution involves ‘the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not?’ ” 388 U.S. at 68-69, 87 S.Ct. at 1888 (concurring opinion).
. “I agree with my Brother White that instead of looking for technical defects in the language of the New York statute, the Court should examine the actual circumstances of its application in this case to determine whether petitioner’s rights have here been violated. That to me seems to be the unavoidable task in any search and seizure case: was the particular search and seizure reasonable or not? . . . Certainly a search and seizure may comply with the Fourth Amendment even in the absence of an authorizing statute which embodies the Amendment’s requirements. Osborn v. United States, 385 U.S. 323 [87 S.Ct. 429, 17 L.Ed.2d 394], upon which the Court so heavily relies, is a good example of a case where the Court sustained the tape recording of a conversation by examining the particular circumstances surrounding it, even though no federal statute prescribed the precautions taken by the district judges there.” 388 U.S. at 82-83, 87 S.Ct. at 1895 (dissenting opinion).
. “The Court declares, without further explanation, that since petitioner , was ‘affected’ by § 813-a, he may challenge its validity on its face. Nothing in the cases of this Court supports this wholly ambiguous standard; the Court until now has, in recognition of the intense difficulties so wide a rule might create for the orderly adjudication of constitutional issues, limited the situations in which state statutes may be challenged on their face. There is no reason here, apart from the momentary conveniences of this case, to abandon those limitations: none of the circumstances which have before properly been thought to warrant challenges of statutes on their face is present, cf. Thornhill v. Alabama, 310 U.S. 88, 98 [60 S.Ct. 736, 742, 84 L.Ed. 1093], and no justification for additional exceptions has been offered. See generally United States v. National Dairy Products Corp., 372 U.S. 29, 36 [83 S.Ct. 594, 599, 9 L.Ed.2d 561]; Aptheker v. Secretary of State, 378 U.S. 500, 521 [84 S.Ct. 1659, 1671, 12 L.Ed.2d 992] (dissenting opinion). Petitioner’s rights, and those of others similarly situated, can be fully vindicated through the adjudication of the consistency with the Fourteenth Amendment of each eavesdropping order.” 388 U.S. at 90-91, 87 S.Ct. at 1899 (dissenting opinion).
. “This case boils down, therefore, to the question of whether § 813-a was constitutionally applied in this case.” 388 U.S. at 108, 87 S.Ct. 1909.
“The question here is whether this search complied with Fourth Amendment standards.” Id. at 111, 87 S.Ct. 1911 (dissenting opinion).
. One commentator suggested the following rationale:
“The majority’s sole justification for construing the statute on its face rather than as applied to the defendant is its hald statement that ‘petitioner clearly has standing to challenge the statute, being indisputably affected by it . . . . ’ Previously the Court had judged statutes on their face in cases involving freedom of expression, where the very existence of the statute can inhibit the communication of ideas. But in other areas the Court has usually dealt with a law as applied in order to avoid deciding constitutional issues unnecessarily and because dealing in abstractions often leads to ‘sterile conclusions unrelated to actualities.’ Indeed, the Berger opinion itself is often too general to give specific, guidance to those who now seek to draft a constitutional eavesdropping statute. The majority also fails to give any guidance on questions raised by the facts of the case and discussed by the dissents, such as who has standing to challenge the legality of an eavesdrop, what constitutes probable cause for an eavesdrop order, and what rules govern the use of the fruits of an illegal eavesdrop.
“It might be argued in support of the Court’s action, however, that eavesdropping itself is an unconstitutional restraint on speech, creating an atmosphere in which individuals are reluctant to speak freely even in private. Although the case was decided on fourth rather than first amendment grounds, this ‘penumbral’ influence of the first amendment could provide a basis for judging the statute on' its face. Further, an overbroad eavesdrop statute would seem to have the same ‘chilling effect’ on privacy that an overbroad picketing statute has on speech: the very knowledge that the police are authorized to eavesdrop without adequate judicial supervision will impair the value of the home or office as a place of refuge even if the police do not abuse their power. In addition, just as in free speech cases it is by no means certain that all important issues would be litigated if a case-by-case approach were required, the secrecy of eavesdrops makes it unlikely that issues arising out of unproductive eavesdrops would ever reach court.” The Supreme Court, 1966 Term, 81 Harv.L.Rev. 69, 188 (1967) (Footnotes omitted).
. In Berger, unlike the present case, the petitioner advanced a strong claim of unconstitutional application as to himself. Indeed, the unconstitutionality of the wiretap at issue was the basis for Mr. Justice Stewart’s concurrence in the result. The application of the New York statute in that case had permitted a recording device to be installed in an attorney’s office for a period of 60 days. In the face of such a strong claim of impermissible application — one that either constituted the use of a general warrant forbidden by the Fourth Amendment, as the majority held, or at the very least closely approached the outer limits of the range in which a statute authorizing electronic eavesdropping might be applied constitutionally— the Court could with more legitimacy express an opinion on the validity of the entire statutory scheme before it than if the particular litigant before it had no arguable basis for claiming that his own constitutional rights had been impaired but was merely positing quite different hypothetical situations in which abuses might conceivably occur.
. The reasons why hypothetical adjudication of constitutional issues is undesirable are applicable to a “facial” analysis of this statute. For, in order to meet appellant’s principal argument that authorization of electronic. eavesdropping for a continuous period of 30 days is comparable to a general warrant and not constitutionally distinguishable from the 60-day authorization condemned in Berger, see United States v. Whitaker, 343 F.Supp. 358, 365-366 (E.D.Pa.1972), rev’d, 474 F.2d 1246 (3rd Cir. 1973), we would be forced either (a) to decide whether validity must rest on the difference between 60 days and 30 days, (b) attempt to evaluate the efficacy of the provisions for “automatic” termination of authorizations under a variety of conceivable circumstances, or (c) attempt to predict the frequency with which judges may impose a time limit less than the maximum of 30 days permitted on the basis of a single showing of .probable cause.
. The Supreme Court in Berger did not explicitly rely upon the strength of petitioner’s own Fourth Amendment claim in permitting challenge to the Xew York statute on its face.
. Ordinarily, cases in which facial constitutional adjudication has been considered appropriate have involved criminal statutes, or at least disciplinary sanctions. In such cases, the consequence of a judicial determination of facial unconstitutionality is unambiguous. Similarly, if Congress had no power to authorize the practices described in the legislation, a ruling that the statute is facially invalid would be understandable. See, ,e. g., Schechter Poultry Corp. v. United States, 295 U.S. 495, 550, 55 S.Ct. 837, 79 L.Ed. 1570. But the analysis in Katz makes it clear that this is not such a case. It is therefore difficult to know precisely what a declaration that this statute is facially unconstitutional would mean.
. We believe the crux of Judge Lord’s opinion is found in the following passage: “If a judge exercised certain discretionary powers which the Act gives him, the order may not violate the Fourth Amendment. The difficulty, though, is precisely that those powers are discretionary and not mandated. It follows that the Act does not command a constitutional order; it permits an uneonstltu-tional one.” United States v. Whitaker, supra n. 18, 343 F.Supp. at 363.
. The majority in Berger did not specifically announce the standard that they employed. The explanation may lie in the fact that the opinion, when announced, was subject to the interpretation that the Court intended to forbid all wiretapping of telephones. In his dissent in Katz v. United States the following Term, Mr. Justice Black observed:
“. . . [TJoday’s opinion differs sharply from Berger v. New York, 388 U.S. 41 [87 S.Ct. 1873, 18 L.Ed.2d 1040], decided last Term, which held void on its face a XTew York statute authorizing wiretapping on warrants issued by magistrates on showings of probable cause. The Berger case also set up what appeared to be insuperable obstacles to the valid passage of such wiretapping laws by States. The Court’s opinion in this case, however, removes the doubts about state power in this field and abates to a large extent the confusion and near-paralyzing effect of the Berger holding.”
389 U.S. at 364, 88 S.Ct. at 518. See also Kitch, Katz v. United States: The Limits of the Fourth Amendment, 1968 S.Ct.Rev. 133, 143: “In Katz itself the Court proceeded to make clear that, contrary to the implications of its decision in Berger v. New York, electronic surveillance under limited conditions could be authorized by a warrant.” (Footnotes omitted.) That such an interpretation of the opinion was reasonable is bolstered by the fact the petitioner specifically argued such a contention to the Supreme Court. Point I of his Brief was :
“A. Except perhaps for situations of supreme public necessity involving the physical safety of the nation or of a particular populated community or vital public installation, and even then only for purposes of preventive security action by responsible governmental agencies at the highest level rather than for the obtaining of prosecu-torial evidence, and even in sucli supreme emergency situations only when the action is taken under federal rather than state authority, no conceivable system of judicially permissive trespassory or other physically intrusional electronic eavesdropping — including ‘electronically’ or ‘acoustically’ intrusional methods involving no ‘tangible’ physical trespass or intrusion in the conventional senses understood by persons who are not trained physicists — can be constitutional under the Fourth, Fifth, Ninth and Fourteenth Amendments.”
Brief for Petitioner at 15.
. Perhaps the lynchpin of the majority’s analysis in Berger appears in the paragraph in 388 U.S. at 58-60, 87 S.Ct. 1873. We note that the procedural laxity therein condemned has been avoided in Title III.
. The mere fact that the statute does not require notice to be given to everyone whose conversations have been overheard does not render it unconstitutional. Unlike the New York statute condemned in Berger, see 388 U.S. at 60, 87 S.Ct. 1873, § 2518(8) (d) requires that those individuals named in the order be given notice within 90 days after its termination. This is consistent with ordinary Fourth Amendment practice under which notice is given to those whose premises are searched. See Rule 41(d), Fed.R.Crim.P.
. We quote the entire text of § 2518(5), supplying emphasis to the portion relevant to appellant’s claim:
“No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.”
. In United States v. Kahn, 415 U.S. 143, 154, 94 S.Ct. 977, 983, 39 L.Ed.2d 225 (1974), the Court described this requirement as a duty “to execute the warrant in such a manner as to minimize the interception of any innocent conversations.” (Emphasis added.) Without the guidance we might have had some uncertainty as to the meaning of the words “communications not otherwise subject to interception” because they might have been interpreted literally to encompass noninnocent conversations as well, inasmuch as even a noninnocent conversation would not be subject to interception other than pursuant to a valid order. Such a literal reading, however, would not effectuate any identifiable legislative objective. We assume, therefore, that the agents were obligated to intercept as few “innocent conversations” as possible consistent with their primary mission of obtaining evidence of the criminal activity described in the warrant. When their mission is kept in mind, the term “innocent” may perhaps be further limited to those which are not relevant in the sense that they are not likely to lead to the discovery of any searched-for evidence. The nature of the duty to minimize may vary from case to case and, therefore, conceivably in some intercept orders the trial judge should do more than merely parrot the language of a somewhat ambiguous statutory provision.
. Since the right Congress sought to protect is a right to privacy, this analysis is not inconsistent with Mr. Justice Harlan’s dissenting opinion in Berger, 388 U.S. at 101-104, 87 S.Ct. 1873.
. The witness Harden anticipated leniency but received no grant of immunity.
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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songer_usc1
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28
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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.
SANTA CRUZ OIL CORPORATION v. ALLBRIGHT-NELL CO.
No. 7195.
Circuit Court of Appeals, Seventh Circuit.
Nov. 1, 1940.
George I. Haight and Fred Gerlach, both of Chicago, 111., for appellant.
Franklin M. Warden and F. Allan Minne, both of Chicago, 111., for plaintiff-appellee.
Before SPARKS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.
MAJOR, Circuit Judge.
This is an appeal from a judgment entered November 16, 1939, in the amount of $59,038.26, plus interest in the amount of $23,615.30. The suit was instituted by complaint filed February 24, 1930, to-recover damages for an alleged breach of contract wherein the defendant, under date of March 4, 1925, acquired from the plaintiff the exclusive license to manufacture and sell products (presses and apparatus used in the extraction by pressure of oil products from meat) for which an application for a patent was pending. The interlocutory decree found the patent valid and infringed, awarded an accounting for the sums due under the contract, an injunction against infringement after the date of filing of the suit, and an accounting for such infringement.
On appeal (hereinafter referred to as Appeal No. 4995) this court (Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392) affirmed the finding that the contract remained in force until the suit was filed and the award of an accounting on the contract, and reversed that part of the decree which held the patent valid and infringed on the theory that its validity or infringement was not in issue.
In conformity with that part of the District Court decree affirmed by this court, the Master proceeded to a hearing on the account ordered to be stated. During such hearing the District Court sustained a ruling by the Master that the defendant could not introduce evidence to prove a mutual agreement as to the selling price at variance with that contained in the original contract. A petition for writ of mandamus was applied for by defendant in this court (hereinafter referred to as No. 5470) to require the District Court to receive such evidence. On June 15, 1935, this court ordered the District Court to instruct the Master accordingly. In re AllbrightNell Co., 7 Cir., 78 F.2d 430.
The proceedings before the Master were resumed, and the correspondence between the parties, which was in the record before this court on Appeal No. 4995 concerning the selling price, was supplemented by additional correspondence and oral testimony.
The nature of the agreement in suit is described in the former opinions referred to and need not be repeated.
This controversy, however, revolves largely around Paragraphs 4 and 8, which we set forth in a footnote.
The Master filed a report June 21, 1937, and found that “the parties, subsequent to the execution of the written contract, entered into a mutual agreement, by which they agreed to sell the Hiller press at approximately the same price as the Anderson press of similar type, size, and capacity.” Sixty-eight presses were sold. The gross income received by the defendant from the sale of said presses, its manufacturing cost, plaintiff’s one-half share of profit with interest thereon, together with certain other minor adjustments, are shown in the Master’s summary.
Plaintiff filed exceptions to the Master’s report, fixing the damages on the basis of the actual selling prices and for the allowance to defendant of a credit of $1000 advanced to the plaintiff for the completion of a press which it had contracted to furnish at the time of entering into the license agreement. Defendant filed exceptions to the report because it included profits on an auxiliary driving mechanism sold with the presses, interest on unliquidated damages, the disallowance of credits for goods which defendant claimed it delivered to plaintiff and certain other allowances. It will be observed that the Master’s statement of account is predicated upon the theory that the parties, by mutual agreement entered into subsequent to the execution of the license agreement, determined a price at which the presses were to be sold and that, therefore, the language of Paragraph 4, “such sale price shall be not less than twice the actual cost of such articles * * * ” was not to be applied.
The District Court, in response to plaintiff’s exceptions to the report, reversed the Master’s finding that the selling price was agreed upon by the parties and, in effect, directed the Master to state the account in accordance with the court’s holding that the selling price had not been modified or changed. The effect of the court’s holding in this respect, as construed by the Master on the order of re-reference, was to order the Master to compute -the damages on the double-cost basis. The court affirmed the allowance by the Master to defendant of the credit for $1,000, but apparently made no ruling upon other exceptions to the report.
Subsequently, the Master filed a second report similar in most respects to his first, except that in compliance with the court’s order on re-reference, plaintiff’s damages were computed and reported upon a selling price of double the cost. Under this theory, defendant’s gross revenue was $253,834.65, factory cost $128,418.87, leaving a net profit of $125,415.78. Certain other minor adjustments were made in the account, reducing the amount due plaintiff to $59.038.26, which, plus interest, totals $81,653.56, the amount awarded plaintiff. This report was approved by the court and judgment entered from which this appeal is taken.
It is thus apparent that the question of prime importance on this appeal is whether plaintiff was entitled to a judgment in conformity with the Master’s first, or second report. This involves the propriety of the action of the District Court in sustaining exceptions to the first report, In other words, was the court justified in its refusal to accept findings of fact as made by a Master? Rule 53(e), Paragraph (2), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides : “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” The language thus employed leaves no room for argument that the District Court is bound by such findings “unless clearly erroneous.” The rule binds the District Court to accept findings of a Master just as Rule 52(a) binds this court to accept findings of a District Court. In fact, the language of the two rules is quite similar. The latter rule provides: “Findings of fact shall not be set aside unless clearly erroneous.” These rules promulgate no new principle of procedure, as such principle has long been recognized by the courts. It was aptly stated in Adamson v. Gilliland, 242 U.S. 350, on page 353, 37 S.Ct. 169, 170, 61 L.Ed. 356, where the court said: “ * * * the case is preeminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses ‘depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.’ * * * ” Other cases where similar rules and statutes have been thus construed are: Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; In re Mendota Building Co., 7 Cir., 92 F.2d 644, and Carter Oil Co. v. McOuigg, 7 Cir., 112 F.2d 275.
We can recall to mind no case where this rule may be more appropriately applied than in the instant situation. Here we have a difficult and involved proceeding in accounting. In compliance with the Master’s subpoena, an account was stated by the defendant. Much labor and thought was given to the matter by an experienced Master, as is amply disclosed by a study of the first report rendered by him. He heard, saw and observed the witnesses and was in a better position to judge of their credibility and the weight to be given their testimony than either the District Court or this court, neither of which has. had such an opportunity. To set aside his findings “unless clearly erroneous” is not only contrary to the rule quoted and the accepted practice, but amounts to a trial de novo by the reviewing court with no assurance that any better or more accurate results could be achieved.
That brings us to the question as to 'whether the findings of the Master were “clearly erroneous.” A careful examination of the oral testimony, in addition to the mass of documentary evidence, -convinces us not only that the findings of the Master were not “clearly erroneous” but that they were well grounded. It would prolong this opinion unduly to relate in detail the material testimony in this respect, but we will summarize what appears to us to furnish abundant support to the findings as made by the Master.
As stated, the license agreement in question was entered into March 4,-1925. At that time, as well as prior and subsequent thereto, defendant was engaged in furnishing substantially complete rendering * equipment for meat packers, an essential part of which was what is designated as the screw press. Prior to the date of the license agreement, the press sold by defendant was what is known as the Anderson Screw Press, purchased by the defendant from the Anderson Press Company. There was nothing in the agreement which precluded the defendant from the use of the Anderson Press and, as a matter of fact, it used such press in some of its sales subsequent to the execution of the license agreement. There is some -controversy as to who initiated the negotiations which culminated in the license agreement, as well as the representations made by the plaintiff with reference to the character of work which plaintiff’s press was capable of performing. We do not regard any controversy in this respect as material to the question now under con■sideration. Regardless of what happened prior to the execution of the agreement, the question remains as to whether the selling price as fixed by the agreement was •changed by mutual action of the parties as found 'by the Master. A study of the correspondence which passed between the parties is, we think, convincing that the parties modified the provision of the agreement that the press was to be sold on the so-called double-cost basis. July 11, 1925, plaintiff wrote defendant as follows: ■“ * * * Also, you have never furnished us with any data as to what the price will be on this equipment, (press) We wish you would furnish us with the sales price, together with full information regarding commission.” It will be noted that this letter was written about four months after the license agreement had been entered into. July 28, 1925, defendant wrote in reply: “In regard to the selling price and commission on the Hiller Press, the writer is not entirely familiar with just what we are doing on this, but he believes that up to the present time we have been maintaining our selling price the same as for the Anderson Expeller.”
October 17, 1925, plaintiff wrote as follows : “As soon as possible, please give us figures on the cost and selling prices on the Press as we are interested, as you know, in handling this for the fish business and we have been awaiting the. time when the machine would be successful and when you would be able to furnish us proper costs so we can figure on our work accordingly.”
October 22, 1925, defendant replied:
“As far as sales price goes, we have adopted the policy of making the price the same as Anderson’s for the time being.
“Of course, the first press was very expensive on account of changes and the experimental work we had to do. These next two presses, however, are being built without changes, and we hope to have a good line’on costs.”
December 4, 1925, defendant wrote: “Our contract calls for us to charge double our cost in order to make sales price. Of course you know that is impossible, but I wish to refer to it so that it does not miss your attention, but please let me know that you are satisfied with the prices as made at present. These prices are the same as Anderson’s, and that is all we can expect to get until we have got a record of service and know to what extent our press is superior to the Anderson.”
On the same date defendant wrote plaintiff :
“Presume you- know that Anderson’s prices are as follows:
“Anderson Expeller, belt drive.. $2410.00
“Arranged for Motor Drive but without motor ............. 2610.00”
December 14, 1925, plaintiff wrote:
“Besides this, some day we hope to have some commissions coming to us.”
February 28, 1926, defendant reported to plaintiff concerning the sale of three presses, in which report was itemized the cost of material as to each press, and disclosed a selling price of $2,410. Plaintiff acknowledged receipt of this report and replied that he would come to Chicago, which he did, and a conference was had on March 30, 1926, attended by plaintiff and three of defendant’s representatives. What was said at this conference is a matter of dispute. Defendant’s witnesses testified before the Master to the effect that plaintiff agreed to a selling price the same as that of Anderson’s, while such an agreement is disputed by plaintiff. July 21, 1926, after this conference, plaintiff wrote: “ * * * We feel that we can make a press of the same capacity as Anderson’s that will sell a little cheaper. * * * In turn, we must sell at the same price, owing to the fact that we only make one machine. Thus we feel that we will give Anderson a great deal' more of a rub than he ever is dreaming of.”
August 27, 1926, defendant again reported to plaintiff concerning the first eight presses sold, showing the selling price of each to be $2,410. December 1, 1926, defendant reported the sale of eighteen presses, with the same selling price as Anderson’s. Concerning this report, plaintiff, December 24, 1926, wrote:
“We are not going to comment on this at the present time as we are not in possession of enough facts regarding the cost of this equipment. We note, however, that the costs have not decreased at all— in fact we might say increased.
“We had hoped by this time that you would be in position to materially cut these costs. However, we will leave this matter totally in your hands for the present at least to see how this matter is going to work out.”
March 4, 1927, plaintiff forwarded to defendant photographs of a press which he had built, and the manufacture of which he was contemplating, with a view of having defendant sell them. In this letter, plaintiff stated: “Can you sell these presses for single Laab’s installations at $1875.-00 each. Our cost is approximately $1,-200.00, and we will split fifty-fifty same as all other arrangements with you.”
Again, on May 28, 1928, defendant reported the sale of forty-eight presses at a selling price substantially the same as Anderson’s. A number of other exhibits, mostly letters passing between the parties, are in evidence, and at no time did plaintiff object to the price at which the press was being sold, and we think that the exhibits clearly disclose an acquiescence on his part. His chief complaint was the high cost of manufacture. As aptly pointed out by the Master: “ * * * The most reasonable, in fact almost unavoidable, inference to be drawn from the correspondence of the parties is that the controversy between them revolved around manufacturing costs, rather than selling price. From the cost controversy itself, there is a strong implication that defendant was not to account for twice the factory cost; for if that were Hiller’s understanding, he would not have objected to the high cost, because his returns would increase in a direct ratio with an increase in costs. On the other hand, if Hiller did not regard the defendant obligated to pay twice the cost his returns would decrease with increase of cost; hence, his objection to the costs reflects his realization that there was an agreed price. * * * ”
It appears to be the contention of the plaintiff that the question as to whether the contract selling price was changed by mutual agreement of the parties has heretofore been decided by this court, and quotes the following paragraph from our opinion in Appeal No. 4995. Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392, 394: “After the contract was signed the parties communicated by letter relative to the manufacture and marketing of the presses. There was some reference in the correspondence to the sale price of the presses, but we are satisfied that the correspondence never ripened into an agreement which changed the original contract.”
In Appeal No. 5470, however (In re All-bright-Nell Co., 7 Cir., 78 F.2d 430, 431), we disclaimed the language used in the former opinion, and said: “ * * * Hence, whether the correspondence ever ripened into an agreement which changed the original contract was not before us. * $ * «
It may also be pointed out that there was introduced in evidence before the Master correspondence in addition to that contained in the records formerly presented to this court.
Plaintiff also contends that the modification of the original contract as to the fixing of a selling price by an oral agreement was in contravention of the Statute of Frauds. We think this contention is not sound for two reasons: First, the contention was waived by a failure of plaintiff to except to the Master’s report on the grounds now- alleged. It is true, no doubt, as stated by plaintiff, that the question was presented in its written argument to the District Court. That argument, however, is no part of the record here and, so far as appears from the “memorandum on exceptions” entered by the District Court, that question was not considered. The exceptions to the Master’s report were sustained according to this memorandum for the reason that the court did not believe the oral testimony of the witnesses, and upon the reasoning that it was unbelievable that business men would thus change the selling price without reducing the agreement to writing. Second, and a better reason why plaintiff’s- contention in this respect must be denied is that the Master’s finding was not based upon oral testimony alone, but such testimony was considered in connection with the letters and other written evidence bearing upon the question. We think the written evidence alone is'sufficient to sustain the Master’s finding, and if so, it becomes unnecessary to determine to what extent, if any, the original contract could have been modified by parol evidence.
It is therefore our conclusion that the findings of the Master in this respect are supported b.y the record and that the court erred in sustaining plaintiff’s exceptions thereto.
Plaintiff urgently insists that even though there was an agreement to sell at the Anderson’s price that the record fails to disclose what that price was, as well as the price at which defendant actually sold the press to its customers. In discussing this question, the Master said: “The difficulties in ascertaining defendant’s selling price are due primarily not to deficiencies in the defendant’s accounting methods, but to the defendants practice in making sales. The transactions, almost without exception, involve blanket prices for a large amount of equipment; that is, if ten articles were sold, the price of each article was not specified in the contract, but a price was stated for the entire order. * * $ ’>
The Master found, however, and we think properly so, that the Anderson Press, prior to May 28, 1928, was listed at $2,400 and the motor mount and chain drive at $200. It will be remembered that $2,410 was the price reported to plaintiff by the defendant as that of the Anderson Press. The Master, in computing the price of the presses sold by defendant prior to May 28, 1928, with some slight exceptions not now important, charged the defendant $2,610 per press. Defendant excepted to the Master’s report as to $200 of this charge. This amount represented the price of a silent chain transmission which defendant argues was not covered by plaintiff’s patent, was open to the public, and that the defendant had a right to furnish it with any presses sold, whether plaintiff’s or otherwise. We do not think defendant’s position is tenable in this respect. The press driver was a necessary part of the press. It was delivered in connection with plaintiff’s press so that the same was complete and ready to be connected with the motor. It is hardly conceivable that the parties, when they agreed to a modification of the Selling price as fixed in the original agreement, contemplated that that price should be Anderson’s price merely for the naked press without any means of operation. There is no question involved as to whether the press drive is covered by plaintiff’s patent. Assuming it was not, it was attached to, made and sold as a part of, the apparatus covered by the license agreement, and we are of the opinion that defendant was chargeable with such price and that the Master was correct in so determining.
May 28, 1928, defendant gave notice to plaintiff that the press had been redesigned and that subsequent presses would not embody any features of plaintiff’s patent rights,, and that it would not regard the future presses as coming within the contract. After the giving of this notice it appears that the presses were sold for the sum of $2,860, and this was the amount generally charged to defendant by the Master.' It appears that about the time this notice was given, the price of the Anderson press was increased to this amount so that defendant’s selling price remained substantially on a level with that of Anderson’s. Defendant, however, contends that it should not be required to account for any sales made' after the giving of the notice referred to for the reason that the press, as manufactured and sold, does not come within the terms of plaintiff’s patent, and defendant devotes considerable argument in an effort to demonstrate that such is the case. We do not regard this argument as pertinent. In the first place we think it has been decided adversely to defendant’s contention in Appeal No. 4995 (Allbright-Nell Co. v. Stanley Hiller Co., 7 Cir., 72 F.2d 392, 393). In the second place, as already pointed out, this is not a suit for infringement or an accounting for infringement, but upon a contract. Paragraph 1 of the contract in this regard, provides: “Nothing herein contained shall be construed as vesting in Second Party any title to any of said patents and that all improvements, and changes in designs, in the apparatus, machinery or equipment herein dealt with, whether patented or not, shall belong to First Party.”
We think the Master correctly concluded that defendant should account for all presses sold prior to the institution of suit.
Defendant also contends that it was entitled to a credit for certain items the total amount of which is $3648.97. The Master regarded these items as a claim for set-off and refused to allow them for the reason that the defendant had failed to file a counterclaim in compliance with Federal Equity Rule 30, 28 U.S.C.A.- following section 723. We approve the Master’s action in this respect. See Williams v. Bank of America Nat’l Ass’n, 2 Cir., 55 F.2d 884, 889. In this connection, the Master allowed defendant credit for a loan in the sum of $1000 made to plaintiff and expended by it in connection with the manufacture of one of its presses prior to the time the manufacture of such presses had been taken over by the defendant. We think this item was properly allowed.
The Master, in his first report, as well as in the second, allowed plaintiff interest on the amount found owing it. In the first report the interest was calculated at 5% from February 24, 1930, the date the complaint was filed, but omitted one year for a portion of the time spent in litigation. Defendant contends that it is not liable for interest until plaintiff’s damages are liquidated. We do not think it is necessary to review the numerous authorities cited by defendant in support of its contention. They have to do largely with accountings for patent infringement and suits for the recovery of unliquidated damages. This is a suit on a written contract, and we think is governed by Section 2, Chapter 74 of the Revised Statutes of the State of Illinois. Under numerous holdings of this court, we think plaintiff clearly was entitled to interest as allowed by the Master. Morrison v. Rieman, 7 Cir., 261 F. 355, 356; Sanford Coal Co. v. Wisconsin Bridge & Iron Co., 7 Cir., 293 F. 735, 736; McGuire-Cummings Mfg. Co. v. United States Alloy Steel Corp., 7 Cir., 292 F. 832, 837.
We have carefully read the numerous briefs and reply briefs filed by the respective parties and are willing to concede that there are a number of questions argued, especially by the plaintiff with apparent plausibility, but which a careful study discloses are without basis. It would serve no useful purpose for us to prolong this opinion in an effort to discuss and dispose of them. We think we have decided the essential questions in controversy. We are convinced that the Master’s first report came as near doing justice between the parties as could reasonably be hoped for considering the complicated and confused situation with which he was presented.
We conclude that the District Court erred in sustaining plaintiff’s exceptions to that report. Therefore the judgment appealed from is reversed with directions to vacate the court’s order of re-reference and the Master’s second report, to overrule all exceptions to the Master’s first report and to enter judgment in favor of the plaintiff in conformity with said report. The costs of this appeal shall be shared equally by the parties thereto.
“(4) It is understood and agreed that the selling price for all such machinery, equipment and apparatus shall be fixed by mutual agreement between the parties hereto, but in the event of any such agreement not being reached, such sale price shall be not less than twice the actual cost of such articles as the same may be shown by such books and records of Second Party; and the fixing of such prices, if by agreement, shall be in writing and may be changed from time to time in a similar manner.”
“(8) Second Party shall pay to First Party, when and as received by said Second Party on each sale, one-half of the actual net selling price thereof, after first deducting and retaining the actual net cost to it of such article; that is to say, that from the first proceeds from the sale of each article manufactured by Second Party hereunder, it shall first deduct and retain the actual net cost of all labor and material, including overhead properly chargeable to the manufacturing cost of each article, but exclusive of any advertising or sales cost, and all excess of such selling price therefrom shall be divided equally between the parties hereto, collected by Second Party, and one-half thereof paid to First Party when as the same is received, including interest on any deferred or installment payments.”
Gross Income on tlie Hiller Press $173,917.72
Extra Income on the Hiller Press 1,282.05
Total Income ...................... 175,199.77
Total Costs Allowed............... 138,485.65
Profit .............................. 36,714.12
Hiller’s one-half share of profit.. 18,357.06
Interest due on Hiller’s share at 5% from 2/24/30 until 2/24/37, excluding one year of litigation... 5,507.12
Interest due Hiller on deferred payments ........................ 500.00
Total due Hiller on presses as of February 24, 1937................. 24,364.18
Net Total due Hiller as of February 24, 1937, after deducting $1,-000 for Hiller loan._.............. 23,364.18
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_appel2_4_2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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 "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant.
The COUNTY OF SULLIVAN, N. Y. and the Sullivan County Airport Commission, Petitioners, v. CIVIL AERONAUTICS BOARD, Respondent, and The State of New York and Mohawk Airlines, Inc., Intervenors.
No. 467, Docket 35585.
United States Court of Appeals, Second Circuit.
Argued Dec. 3, 1970.
Decided Jan. 4, 1971.
Don W. Crockett, Washington, D. C. (Robert M. Beckman, Washington, D. C., Carl P. Goldstein, Atty., County of Sullivan, Montieello, N. Y., and Theodore Drew, Asst. Sullivan County Atty., Montieello, N. Y., of counsel), for petitioners.
J. Michael Roach, Atty., Civil Aeronautics Board, Washington, D. C. (Richard W. McLaren, Asst. Atty. Gen., Gregory B. Hovendon, Atty., Dept, of Justice, Washington, D. C., R. Tenney Johnson, Gen. Counsel, Civil Aeronautics Board, Washington, D. C., O. D. Ózment, Deputy Gen. Counsel, Warren L. Sharf-man, Associate Gen. Counsel, Litigation and Research, and Robert L. Toomey, Atty., Civil Aeronautics Board, Washington, D. C., of counsel), for respondent.
Philip Weinberg, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., of counsel), for intervenor State of New York.
Raymond J. Rasenberger, Washington, D. C. (Frank J. Costello, Zuckert, Scoutt & Rasenberger, Washington, D. C., of counsel), for intervenor Mohawk Airlines, Inc.
Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.
FRIENDLY, Circuit Judge:
This petition to review an order of the Civil Aeronautics Board concerns the rendition of air service by Mohawk Airlines, Inc. to Liberty/Monticello in Sullivan County, New York, an important resort area in the Catskill Mountains.
Mohawk’s authority to serve Liberty/Monticello, sometimes hereafter referred to as the Sullivan County Airport, dates back to 1952 when the Board granted certificate authority to Mohawk’s corporate predecessor, Robinson Air Corp., Certificate Renewal, 15 C.A. B. 940, 954-955 (1952). Because of the lack of a suitable airport, no service by fixed wing aircraft had been rendered, and a helicopter experiment proved unprofitable. In 1964, with such an airport finally in prospect, the Civil Aeronautics Board renewed this authority for a period terminating October 26, 1967. Mohawk Airlines, Inc., “Use It or Lose It” Investigation, 40 C.A.B. 393, 41 C.A.B. 263 (1964). On April 26, 1967, Mohawk made an application for a further renewal of authority to serve Liberty/Monticello “for three years from the present expiration date” and also to add it as an intermediate point on the carrier’s Boston-Cleveland and Boston-Pittsburgh routes. In one paragraph of the application Mohawk served notice that it “intends to rely upon section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558, and Part 377 of the Board’s Special Regulations.” The prayer for relief read as follows:
Wherefore, Mohawk prays that the Board amend its existing certificate of public convenience and necessity for Route 94 so as to authorize Mohawk to engage in scheduled air transportation as an air carrier of persons, property, and mail as herein-above applied for until October 26, 1970. Mohawk also prays for such other, further, and different relief as the Board may deem appropriate.
The last sentence of § 9(b) of the APA, now 5 U.S.C. § 558(c), provides:
When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.
Mohawk’s renewal application thus effected an extension of its Liberty/Monti-eello authorization beyond October 26, 1967, even though the Board had not acted thereon. The agency approved Mohawk’s failure to institute service until a suitable airport was completed. This was ultimately done, at a cost of over $7 million of federal, state and county funds. Mohawk began service on July 2, 1969. In April, 1970, it informed Sullivan County of its intention to allow the service to lapse on October 26, 1970, when it considered that the renewal of its authority achieved by the combined effect of its 1967 application and the last sentence of § 9(b) of the APA would expire.
The notification had the impact that must have been anticipated. On May 4, 1970, Sullivan County and its Airport Commission filed an application with the Board, apparently under § 401(g) of the Federal Aviation Act, to extend Mohawk’s authority to serve Liberty./Monticello and moved for an immediate hearing. When the Board got around to this on July 16, more than ten weeks later, it granted the motion and set the application for expedited hearing. Although Examiner Fitzmaurice then proceeded with commendable speed, it became apparent by mid-August that the proceeding would not be concluded by October 26, and the Sullivan interests moved, on August 13, that the Board direet Mohawk to continue service until final determination of the § 401(g) proceeding. On September 23, the Board issued an order observing that, for various reasons there stated, “it would be undesirable for Mohawk to discontinue its services during the pendency of the proceeding,” and granted an exemption under § 416(b) permitting the airline to continue to serve Liberty/Montieello until 60 days after final decision in the § 401(g) case. After various conversations, Mohawk informed the Sullivan officials and the Board on October 20 that it did not intend to avail itself of the permission given by the exemption but would discontinue serving the Sullivan County Airport on October 26 when it considered its obligations under the certificate to end.
This led to the motion resulting in the order here under review. The Sullivan authorities promptly made a further application to the Board, arguing that § 9(b) of the APA compelled Mohawk to furnish service until its 1967 renewal application was finally determined, and moving for an order to that end. On October 30 the Board denied the motion on the ground that it was powerless to require Mohawk to render servcie except as a possible outcome of the § 401(g) proceeding. Meanwhile Mohawk had discontinued service on October 26, and Examiner Fitzmaurice had rendered an initial decision in the § 401(g) case adverse to the Sullivan authorities. On November 18, the latter sought discretionary review of the Examiner’s decision under the Board’s Rule 28, 14 C.F. R. § 302.28. In addition, they had also instituted an action for a declaratory judgment and an injunction in the District Court for the Southern District of New York. It was agreed that proceedings there should be suspended pending review of the Board’s October 30 order in this court. The Sullivan authorities filed a petition for such review on November 9, which we heard on December 3.
If Mohawk’s renewal application had been for a period expiring October 26, 1970, simpliciter, the correctness of the Board’s decision would be so clear as not to require extended discussion. The final sentence of § 9(b) says that once a timely and sufficient application for renewal or a new license has been made, no “license with reference to an activity of a continuing nature” shall expire until that application has been finally determined. It does not say that an application for a renewal or a new license imposes an obligation beyond the terms sought, which the applicant does not wish to assume. If the words themselves left any doubt what the sentence meant, the context would remove it. The whole thrust of § 9(b) is to protect applicants and licensees, not to impose unsought obligations upon them. The first sentence directs that license applications shall be heard “within a reasonable time.” The second sentence protects against suspension or revocation unless written notice of the objectionable conduct is given to the licensee and he is afforded an opportunity to comply with all lawful requirements. The final sentence completes the circle by providing that if the licensee has timely sought renewal, the valuable rights conferred by a license for a limited term shall not be lost simply because the agency has not managed to decide the application before expiration of the existing license. As Mr. Justice Burton said, dissenting in Pan-Atlantic Steamship Corp. v. Atlantic Coast Line R.R., 353 U.S. 436, 444-445, 77 S.Ct. 999, 1005, 1 L.Ed.2d 963 (1957), in a passage with which the majority did not express disagreement:
The policy behind the third sentence of § .9(b) is that of protecting those persons who already have regularly issued licenses from the serious hardships occasioned both to them and to the public by expiration of a license before the agency finds time to pass upon its renewal.
S.ee also Attorney General’s Manual on the Administrative Procedure Act 91-92 (1947).
It may well be, although we do not decide the point, that when the holder of a certificate limited in time applies for a renewal for a fixed period, a literal application of the final sentence of § 9(b) of the APA and the public interest considerations mentioned by Mr. Justice Burton would prevent his withdrawing the application or ceasing service before the stipulated date except on authorization granted pursuant to § 401(g) or (j). But it would be stretching the language of the last sentence of § 9(b) outside its reasonable meaning or intended purpose to give it the effect of prolonging through an indefinite period of administrative inaction the authorization of an unwilling licensee beyond the fixed period for which he has sought renewal.
The Sullivan authorities argue that even if that should be so, a different result is required here because of the second sentence in the renewal application, usually dubbed the “catchall” clause, in which Mohawk prayed “for such other, further, and different relief as the Board may deem appropriate.” Examination of the Board’s files would doubtless reveal such precautionary language in certificate applications going back to the agency’s earliest days. The draftsmen of thirty years ago were very likely following equity pleading practice, see, e. g., Form 17 to F.R.Civ.P., without any particularly definite idea what they meant the clause to accomplish. Other practitioners followed their example for safety’s sake. Gradually certain uses did emerge. If a person applied for a permanent certificate but, after hearing, was given a temporary one, the “catchall” would surely protect against an adverse party’s claim of not having been put on proper notice. See, e. g., Salt Lake City—Rapid City Extension Case, 16 C.A.B. 594, 600 (1952). Whether the catchall clause would oblige the applicant to accept such a certificate or would require an applicant for a short-term certificate to accept one of longer duration are different questions, which do not seem to have arisen. An even more important usefulness was in matters of routing and points of service. The Board might decide to grant certain points sought by an applicant but not others, to arrange them in a different way, to impose restrictions against nonstop or turn-around service, or to authorize service to certain points not sought but nevertheless accepted with varying degrees of enthusiasm. The value of a catchall clause' in empowering the Board to authorize routes not specifically requested and in protecting against an adverse party’s claim of lack of notice when the Board gave such an authorization was impressively demonstrated by CAB v. State Airlines, Inc., 338 U.S. 572, 575-577, 70 S.Ct. 379, 94 L.Ed. 353 (1950). Again the issue whether a mere catchall clause would require an applicant to serve an unrequested stop which the Board included in its certificate seems not to have arisen; the applicant in North Central Airlines, Inc. v. CAB, 281 F.2d 18, 108 U.S.App.D.C. 185 (D.C.Cir. 1960), had gone considerably beyond the stereotyped phraseolgy in indicating willingness to serve additional unspecified cities..
The Board would scarcely have been justified and was much less required to read the catchall clause of Mohawk’s 1967 renewal application as expanding timewise the carrier’s extremely specific request for renewal of its authorization to serve Liberty/Monticello on segments 1 and 2 “for three years from the present expiration date.” The catchall clause could scarcely turn such an explicit declaration of desire to serve for a limited period even without a sifting of the facts into an indication of willingness to serve for whatever period the Board might choose to take to determine the renewal application. Mohawk expected that before the end of the specified term it would have had experience in operating to and from the Sullivan County Airport, which was scheduled for completion by June of 1968, and the proof of the pudding would then be in the eating. Mohawk has now had over a year’s experience in serving Liberty/Monticello and considers it a losing proposition. Whatever effect the catchall clause might have had if the Board had acted on the renewal application before October 26, 1970, and had decided to continue the authority beyond that date, or whatever bearing it may have on the Board’s power to force Liberty/Monticello upon Mohawk under § 401(g) if the agency should disagree with its Trial Examiner as to the conclusions to be drawn from the evidence developed in the case brought by Sullivan County under that section, issues on which we intimate no opinion, it did not have the effect of continuing Mohawk’s obligation to serve Liberty/Monticello after October 26, 1970, without an agency determination of any sort.
We therefore deny the petition to review. We also deny a motion for a mandatory injunction to direct the Board to compel continued service by Mohawk. This seems only to be asking the same thing in another way which would pose additional problems.
. Liberty/Monticello was designated as an intermediate point in segment 1 between New York, N. Y./Newark, N. J., and Buffalo and Niagara Falls, N. Y., and on segment 2 between New York, N. Y./Newark, N. J. and northern New York points. The remainder of these two authorizations was permanent.
. The County asserts the airport was “designed to meet all of Mohawk’s requirements.” Mohawk says the airport, especially the large terminal building, went far beyond them.
. If it becomes apparent that the agency will not complete proceedings before the stipulated date and the licensee wishes the license to continue, presumably he can amend his renewal application or file a new one. See 14 C.F.R. § 377.10(c).
. As Mr. Justice Reed pointed out in the opinion in that case, 281 F.2d at 21, the problem is related to but somewhat different from the issue of the Board’s power under § 401(g) [§ 401(h) of the earlier Civil Aeronautics Act of 1938, 52 Stat. 973, 989] to amend an existing certificate to include points the carrier does not wish to serve.
. Examiner Fitzmaurice’s initial decision contains other material indicating Mohawk’s scepticism in early 1967 concerning the Sullivan County operation.
Question: This question concerns the second listed appellant. 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_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.
E. C. SCHROEDER CO., Inc., v. CLARK et al.
No. 3578.
Circuit Court of Appeals, Tenth Circuit.
April 24, 1948.
PHILLIPS, Circuit Judge, dissenting.
James C. Hamill and Reuel W. Little, both of Madill, Okl., for appellant.
Thos. W. Champion and Louis A. Fischl, both of Ardmore, Okl., for appellees.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
This was an action instituted by Virgil Clark, for himself and others similarly situated, against The E. C. Schroeder Company, a corporation, to recover overtime compensation, liquidated damages, and attorney’s fees, under the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. The defendant joined issue. The court entered judgment for plaintiffs; and defendant appealed.
In E. C. Schroeder Co. v. Clifton, 10 Cir., 153 F.2d 385, certiorari denied 328 U.S. 858, 66 S.Ct. 1351, 90 L.Ed. 1629, it was held that employees of the company engaged in the quarrying and processing of stone for gravel cushion and riprap and in the hauling of some of the finished product to the dyke being constructed around the Cumberland Oil Field where crude oil was produced for commerce were entitled to overtime compensation, liquidated damages, and attorney’s fees, under the Act, supra. The plaintiffs here were co-workers with such employees there, all being engaged in performing like duties. On the authority of that case, the judgment is
Affirmed.
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_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Perry Russell TUNNELL, Defendant-Appellant.
No. 72-3787.
United States Court of Appeals, Fifth Circuit.
July 18, 1973.
Rehearing and Rehearing En Banc Denied Oct. 31, 1973.
J. W. Tyner, Jerry Bain, Tyler, Tex., for defendant-appellant.
Roby Hadden, U. S. Atty., Tyler, Tex., Richard P. Slivka, Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Dept, of Justice, Tax Div., Washington, D. C., for plaintiff-appellee.
Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.
AINSWORTH, Circuit Judge.
Perry Russell Tunnell was convicted on each of three counts for willfully attempting to evade federal income tax during the years 1965, 1966, and 1967, in violation of 26 U.S.C. § 7201 (1970). The central issue on appeal concerns the sufficiency of the Government’s evidence based on the net worth method. We affirm.
I.
One of the essential elements which the Government had to prove was that taxpayer owed tax on at least some unreported income for each of the three years named in the indictment. Because taxpayer’s records were inadequate, the Government utilized the so-called “net worth method” described and approved in the leading Supreme Court case of Holland v. United States, 348 U.S. 121, 125, 75 S.Ct. 127, 130, 99 L.Ed. 150 (1954):
In a typical net worth prosecution, the Government, having concluded that the taxpayer’s records are inadequate as a basis for determining income tax liability, attempts to establish an “opening net worth” or total net value of the taxpayer’s assets at the beginning of a given year. It then proves increases in the taxpayer’s net worth for each succeeding year during the period under examination and calculates the difference between the adjusted net values of the taxpayer’s assets at the beginning and end of each of the years involved. The taxpayer’s nondeductible expenditures, including living expenses, are added to these increases, and if the resulting figure for any year is substantially greater than the taxable income reported by the taxpayer for that year, the Government claims the excess represents unreported taxable income. In addition, it asks the jury to infer willfulness from this understatement, when taken in connection with direct evidence of “conduct, the likely effect of which would be to mislead or to conceal.” Spies v. United States, 317 U.S. 492, 499 [63 S.Ct. 364, 368, 87 L.Ed. 418].
See also United States v. Newman, 5 Cir., 1972, 468 F.2d 791, cert. denied, 411 U.S. 905, 93 S.Ct. 1527, 36 L.Ed.2d 194 (1973); Lee v. United States, 5 Cir., 1972, 466 F.2d 11. In the present case the Government determined the correct taxable income and tax to be the amounts set out below, compared to the taxable income and. tax actually reported by Tunnell on his returns, as follows:
Government Determination Tunnell Reported
Year Income Tax Income Tax
1965 $ 9,236.73 $ 971.55 $ 181.52 $ 142.08
1966 35,579.77 5,942.14 2,241.98 113.33
1967 34,783.42 7,738.31 (20,864.63) -0-
To rely on determinations of income by the net worth method, it was necessary that the Government establish Tunnell’s opening net worth at the start of 1965 with reasonable certainty, introduce evidence supporting the inference that his net worth increased due to currently taxable income, and negate all reasonable explanations and leads furnished by Tunnell which were inconsistent with guilt. See Holland, 348 U.S. at 132, 135, 137, 75 S.Ct. at 134-136. In examining the record we find that the Government sustained its burden.
Based on a detailed financial analysis, the Government determined Tunnell’s assets on December 31, 1964 to be $57,686.89, including cash on hand, cash in banks, the Pines Motel and Trailer Park, some farm land he inherited, mobile homes, automobiles, trucks, and deferred expenses. But he had offsetting liabilities of $64,447.55, so the Government set his opening net worth at a deficit of $6,760.66, which we find to. be fully supported by the record. Counsel for taxpayer objected to the Government’s introduction into evidence of tax returns for 1962, 1963, and 1964, and when the jury during its deliberations requested the 1963 and 1964 returns, counsel also objected to the district judge’s allowing the jury to see the returns again. These returns were admissible and could be viewed by the jury at its request, because the small amounts of income reflected in these returns were relevant to corroborate the asserted deficit net worth as of December 31, 1964. The returns consistently showed the taxpayer had little income during the prior three years. Furthermore, the district judge gave the jury a proper limiting instruction that the documents could only be considered for the limited purpose of determining Tunnell’s opening net worth.
The Government showed that the likely source of Tunnell’s net worth increases was from taxable income, as opposed to exempt income, by showing that he could have had income from the Pines Motel other than that reported. Appellant objected to testimony that this motel, in addition to providing the taxable income generally expected, also provided Tunnell with an opportunity for income from prostitution activities. This was necessarily admissible to fulfill the Government’s responsibility under Holland of showing a likely source for the unreported income over the three-year period. Tunnell, himself, volunteered the information to a Government agent that he had two to four girls working for him during all three years of 1965 through 1967 and that he made as much as $12,000 from their prostitution in one year. This income was taxable even if it was unlawful. See James v. United States, 366 U.S. 213, 219, 81 S.Ct. 1052, 1055, 6 L.Ed. 246 (1961).
The only leads furnished by taxpayer as inconsistent with guilt were that he had available $20,000 to $21,000 from the sale of a motel in Galveston during the prior tax year of 1964, that he “floated” checks, and that he borrowed money to live on during the years 1965 through 1967. The sale of the motel was reported on his 1964 return as a loss, and the correctness of that return was not disputed by the Government. Thus no tax was due on the proceeds received from the sale at an amount less than the basis. But contrary to appellant’s assertion in his brief that he had $20,000 available as a result of the sale, testimony by one of two other people with interests in the motel indicates that a promissory note of about $15,000 had to be paid after the sale and the remaining $5,000 from the sale was divided among three people, so that Tunnell probably got less than $2,000.
“Floating” checks was defined as writing a- check in excess of the amount in the bank account but then depositing money from another account in time to cover the check. Evidence indicates that Government agents thoroughly reviewed Tunnell’s assets and liabilities and bank accounts to negate either his borrowing money or his floating checks as sufficient to account for the net worth increases.
II.
As inferred by the Supreme Court from the words “willfully attempts” in the statute, the second and third necessary elements for conviction are evil motive by the defendant Tunnell and an affirmative act to carry out his scheme to evade tax. See 26 U.S.C. § 7201 (1970); Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943). See generally United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). Here the consistent pattern of understating large amounts of income coupled with evidence of inadequate records kept by taxpayer permits an inference of willfulness sufficient to create a jury question. See generally Holland, supra, 348 U.S. at 139, 75 S.Ct. at 137; Holbrook v. United States, 5 Cir., 1954, 216 F.2d 238, cert. denied, 349 U.S. 915, 75 S.Ct. 605, 99 L.Ed. 1249 (1955). The requisite affirmative act can be found in the filing of false tax returns for each year in the indictment.
Appellant raises several other points which we have considered and find to be without merit.
Affirmed.
. Section 7201 reads as follows :
Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.
. This evidence thus differs from that presented in Armes v. Commissioner, 5 Cir., 1971, 448 F.2d 972, 975-976 n. 2, where the evidence of prostitution activities never reached beyond suspicion and innuendo.
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_7-2
|
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 "economic activity and regulation".
Alonzo Wayne TAYLOR, Appellant, v. The WASHINGTON TERMINAL COMPANY, Appellee.
No. 21970.
United States Court of Appeals District of Columbia Circuit.
Argued Dec. 18, 1968.
Decided Feb. 20, 1969.
Petition for Rehearing Denied April 8, 1969.
Mr. James R. Scullen, Washington, D. C., for appellant.
Mr. Stephen A. Trimble, Washington, D. C., with whom Mr. Thomas A. Flannery, Washington, D. C., was on the brief, for appellee.
Before Bazelon, Chief Judge, and Wright and Robinson, Circuit Judges.
J. SKELLY WRIGHT, Circuit Judge:
Appellant Taylor sued appellee railroad under the Federal Employers’ Liability Act for personal injury resulting from appellee’s alleged negligence. A jury returned a verdict of $80,000 for appellant. The railroad moved for a new trial on the ground that the verdict was excessive, and the District Court granted the motion, with the proviso that it should be denied if appellant made a remittitur of $60,000. Appellant refused to make the remittitur, and the case proceeded to a second trial. Again a verdict was returned for appellant, though this time only $25,000 in damages was awarded. On appeal Taylor argues that the trial judge abused his discretion in granting the remittitur. We set aside the District Court’s order of a new trial and order reinstatement of the original verdict for appellant.
I
Appellant Taylor is a fireman employed by appellee, a railroad company which functions primarily as a switching terminal. On July 28, 1963, in the course of his duties, Taylor alighted from a diesel engine which he was inspecting, and after taking a few steps tripped over an electric cable which was lying on the walkway between the tracks. As he fell he struck his arm against a steel water plug. The evidence established to the satisfaction of the jury what is not in dispute here — that the railroad was negligent in allowing the cable to be where it was.
Appellant was taken to a hospital, his arm was placed in a cast, and he was released. He experienced persistent pain in his wrist, and upon the recommendation of two doctors underwent an operation some months later in which his wrist was fused into an immovable joint. Even after the operation, pain and swelling persisted in the wrist, so that he could perform only light duty in his job for some months. During this period he consistently took asprin for relief of the pain.
In August 1965, more than two years after the accident and more than a year after the operation on his wrist, Taylor complained of pains in his stomach. Within a few days he was admitted to the hospital, where he was determined to have a duodenal ulcer. He was hospitalized again in September when the ulcer began to bleed, and in November he underwent an operation in which 75 per cent of his stomach was removed.
After the operation he returned to work and was still working at the time of the first trial in 1967. He experienced intermittent stomach pains, nausea and difficulty in swallowing as well as continuing though not constant pain in his wrist. Appellant showed special damages of something over $10,000 in wages lost and medical expenses, about half of which were attributable to the wrist injury and about half to the ulcer. •
A major issue litigated at trial was the causal relationship between the original injury to appellant’s wrist, with its consequent pain, corrective surgery and medication, and the development of his ulcer. The medical testimony on this question was divided. The railroad doctor who had treated appellant testified that no causal link could be established. A second doctor, who had done research in the field of gastric disorders, testified that in the present state of medical knowledge the cause of a particular ulcer could not be determined with certainty. A third doctor was satisfied that the steady ingestion of salicylates to relieve the pain of the wrist injury, coupled with the stress brought about by that injury, had caused appellant’s ulcer. He gained some support from the second doctor who, while unable to locate a cause of the ulcer, testified that his research had shown aspirin and related medications to accompany the worsening of ulcers.
II
Appellant argues that the trial judge’s order of remittitur at the close of the first trial was an abuse of discretion. Appellee argues first that this question is not properly before us on this appeal, and second that it was within the trial judge’s discretion to find the verdict of $80,000 excessive.
With respect to the railroad’s jurisdictional contention, we find that the remittitur order is properly before us for review. The grant or denial of a new trial is not a final judgment, and hence is not appealable. However, when an appealable final judgment is entered, appeal brings up the entire record for review, including interlocutory orders. Thus the grant of a new trial may be reviewed upon appeal of a judgment granted after the second trial.
A more difficult question is the scope of appellate review of an order granting a new trial. It is by now standard doctrine that such orders may be reviewed for abuse of discretion, even when based upon such broad grounds as the trial judge’s conclusion that the verdict was excessive or was against the weight of the evidence. There has been much discussion of the content which should be given to the elusive phrase “abuse of discretion,” with the weight of learning against appellate reversal except in relatively rare cases.
This learning has largely arisen from consideration of cases in which motions for new trial — especially on the ground of excessive verdict — have been denied. Two factors unite to favor very restricted review of such orders. The first of these is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second factor is the deference properly given to the jury’s determination of such matters of fact as the weight of the evidence and the quantum of damages. This second factor is further weighted by the constitutional allocation to the jury of questions of fact.
Where the jury finds a particular quantum of damages and the- trial judge refuses to disturb its finding on the motion for a new trial, the two factors press in the same direction, and an appellate court should be certain indeed that the award is contrary to all reason before it orders a remittitur or a new trial. However, where, as here, the jury as primary fact-finder fixes a quantum, and the trial judge indicates his view that it is excessive by granting a remittitur, the two factors oppose each other. The judge’s unique opportunity to consider the evidence in the living courtroom context must be respected. But against his judgment we must consider that the agency to whom the Constitution allocates the fact-finding function in the first instance — the jury- — has evaluated the facts differently.
In this, jurisdiction particularly, District Court judges have given great weight to jury verdicts. They have stated that a new trial motion will not be granted unless the “verdict is so unreasonably high as to result in a miscarriage of justice,” or, most recently, unless the verdict is “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.”
At the appellate level, in reviewing a trial judge’s grant of a new trial for excessive verdict, we should not apply the same standard. The trial judge’s view that a verdict is outside the proper range deserves considerable deference. His exercise of discretion in granting the motion is reviewable only for abuse. Thus we will reverse the grant of a new trial for excessive verdict only where the quantum of damages found by the jury was clearly within “the maximum limit of a reasonable range.”
Ill
Here we find that this standard for reversing the grant of a new trial is met. Before the accident, appellant was a man in his middle thirties with a partial disability to his wrist. The accident led to a fusion of the wrist, with consequent pain and appoximately $5,000 worth of special damages, and a further permanent wrist disability. This in itself could not have supported an $80,000 verdict. But on the divided medical testimony the jury could have reasonably concluded that the accident proximately caused him to develop an ulcer. The ulcer caused considerable pain and discomfort, and led eventually to the removal of 75 per cent of appellant’s stomach.
Thus the jury could reasonably have awarded substantial general damages for the pre-trial period alone, based on pain and suffering. Further, there was testimony that a 10 per cent chance of the ulcer’s recurrence remained. Projecting the pain and suffering, the anxiety, and the loss of enjoyment of life reasonably traceable to this stomach condition over appellant’s life expectancy, it would be difficult to conclude that an $80,000 award was not clearly within the range of reasonable jury verdicts. And where as here it is clear that the jury has stayed within the reasonable range, the deference due its findings of fact outweighs the deference due the trial judge’s first hand review of the evidence. Accordingly, the judgment must be vacated, the order granting the second trial must be set aside, and judgment must be entered on the verdict returned at the first trial.
So ordered.
. 45 U.S.C. §§ 51-60 (1964).
. Rule 59(a), Fed.R.Civ.P., provides in pertinent part:
“A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States * *
. Appellant also raises statutory and constitutional arguments against the device of remittitur which, in view of our disposition of the case, we do not reach.
. Appellant had a pre-existing 25 per cent permanent disability in his wrist. The fusion operation left him with a 40 per cent permanent disability.
. 6A J. Moore, Federal Practice If 59.-15 [1], pp. 3891-3892 (2d ed. 1966).
. Id., If 59.15 [3], p. 3901.
. 3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1302.1, p. 346 (Wright ed. 1958).
. All Circuits except the Eighth have recognized this power of review. 3 W. Barron & A. Holtzoff, supra Note 7, § 1302.1, pp. 349-350; 6A J. Moore, supra Note 5, 59.08 [6], pp. 3836-3840.
. A popular slogan is that the appellate court should reverse the trial court’s denial of a motion for a new trial on the ground of excessive verdict only when the damage award is “monstrous.” See Affolder v. New York, Chicago & St. Louis R. Co., 339 U.S. 96, 101, 70 S.Ct. 509, 94 L.Ed. 683 (1950). Professor Charles Wright has been a leading exponent of extremely limited review of trial judges’ dispositions of motions for new trial. See Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751 (1957).
. The discussions of reviewability of dispositions of motions for new trial on the ground of excessive verdict in Wright, supra Note 9, 3 W. Barron & A. I-Ioltzoee, supra Note 7, § 1302.1, and 6A J. Moore, supra Note 5, 1 59.08 [6], are almost entirely in terms of the desirability or undesirability of appellate review of damage awards set by juries and left undisturbed by trial courts.
. 6A J. Moore, supra Note 5, 1f 59.05 [5].
. Barron and Holtzoff (for whom Professor Wright is the reviser) note that appellate decisions reversing trial courts’ denials of new trials on grounds of excessive verdict “are difficult to reconcile with the Seventh Amendment, which provides that ‘no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the common law.’ * * * ” 3 W. Barron & A. Holtzoee, supra Note 7, § 1302.1, p. 350.
. In taking this approach, we follow the lead taken by the Third Circuit en bane in a similar case. In Lind v. Schenley Industries, Inc., 278 F.2d 79, cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960), that court reversed a trial court’s grant of a new trial because the verdict was against the weight of the evidence. The court distinguished between cases where a new trial is granted because of some legal error and cases in which the trial judge simply reweighed evidence already submitted to a jury. In cases of the latter sort (in which grants of new trials for excessive general damages must be included), “the [trial] judge takes over, if he does not usurp, the prime function of the jury as the trier of the facts. It then becomes the duty of the appellate tribunal to exercise a closer degree of scrutiny and supervision than is the caso where a new trial is granted because of some undesirable or pernicious influence obtruding into the trial. Such a close scrutiny is required in order to protect the litigants’ right to jury trial.” 278 F.2d at 90.
. Frank v. Atlantic Greyhound Corp., D.D.C., 172 F.Supp. 190, 191 (1959).
. Graling v. Reilly, D.D.C., 214 F.Supp. 234, 235 (1963).
. Appellee urges us to affirm the remittitur order on two alternate theories. The first is the usual one for remittitur: that on all the evidence properly before the jury, taken in the best light for plaintiff, the verdict was outside a reasonable range. The second is a novel combination of two traditional grounds for grant of a new trial: that while there was sufficient evidence that the ulcer was proximately caused by the accident for the jury to consider that question, its apparent conclusion that such a causal link existed was against the weight of the evidence, so that the portion of the verdict attributable to the ulcer might reasonably be ordered remitted under threat of a new trial.
We have found no cases holding, and no scholarly comment suggesting, that a remittitur can be ordered because part of the quantum is attributable to a factual inference which the trial judge thinks is against the weight of the evidence. In the absence of any statement by the trial judge that he was relying on any such novel ground, we decline to construct a new theory for granting a new trial at the appellate level. Rule 59 permits the grant of a new trial only “for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States * * See Note 2, supra.
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:
|
sc_petitioner
|
021
|
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.
HORTONVILLE JOINT SCHOOL DISTRICT NO. 1 et al. v. HORTONVILLE EDUCATION ASSN. et al.
No. 74-1606.
Argued February 23-24, 1976
Decided June 17, 1976
Burger, C. J., delivered the opinion of the Court, in which "White, Blacemun, Powell, RehNQUist, and SteveNS, JJ., joined. Stewart, J., filed a dissenting opinion, in which BreNNAN and Marshall, JJ., joined, post, p. 497.
Jack D. Walker argued the cause for petitioners. With him on the briefs were James K. Ruhly and Joseph A. Melli.
Robert H. Friebert argued the cause for respondents. With him on the brief was Thomas W. St. John.
Briefs of amici curiae urging reversal were filed by James F. Clark and Karen A. Mercer for the Wisconsin Association of School Boards, Inc.; by Leon Fieldman for the National School Boards Assn.; by Robert T. Thompson, Lawrence Kraus, and Richard B. Berman for the Chamber of Commerce of the United States; and by Jerome T. Foerster for the Pennsylvania School Boards Assn.
Michael H. Oottesman, Robert M. Weinberg, and David Rubin filed a brief for the National Education Assn, as amicus curiae urging affirmance.
John E. Murray filed a brief for the County of Broome, State of New York, as amicus curiae.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari in this case to determine whether School Board members, vested by state law with the power to employ and dismiss teachers, could, consistent with the Due Process Clause of the Fourteenth Amendment, dismiss teachers engaged in a strike prohibited by state law.
I
The petitioners are a Wisconsin school district, the seven members of its School Board, and three administrative employees of the district. Respondents are teachers suing on behalf of all teachers in the district and the Hortonville Education Association (HEA), the collective-bargaining agent for the district's teachers.
During the 1972-1973 school year Hortonville teachers worked under a master collective-bargaining agreement; negotiations were conducted for renewal of the contract, but no agreement was reached for the 1973-1974 school year. The teachers continued to work while negotiations proceeded during the year without reaching agreement. On March 18, 1974, the members of the teachers’ union went on strike, in direct violation of Wisconsin law. On March 20, the district superintendent sent all teachers a letter inviting them to return to work; a few did so. On March 23, he sent another letter, asking the 86 teachers still on strike to return, and reminding them that strikes by public employees were illegal; none of these teachers returned to work. After conducting classes with substitute teachers on March 26 and 27, the Board decided to conduct disciplinary hearings for each of the teachers on strike. Individual notices were sent to each teacher setting hearings for April 1, 2, and 3.
On April 1, most of the striking teachers appeared before the Board with counsel. Their attorney indicated that the teachers did not want individual hearings, but preferred to be treated as a group. Although counsel agreed that the teachers were on strike, he raised several procedural objections to the hearings. He also argued that the Board was not sufficiently impartial to exercise discipline over the striking teachers and that the Due Process Clause of the Fourteenth Amendment required an independent, unbiased decisionmaker. An offer of proof was tendered to demonstrate that the strike had been provoked by the Board’s failure to meet teachers’ demands, and respondents’ counsel asked to cross-examine Board members individually. The Board rejected the request, but permitted counsel to make the offer of proof, aimed at showing that the Board’s contract offers were unsatisfactory, that the Board used coercive and illegal bargaining tactics, and that teachers in the district had been locked out by the Board.
On April 2, the Board voted to terminate the employment of striking teachers, and advised them by letter to that effect. However, the same letter invited all teachers on strike to reapply for teaching positions. One teacher accepted the invitation and returned to work; the Board hired replacements to fill the remaining positions.
Respondents then filed suit against petitioners in state court, alleging, among other things, that the notice and hearing provided them by the Board were inadequate to comply with due process requirements. The trial court granted the Board’s motion for summary judgment on the due process claim. The court found that the teachers, although on strike, were still employees of the Board under Wisconsin law and that they retained a property interest in their positions under this Court’s decisions in Perry v. Sindermann, 408 U. S. 593 (1972), and Board of Regents v. Roth, 408 U. S. 564 (1972). The court concluded that the only question before the Board on April 1 and 2 was whether the teachers were on strike in violation of state law, and that no evidence in mitigation was relevant. It rejected their claim that they were denied due process, since the teachers admitted they were on strike after receiving adequate notice and a hearing, including the warning that they were in violation of Wisconsin law.
On appeal, the Wisconsin Supreme Court reversed, 66 Wis. 2d 469, 225 N. W. 2d 658 (1975). On the single issue now presented it held that the Due Process Clause of the Fourteenth Amendment to the Federal Constitution required that the teachers’ conduct and the Board’s response be evaluated by an impartial de-cisionmaker other than the Board. The rationale of the Wisconsin Supreme Court appears to be that although the teachers had admitted being on strike, and although the strike violated Wisconsin law, the Board had available other remedies than dismissal, including an injunction prohibiting the strike, a call for mediation, or continued bargaining. Relying on our holding in Morrissey v. Brewer, 408 U. S. 471 (1972), the Wisconsin court thén held “it would seem essential, even in cases of undisputed or stipulated facts, that an impartial decision maker be charged with the responsibility of determining what action shall be taken on the basis of those facts.” 66 Wis. 2d, at 493, 225 N. W. 2d, at 671. The court held that the Board was not sufficiently impartial to make this choice: “The background giving rise to the ultimate facts in this case reveals a situation not at all conducive to detachment and impartiality on the part of the school board.” Ibid. In reaching its conclusion, the court acknowledged that the Board’s decision could be reviewed in other forums; but no reviewing body would give the teachers an opportunity to demonstrate that “another course of action such as mediation, injunction, continued collective bargaining or arbitration would have been a more reasonable response on the part of the decision maker.” Id., at 496, 225 N. W. 2d, at 672.
Since it concluded that state law provided no adequate remedy, the Wisconsin Supreme Court fashioned one it thought necessary to comply with federal due process principles. To leave with the Board “[a]s much control as possible... to set policy and manage the school,” the court held that the Board should after notice and hearing make the decision to fire in the first instance. A teacher dissatisfied with the Board’s decision could petition any court of record in the county for a de novo hearing on all issues; the trial court would “resolve any factual disputes and provide for a reasonable disposition.” Id., at 498, 225 N. W. 2d, at 673. The Wisconsin Supreme Court recognized that this remedy was “not ideal because a court may be required to make public policy decisions that are better left to a legislative or administrative body.” Ibid. But it would suffice “until such time and only until such time as the legislature provides a means to establish a forum that will meet the requirements of due process.” Ibid.
We granted certiorari because of the state court’s reliance on federal due process. 423 U. S. 821 (1975). We reverse.
II
The Hortonville School District is a common school district under Wisconsin law, financed by local property taxes and state school aid and governed by an elected seven-member School Board. Wis. Stat. Ann. §§ 120.01, 120.03, 120.06 (1973). The Board has broad power over “the possession, care, control and management of the property and affairs of the school district.” § 120.12 (1) ; see also §§ 120.08, 120.10, 120.15-120.17. The Board negotiates terms of employment with teachers under the Wisconsin Municipal Employment Relations Act, § 111.70 et seg. (1974), and contracts with individual teachers on behalf of the district. The Board is the only body vested by statute with the power to employ and dismiss teachers. § 118.22 (2).
The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment prohibits this School Board from making the decision to dismiss teachers admittedly engaged in a strike and persistently refusing to return to their duties. The Wisconsin Supreme Court held that state law prohibited the strike and that termination of the striking teachers’ employment was within the Board’s statutory authority. 66 Wis. 2d, at 479-481, 225 N. W. 2d, at 663-665. We are, of course, bound to accept the interpretation of Wisconsin law by the highest court of the State. Groppi v. Wisconsin, 400 U. S. 505, 507 (1971); Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688 (1959). The only decision remaining for the Board therefore involved the exercise of its discretion as to what should be done to carry out the duties the law placed on the Board.
A
Respondents argue, and the Wisconsin Supreme Court held, that the choice presented for the Board’s decision is analogous to that involved in revocation of parole in Morrissey v. Brewer, supra, that the decision could be made only by an impartial decisionmaker, and that the Board was not impartial. In Morrissey the Court considered a challenge to state procedures employed in revoking the parole of state prisoners. There we noted that the parole revocation decision involved two steps: First, an inquiry whether the parolee had in fact violated the conditions of his parole; second, determining whether the violations found were serious enough to justify revocation of parole and the consequent deprivation of the parolee’s conditional liberty. With respect to the second step, the Court observed:
“The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.” 408 U. S., at 480.
Nothing in this case is analogous to the first step in Morrissey, since the teachers admitted to being on strike. But respondents argue that the School Board’s decision in this case is, for constitutional purposes, the same as the second aspect of the decision to revoke parole. The Board cannot make a “reasonable” decision on this issue, the Wisconsin Supreme Court held and respondents argue, because its members are biased in some fashion that the due process guarantees of the Fourteenth Amendment prohibit.
Morrissey arose in a materially different context. We recognized there that a parole violation could occur at a place distant from where the parole revocation decision would finally be made; we also recognized the risk of factual error, such as misidentification. To minimize this risk, we held: “[D]ue process requires that after the arrest [for parole violation], the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case.” Id., at 485. But this holding must be read against our earlier discussion in Morrissey of the parole officer's role as counselor for and confidant of the parolee; it is this same officer who, on the basis of preliminary information, decides to arrest the parolee. A school board is not to be equated with the parole officer as an arresting officer; the school board is more like the parole board, for it has ultimate plenary authority to make its decisions derived from the state legislature. General language about due process in a holding concerning revocation of parole is not a reliable basis for dealing with the School Board's power as an employer to dismiss teachers for cause. We must focus more clearly on, first, the nature of the bias respondents attribute to the Board, and, second, the nature of the interests at stake in this case.
B
Respondents’ argument rests in part on doctrines that have no application to this case. They seem to argue that the Board members had some personal or official stake in the decision whether the teachers should be dismissed, comparable to the stake the Court saw in Turney v. Ohio, 273 U. S. 510 (1927), or Ward v. Village of Monroeville, 409 U. S. 57 (1972); see also Gibson v. Berryhill, 411 U. S. 564 (1973), and that the Board has manifested some personal bitterness toward the teachers, aroused by teacher criticism of the Board during the strike, see, e. g., Taylor v. Hayes, 418 U. S. 488 (1974); Mayberry v. Pennsylvania, 400 U. S. 455 (1971). Even assuming that those cases state the governing standards when the decisionmaker is a public employer dealing with employees, the teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity. The Wisconsin Supreme Court was careful “not to suggest... that the board members were anything but dedicated public servants, trying to provide the district with quality education... within its limited budget.” 66 Wis. 2d, at 494, 225 N. W. 2d, at 671. That court’s analysis would seem to be confirmed by the Board’s repeated invitations for striking teachers to return to work, the final invitation being contained in the letter that notified them of their discharge.
The only other factor suggested to support the claim of bias is that the School Board was involved in the negotiations that preceded and precipitated the striking teachers’ discharge. Participation in those negotiations was a statutory duty of the Board. The Wisconsin Supreme Court held that this involvement, without more, disqualified the Board from deciding whether the teachers should be dismissed:
“The board was the collective bargaining agent for the school district and thus was engaged in the collective bargaining process with the teachers' representative, the HEA. It is not difficult to imagine the frustration on the part of the board members when negotiations broke down, agreement could not be reached and the employees resorted to concerted activity.... They were... not uninvolved in the events which precipitated decisions they were required to make.” Id., at 493-494, 225 N. W. 2d, at 671.
Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. Withrow v. Larkin, 421 U. S. 35, 47 (1975); FTC v. Cement Institute, 333 U. S. 683, 700-703 (1948). Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not “capable of judging a particular controversy fairly on the basis of its own circumstances.” United States v. Morgan, 313 U. S. 409, 421 (1941); see also FTC v. Cement Institute, supra, at 701.
Respondents’ claim and the Wisconsin Supreme Court’s holding reduce to the argument that the Board was biased because it negotiated with the teachers on behalf of the school district without reaching agreement and learned about the reasons for the strike in the course of negotiating. From those premises the Wisconsin court concluded that the Board lost its statutory power to determine that the strike and persistent refusal to terminate it amounted to conduct serious enough to warrant discharge of the strikers. Wisconsin statutes vest in the Board the power to discharge its employees, a power of every employer, whether it has negotiated with the employees before discharge or not. The Fourteenth Amendment permits a court to strip the Board of the otherwise unremarkable power the Wisconsin Legislature has given it only if the Board’s prior involvement in negotiating with the teachers means that it cannot act consistently with due process.
C
Due process, as this Court has repeatedly held, is a term that “negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961). Determining what process is due in a given setting requires the Court to take into account the individual’s stake in the decision at issue as well as the State’s interest in a particular procedure for making it. See Mathews v. Eldridge, 424 U. S. 319 (1976); Arnett v. Kennedy, 416 U. S. 134, 168 (1974) (Powell, J., concurring) ; id., at 188 (White, J., concurring and dissenting); Goldberg v. Kelly, 397 U. S. 254, 263-266 (1970). Our assessment of the interests of the parties in this case leads to the conclusion that this is a very different case from Morrissey v. Brewer, and that the Board’s prior role as negotiator does not disqualify it to decide that the public interest in maintaining uninterrupted classroom work required that teachers striking in violation of state law be discharged.
The teachers’ interest in these proceedings is, of course, self-evident. They wished to avoid termination of their employment, obviously an important interest, but one that must be examined in light of several factors. Since the teachers admitted that they were engaged in a work stoppage, there was no possibility of an erroneous factual determination on this critical threshold issue. Moreover, what the teachers claim as a property right was the expectation that the jobs they had left to go and remain on strike in violation of law would remain open to them. The Wisconsin court accepted at least the essence of that claim in defining the property right under state law, and we do not quarrel with its conclusion. But even if the property interest claimed here is to be compared with the liberty interest at stake in Morrissey, we note that both “the risk of an erroneous deprivation” and “the degree of potential deprivation” differ in a qualitative sense and in degree from those in Morrissey. Mathews v. Eldridge, supra, at 341.
The governmental interests at stake in this case also differ significantly from the interests at stake in Mor-rissey. The Board’s decision whether to dismiss striking teachers involves broad considerations, and does not in the main turn on the Board’s view of the “seriousness” of the teachers’ conduct or the factors they urge mitigated their violation of state law. It was not an adjudicative decision, for the Board had an obligation to make a decision based on its own answer to an important question of policy: What choice among the alternative responses to the teachers’ strike will best serve the interests of the school system, the interests of the parents and children who depend on the system, and the interests of the citizens whose taxes support it? The Board’s decision was only incidentally a disciplinary decision; it had significant governmental and public policy dimensions as well. See Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L. J. 1156 (1974).
State law vests the governmental, or policymaking, function exclusively in the School Board and the State has two interests in keeping it there. First, the Board is the body with overall responsibility for the governance of the school district; it must cope with the myriad day-to-day problems of a modern public school system including the severe consequences of a teachers’ strike; by virtue of electing them the constituents have declared the Board members qualified to deal with these problems, and they are accountable to the voters for the manner in which they perform. Second, the state legislature has given to the Board the power to employ and dismiss teachers, as a part of the balance it has struck in the area of municipal labor relations; altering those statutory powers as a matter of federal due process clearly changes that balance. Permitting the Board to make the decision at issue here preserves its control over school district affairs, leaves the balance of power in labor relations where the state legislature struck it, and assures that the decision whether to dismiss the teachers will be made by the body responsible for that decision under state law.
Ill
Respondents have failed to demonstrate that the decision to terminate their employment was infected by the sort of bias that we have held to disqualify other decisionmakers as a matter of federal due process. A showing that the Board was “involved” in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmak-ing power. Cf. Withrow v. Larkin, 421 U. S., at 47. Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment did not guarantee respondents^ that the decision to terminate their employment would be made or reviewed by a body other than the School Board.
The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
The National School Boards Association informs us that 45 States lodge the power to dismiss teachers in local school boards. Brief as Amicus Curiae 9 n. 4.
The Wisconsin Supreme Court held that the discharge of the teachers during their 1973-1974 individual contracts, and the revocation of the Board’s individual offers of employment for the 1974W975 school year, deprived them of property. 66 Wis. 2d 469, 489, 225 N. W. 2d 658, 669 (1975). “Property interests... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits....” Board of Regents v. Roth, 408 U. S. 564, 577 (1972). We do not challenge the Wisconsin Supreme Court’s conclusion that state law gave these teachers a “legitimate claim of entitlement to job tenure.” Perry v. Sindermann, 408 U. S. 593, 602 (1972).
We are not required to determine whether the notice and hearing afforded by the Board, as matters separate from the Board’s ability fairly to decide the issue before it, were adequate to afford respondents due process. Respondents do not suggest here that the notice they received was constitutionally inadequate, and they refused to treat the dismissals on a case-by-case basis.
Respondents argue
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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sc_casesource
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158
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
PALMER OIL CORP. et al. v. AMERADA PETROLEUM CORP. et al.
NO. 301.
Continued November 5, 1951.
Coleman Hayes, Mark H. Adams and Charles E. Jones for appellants in No. 301.
Reford Bond, Jr. for appellants in No. 302.
Harry D. Page íor the Amerada Petroleum Corporation; Earl A. Brown, Robert W. Richards and Charles B. Wallace for the ivfagnolia Petroleum Co.; M. D. Kirlifor the Sunray Oil Corporation; and Rayburn L. Foster, Harry Turner and R. M. Williams for the Phillips Petro- - leum Co., appellees.
Per Curiam.
The Court is advised that, on May 26, 1951, the Oklahoma Legislature repealed Okla. Stat., 1941 (Cum. Supp. 1949), Tit. 52, §§ 286.1-286.17, the constitutionality of which is drawn in question by these appeals. The causes are therefore ordered/ continued for such period as will enable appellants with all convenient speed to secure in an appropriate state proceeding a determination as to the effect of this repeal on the matters raised in these appeals.
Cause' continued.
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
In the Matter of Grand Jury Witness Charles Joseph BATTAGLIA. Charles Joseph BATTAGLIA, Witness, Appellant, v. UNITED STATES of America, Appellee.
No. 81-5339.
United States Court of Appeals, Ninth Circuit.
Submitted May 18, 1981.
Decided August 20, 1981.
Rehearing Denied Oct. 5,1981.
Hirsh & Bayles, Tuscon, Ariz., for appellant.
Paul Corradini, Phoenix, Ariz., for appellee.
Before GOODWIN, ANDERSON and FERGUSON, Circuit Judges.
GOODWIN, Circuit Judge.
Charles Joseph Battaglia appeals a judgment of civil contempt. He was adjudged a recalcitrant witness for failing to answer certain questions before the grand jury, despite his claim that he was unable to remember the events in question.
In October 1978 Battaglia was indicted for mail fraud, conspiracy, and several drug-related offenses. In January 1979 he entered into a plea bargain pursuant to which he pleaded guilty to one count, the other counts were dismissed, and he agreed to testify as to the “involvement of Joseph Rae in the events underpinning the indictment.”
The government first sought Battaglia’s testimony in July 1979 when he was incarcerated at the United States Medical Center for Federal Prisoners at Springfield, Missouri. His testimony was postponed at the request of the prison officials because Battaglia was suffering from heart disease. During the summer and fall of 1979 the prison authorities continued to recommend that Battaglia not be required to testify.
After his release on parole, Battaglia was served with a subpoena to appear in May 1980 before the grand jury. He moved to quash the subpoena on the ground that the strain of testifying would endanger his life. Battaglia was examined by a government physician who agreed that there was a significant health risk. Consequently, although the district court refused to quash the subpoena, it ordered that Battaglia’s physician be permitted to stand outside the grand jury room door and that the proceeding be halted at Battaglia’s request.
Upon appearing before the grand jury on October 21, 1980, Battaglia stated that his memory was impaired by the drugs he had been taking for his heart condition, but he would try to answer the questions to the best of his ability. After a few minutes, Battaglia’s physician informed the United States Attorney that it was unsafe for Battaglia to continue, and the proceeding was halted.
On December 4, 1980, Battaglia was ordered to submit written answers to questions propounded by the government in lieu of a personal appearance before the grand jury. The government propounded a set of 55 questions relating to Rae’s involvement in a criminal scheme. In his written responses, Battaglia gave answers that failed to satisfy the government attorneys and they applied for an order to show cause why Battaglia should not be declared a recalcitrant witness under 28 U.S.C. § 1826.
At the hearing before the district court on the order to show cause, Battaglia argued that he had not been given notice of the answers which the government deemed insufficient. The court agreed and ordered the government to specify the answers with which it was not satisfied. Battaglia’s supplemental answers stated in slightly greater detail his inability to remember. Battaglia also pointed out that an FBI report of an interview with him concerning the scheme was inconsistent with the transcript of surreptitiously recorded conversations of his also concerning the scheme. Because of the inconsistency, he stated it was difficult for him to remember what had actually transpired.
At a second hearing on the order to show cause the government argued that Battaglia had the burden of proving that his answers were truthful. The court apparently adopted the government’s view of the burden of proof. In an attempt to comply with the court’s Understanding of the burden of proof, Battaglia presented testimony by a clinical psychologist and a clinical pharmacologist.
The psychologist, who had given Battaglia a battery of tests that morning, concluded that there was evidence of short-term memory impairment. He also found that Battaglia’s overall mental capabilities had “substantially” slipped from his native ability. The psychologist did not find gross indications of remote memory loss, but testified that Battaglia did not do well on one portion of an examination which would indicate remote memory loss. The psychologist testified that he did not believe that Battaglia was malingering because an untrained person would not know which answers to which questions would produce a desired result.
The pharmacologist testified on the possible effects of the drugs Battaglia was taking, Inderal and Demerol. He testified that there is some indication that Inderal causes short-term memory loss. He also testified that the drug causes depression, a symptom of which is memory impairment. He specifically testified that there is a possibility, although not a probability, that Inderal will cause long-term memory loss.
The pharmacologist testified that Demerol is a narcotic that depresses the central nervous system. A depressant adversely affects the memory function of a person under its influence. Moreover, the witness said animal experiments had shown that Inderal and Demerol, when taken together, will have a greater effect than one would expect from the simple addition of their individual effects.
Subsequently, the court found Battaglia to be a recalcitrant witness pursuant to 28 U.S.C. § 1826 and ordered him confined until such time as he answered the questions in a nonevasive manner. The court concluded that Battaglia’s claim of loss of memory was made in bad faith. It based its conclusion on the following facts: (1) Battaglia’s personal physician did not testify as to memory loss; (2) Battaglia presented no evidence from family or friends that he was suffering from memory loss; (3) the expert testimony related only to short-term memory loss and the possibility, not probability, of long-term memory loss; (4) Battaglia did not stress the alleged memory problems until he was ordered to answer the written questions; (5) Battaglia had no problem answering nonincriminating questions; and (6) Battaglia’s demeanor on the stand was evasive.
I. Applicability of the Statute
“Whenever a witness in any proceeding before ... [a] grand jury of the United States refuses without just cause shown to comply with an order of the court to testify . . . the court . . . may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony . . . .” 28 U.S.C. § 1826.
Battaglia contends that a witness’ false assertion that he does not remember does not constitute a refusal to testify within the meaning of the statute, but is an act of perjury. As perjury, Battaglia argues, it can be punished as contempt only upon a showing, not made here, that the perjury obstructed the performance of the court’s duties. See Ex Parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Collins v. United States, 269 F.2d 745, 750 (9th Cir. 1959), cert. denied, 362 U.S. 912, 80 S.Ct. 662, 4 L.Ed.2d 620 (1960).
A witness who testified that he does not remember an event can be convicted of perjury if it can be proven beyond a reasonable doubt that he does, in fact, remember the event. United States v. Ponticelli, 622 F.2d 985 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980). Battaglia assumes that this ends the inquiry. It does not. Wrongful conduct can be proscribed by more than one statute. Hence the real question is whether a false assertion of a lapse of memory constitutes a refusal to testify, in addition to setting the stage for a possible perjury prosecution.
The government cites no case that expressly holds that either general evasiveness or a false assertion of memory loss constitutes a refusal to testify within the meaning of 28 U.S.C. § 1826. In Martin-Trigona v. Gouletas, 634 F.2d 354 (7th Cir. 1980), the Seventh Circuit affirmed a district court order finding appellant to be a recalcitrant witness upon a finding that the asserted memory loss was false. The issue in that case, however, appears to be whether the district court’s finding of falsity was clearly erroneous, not whether the behavior was proscribed by 28 U.S.C. § 1826. Id. at 357. Nevertheless, we are satisfied that a false assertion of memory loss does constitute a refusal to testify.
Although 28 U.S.C. § 1826 is a relatively new statute, it was intended to codify the common law of civil contempt. Gelbard v. United States, 408 U.S. 41, 42 n. 1, 92 S.Ct. 2357, 2358, n.1, 33 L.Ed.2d 179 (1972); United States v. Alter, 482 F.2d 1016, 1022 (9th Cir. 1973). There are many cases predating the enactment of § 1826 that treat a false assertion of inability to answer as a refusal to answer. See, e. g., Richardson v. United States, 273 F.2d 144, 147 (8th Cir. 1959) (“Courts have recognized that testimony false and evasive on its face is the equivalent of refusing to testify at all.”) Life Music, Inc. v. Broadcast Music, Inc., 41 F.R.D. 16, 24 (S.D.N.Y.1966) (“A court ought not to be put off by transparent sham, and the mere fact that the witness gives some answer cannot be an absolute test.” (quoting from United States v. Appell, 211 F. 495 (S.D.N.Y.1913)).)
Three important policy considerations argue for this construction of the statute. First, if an evasive answer were not equated with a refusal to answer, even the most transparently false assertion of “I don’t remember” would be sufficient to avoid the recalcitrant witness statute. Second, even when a perjury prosecution would be appropriate, the government may be more interested in producing truthful testimony by use of § 1826 than in obtaining a criminal conviction for perjury. Third, the public, through our justice system, has a right to every person’s evidence in our search for the truth. See United States v. Nixon, 418 U.S. 683, 709-710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). A concocted evasive or false “I don’t remember” answer would provide an easy avenue for the reluctant witness to escape this high obligation with impunity.
II. Sufficiency of the Evidence
Battaglia also contends that the evidence was insufficient to support the finding that he falsely asserted that he did not remember. We do not reach this question because the allocation of the burden of proof to Battaglia instead of to the government requires a remand.
In a civil contempt proceeding, the contempt must be proved by clear and convincing evidence. United States v. Powers, 629 F.2d 619, 626 n.6 (9th Cir. 1980). The standard appears to be higher than the preponderance of the evidence standard, applicable to most civil cases, but lower than the beyond a reasonable doubt standard, applicable to criminal contempt proceedings. Id.
A civil contempt proceeding on a witness’ asserted memory loss requires a three-step analysis that shifts the burden of production to the witness, but always leaves the burden of proof with the government. First, the government must make a prima facie showing of contempt; i. e., that it made an authorized request for information, that the information was relevant to the proceedings, that the information was not already in the possession of the government, and that the witness did not comply. See, e. g., United States v. Hankins, 565 F.2d 1344, 1351 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979).
Second, once the government has presented its prima facie case, the witness must provide some explanation on the record for his failure to comply. See United States v. O’Henry’s Film Works, Inc., 598 F.2d 313, 318 (2nd Cir. 1979). If the witness fails to meet this “burden of producing evidence,” the government’s prima facie case is sufficient to meet its burden of proof for a finding of contempt. See, N.L.R.B. v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 617-18 (9th Cir. 1973). The witness may meet his burden, however, where, as here, he testifies that he does not remember the events in question.
Finally, if the witness meets his burden of production by claiming a loss of memory, the government must carry its burden of proof for a finding of contempt by demonstrating that the witness in fact did remember the events in question, thereby establishing a willful failure to comply. See, United States v. Hansen Niederhauser Co., Inc., 522 F.2d 1037, 1040 (10th Cir. 1975); United States v. Rizzo, 539 F.2d 458, 465-66 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 266-67 (W.D.Mo.1971); see generally, Mullaney v. Wilbur, 421 U.S. 684, 703 n.31, 95 S.Ct. 1881, 1892, n.31, 44 L.Ed.2d 508 (1975).
In N.L.R.B. v. Trans Ocean Export Packing, Inc., supra, at 616, we said:
“[Although inability to comply with a judicial decree constitutes a defense to a charge of civil contempt, . . . the federal rule is that one petitioning for an adjudication of civil contempt does not have the burden of showing that the respondent has the capacity to comply.... The contrary burden is upon the respondent. To satisfy this burden the respondent must show ‘categorically and in detail’ why he is unable to comply. . . . Since the Board did not have the burden of proof as to respondents’ ability to comply, it was under no obligation to allege such ability in its petitions to this court.”
Trans Ocean can be distinguished, however, because the respondent in Trans Ocean presented no proof of his inability to comply with the order. Consequently, the Trans Ocean court may have been referring to the burden of production rather than the burden of persuasion. By contrast, Battaglia has explained why he cannot comply. The quoted passage from Trans Ocean was in response to respondent’s erroneous contention that the government bore the burden of pleading and proving in its prima facie case that respondent possessed the ability to comply with the order. Battaglia makes no such contention here.
Other courts have held that in a contempt proceeding, where the defendant introduces evidence of inability to comply, the government has the burden of proving ability to comply. See, e. g., United States v. Rizzo, 539 F.2d 458 (5th Cir. 1976); United States v. Silvio, 333 F.Supp. 264, 267 (W.D.Mo. 1971) . See also United States v. Hankins, 565 F.2d 1344, 1351-52 (5th Cir. 1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1218, 59 L.Ed.2d 457 (1979) (dictum). These cases are consonant with the analogous principle of criminal law that although the government does not have the burden of disproving the existence of every conceivable affirmative defense, it does have the burden of disproving the existence of affirmative defenses actually raised. See, e. g., United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977); cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976).
The government may satisfy its burden of proof by establishing by clear and convincing evidence that the witness’ claimed inability to remember is not credible. Apparently, the government introduced no affirmative evidence that Battaglia recently had told anyone about the scheme, or that his medications do not, in fact, affect long-term memory. Cf. United States v. Cooper, 465 F.2d 451 (9th Cir. 1972) (by analogy, the government has the burden of persuasion with regard to an insanity defense and must introduce affirmative evidence attacking the defendant’s case).
The district court based its judgment almost exclusively on the gaps in Battaglia’s proof; i. e., on the failure of family, friends, or Battaglia’s personal physician to testify, on the expert witnesses’ failure extensively to testify with regard to long-term memory loss, and on Battaglia’s evasive demeanor. These are all legitimate considerations for a trier of fact, but the location of the burden of proof emphasizes their importance. We do not, however, disparage the trial judge’s power to decide all issues of credibility.
By placing the burden of persuasion on Battaglia, the district court made the gaps in Battaglia’s proof more damaging than the gaps in the government’s proof. This was error.
The cause is remanded for further proceedings in the district court with the burden of proving contempt remaining at all 'times upon the government.
Vacated and remanded.
. The manner by which a witness may meet his burden of production will depend upon the reason given for his inability to comply. For example, a witness who claims that he cannot recall a particular fact or event may explain his inability to comply “categorically and in detail” by testifying on the record that he does not remember. The witness has then offered as clear and detailed an explanation as possible for his inability to comply without exceeding the limits of faulty memory.
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_casesourcestate
|
22
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
DIAMOND v. LOUISIANA.
No. 100.
Argued February 20, 1964.
Decided February 24, 1964.
James M. Nabrit III argued the cause for petitioner. With him on the brief were Jack Greenberg, Wiley A. Branton and Johnnie A. Jones.
Ralph L. Roy argued the cause for respondent. With him on the brief was Jack P. F. Gremillion, Attorney General of Louisiana.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_genapel1
|
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 is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellant, v. Thomas Michael GOLON, Defendant-Appellee.
No. 74-1299.
United States Court of Appeals, First Circuit.
Argued Dec. 4, 1974.
Decided Jan. 28, 1975.
Certiorari Denied May 27, 1975.
See 95 S.Ct. 1999.
Robert B. Codings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., and Benjamin Jones, Asst. U. S. Atty., were on brief, for appellant.
Norman S. Zalkind, Boston, Mass., with whom Eric D. Blumenson and Zalkind & Zalkind, Boston, Mass., were on brief, for defendant-appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
The facts of this case as found by the district court, United States v. Golon, 378 F.Supp. 516 (D.Mass.1974), are undisputed. Appellee Thomas Michael Golon was classified as a conscientious objector by his draft board in 1970, and was ordered to perform 24 months of alternate service in civilian work contributing to the national health, safety or interest. Appellee began work in late 1970 at the Metropolitan State Hospital in Waltham, Massachusetts, but continued his employment there only until April 4, 1971. The State Selective Service Headquarters wrote appellee on April 19 concerning this unauthorized termination of his employment, and appellee responded with a request for reassignment. The state headquarters sent two additional létters inquiring about appellee’s prospective civilian employment, but received no response to these. In July, 1971, appellee started a non-profit food store, relying, according to his testimony, on conversations with a Selective Service official and others which indicated that it might be possible to fulfill his service obligation in this way.
On August 23, 1972, the State Selective Service Board assigned appellee to work at Massachusetts General Hospital to complete his obligation, but he did not report. The State Selective Service Headquarters was notified on October 5 of the failure to report, and informed the United States Attorney of the alleged violation the next day. After having the FBI interview appellee, the U.S. Attorney’s office requested copies of relevant Selective Service documents on July 21, 1973. These documents were received in October, reviewed by an Assistant U. S. Attorney on December 10, and an indictment was obtained December 19 for failure to perform the alternate service. 50 U.S.C. Appendix §§ 456(j), 462. Appellee was arraigned on January 7, 1974, and pleaded not guilty. After a hearing, the district court dismissed the indictment on July 30 on the ground that the government’s prosecution of the case had not been conducted as expeditiously as mandated by 50 U.S.C. Appendix § 462(c) and that appellee had been prejudiced thereby.
Section 462(c), which was enacted as part of the Military Selective Service Act of 1967, provides:
“The Department of Justice shall proceed as expeditiously as possible with a prosecution under this section, or with an appeal, upon the request of the Director of Selective Service System or shall advise the House of Representatives and the Senate in writing the reasons for its failure to do so.”
The determination whether the “expeditiously as possible” requirement of the statute was brought into play in this case by a sufficient “request” by the Director of Selective Service requires reference to the letter sent to the U.S. Attorney by the State Selective Service Headquarters on October 6, 1972. Since appellee has pointed to no other letter or communication from Selective Service making the request required by § 462(c), this letter must be viewed as constituting whatever request was made. The letter was one reporting appellee for prosecution as a violator:
“This headquarters, having carefully reviewed the entire file folder of the subject registrant and finding no procedural errors, and having processed him under the provisions of section 1660.9 of the regulations herewith reports the subject for prosecution under Section 12 of the Military Selective Service Act for violation of the provisions of section 6(j) of that act . ..”
Appellee argues that this was the request for expeditious prosecution contemplated by the statute, while the government contends that a more specific invocation of § 462(c) by a special request from the Director is necessary to bring it into operation. Before proceeding to the merits of this issue, we shall deal with two preliminary points raised by appellee.
It is argued, first of all, that by failing to present to the district court the argument that there was no “request” the government has foreclosed that line of attack here. Incontestably, it would have been better and more fair to the district court to have enabled it to pass upon the issue directly, and sound policies often dictate that we refuse to consider issues raised in the first instance on appeal. Here, however, we think it inappropriate to halt at the threshold. In briefing the Motion to Dismiss below, neither party focused on the § 462(c) argument among the multiplicity of issues mentioned in the motion. The district court first denied the motion, United States v. Golon, 378 F.Supp. 513 (D.Mass.1974); this was done without discussion of the specific issues raised by appellee with regard to delay (due process, Sixth Amendment speedy trial, § 462(c)). After this initial disposition, the district court held a hearing on the matter, and dismissal was granted. The issue relating to the nature of the request required by § 462(c) was not discussed either in memoranda or at the hearing, which was limited to appellee’s testimony as to his conduct. We would be inclined to view this somewhat disorganized presentation of the issues to the district court as sufficient in itself to justify our consideration of the “request” issue. In addition, there are more salient factors which also support that re-suit. The issue is one which is presented on the face of the statute, which specifically requires a request. And we are loath to pass over a question, squarely before us, which is almost certain to be presented in identical terms in other cases.
Appellee contends, secondly, that the district court’s determination that § 462(c) was applicable is one of fact which cannot be overturned unless clearly erroneous, likening it to a finding of consent. We disagree. The issue is strictly a legal one, posing the question whether § 462(e) comes into play in every case where a state board reports a registrant for prosecution or is triggered only by a specific request from the national Director of Selective Service.
The parties put forward radically different conceptions of the “request” referred to in § 462(c). Appellee contends that Congress intended that the prosecution of all draft cases be speeded up, and that in reporting an alleged violator for prosecution the Selective Service System fulfills the requirements of the statute. This position draws support from statements such as that by the House Armed Services Committee that enactment of the provision would “create a sense of urgency in the Department of Justice in respect to violations of the Selective Service Act.” House Report No. 267, 90th Cong., 1st Sess., 1967 U.S.Code Cong. & Admin.News at p. 1333. The section was described in the House Report as a response to “the apparent failure of the Attorney General to prosecute many alleged violations of the Selective Service Act despite the requests of the Director of Selective Service.” Id. The government agrees, as it must, that Congress sought to give the Director greater control over the prosecution of alleged draft violators, but it argues that an across-the-board command that all alleged violators be speedily prosecuted was not the mechanism chosen. It argues that Congress was aware that all draft cases are referred to the Justice Department by the Selective Service System, and that therefore an interpretation which labels the initial referral a § 462(c) request has the effect of rendering the request requirement surplusage. All the provisions of the statute may be given effect, it is argued, if the section is interpreted as creating a two-stage procedure. After the referral or report, the U.S. Attorney investigates and decides whether to seek an indictment. If the Director of Selective Service is displeased with the handling of a particular matter, he may make a specific request for expeditious prosecution and thereby bring the section into play. The legislative history which most strongly supports this interpretation is found in the House Committee’s section-by-section analysis of the bill:
“The provisions . . . would require the Department of Justice to institute as expeditiously as possible prosecution and judicial proceedings of violations of the Draft Act in instances in which a specific request for such action has been made by the Director of Selective Service or in the absence of such prosecution by- the Attorney General, a complete report in writing to the House of Representatives and the Senate.” House Report No. 267, U.S.Code Cong. & Admin.News, 1967, at p. 1349. [Emphasis supplied.]
After carefully considering the language of § 462(c) and the policies underlying it as reflected in the legislative history of the 1967 Act, we have concluded that the section must be read to require a specific request beyond the standard referral for prosecution. Congress was well aware of the role of the Selective Service System as the originat- or of draft-violation investigations by U.S. Attorneys, and thus would have realized that considering the original violation report a “request” would have the effect of bringing all draft cases within § 462(c). Although foggy in some respects, the language of the section, the reports, and the commentary in the Senate and House make such prominent reference to the “request” requirement that the argument that § 462(c) applies to all alleged violations is seriously undermined.
There is no question but that Congress felt that draft cases should in general be more vigorously pursued. It took two steps to accomplish this purpose. Section 462(a) had given priority to prosecution of draft cases on court dockets where requested by the Attorney General. By deleting the prerequisite of such a request, Congress elevated all draft cases, after indictment, to a position of priority. And in § 462(c), it gave added authority to the Director to call for prosecution where he might feel there was untoward reluctance to seek indictment by the Justice Department. But there is no substantial support for the conclusion that Congress intended to strip away entirely the prosecutorial discretion reposed in the Justice Department and insist that an indictment be sought in every referred case, no matter what the result of the investigation of the case. It is true that even under § 462(c) final authority rests with the Justice Department, which may choose to report to Congress on its reasons for not prosecuting if that is its decision. But this fact is but another indication that the section is a remedy which must be specially invoked by the Director of Selective Service. In 1971, the U.S. Attorney for Massachusetts presented 84 referred cases to a grand jury, and declined prosecution on 220; in 1972, 99 were presented and 189 declined; and in 1973, 80 were presented and 236 declined. We cannot accept the suggestion that Congress anticipated or intended that a full report be made to the Senate and House of Representatives in each of the “declined” cases. Not only would such an interpretation indicate a massive and sustained violation of § 462(c) by the U.S. Attorney, but the apparent failure of Congress to respond to this flagrant nonfiling of explanatory letters would be inexplicable.
As our discussion above indicates, we believe that Congress intended to enhance the influence of the Director of Selective Service in prosecution matters by giving him the power to spotlight individual cases of possible Justice Department abuse, not by requiring the Department to prosecute all cases referred or explain its failure to do so. In addition to the House Report, cited above, and the Conference Report, 1967 U.S.Code Cong. & Admin.News at p. 1361, the amendment of § 462(a) in the 1967 Act defeats any suggestion that the imposition of the “request” requirement was inadvertent or viewed as inconsequential. Before 1967, as noted above, subsection (a) directed that courts advance draft cases for immediate hearing upon the request of the Attorney General. The 1967 amendment eliminated the requirement of a request and provided for the advancement of all selective service cases. The considered elimination of a request requirement from subsection (a) of § 462 is not easily reconciled with an interpretation of subsection (c) which has the effect of making meaningless another request provision inserted at the same session.
We have carefully examined the two published cases of which we are aware which shed any light on § 462(c). Appellee relies heavily upon United States v. Daneals, 370 F.Supp. 1289 (W.D.N.Y. 1974), in which a district court dismissed a number of indictments for selective service violations for reasons including what it found to be the failure of the government to comply with § 462(c). That court did measure delay for purposes of the statute from the time the cases were referred to the U.S. Attorney, but the underlying decision that the referrals constituted adequate requests for expeditious prosecution is only an implicit one. It is unarticulated and unexplained, and therefore offers no persuasive authority for the position argued for by appellee. Moreover, Daneals involved a number of grand jury abuses, and these figured in the district court’s decision to dismiss. And the court refused to dismiss the indictments with prejudice, leaving open the question “whether or not the failure of the government to proceed expeditiously in these cases was serious enough to prevent any indictment in particular cases.” 370 F.Supp. at 1301.
The other case relied upon by appellee, United States v. Dyson, 469 F.2d 735 (5th Cir. 1972), is of no more assistance to him. The case does not discuss any of the issues directly relevant here — it deals with post-indictment delay in applying § 462(a), and § 462(c) is mentioned but not explained or applied.
Since we have determined that the mandate of § 462(e) does not apply to this case due to the lack of an adequate request by the Director of Selective Service, we need not decide whether the section, when applicable, inures to the benefit of a defendant and justifies dismissal of the indictment when a prosecutor has failed to comply. Nor need we consider whether the statute requires greater expedition than that guaranteed by the Sixth Amendment or whether delay in selective services cases subject to the statute is measured from referral to the U.S. Attorney.
Although there was a delay of 32 months in this case between the alleged violation and indictment, and 14 months between referral to the U.S. Attorney and indictment, appellee has demonstrated no violation of his Sixth Amendment right to a speedy trial. Delay is measured for purposes of the Sixth Amendment from the time one is accused of a crime, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and appellee became an “accused” when indicted on December 19, 1973. There has been no claim of unconstitutional delay since that time.
Reversed.
. We are advised that a number of cases involving the interpretation of § 462(c) have been decided or are now pending in the District of Massachusetts.
. Because of our resolution of the other issues, we need not decide whether a specific request made by the State Selective Service Headquarters is that of the Director of Selective Service for purposes of § 462(c).
Question: 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_usc1
|
18
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Charles CAUSEY and Burl E. Causey, Appellants, v. UNITED STATES of America, Appellee.
No. 21765.
United States Court of Appeals Fifth Circuit.
Nov. 1, 1965.
Vaughn Terrell, Rome, Ga., for appellants.
F. D. Hand, Jr., Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., for appellee.
Before TUTTLE, Chief Judge, and BELL and COLEMAN, Circuit Judges.
COLEMAN, Circuit Judge:
The indictment in this case was composed of ten counts. The first count charged conspiracy to violate Sections 500 and 641 of Title 18, United States Code. The second count charged the receipt, concealment and retention of certain United States postal money orders with the intent to convert the same to the use of the Appellants in violation of Section 641 of Title 18, United States Code. The last eight counts charged forgery of postal money orders in violation of Section 500, Title 18 United States Code.
At the conclusion of the evidence for the Government, the defense moved for a judgment of acquittal on all counts, which was denied. The defense offered no testimony and a jury verdict of guilty on all ten counts promptly followed.
The evidence amply supports the jury verdict as to Charles Causey and as to him the judgment must be affirmed.
As to counts numbered two through ten, charging substantive offenses, the evidence is wholly insufficient to sustain the conviction of Burl E. Causey. The motion for a judgment of acquittal on these counts should have been sustained.
The conviction of Burl Causey on the conspiracy count requires more elaborate discussion.
It is not disputed that on the night of October 23, 1963, the fourth class Post Office at Clay, Alabama, was burglarized and 1737 blank money order forms were stolen. It is not disputed that on the night of December 2, 1963, the Post Office at Wheeler, Alabama, was burglarized and both the “round dating money order stamp” and the written “limitation stamps” were taken.
The money order forms thus stolen speedily showed up in the possession of Charles Causey and Jim Gallister, the latter being named in this indictment as a co-conspirator but not as a co-defendant.
In the main, the government attempted to build its case by the testimony of one Thania Bell Norman, also known as Joanne Norman. She was likewise named, but not indicted, as a co-conspirator. She testified that Charlie Causey “came up to the house one night and told me that I was going with him to his house. So we went over there, and Jim Gallister and Dick Dane were over there. We sat around that night and Dick Dane and Jim Gallister went off and got drunk and come back and Jim Gallister and Charlie and Dick Dane had a few words. * * * Then about two weeks later I filled out some money orders”. These money orders were filled out in Charlie Causey’s house. Then this testimony followed:
“Q. Were the defendants present at this time?
A. Well, Charlie was, but Dink (Burl), he was there off and on.
Q. How did you get the money orders ?
A. I got them from Charlie Causey.
Q. All right. When you filled out these money orders, I again ask you, he was present, you stated, Charlie Causey was present?
A. Yes, sir.
Q. And you stated also that on and off the defendant, Burl Causey, was present?
A. He came in and out.”
On cross examination, Miss Norman further testified:
“Q. Miss Norman, so far as you know, you never saw Burl Causey with any of these money orders, nor did he ever say anything about it or have anything to do with it, did he ?
A. As far as I know he didn’t.
Q. You never had any knowledge of his having anything to do with it, did you?
A. No, sir.”
She was further asked:
“Q. You had no knowledge of any agreement between Burl Causey and anybody with reference to them (the money orders) did you?
A. No, sir.
Q. And you certainly had no agreements with Mr. Burl Causey to do anything with any money orders at all, did you ?
A. No, sir.”
The Court then asked the witness the further questions:
“Q. Who told you to make them out?
A. Charlie Causey.
Q. Now, at the time Mr. Causey, and I believe these others — were also there at the house? You never mentioned Mr. Burl Causey; he was never there?
A. He came in and out.
Q. He never had anything , to do with the money orders?
A. So far as I know he didn’t.”
By the Prosecutor:
“Q. He never directed you to do anything with the money orders; is that correct?
A. Yes, sir.”
There was no other proof from any other witness to connect Burl Causey with the money orders in question.
The proof further shows that soon after the money orders were filled out, the Defendant, Burl Causey, went with Charlie Causey, Jim Gallister, and Thania Bell Norman on an automobile trip from Rome, Georgia, to Hot Springs, Little Rock, and Memphis, in that order, returning to Rome. The witness, upon questioning, refused to testify that Burl Causey knew that any money orders were being cashed and further stated that to the best of her memory Burl Causey was not present when she wrote the money orders in question.
On the automobile trip in question, the parties stayed one night in Hot Springs, about two days at Little Rock, remained overnight in Memphis, and returned to Rome. The witness did not see any of the money orders during the trip.
She had filled out thirty or forty of them for $100 each before the trip began, which she gave back to Charles Causey. Jim Gallister show; her how to fill them out. The money orders were stamped “Wheeler, Alabama, December 2, 1963”. When Thania Bell saw the limitation and postal mark stamps, Jim Gallister had them in his possession. She did not know how the trip to Arkansas was financed, and did not know who paid the motel bills.
The girl said there were no incidents in Hot Springs, but speaking of an incident in Little Rock she testified as follows:
“Well, Charlie Causey and Burl Causey and I were at the motel and Jim Gallister came in and he told Charlie and Burl, he said, T just about got busted’.”
She was asked what he meant by that, to which objection was sustained, when she stated further, “he just said that, and Burl Causey and Charlie said they thought we had better leave, and so we left”.
The registration clerk at the motel in Hot Springs identified the motel registration card, but did not know who registered. She identified Charlie Causey in the courtroom but said that he was not the one who registered.
The desk clerk at the motel in North Little Rock pointed out one of the defendants as having signed the register at his motel, but the record is silent as to which of the two defendants he actually identified.
The registration card at the motel in Memphis was not admitted in evidence.
A handwriting expert in the employ of the Post Office Department from Cincinnati testified that from an examination of limited handwriting specimens he would reach the “probable opinion” that Burl Causey signed the motel registration cards in Hot Springs and North Little Rock. When questioned further he said, “It is a little bit short of a definite opinion. The available evidence in this case indicates it is highly probable * * *. It is a little bit less than a definite opinion”.
The expert later said, after extensive interrogation, that he was “satisfied” that Burl Causey signed the registration cards at Hot Springs and Little Rock. He was absolutely positive and definite that James R. Gallister had endorsed all the money orders which were cashed on the Hot Springs expedition. No witness testified to the contrary. He was positive and definite that Thania Bell Norman had filled in the money orders. Witnesses who appeared and testified to the endorsement and cashing of the money orders declined to identify either Charles Causey or Burl Causey as participating in that activity, but did identify the picture of James R. Gallister, and Gallister was always alone when passing the forged instruments.
On one occasion, Gallister failed in his efforts to cash a money order at a shop in Hot Springs. There is no evidence of any like failure in Little Rock unless it is to be assumed and presumed that his report of “nearly getting busted” had reference to such an episode. There is no proof for that inference other than the suspicion that might naturally be aroused by the other circumstances in the case.
Other than above related, there was no other testimony of any knowledge or participation by Burl Causey except for a purported letter which we feel was inadmissible. One James Rollin Smith, a three time federal convict, testified that he wrote that letter for and at the request of one Tommy Baker, although he was the individual who gave it to postal authorities while he was in jail in New Orleans. In any event, this record is totally devoid of any proof to show any connection, criminal or otherwise, between James Rollin Smith, Tommy Baker, and Burl Causey, except that Jim Gallister had been in New Orleans and might have had an opportunity to have had some kind of arrangement with either or both of them, but no such arrangement was shown by the evidence. Tommy Baker was present in the courthouse when this case was tried, but for some reason not revealed by the record, he gave no testimony.
It is our duty on appeal to weigh all the evidence in that light most favorable to the verdict of the jury, and this we shall do. But the question remains, was the proof sufficient to support the verdict of the jury in finding Burl Causey guilty of the alleged conspiracy? A finding of sufficiency must stand or fall on what Burl Causey did while the money orders were being forged in Georgia and what he did on the Hot Springs tour. The record is silent as to whether Burl Causey lived in the same house with Charlie. The dwelling is consistently referred to in the testimony as Charlie’s house. We infer from the general appearance of the record that Thania Bell Norman may have been a reluctant witness, but the Government made no showing to that effect. Indeed, at one point when the Government asked leave of the Court to lead the witness, without giving a reason for it, the Court declined to permit it. On the other hand, the witness tendered by the Government, for whose credibility the Government vouched by putting her on the stand, steadfastly refused to incriminate Burl Causey in what went on in Georgia. To the contrary, she said several times that to the best of her knowledge Burl Causey was not present when the money orders were filled out, did not know what was going on in that regard, and had no agreement about it.
As to the Hot Springs trip, the best proof that Burl Causey signed fictitious names to motel registers is the testimony of the handwriting expert that the writing on the registration cards, in his opinion, was probably that of Burl Causey. He said at least twice that he could not give a definite opinion on it, and said once that he was satisfied, as a matter of opinion, that it was Burl Causey’s handwriting. Even if it were his handwriting, the proof clearly indicates that James R. Gallister alone endorsed and cashed all the money orders on this trip. There is no proof that Burl Causey received any of the proceeds unless one simply assumes to infer it from his mere presence on the journey.
The Government’s witness would not undertake to state how the trip was financed. She saw none of the money orders on the trip and knew nothing about how it was financed.
So, we are reduced to a situation in which we can only say with certainty that Burl Causey was “in and out” of his brother’s house during the time of the money order transaction, but the Government’s witness actually exculpates him of any guilty knowledge or participation at that period of the conspiracy. There was no proof of guilty knowledge on his part during the Hot Springs expedition unless “probable” fictitious motel registrations and the unexplained “busting episode” in Little Rock fill all the big gaps in this proof and establishes beyond a reasonable doubt that Burl Causey is guilty of each and every essential ingredient of the alleged crime.
Many of the guiding principles of the law of conspiracy are too well established to require elaboration here. We enumerate a few which are of particular applicability to a case of the kind now to be decided. To establish the intent essential to a conviction for conspiracy the evidence of knowledge must be clear and not equivocal. A suspicion, however strong, is not proof and will not serve in lieu of proof. Charges of conspiracy are not to be made out by piling inference upon inference. Guilt of conspiracy may not be inferred from mere association. It is true that the proof may be circumstantial or direct or both, but it must convince beyond a reasonable doubt that a conspiracy existed, that the defendant knew it, and with that knowledge intentionally did some act or thing to further or carry on that conspiracy.
The evidence before us is not of a conflicting nature. The Defendant offered no proof. We indulge that view of the evidence most favorable to the government. The Prosecution certainly proved that by association with the known guilty parties Burl Causey had an opportunity to become a conspirator. It did not prove that the crime followed ■ the opportunity. We are thus compelled to hold that the judgment of acquittal as to the conspiracy count against Burl Causey should also have been granted.
As to Charles Causey the judgment is in all respects Affirmed.
As to Burl Causey the judgment on all counts is Reversed.
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_applfrom
|
E
|
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).
Gloria F. ANDERBERG, as Conservatrix of the Estate of Steven B. Stichler; and Gloria F. Anderberg, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 82-2014.
United States Court of Appeals, Tenth Circuit.
Oct. 14, 1983.
Charles T. Trowbridge, Denver, Colo., for plaintiffs-appellants.
Janis E. Chapman, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., Denver, Colo., was on the brief), for defendant-appellee.
Before SETH, Chief Judge, and DOYLE and MILLER, Circuit Judges.
Of the United States Court of Appeals for the Federal Circuit, sitting by designation.
JACK R. MILLER, Circuit Judge.
This appeal is from an order of the district court, entered on the Government’s motion for summary judgment, dismissing, for lack of jurisdiction, appellant’s action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Her administrative claim for damages was presented to the Veterans Administration in Denver, Colorado, which denied the claim by registered letter dated and mailed on October 30,1980, and received on November 3. She sought reconsideration by a letter dated and sent by regular mail on April 30, 1981, and received in the Office of District Counsel on May 1. The district court held that the request for reconsideration was not timely-filed, so that the court did not have jurisdiction. We affirm.
The Government points out that if appellant had chosen to file her claim in the district court after the initial denial she was required to do so “within six months after the date of mailing ... of notice of denial of the claim by the agency to which it was presented,” citing 28 U.S.C. § 2401(b); and that 28 C.F.R. § 14.9(b) provides that a request for reconsideration shall be filed “prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b) ...” It is the Government’s position that “filing” means receipt by the agency and, accordingly, appellant’s request for reconsideration was not timely filed. Appellant argues that “filing” means mailing, so that her request was timely; further, that since the statute provides that mailing of notice of denial begins the six-month limitation period and since this is made applicable by 28 C.F.R. § 14.9(b) to requests for reconsideration, mailing of a request for reconsideration, rather than receipt by the agency, should determine the end of the six-month limitation period, so that her request was timely; otherwise, there was no full six-month period, and the Government would have its cake and eat it too. Thus, the issue is whether mailing of a request for reconsideration or receipt of the request by the agency constitutes “filing” for purposes of 28 C.F.R. § 14.9(b).
We are satisfied that the Government’s position must prevail. The statute, 28 U.S.C. § 2401(b), refers to “denial of the claim by the agency to which it was presented.” (Emphasis added.) 28 C.F.R. § 14.2(a) provides:
For purposes of the provisions of 28 U.S.C. § 2401(b) ... a claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written notification of an incident ... accompanied by a claim for money damages in a sum certain .... [Emphasis added.]
Nowhere is there any indication that what constitutes presentment of a request for reconsideration is different from presentment of the claim itself.
Moreover, appellant’s approach would tend to violate the principle that “limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957). The limitation period in 28 U.S.C. § 2401(b) is not to be extended for equitable considerations. Childers v. United States, 442 F.2d 1299, 1303 (5th Cir. 1971), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971). See also Frey v. Woodard, 481 F.Supp. 1152, 1153 (E.D.Pa. 1979).
The order of the district court is affirmed.
. A second letter requesting reconsideration and also dated April 30, 1981, was sent by certified mail and received in the Office of District Counsel on May 4, 1981. As will appear, it is unnecessary to consider this letter for purposes of this appeal.
. We note that 39 C.F.R. § 912.5 provides: “For purposes of this part, a claim [against the Postal Service] shall be deemed to have been presented when the U.S. Postal Service receives from a claimant ... an executed Standard Form 95, Claim for Damage or Injury ... accompanied by a claim for money damages in a sum certain .... ” It would seem desirable that 28 C.F.R. § 14.9(b) be amended to contain similar language to expressly reflect the Government’s practice.
. We are not unmindful of possible hardship arising from strict construction of a period of limitations, but remedial action lies with the Congress through statutory change or a private bill for relief. Compare Steele v. United States, 390 F.Supp. 1109, 1112 (S.D.Cal.1975).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_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.
BUSH v. LUCAS
No. 81-469.
Argued January 19, 1983
Decided June 13, 1983
Stevens, J., delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 390.
William Harvey Elrod, Jr., argued the cause and filed briefs for petitioner.
Deputy Solicitor General Getter argued the cause for respondent. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, David A. Strauss, Barbara L. Herwig, and Wendy M. Keats.
Briefs of amici curiae urging reversal were filed by Charles B. Wayne and Mark H. Lynch for the American Civil Liberties Union; by J. Albert Woll, Marsha Berzon, Laurence Gold, Edward J. Hickey, Erick Genser, James Rosa, and David Barr for the American Federation of Labor and Congress of Industrial Organizations et al.; by John F. Bufe, Lois G. Williams, and Michael David Fox for the National Treasury Employees Union; and by John C. Keeney, Jr., Joseph M. Hassett, and Peter Raven-Hansen for Representative Schroeder et al.
Justice Stevens
delivered the opinion of the Court.
Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.
Petitioner Bush is an aerospace engineer employed at the George C. Marshall Space Flight Center, a major facility operated by the National Aeronautics and Space Administration in Alabama. Respondent Lucas is the Director of the Center. In 1974 the facility was reorganized and petitioner was twice reassigned to new positions. He objected to both reassignments and sought formal review by the Civil Service Commission. In May and June 1975, while some of his administrative appeals were pending, he made a number of public statements, including two televised interviews, that were highly critical of the agency. The news media quoted him as saying that he did not have enough meaningful work to keep him busy, that his job was “a travesty and worthless,” and that the taxpayers’ money was being spent fraudulently and wastefully at the Center. His statements were reported on local television, in the local newspaper, and in a national press release that appeared in newspapers in at least three other States.
In June 1975 respondent, in response to a reporter’s inquiry, stated that he had conducted an investigation and that petitioner’s statements regarding his job had “no basis in fact.” App. 15. In August 1975 an adverse personnel action was initiated to remove petitioner from his position. Petitioner was charged with “publicly makfing] intemperate remarks which were misleading and often false, evidencing a malicious attitude towards Management and generating an environment of sensationalism demeaning to the Government, the National Aeronautics and Space Administration and the personnel of the George C. Marshall Space Flight Center, thereby impeding Government efficiency and eeon-omy and adversely affecting public confidence in the Government service.” He was also informed that his conduct had undermined morale at the Center and caused disharmony and disaffection among his fellow employees. Petitioner had the opportunity to file a written response and to make an oral presentation to agency officials. Respondent then determined that petitioner’s statements were false and misleading and that his conduct would justify removal, but that the lesser penalty of demotion was appropriate for a “first offense.” Ibid. He approved a reduction in grade from GS-14 to GS-12, which decreased petitioner’s annual salary by approximately $9,716.
Petitioner exercised his right to appeal to the Federal Employee Appeals Authority. After a 3-day public hearing, the Authority upheld some of the charges and concluded that the demotion was justified. It specifically determined that a number of petitioner’s public statements were misleading and that, for three reasons, they “exceeded the bounds of expression protected by the First Amendment.” First, petitioner’s statements did not stem from public interest, but from his desire to have his position abolished so that he could take early retirement and go to law school. Second, the statements conveyed the erroneous impression that the agency was deliberately wasting public funds, thus discrediting the agency and its employees. Third, there was no legitimate public interest to be served by abolishing petitioner’s position.
Two years after the Appeals Authority’s decision, petitioner requested the Civil Service Commission’s Appeals Review Board to reopen the proceeding. The Board reexamined petitioner’s First Amendment claim and, after making a detailed review of the record and the applicable authorities, applied the balancing test articulated in Pickering v. Board of Education, 391 U. S. 563 (1968). On the one hand, it acknowledged the evidence tending to show that petitioner’s motive might have been personal gain, and the evidence that his statements caused some disruption of the agency’s day-today routine. On the other hand, it noted that society as well as the individual had an interest in free speech, including “a right to disclosure of information about how tax dollars are spent and about the functioning of government apparatus, an interest in the promotion of the efficiency of the government, and in the maintenance of an atmosphere of freedom of expression by the scientists and engineers who are responsible for the planning and implementation of the nation’s space program.” Because petitioner’s statements, though somewhat exaggerated, “were not wholly without truth, they properly stimulated public debate.” Thus the nature and extent of proven disruption to the agency’s operations did not “justify abrogation of the exercise of free speech.” The Board recommended that petitioner be restored to his former position, retroactively to November 30,1975, and that he receive backpay. That recommendation was accepted. Petitioner received approximately $30,000 in backpay.
While his administrative appeal was pending, petitioner filed an action against respondent in state court in Alabama seeking to recover damages for defamation and violation of his constitutional rights. Respondent removed the lawsuit to the United States District Court for the Northern District of Alabama, which granted respondent’s motion for summary judgment. It held, first, that the defamation claim could not be maintained because, under Barr v. Matteo, 360 U. S. 564 (1959), respondent was absolutely immune from liability for damages for defamation; and second, that petitioner’s demotion was not a constitutional deprivation for which a damages action could be maintained. The United States Court of Appeals for the Fifth Circuit affirmed. 598 F. 2d 958 (1979). We vacated that court’s judgment, 446 U. S. 914 (1980), and directed that it reconsider the case in the light of our intervening decision in Carlson v. Green, 446 U. S. 14 (1980). The Court of Appeals again affirmed the judgment against petitioner. It adhered to its previous conclusion that “plaintiff had no cause of action for damages under the First Amendment for retaliatory demotion in view of the available remedies under the Civil Service Commission regulations.” 647 F. 2d 573, 574 (1981). It explained that the relationship between the Federal Government and its civil service employees was a special factor counselling against the judicial recognition of a damages remedy under the Constitution in this context.
We assume for purposes of decision that petitioner’s First Amendment rights were violated by the adverse personnel action. We also assume that, as petitioner asserts, civil service remedies were not as effective as an individual damages remedy and did not fully compensate him for the harm he suffered. Two further propositions are undisputed. Congress has not expressly authorized the damages remedy that petitioner asks us to provide. On the other hand, Congress has not expressly precluded the creation of such a remedy by declaring that existing statutes provide the exclusive mode of redress.
Thus, we assume, a federal right has been violated and Congress has provided a less than complete remedy for the wrong. If we were writing on a clean slate, we might answer the question whether to supplement the statutory scheme in either of two quite simple ways. We might adopt the common-law approach to the judicial recognition of new causes of action and hold that it is the province of the judiciary to fashion an adequate remedy for every wrong that can be proved in a case over which a court has jurisdiction. Or we might start from the premise that federal courts are courts of limited jurisdiction whose remedial powers do not extend beyond the granting of relief expressly authorized by Congress. Under the former approach, petitioner would obviously prevail; under the latter, it would be equally clear that he would lose.
Our prior cases, although sometimes emphasizing one approach and sometimes the other, have unequivocally rejected both extremes. They establish our power to grant relief that is not expressly authorized by statute, but they also remind us that such power is to be exercised in the light of relevant policy determinations made by the Congress. We therefore first review some of the cases establishing our power to remedy violations of the Constitution and then consider the bearing of the existing statutory scheme on the precise issue presented by this case.
I
The federal courts’ power to grant relief not expressly authorized by Congress is firmly established. Under 28 U. S. C. § 1331, the federal courts have jurisdiction to decide all cases “arising] under the Constitution, laws, or treaties of the United States.” This jurisdictional grant provides not only the authority to decide whether a cause of action is stated by a plaintiff’s claim that he has been injured by a violation of the Constitution, Bell v. Hood, 327 U. S. 678, 684 (1946), but also the authority to choose among available judicial remedies in order to vindicate constitutional rights. This Court has fashioned a wide variety of nonstatutory remedies for violations of the Constitution by federal and state officials. The cases most relevant to the problem before us are those in which the Court has held that the Constitution itself supports a private cause of action for damages against a federal official. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); Davis v. Passman, 442 U. S. 228 (1979); Carlson v. Green, supra.
In Bivens the plaintiff alleged that federal agents, without a warrant or probable cause, had arrested him and searched his home in a manner causing him great humiliation, embarrassment, and mental suffering. He claimed damages on the theory that the alleged violation of the Fourth Amendment provided an independent basis for relief. The Court upheld the sufficiency of his complaint, rejecting the argument that a state tort action in trespass provided the only appropriate judicial remedy. The Court explained why the absence of a federal statutory basis for the cause of action was not an obstacle to the award of damages:
“That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, 286 U. S. 73 (1932); Nixon v. Herndon, 273 U. S. 536, 540 (1927); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900); J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968); cf. West v. Cabell, 153 U. S. 78 (1894); Lammon v. Feusier, 111 U. S. 17 (1884). Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But ‘it is... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ Bell v. Hood, 327 U. S., at 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of ‘federal fiscal policy/ as in United States v. Standard Oil Co., 332 U. S. 301, 311 (1947).” 403 U. S., at 395-396.
The Court further noted that there was “no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.” Id., at 397.
In his separate opinion concurring in the judgment, Justice Harlan also thought it clear that the power to authorize damages as a remedy for the vindication of a federal constitutional right had not been placed by the Constitution itself exclusively in Congress’ hands. Id., at 401-402. Instead, he reasoned, the real question did not relate to “whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power.” Id., at 406. In resolving that question he suggested that “the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an expressed] statutory authorization of a traditional remedy.” id., at 407. After weighing the relevant policies he agreed with the Court’s conclusion that the Government had not advanced any substantial policy consideration against recognizing a federal cause of action for violation of Fourth Amendment rights by federal officials.
In Davis v. Passman, supra, the petitioner, former deputy administrative assistant to a Member of Congress, alleged that she had been discharged because of her sex, in violation of her constitutional right to the equal protection of the laws. We held that the Due Process Clause of the Fifth Amendment gave her a federal constitutional right to be free from official discrimination and that she had alleged a federal cause of action. In reaching the conclusion that an award of damages would be an appropriate remedy, we emphasized the fact that no other alternative form of judicial relief was available. The Court also was persuaded that the special concerns which would ordinarily militate against allowing recovery from a legislator were fully reflected in respondent’s affirmative defense based on the Speech or Debate Clause of the Constitution. Id., at 246. We noted the absence of any explicit congressional declaration that persons in petitioner’s position may not recover damages from those responsible for their injury. Id., at 246-247.
Carlson v. Green, 446 U. S. 14 (1980), involved a claim that a federal prisoner’s Eighth Amendment rights had been violated. The prisoner’s mother brought suit on behalf of her son’s estate, alleging that federal prison officials were responsible for his death because they had violated their constitutional duty to provide him with proper medical care after he suffered a severe asthmatic attack. Unlike Bivens and Davis, the Green case was one in which Congress had provided a remedy, under the Federal Tort Claims Act, against the United States for the alleged wrong. 28 U. S. C. § 2671 et seq. As is true in this case, that remedy was not as completely effective as a Bivens-type action based directly on the Constitution.
The Court acknowledged that a Bivens action could be defeated in two situations, but found that neither was present. First, the Court could discern “ ‘no special factors counselling hesitation in the absence of affirmative action by Congress.’ ” 446 U. S., at 18-19, citing Bivens, 403 U. S., at 396, and Davis, supra, at 245. Second, there was no congressional determination foreclosing the damages claim and making the Federal Tort Claims Act exclusive. 446 U. S., at 19, and n. 5. No statute expressly declared the FTCA remedy to be a substitute for a Bivens action; indeed, the legislative history of the 1974 amendments to the FTCA “made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action.” 446 U. S., at 19-20.
This much is established by our prior cases. The federal courts’ statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts’ power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors coun-selling hesitation before authorizing a new kind of federal litigation.
Congress has not resolved the question presented by this case by expressly denying petitioner the judicial remedy he seeks or by providing him with an equally effective substitute. There is, however, a good deal of history that is relevant to the question whether a federal employee’s attempt to recover damages from his superior for violation of his First Amendment rights involves any “special factors counselling hesitation.” When those words were first used in Bivens, supra, at 396, we illustrated our meaning by referring to United States v. Standard Oil Co., 332 U. S. 301, 311, 316 (1947), and United States v. Gilman, 347 U. S. 507 (1954).
In the Standard Oil case the Court had been asked to authorize a new damages remedy for the Government against a tortfeasor who had injured a soldier, imposing hospital expenses on the Government and depriving it of his services. Although, as Justice Jackson properly noted in dissent, the allowance of recovery would not have involved any usurpation of legislative power, 332 U. S., at 318, the Court nevertheless concluded that Congress as “the custodian of the national purse” should make the necessary determination of federal fiscal policy. The Court refused to create a damages remedy, which would be “the instrument for determining and establishing the federal fiscal and regulatory policies which the Government’s executive arm thinks should prevail in a situation not covered by traditionally established liabilities.” Id., at 314.
Similarly, in Gilman, the Court applied the Standard Oil rationale to reject the Government’s attempt to recover indemnity from one of its employees after having been held liable under the FTCA for the employee’s negligence. As the Court noted: “The relations between the United States and its employees have presented a myriad of problems with which the Congress over the years has dealt.... Government employment gives rise to policy questions of great import, both to the employees and to the Executive and Legislative Branches.” 347 U. S., at 509. The decision regarding indemnity involved questions of employee discipline and morale, fiscal policy, and the efficiency of the federal service. Hence, the Court wrote, the reasons for deferring to congressional policy determinations were even more compelling than in Standard Oil.
“Here a complex of relations between federal agencies and their staffs is involved. Moreover, the claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken. The selection of that policy which is most advantageous to the whole involves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who interpret them.” 347 U. S., at 511-513.
The special factors counselling hesitation in the creation of a new remedy in Standard Oil and Gilman did not concern the merits of the particular remedy that was sought. Rather, they related to the question of who should decide whether such a remedy should be provided. We should therefore begin by considering whether there are reasons for allowing Congress to prescribe the scope of relief that is made available to federal employees whose First Amendment rights have been violated by their supervisors.
t — H HH
Unlike Standard Oil and Gilman, this case concerns a claim that a constitutional right has been violated. Nevertheless, just as those cases involved “federal fiscal policy” and the relations between the Government and its employees, the ultimate question on the merits in this case may appropriately be characterized as one of “federal personnel policy.” When a federal civil servant is the victim of a retaliatory demotion or discharge because he has exercised his First Amendment rights, what legal remedies are available to him?
The answer to that question has changed dramatically over the years. Originally the answer was entirely a matter of Executive discretion. During the era of the patronage system that prevailed in the Federal Government prior to the enactment of the Pendleton Act in 1883, 22 Stat. 403, the federal employee had no legal protection against political retaliation. Indeed, the exercise of the First Amendment right to support a political candidate opposing the party in office would routinely have provided an accepted basis for discharge. During the past century, however, the job security of federal employees has steadily increased.
In the Pendleton Act Congress created the Civil Service Commission and provided for the selection of federal civil servants on a merit basis by competitive examination. Although the statute did not address the question of removals in general, it provided that no employee in the public service could be required to contribute to any political fund or fired for refusing to do so, and it prohibited officers from attempting to influence or coerce the political actions of others.
Congressional attention to the problem of politically motivated removals was again prompted by the issuance of Executive Orders by Presidents Roosevelt and Taft that forbade federal employees to communicate directly with Congress without the permission of their supervisors. These “gag orders,” enforced by dismissal, were cited by several legislators as the reason for enacting the Lloyd-La Follette Act in 1912, 37 Stat. 539, 555, § 6. That statute provided that “no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing....” Moreover, it explicitly guaranteed that the right of civil servants “to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.” As the House Report explained, this legislation was intended “to protect employees against oppression and in the right of free speech and the right to consult their representatives.” In enacting the Lloyd-La Follette Act, Congress weighed the competing policy considerations and concluded that efficient management of Government operations did not preclude the extension of free speech rights to Government employees.
In the ensuing years, repeated consideration of the conflicting interests involved in providing job security, protecting the right to speak freely, and maintaining discipline and efficiency in the federal work force gave rise to additional legislation, various Executive Orders, and the promulgation of detailed regulations by the Civil Service Commission. Federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures — administrative and judicial — by which improper action may be redressed. They apply to a multitude of personnel decisions that are made daily by federal agencies. Constitutional challenges to agency action, such as the First Amendment claims raised by petitioner, are fully cognizable within this system. As the record in this case demonstrates, the Government’s comprehensive scheme is costly to administer, but it provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies.
A federal employee in the competitive service may be removed or demoted “only for such cause as will promote the efficiency of the service.” The regulations applicable at the time of petitioner’s demotion in 1975, which are substantially similar to those now in effect, required that an employee be given 30 days’ written notice of a proposed discharge, suspension, or demotion, accompanied by the agency’s reasons and a copy of the charges. The employee then had the right to examine all disclosable materials that formed the basis of the proposed action, 5 CFR § 752.202(a) (1975), the right to answer the charges with a statement and supporting affidavits, and the right to make an oral noneviden-tiary presentation to an agency official. § 752.202(b). The regulations required that the final agency decision be made by an official higher in rank than the official who proposed the adverse action, § 752.202(f). The employee was entitled to notification in writing stating which of the initial reasons had been sustained. Ibid.; 5 U. S. C. § 7501(b)(4).
The next step was a right to appeal to the Civil Service Commission’s Federal Employee Appeals Authority. 5 CFR §§752.203, 772.101 (1975). The Appeals Authority was required to hold a trial-type hearing at which the employee could present witnesses, cross-examine the agency’s witnesses, and secure the attendance of agency officials, § 772.307(c), and then to render a written decision, §772.-309(a). An adverse decision by the FEAA was judicially reviewable in either federal district court or the Court of Claims. In addition, the employee had the right to ask the Commission’s Appeals Review Board to reopen an adverse decision by the FEAA. §772.310.
If the employee prevailed in the administrative process or upon judicial review, he was entitled to reinstatement with retroactive seniority. § 752.402. He also had a right to full backpay, including credit for periodic within-grade or step increases and general pay raises during the relevant period, allowances, differentials, and accumulated leave. §550.803. Congress intended that these remedies would put the employee “in the same position he would have been in had the unjustified or erroneous personnel action not taken place.”
Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go un-redressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violations of employees’ First Amendment rights.
The costs associated with the review of disciplinary decisions are already significant — not only in monetary terms, but also in the time and energy of managerial personnel who must defend their decisions. Respondent argues that supervisory personnel are already more hesitant than they should be in administering discipline, because the review that ensues inevitably makes the performance of their regular duties more difficult. Brief for Respondent 37-41. Whether or not this assessment is accurate, it is quite probable that if management personnel face the added risk of personal liability for decisions that they believe to be a correct response to improper criticism of the agency, they would be deterred from imposing discipline in future cases. In all events, Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts.
Nor is there any reason to discount Congress’ ability to make an evenhanded assessment of the desirability of creating a new remedy for federal employees who have been demoted or discharged for expressing controversial views. Congress has a special interest in informing itself about the efficiency and morale of the Executive Branch. In the past it has demonstrated its awareness that lower-level Government employees are a valuable source of information, and that supervisors might improperly attempt to curtail their subordinates’ freedom of expression.
Thus, we do not decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights. As we did in Standard Oil, we decline “to create a new substantive legal liability without legislative aid and as at the common law,” 332 U. S., at 302, because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.
The judgment of the Court of Appeals is
Affirmed.
The record indicates that petitioner filed two appeals from the first reassignment and three appeals from the second. App. to Pet. for Cert, e-3 to e-4. He asserts that he had previously made unsuccessful attempts within the Center to obtain redress. App. 30.
App. to Pet. for Cert, d-2 to d-3 (memorandum opinion of District Court); id., at e-19 (opinion of Federal Employee Appeals Authority).
Id., at f-2 to f-3, e-19, e-7.
Id., at e-38 to e-39. Petitioner could have obtained judicial review of the Authority’s determination by filing suit in a federal district court or in the United States Court of Claims, but did not do so.
Id., at f-23 to f-25.
Id., at d-2 to d-17.
Competent decisionmakers may reasonably disagree about the merits of petitioner’s First Amendment claim. Compare the opinion of the District Court, App. D to Pet. for Cert., and the opinion of the Atlanta Field Office of the Federal Employees Appeal Authority issued on August 12, 1976, App. E, both rejecting petitioner’s claims, with the opinion of the Appeals Review Board issued on July 14, 1978, App. F, finding that the First Amendment had been violated. This question is not before us.
See Carlson v. Green, 446 U. S. 14, 20-23 (1980) (factors making Federal Tort Claims Act recovery less “effective” than an action under the Constitution to recover damages against the individual official). Petitioner contends that, unlike a damages remedy against respondent individually, civil service remedies against the Government do not provide for punitive damages or a jury trial and do not adequately deter the unconstitutional exercise of authority by supervisors. Brief for Petitioner 27-29.
His attorney’s fees were not paid by the Government, and he claims to have suffered uncompensated emotional and dignitary harms. Id., at 24-26. In light of our disposition of this case, we do not need to decide whether such costs could be recovered as compensation in an action brought directly under the Constitution.
In Marbury v. Madison, 1 Cranch 137, 163 (1803), Chief Justice Marshall invoked the authority of Blackstone’s Commentaries in support of this proposition. Blackstone had written: “[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded.... [I]t is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.” 3 Commentaries *23, *109.
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 428 (1971) (Black, J., dissenting).
See, e. g., United States v. Lee, 106 U. S. 196 (1882) (ejectment action against federal officers to enforce Takings Clause of Fifth Amendment); Wiley v. Sinkler, 179 U. S. 58, 64-65 (1900) (damages against state officer for denying plaintiff’s right to vote in federal election); Ex parte Young, 209 U. S. 123 (1908) (injunctive relief against state official for violation of Fourteenth Amendment); Weeks v. United States, 232 U. S. 383, 398 (1914) (exclusion in federal criminal case of evidence seized in violation of Fourth Amendment); Jacobs v. United States, 290 U. S. 13, 16 (1933) (award of interest as well as principal in just compensation claim founded on the Fifth Amendment); Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 15-16 (1971) (school busing to remedy unconstitutional racial segregation). See generally Hill, Constitutional Remedies, 69 Colum. L. Rev. 1109, 1124-1127 (1969).
“Moreover, since respondent is no longer a Congressman, see n. 1, supra, equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, ‘it is damages or nothing.’ Bivens, supra, at 410 (Harlan, J., concurring in judgment).” 442 U. S., at 245.
We need not reach the question whether the Constitution itself requires a judicially fashioned damages remedy in the absence of any other remedy to vindicate the underlying right, unless there is an express textual command to the contrary. Cf. Davis v. Passman, 442 U. S. 228, 246 (1979). The existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate. See infra, at 386-388.
“Whatever the merits of the policy, its conversion into law is a proper subject for congressional action, not for any creative power of ours. Congress, not this Court or the other federal courts, is the custodian of the national purse. By the same token it is the primary and most often the exclusive arbiter of federal fiscal affairs. And these comprehend, as we have said, securing the treasury or the government against financial losses however inflicted, including requiring reimbursement for injuries creating them, as well as filling the treasury itself.” 332 U. S., at 314-316.
The Court further noted that the type of harm for which the Executive sought judicial redress was not new, and that Congress presumably knew of it but had not exercised its undoubted power to authorize a damages action. Id., at 315-316.
The Report of the Committee on Civil Service and Retrenchment submitted by Senator Pendleton on May 15,1882, contained a vivid description of the patronage system, reading in part as follows:
“The fact is confessed by all observers and commended by some that ‘to the victors belong the spoils;’ that with each new administration comes the business of distributing patronage among its friends.... [The President] is to do what some predecessor of his has left undone, or to undo what others before him have done; to put this man up and that man down, as the system of political rewards and punishments shall seem to him to demand.” S. Rep. No. 576, 47th Cong., 1st Sess., 2 (1882).
See generally House Committee on Post Office and Civil Service, History of Civil Service Merit Systems of the United States and Selected Foreign Countries, 94th Cong., 2d Sess., 26-173 (1976).
See S. Rep. No. 576, supra, n. 16, at 9; cf. H. R. Rep. No. 1826, 47th Cong., 2d Sess., 1-2 (1882) (rejected provisions of House bill permitting removals only for cause).
Section 13 provided:
“No officer or employee of the United States mentioned in this act shall discharge, or promote, or degrade, or in manner change the official rank or compensation of any other officer or employee, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.” 22 Stat. 407.
Other sections made it unlawful for Government employees to solicit political contributions from, and to give such contributions to, other Government employees, §§ 11, 14, and to receive any political contributions on Government premises, § 12. Section 2 required the Civil Service Commission to promulgate rules providing, inter alia, “that no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do so,” and also “that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.” 22 Stat. 404. See 5 U. S. C. § 2302(b)(3) (1982 ed.); 5 U. S. C. §§7321-7323.
In 1906 President Roosevelt issued Executive Order No. 1142, which provided:
“All officers and employees of the United States of every description, serving in or under any of the Executive Departments or independent Government establishments, and whether so serving in or out of Washington, are hereby forbidden, either directly or indirectly, individually or through associations, to solicit an increase of pay or to influence or attempt to influence in their own interest any other legislation whatever, either before Congress or its committees, or in any way save through the heads
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_r_fed
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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 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.
DAIRY FOODS INCORPORATED, Plaintiff-Appellee, v. DAIRY MAID PRODUCTS COOPERATIVE, Defendant-Appellant, v. CARNATION COMPANY, a corporation, Foremost Dairies, Inc., a corporation, and Pet Milk Company, a corporation, Counter-Defendants-Appellees (two cases).
Nos. 13338, 13421.
United States Court of Appeals Seventh Circuit.
Dec. 18, 1961.
■ Leon E. Isaksen, Madison, Wis., Melville C. Williams, Chicago, 111., Joseph G. Werner, Madison, Wis., Orr, Isaksen, Werner & Lathrop, Madison, Wis., Pope, Ballard, Uriell, Kennedy, Shepard & Fowle, Chicago, 111., of counsel, for appellant.
James P. Hume, Chicago, 111., Julian 0. von Kalinowski, Los Angeles, Cal., Wayne D. Hudson, San Francisco, Cal., Byron, Hume, Groen & Clement, Chicago, III., Gibson, Dunn & Crutcher, Los Angeles, Cal., of counsel, for appellees.
Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.
CASTLE, Circuit Judge.
Dairy Foods Incorporated, plaintiff-appellee, brought suit in the District Court against Dairy Maid Products Cooperative, defendant-appellant, for infringement of a patent. Defendant’s answer raises issues of validity and infringement of the patent, alleges misuse of the patent in furtherance of a conspiracy in violation of the antitrust laws, and asserts two counterclaims. The first counterclaim seeks a declaratory judgment against the plaintiff as to the validity and infringement of the patent. An amended second counterclaim against plaintiff and additional counter-defendants, Carnation Company and Foremost Dairies, Inc., seeks recovery of treble damages pursuant to Section 4 of the Clayton Act and injunctive relief under Section 16 of that Act. Dairy Foods, Carnation and Foremost made substantially identical motions to dismiss the amended second counterclaim, Carnation and Foremost moving, in addition, that the order making them defendants to the counterclaim be vacated. The motions to dismiss the amended second counterclaim assert failure of the counterclaim to state a claim upon which relief can be granted and consequent lack of jurisdiction of the subject matter. These assertions are grounded on contentions that the counterclaim fails to allege facts sufficient to show injury to defendant’s business or property as the result of federal antitrust violations and is premature in that it states no accrued claim. The District Court granted these motions. A judgment order was entered dismissing the amended second counterclaim, vacating the order making Carnation and Foremost counter-defendants, and containing a determination by the District Court that no just reason for delaying entry of the judgment existed. Defendant’s appeal in No. 13338 is from that part of the judgment order dismissing its amended second counterclaim and vacating the order making Carnation and Foremost counter-defendants.
After defendant filed its notice of appeal in No. 13338 the District Court, on motion of the plaintiff, entered an order, subsequent to the filing of the record and docketing of the case in this Court, that its judgment order be “corrected” by adding that:
“The Court releases for appeal only its dismissal of the amended second counterclaim and reserves and retains its jurisdiction to proceed with all other claims and issues involved in this action.”
The order further directed that a separate trial be first had limited to the issues of validity, scope and infringement of the patent; that discovery limited to those issues proceed; and that defendant produce certain of its officers and agents for the purpose of depositions by plaintiff. A motion by plaintiff, made in this Court, that the order entered to correct the judgment order be included in the record in No. 13338, was taken with the case. Defendant’s appeal No. 13421 is from the order entered by the District Court after the notice of appeal in No. 13338 was filed.
The two appeals have not been consolidated, except for the purpose of oral argument, but to avoid unnecessary repetition we elect to dispose of both in this opinion.
The counterclaim in question contains allegations which if proved are adequate to establish that plaintiff, Carnation and Foremost are engaged in a combination and conspiracy in unreasonable restraint of and to monopolize trade and commerce in instant milk and instant milk products in violation of Sections 1 and 2 of the Sherman Act through the pooling of patents and patent applications pertaining to instant milk and instant milk products, including Peebles Patent No. 2,835,586, and using the patents in the pool in a manner and with objectives which violate the Sherman Act.
The contested issue which emerges from defendant’s appeal in No. 13338 is whether the counterclaim alleges an injury to defendant’s business or property requisite to state a claim upon which relief can be granted under the provisions of Sections 4 and 16 of the Clayton Act.
In appraising the sufficiency of the counterclaim, as tested by the issue presented, the following allegations become pertinent:
“35. As a proximate result and effect of said combination and conspiracy and of the acts of .said named co-conspirators in furtherance thereof :
* * * * * *
“(b) Defendant and other smaller producers of instant milk and instant milk products have been and are threatened with loss and damage. They are faced with choosing between the three alternatives of ceasing production of instant milk, defending expensive patent litigation if they refuse to accept plaintiff’s proffered license, or accepting a discriminatory and restrictive license under patents in plaintiff’s pool that deprives them of an equal opportunity to compete with Carnation and Foremost and that will increase their costs of production.
“(c) Defendant has been injured in its business and property as the proximate result of said acts of Carnation, Foremost and Plaintiff in furtherance of said violation of said antitrust laws, which injury is continuing, and includes:
“(1) Defendant has been, and will be, forced to make expenditures of money and to use the time of its officers and employees to defend said patent infringement suit. Said injury to date is substantial.
“(2) Defendant has been forced by the threat of suit to expend a substantial amount of money before the filing of the infringement suit to investigate the scope and validity of plaintiff’s patents.”
In our opinion these allegations adequately set forth an injury to defendant in its business or property. The injury is the necessity that defendant make a choice among alternatives each of which has an adverse economic or financial impact on its instant milk business. It was allegedly compelled either to cease production with consequent loss of sales of the product, pay tribute with consequent increase in production cost, or incur the financial burden of expenses incident to the defense of litigation. Each of these alternatives had its particular adverse economic or financial effect on defendant’s instant milk business. To place a person in such a situation is an injury to his business. True, it is the defendant’s choice which determines the nature of the resulting damages but it is the necessity of having to choose from such alternatives that is the injury. The congressional enactments here involved were designed to afford a legal right to engage in business free from conspiratorial compulsion such as here alleged. A violation of that right is a legal injury to the business adversely affected. Section 4 of the Clayton Act by its reference to the person “injured” recognizes that it is the “injury” which gives rise to the consequent liability to respond in threefold “damages”.
The counterclaim must be considered as a whole. The allegations of paragraph 35 are to be evaluated in the context of those which set forth the antitrust law violations. And they are to be considered in combination with the allegations that one of the elements of the conspiracy was an agreement that patent infringement suits would be threatened and filed to coerce the acceptance of licenses which would effectuate the conspiracy and that plaintiff by threats of an infringement suit attempted to coerce defendant to accept a discriminatory and restrictive license under the patent pool. When so considered and appraised it becomes apparent that the alleged necessity of choice set forth in paragraph 35 coupled with the assertion therein that defendant “has been injured in its busines and property as the proximate result of said acts of Carnation, Foremost and Plaintiff in furtherance of said violation of said antitrust laws” constitutes a sufficient allegation of injury to business or property under the controlling principles of notice pleading authorized by the Federal Rules of Civil Procedure as interpreted and applied in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; United States v. Employing Plasterers Association, 347 U.S. 186, 74 S.Ct. 452, 456, 98 L.Ed. 618; Central Ice Cream Company v. Golden Rod Ice Cream Company, 7 Cir., 257 F.2d 417; Sandidge v. Rogers, 7 Cir., 256 F.2d 269. And the necessity of choice, which constitutes the injury, was allegedly generated by the asserted combination and conspiracy in unreasonable restraint of and to monopolize commerce and allegedly resulted from acts of plaintiff and the counter-defendants designedly in furtherance of such combination and conspiracy.
Where an infringement suit is brought as part of and in furtherance of a combination and conspiracy which violates the antitrust laws and results in injury such as is here alleged the person injured may recover threefold the damages he sustains. Clapper v. Original Tractor Cab Company, 7 Cir., 270 F.2d 616; Kobe, Inc. v. Dempsey Pump Co., 10 Cir., 198 F.2d 416, 424-425. And each of these cases is authority for the recovery of threefold the cost and expense of defending such an infringement suit.
We are not persuaded by plaintiff’s contention that the counterclaim is premature and therefore fails to state a claim upon which relief can be granted. The injury to defendant’s business or property occurred when plaintiff filed the infringement suit- — -the compulsion which forced the choice. Defendant’s right of action, asserted by its counterclaim, then accrued. Emich Motors Corporation v. General Motors Corporation, 7 Cir., 229 F.2d 714. The fact that the damages sought include costs and expenses yet to accrue at the time the counterclaim was filed, as well as expenditures already made to defend the patent infringement suit, does not make the counterclaim premature. Lawlor v. Loewe, 235 U.S. 522, 536, 35 S.Ct. 170, 59 L.Ed. 341. The threefold damages here claimed are not dependent or contingent upon the outcome of plaintiff’s action and plaintiff’s attempted analogy to a counterclaim for malicious abuse of process consisting of the bringing of the case in chief is inappropriate. The doctrine of Shwab v. Doelz, 7 Cir., 229 F.2d 749, and similar cases, is not applicable here. A prior adjudication that claimed patent rights are unenforceable is not an element prerequisite to the maintenance of an antitrust action for damages or injunctive relief based on misuse of the patent. And there is no justification for applying a different rule merely because the antitrust action is asserted in the form of a counterclaim in an infringement suit where the misuse is pleaded as an affirmative defense. There is no reason why assertion of the misuse defense should be conditioned upon renunciation of the right to maintain a counterclaim predicated upon the same factors upon which the alleged misuse is based. And where, as here, the right of action alleged by counterclaim has accrued it is ripe for assertion and not barred because relied upon as a defense to the plaintiff’s action. The defendant is not required to await a successful adjudication of the misuse defense before asserting its counterclaim. We find no merit in the contention that the counterclaim is premature and cannot be maintained because defendant has pleaded misuse of the patent, based on the alleged conspiracy and acts in furtherance thereof, as a defense to the infringement suit. The argument that the counterclaim is premature because if plaintiff prevails in its infringement suit the basis of the alleged misuse defense will have been adjudicated adversely to the defendant begs the question. And, that such misuse, if proved, would bar relief to plaintiff would not preclude defendant from recovery of damages it sustained by reason of the same conduct. Moreover, the misuse defense does not reach or afford a remedy against the claimed continued threat of injury and damage from the alleged conspiratorial activities of Carnation and Foremost. It is no bar to the injunctive relief sought.
In view of the position we have adopted with respect to the issues discussed we do not find it necessary to comment in detail on other arguments advanced nor to make specific reference to the cases cited and analyzed in connection with such contentions. We have, however, considered each of the arguments advanced by the parties in support of their respective positions and the authorities relied upon in support thereof.
We conclude that the amended second counterclaim stated a claim upon which relief can be granted pursuant to Sections 4 and 16 of the Clayton Act. The District Court erred in granting the motion to dismiss and entering the judgment order of dismissal.
The order entered after the notice of appeal was filed, the record lodged, and appeal docketed in this Court, does not purport to make any change in the portion of the judgment order which was the subject of defendant’s appeal — the dismissal of the amended second counterclaim and vacation of the order making Carnation and Foremost counter-defendants. It did not purport to affect the subject matter of the appeal in No. 13338 and is of no import to any issue presented by that appeal. It is not material to a consideration of the appeal. The motion of the plaintiff to make such order a part of the record on appeal in No. 13338 is therefore denied.
In appeal No. 13338 the judgment order of dismissal of the amended second counterclaim and of vacation of the order making Carnation Company and Foremost Dairies, Inc. defendants to the amended second counterclaim is reversed and the cause is remanded to the District Court with directions to reinstate Carnation Company and Foremost Dairies, Inc. as counter-defendants, to overrule the motions to dismiss the amended second counterclaim, to require Dairy Foods Incorporated to reply to said counterclaim and Carnation Company and Foremost Dairies, Inc. to answer same, and for further proceedings not inconsistent with the views herein expressed.
In its appeal in No. 13421 the defendant asserts that the District Court was without jurisdiction to enter the order it did. The defendant contends that after the notice of appeal was filed the District Court was without jurisdiction to enter such an order. But apart from consideration of that issue it is apparent that the order is not a final appealable order. The retention of continuing jurisdiction asserted by the order can be tested by appeal only if an exercise of the claimed juridsiction culminates in the entry of a judgment or order which is apealable. The appeal in No. 13421 is therefore dismissed.
No. 13338 Reversed and remanded with directions.
No. 13421 Appeal dismissed.
. Sections 1 and 2 of the Sherman Act. 15 TJ.S.C.A. §§ 1 and 2.
. Pet Milk Company, originally named as an additional counter-defendant, was later dismissed on defendant’s motion.
. 15 TJ.S.C.A. § 15.
. 15 TJ.S.C.A. § 26.
. The judgment order recites that such determination was made in accordance with Rule 54(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
. The notice of appeal in No. 13421 states, in addition, that the appeal is also from the judgment the order “purports to modify as purportedly modified.”
. Plaintiff brought its infringement suit against defendant as owner of Peebles Patent No. 2,835,586 for Dried Milk Product and Method of Making Same.
. Section 4 of the Clayton Act (15 U.S. C.A. § 15) provides: “Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by Mm sustained, and the cost of suit, including a reasonable attorney’s fee.
Section 16 of the Clayton Act (15 U.S. C.A. § 26), insofar as here pertinent, provides: “Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws * * * when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is granted by courts of equity, under the rules governing such proceedings, * *
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:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
INSURANCE CORPORATION OF IRELAND, LTD., et al. v. COMPAGNIE DES BAUXITES DE GUINEE
No. 81-440.
Argued March 23, 1982
Decided June 1, 1982
White, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, Marshall, Blackmun, Rehnquist, Stevens, and O’Connor, JJ., joined. Powell, J., filed an opinion concurring in the judgment, post, p. 709.
Edmund K. Trent argued the cause for petitioners. With him on the briefs was Thomas P. Lawton III.
Cloyd R. Mellott argued the cause for respondent. With him on the brief were Dale Hershey, Robert W. Doty, Robert L. Byer, and Jordan S. Weltman.
Justice White
delivered the opinion of the Court.
Rule 37(b), Federal Rules of Civil Procedure, provides that a district court may impose sanctions for failure to comply with discovery orders. Included among the available sanctions is:
“An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.” Rule 37(b)(2)(A).
The question presented by this case is whether this Rule is applicable to facts that form the basis for personal jurisdiction over a defendant. May a district court, as a sanction for failure to comply with a discovery order directed at establishing jurisdictional facts, proceed on the basis that personal jurisdiction over the recalcitrant party has been established? Petitioners urge that such an application of the Rule would violate due process: If a court does not have jurisdiction over a party, then it may not create that jurisdiction by judicial fiat. They contend also that until a court has jurisdiction over a party, that party need not comply with orders of the court; failure to comply, therefore, cannot provide the ground for a sanction. In our view, petitioners are attempting to create a logical conundrum out of a fairly straightforward matter.
I
Respondent Compagnie des Bauxites de Guiñee (CBG) is a Delaware corporation, 49% of which is owned by the Republic of Guinea and 51% is owned by Halco (Mining) Inc. CBG’s principal place of business is in the Republic of Guinea, where it operates bauxite mines and processing facilities. Halco, which operates in Pennsylvania, has contracted to perform certain administrative services for CBG. These include the procurement of insurance.
In 1973, Halco instructed an insurance broker, Marsh & McLennan, to obtain $20 million worth of business interruption insurance to cover CBG’s operations in Guinea. The first half of this coverage was provided by the Insurance Company of North America (IÑA). The second half, or what is referred to as the “excess” insurance, was provided by a group of 21 foreign insurance companies,14 of which are petitioners in this action (the excess insurers).
Marsh & McLennan requested Bland Payne to obtain the excess insurance in the London insurance market. Pursuant to normal business practice
“[i]n late January and in February, 1974, Bland Payne presented to the excess insurer [petitioners] a placing slip in the amount of $10,000,000, in excess of the first $10,000,000. [Petitioners] initialed said placing slip, effective February 12, 1974, indicating the part of said $10,000,000 each was willing to insure.” Finding 27 of the District Court, 2 App. 347a.
Once the offering was fully subscribed, Bland Payne issued a cover note indicating the amount of the coverage and specifying the percentage of the coverage that each excess insurer had agreed to insure. No separate policy was issued; the excess insurers adopted the INA policy “as far as applicable.”
Sometime after February 12, CBG allegedly experienced mechanical problems in its Guinea operation, resulting in a business interruption loss in excess of $10 million. Contending that the loss was covered under its policies, CBG brought suit when the insurers refused to indemnify CBG for the loss. Whatever the mechanical problems experienced by CBG, they were perhaps minor compared to the legal difficulties encountered in the courts.
In December 1975, CBG filed a two-count suit in the Western District of Pennsylvania, asserting jurisdiction based on diversity of citizenship. The first count was against INA; the second against the excess insurers. INA did not challenge personal or subject-matter jurisdiction of the District Court. The answer of the excess insurers, however, raised a number of defenses, including lack of in personam jurisdiction. Subsequently, this alleged lack of personal jurisdiction became the basis of a motion for summary judgment filed by the excess insurers. The issue in this case requires an account of respondent’s attempt to use discovery in order to demonstrate the court’s personal jurisdiction over the excess insurers.
Respondent’s first discovery request — asking for “[cjopies of all business interruption insurance policies issued by Defendant during the period from January 1, 1972 to December 31, 1975” — was served on each defendant in August 1976. In January 1977, the excess insurers objected, on grounds of burdensomeness, to producing such policies. Several months later, respondent filed a motion to compel petitioners to produce the requested documents. In June 1978, the court orally overruled petitioners’ objections. This was followed by a second discovery request in which respondent narrowed the files it was seeking to policies which “were delivered in . . . Pennsylvania ... or covered a risk located in . . . Pennsylvania.” Petitioners now objected that these documents were not in their custody or control; rather, they were kept by the brokers in London. The court ordered petitioners to request the information from the brokers, limiting the request to policies covering the period from 1971 to date. That was in July 1978; petitioners were given 90 days to produce the information. On November 8, petitioners were given an additional 30 days to complete discovery. On November 24, petitioners filed an affidavit offering to make their records, allegedly some 4 million files, available at their offices in London for inspection by respondent. Respondent countered with a motion to compel production of the previously requested documents. On December 21, 1978, the court, noting that no conscientious effort had yet been made to produce the requested information and that no objection had been entered to the discovery order in July, gave petitioners 60 more days to produce the requested information. The District Judge also issued the following warning:
“[I]f you don’t get it to him in 60 days, I am going to enter an order saying that because you failed to give the information as requested, that I am going to assume, under Rule of Civil Procedure 37(b), subsection 2(A), that there is jurisdiction.” 1 App. 115a.
A few moments later he restated the warning as follows: “I will assume that jurisdiction is here with this court unless you produce statistics and other information in that regard that would indicate otherwise.” Id., at 116a.
On April 19, 1979, the court, after concluding that the requested material had not been produced, imposed the threatened sanction, finding that “for the purpose of this litigation the Excess Insurers are subject to the in personam jurisdiction of this Court due to their business contacts with Pennsylvania.” Id., at 201a. Independently of the sanction, the District Court found two other grounds for holding that it had personal jurisdiction over petitioners. First, on the record established, it found that petitioners had sufficient business contacts with Pennsylvania to fall within the Pennsylvania long-arm statute. Second, in adopting the terms of the INA contract with CBG — a Pennsylvania insurance contract — the excess insurers implicitly agreed to submit to the jurisdiction of the court.
Except with respect to three excess insurers, the Court of Appeals for the Third Circuit affirmed the jurisdictional holding, relying entirely upon the validity of the sanction. Compagnie des Bauxites de Guinea v. Insurance Co. of North America, 651 F. 2d 877 (1981). That court specifically found that the discovery orders of the District Court did not constitute an abuse of discretion and that imposition of the sanction fell within the limits of trial court discretion under Rule 37(b):
“The purpose and scope of the ordered discovery were directly related to the issue of jurisdiction and the rule 37 sanction was tailored to establish as admitted those jurisdictional facts that, because of the insurers’ failure to comply with discovery orders, CBG was unable to adduce through discovery.” 651 F. 2d, at 885.
Furthermore, it held that the sanction did not violate petitioners’ due process rights, because it was no broader than “reasonably necessary” under the circumstances.
Because the decision below directly conflicts with the decision of the Court of Appeals for the Fifth Circuit in Familia de Boom v. Arosa Mercantil, S.A., 629 F. 2d 1134 (1980), we granted certiorari. 454 U. S. 963 (1981).
H-< ■ 4
In McDonald, v. Mabee, 243 U. S. 90 (1917), another case involving an alleged lack of personal jurisdiction, Justice Holmes wrote for the Court, “great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” Id., at 91. Petitioners’ basic submission is that to apply Rule 37(b)(2) to jurisdictional facts is to allow fiction to get the better of fact and that it is impermissible to use a fiction to establish judicial power, where, as a matter of fact, it does not exist. In our view, this represents a fundamental misunderstanding of the nature of personal jurisdiction.
The validity of an order of a federal court depends upon that court’s having jurisdiction over both the subject matter and the parties. Stoll v. Gottlieb, 305 U. S. 165, 171-172 (1938); Thompson v. Whitman, 18 Wall. 457, 465 (1874). The concepts of subject-matter and personal jurisdiction, however, serve different purposes, and these different purposes affect the legal character of the two requirements. Petitioners fail to recognize the distinction between the two concepts — speaking instead in general terms of “jurisdiction” — although their argument’s strength comes from conceiving of jurisdiction only as subject-matter jurisdiction.
Federal courts are courts of limited jurisdiction. The character of the controversies over which federal judicial authority may extend are delineated in Art. III, § 2, cl. 1. Jurisdiction of the lower federal courts is further limited to those subjects encompassed within a statutory grant of jurisdiction. Again, this reflects the constitutional source of federal judicial power: Apart from this Court, that power only exists “in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, § 1.
Subject-matter jurisdiction, then, is an Art. Ill as well as a statutory requirement; it functions as a restriction on federal power, and contributes to the characterization of the federal sovereign. Certain legal consequences directly follow from this. For example, no action of the parties can confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is irrelevant, California v. LaRue, 409 U. S. 109 (1972), principles of estoppel do not apply, American Fire & Casualty Co. v. Finn, 341 U. S. 6, 17-18 (1951), and a party does not waive the requirement by failing to challenge jurisdiction early in the proceedings. Similarly, a court, including an appellate court, will raise lack of subject-matter jurisdiction on its own motion. “[T]he rule, springing from the nature and limits of the judicial power of the United States is inflexible and without exception, which requires this court, of its own motion, to deny its jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record.” Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382 (1884).
None of this is true with respect to personal jurisdiction. The requirement that a court have personal jurisdiction flows not from Art. Ill, but from the Due Process Clause. The personal jurisdiction requirement recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty. Thus, the test for personal jurisdiction requires that “the maintenance of the suit. . . not offend ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940).
Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. In McDonald v. Mabee, supra, the Court indicated that regardless of the power of the State to serve process, an individual may submit to the jurisdiction of the court by appearance. A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court. In National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 316 (1964), we stated that “parties to a contract may agree in advance to submit to the jurisdiction of a given court,” and in Petrowski v. Hawkeye-Security Co., 350 U. S. 495 (1956), the Court upheld the personal jurisdiction of a District Court on the basis of a stipulation entered into by the defendant. In addition, lower federal courts have found such consent implicit in agreements to arbitrate. See Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F. 2d 354 (CA2 1964); 2 J. Moore & J. Lucas, Moore’s Federal Practice ¶ 4.02[3], n. 22 (1982) and cases listed there. Furthermore, the Court has upheld state procedures which find constructive consent to the personal jurisdiction of the state court in the voluntary use of certain state procedures. See Adam v. Saenger, 303 U. S. 59, 67-68 (1938) (“There is nothing in the Fourteenth Amendment to prevent a state from adopting a procedure by which a judgment in personam may be rendered in a cross-action against a plaintiff in its courts .... It is the price which the state may exact as the condition of opening its courts to the plaintiff”); Chicago Life Ins. Co. v. Cherry, 244 U. S. 25, 29-30 (1917) (“[W]hat acts of the defendant shall be deemed a submission to [a court’s] power is a matter upon which States may differ”). Finally, unlike subject-matter jurisdiction, which even an appellate court may review sua sponte, under Rule 12(h), Federal Rules of Civil Procedure, “[a] defense of lack of jurisdiction over the person ... is waived” if not timely raised in the answer or a responsive pleading.
In sum, the requirement of personal jurisdiction may be intentionally waived, or for various reasons a defendant may be estopped from raising the issue. These characteristics portray it for what it is — a legal right protecting the individual. The plaintiff’s demonstration of certain historical facts may make clear to the court that it has personal jurisdiction over the defendant as a matter of law — i. e., certain factual showings will have legal consequences — but this is not the only way in which the personal jurisdiction of the court may arise. The actions of the defendant may amount to a legal submission to the jurisdiction of the court, whether voluntary or not.
The expression of legal rights is often subject to certain procedural rules: The failure to follow those rules may well result in a curtailment of the rights. Thus, the failure to enter a timely objection to personal jurisdiction constitutes, under Rule 12(h)(1), a waiver of the objection. A sanction under Rule 37(b)(2)(A) consisting of a finding of personal jurisdiction has precisely the same effect. As a general proposition, the Rule 37 sanction applied to a finding of personal jurisdiction creates no more of a due process problem than the Rule 12 waiver. Although “a court cannot conclude all persons interested by its mere assertion of its own power,” Chicago Life Ins. Co. v. Cherry, supra, at 29, not all rules that establish legal consequences to a party’s own behavior are “mere assertions” of power.
Rule 37(b)(2)(A) itself embodies the standard established in Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909), for the due process limits on such rules. There the Court held that it did not violate due process for a state court to strike the answer and render a default judgment against a defendant who failed to comply with a pretrial discovery order. Such a rule was permissible as an expression of “the undoubted right of the lawmaking power to create a presumption of fact as to the bad faith and untruth of an answer begotten from the suppression or failure to produce the proof ordered .... [T]he preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted defense.” Id., at 350-351.
The situation in Hammond was specifically distinguished from that in Hovey v. Elliott, 167 U. S. 409 (1897), in which the Court held that it did violate due process for a court to take similar action as “punishment” for failure to obey an order to pay into the registry of the court a certain sum of money. Due process is violated only if the behavior of the defendant will not support the Hammond Packing presumption. A proper application of Rule 37(b)(2) will, as a matter of law, support such a presumption. See Societe Internationale v. Rogers, 357 U. S. 197, 209-213 (1958). If there is no abuse of discretion in the application of the Rule 37 sanction, as we find to be the case here (see Part III), then the sanction is nothing more than the invocation of a legal presumption, or what is the same thing, the finding of a constructive waiver.
Petitioners argue that a sanction consisting of a finding of personal jurisdiction differs from all other instances in which a sanction is imposed, including the default judgment in Hammond Packing, because a party need not obey the orders of a court until it is established that the court has personal jurisdiction over that party. If there is no obligation to obey a judicial order, a sanction cannot be applied for the failure to comply. Until the court has established personal jurisdiction, moreover, any assertion of judicial power over the party violates due process.
This argument again assumes that there is something unique about the requirement of personal jurisdiction, which prevents it from being established or waived like other rights. A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding. See Baldwin v. Traveling Men’s Assn., 283 U. S. 522, 525 (1931). By submitting to the jurisdiction of the court for the limited purpose of challenging jurisdiction, the defendant agrees to abide by that court’s determination on the issue of jurisdiction: That decision will be res judicata on that issue in any further proceedings. Id., at 524; American Surety Co. v. Baldwin, 287 U. S. 156, 166 (1932). As demonstrated above, the manner in which the court determines whether it has personal jurisdiction may include a variety of legal rules and presumptions, as well as straightforward factfinding. A particular rule may offend the due process standard of Hammond Packing, but the mere use of procedural rules does not in itself violate the defendant’s due process rights.
I — I l-H HH
Even if Rule 37(b)(2) may be applied to support a finding of personal jurisdiction, the question remains as to whether it was properly applied under the circumstances of this case. Because the District Court’s decision to invoke the sanction was accompanied by a detailed explanation of the reasons for that order and because that decision was upheld as a proper exercise of the District Court’s discretion by the Court of Appeals, this issue need not detain us for long. What was said in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U. S. 639, 642 (1976), is fully applicable here: “The question, of course, is not whether this Court, or whether the Court of Appeals, would as an original matter have [applied the sanction]; it is whether the District Court abused its discretion in so doing” (citations omitted). For the reasons that follow, we hold that it did not.
Rule 37(b)(2) contains two standards — one general and one specific — that limit a district court’s discretion. First, any sanction must be “just”; second, the sanction must be specifically related to the particular “claim” which was at issue in the order to provide discovery. While the latter requirement reflects the rule of Hammond Packing, supra, the former represents the general due process restrictions on the court’s discretion.
In holding that the sanction in this case was “just,” we rely specifically on the following. First, the initial discovery request was made in July 1977. Despite repeated orders from the court to provide the requested material, on December 21, 1978, the District Court was able to state that the petitioners “haven’t even made any effort to get this information up to this point.” 1 App. 112a. The court then warned petitioners of a possible sanction. Confronted with continued delay and an obvious disregard of its orders, the trial court’s invoking of its powers under Rule 37 was clearly appropriate. Second, petitioners repeatedly agreed to comply with the discovery orders within specified time periods. In each instance, petitioners failed to comply with their agreements. Third, respondent’s allegation that the court had personal jurisdiction over petitioners was not a frivolous claim, and its attempt to use discovery to substantiate this claim was not, therefore, itself a misuse of judicial process. The substantiality of the jurisdictional allegation is demonstrated by the fact that the District Court found, as an alternative ground for its jurisdiction, that petitioners had sufficient contacts with Pennsylvania to fall within the State’s long-arm statute. Supra, at 699. Fourth, petitioners had ample warning that a continued failure to comply with the discovery orders would lead to the imposition of this sanction. Furthermore, the proposed sanction made it clear that, even if there was not compliance with the discovery order, this sanction would not be applied if petitioners were to “produce statistics and other information” that would indicate an absence of personal jurisdiction. 1 App. 116a. In effect, the District Court simply placed the burden of proof upon petitioners on the issue of personal jurisdiction. Petitioners failed to comply with the discovery order; they also failed to make any attempt to meet this burden of proof. This course of behavior, coupled with the ample warnings, demonstrates the “justice” of the trial court’s order.
Neither can there be any doubt that this sanction satisfies the second requirement. CBG was seeking through discovery to respond to petitioners’ contention that the District Court did not have personal jurisdiction. Having put the issue in question, petitioners did not have the option of blocking the reasonable attempt of CBG to meet its burden of proof. It surely did not have this option once the court had overruled petitioners’ objections. Because of petitioners’ failure to comply with the discovery orders, CBG was unable to establish the full extent of the contacts between petitioners and Pennsylvania, the critical issue in proving personal jurisdiction. Petitioners’ failure to supply the requested information as to its contacts with Pennsylvania supports “the presumption that the refusal to produce evidence . . . was but an admission of the want of merit in the asserted defense.” Hammond Packing, 212 U. S., at 351. The sanction took as established the facts — contacts with Pennsylvania — that CBG was seeking to establish through discovery. That a particular legal consequence — personal jurisdiction of the court over the defendants — follows from this, does not in any way affect the appropriateness of the sanction.
> HH
Because the application of a legal presumption to the issue of personal jurisdiction does not in itself violate the Due Process Clause and because there was no abuse of the discretion granted a district court under Rule 37(b)(2), we affirm the judgment of the Court of Appeals.
So ordered.
The petition with which we deal in this case was filed as a cross-petition in response to the petition for certiorari filed in No. 81-290, Compagnie des Bauxites de Guinee v. Insurance Corp. of Ireland, Ltd. We granted the cross-petition, limiting the grant to the question of the validity of the Rule 37(b)(2) sanction. 454 U. S. 963 (1981). We shall refer to the cross-petitioners as “petitioners” and to the cross-respondent as “respondent.”
The District Court described these excess insurers as follows:
“Of the 21 Excess Insurers, five are English companies representing English domestic interests but insuring risks throughout the world, particularly in Pennsylvania. Seven are English companies which represent non English parents, or affiliates. The United States, Japan and Israel are the nationalities of two each of the Excess Insurer Defendants. Switzerland and the Republic of Ireland are the nationalities of one each of the Excess Insurer Defendants. The remaining Excess Insurer Defendant is a Belgium Company which represents the United States parent.” 1 App. 196a.
Four of the excess insurers did not contest personal jurisdiction in the District Court. Id., at 105a. The Court of Appeals directed the dismissal of the complaint with respect to three others. Compagnie des Bauxites de Guinee v. Insurance Co. of North America, 651 F. 2d 877, 886 (1981). CBG challenges the latter action in its petition for certiorari in No. 81-290.
One of the excess insurers, L’Union Atlantique S. A. d’Assurances, does business in Brussels, and was sent a separate placing slip.
The motion for summary judgment was filed on May 20,1977. In it, 17 of the excess insurers alleged a lack of in personam jurisdiction and all 21 excess insurers sought dismissal on the ground oí forum non conveniens. The District Court denied the motion on April 19, 1979.
On March 22,1979, the excess insurers instituted a suit against CBG in England, attackingthe validity of the insurance contract. Inits April 19 decision, the District Court found that “the commencement of the separate action in England [was] oppressive, unfair, and an act of bad faith under all of the circumstances.” 1 App. 203a. It, therefore, enjoined the continuation of that suit. This aspect of the District Court decision was reversed by the Court of Appeals. Respondent seeks certiorari review of that decision (see n. 1, supra,).
It reversed as to three of the excess insurers on the grounds that they had complied with the discovery orders and that their contacts with Pennsylvania were not sufficient to justify exercise of the Pennsylvania long-arm statute. It also held that the District Court had abused its discretion in enjoining the action in England. Judge Gibbons dissented on the propriety of the sanction, arguing that the District Court had abused its discretion. He also expressed some doubt that a Rule 37 sanction could ever be used as the source of personal jurisdiction. 651 F. 2d, at 892, n. 4.
In Familia de Boom, the Fifth Circuit held that a sanction under Rule 37(b)(2) is valid only if the court has personal jurisdiction over the party that has refused compliance with a court order. Personal jurisdiction must, it held, appear from the record independently of the sanction. The Courts of Appeals for the Fourth and Eighth Circuits, on the other hand, have agreed with the Third Circuit on the appropriateness of a sanction on the issue of personal jurisdiction. Lekkas v. Liberian M/V Caledonia, 443 F. 2d 10, 11 (CA4 1971); English v. 21st Phoenix Corp., 590 F. 2d 723 (CA8 1979).
A party that has had an opportunity to litigate the question of subject-matter jurisdiction may not, however, reopen that question in a collateral attack upon an adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations — both subject matter and personal. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371 (1940); Stoll v. Gottlieb, 305 U. S. 165 (1938).
It is true that we have stated that the requirement of personal jurisdiction, as applied to state courts, reflects an element of federalism and the character of state sovereignty vis-a-vis other States. For example, in World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 291-292 (1980), we stated:
“[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State. The concept of minimum contacts, in turn, can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” (Citation omitted.)
Contrary to the suggestion of Justice Powell, post, at 713-714, our holding today does not alter the requirement that there be “minimum contacts” between the nonresident defendant and the forum State. Rather, our holding deals with how the facts needed to show those “minimum contacts” can be established when a defendant fails to comply with court-ordered discovery. The restriction on state sovereign power described in World-Wide Volkswagen Corp., however, must be seen as ultimately a function of the individual liberty interest preserved by the Due Process Clause. That Clause is the only source of the personal jurisdiction requirement and the Clause itself makes no mention of federalism concerns. Furthermore, if the federalism concept operated as an independent restriction on the sovereign power of the court, it would not be possible to waive the personal jurisdiction requirement: Individual actions cannot change the powers of sovereignty, although the individual can subject himself to powers from which he may otherwise be protected.
The Advisory Committee Notes to the Rule specifically stated that “the provisions of the rule find support in [Hammond Packing Co. v. Arkansas, 212 U. S. 322 (1909)].” Final Report of Advisory Committee on Rules for Civil Procedure 25 (1937). See also Societe Internationale v. Rogers, 357 U. S. 197, 209 (1958).
Counsel for petitioners agreed to this characterization of the sanction at oral argument. Tr. of Oral Arg. 47-48.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_casesourcestate
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13
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
SANKS et al. v. GEORGIA et al.
No. 28.
Argued December 8, 1969 Reargued November 17-18, 1970
Decided February 23, 1971
HarlaN, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, BreNNAN, Stewart, White, Marshall, and BlacKMUn, JJ., joined. Black, J., filed a statement concurring in the judgment, post, p. 153.
Michael D. Padnos reargued the cause for appellants. With him on the brief were Nancy S. Cheves and John William Brent.
Alfred L. Evans, Jr., Assistant Attorney General of Georgia, reargued the cause for appellees. With him on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and A. Joseph Nardone, Jr., Assistant Attorney General.
Frank B. Zeigler filed a brief for the Legal Aid Office of Savannah, Inc., as amicus curiae urging reversal.
Mr. Justice Harlan
delivered the opinion of the Court.
We noted probable jurisdiction in this case, 395 U. S. 974 (1969), because the judgment of the Georgia Supreme Court appeared to raise substantial questions under the Fourteenth Amendment that were deserving of our plenary consideration, and because whatever conclusion this Court might reach with respect to them would definitively settle this aspect of the litigation. In brief, the Georgia Supreme Court upheld, over due process and equal protection challenges, a state statutory scheme that compelled appellants, both indigent persons who sought to contest landlord petitions for summary eviction from their homes, to post, as a condition precedent to offering any defense to summary eviction, a surety bond in double the potential amount of rent due at the end of trial. The statutes, this aspect of which was also upheld by the Georgia Supreme Court, provided further that the landlords would become entitled to such double rent should the tenant-appellants lose their cases.
The case was first heard by us at the 1969 Term, and was thereafter set for reargument at the present Term. 399 U. S. 922 (1970). At reargument it became apparent that events occurring subsequent to our notation of probable jurisdiction had so drastically undermined the premises on which we originally set this case for plenary consideration as to lead us to conclude that, with due regard for the proper functioning of this Court, we should not now adjudicate it.
I
The Georgia statutory scheme under which this case was initiated, Ga. Code Ann. §§ 61-301 to 61-305 (1966), and § 61-306 (Supp. 1969), operated in the following manner. A landlord seeking summary eviction could file an affidavit in a local court, alleging that the tenant, for one or more statutorily enumerated reasons, was unlawfully holding possession of the premises and had refused the landlord’s demand to relinquish possession. (§ 61-301.) When such an affidavit had been filed the local judicial officer was required to issue a “warrant or process” to the sheriff directing him to “deliver to the owner” the premises described in the affidavit. (§ 61-302.) The sheriff was to give the tenant four days’ notice before executing the dispossessory warrant. (§61-306 (Supp. 1969).)
The tenant could prevent immediate eviction only by filing a counter-affidavit, alleging one of several specified defenses and accompanied by a surety bond “for the payment of such sum, with costs, as may be recovered against him on the trial of the case.” (§ 61-303.) Only if the tenant followed these procedures was he then entitled to a trial on the issues raised by the affidavits. (§ 61-304.) Against this background, § 61-305 provided:
“If the issue specified in the preceding section shall be determined against the tenant, judgment shall go against him for double the rent reserved or stipulated to be paid, or if he shall be a tenant at will or sufferance, for double what the rent of the premises is shown to be worth . . .
In the case before us, appellants Sanks and Momman were served with dispossessory warrants on May 21, 1968, and July 17, 1968, respectively (App. 3, 18), and then applied for (App. 5, 20), and eventually obtained (App. 24 — 39) from the Civil Court of Fulton County a “rule nisi” permitting appellants to remain in possession of their respective premises pending resolution of the factual issues raised by their applications, so long as they timely paid their rent into court during the pendency of the litigation. Both the bond-posting requirement (§61-303) and the double-rent damages measure (§ 61-305) were declared unconstitutional and, hence, inapplicable to these eviction proceedings. (App. 27-39.) On an interlocutory appeal, the trial court’s constitutional declarations were set aside by the Supreme Court of Georgia, 225 Ga. 88, 166 S. E. 2d 19 (1969), and the judgment of the lower court was reversed.
II
Since we noted probable jurisdiction the posture of this case has shifted dramatically. Both Mrs. Momman and Mrs. Sanks have removed from the premises originally sought to be recovered by their landlords. In addition, the Georgia General Assembly has repealed virtually the entire statutory scheme that has governed this litigation from its inception and replaced it with a new one, effective July 1, 1970, that contains neither the bond-posting nor double-rent requirement. 1 Ga. Laws 1970, pp. 968-972, Ga. Code Ann. §§ 61-302 to 61-305 (Supp. 1970). Under the new law, dispossessory actions will still be commenced by the landlord’s execution of an affidavit. Now, however, this merely compels the local judicial officer to cause the tenant to be summoned to a hearing (§ 61-302), and the tenant can retain possession and force a trial of any defenses he may wish to raise simply by answering the affidavit, orally or in writing, at the hearing. (§ 61-303.) Expedited trials are encouraged. If the litigation has not been concluded within a month of the execution of the landlord’s affidavit, the tenant may retain possession by paying into court all rent as it becomes due, in addition to any rent that was due but not paid prior to issuance of the summons. (§§ 61-303, 61-304.) If the landlord ultimately prevails, his monetary damages, if any, are to be based on the actual, not double, rent found due. (§ 61— 305.) Similarly, the tenant may, in effect, stay execution of the dispossessory warrant pending appeal of an adverse determination simply by paying rent, as it accrues, into the court. (§ 61-306.)
Ill
The crux of this controversy from its inception has been appellants’ insistence that they, not their alleged landlords, had the right to lawful possession of the premises in dispute and their demands that they be permitted to remain in possession pending the outcome of the litigation. With appellants’ voluntary removal from the premises this aspect of the case is clearly moot. We have been apprised of no basis in the statutes or case law for assuming that were this Court now to hold Mrs. Sanks and Mrs. Momman were constitutionally entitled to proceed in the trial court without first posting a double-rent bond, they could then seek a decree under the statutes here at issue returning them to possession of the premises. The repealed statute spoke only of enabling a tenant already in possession to contest forcible eviction upon posting a bond. Indeed, neither appellants nor appellees — all of whom resist the suggestion that the case as a whole is moot — contend that this aspect of it is not moot. There is thus no reason to believe that, on remand, either appellant, if successful in this Court, could litigate, in the context of any proceeding that might conceivably be governed by any of the provisions of these repealed Georgia statutes, a claim to be put in possession of the premises she originally occupied.
In support of the continued justiciability of the case, appellants rely upon a subsidiary aspect of this controversy which they claim remains alive. Were this Court to affirm the Georgia Supreme Court on the merits, the case would presumably be remanded to the trial court in accordance with the Georgia Supreme Court’s mandate. There, argue appellants, those who initially procured the dispossessory warrants might then move for entry of a judgment for double damages as provided in former § 61-305. Appellants fear that such a judgment might automatically be entered because their removal from the premises might be construed as effectively conceding their lack of substantive defenses or that, even if they are still technically entitled to raise defenses, appellants’ ability to do so will be conditioned on first posting the bond. Such a result is possible only if a number of factors coalesce. First, the original moving parties, the alleged lessors, would have to decide to seek such damages from these relatively impecunious appellants. Second, the Georgia courts would have to rule that such request for damages should be adjudicated under the repealed statutes. Third, it would also be necessary for the state courts to hold that those statutes contemplated awarding double rent in the circumstances here and (see infra) on a basis that renders material the bond-posting provision.
Beyond all this, the original posture of this case has been further upset by the apparent fact that prior to moving out, and in compliance with the order of the trial court, appellants paid their rent money into the court’s registry as it became due, money that still remains on deposit there. Tr. of Oral Rearg., Nov. 18, 1970, pp. 10-11, 26.
With the case in this Court thus so reoriented, it is impossible for us to predict whether and to what extent our adjudication of the issues originally presented would now be material to any further litigation that might ensue on remand. Whether the original initiating,parties will seek double damages is a matter wholly beyond the control of this, or any other, court. Whether the existence of funds in the registry of the trial court will necessitate an adversary proceeding to redistribute them and, if so, whether that proceeding would be governed by the repealed statutes which, on their face, do not even remotely speak to this problem, are matters of pure conjecture. Because the former statutes provided for double damages only where “the issue . . . [is] determined against the tenant” (former § 61-305) and provided for joinder of issue only where a double-rent bond had first been posted (former §§ 61-303, 61-304), we are quite unable to say whether the Georgia courts would nevertheless hold this language sufficiently elastic to permit a claim for double damages where eviction was arrested by court order rather than a bond, yet insufficiently flexible to permit simultaneous waiver of the bond-posting requirement before adjudication of such a claim. Nor can we predict whether and to what extent repeal of the former statutory scheme would, on remand, be held to alter any of the conclusions respecting it which the Georgia courts might otherwise adopt in this context. All these issues, so far as it appears, would be matters of first impression for the Georgia judiciary.
IV
Given this imponderable legal tangle, involving, as it does, purely matters of state law, we perceive no other responsible course for this Court than to decline, at this stage, to adjudicate the issues originally presented. We do not rest this conclusion on a determination that the case is moot. Conceivably, appellants may on remand be subjected to the double-rent or bond-posting requirements of the former statutes. But it has always been a matter of fundamental principle with this Court, a principle dictated by our very institutional nature and constitutional obligations, that we exercise our powers of judicial review only as a matter of necessity. As said in United States v. Petrillo, 332 U. S. 1, 5 (1947), “We have consistently refrained from passing on the constitutionality of a statute until a case involving it has reached a stage where the decision of a precise constitutional issue is a necessity.” Manifestly, it cannot plausibly be maintained that this is such a case. Indeed, the only thing that is now apparent about this lawsuit is that the clear-cut constitutional issues it formerly presented cannot with any certainty be said to be relevant to the issues remaining in it, if, in fact, any issues do remain.
Moreover, even were the constitutional issues certain to arise below we cannot foretell the context in which they will appear. Possibly the double-rent provision will be successfully invoked, but not the bond-posting requirement. Similarly, if the latter is held applicable, we would at this stage be required to adjudicate, in advance of that fact, its validity as a precondition not to resisting summary eviction, which is its normal and clearly intended use, but to contesting a claim for damages only. The operative competing constitutional considerations, particularly the nature and scope of the State’s interest in imposing such a barrier to litigation, may well be significantly different depending on the principal purposes for which the bond is required. Yet, given the debilitated state of this lawsuit, we could address only the subsidiary problem — and this in a legal context where we would not know whether that problem will ever arise.
The principle of prudent restraint we invoke today is nothing new, although, happily, it has not frequently proved necessary to dispose of appeals on this basis. United States v. Fruehauf, 365 U. S. 146 (1961), provides an apt analogy. There the United States had appealed the dismissal of an indictment brought under § 302 (a) of the Taft-Hartley Act, 61 Stat. 157, which made it unlawful “for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees,” where the lower court had construed a Government pretrial memorandum as a concession that the transaction forming the basis of the indictment was a loan and held that the statute did not penalize management for loaning money to union officials. This Court noted probable jurisdiction to consider the validity of this construction of the statute, but after oral argument the Solicitor General represented to the Court that he felt the Government was free, on remand, to prove the transaction came within the statute because its particular facts revealed this was not a bona fide loan. This occurrence left the precise issue to be decided so opaque and the extent to which a decision would resolve the controversy so uncertain that the Court, in effect, was being asked to render an “advance expression of legal judgment upon issues which remain unfocused,” 365 U. S., at 157. Accordingly, the Court remanded the case without further adjudication.
In the case now before us subsequent events have produced similar consequences. The focus of this lawsuit has been completely blurred, if not altogether obliterated, and our judgment on the important issues involved is potentially immaterial. Indeed, the instant case is obviously more compelling than Fruehauf, since this one presents an issue of constitutional, not statutory, interpretation.
Similarly, in Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 (1947), the Court declined to adjudicate an appeal presenting important constitutional issues because those issues were, on close inspection, so intertwined with complex problems of construing the Los Angeles Municipal Code that it was not possible to tell with precision at that stage in what context and to what extent the appellants’ freedom was being restrained. So, here, we do not know, assuming the bond-posting or double-damages provisions ultimately are successfully invoked, in what context this will occur, or what the precise rationale for applying them will be.
In short, resolution by this Court at this time, of the issues originally raised by appellants would not be appropriate. We leave ourselves completely free, of course, to review these issues should appellants’ fears that they will be adversely affected by the repealed statutes subsequently be confirmed by proceedings in the Georgia courts.
Accordingly, the appeal will be dismissed and the case remanded to the Supreme Court of Georgia.
It is so ordered.
Mr. Justice Black concurs in the judgment of the Court dismissing this appeal but does so specifically on the ground that the case is now moot.
Mrs. Sanks intended to contest the dispossessory warrant on the ground that she is not, in fact, the tenant of the person seeking to evict her. App. 5.
Georgia has a statutory policy disapproving the retroactive application of new statutes. Ga. Code Ann. § 102-104 (1968). However, the statute expressly distinguishes “[l]aws looking only to the remedy or mode of trial.” Conceivably, this case might be held to fall within that exception. Moreover, we cannot foretell whether a subsequent motion for double damages would be treated as, in effect, a new lawsuit filed well after passage of the new Act.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_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".
COLUMBIAN NAT. LIFE INS. CO. v. GRIFFITH.
No. 9959.
Circuit Court of Appeals, Eighth Circuit.
Oct. 12, 1934.
David A. Murphy, of Kansas City, Mo. (Harding, Murphy & Tucker, of Kansas City, Mo., on the brief), for appellant.
Roger C. Slaughter, of Kansas City, Mo. (Mord M. Bogie and Henry L. Jost, both of Kansas City, Mo., on the brief), for appellee.
Before SANBORN and WOODROUGH, Circuit Judges, and DEWEY, District Judge.
SANBORN, Circuit Judge.
On August 20, 1924, the Columbian National Life Insurance Company issued a $5,-000 policy of life insurance to Harry T. Fowler, payable, upon receipt of due proof of death, to his representatives or assigns. The policy was a Missouri contract. Premiums were payable August 20th of each year. Lauretta J. Griffith became the assignee of the policy. The insured borrowed from the company $670.26, and the assignee joined with him in a pledge of the policy as security for the loan. The loan was never repaid. Premiums were paid to August 20, 1931. The premium due on that day was not paid, and the policy lapsed. The insured died March 9, 1932. At the time of lapse the policy had a net value which, if applied to the purchase of extended insurance, would have carried the policy beyond the date of death, or, if applied to the purchase of paid-up insurance, would have purchased such insuranee to the amount of $452. The assignee furnished due proof of death, and demanded the face of the policy less indebtedness. The company denied liability for more than $452. The assignee then brought this action to recover the face of the policy less the amount of the loan. In its answer, the company renewed its tender of $452. A jury trial was waived. There was no dispute as to the facts. The court resolved the issue of law in favor of the plaintiff, and from the judgment the defendant has appealed.
The question to he determined is whether, upon the lapse of the policy, the net value or net reserve available for the purchase of paid-up or of extended insurance was, under the terms of the policy and the statutes of Missouri, to he applied to the purchase of extended insurance or to the purchase of paid-up insurance. It is certain that, after lapse, the insured did not have both extended and paid-up insurance; i. e., extended insurance if he died within the period during which his equity in the policy would have carried it for its face value, and paid-up insurance for $452 if lie lived beyond that period. If his assignee, the plaintiff, could have recovered the paid-up value of the policy had the insured lived beyond the term of extended insurance, then she cannot recover the face of the policy, less indebtedness, merely because he died wiihin what would have been the term of extended insurance, had the net value of the policy been used to purchase such insurance. Reduced to its lowest- terms, the question is whether the policy contained an automatic option for extended insurance or an automatic option for paid-up insurance.
By the language of the policy, the grace period for the payment of premiums was 31 days, and it was provided that, in ease of lapse after 3 years’ premiums had been paid, “the policy shall become effective automatically for Paid-up Insurance, payable as provided on the first page hereof, the amount granted being as stated in the table of values herein for the number of years the policy has been in force. This I’aid-np Insurance shall have increasing Cash and Loan Values.” It was also provided that the insured might, by written notice given within the grace period, elect to take extended insurance or the cash value; and that, “if there be any indebtedness to the Company on this policy, including any unpaid premium or portion thereof to the date of lapse or surrender’, the Cash and Loan Values will be diminished thereby, and the Paid-Up or. Extended Insurance will be such as may be purchased by the Cash Value so diminished, such Extended Insurance to be for an amount equal to the sum insured less such indebtedness.” The policy also contained the usual provisions relative to reinstatement and adjustment of the amount of insurance in case of misstatement of the age of the insured. The first page of the policy provided that the insurance should be payable upon receipt of due proof of death. It is conceded that the insured made no election to take extended insurance or the cash value of the policy.
The nonforfeiture statutes of Missouri are now sections 5741, 5742, and 5743, R. S. Missouri, 1929 (Mo. St. Ann..§'§ 5741-5743, pp. 4388, 4393, 4394). It is unnecessary to quote them. Their purpose is the same as that of all such statutes; namely, to secure to an insured who has paid premiums for 3 or more years substantially what the excess of his contributions over the cost and expense properly attributable to the carrying of his insurance to the date of lapse, will purchase in the way of extended or paid-up insurance.
Section 5741, as construed by the Supremo Court of Missouri, in effect provides an automatic option for extended insurance equal to the faee of the policy, less indebtedness, in ease of lapse after the payment of three or more annual premiums. See Gooch v. Metropolitan Life Ins. Co., 333 Mo. 191, 61 S.W.(2d) 704; Trapp v. Metropolitan Life Ins. Co. (C. C. A. 8) 70 F.(2d) 976.
Section 5742 permits the “legal holder of a policy” to elect within 60 days from the beginning of the extended insurance provided by section 5741 to take, in lieu thereof, a paid-up policy.
Section 5743 provides that, if death occurs within the term of “temporary” or extended insurance as provided by section 5741, the company shall pay as though there had been no default in premium, but shall be entitled to notice of claim and proof of death as provided in the policy within 90 days after death, and shall have the right to deduct forborne premiums with compound interest, not exceeding ordinary life premiums for age at issue.
Section 5744, which follows the three sections just referred to (Mo. St. Ann. § 5744, p. 4395), provides: “The three preceding sections shall not be applicable in the following cases, to-wit: If the policy shall contain a provision for an unconditional surrender value, at least equal to the net single premium, for the temporary [extended] insurance provided for hereinbefore, or for the unconditional commutation of the policy for nonforfeitable paid-up insurance: * * * Provided, that in no instance shall a policy be forfeited for nonpayment of premiums after the payment of three annual payments thereon; but in all instances where three annual premiums shall have been paid on a policy of insurance, the holder of such policy shall be entitled to paid-up or extended insurance, the net value of which shall be equal to that provided for in this article.”
In the case with which we are concerned, the net value of the paid-up insurance was equal to that provided for by the statutes referred to.
Confining ourselves to the language of the policy and that of the applicable statutes of Missouri, we should unhesitatingly say that the policy contained a provision for “the unconditional commutation of the policy for nonforfeitable paid-up insurance.” In simple language, “commutation” means the substitution of one thing for. another; “unconditional” means without conditions; “paid-up insurance” means insurance which has been fully paid for; and “nonforfeitable” means not subject to forfeiture. The commutation provided for by this policy was automatic and unconditional, and the paid-up insurance was not subject to forfeiture. But we are told by the plaintiff that, since the insured might, by his own act after lapse, have reinstated the policy, or, by his election, might, within 31 days, have chosen to take extended insurance or to surrender his policy and accept its cash value, and since conceivably the provision of the policy with respect to misstatement of age might be deemed to affect the paid-up insurance, the provision for commutation may not be regarded as unconditional. Apparently the theory of the plaintiff is that, in order to avoid the automatic option for extended insurance provided by the statute, the insured and the company must agree that, upon lapse after 3 years’ premiums have been paid, the insured must relinquish his right to reinstate and his privilege of taking extended insurance or surrendering his policy for cash, and must accept a provision for an unchangeable amount of nonforfeitable paid-up insurance which is unconditional and cannot be converted by the insured into anything else or into cash except by death. If the position of the plaintiff is sound,, we see no reason why virtually every life insurance company doing business in Missquri which has issued similar policies in that state may not write off all of its liability for paid-up insurance under the automatic options of such policies, and eaneel all liability thereunder where the insured has lived beyond the term of extended insurance. We question whether any life insurance company doing business in that or any other state has issued a policy which has what the plaintiff would regard as a provision for an unconditional commutation of the policy into nonforfeitable paid-up insurance.
We do not find, however, that the Missouri courts have gone to such lengths as the plaintiff claims in invalidating automatic provisions for paid-up insurance in ease of lapse after three or more «annual premiums have been paid.
A provision, in a life policy, for paid-up insurance upon demand or upon application of the insured after lapse, or upon surrender of the policy, is not a provision for “unconditional commutation,” Cravens v. New York Life Ins. Co., 148 Mo. 583, 50 S. W. 519, 53 L. R. A. 305, 71 Am. St. Rep. 628; McLeod v. John Hancock Mutual Life Ins. Co., 190 Mo. App. 653, 176 S. W. 234; Smith v. Mutual Benefit Life Ins. Co., 173 Mo. 329, 72 S. W. 935, nor is a provision that an arrangement for paid-up insurance shall be made on an anniversary date upon payment of the premium then due, Gibson v. State Mutual Life Assur. Co., 184 Mo. App. 656, 171 S. W. 979, nor is one which makes paid-up insurance dependent upon there being no loan upon the policy, Whittaker v. Mutual Life Ins. Co., 133 Mo. App. 664, 114 S. W. 53 (but compare Stark v. John Hancock Mutual Life Ins. Co., 176 Mo. App. 574, 159 S. W. 758), nor is one which makes the paid-up insurance effective after lapse provided no other election is made by the insured within a certain time thereafter, Bothmann v. Metropolitan Life Ins. Co., 299 Mo. 269, 252 S. W. 652; Seeburger v. Metropolitan Life Ins. Co. (Mo. App.) 253 S. W. 485, nor is a provision for a paid-up policy or a free policy in ease of lapse, Ross v. Capitol Life Ins. Co., 205 Mo. App. 243, 228 S. W. 889; Hickey v. Metropolitan Life Ins. Co. (Mo. App.) 270 S. W. 388; State ex rel. Metropolitan Life Ins. Co. v. Daues (Mo. Sup.) 297 S. W. 951.
In Givens v. Ætna Life Ins. Co. (Mo. App.) 59 S.W.(2d) 761, it was held that, where a policy provided an automatic option for a surrender value, it was unconditional, although the insured might, within 2 months thereafter, elect to take extended insurance or a paid-up policy. In Dempsey v. John Hancock Mutual Life Ins. Co. (Mo. App.) 248 S. W. 17,18, the policy provided that the company would, “without any action on the. part of the insured, continue this policy as participating paid-up insurance, payable at death, for $523.00.” This was held to be a provision for unconditional commutation. The court said: “An insurance company may by its policy provide for on unconditional commutation of same for a paid-up policy for a definite sum after default of payment of certain premiums, and yet provide in the policy that, if there is an existing indebtedness, such sum is to be deducted in favor of the insurer.”
In the recent case of Clark v. John Hancock Mutual Life Ins. Co. (Mo. App.) 58 S.W.(2d) 484, the St. Louis Court of Appeals hold that a provision that “without action on the part of the holder, the policy will be continued for its value in participating paid-up life insurance * * * which will have a yearly increasing surrender value in no event less than that required by law,” was a provision for an unconditional commutation into nonforfeitable paid-up insurance. In State ex rel. Clark v. Becker et al., 73 S.W.(2d) 769, the Supreme Court of Missouri, Division No. 3, held that the decision of the St. Louis Court of Appeals in Clark v. John Hancock Mutual Life Ins. Co., supra, did not conflict with State ex rel. Metropolitan Life Ins. Co. v. Danes, supra, 297 S. W. 951, and Bothmann v. Metropolitan Life Ins. Co., supra, 299 Mo. 269, 252 S. W. 652.
We have reached the conclusion that there is no decision of the Supreme Court of Missouri which requires us to hold that the policy with which we are concerned did not contain a provision for an unconditional commutation for nonforfeitable paid-up insurance. In State ex rel. Metropolitan Life Ins. Co. v. Daues, supra, 297 S. W. 951, the court said with respect to the incontestable clause and the misstatement of age clause as imposing conditions upon paid-up insurance (page 952 of 297 S. W.) : “Whether such a policy is ‘nonforfeitable/ as that term is used in section 0154 [5744], wa.s not passed upon in the Bothmann Case, nor has it ever been passed upon by this court no far as we are advised.”
In the cane of Bothmann v. Metropolitan Life Ins. Co., supra, 299 Mo. 269, 252 S. W. 652, 655, 656, the Supreme Court of Missouri said: A surrender value, or a paid-up policy, to be allowed an insured, is not unconditional, if there is any limitation as to the time or circumstances under which it is to take effect. If it is to become effective at a certain time, or upon the existence of certain facts, whether anything is required of the insured or not, it is conditional, and not within the terms of section 6154 [5744].”
The provision of the policy in suit for its commutation into paid-up insurance operated at the time of default. It was automatic at the moment of lapse.
There is justification for the plaintiff’s claim that, under the rulings of the Missouri courts, not only must the commutation be unconditional, but the paid-up insurance into which the policy is commuted must be nonforfeitable and also unconditional. Our view, however, is that the provision here under consideration gave to the insured automatically upon lapse all of the paid-up insurance which the net value of his policy entitled him to, and that such insurance was nonforfeitable and unconditional within the meaning of the Missouri statutes and decisions.
The court below was of the opinion that the provision for commutation of the policy into paid-up insurance was not applicable where there was a policy loan, but seems to have overlooked the effect of the provision which we have quoted, requiring a reduced amount of paid-up insurance where there is a loan. See Dempsey v. John Hancock Mutual Life Ins. Co., supra, 248 S. W. 17, 18.
The Supreme Court of Missouri in the future may not adhere to its recent decision in the case of State ex rel. Clark v. Becker et al., supra, 73 S.W.(2d) 769, as the plaintiff predicts, and may hold that, unless a policy contains a provision for unconditional commutation into nonforfeitable paid-up insurance which must be unconditional and incapable of being affected by reinstatement or the exercise of any additional option granted to the insured by the company, the nonforfeiture statutes apply. Wo shall indulge in no prophecies, however. If the language of section 5744 is to be further extended by construction, that should be done by the Supreme Court of Missouri, and not by this court. We think that the rights of those who have, or who suppose that they have, acquired paid-up insurance under automatic options of lapsed life policies,- should be kept in mind, as well as the rights of those who would be benefited by a holding that such options were void.
The truth is that the insured in this case failed to take extended insurance when he lapsed his policy, beeause, like many other persons, he did not know when he was go-" ing to die. Because he died at the time he did, the plaintiff wants extended insurance. If he had died later and at a time to which the value of the policy would not have extended his insurance, she would have insisted on paid-up insurance. What she requires is a statute providing that the owner of a lapsed policy may elect, upon the death of the insured, whether to take extended or paid-up insurance.
It is contended by the plaintiff that, since this was a jury waived case, and since the record fails to show that requests for findings of fact or declarations of law were made prior to the time that the court indicated how it was going to decide the question of law involved, we may not consider whether there is evidence to sustain the judgment. It appears from the record that requests for findings of fact and declarations of law were made by the defendant prior to the time that the court made the general finding in favor of the plaintiff, and that the court considered and ruled upon the defendant’s requests. The situation is almost identical with that with which this court was confronted in Mandel Bros., Inc., v. Henry A. O’Neil, Inc., 69 F.(2d) 452. At page 455 of 69 F.(2d) we said:
“It will be noted that the findings of fact and conclusions of law requested by appellant were presented to the trial court, and ruling asked and obtained some weeks after the hearing ended, and after the issues of fact and law had been submitted to the trial judge for decision; and that that decision had been made known, although not formally entered. In such case, under ordinary circumstances, this court has many times held that, in an action at law tried without jury, the question of law of whether or not there was any substantial evidence to support the court’s findings is not reviewable. Southern Surety Co. v. United States (C. C. A.) 23 F.(2d) 55; Denver Live Stock Commission Co. v. Lee (C. C. A.) 18 F.(2d) 11; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60.
“However, because of the action of the trial court, in apparent recognition of the stipulation of counsel to hold the final disposition of the case open until December 31, 1932, to enable appellant to take such steps as might be deemed necessary to preserve its record on appeal, we do not feel justified in denying to it such review as may otherwise be permissible.”
The defendant calls our attention to United States Fidelity & Guaranty Co. v. Board of Com’rs (C. C. A. 8) 145 F. 144, 151, in which this court held that a request for a declaration of law must be made before the trial ends, and that “the trial ends only when the finding is filed, or, if no finding is filed before, when the judgment is rendered.”
Unquestionably the proper practice in such eases is to present the request for findings and declarations, or the motion for judgment on the sole ground that the evidence will support no other conclusion, at the close of the evidence and before the ease is submitted to the trial judge for decision. However, in this case, as in the case of Mandel Bros., Inc., v. Henry A. O’Neil, Inc., supra, the court received the requests after the case was submitted and before it was finally terminated, and considered and ruled upon them. The court treated the requests as though made in time. Under the circumstances, we would not feel justified in denying the defendant a review of this case upon its merits.
It is our opinion that the plaintiff was entitled to the amount which the insurance company tendered her, and to no more.
The judgment is reversed and the case remanded for disposition in conformity with this opinion.
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_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.
KILMER et al. v. GUSTASON et al.
No. 14467.
United States Court of Appeals Fifth Circuit.
March 31, 1954.
C. Clyde Atkins, Miami, Fla., Cecil T. Farrington, Ft. Lauderdale, Fla., Walton, Hubbard, Schroeder, Lantaff & Atkins, Miami, Fla., for appellants.
T. J. Blackwell, S. J. Powers, Jr., Cody Fowler ' and Walter Humkey, Blackwell, Walker & Gray and Fowler, White, Gillen, Yancey & Humkey, all of Miami, Fla., for appellees.
Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge:
STRUM, Circuit Judge.
Plaintiff below, John E. Gustason, ap-pellee here; individually recovered judgment for $15,000 for personal injuries to himself, and in a separate action as administrator of ■ his wife’s estate $27,000 for her wrongful death as a result of an automobile collision alleged to have been the result of the negligence of Marion A. L. Kilmer, who, together with his wife, Cora, were also killed in the collision.
The collision occurred in Iowa. The suits were brought in Florida. The plaintiff, Gustason, was the driver of one ear, Mr. Kilmer driver of the other. The suits were brought against Kilmer’s personal representatives. In Gustason’s individual suit, the defendants filed a counterclaim asserting that Gustason’s negligence was the proximate cause of the collision, but there was a jury verdict of not guilty on the counterclaim.
On appeal, defendants below contend that the trial court erred by permitting the plaintiff, Gustason, to testify as to certain of his own actions, and the position, speed and movements of his own car immediately before the collision. Defendants assert that the admission of this testimony was contrary to Section 90.05, Fla.Stat.Ann., sometimes called the “dead man” statute, which provides, 'inter alia, that no party to any action or proceeding, nor any person interested in the event (sic) thereof, shall be examined as a witness in regard to any transaction or communication between such witness and a person at the time of such examination deceased or insane. Defendants contend that the collision was a “transaction” within the purview of the statute,, and Kilmer being dead the plaintiff, Gustason, should not have been allowed to testify.
In U. S. A. C. Transport, Inc. v. Cor-ley, ,5 Cir., 202 F.2d 8, this court recently considered a like question arising under Section 38-1603(8) of the Georgia Code, which is of substantially like effect as the Florida statute in the respect here under consideration.. We there held that in an action for damages .by the surviving driver of an automobile for .'injuries sustained in a collision with a truck, the driver of which was dead at the time of the trial, it was not reversible error to permit the plaintiff to testify concerning his own actions, and the position and movements of his own car just prior to the collision.
That case is decisive here. The trial judge permitted this plaintiff to testify only as to his own actions, and the position and movements of his own car. These were independent facts, not a part of any transaction or communication between the two drivers. The trial judge, however, carefully excluded all testimony by the plaintiff pertaining to the deceased’s car and its movements, even to the extent of forbidding plaintiff to testify that there was in fact a collision. There was no reversible error in. admitting the evidence in question. In any event, however, Gustason’s testimony on these matters was merely cumulative, and therefore harmless, as all the facts surrounding the collision were also established by the testimony of other and disinterested witnesses. Sea Crest Corp. v. Burley, Fla., 38 So.2d 434; Smith v. Biscayne Park Estates, Fla., 42 So.2d 442; Community Natural Gas Co. v. Henley, 5 Cir., 54 F.2d 59.
The cause of action having arisen in Iowa, the elements and quantum of damages are governed by the laws of that state. Under Iowa law, loss of services and consortium are not recoverable individually by a husband in an action for the death of or injury to his wife. Appellants charge that reversible error was committed by the inclusion of this element of damage in appellees’ complaint and opening statement, which the trial court allowed to go to the jury over objection, and that the court erred in refusing to specifically charge the jury that these elements of damage were not recoverable.
Amongst other things the trial judge stated to the jury in his final charge that the plaintiff originally claimed damages for the loss of services and consortium of his wife, but he had discovered that that element of damage was not recoverable under the laws of Iowa and was being abandoned, “and it is not a claim now included in his demand against the defendants’ estate.” This was a part of the court’s general charge given to the jury just before it retired to consider its verdict. In our opinion, this charge adequately rectified any misstatement of the Iowa rule in counsel’s opening statement to the jury.
Appellants also assert that the judgments are excessive, and should for that reason be reversed, citing several Iowa cases to support the charge of ex-cessiveness. A federal appellate court, however, does not undertake to determine whether a verdict is excessive in fact, but only whether the district court abused its discretion as a matter of law in granting or refusing a new trial on the ground of excessiveness. Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627; Braniff International Airways v. Harman, 5 Cir., 202 F.2d 928; Sunray Oil Corp. v. Allbritton, 5 Cir., 188 F.2d 751; Atlantic Coast Line R. Co. v. Burkett, 5 Cir., 192 F.2d 941. Certainly it can not be said that these judgments are so inordinately excessive as to be contrary to reason, or the result of sympathy, passion, or prejudice, so as to render them excessive in law.
Finding no error, the judgments appealed from are each Affirmed.
. The Florida Supreme Court holds that “transactions and communications,” as used in Section 90.05, supra, embrace every .variety of affairs which can form the subject of negotiation, interviews, or . actions, between two persons, and include every method by which one person can ■derive impressions or information from the conduct, condition or language of another. Embrey v. Southern Gas & Electric Corp., Fla., 63 So.2d 258, 263; Chapin v. Mitchell, 44 Fla. 225, 32 So. 875, 876.
. In the Georgia suit, plaintiff was permitted to testify, over objection, that he was going 50 miles per hour when he first came- in sight of the bridge, near the south end of which the collision occurred; that he slowed down to 3 or 4 miles per hour when 30 or 40 feet south of the bridge; that he was on his own right hand side of the road ■ as far as he could go and never got to the left of the center of the road.
. In the case at bar, the trial court permitted plaintiff to testify over defendants’ objection: “That when approaching the curve (on which the accident occurred), Gustason was traveling not over 30 miles an hour. That Gustason saw more than one car approaching from the opposite direction on the other side of the highway. That the approaching car passed Gustason when he was about one-third of the way into the curve. That Gustason was on the right hand driving lane. That Gustason stayed on the right hand side of the road. That Gusta-son’s ear came to a sudden stop. That Gustason did not get out of his car on his own power. That the Gustason automobile was on the extreme edge of the pavement, on the southwest side (right hand) of the curve after it stopped. That the highway lanes of traffic were marked with a white center line and yellow no-passing lines in each lane of traffic. That before Gustason got out of his automobile the right wheels of his automobile were between six inches and a foot off the edge of the slab. That Gus-tason’s left wheel was just inside the slab. That Gustason’s left wheel was just inside the yellow line in his lane of traffic. That Gustason had been driving on the outside of his half of the road all the time in the curve.”
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_casesource
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024
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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.
ESTELLE, CORRECTIONS DIRECTOR v. WILLIAMS
No. 74-676.
Argued October 7, 1975
Decided May 3, 1976
BurgeR, C. J., delivered the opinion of the Court, in which Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, in which Stewart, J., joined, post, p. 513. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 515. Stevens, J., took no part in the consideration or decision of the case.
Dunklin Sullivan, Assistant Attorney General of Texas, argued the cause for petitioner. With him on the brief were John L. Hill, Attorney General, David M. Kendall, First Assistant Attorney General, and Joe B. Dibrell and Lonny F. Zwiener, Assistant Attorneys General.
Ben L. Aderholt, by appointment of the Court, 421 U. S. 907, argued the cause and filed a brief for respondent. [Reporter’s Note: Mr. Aderholt represented the respondent before this Court only. Cf. post, at 513-514, 514, and 523.]
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari in this case to determine whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws.
In November 1970, respondent Williams was convicted in state court in Harris County, Tex., for assault with intent to commit murder with malice. The crime occurred during an altercation between respondent and his former landlord on the latter’s property. The evidence showed that respondent returned to the apartment complex where he had formerly resided to visit a female tenant. While there, respondent and his former landlord became involved in a quarrel. Heated words were exchanged, and a fight ensued. Respondent struck the landlord with a knife in the neck, chest, and abdomen, severely wounding him.
Unable to post bond, respondent was held in custody while awaiting trial. When he learned that he was to go on trial, respondent asked an officer at the jail for his civilian clothes. This request was denied. As a result, respondent appeared at trial in clothes that were distinctly marked as prison issue. Neither respondent nor his counsel raised an objection to the prison attire at any time.
A jury returned a verdict of guilty on the charge of assault with intent to murder with malice. The Texas Court of Criminal Appeals affirmed the conviction. Williams v. State, 477 S. W. 2d 24 (1972). Williams then sought release in the United States District Court on a petition for a writ of habeas corpus. Although holding that requiring a defendant to stand trial in prison garb was inherently unfair, the District Court denied relief on the ground that the error was harmless.
The Court of Appeals reversed on the basis of its own prior holding in Hernandez v. Beto, 443 F. 2d 634 (CA5), cert. denied, 404 U. S. 897 (1971). 500 F. 2d 206. The Fifth Circuit disagreed with the District Court solely on the issue of harmless error.
(1)
The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. Drope v. Missouri, 420 U. S. 162, 172 (1975). The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:
“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U. S. 432, 453 (1895).
To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U. S. 358, 364 (1970).
The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Estes v. Texas, 381 U. S. 532 (1965); In re Murchison, 349 U. S. 133 (1955). Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.
The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. Gaito v. Brierley, 485 F. 2d 86 (CA3 1973); Hernandez v. Beto, supra; Brooks v. Texas, 381 F. 2d 619 (CA5 1967); Commonwealth v. Keeler, 216 Pa. Super. 193, 264 A. 2d 407 (1970); Miller v. State, 249 Ark. 3, 457 S. W. 2d 848 (1970); People v. Shaw, 381 Mich. 467, 164 N. W. 2d 7 (1969); People v. Zapata, 220 Cal. App. 2d 903, 34 Cal. Rptr. 171 (1963), cert. denied, 377 U. S. 406 (1964); Eaddy v. People, 115 Colo. 488, 174 P. 2d 717 (1946). The American Bar Association’s Standards for Criminal Justice also disapprove the practice. ABA Project on Standards for Criminal Justice, Trial by Jury § 4.1 (b), p. 91 (App. Draft 1968). This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. Turner v. Louisiana, 379 U. S. 466, 473 (1965).
That such factors cannot always be avoided is manifest in Illinois v. Allen, 397 U. S. 337 (1970), where we expressly recognized that “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant . . . ,” id., at 344; yet the Court upheld the practice when necessary to control a contumacious defendant. For that reason, the Court authorized removal of a disruptive defendant from the courtroom or, alternatively, binding and gagging of the accused until he agrees to conduct himself properly in the courtroom.
Unlike physical restraints, permitted under Allen, supra, compelling an accused to wear jail clothing furthers no essential state policy. That it may be more convenient for jail administrators, a factor quite unlike the substantial need to impose physical restraints upon contumacious defendants, provides no justification for the practice. Indeed, the State of Texas asserts no interest whatever in maintaining this procedure.
Similarly troubling is the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the Fourteenth Amendment. Griffin v. Illinois, 351 U. S. 12 (1956).
(2)
The Fifth Circuit, in this as well as in prior decisions, has not purported to adopt a per se rule invalidating all convictions where a defendant had appeared in identifiable prison clothes. That court has held, for instance, that the harmless-error doctrine is applicable to this line of cases. 500 F. 2d, at 210-212. See also Thomas v. Beto, 474 F. 2d 981, cert. denied, 414 U. S. 871 (1973); Hernandez v. Beto, supra, at 637. Other courts are in accord. Bentley v. Crist, 469 F. 2d 854, 856 (CA9 1972) Watt v. Page, 452 F. 2d 1174, 1176-1177 (CA10), cert. denied, 405 U. S. 1070 (1972). In this case, the Court of Appeals quoted the language of Mr. Justice Douglas, speaking for the Court in Harrington v. California, 395 U. S. 250 (1969):
“We held in Chapman v. California that 'before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ We said that. .. not all ‘trial errors which violate the Constitution automatically call for reversal.’ ” Id., at 251-252 (citations omitted).
In Chapman v. California, 386 U. S. 18 (1967), the Court, speaking through Mr. Justice Black, held:
“We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.' . . . We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Id., at 21-22 (citation and footnote omitted).
In other situations, when, for example, the accused is being tried for an offense committed in confinement, or in an attempted escape, courts have refused to find error in the practice. In United States ex rel. Stahl v. Henderson, 472 F. 2d 556 (CAS), cert. denied, 411 U. S. 971 (1973), the Court of Appeals declined to overturn a conviction where the defendant, albeit tried in jail clothes, was charged with having murdered another inmate while confined in prison. “No prejudice can result from seeing that which is already known.” 472 F. 2d, at 557. In the present case, the Court of Appeals concluded :
“A different result may be appropriate where the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event.” 500 F. 2d, at 209 n. 5.
Contra: People v. Roman, 35 N. Y. 2d 978, 324 N. E. 2d 885 (1975).
Consequently, the courts have refused to embrace a mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb. Instead, they have recognized that the particular evil proscribed is compelling a defendant, against his will, to be tried in jail attire. The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury. Anderson v. Watt, 475 F. 2d 881, 882 (CA10 1973); Watt v. Page, supra, at 1176. Cf. Garcia v. Beto, 452 F. 2d 655, 656 (CA5 1971). This is apparently an accepted practice in Texas courts, Barber v. State, 477 S. W. 2d 868, 870 (Tex. Crim. App. 1972), including the court where respondent was tried.
Courts have therefore required an accused to object to being tried in jail garments, just as he must invoke or abandon other rights. The Fifth Circuit has held: “A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.” Hernandez v. Beto, 443 F. 2d, at 637. The essential meaning of the Court of Appeals’ decision in Hernandez has been described by that court as follows:
“We held [in Hernandez] that the defendant and his attorney had the burden to make known that the defendant desired to be tried in civilian clothes before the state could be accountable for his being tried in jail clothes . . . .” United States ex rel. Stahl v. Henderson, 472 F. 2d, at 557.
Similarly, the Ninth Circuit has indicated that the courts must determine whether an accused “was in fact compelled to wear prison clothing at his state court trial.” Bentley v. Crist, 469 F. 2d, at 856. See also Dennis v. Dees, 278 F. Supp. 354, 359 (ED La. 1968), disapproved on other grounds, United States ex rel. Stahl v. Henderson, supra, at 557; People v. Roman, 35 N. Y. 2d, at 978-979, 324 N. E. 2d, at 885-886; People v. Shaw, 381 Mich. 467, 164 N. W. 2d 7 (1969).
(3)
The record is clear that no objection was made to the trial judge concerning the jail attire either before or at any time during the trial. This omission plainly did not result from any lack of appreciation of the issue, for respondent had raised the question with the jail attendant prior to trial. At trial, defense counsel expressly referred to respondent’s attire during voir dire. The trial judge was thus informed that respondent’s counsel was fully conscious of the situation.
Despite respondent’s failure to raise the issue at trial, the Court of Appeals held:
“Waiver of the objection cannot be inferred merely from failure to object if trial in prison garb is customary in the jurisdiction.” 500 F. 2d, at 208.
The District Court had concluded that at the time of respondent’s trial the majority of nonbailed defendants in Harris County were indeed tried in jail clothes. From this, the Court of Appeals concluded that the practice followed in respondent’s case was customary. Ibid.
However, that analysis ignores essential facts adduced at the evidentiary hearing. Notwithstanding the evidence as to the general practice in Harris County, there was no finding that nonbailed defendants were compelled to stand trial in prison garments if timely objection was made to the trial judge. On the contrary, the District Court concluded that the practice of the particular judge presiding in respondent’s case was to permit any accused who so desired to change into civilian clothes:
“There is no doubt but that the [judge] had a practice of allowing defendants to stand trial in civilian clothing, if requested, a practice evidently-followed by certain of the other judges as well.” Williams v. Beto, 364 F. Supp. 335, 343 (1973).
The state judge’s policy was confirmed at the eviden-tiary hearing by the prosecutor and by a defense attorney who practiced in the judge’s court.
Significantly, at the evidentiary hearing respondent’s trial counsel did not intimate that he feared any adverse consequences attending an objection to the procedure. There is nothing to suggest that there would have been any prejudicial effect on defense counsel had he made objection, given the decisions on this point in that jurisdiction. Four years before respondent’s trial the United States Court of Appeals for the Fifth Circuit had held: “It is inherently unfair to try a defendant for crime while garbed in his jail uniform . . . .” Brooks v. Texas, 381 F. 2d, at 624. Similarly, the Texas Court of Criminal Appeals had held: “[E]very effort should be made to avoid trying an accused while in jail garb.” Ring v. State, 450 S. W. 2d 85, 88 (1970). Prior Texas cases had made it clear that an objection should be interposed. See Wilkinson v. State, 423 S. W. 2d 311, 313 (Tex. Crim. App. 1968); Ring v. State, supra, at 88.
Nothing in this record, therefore, warrants a conclusion that respondent was compelled to stand trial in jail garb or that there was sufficient reason to excuse the failure to raise the issue before trial. Nor can the trial judge be faulted for not asking the respondent or his counsel whether he was deliberately going to trial in jail clothes. To impose this requirement suggests that the trial judge operates under the same burden here as he would in the situation in Johnson v. Zerbst, 304 U. S. 458 (1938), where the issue concerned whether the accused willingly stood trial without the benefit of counsel. Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.
Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.
The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Stevens took no part in the consideration or decision of this case.
None of the authorities relied on by petitioner expressly approves the practice. Several cases hold, however, that a showing of actual prejudice must be made by a defendant seeking to have his conviction overturned on this ground. Hall v. Cox, 324 F. Supp. 786 (WD Va. 1971); McFalls v. Peyton, 270 F. Supp. 577 (WD Va. 1967), aff’d, 401 F. 2d 890 (CA4 1968), cert. denied, 394 U. S. 951 (1969).
The contumacious defendant brings his plight upon himself and presents the court with a limited range of alternatives. Obviously, a defendant cannot be allowed to abort a trial and frustrate the process of justice by his own acts.
We are not confronted with an alleged relinquishment of a fundamental right of the sort at issue in Johnson v. Zerbst, 304 U. S. 458 (1938). There, the Court understandably found it difficult to conceive of an accused making a knowing decision to forgo the fundamental right to the assistance of counsel, absent a showing of conscious surrender of a known right. The Court has not, however, engaged in this exacting analysis with respect to strategic and tactical decisions, even those with constitutional implications, by a counseled accused. See, e. g., On Lee v. United States, 343 U. S. 747, 749 n. 3 (1952). Cf. Fed. Rule Crim. Proc. 11.
The Second Circuit has noted in a different context:
“Federal courts, including the Supreme Court, have declined to notice [alleged] errors not objected to below even though such errors involve a criminal defendant’s constitutional rights.” United States v. Indiviglio, 352 F. 2d 276, 280 (1965), cert. denied, 383 U. S. 907 (1966).
The reason for this rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court's attention so the trial judge will have an opportunity to remedy the situation.
Significantly, in the Henderson case the Fifth Circuit interpreted Hernandez as requiring the accused to take aifirmative steps to apprise the trial court of his desire to be tried in civilian clothes. The Hernandez court had simply found, under the circumstances presented there, that the defendant “had met his burden.” 472 F. 2d, at 557. This interpretation is particularly meaningful since the author of the Hernandez opinion was a member of the panel in the subsequent decision in Henderson. Moreover, the court in Hernandez indicated:
“We do not paint with a broad brush these types of eases. Each case must be considered in its own factual context.” 443 F. 2d, at 637.
Moreover, there is nothing in the record in Hernandez to suggest that the state trial judge had, as here, a longstanding practice, known to members of the bar, to permit any defendant to change into civilian clothes on request. See infra, at 510-511.
The evidence showed that respondent was a Caucasian in his sixties. At the evidentiary hearing, he testified that he felt he had no real case to present at trial. The testimony of several eyewitnesses was clear and consistent. Under these circumstances, a desire to elicit jury sympathy would have been a reasonable approach and one which the trial judge might reasonably have assumed was deliberately undertaken.
This was based on the state judge's affidavit, which stated in part:
"I have never compelled a defendant to go to trial in jail clothes, and on every occasion when a defendant or his attorney requested that he be allowed to wear civilian clothes at his trial I have granted the request.” 364 F. Supp., at 338.
Counsel testified that on a prior occasion, a different state judge had overruled his objection to the trial of his client in jail clothes. He also testified that he had seen other defendants dressed in jail garments in the courtroom where respondent was tried.
The Texas courts had admittedly not established a rigid rule invalidating the practice -per se. Instead, the courts ordinarily looked to whether actual injury or prejudice had resulted from the defendant’s appearance in jail garb. Garcia v. State, 429 S. W. 2d 468, 471 (Tex. Crim. App. 1968); Xanthull v. State, 403 S. W. 2d 807, 809 (Tex. Crim. App. 1966). But these cases provided ample grounds for objection to the procedure, since they at least implicitly recognized that reversible error could result from the practice. Similarly, the 1970 decision in Xanthull v. Beto, 307 F. Supp. 903 (SD Tex.), did not render fruitless any objection on respondent's part. Instead, that case, like various state cases, simply imposed a burden on federal habeas petitioners to show actual prejudice resulting from a jury trial in jail garments.
It is not necessary, if indeed it were possible, for us to decide whether this was a defense tactic or simply indifference. In either case, respondent's silence precludes any suggestion of compulsion.
Petitioner has contended in his brief and in oral argument that the Court of Appeals’ decision in Hernandez should not be applied retroactively. The petition for certiorari did not raise this issue and our disposition of the case renders it unnecessary to decide it.
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195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
BAKER DRIVEAWAY CO., Inc., v. CLARK.
No. 5590.
Circuit Court of Appeals, Fourth Circuit
May 13, 1947.
Paul S. Hudgins and Albert S. Kemper, Jr., both of Bluefield, W.Va. (Richardson & Kemper, of Bluefield, W. Va., on the brief) for appellant.
Joseph M. Sanders, of Bluefield, W. Va. (A. J. Lubliner, of Bluefield, Va., on the brief), for appellee.
Before PARKER, Circuit Judge, GRONER, Chief Justice, United States Court of Appeals for the District of Columbia, and SOPER, Circuit Judge.
Sitting in the Fourth Circuit by special assignment.
SOPER, Circuit Judge.
The plaintiff in the District Court, a boy of nine years, was struck by an automobile tractor and severely injured as the machine was allowed to run down a steep hill after dark without lights on March 21, 1946, in Bluefield, West Virginia. The tractor was the property of Baker Driveaway Company, Inc., and was used in the business of the company to haul automobile-carrying trailers from Detroit to various points in the South. It was being driven at the time of the accident by Robert J. Williams, an employee of the company. Jurisdiction was based on diverse citizenship. The case was submitted upon interrogatories in response to which the jury found that at the time of the accident Williams was acting within the scope of his employment, that the accident was caused by his negligent operation of the tractor and that the plaintiff did not contribute thereto by negligence on his part. A verdict for $5,000 in the plaintiff’s favor was rendered.
We are concerned with the single question whether there was sufficient evidence to justify the submission of the issue whether Williams was acting within the scope of his employment at the time or was, on the contrary, engaged upon a mission of his own. The evidence bearing on this issue was substantially as follows. Williams had been employed by the Company for eight years to train new drivers, and to drive trailer busses to and from Detroit. He had been a friend of Mrs. Clark, the boy’s mother, for several years and sometimes stopped at her house when he visited her at'Bluefield. On Tuesday, March 19, 1946, he was in Roanoke, and wishing to visit Mrs. dark, he telephoned to the manager of the Roanoke division of the corporation, who .was then in Richmond, and asked permission to spend two or three days in Bluefield. The manager knew that Williams and Mrs. Clark were going together. Williams testified that in response to this request the manager told him that the company had a tractor that had to go to Detroit the end. of the week, and that Williams should take the tractor to Bluefield, stay two or three days, and then go on to Detroit and be back in Roanoke on Monday or Tuesday. Bluefield is not on the direct route from Roanoke to Detroit. In order to reach Bluefield it is necessary to leave that route at Princeton, West Virginia, which is nine miles from Bluefield.
' Accordingly, Williams drove the truck to Bluefield and spent two days, during which he received his regular pay. He drove to the Clark house and then took Mrs. Clark in the tractor to buy some household supplies. He spent the night at the house and parked the truck on a city street two blocks away. The next day he used the tractor again to take Mrs. Clark to the store and bring her back home. It was then 5 P. M., and after lingering a little while, he got his laundry which Mrs. Clark had washed for him and got into the tractor to resume his journey to Detroit. He started the motor and drove downhill to a wide place in the road to turn around so as to face in the right direction, and as he was turning, the battery, which was out of order, went dead. He borrowed a battery, drove the tractor again to the Clark house, removed the battery and reinstalled the dead one.. He then released his brake and allowed the car to drift downhill in gear in order to. start the engine. By that time night had fallen, and as the car drifted down the-hill without lights, it struck the child and, injured him. Williams had started to return to Princeton when the accident occurred.
The appellant defends on the broad ground that the side trip from Princeton to Bluefield, although undertaken with the consent of the employer, was merely a personal mission of Williams in deviation. from the course of his employment; and hence the contention is made that the case is governed by the rule that the owner of an automobile is not liable for injuries caused by a servant while operating the car for his own business or pleasure although he has the owner’s consent; and that if the primary purpose of the use of the car is the personal convenience or business of the servant, incidental benefit derived by the employer therefrom will not impose liability upon him for his servant’s negligence. Meyn v. Dulaney-Miller Auto Co., 118 W. Va. 545, 553, 191 S.E. 558; Jenkins v. Spitler, 120 W. Va. 514, 517, 199 S.E. 368; Hollen v. Reynolds, 123 W. Va. 360, 15 S.E.2d 163; Lacewell v. Lampkin, 123 W. Va. 138, 13 S.E.2d 583.
This position, however, does not give sufficient heed to the case portrayed by the plaintiff’s evidence which tends to show that the primary purpose of Williams’ journey was the transportation of the tractor from Roanoke to Detroit, a distance of approximately six hundred, miles, to which the side trip of nine miles and return between Princeton and Bluefield and the visit at Bluefield for a day or two was merely incidental. In any event, a reasonable inference to that effect may be drawn from the facts, and it was proper for the judge to permit the jury to pass upon the question. In Meyn v. Dulaney-Miller Auto Co., 118 W. Va. 545, 191 S.E. 558, where an employee had used his employer’s car with permission for his own enjoyment and had then returned to the employer’s place of business for a purpose connected with the business and later met with an accident as he drove the car home in accordance with his usual custom, the court held (118 W. Va. p. 555, 191 S.E. 558) that under the circumstances it was the clear province of the jury to determine whether or not at the time of the accident the employee was acting within the scope of his employment. The court also said (118 W.Va. pp. 554, 555, 191 S.E. 563):
“ * * * Generally, where a servant has permission to use a car in order to better execute his business to go to and from his meals and home, he is acting within the scope of his employment. 5 Am. Juris., 718, § 379; 45 A.L.R. 490; 68 A.L.R. 1058; 80 A.L.R. 732; Goff v. Clarksburg Dairy Co., 86 W.Va. 237, 103 S.E. 58; Fisick v. Larber, 95 Misc. 574, 159 N.Y. S. 722; Depue v. [George D.] Salmon Co., 92 N.J.L. 550, 106 A. 379; Brennan v. [J. B.] White Motor Co. [et al.], 210 App.Div. 533, 206 N.Y.S. 544; Kish v. California State Automobile Ass’n, 190 Cal. 246, 212 P. 27. Whether the driver of an automobile using his employer’s car to go to and from work is acting within the scope of his employment, is a question of fact for the jury. Goff v. Clarksburg Dairy Co., supra; Zondler v. Foster Mfg. & Supply Co., 277 Pa. 98, 120 A. 705; Puccia v. Sevigne, 258 Mass. 234, 154 N.E. 765; Moore v. Roddie, 103 Wash. 386, 174 P. 648, modified 106 Wash. 548, 180 P. 879; Wrightsman v. Glidewell, 210 Mo.App. 367, 239 S.W. 574; Ferris v. McArdle, 92 N.J.L. 580, 106 A. 460; Brennan v. White Motor Co. et al., supra; Butler v. Hyperion Theatre Co., 100 Conn. 551, 124 A. 220; Dunbaden v. Castle Ice Cream Co., 103 N.J.L. 427, 135 A. 886. Likewise, it is generally a jury question where an employee driving his employer’s automobile diverts from his master’s business and is involved in an accident upon returning towards the master’s business. Reynolds v. Denholm, 213 Mass. 576, 100 N.E. 1006; Rooks v. Swift & Co., 210 Ala. 364, 98 So. 16; Good v. Berrie, 123 Me. 266, 122 A. 630; Bloodgood v. Whitney, 235 N.Y. 110, 139 N.E. 209; Gibson v. Dupree, 26 Colo.App. 324, 144 P. 1133; Riley v. Standard Oil Co., [of New York], 231 N.Y. 301, 132 N.E. 97, 22 A.L.R. 1382; Cummings v. Republic Truck Co., 241 Mass. 292, 135 N.E. 134; Samuels v. Hiawatha Holstein Dairy Co., 115 Wash. 343, 344, 197 P. 24; Dale v. Armstrong, 107 Kan. 101, 190 P. 598; Edwards v. Earnest, 206 Ala. 1, 89 So. 729, 22 A.L.R. 1387.”
It should be borne in mind that the accident in the pending case did not occur while Williams was driving the tractor in Bluefield for the personal convenience of Mrs. Clark and himself, which in no way served his employer’s business in the transportation of the tractor. While he was directed to drive the machine to Bluefield and keep it there until he finished his visit, it was not contemplated that he should use it for his personal business during the interval, especially as the company had a definite rule that none of its- vehicles should be used for other than company business. The visit, however, was ended and he was on his way to his ultimate destination when the accident occurred; and if the view be taken that the visit at Blue-field was not a separate or independent enterprise but merely a part of the whole journey which Williams was instructed to make, there was basis for the jury’s finding that he was within the course of his employment when, having finished his visit, he started on his way to Detroit. Hollen v. Reynolds, 123 W.Va. 360, 15 S.E.2d 163, is not to the contrary, for in that case, as the court pointed out, the employee was not returning to the master’s business after a deviation, but was merely making an unauthorized use of his employer’s car.
The judgment of the District Court is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
FOURTH NAT. BANK IN WICHITA, KAN., v. GAINESVILLE NAT. BANK IN GAINESVILLE et al.
No. 7861.
Circuit Court of Appeals, Fifth Circuit
Dec. 7, 1935.
Rehearing Denied Jan. 7, 1936.
Paul T. McMahon and Joseph J. Eckford, both of Dallas, Tex, for appellant.
Murphy & Murphy, of Gainesville, Robt. E. Cofer and John D. Cofer, both of Austin, Tex, and J. P. Dreibelbis, of Dallas, Tex, for appellees.
Before SIBLEY and HUTCHESON, Circuit Judges, and STRUM, District Judge.
SIBLEY, Circuit Judge.
In a suit by appellant against the appellees on their respective guaranties of prior indorsements on a certain check drawn on appellant by one of its customers, each side moved for an instructed verdict, and the judge — no one objecting — discharged the jury and later rendered judgment for the defendants. On appeal therefrom, error is assigned to the entering of - judgment for appellees instead of for appellant, and to the admission of certain evidence tending to show that the indorsement of the payee on the check was not a forgery, but was made by the person to whom the check was issued.
Appellees say that jury was waived and the case submitted to the judge under 28 U.S.C.A. § 773, and that the question of the sufficiency of the evidence to support the judgment has not been properly saved for review. The record does not show any stipulation to waive a jury either oral or written, but the judgment recites: “Thereupon all parties having moved for an instructed verdict it is the opinion of the Court that the cause should be withdrawn from the jury and the jury discharged from the further com sideration of the case, and it is so ordered and the jury discharged.” A bill of exceptions, certified to contain all the evidence and the rulings of the court, also recites the motions for instructed verdict, the discharge of the jury and the judgment for defendants to which exception was taken by plaintiff. While no exception was taken to the discharge of the jury so tfhat any irregularity of practice therein is waived, we are of opinion that the question of law 'whether the evidence authorized a verdict or judgment for defendants or demanded one for plaintiff was made to the district court and is sufficiently presented for review in this court.
The evidence shows without conflict that on October 26, 1926, Monarch Loan Company, a depositor with appellant Fourth National Bank in Wichita, Kan., drew a check for $8,000 payable to the order of A. J. Allen and mailed it to the drawer’s correspondent, J. R. London, in Gainesville, Tex., as a loan to be made to Allen on a mortgage submitted by London. London, who was a customer of the First National Bank of Gainesville, brought to that bank a man whom he introduced as A. J. Allen and who indorsed and deposited the check, giving the bank a depositor’s signature card. The $8,000 was subsequently checked out on the same signature, A. J. Allen. First National Bank of Gainesville indorsed the check “Pay to the order of any bank or banker, all prior indorsements guaranteed,” and it passed through the other appellee banks who similarly indorsed it, and was finally presented to and paid by the drawee bank and charged to the account of Monarch Loan Company. It later developed that London was sending in fraudulent loan applications and the mortgage signed A. J. Allen was on land belonging to others. Allen has been sought for but has not been found. Monarch Loan Company took the position that the indorsement on the check of A. J. Allen was a forgery and refused to acknowledge the check as rightly paid, and sued Fourth National Bank in Kansas. That bank notified each indorsing bank of the situation and sent the check back to them, but they all declined it and insisted that the indorsement was genuine. Fourth National Bank, by notices, sought to vouch them into the suit in Kansas to defend the Allen indorsement. The Gainesville Bank, refusing to recognize the vouchment, yet under stipulation against any prejudice therefrom did assist in one of two trials and did promise in writing to bear part of the attorney’s fees and expenses of the defense. The matter was fought through the Supreme Court of Kansas (Kansas City Title & Trust Co. v. Fourth Nat. Bank in Wichita, 135 Kan. 414, 10 P.(2d) 896, 87 A.L.R. 334), the finding being that A. J. Allen was a fictitious name and that London had signed it to the mortgage and on the check, and judgment was given against the Fourth National Bank. It paid it, and on refusal of reimbursement of the payment and also of the expense of the defense, sued all the indorsing banks therefor on June 21, 1934.
The point most argued here is whether the Kansas judgment that the indorsement of Allen was forged by London is conclusive, or whether it is still open to the guarantors of the indorsement to show that Allen made it, although he was an impostor and a cheat. We find it unnecessary to decide that question because the defense of limitation disposes of the case. Article 5527, Revised Stats, of Texas of 1925, requires actions for debt where the indebtedness is evidenced by or founded upon any contract in writing to be brought within four years after the cause of action shall have accrued. The reference is not to technical debts, but all claims for money liquidated or unliquidated. Gordon v. Rhodes & Daniel, 102 Tex. 300, 116 S.W. 40. By article 5529 four years is the limitation for all actions for which no other limitation is prescribed. The present action was instituted within two years from the time the Fourth National Bank paid the judgment against it, but more than seven years after it honored the check. The question is, When did its cause of action arise? The contract of each defendant is “Prior indorsements guaranteed.” We construe this to mean, the validity of prior indorsements is warranted. It is not a contract of indemnity against ultimate loss. The warrantor is bound on demand to pay back the money gotten for the check if any prior indorsement is not valid. He cannot insist that his indorsee wait to see whether any loss will actually occur. There may be dispute, as there was here, about the genuineness of the indorsement, and there may be difficulty in making proof,, but that does not postpone the accrual of the right of action for breach of the guaranty. It accrues at the moment that the check is negotiated under a prior invalid indorsement. The Fourth National Bank here elected to try the issue of validity with its customer at home instead of with its guarantors in Texas, thinking to get thereby conclusive evidence, if it should lose, by vouching in the guarantors. But not having sued them, limitation was running in their favor. That they might have sued on the guaranties at once we think established by Leather Manufacturers Bank v. Merchants Bank, 128 U.S. 26, 36, 9 S.Ct. 3, 32 L.Ed. 342, and United States v. National Exchange Bank, 214 U.S. 302, 320, 29 S.Ct, 665, 53 L.Ed. 1006, 16 Ann.Cas. 1184. See Philadelphia National Bank v. Fulton Bank (D.C.) 25 F.(2d) 995, where the same express guaranty was involved. To the like effect are State Nat. Bank v. Beacon Trust Co., 267 Mass. 355, 166 N.E. 837, 838; Lehigh Coal & Nav. Co. v. Blakeslee, 189 Pa. 13, 41 A. 992, 69 Am.St.Rep. 788; United States v. City Savings Bank (C.C.A.) 73 F.(2d) 486; Ladd & Tilton Bank v. United States (C.C.A.) 30 F.(2d) 334; United States v. National Bank of Commerce (C.C.A.) 205 F. 433. A suit on the guaranties more than four years later was barred.
We find in the evidence a signed agreement of First National Bank of Gainesville to pay one-half of the costs of defending the Kansas suit, including attorney’s fees. The liability on this agreement apparently matured only at the conclusion of the Kansas litigation and is not yet barred. This agreement was not, however, sued upon. It is alluded to in the trial amendment, but only as one of several circumstances brought forward to show an estoppel to claim that the main cause of action arose before the termination of the Kansas litigation. No estoppel exists. The guarantors at no time waived anything, but stood stoutly to the proposition that there was no forgery, and that they could not be vouched out of Texas into Kansas. Since we find the agreement about costs and expenses not to be sued on here, and there is no assignment of error touching it and no discussion of it in the brief of either party, we can make no reversal upon it, but the liability under it will stand unprejudiced. The judgment touching the guaranties is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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sc_petitioner
|
019
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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.
HEWITT et al. v. HELMS
No. 85-1630.
Argued March 4, 1987
Decided June 19, 1987
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, and O’ConnoR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 764.
Thomas G. Saylor, Jr., First Deputy Attorney General of Pennsylvania, argued the cause for petitioners. With him on the briefs were LeRoy S. Zimmerman, Attorney General, Allen C. Warshaw, Executive Deputy Attorney General, Andrew S. Gordon, Chief Deputy Attorney General, and Gregory R. Neuhauser, Senior Deputy Attorney General.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Harriet S. Shapiro, and William Ranter.
Robert H. Vesely argued the cause for respondent. With him on the brief was John M. Humphrey.
Benna Ruth Solomon, Joyce Holmes Benjamin, and Peter J. Kalis filed a brief for the National Governors’ Association et al. as amici curiae urging reversal.
Justice Scalia
delivered the opinion of the Court.
This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a “prevailing party” for purposes of an award of attorney’s fees.
Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer’s report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement.
While still incarcerated, Helms brought suit under 42 U. S. C. § 1983 against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole.
Nearly six months after Helms’ release, the District Court rendered summary judgment against him on his constitutional claims without passing on the defendants’ assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that “Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of ‘risk’ warranting administrative detention,” Helms v. Hewitt, 655 F. 2d 487, 500 (1981) (Helms I), and that he “suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant.” Id., at 502. The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense.
Before the proceedings on remand could take place, we granted certiorari to determine whether Helms’ administrative segregation violated the Due Process Clause. We concluded that the prison’s informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Hewitt v. Helms, 459 U. S. 460 (1983). Certiorari was not sought on, and we did not decide, the question whether Helms’ misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. Helms v. Hewitt, 712 F. 2d 48 (1983) (Helms II).
In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not “clearly established,” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982), at the time of Helms’ misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures §V(F) (1984), App. 101a-102a (Directive 801). The District Court’s decision was affirmed without opinion. Helms v. Hewitt, 745 F. 2d 46 (1984) (Helms III).
Helms then sought attorney’s fees under 42 U. S. C. §1988, which provides in relevant part: “In any action or proceeding to enforce a provision of [§ 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The District Court denied the claim on the ground that Helms was not a “prevailing party”: the defendants’ official immunity precluded a damages award, Helms’ release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a “catalyst” for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms’ constitutional rights were violated was “a form of judicial relief which serves to affirm the plaintiff’s assertion that the defendants’ actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future.” 780 F. 2d 367, 370 (1986) (Helms IV). The court also directed the District Court to reconsider whether Helms’ suit was a “catalyst” for the amendment of Directive 801. We granted certiorari. 476 U. S. 1181 (1986).
In order to be eligible for attorney’s fees under § 1988, a litigant must be a “prevailing party.” Whatever the outer boundaries of that term may be, Helms does not fit within them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Hanrahan v. Hampton, 446 U. S. 754, 757 (1980). Helms obtained no relief. Because of the defendants’ official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment — for example, through a consent decree or settlement. See Maher v. Gagne, 448 U. S. 122, 129 (1980). The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. Hanrahan, supra, at 758-759.
The Court of Appeals treated its 1981 holding that Helms’ misconduct conviction was unconstitutional as “a form of judicial relief” — presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court “to determine the appropriateness and availability of the requested relief,” 655 F. 2d, at 503; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms’ nonmone-tary claims were moot as a result of his release from prison. Even if that is not correct, and Helms’ interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms’ counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief.
It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment — e. g., a monetary settlement or a change in conduct that redresses the plaintiff’s grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See Maher, supra, at 129. The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms’ disciplinary proceeding was unconstitutional is a “vindication of . . . rights,” Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces — the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement — what makes it a proper judicial resolution of a “case or controversy” rather than an advisory opinion — is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff The “equivalency” doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has “prevailed” in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing from the defendants. The only “relief” he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had “prevailed,” for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: “The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms’ constitutional rights were violated.” That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a “prevailing party” depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues.
Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms’ counsel, armed with the holding that his client’s constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U. S. C. § 2201 (a court “may declare the rights and other legal relations of any interested party seeking such declaration”) (emphasis added); Public Affairs Associates, Inc. v. Rickover, 369 U. S. 111, 112 (1962); Eccles v. Peoples Bank of Lakewood, 333 U. S. 426, 431 (1948). If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively “settle the controversy between the parties,” 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2759, p. 648 (2d ed. 1983), because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions — or if they do, the court’s decision is not appealable in the same manner as its entry of a declaratory judgment.
We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a “prevailing party.” Any other result strains both the statutory language and common sense.
The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms’ lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in 1984 to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this “catalyst” theory could justify a fee award under § 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State’s amendment of its regulations, and can “prevail” by having the State take action that his complaint did not in terms request, he did not and could not get redress from promulgation of the informant-testimony regulations. When Directive 801 was amended, Helms had long since been released from prison. Although he has subsequently been returned to prison, and is presumably now benefiting from the new procedures (to the extent that they influence prison administration even when not directly being applied), that fortuity can hardly render him, retroactively, a “prevailing party” in this lawsuit, even though he was not such when the final judgment was entered.
For the reasons stated, the judgment of the court of appeals is
Reversed.
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_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES v. TODAR. SAME v. PALASAN.
Nos. 4145, 4146.
Circuit Court of Appeals, Seventh Circuit.
May 23, 1930.
George L. Rulison, of South Bend, Ind., for the United States.
B. C. Gavit, of Bloomington, Ind., for appellees.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge.
Pursuant to the provisions of title 28 U. S. Code, § 41(20), 28 USCA § 41(20), each of appellees brought suit against the United States for alleged breach of contract to transmit, for each of them, a sum of money to Bucharest, Roumania. The contracts were made July 2, 1919, while the United States was operating the Western Union Company. By stipulation the eases were tried together by the court in October, 1927, and judgment against appellant was given in each.
In the appellate proceedings to reverse these judgments we meet at the outset two vigorously pressed contentions by appellees: (1) That no appeal was applied for or allowed within the statutory period of three months from date of judgment; and (2) that no bill of exceptions was presented and filed within the term at which the judgments were rendered, nor within any extension of time made within the term.
The events, and their chronology, bearing on these issues are:
August 22, 1928, entry of the judgments.
November 19, 1928, service by appellant upon counsel for appellees of notices that the United States appeals from said judgments to the United States Circuit Court of Appeals; and on same day filing'- of such notices, with proof of service, in the clerk’s office of the District Court. Motion on same day for extension of time for filing bills of exceptions and assignments of errors. Order of court on same day extending time for filing bills of exceptions and assignments of errors to December 17, 1928.
December 11, 1928, order for thirty days’ further lime for filing bills of exceptions and assignments of errors.
December 26, 1928, bills of exceptions and assignments of errors filed.
January 14, 192,9, petition filed and order granted, nunc pro tunc as of November 19, 1928, enlarging time for docketing the appeals in the Circuit Court of Appeals, seventy-five days from November 19, 1928.
April 25, 1930, order of this court made on appellees’ petition of March 24, 1930, for writ of certiorari to bring up record of order of District Court of March 30, 1929, allowing appellant in each cause an appeal to this court, nunc pro tune as of November 39, 1928. Certified transcript of record of such order of the District Court filed in this court accordingly.
Respecting the first contention, it seems clear that to confer jurisdiction of an appeal it must have been applied for in the court which gave the judgment, within three months after its rendition. Title 28, § 230, U. S. Code (28 USCA § 230), and many federal decisions.
After tho entry of these judgments on August 22, 1928, the record discloses no further action respecting the appeals until the order of the District Court of March 30, 1929, allowing appellant an appeal in each ease, nunc pro tune as of November 19, 1928, which last date is within three months after tho entry of tho judgments.
Assuming, as we will, that this order sufficiently manifests application for and allowance of the appeals by the District Court as of November 19, .1920, we will consider the appeals as having been allowed within the statutory period.
The second contention depends upon tho terms of court, instead of the number of days following entry of judgment.
Bills of exceptions must be offered for settlement within the term at which the judgment was rendered, or within such extended time as is allowed by the court within that term. Exporters, etc., v. Butterworth Judson Co., 258 U. S. 365, 42 S. Ct. 331, 66 L. Ed. 663.
Appellant does not dispute this proposition, but insists that, notwithstanding the legislation hereinafter referred to-, the judgments were entered at the July term, 1928, of the court, and that this term endured until the beginning of the January term, 19291, of the court. If this is correct the bills of exceptions were presented and filed in due time.
Prior to the Act of Congress of April 21, 1928, the state of Indiana comprised one judicial district, with terms at statutory divisional points, Hammond "being one of them, and the terms there, as specified by the statute then in force, beginning on the fist Mondays of January and July. Act of Jan. 16, 1925 (43 Stat. 751). The Act of April 21, 1928, divided the state into two districts, and made Ilammond a division of the “Northern District,” fixing at Hammond towns to begin on the first Mondays of March and November. Act of April 21, 1928 (45 Stat. 437 [28 USCA § 153]). The last act in express terms repealed, the Act of January 16, 1925', whereby the terms at Hammond had been fixed for the first Mondays of January and July. This, it would seem, served to abolish the old July term, and would make untenable appellant’s contention that these judgments were entered at a July term of tho court.
Assuming that the old January term was in session when the April 21 act was passed, it would follow either that that term was, under the new act, at once converted into the March term, or that the January term was continued by operation of law until tho commencement of the November term under tho new act; and so the term at which the judgments were rendered was either the extended old January term, or the new March term. It is not necessary that we decide which it is, for in either event the existing term, unless extended by an order of the court, would expire with the commencement of the next following November term. United States v. L. & N. R. Co. (D. C.) 177 F. 780; Loewe et al. v. Union Savings Bank (D. C.) 222 F. 342; Petition of Thames Towboat Co. (D. C.) 23 F.(2d) 493.
It appears that the first step respecting bills of exceptions in these cases was taken November 1.9, 1928, which was after the beginning of the November term, and therefore too late for lawful tender of bills of exceptions or the extension of time therefor.
This eourt passed upon a very similar question in McGlashan v. United States (C. C. A.) 71 F. 434. It was an action brought in Wisconsin by the government to recover from a surety upon' a recognizance alleged to have been forfeited in the District Court of Kansas. The recognizance was taken in the United States District Court of Kansas during the September term, 1889; and conditioned that the person recognized appear before the District Court of Kansas at the next term thereof, “to be held at Wichita on the first Monday of September, 1890.” Under the then existing statute there was one term yearly at Wichita, beginning the first Monday of September. By Act of Congress of June 9, 1890 (26 Stat. 129), the District of Kansas was divided, and it was provided that terms be held at Wichita beginning the first Monday of March and the second Monday of September. Notwithstanding the statutory change, the court at Wichita was convened on the first Monday of September, 1890, and the party recognized failing to appear on' that day, forfeiture of the. bond was ordered.
This- court held that the Act of June 9, although not in terms repealing the former act fixing the term, did so by necessary implication, and that the convening of the court on the first Monday of September, 1890, was therefore without authority of law, and that the order of forfeiture of the recognizance was inoperative and void; and it was ordered by this court that the judgment of the District Court, favorable to the United States, be reversed, with direction to render a judgment in favor of the surety.
Applying to the instant case what was there said, we cannot escape the conclusion that upon the repeal, on April 1, 1928, of the act by which the January and July terms of the District Court at Hammond had been constituted, the July term was abolished, and the first new term to convene there after the new act was passed was that of the first Monday of November, 1928.
We are thus constrained to hold that the order of the District Court of November 19, 1928, extending the time for filing bills of exceptions, and the judge’s subsequent act of receiving and approving them as bills of exceptions, were without jurisdiction, and are a nullity; and that we have no right to consider the purported bills of exceptions as part of the record.
The record which is properly before us presents no issue bearing upon the validity of these judgments, and accordingly both judgments are affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_usc1
|
0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
William J. KENT, III, Plaintiff-Appellee, v. Albert C. SMITH, Defendant-Appellant.
No. 175, Docket 32619.
United States Court of Appeals Second Circuit.
Submitted Nov. 13, 1968.
Decided Dec. 11, 1968.
Wick, Dinse & Allen, Burlington, Vt., for plaintiff-appellee.
Coffrin & Pierson, Burlington, Vt., for defendant-appellant.
Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
MEDINA, Circuit Judge:
We are urged to reverse this judgment for plaintiff because it is claimed that plaintiff was guilty of contributory negligence as matter of law, and that it was error to refuse certain of defendant’s requests for instructions. It is also claimed that it was error to receive plaintiff’s testimony concerning his loss of earnings while disabled after the automobile accident that gave rise to the case.
On Sunday, March 6, 1966 in the late afternoon there was the usual exodus of those from New York City and elsewhere who came with their skis to enjoy the Vermont slopes and the fresh air and sunshine. The weather was clear and the roads dry. Route 100 was a Throughway, as defined by Vermont law, and it ran due North and South from the Town of Stowe, where the skiers congregated. The traffic going South was fairly heavy as was to be expected; and there were few cars in the North-bound lane.
Kent was driving his father’s car, a 1966 Ford Mustang, along Route 100 on his way South to his home in Brooklyn, New York. Just in front of him was a blue Corvair travelling at the rate of from 30 to 35 miles an hour and for several miles after leaving Stowe Kent had been on the lookout for an opportunity to pass the Corvair and get on his way. And so Kent, following the Corvair closely, proceeded along the Throughway, which was a straight highway with dips and rises. As Kent came up one of these rises or small hills the distance from the top of the hill to a smaller intersecting road leading to the Town of Moscow was only 259 feet, according to the testimony of the police officer who investigated the accident. Kent was unfamiliar with the neighborhood as he had driven on Route 100 a very few times. He had never noticed the smaller road to Moscow, and, if there was a small, black and yellow direction sign on Kent’s right about 300 yards from the Moscow road, as testified by defendant Smith, Kent said he did not see it. Coming up the rise there were two solid lines in the center of Route 100. At the top of the rise the line on Kent’s side became a broken line while the other line continued on as a solid unbroken line. So, as Kent was “right on top” of the Cor-vair, a matter of 10 yards or so, he noticed the broken line, saw a clear road ahead for a distance of about a quarter of a mile, and he accelerated his speed to about 40 miles an hour and started to pass the Corvair. As he got abreast of the Corvair, the hood of Smith’s Cadillac suddenly appeared in the North-bound lane where Kent then was and the collision was inevitable. The Corvair was was alongside, there was a ditch on Kent’s left and no place to go. The Cor-vair swerved to the right, partly on the Moscow road and managed to get around and past the Cadillac.
There was the usual conflict in the testimony. Smith’s version was that he came to a full stop on Moscow Road, waited for 2 or 3 minutes for a chance to cross the South-bound traffic on Route 100, saw the top of the Corvair as it was approaching the top of the hill, “knew he had time to cross,” and, at 15 miles per hour, he had completely made the turn into the North-bound lane on Route 100 when he saw Kent bearing down on him a mere 25 or 30 feet away.
While there is no doubt that the Cor-vair could be seen as Smith actually saw it, the question of the alleged contributory negligence of Kent depends upon a variety of factors which make this a question for the jury, in our judgment. It is far from clear just where on Moscow Road the Cadillac was when it came to a stop waiting for the South-bound traffic to clear. There was an intervening house and a driveway. Kent, a comparative stranger in the vicinity, said he did not know there was an intersecting road ahead and he saw no direction sign such as was described by Smith. Only the jury, weighing the credibility of the witnesses and all the attendant circumstances, could decide what were the relative positions of the cars and the visibility of the respective drivers in that short but vital period of time before the collision.
Of critical importance is the testimony of the investigating police officer to the effect that: “Coming from the North after you pass the rise, it is even then difficult to know that the intersection is ahead on the right.”
The two Vermont statutes relied upon by appellant Smith are:
Section 1034, Tit. 23, Vt.Stat.Ann.:
All intersecting highways shall be approached and entered slowly and with due care to avoid accident.
And Section 1037, Tit. 23, Yt.Stat. Ann.:
A vehicle shall not pass another from the rear at the top of a hill or on a curve where the view ahead is in anywise obstructed, or while the vehicle ahead is crossing an intersecting highway or is about to turn into the same.
It would be absurd, we think, to construe these statutes to mean that, wholly apart from the attendant circumstances, the driver of a car must at his peril know, when he is approaching or when the vehicle ahead is crossing an intersecting highway. As we read the Vermont cases, violation of the letter of these statutes does not establish negligence as matter of law. Smith v. Blow & Cote, Inc., 124 Vt. 64, 196 A.2d 489 (1963); Slate v. Hogback Mountain Ski Lift, Inc., 122 Vt. 8, 163 A.2d 851 (1960); Welch v. Stowell, 121 Vt. 381, 159 A.2d 75 (1960).
The instructions of the trial judge on this subject were, in our opinion, comprehensive and quite accurate in every way. After a general statement that negligence is the failure to do “what a reasonably careful and prudent driver would have done under like circumstances,” the trial judge specifically covered “the rules of the road” in connection with the question of Kent’s alleged contributory negligence. He said:
First, he was also required to use reasonable care in the operation of his motor vehicle to avoid inflicting damage or injuries upon other persons or vehicles on the highway. Also, it was his duty at all times to maintain a lookout for other persons and vehicles on the highway. He is required to look with the degree of care that a careful and prudent person would have exercised in like circumstances. For this reason, it is to be presumed that he saw whatever would have been within his range of vision if he had looked. In other words, it will not avail the Plaintiff to say that he looked and did not see what he could not help but see if he had looked effectively.
In addition, you should keep in mind that all intersecting highways should be approached slowly and with due care to avoid an accident. In considering this factor, however, you should keep in mind that the Plaintiff was using a throughway and was thus entering the intersection from a favored direction. This, however, is not an exclusive right to proceed without adquate observation and regard for vehicles approaching from a disfavored direction.
Another rule of the road which has application in this ease is that a motor vehicle shall not pass another from the rear while the vehicle ahead is crossing an intersection. If you find from the evidence that the Corvair which was preceding Mr. Kent was crossing the intersection while Mr. Kent was passing it, then you may take this rule into consideration in determining whether Mr. Kent’s conduct measured up to the standard of care required of him.
Finally, if you find from the evidence that the Defendant had completed his turn onto Route 100 and was proceeding in the northbound lane when the Plaintiff pulled into the northbound lane in order to pass the Corvair, you shall consider two additional rules of the road in measuring the conduct of the Plaintiff. First, you must consider the rule that operators of motor vehicles proceeding in opposite directions shall exercise due care and shall each keep to the right of the center of the highway so as to pass without interference, and secondly, that the operator of a vehicle overtaking another vehicle proceeding in the same direction shall not pass to the left of the center of the highway unless the way ahead is clear of approaching traffic.
You are to keep in mind that in measuring the conduct of both the Plaintiff and Defendant, that the violation of any one of these rules of the road alone is not negligence as a matter of law. The propriety of their conduct depends upon all the surrounding facts and circumstances in the case. Thus, the question of whether the Plaintiff was driving his vehicle in such a manner as to constitute negligence on his part is a question of fact for the jury to determine.
The refusal to grant the following requests to charge is assigned as error:
Request #6: It was the plaintiff’s duty to drive slowly enough in passing the car in front so that he could see the road and know that it was clear of approaching traffic.
Request #8: Reasonable control is frequently measured by the ability of the operator to stop his vehicle quickly and easily. When this result is not accomplished, inference is warranted that the vehicle was traveling too fast or that adequate control was not maintained.
The wording of these requests is taken verbatim or in substance from Luce v. Chandler, 109 Vt. 275, 195 A. 246 (1937) and Verchereau v. Jameson, 122 Vt. 189, 167 A.2d 521 (1961).
It would suffice to say that in view of the scope and accuracy of the instructions as given there was no occasion for any elaboration. We think it pertinent to add, however, that it is generally not helpful to take quotations from the opinions of appellate courts, that were never intended to be used as instructions to juries, and submit these in the form of requests to charge. In this particular situation the factual background of the cases from which these quotations are taken bear little relation to the facts and circumstances of this case. Thus, in the common phrase, the instructions are “slanted” and apt to give the jury a wrong impression of the rules of law that govern the resolution of the issues. It is far better for the trial judge to prepare his own instructions tailored to the requirements of the ease on trial, as was done in this case by Judge Leddy.
In view of appellant Smith’s testimony that he saw the Corvair approaching at a distance of less than 100 yards, we find no error in the instruction relative to the alleged negligence of Smith. We also sustain the rulings relative to Kent’s testimony on the subject of his loss of earnings.
Affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Howard S. HOWARD and Anne F. Howard; Ray Warner, Jr.; Roger W. Franzen; Robert W. Lindner and Carole Lindner; Paul A. Rittenhouse and Ann M. Rittenhouse; Andrew C. Bambeck and Nancy A. Bambeck; Martin J. Gould and Gloria H. Gould; Jerome L. Grosvenor and Danna B. Grosvenor, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 90-70028.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 18, 1991.
Decided April 26, 1991.
G. Alohawiwoole Altman, Hilo, Hawaii, for petitioners-appellants.
Shirley Peterson, Tax Div., U.S. Dept, of Justice, Washington, D.C., for respondent-appellee.
Before TANG and NOONAN, Jr., Circuit Judges, and SHUBB, District Judge.
Honorable William B. Shubb, United States District Judge for the Eastern District of California, sitting by designation.
NOONAN, Circuit Judge:
Howard S. and Anne F. Howard; Ray Warner, Jr.; Roger W. Franzen; Robert W. and Carole Lindner; Paul A. and Ann M. Rittenhouse; Andrew C. and Nancy A. Bambeck; Martin J. and Gloria H. Gould; and Jerome L. and Danna B. Grosvenor jointly appeal decisions of the United States Tax Court. We affirm.
FACTS
The facts have been set out in detail by the Tax Court in its opinion, 56 TCM 669 (1988). We here summarize the most relevant:
In 1980 and 1981 Midas International Inc. (Mil) offered an investment program called Uranium for Tax Dollars, selling an investment in the Bolivar mining claims in New Mexico. Investors were offered a mineral claims lease on two acres for $5,000 for a period of 15 years. A second document given the investor to sign authorized a representative of Mil to arrange for the sale of a five-year option to acquire all of the investor’s right, title and interest, subject to a royalty reservation, for $20,-000. The agent was authorized to apply $20,000 from the sale of the option, plus the $5,000 from the investor, to pay for mine development work on the investor’s tract. It was agreed that if such an option could not be arranged within seven days the investor’s check would be returned.
The investor was instructed by the promoter that he could deduct from taxable income the $5,000 paid for the lease and also the $20,000 the investor received from the sale of the option. Promotional material emphasized this large deduction, stating for example:
TO: 1980 TAXPAYER
FROM: ENERGY RESOURCE GROUP
SUBJECT: 500% TAX WRITE-OFF (No Loans-No Notes)
1980 has arrived and we are able to provide you with a tax shelter program in New Mexico, U.S.A.
Accompanying the promotional material were these instructions:
INSTRUCTIONS
DETERMINE TAX DEDUCTION
The minimum capital requirement is $5,000 which can result in a $25,000 tax write-off or 5 times the cash you invest. The capital requirement can be increased in increments of $5,000. The following chart correlates cash requirement to tax write-off (deductible expenses) to cubic meters to be mined under your Mineral Claim Lease Agreement.
YOUR CASH DESIRED TAX WRITE-OFF (Deductible Expenses) DEVELOPMENT COST PER M3 TOTAL CUBIC METERS IN CLAIM
$ 5,000 x 5 = $25,000 divided by $1.25 = 20,000
10,000 X 5 = 50,000 1.25 = 40,000
15,000 X 5 = 75,000 1.25 = 60,000
20,000 x 5 = 100,000 1.25 = 80,000
25,000 X 5 = 125,000 1.25 = 100,000
30,000 x 5 = 150,000 1.25 = 120,000
35,000 X 5 = 175,000 1.25 = 140,000
40,000 X 5 = 200,000 1.25 = 160,000
45,000 X 5 = 225,000 1.25 = 180,000
50,000 X 5 = 250,000 1.25 = 200,000
The program for 1981 had slightly different figures but in all essentials was similar to 1980. The investors (except Howard) claimed the deductions offered; at the same time they did not report as income the sums allegedly received from the sales of the options in 1980 and 1981.
The taxpayers whose appeal we adjudicate all testified that they were motivated by profit. They were all persons whose education and experience were such as to qualify them to make a sophisticated judgment about their investment.
PROCEEDINGS
The Commissioner disallowed the deductions claimed on the basis of the program, added the proceeds of the option sales to income, and further determined that the taxpayers involved were liable for the penalty for negligence and liable for additional interest for substantial underpayments attributable to tax motivated transactions.
The taxpayers sought redetermination of the deficiencies and the penalties by petitioning the Tax Court. Over 300 cases presented the same issues. Substantially all of the parties in these cases agreed to be bound by the outcome of test cases. Thirteen cases were selected as test cases and were consolidated for purposes of trial, briefing, and opinion.
THE OPINION OF THE TAX COURT
The Tax Court found that the centerpiece of the program was “the amount purportedly generated by the sale of the option and then supposedly used to develop the investor’s mineral claim.” The Tax Court found the option sale was “purely fictitious and designed solely to create an artificial development cost.” The Tax Court found that the taxpayers did not report any income from the purported sale -of the options and that the purported recipient of the development money never accounted to the taxpayers for any amount received. The Tax Court found that the transactions were “utterly devoid of economic substance.” The Tax Court concluded that the transactions “were entered into by petitioners solely for tax benefits.”
The Tax Court held that it would not be useful to discuss separately all of the individual cases. In a holding applicable to all the taxpayers the Tax Court declared: “We find it inconceivable that any prudent individual would really believe that their agent, chosen by the promoter, could assuredly and routinely sell a uranium option to each and every mining claim lease in the Uranium for Tax Dollars program within seven days.... The commercial surrealism of these transactions should have alerted a reasonable person to the chimerical nature of the uranium mining venture in New Mexico.”
Individual decisions were entered assessing the deficiencies and penalties. The Tax Court found that the option proceeds should not be treated as income in 1980 and 1981 because the option sales were fictitious and no sales ever took place. The Tax Court further determined that no deficiency existed as to the Howards because they had not taken the deduction. The Tax Court held all of the others were liable for deficiencies and for the penalty assessed under Internal Revenue Code § 6653(a)(1) and (2) for negligence; and that Ray Warner, Jr., Robert and Carole Lindner, Roger W. Franzen, Paul and Ann Rittenhouse, Andrew and Nancy Bambeck, Martin J. and Gloria H. Gould, and Jerome L. and Danna B. Grosvenor were also liable under Internal Revenue Code § 6621(c) for 50 percent of the interest due on the underpayments of taxes in a “tax motivated transaction.”
The taxpayers who are parties to this appeal appealed from the decisions of the Tax Court but only as to the assessment of additions for negligence and increased interest. There is no appeal from the Tax Court’s determination of deficiencies determined on the grounds that the transactions were entered into solely for tax benefit.
ANALYSIS
Jurisdiction
The Howards. No deficiency or penalty was assessed against the Howards. Consequently, there is nothing for them to appeal. Their appeal is dismissed.
The Joint Appeal of the Seven Other Taxpayers. The seven other taxpayers, together with the Howards, filed a joint notice of appeal. Their case is essentially different from Davies v. Commissioner, 715 F.2d 435 (9th Cir.1983). There, six cases had been consolidated in the Tax Court. One taxpayer timely appealed. The other five taxpayers filed late and argued that the timely appeal saved the jurisdiction of this court. We held that jurisdiction was lacking as to the five because their appeal was not timely. In the present case all of the taxpayers appealed together within the 90 days allowed by law. 26 U.S.C. § 7483.
The Penalties Assessed
The appeal of the seven taxpayers focuses on the failure of the Tax Court to deal with their individual motivation. The Tax Court explicitly ruled that it would not be useful to consider individual circumstances and explicitly phrased its conclusions in terms of what a “prudent” or “reasonable” person would have done. The taxpayers contend that the motivation of each individual should have been considered, case by case. The law governing the determination of a deficiency because an investment was entered into without the primary motivation of profit has been succinctly stated in Skeen v. Commissioner, 864 F.2d 93, 94-95 (9th Cir.1989):
The proper focus of the test to be applied here is the taxpayer’s subjective intent. Independent Elec. Supply [v. C.I.R.], 781 F.2d [724] at 726 [(9th Cir.1986)]. However, objective indicia may be used to establish that intent. Id.; 26 C.F.R. § 1.183-2 (1988). The burden of proving the requisite profit motive is on the taxpayer. Polakof v. Commissioner, 820 F.2d 321, 323 (9th Cir.1987) cert. denied, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988).
The taxpayers, however, have not appealed the deficiencies determined on the ground that they did not engage in transactions with the primary purpose of profit. They, therefore, are in great difficulty in maintaining their appeal on the issues of negligence and underpayment on a tax-motivated transaction. It is more difficult to prove subjective motivation than to prove what would motivate a reasonably prudent person. It is conceivable that one of these individuals would have been motivated in a way a reasonably prudent person would not. When the individuals are found to have acted for tax purposes, a fortiori a reasonably prudent person would be so found. The Tax Court has held that no reasonably prudent person would have undertaken these transactions for profit and that these individual taxpayers were not so motivated. These holdings of the Tax Court, which are not appealed as to the determination of deficiency, preclude the petitioners from appealing the assessment for negligence.
As far as negligence is concerned, the standard is objective. The Commissioner’s determination of negligence is presumed to be correct. The taxpayer must show due care. Hansen v. Commissioner, 820 F.2d 1464 (9th Cir.1987). In a case such as this where the taxpayers have been found to have entered into sham transactions without a primary profit motivation, they have failed to meet their burden of showing due care. No reasonably prudent person would have acted as they did. The penalties for negligence under IRC § 6653(a)(1) and (2) are appropriate.
Appellants further contend that the negligence penalty was wrongly upheld because they justifiably relied on the advice of financial advisors in entering into the disputed transaction. Good faith reliance on professional advice concerning tax laws is a defense. United States v. Boyle, 469 U.S. 241, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985); Collins v. Comm., 857 F.2d 1383 (9th Cir.1988). We need not determine whether the appellants relied on their ad-visors, because the district court found that “[tjhere is no reliable evidence in the record suggesting the exact nature of the advice, if any, obtained.” A review of the testimony supports this finding. Where no reliable evidence exists in the record suggesting the nature of any advice given, a finding of negligence is not erroneous. Skeen v. Comm., 864 F.2d 93, 96 (9th Cir.1989).
The taxpayers are not in a better position as to the appeal against the penalty assessed under § 6621(c). The penalty applies to a “substantial underpayment” attributable to a “tax motivated transaction.” The relevant definition of a tax motivated transaction is “any sham or fraudulent transaction.” § 6621(c)(3)(A)(v). The Tax Court has found the option sale to be sham. The taxpayers have not appealed this finding. Now they are bound by it.
AFFIRMED.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_numappel
|
4
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Jackie E. UTZ et al., Appellants, v. Honorable Maurice CULLINANE.
No. 72-1116.
United States Court of Appeals, District of Columbia Circuit.
Argued June 10, 1975.
Decided Oct. 3, 1975.
Louis M. Seidman, Washington, D. C., was on the brief for appellants. William W. Taylor, III, Washington, D. C., entered an appearance for appellants.
David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief for appellees.
Before WRIGHT and ROBINSON, Circuit Judges, and MERHIGE, District Judge.
Opinion for the Court filed by Circuit Judge J. SKELLY WRIGHT.
Of the United States District Court for the Eastern District of Virginia, sitting by designation pursuant to 28 U.S.C. § 292(d).
J. SKELLY WRIGHT, Circuit Judge:
Appellants in this case challenge on both constitutional and statutory grounds the Metropolitan Police Department’s policy of routinely transmitting to the Federal Bureau of Investigation the fingerprint cards and accompanying identification data of individuals who are arrested in the District of Columbia. Although we believe there is substantial merit to appellants’ constitutional contentions, we do not premise our holding on those grounds, for we believe there are narrower statutory grounds on which we must interdict this indiscriminate dissemination of arrest records in the absence of a specific FBI request for particular data to be used by the FBI or other law enforcement officials for strictly law enforcement purposes.
I
On January 7, 1971, shortly before the effective date of the District of Columbia Court Reform and Criminal Procedure Act of 1970, appellants — four individuals arrested for and charged with local criminal offenses — brought a class action for injunctive and declaratory relief to enjoin appellees — the Chief of Police and the Director of the Central Records Division of the Washington, D.C., Metropolitan Police Department— from transmitting appellants’ arrest records to the FBI and to request the return of those records already transmitted. Plaintiffs-appellants asserted that the Metropolitan Police lacked a statutory basis for engaging in this practice, which was also allegedly specifically prohibited by the “Duncan Ordinance,” a regulation promulgated by the District’s Board of Commissioners to govern the distribution of arrest records in this jurisdiction. Plaintiffs-appellants further asserted that the preconviction or post-exoneration dissemination of their arrest records abridged their constitutional rights to due process, privacy, and the presumption of innocence.
Appellant Utz was arrested on January 7, 1971 and was charged with possession of marijuana. Her case was subsequently “no papered” by the United States Attorney, and she allegedly represents the class of individuals ultimately exonerated of the charges lodged against them. Appellant Boyd was arrested on January 6, 1971 and was charged with petit larceny. At the time the complaint in this case was filed he had been released on a personal bond and was awaiting trial in the Court of General Sessions; although a nolle prosequi was entered on this charge before the District Court’s ruling in this case, he allegedly represents the class of individuals who have not yet been brought to trial and who are thus presumed to be innocent of charges pending against them. Appellant Leon M., a juvenile who brought his action by his mother and next friend, Jean M., was arrested on October 27, 1970 for unauthorized use of a motor vehicle, and he allegedly represents the class of juveniles charged in the Juvenile Branch of the Family Division of the Superior Court for the District of Columbia. The charge against Leon M. was dismissed on December 14, 1970, when he entered a plea of guilty to another traffic offense and he was sentenced to 60 days of court supervision and traffic school. Appellant Bolling was arrested on November 20, 1970 and charged with possession of numbers slips. He entered a plea of guilty to this charge on December 30, 1970 and was sentenced to one year of probation; he allegedly represents those individuals who are actually found guilty of the offenses for which they were arrested, and premises his challenge to the Metropolitan Police Department’s practices solely on statutory grounds.
Before the arrests which formed the predicate for this case, none of the named plaintiffs-appellants had a criminal record. Although they do not allege that their arrests were made without probable cause and thus do not seek ex-pungement of their arrest records, appellants contend that the dissemination of those records to the FBI, and inevitable nationwide redissemination by the FBI, will cause them irreparable injury. More particularly, appellants in their complaint maintain that fingerprint cards (containing data identifying the person arrested and information concerning the arrest) of all persons arrested and fingerprinted by the Metropolitan Police Department are routinely transmitted to the FBI, regardless of whether the charges are dismissed, “no papered,” “nollied,” reduced, or terminated through an acquittal, and that this dissemination normally transpires before a court disposes of the case. These data submitted to the FBI are allegedly added to the FBI’s Computerized Criminal History File (part of the FBI’s National Crime Information Center), from which a master “rap” sheet is prepared listing each person’s name, his identifying data, the date of the arrest, and the offense or offenses for which he was arrested; the “rap” sheet is allegedly disseminated upon request to over 14,500 public and private agencies including the United States Civil Service Commission, the Armed Services, banks, and state and local governments, which allegedly utilize that information adversely for employment and promotion purposes to the detriment of appellants and other individuals listed in the FBI’s criminal data bank.
Both plaintiffs-appellants and defendants-appellees moved for summary judgment and submitted the same affidavit of the Director of the Central Records Division of the Metropolitan Police Department describing the practice of that Department with respect to the dissemination of arrest records to the FBI. The Director averred that the Metropolitan Police Department “routinely” forwarded to the FBI the arrest records of all adults who are “charged with a felony or violation of laws against the United States” or “who because of the type of offense committed and/or records of arrest are likely to be wanted by other local or federal law enforcement agencies” or who are arrested for “participating in mass demonstrations,” as well as the arrest records of all juveniles “16 years or older who have been charged with a felony.” He also reported that as of October 1971, “all appropriate records forwarded to the FBI are subsequently supplemented with entries that reflect Court disposition.” The parties amplified on this affidavit by stipulating that the fingerprint cards of these arrestees are sent to the FBI “within several days of the arrest and generally before trial,” as are the arrest records of “most misdemeanants, excepting traffic violators], charged with violations of the D.C. Code and arrested by the Metropolitan Police.” It was also stipulated that the arrest records of appellants Leon M. and Bolling had already been submitted to the FBI, that the records of appellants Utz and Boyd would have been routinely sent to the FBI but for an agreement between counsel not to do so pending the outcome of this case, and that although the FBI will return these records to the Metropolitan Police Department at the latter’s request, the FBI will continue to keep and disseminate all records, regardless of court disposition, unless such a return of the records is requested by the Metropolitan Police.
With the case in this posture District Judge Gesell granted appellees’ motion for summary judgment, reasoning in an oral opinion that appellants’ constitutional arguments lacked “substantiality” and that the “Duncan Ordinance” was inapplicable to the relationship between the Chief of Police and the FBI.
II
In framing the constitutional question which appellants present, it is important to state with specificity what is and what is not involved in this case. First, appellants do not seek expunge-meat of the arrest records maintained by the Metropolitan Police Department. Since they do not contend that their arrests were constitutionally invalid, they admit that the mere maintenance of a record of that fact does not violate their right to due process or allow the Police Department to retain the tainted product of a Fourth Amendment violation. Indeed, appellants recognize that there are situations in which the fact of prior arrests — even those which did not culminate in a conviction — -may be legitimately employed in the criminal justice process, whether by police investigators, judicial officers, or probation or other law enforcement officials. In such situations, there are substantial procedural safeguards and significant judicial oversight which may check any potentially improper use of the information.
Second, appellants do not challenge the constitutional propriety of disseminating particular arrest records to the FBI when there is a specific law enforcement need for those data. They recognize that the constitutional interests of privacy and due process which they assert must be protected may nevertheless be balanced against legitimate and weighty state interests, and that there will likely be situations in which the latter will override an individual’s interest in preventing dissemination.
Finally, appellants do not suggest that the Metropolitan Police Department is prohibited from routinely disseminating more limited categories of data to the FBI. For example, routinely transmitting to the FBI the fingerprints or names (without identifying data) of individuals apprehended in this jurisdiction may subserve a legitimate state interest in that it might disclose whether the individual is a fugitive from or sought as a suspect in other jurisdictions on other crimes, and thus might facilitate a determination as to whether the individual should be held while that jurisdiction undertakes proceedings to effectuate a return of the arrestee.
Thus, appellants are interjecting a relatively narrow constitutional claim: that the routine preconviction or post-exoneration dissemination to the FBI of their arrest records- — including not only their fingerprints, but also data identifying the person arrested and information concerning the details and surrounding circumstances of the arrest — violates their constitutional rights to due process, privacy, and the presumption of innocence, at least as long as the FBI continues to redisseminate that data for other than law enforcement — and particularly for employment and licensing — purposes.
Nevertheless, in granting summary judgment for appellees in this case, the District Court dismissed appellants’ constitutional claims as “makeweight” which lacked “constitutional substantiality.” This view of the merits of the constitutional contentions was apparently expressed with the District Judge’s then-recent decision of Menard v. Mitchell, 328 F.Supp. 718 (1971), in mind. In Menard, Judge Gesell, exhibiting considerable sensitivity to the constitutional questions presented by the dissemination of information to non-federal and non-law enforcement recipients by the federal government, nevertheless refused to order the FBI to expunge Menard’s arrest record. Judge Gesell believed that those constitutional questions could be avoided by construing 28 U.S.C. § 534 (1970), the statute under which the FBI conducts its reciprocal exchange of criminal records, not to “authorize dissemination of arrest records to any state or local agency for purposes of employment or licensing.” Thus, Judge Gesell cast the constitutional question in the present case as one involving the power of the Chief of Police to disseminate arrest records to the FBI for law enforcement purposes, when the FBI might subsequently make that data available only to the District of Columbia or Federal government for employment purposes. Judge Gesell found himself
unable to see any constitutional substantiality to this contention. The period is limited. The law-enforcing needs appear to the Court to greatly transcend the inconvenience if any to individuals seeking jobs from the Federal Government while they are under indictment.
As I have indicated in Menard, I feel that there is substantial authority for the Federal Executive Branch, through the President, as he has by appropriate Executive Orders, to take action to regulate and examine into the qualifications of individuals seeking Federal employment.
* * * * * *
It is also clear that the concern in the complaint that indirectly through the FBI arrest record information would be disseminated to private employers in this city or elsewhere is mistaken inasmuch as the Bureau is operating consistent with the Court’s observation in Menard. The Court takes judicial notice of the fact that the Bureau is not disseminating information to private employers and is taking appropriate steps, as it has in the past, to police any inappropriate action by police departments who obtain information in the name of law enforcement and who may be tempted to pass it on to private employers.
Although we disagree with the District Court’s pronouncement that utilization, pursuant to presidential order in the name of national security, of unexpurgated arrest information by the Federal government for employment purposes raises no substantial constitutional questions, we are not faced with that comparatively limited constitutional inquiry. Rather, we note that Congress has legislatively overruled the limitations which Judge Gesell had found on the FBI’s power to disseminate information outside of law enforcement channels. Although the FBI, shortly after the District Court’s decision in Menard, issued a directive stating that. it would comply with that decision, Congress immediately responded with Pub.L. No. 92-184, 85 Stat. 627, 642 (1971), which provides that
[t]he funds provided in the Department of Justice Appropriation Act, 1972, for Salaries and Expenses, Federal Bureau of Investigation, may be used, in addition to those uses authorized thereunder, for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions, and, if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing, any such exchange to be made only for the official use of any such official and subject to the same restriction with respect to dissemination as that provided for under the aforementioned Act.
The FBI, pursuant to this authorization, announced that it would resume its prior practice of disseminating arrest records to banks and state and local governments for employment and licensing purposes if permissible under state law and approved by the Attorney General. See Federal Bureau of Investigation, Letter to All Fingerprint Contributors, Jan. 20, 1972. Indeed, the Justice Department has now promulgated regulations which provide that
(a) Criminal history record information contained in any Department of Justice criminal history record information system will be made available:
* * * * * *
(3) Pursuant to Public Law 92-544 (86 Stat. 115) for use in connection with licensing or local/state employment or for other uses only if such dissemination is authorized by Federal or state statutes and approved by the Attorney General of the United States. When no active prosecution of the charge is known to be pending arrest data more than one year old will not be disseminated pursuant to this subsection unless accompanied by information relating to the disposition of that arrest.
Moreover, as we previously noted in Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974), which reversed Judge Gesell’s decision denying Mr. Menard’s attempt to have his records with the FBI expunged, the FBI does not, in fact, enforce its statutory mandate to exercise supervision and control over the propriety of the uses to which contributing agencies put the reciprocal information they receive from the FBI.
Appellants thus contend that they are irreparably injured when their preconviction or post-exoneration arrest records are disseminated to the FBI for nationwide redistribution for both law enforcement and employment and licensing purposes. We agree that there is a substantial bundle of constitutional rights which may be unnecessarily infringed when such arrest records are transmitted to the FBI with the knowledge that they will be retransmitted to a multitude of organizations for a multitude of purposes, all of which are susceptible of abuse.
In our constitutional scheme, we operate under the salutary principle that an individual is presumed innocent of the charges of which he stands accused unless he is found guilty via a process replete with substantial procedural safeguards. An arrest record, without more, is a fact which is absolutely irrelevant to the question of an individual’s guilt. As the Supreme Court has cautioned:
The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.
Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S.Ct. 752, 757, 1 L.Ed.2d 796 (1957). And as one district court has eloquently observed:
Unresolved arrest records generally may well have significance for law enforcement purposes. They provide legitimate leads and questionable background information and may properly assist in resolving criminal actions. But charges resulting in acquittal clearly have no legitimate significance. Likewise, other charges which the government fails or refuses to press or which it withdraws are entitled to no greater legitimacy. They lose any tendency to show probable cause and should not be bootstrapped into any unearned and undeserved significance. Actually, a collection of dismissed, abandoned or withdrawn arrest records are no more than gutter rumors when measured against any standards of constitutional fairness to an individual and, along with records resulting in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.
Although the value of arrest records for law enforcement purposes has been generally, but not invariably, assumed despite the apparent conflict of this assumption with this constitutional presumption of innocence, here we are confronted with the government dissemination of arrest records in a situation in which it is known they will be utilized for employment and licensing purposes. Even if such records, as disseminated, were to include the actual disposition of the charges — and such dispositions frequently are not, in fact, included — the government knows that a derogatory inference will often nevertheless be drawn that the person who was arrested is also guilty of the crime charged. The mere fact of an arrest may impair or cloud a person’s reputation, and “[e]ven to be acquitted may damage one’s good name if the community receives the verdict with a wink and chooses to remember defendant as one who ought to be convicted.” Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948). Recent decisions by this court have acknowledged the considerable barriers that an arrest record interposes to employment, educational, and professional licensing opportunities, and the regrettable fact that “so long as there exists an employable pool of persons who have not been arrested, employers will find it cheaper to make an arrest an automatic disqualification for employment”; available evidence suggests that “employers cannot or will not distinguish between arrests resulting in conviction and arrests which do not.” Indeed, appellees themselves imply that the fact of arrest should generally be taken as indicative of guilt:
There are myriad factors that may result in termination of the criminal process in a manner which in no way detracts from the proper use of the record of an arrest by law enforcement agencies. For example, witnesses may be incapacitated or unavailable, charges may be dismissed because of plea bargaining or considerations of leniency, and the government may have failed to preserve its evidence in a manner conducive to effective prosecution.
Of course, it is not inconceivable that the individual may also be absolutely innocent of any wrongdoing whatsoever. The problem is that the constitutionally improper inference of guilt will be the one frequently drawn. And even if, as the government contends, all such arrest records are nevertheless useful for law enforcement purposes, that does not necessarily justify their dissemination for employment or licensing purposes. Due process obligates the government to accord an individual the opportunity to disprove potentially damaging allegations before it disseminates information that might be used to his detriment. The proper forum for definitively adjudicating an individual’s guilt or innocence is a trial that conforms to constitutional strictures; if the government aborts that procedure or if the individual is otherwise vindicated at trial, the Constitution requires that he be treated as though he engaged in no criminal activity. For the government to disseminate an arrest record pertaining to the allegedly criminal episode, when it knows that employers may infer that the individual was guilty rather than innocent of the crime, effectively permits the government to inflict punishment despite the fact that guilt was not constitutionally established. And although it would be naive to proclaim that all individuals who are not found guilty are in fact innocent of wrongdoing, many — particularly those like appellants with no prior criminal record — will fall into the category of individuals erroneously caught up in the criminal process. “[T]here is [a] limit beyond which the government may not tread in devising classifications that lump the innocent with the guilty.” Yet in disseminating arrest records for use by banks and state and local governments for employment and licensing purposes, and in using them for its own employment purposes, the federal government would appear to be in effect lumping the innocent and guilty together, for all those arrested are likely to be denied opportunities open to individuals who have never run afoul of the law. “A government agency may not escape responsibility for improper use of material disseminated by it simply because the improper use is not mandatory and is in fact made by a third party”.
Whatever compelling interest the government might have in disseminating preconviction or post-exoneration arrest records for law enforcement purposes, it is difficult to divine any substantive interest — whether compelling or merely rational — that the government might have in disseminating such records to private or other government employers where there is no indication that the individual is in fact guilty of criminal conduct yet where it is likely that the prospective employer will utilize the mere fact of arrest to disqualify the individual from employment for which he is otherwise absolutely qualified. Indeed, one court, holding that a private employer’s practice of denying employment to individuals with arrest records violates Title VII of the Civil Rights Act of 1964 because “any policy that disqualifies prospective employees because, of having been arrested once, or more than once, discriminates in fact against [NJegro applicants,” Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.Cal.1970), modified on other grounds and affirmed as modified, 472 F.2d 631 (9th Cir. 1972), found as a matter of fact that
[t]here is no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees. In fact, the evidence in the case was overwhelmingly to the contrary. Thus, information concerning a prospective employee’s record of arrests without convictions, is irrelevant to his suitability or qualification for employment.
Id. at 402-403. If it is illegal for employers (including state and local government employers who are within the ambit of Title VII) to utilize arrest records not culminating in convictions to deny an individual opportunities open to those with no such records, it would appear to be just as illegal for the government to furnish the employer with the information on which such illegal actions may be based, at least when there is no legitimate law enforcement justification for providing the employer with the data.
However, to hold that appellees’ routine dissemination of preconviction and post-exoneration arrest records to the FBI, even when supplemented by disposition notations as they occur, transgresses appellants’ constitutional rights if the dissemination occurs with full knowledge that the FBI will redisseminate that information for other than law enforcement purposes, would in effect be to hold that Congress’ recent statute authorizing that practice of the FBI and the Justice Department’s implementing regulations are also unconstitutional. Thus, despite our severe doubts about the constitutionality of this practice, we are reluctant to base our decision on those grounds, particularly in the absence of the FBI as a party defendant and full briefing on the question from the Attorney General. However, appellants are also challenging the Metropolitan Police Department’s actions on statutory grounds, and there is a well-established judicial tenet that cases should be decided on available nonconstitutional grounds, as well as a sound principle that statutes should be construed, where possible, to avoid constitutional questions. Since the next section of this opinion will elaborate on the fact that the statute involved in this case — the District of Columbia’s “Duncan Ordinance” — may be construed, especially against this constitutional backdrop, to avoid these substantial questions, it is on those alternative statutory grounds that we therefore base our opinion.
Ill
On October 31, 1967, the “Duncan Ordinance,” which had been drafted by the select Committee to Investigate The Effect of Police Arrest Records on Employment Opportunities in the District of Columbia, was adopted by the District of Columbia Board of Commissioners. The Duncan Ordinance specifies:
1. That no record, copy, extract, compilation or statement concerning any record relating to any juvenile offender or relating to any juvenile with respect to whom the Metropolitan Police Department retains any record or writing, shall be released to any person for any purpose except as may be provided under D.C. Code, Section 11-1586; provided, that the release of such information to members of the Metropolitan Police Department, and the dissemination of such information by the Metropolitan Police Department to the police departments of other jurisdictions wherein juveniles apprehended in the District of Columbia may reside, shall be authorized; provided further, that the release of such information to individuals to whom the information may relate or to the parents or guardians or duly authorized attorneys of such individuals, shall be authorized in those cases in which applicants therefor present documents of apparent authenticity indicating need for such information for reasons other than employment. The term “employment”, in the context of this paragraph, shall not include military service.
2. That unexpurgated adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released to law enforcement agents upon request, without cost and without the authorization of the persons to whom such records relate and without any other prerequisite, provided that such law enforcement agents represent that such records are to be used for law enforcement purposes. The term “law enforcement agent” is limited in this context to persons having cognizance of criminal investigations or of criminal proceedings, directly involving the individuals to whom the requested records relate. The term includes judges, prosecutors, defense attorneys (with respect to the records of their client defendants), police officers, Federal agents having the power of arrest, clerks of courts, penal and probation officers and the like. It does not include private detectives and investigators; personnel investigators, directors and officers; private security agents or others who do not ordinarily participate in the process involving the detection, apprehension, trial or punishment of criminal offenders.
3. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses which have resulted in convictions or forfeitures of collateral.
4. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses committed not more than 10 years prior to the date upon which such records are requested; except that, where an offender has been imprisoned during all or part of the preceding 10-year period, the record shall include entries relating to such earlier conviction.
5. That, subject to the foregoing, copies or extracts of adult arrest records, as provided under D.C. Code, Section 4-134a, or statements of the non-existence of such records shall be released to applicants therefor upon the payment of fees to be based upon the cost of editing and producing such copies, extracts or statements; provided, that applicants who are not the persons to whom such records may relate must, in addition to the required fees, present releases in appropriate form executed by the persons to whom the records may relate; provided further, that no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose.
6. That Article 47 of the Police Regulations of the District of Columbia be amended to provide that it shall be an offense punishable by a fine not to exceed $50.00, for any person to require as a condition of employment the production of any arrest record or copy, extract or statement thereof at the expense of any employee or applicant for
employment to whom such record may relate.
As has been recognized in the past, the Duncan Ordinance establishes the guidelines which' control the dissemination of arrest records in this jurisdiction; as applied to the issue before us, it is clear that the Ordinance prohibits the practice to which appellants object.
Appellant Leon M. asserts that Section 1 of the Duncan Ordinance, which except for three narrow and explicit qualifications commands that juvenile arrest records shall not be released “to any person for any purpose,” prevents the routine dissemination of such records to the FBI. Since we believe that intervening developments have mooted appellant Leon M.’s ability to challenge the Metropolitan Police Department’s actions we need not address the contours of this provision or its interaction with D.C. Code § 16-2333(a) (1973).
Although the Duncan Ordinance appears on its face to accord adults less protection than it accords juveniles, it nevertheless prevents the routine dissemination of adult arrest records to the FBI. Section 2 of the Duncan Ordinance mandates that such records shall be released to “law enforcement officers” without any prerequisite such as "paying the costs of producing and editing the records or securing authorization from the individuals to whom the records relate. However, such release is only to be made “upon request.” The FBI does not request the records which it is provided by contributing agencies; indeed, when asked whether the federal government desired to protect through intervention any interest it might have in this proceeding, the United States Attorney stated:
The United States has no interest which it seeks to protect which would - require its intervention in to Utz v. Wilson * * *.
* * * [I]t is the position of the United States of America that whether the Metropolitan Police Department or any other law enforcement agency submits arrest fingerprints to the Federal Bureau of Investigation is a matter solely within the jurisdiction of the arresting agency. Submission of such records to the Federal Bureau of Investigation is a voluntary action on the part of the law enforcement agency and the Federal Bureau of Investigation does not request the submission of such records. * * * In short, adherence by the Metropolitan Police Department to the Duncan Ordinance is consistent with the position of the Federal Bureau of Investigation.
Moreover, when a law enforcement official requests unexpurgated adult arrest records, the Duncan Ordinance specifies that he must “represent that such records are to be used for law enforcement purposes.” However, it is clear that records disseminated to the FBI will also be used by state and local governments and federally insured banks, as well as by the federal government, for employment and licensing purposes in addition to any law enforcement purposes to which the records would be put.
Finally, even if the FBFs reciprocal data exchange program could be shoehorned into the term “request,” and the representation which must be made to receive the data were interpreted only to require that some law enforcement use be made of the data rather than that such utilization be exclusive, the FBI would not be a “law enforcement agent” within the narrow definition of Section 2 of the Duncan Ordinance. That term is explicitly “limited * * * to persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate.’’ Thus, although transfer of an arrest record to the FBI would not contravene the Ordinance if that agency requested information possessed by the Metropolitan Police pertaining to individuals wanted in other jurisdictions or sought data that might be currently used in prosecutions or for sentencing recommendations, the FBI does not stand in that law enforcement role when it merely receives arrest data to store in its master “rap” sheet for potential use in such investigations or prosecutions, to say nothing of the employment' and licensing purposes for which those records are obtained.
Absent a specific law enforcement request that would satisfy Section 2 of the Duncan Ordinance, adult arrest records may only be disseminated pursuant to Sections 3 to 5 of the Ordinance. Section 3 limits disclosure of records to those offenses which have resulted in either a conviction or a forfeiture of collateral, and even those records, according to Section 5, may only be released to applicants who “present releases in appropriate form executed by the persons to whom the records may relate.” Thus, the routine and unconsented transmittal of the arrest records of all plaintiffs-appellants — including appellant Boyd, who was convicted of the crime for which he was arrested but who did not consent to dissemination of his arrest record for employment purposes — was accomplished in derogation of the apparently specific constraints of the Duncan Ordinance.
Nevertheless, despite this apparent clarity in the language of the Duncan Ordinance, the District Court held that the Ordinance did not extend to the relationship between the FBI and the Metropolitan Police Department:
The Court has examined with great care and frequently the report of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the' District of Columbia, which is the so-called Duncan report that led to the enactment of the Duncan regulation. The Court is totally satisfied that the Duncan ordinance or Duncan regulation has as its essential and key purpose an effort to prevent the availability of arrest records locally to local private employers.
There is next to no discussion of the continuing necessary intimate relations between the Chief of Police and the FBI in this jurisdiction; and a host of extremely important and practical questions would be raised if the literal language of the Duncan ordinance were to be taken as a prohibition against the Chief of Police communicating on arrest record matters with the FBI.
There is such a lack of cognizance of this problem, such a lack of any precision in the ordinance, and so many uncertainties created by attempting to read the ordinance in that broad fashion that the Court has concluded as a matter of law that the Duncan regulation does not have anything to do whatsoever with the relations between the Chief of Police and the FBI with respect to the dissemination of arrest records and reliance on it by the Plaintiffs is erroneous.
In a similar vein, appellees assert that a “fair reading of the Duncan Ordinance will disclose that it is essentially designed to place limitations on the giving of arrest record data to specific private individuals requesting such data.”
We are unpersuaded by the argument that the Duncan Ordinance was not intended to have any impact whatsoever on the Metropolitan Police Department’s routine transmission of unexpurgated arrest data to the FBI. The language of the Ordinance is itself clear in limiting the dissemination of unexpurgated adult arrest records to “law enforcement agents” — defined as “persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate” — who “request” the data and who “represent that such records are to be used for law enforcement purposes.” Routine dissemination to the FBI, which then acts as a “step-up transformer” to redisseminate the records widely to both law enforcement agencies and public and private employers, cannot be reconciled with this clear mandate.
Moreover, even if one looks to the Duncan Ordinance’s scant “legislative history” in an effort to determine whether the transmission of unexpurgated arrest records to the FBI was to continue unabated, there is no indication that this practice was to be exempted from the apparently comprehensive scope of the Ordinance. To be sure, the Committee which drafted the Duncan Ordinance was acutely concerned with the abuse of those records for employment purposes. However, it is also clear that the District Court is incorrect in stating that the Committee’s efforts were directed solely at preventing such abuse by local private employers. Section 5 of the Ordinance, in specifying that “no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose,” indicates that such agents are subject to the other limitations of Section 5, including the necessity of obtaining approval from the individual to whom the records relate
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_habeas
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
Robert Jewell LANDMAN, Sr., Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
No. 10687.
United States Court of Appeals Fourth Circuit.
Argued Oct. 7, 1966.
Decided Nov. 28, 1966.
Robert A. Cox, Jr., Richmond, Va. (Court-assigned counsel), (Hirschler & Fleischer, Richmond, Va., on brief), for appellant.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and BRYAN, Circuit Judges.
SOBELOFF, Circuit Judge:
The appellant, an inmate of the Virginia State Penitentiary, seeks review of the District Court’s dismissal of his claim that the disciplinary punishment meted out to him by the prison authorities trenched upon his constitutional rights. The holding was made after an evidentiary hearing extending over four days, at which the testimony of the prisoner and other inmates was specifically controverted by prison officials. We affirm the District Court.
Robert Jewell Landman, Sr., petitioned the District Court on March 11, 1965 to order his release from the maximum security unit of the Virginia State Penitentiary, in which he has been confined from time to time since November 8, 1963, and to restore him to the general prison population. He alleged that his confinements stemmed solely from his having instituted certain legal proceedings and that he was denied unhampered access to the courts in violation of his constitutional rights. In an amended petition, filed on September 7, 1965, he also sought immediate total release from prison on the ground that the treatment he received during his confinement in the maximum security unit, known as “C” building, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution.
In our recent decision in Howard v. Smyth, 365 F.2d 428 (4th Cir. 1966), we had occasion to describe life in the segregation cells of “C” building. The building, isolated from the rest of the prison complex and surrounded by a concrete wall, is itself divided into two sections, one designated as “segregation,” the other “meditation” or, as it is commonly referred to, solitary confinement. The prison superintendent, C. C. Peyton, testified that inmates are placed in segregation for “safekeeping [and the] good of the institution,” while confinement in solitary is reserved for violators of institutional regulations. Prisoners confined in segregation
are not permitted to work and earn money; they are allowed only two meals a day, and are deprived of radio, television, and movie privileges; they do not have access to the library and are not permitted to attend educational classes; they are allowed to bathe only once a week, as opposed to daily bathing allowed other prisoners. Howard v. Smyth, supra at 429.
Additional deprivations, according to Superintendent Peyton, are imposed upon inmates confined in solitary. There are no writing or visiting privileges, except in an emergency; the diet consists of bread and water for two days and two regular “C” building meals on the third day; combs, toothbrushes, razors and most other personal items are withdrawn; bedding consists of a mattress and one or two blankets; the only clothing provided is a pair of pants, a shirt, and a pair of socks.
I.
Landman is serving a sentence for robbery. When he was first disciplined, in November, 1963, he was placed in meditation for 25 days for allegedly causing a letter to be mailed to the Richmond Newsleader without first submitting it to the censors as required by the regulations. The District Court did not credit his testimony that he had given the letter to one of the guards only to be cheeked for accuracy, since it discussed their pay scales and retention standards, and had not requested him to mail it. The guard was subsequently discharged because of this dereliction. Upon his return to the general prison population, Landman sent, a letter to the Governor of Virginia which ranged over many areas of suggested prison reform. One copy was posted on the prison bulletin board and another circulated among the inmates, who were urged to make their grievances known. Deeming it not in the best interest of the institution to allow Landman to agitate in this manner, prison officials placed him in segregation.
Landman also testified that at 5:15 a. m. on the morning of January 6, 1965 he was transferred to State Convict Road Camp 31 despite his protest that he had an appointment with his attorney, who planned to visit him the next day. The guards who escorted him to the road camp denied that he registered any complaint at the time and Superintendent Peyton testified that prison officials-were unaware of the scheduled meeting. Crediting the prison personnel, the District Court found that the transfer was not an attempt to deny Landman access to counsel or to the courts. Again, on May 24, Landman was placed in solitary for violating the regulation reinforced by a direct order to him from Peyton, prohibiting prisoners from accepting compensation for drafting writs on behalf of other inmates. The District Court rejected Landman’s version that he had performed these services gratuitously.
On another occasion, Landman was placed in solitary for violation of the regulation forbidding inmates to use for scrap legal paper supplied by the penitentiary. The court rejected his testimony that the “writ” paper had been defaced by another inmate and was lined for scoring games. The prisoner also complained of innumerable searches of his cell, after which he found some of his legal papers missing and the others in a state of disarray. The District Court found that while his cell was searched in the course of routine investigations, his papers were not scattered and the only papers removed were those reflecting violations of prison regulations. Land-man told of numerous delays in obtaining notarial services, writ paper and other documents necessary to pursue his legal actions, but the court did not accept this testimony and found that on no occasion was he intentionally denied access to the courts.
The appellant and several other inmates testified in support of the claim that the treatment accorded them in “C” building, both in segregation and in meditation, did not conform to prison regulations and constituted cruel and unusual punishment. Guards allegedly withheld food, struck inmates with clubs, and used tear gas indiscriminately as punishment. On the conflict in the testimony between the prisoners on the one hand and the guards and prison officials on the other, the court believed the latter. While it found that tear gas was used approximately 12 to 15 times in the course of a year, it concluded that this was done in the legitimate exercise of disciplinary authority. The court also found, contrary to appellant’s claims, that there was no arbitrary deprivation of rations and that inmates were not subjected to corporal punishment. After reviewing the evidence concerning the quality and amount of food provided for inmates confined in solitary, the court declared the claim of cruel and unusual punishment without foundation.
Landman’s able court-appointed counsel interviewed 14 or 15 inmates and at the hearing called most of them as witnesses. The District Court saw and heard them and noted no evidence of malnutrition or physical injury. Landman’s allegations of denial of access to the courts were fully explored and detailed evidence adduced with respect to each specific claim. In Howard, supra, we held that where from the uncontradicted testimony the only reasonable inference is that prison officials have acted arbitrarily and have infringed protected First Amendment rights, relief is due. This record, however, comes to us replete with conflicting testimony, and we are not prepared to say that the findings are clearly erroneous.
II.
However, we feel obliged to express our concern over revelations in the record, largely admitted by the prison officials themselves, of the prevailing laxity in the supervision of “C” building, with the inherent grave danger of arbitrariness and abuse in the treatment of prisoners confined there. Superintendent Peyton admitted that he does not make periodic inspections of the building and that while he “suppose [d] ” that he has made surprise visits, he could not recall a single instance. The jurisdiction of the prison disciplinary committee, the alleged forum for probing disciplinary measures taken against inmates, does not extend to “C” building. No reason was given for thus excluding the cases most apt to be troublesome, in which group judgment is of utmost value in preventing arbitrary action and any form of brutality.
Direct responsibility over “C” building is lodged in Assistant Superintendent Oliver, yet he testified that the guards assigned there are authorized to transfer inmates from segregation to meditation without prior submission of a report stating the basis of the transfer. True, the guard is required on the same day to file such a report with Oliver, who then is to review the incident and approve the transfer if, in his judgment, it was proper. But it clearly appeared that investigation of facts beyond those disclosed in the report is made only if Oliver entertains some doubt concerning the propriety of the transfer. Even more significant is Oliver’s admission that his investigations are limited to discussion with the guards involved; never, he stated, does he talk with the prisoners. The practical effect of this procedure is demonstrated by Oliver’s further admission that he made no investigation of the charges and had no personal knowledge of the underlying facts pertaining to Landman’s several confinements in solitary, but that he “simply took the word of * * * [his] officers.” (Emphasis added.)
The record thus establishes that the fate of inmates confined in segregation or meditation is left largely to the unsupervised and unreviewed discretion of the guard staff assigned to “C” building. While written regulations governing their conduct have been promulgated, these are insufficient if no attempt is made to insure their observance. This state of affairs was defended in oral argument of counsel for the prison administration as inevitable in the operation of a maximum security ward. “G” building, we were told, can be entered only by first passing through the single gate in the concrete wall surrounding the compound. The gate is kept locked at all times and we were apprised that only one key to it exists and that this is permanently retained in the guard tower overlooking the compound. When ingress is sought by anyone, including the superintendent himself, the key is lowered on a string, the door unlocked, then again locked after the entrant has passed through. Thereupon, the string is pulled up and the key returned to the tower. Neither the superintendent nor any other official retains an extra key to enable him to visit “C” building for an unannounced inspection. These arrangements, it was said, are necessary to minimize the possibility of riots and escapes. It was recognized, however, that they render impossible surprise inspections. The officer in charge of the tower, who admits those seeking entrance to the compound, can, it is asserted, immediately notify the guards inside of the approach of any visitor via the direct phone line linking the tower with “C” building.
We are unpersuaded by these attempted justifications for giving free rein to the guards assigned to the maximum security ward. We cannot believe that it is beyond the ingenuity of the prison management to formulate procedures that will enable them effectively to oversee and control the guards’ conduct. Prisoners placed in “C” building to undergo special punishment are in no less need of protection against abuse than the general prison population. Acton’s classic proverb about the corrupting influence of absolute power is true of prison guards no less than of other men. In fact, prison guards may be more vulnerable to the corrupting influence of unchecked authority than most people. It is well known that prisons are operated on minimum budgets and that poor salaries and working conditions make it difficult to attract high calibre personnel. Moreover, the “training” of the officers in methods of dealing with obstreperous prisoners is but a euphemism in most states.
Prison administrators in general recognize their obligations to Control and restrict the authority of subordinate personnel. There should be conferences or hearings at which prisoners can air their grievances over disciplinary measures taken against them. In addition, provision should be made for periodic inspections by the superintendent or a responsible official on his staff, the dates of which are known to prisoners and guards alike. The effect would be not only to uncover any evidence of beatings or malnutrition but also to provide a channel of communication between the inmates and higher prison officials by which complaints could be brought to the immediate attention of the superintendent. These protections would make surprise inspections largely superfluous and we cannot condone the demonstrated lack of supervision on the asserted ground that such inspections are unfeasible. Under our constitutional system, the payment which society exacts for transgression of the law does not include relegating the transgressor to arbitrary and capricioús action.
Courts are not called upon and have no desire to lay down detailed codes for the conduct of penal institutions, state or federal. And it is not our purpose to do so. But, we cannot, without defaulting in our obligation, fail to emphasize the imperative duty resting upon higher officials to insure that lower echelon custodial personnel are not permitted to arrogate to themselves the functions of their superiors. Where the lack of effective supervisory procedures exposes men to the capricious imposition of added punishment, due process and Eighth Amendment questions inevitably arise.
Experience teaches that nothing so provokes trouble for the management of a penal institution as a hopeless feeling among inmates that they are without opportunity to voice grievances or to obtain redress for abusive or oppressive treatment. It is common knowledge that many prison riots have been in protest of abuses in disciplinary cell blocks similar to “C” building. We strongly commend to the close scrutiny of higher officials of the state the general problem of effective supervision of prison personnel, especially of those in direct charge of the segregation and meditation units. Justice to the legal rights of the prisoners affected and orderly administration of the prison system demand corrective measures.
Affirmed.
. State prisoners have a constitutional right to be free from cruel and unusual punishment, Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), and to be accorded unfettered access to the courts to seek vindication of their rights. Ex Parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941); Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966).
. Superintendent Peyton testified that the guards have blanket authorization to use tear gas against a “recalcitrant” inmate, in addition to employing it in its customary role to prevent riots and escapes. A written report is required only after a tear gas shell is fired. The superintendent also stated that no record is kept of the number of shells issued and no crosscheck is made to determine if reports are filed covering each instance that the gas is employed. By way of contrast, the use of tear gas against a single inmate in a federal prison is permitted only “in most extraordinary circumstances and after approval in writing of the warden or superintendent.” U. S. Department of Justice, Bureau of Prisons, Use of Tear Gas and Smoke 3 (1949). While it is our belief that the federal practice is the more enlightened, we will not disturb the finding that the use of tear gas revealed in this record did not amount to “cruel and unusual punishment.”
. While the court did not observe any external symptoms of physical injury, no testimony was adduced regarding possible complications caused by over-exposure to tear gas. Although the gas has a physiological effect for only a short period, prolonged exposure to intense concentrations may be dangerous. Use of Tear Gas and Smoke, supra noté 2, at 2. Its use 12 to 15 times a year in the small area comprising “C” building opens the institution to charges of mistreatment difficult to refute. Were the prison to implement the federal practice, see note 2 supra, the use of tear gas would be more effectively controlled and the possibility of misuse substantially reduced.
. Compare Jordan v. Fitzharris, 257 F. Supp. 674 (N.D.Cal.1966), where the Judge sharply criticized the practice of permitting lower rank personnel to exercise independent discretion in subjecting inmates to special punitive measures without the authorization of the superintendent or anyone on his staff. While the conditions complained of in that case were more extreme than those in the case at bar, the court’s criticism nontheless indicates the dangers to be feared from total relinquishment of supervision by responsible prison officials, as manifested in the record before us. The court’s observation about the “slow-burning fire of resentment on the part of the inmates * * * [which] finally explodes in open revolt,” Id. at 680, is as germane here as it was in the context in which it was made.
. See Bennett, Evaluating a Prison, Annals, May, 1954, p. 10; Martin, Break Down the Walls 221-225 (1954).
. See generally Manual of Correctional Standards 231-257 (1964), published under the auspices of the American Correctional Association and reflecting the intensive study of over 120 practicing penologists and prison authorities.
. “A hearing should take place as soon as practicable after the offense is reported IFthe offense needs immediate investigation, it should be initiated at once and the hearing on the offense may be postponed as long as necessary to complete the investigation. * * *
“At the hearing the inmate reported should be given a full opnortunity-jto_slate his case and, if the offense .is a serious one and he claims that witnesses coultLes'tablish his innocence or bring out important mitigating factors, such claims should be carefully investigated. * * *
“Offenders shall be provided and advised of a regular channel of_.app_eal from the finding made or the penalty assessed at any disciplinary hearing. Eor example, where a subordinate officer handles routine matters, disposition may be appealed to the Disciplinary Committee. Provision should be made for the inmate to send sealed uncensored letters to the Governor, the Director or Commissioner, or his deputy, and members of the paroling authority.” Id. at 241-42.
. “The associate warden (assistant superintendent) or whoever is in charge of discipline should visit inmates in punitive segregation daily, and even more often if possible. He may make recommendations to the Disciplinary Committee for release of inmates from punitive segregation whenever he feels the desired results have been accomplished. * * *
“ * * * Whenever a senior official visits the isolation or the segregation group, he should make a notation on each card or log-sheet of the date and time of his visit and should initial it.” Id. at 253.
. See Bennett, Why Fear and Hate Shadow Our Prisons, N. Y. Times, May 11, 1952, § 6 (Magazine), in Of Prisons and Justice — A Selection of the Writings of James V. Bennett, S.Doc.No. 70, 88th Cong., 2d Sess. 159 (1964) ; MacCormick, Behind the Prison Riots, Annals, May, 1954, p. 17; Martin, Break Down the Walls passim (1954).
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Octavio JIMENEZ-NIEVES, et al., Plaintiffs, Appellants, v. UNITED STATES of America, et al., Defendants, Appellees.
No. 81-1534.
United States Court of Appeals, First Circuit.
Argued Feb. 4, 1982.
Decided June 22, 1982.
Blas C. Herrero, Jr., Hato Rey, P. R., for plaintiffs, appellants.
Anne Buxton Sobol, Atty., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D. C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., J. Paul McGrath, Asst. Atty. Gen., Robert S. Greenspan and Al J. Daniel, Jr., Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D. C., were on brief, for defendants, appellees.
Before COFFIN, Chief Judge, GIBSON, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Eighth Circuit, sitting by designation.
BREYER, Circuit Judge.
Octavio Jimenez Nieves, on behalf of himself and his family, sued the United States for damages suffered when the Social Security Administration stopped payment on benefit checks which he had negotiated for his mother, Cecilia Nieves Colon, throughout most of the year 1975. The SSA concedes that the checks were dishonored because of a “typographical” error made by an SSA keypuncher who wrongly entered a notation that Cecilia had died on March 26, 1975, instead of the correct date of March 26, 1975. The plaintiff alleges that, as a result of this error, (a) several banks required him to pay back money that they had previously given him (presumably when he cashed the checks that his mother had endorsed); (b) his credit rating was seriously affected; (c) he had to borrow money from friends and acquaintances to repay the banks; (d) the Secret Service began to investigate him for fraud, making constant inquiries of his employer; (e) he was humiliated and suffered the stress of severe financial problems, resulting in great physical, mental, and emotional damage, affecting him and his entire family. All of this, says Jimenez Nieves, constitutes a tort under the law of Puerto Rico. He seeks recovery of damages from the United States under the Federal Tort Claims Act. 28 U.S.C. §§ 1346, 2671 et seq. (1976).
The United States moved to dismiss the complaint on grounds that the action is barred by (1) 42 U.S.C. § 405(h) (1976), restricting court jurisdiction in social security cases, and (2) 28 U.S.C. § 2680(h) (1976), which denies consent to sue the United States on claims arising out of “libel, slander, misrepresentation, deceit or interference with contract rights... . ” The district court held that plaintiff’s claim was indeed a claim of “misrepresentation,” and it therefore dismissed the complaint. While we agree that dismissal of most of the claims in the complaint was proper, we believe that the court’s ground for dismissal was not.
1. We turn first to the Government’s “jurisdictional” argument. That argument is based on a provision in Subchapter II of the Social Security Act — a sub-chapter entitled “Federal Old-Age, Survivors and Disability Insurance Benefits.” The provision at issue states in relevant part:
No finding of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h). The Government concludes that plaintiff’s exclusive remedy— the “review ... herein provided” — lies under 42 U.S.C. § 405(g), which, in effect, provides for court review of an administrative record, using the “substantial evidence” standard of the Administrative Procedure Act, 5 U.S.C. § 706 (1976). The principal support the Government offers for this claim is a quotation from Weinberger v. Salfi, 422 U.S. 749, 760, 95 S.Ct. 2457, 2464, 45 L.Ed.2d 522 (1975) (stating that it would be “fruitless to argue that this action does not also arise under the Social Security Act”). The Government also asserts that, otherwise, “virtually any error in the administration of the Social Security Act could be translated into a tort action against the United States.”
We find the Government’s position unacceptable. The language of § 405(h) applies only to a “claim arising under this subchap-ter.” An action for damages based on a tort committed in the course of administering the Social Security Act does not arise “under” a “subchapter” that provides for the payment of social security benefits any more than a tort claim based on a negligently driven postal truck arises under the postal acts. The Government quotes Wein-berger v. Salfi out of context, for the plaintiffs in that case sought social security benefits (although their argument rested on constitutional rather than statutory grounds), not tort damages. Moreover, we do not accept the Government’s suggestion that, unless tort claims are viewed as “arising under” the benefits subchapter, future claimants will simply transform claims for benefits into tort actions. The action here is not one for benefits or for “negligent denial of benefits;” it thus supplies no precedent for any wholesale transformation of “benefit claims” into “tort claims.”
More importantly, however, to accept the Government’s argument would imply that tort claims against the Government in general arise not only under the Federal Tort Claims Act and state law, but also under whatever statute the defendant agency happens to be administering. Such statutes may well have jurisdictional limitations or unique procedural requirements, as, for example, does the Veterans’ Benefits Act, which forbids court review of any administrative decision under the Act. Thus, the Government’s argument, if accepted, would replace a reasonably uniform and clear system for handling tort suits against the government (embodied in the Tort Claims Act) with a hodge-podge of procedural requirements, drawn from a host of different statutes, not necessarily drafted with tort suits in mind. In this case, for example, the “administrative hearing” procedures of § 405(g) are well suited to the decision of benefit claims. But they are anomalous if applied to tort claims. Tort claims are ordinarily presented to a district court for de novo decision within six months of an agency decision. 28 U.S.C. § 2675. By contrast, a claim that reaches the district court via the administrative hearings of § 405(g) and (h), is subject to a different time limitation and does not receive a de novo court hearing. If § 405(g) and (h) apply, the agency would enjoy an unusual amount of discretion to decide the facts of the tort claim against it. We are aware of no reason why so totally different a system for resolving tort claims against the government should apply to claims that happen to grow out of administration of the Social Security Act. The Government offers us no evidence that such was the intent of Congress, here or elsewhere, nor does it explain how, or why, that result would be desirable. Thus, we find its “jurisdictional” argument without merit.
2. We also believe that the district court erred in finding plaintiff’s claim covered by the “misrepresentation” exception to the Federal Tort Claims Act. In determining the proper scope of the § 2680(h) exceptions, we must turn to the “traditional and commonly understood definition of the tort.” United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961). To accomplish this task, we refer, as did the Supreme Court in Neustadt, to the Restatement (Second) of Torts, and to federal cases construing the exception.
The district court based its holding that this was a “misrepresentation” case upon the fact that the harm to the plaintiff was caused by a false statement, namely, the keypunching error which resulted in entering into the social security records the “fact” that plaintiffs mother died in 1975, rather than 1976. But, this false statement did not directly injure the plaintiff; it was simply the internal bureaucratic cause of other agency action — dishonoring the checks. It was failure to honor the checks that hurt the plaintiff and about which he now complains.
If the fact that a tortious act is caused by a false statement were sufficient to bring it within the Federal Tort Claims Act’s misrepresentation exception, the results would be bizarre. An injured pedestrian could not recover if, for example, the government truck driver ran over him because his coworker falsely told him that the light was green. Nor could a homeowner recover should a government demolition crew wreck his house after being sent to the wrong address. Such cases are not, however, typically considered as examples of the separate tort category of “misrepresentation.” Rather, the Restatement, noting that “misrepresentation runs all through the law of torts as a method of accomplishing various types of [other] tortious conduct,” adds that such cases are “usually grouped under categories of their own.” Id., ch. 22, scope note at 54. Thus, inducing a person to eat chocolates that are poisoned is considered a “battery,” restraining a person by falsely claiming legal authority to arrest him is considered “false imprisonment,” and causing an accident by signalling a wrong turn is treated as ordinary negligence. Id. Dean Prosser adds that such “misrepresentation has been merged to such an extent with other kinds of misconduct that neither the courts nor legal writers have found occasion to regard it as a separate basis of liability.” W. Prosser, Torts 684 (4th ed. 1971).
Insofar as “misrepresentation” is viewed as a separate, independent tort, it involves activity different from that at issue here. The tort arose out of “deceit,” initially in commercial contexts, where one party to a business transaction would falsely represent to another facts likely to influence the other’s decision. While the Restatement indicates that the tort of misrepresentation involves the dissemination of information generally and not only in commercial contexts, it makes clear that one essential element of misrepresentation remains reliance by the plaintiff himself upon the false information that has been provided. Restatement, supra, § 525 at 55, § 537 at 80, § 552 at 126, and § 552C at 141. Even when the misrepresentation is made to a third party, the plaintiff must have suffered damages because he himself acts in “justifiable reliance upon ... the misrepresentation.” Id., § 533 at 72-73. (Emphasis added.) Similarly, one who is negligent in making a misrepresentation as to information “for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information.... ” Id., § 552 at 126. (Emphasis added.) Dean Prosser, too, lists “[¡justifiable reliance upon the representation on the part of the plaintiff, in taking action, or refraining from it,” as an essential element. Prosser, supra, at 686.
The requirement that the plaintiff himself has relied upon the false information makes sense if one sees the traditional tort as protecting a person’s interest in obtaining true information (from those with a duty to provide it) when making up his mind about an important matter. The cases support such a requirement. Thus, the cases cited by the Government and the district court finding “misrepresentation” for Tort Claims Act purposes all involve — at a minimum — the core element of reliance by the plaintiff himself upon false information. In Neustadt, for example, the Federal Housing Administration falsely stated that a house was worth $27,000; the plaintiff, relying on this information, bought the house which was later discovered to have severe structural defects. The Court held that this was “misrepresentation” even if the Government’s conduct was negligent, not intentional. Similarly, in Fitch v. United States, 513 F.2d 1013 (6th Cir.), cert. denied, 423 U.S. 866, 96 S.Ct. 127, 46 L.Ed.2d 95 (1975), the Sixth Circuit found that a government “misrepresentation” led the plaintiff to enlist in the Army, and it also explicitly noted that plaintiff, when signing up, relied upon the Army’s false statement that he had a low draft number. Conversely, courts have held that a suit against a doctor who wrongly diagnoses a plaintiff’s condition falls outside the “misrepresentation” exception if the tort is based upon improper treatment that was caused by the false diagnosis. Beech v. United States, 345 F.2d 872 (5th Cir. 1965). A suit claiming a government trespass is also outside the exception where the trespass is caused by the mistaken belief of the trespassing officers about the rights they had received in a prior conveyance. Anderson v. United States, 259 F.Supp. 148 (E.D.Pa.1966). Compare Rey v. United States, 484 F.2d 45 (5th Cir. 1973) (suit barred where plaintiff, relying on incorrect information from Department of Agriculture veterinarian that his hogs had cholera, killed his own livestock), with Ware v. United States, 626 F.2d 1278 (5th Cir. 1980) (suit not barred where government agents misdiagnosed cattle as tubercular and killed the cattle themselves). See also Coastwise Packet Co. v. United States, 398 F.2d 77, 78-79 (1st Cir. 1968) (statements made to plaintiff) (a case which is perhaps better viewed as an instance of defamation, see p. 6 infra).
Additional support can be found for this view of the underlying tort in those cases which have refused to bar suits against the government when the false statement— though made directly to plaintiff — was “operational,” consisting, for example, of faulty aviation charts. Sullivan v. United States, 299 F.Supp. 621 (N.D.Ala.1968), aff’d, 411 F.2d 794 (5th Cir. 1969) (per curiam). In such cases, the false statement not only conveys information but also operates as an instruction or a direction, taking the case some distance from the “providing information for making up one’s mind” rationale. Compare Sullivan v. United States, supra; Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967) (suit not barred where air controllers did not supply weather information that was up to date); and United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert. denied, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1974) (suit not barred where air controllers negligently fail to warn airline of hazardous flight training near airplane’s route), with Marival, Inc. v. Planes, Inc., 306 F.Supp. 855 (N.D.Ga.1969) (suit barred where plaintiff relied on Federal Aviation Administration’s certification of airworthiness when buying plane). See also United States v. Neustadt, 366 U.S. at 711 n.26, 81 S.Ct. at 1302 n.26 (Court states that a suit based upon a driver’s misleading hand signal is not a suit based upon misrepresentation). But see Neal v. Bergland, 646 F.2d 1178 (6th Cir. 1981), cert. granted sub nom. Block v. Neal, - U.S. -, 102 S.Ct. 2267, 73 L.Ed.2d 1282 (1982).
We need not, however, explore the intricacies or the rationale of these “operational statement” cases. Regardless of whether one views the false statement at issue here as, in essence, an instruction or direction to those within the Social Security Administration, that statement was not made to the plaintiff and he did not rely upon it. That is sufficient to remove this case from the core, or traditional, view of “misrepresentation” as a separate tort. Moreover, all the cases here cited suggest that the word “misrepresentation” in the Tort Claims Act should be confined to its traditional, or core, meaning as a separate tort. And, we can discern no congressional purpose that might have been served in defining it more broadly, to include false statements that are happenstance causal elements of other torts. Thus, the “misrepresentation” exception does not apply.
3. While the false date of death statement does not bring plaintiff’s claims within any of the Federal Tort Claims Act’s exceptions, several of plaintiff’s claims are nonetheless barred by the exception for “libel” and “slander.” 28 U.S.C. § 2680(h). In examining a complaint we are bound to look beyond the literal meaning of the language used to ascertain the real cause of the complaint. Fitch v. United States, 513 F.2d at 1015; Hall v. United States, 274 F.2d 69, 71 (10th Cir. 1959). Much of the plaintiff’s complaint is that dishonoring the checks harmed him because it injured his reputation in the eyes of third parties— hence, they would not extend him credit, ridiculed him and his family, and so forth. The Federal Tort Claims Act, however, explicitly exempts “libel” and “slander”— what amounts to “defamation,” Prosser, supra, § 111 at 737—from the claims to which the United States grants consent to be sued. And, plaintiff’s claim fits “ ‘the traditional and commonly understood legal definition’ of the tort of defamation.” Hoesl v. United States, 451 F.Supp. 1170, 1175 (N.D.Cal.1978), aff’d, 629 F.2d 586 (9th Cir. 1980) (per curiam), quoting Neustadt, 366 U.S. at 706, 81 S.Ct. at 1300.
To create liability for defamation there must be “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence; and (d) [certain types of harm].” Restatement, supra, § 558 at 155. A “statement” simply means a “communication” that tends “to harm the reputation of another.” Id., § 559 at 156. And, as the Restatement’s note makes clear, “communication” is interpreted broadly “to denote the fact that one person has brought an idea to the perception of another.” Id., Comment (a) at 156. In fact, even an activity, such as “shadowing” someone can count as a “communication” if that activity communicates an idea to a third party. Id., Comment at 156, 170, 180.
All of plaintiff’s claims which involve the injury to his reputation and the consequent harm suffered by him when the Social Security Administration’s actions in dishonoring the checks implicitly communicated defamatory statements about him are therefore barred by the Federal Tort Claims Act. Such claims resound in the heartland of the tort of defamation: the injury is to reputation; the conduct is the communication of an idea, either implicitly or explicitly. Cf. Maymi v. Banco Popular de Puerto Rico, 63 P.R.R. 515 (1944). The only contrary authority we can find is Quinones v. United States, 492 F.2d 1269 (3d Cir. 1974), in which the Third Circuit allowed an action against the United States based on failure to use due care in maintaining personnel records. The court held that the claim was not one for defamation, although the injury was to reputation, because “negligence is conceptually distinct from defamation,” and because “the negligence alleged here was distinct from ... mere writing or speaking.” Id. at 1281. However, we decline to follow the Third Circuit in this case because we do not believe that the fact that a defamation is caused negligently makes it any the less a defamation. Indeed, it is commonly held that defamation can be caused by negligence. Restatement, supra, § 580B at 221-22. Thus, we believe that plaintiff’s complaint — insofar as it alleges harm caused by an injury to his reputation — must be dismissed.
4. We note that there are several paragraphs of the complaint which appear to allege some sort of direct injury to the plaintiff that does not depend upon an injury to reputation. Insofar as they allege injury caused by the Government’s criminal investigation, we suspect that they fall within the exemption to the Tort Claims Act for “discretionary” actions. 28 U.S.C. § 2680(a) (1976). Insofar as they claim direct (nonreputational) injury caused by the Government’s failure to honor its checks, we are uncertain how they set out the elements of a tort under the laws of Puerto Rico. Nonetheless, these issues have not been argued to us and we believe plaintiff should have an opportunity at least to make an argument in support of the existence of such theories. Therefore, we vacate the decision of the district court and remand for further proceedings not inconsistent with this opinion.
Vacated and Remanded.
. Claims under the Federal Tort Claims Act are determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b) (1976). In this case, the claims would arise under the Civil Code of Puerto Rico:
A person who by act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability but entails a reduction of the indemnity.
Art. 1802, 31 L.P.R.A. § 5141.
. The Government also refers us to three district court cases in which it is said that the bar of § 405(h) was accepted. Only one of those cases, Muenich v. United States, 410 F.Supp. 944 (N.D.Ind.1976), is reported. That case is clearly distinguishable as the amounts claimed in that case were attorney’s fees provided by 42 U.S.C. § 406(b), a provision of the Social Security Act, and therefore the claim obviously arose under the subchapter. Neither of the other cases, Parmenter v. United States, Civil No. 80-3009 (C.D.Cal. Jan. 31, 1981), and Barton v. Harris, Civil No. 80-18 (S.D.Tex. May 13, 1980), is sufficiently detailed in either facts or legal reasoning to be useful as precedent — no doubt this is why the courts issued them in unpublished form.
. The Veterans’ Benefits Act provides that “the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.” 38 U.S.C. § 211(a) (1976).
. We are also uncertain about the Quinones court’s view that the defamation exception reflected only heightened congressional desire to free government officials to write and speak as they choose, rather than a diminished congressional desire to protect reputational interests. But, in any event, even if it was Congress’s intent to protect official speech activity, the conduct at issue in this case must have consisted of a form of speech activity that explicitly or implicitly communicated negative propositions to third parties.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_respond1_3_3
|
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 concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant.
MARTIN v. COE, Com’r of Patents.
No. 6450.
United States Court of Appeals for the District of Columbia.
Decided April 6, 1936.
James V. Martin, of Washington, D. G, pro se.
T. A. Hostetler and R. F. Whitehead, both of Washington, D. G, for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
MARTIN, Chief Justice.
This case was begun by the filing of a bill in equity in the lower court by appellant, as plaintiff, against Thomas E. Robertson, as Commissioner of Patents, under section 4915, R.S.(35 U.S.C.A. § 63), to require the Commissioner to issue a patent to appellant to include a group of claims which had been rejected by the tribunals of the Patent Office.
The bill was filed in the lower court on February 10, 1930; on February 28, 1930, an answer was filed by the defendant; on April 7, 1933, the case was argued and submitted.
On June 26, 1933, a date after the argument but before the decision of the case, Mr. Robertson resigned from the office of Commissioner of Patents and was succeeded by the present appellee, Conway P. Coe.
28 U.S.C.A. § 780, provides as follows for cases in which a public officer ceases to hold his office, during the pendency of a case brought against him as such, and is succeeded by a subsequent appointee:
“(a) Where, during the pendency of an action, suit, or other proceeding brought by or against an officer of the United States, * * * and relating to the present or future discharge of his official duties, such officer dies, resigns, or otherwise ceases to hold such office, it shall be competent for the court wherein the action, suit, or proceeding is pending, whether the court be one of first instance or an appellate tribunal, to permit the cause to be continued and maintained by or against the successor in office of such officer, if within six months after his death or separation from the office it be satisfactorily shown to the court that there is a substantial need for so continuing and maintaining the cause and obtaining an adjudication of the questions involved.
“(c) Before a substitution under this section is made, the party or officer to be affected, unless expressly consenting thereto, must be given reasonable notice of the application therefor and accorded an opportunity to present any objection which he may have.”
On June 26, 1934, the lower court dismissed the case upon the ground that after the accession of Mr. Coe as Commissioner, the case had not been “continued and maintained” by the court in accordance with the requirements of the foregoing statute.
Afterwards, to wit, on July 26, 1934, the plaintiff filed a motion in the lower court, together with a supporting affidavit, praying the court to vacate its order dismissing the case and assigning in substance the following grounds for the motion, to wit, that on or about the middle of August, 1933, within 60 days following the succession of Mr. Coe to the office of Commissioner of Patents, plaintiff personally called at the office of the secretary of the trial justice for the purpose of asking when a decision could be expected in the case, and whether there was any further action which plaintiff should take in the case; that while plaintiff was asking the secretary these questions the trial justice came into the office and spoke to plaintiff substantially as follows: “I owe you an apology for not having reached a decision in your patent case, but I have been under considerable pressure of other work and will soon let •>you have a decision”; that following this conversation plaintiff relied upon the same and was convinced that there was no other action which was proper or necessary for him to take in the case until a decision was announced; and that the attorney of the Commissioner made no objection to a continuation of the cause and a decision on the merits.
Approximately a month following the August visit of plaintiff to the chambers of the trial justice, plaintiff visited the Patent Office on another matter and met the counsel of record for the Commissioner, who said to plaintiff that he “wondered when we may expect a decision” in plaintiff’s case. That plaintiff then repeated to him the statements made by the trial justice as to a speedy decision.
The appellant contends that these occurrences, happening well within the six months’ period following the accession of Mr. Coe to office, together with the trial record of the case awaiting decision in the hands of the trial justice, amounted to a satisfactory showing of a substantial need for continuing and maintaining an adjudication of the questions involved in the case, and that plaintiff had no doubt that the court so regarded it, and that when a decision was rendered the title of the case would show the name, Conway P. Coe, substituted for his predecessor in office.
■ On January 18, 1935, the lower court entered a final decree in the case dismissing the plaintiff’s bill of complaint, whereupon the present appeal was taken.
The sole question involved in this appeal is whether within six months after the retirement from office of Commissioner Robertson it was satisfactorily shown to the lower court 'that there was a substantial reason for continuing and maintaining the cause and obtaining an adjudication of the question involved, and whether such a substitution was made by the court, and whether before such a substitution was made the Commissioner of Patents, unless expressly assenting thereto, was given a reasonable notice of the application therefor and accorded an opportunity to present any objection which he might have thereto.
We think that the explanation given by appellant of the facts connected with the case in the lower court does not show such a substitution. The conversation between the trial Justice and the plaintiff did not serve as a substitute for the necessary action in court, as a satisfactory showing to the court that there was a substantial need for continuing and maintaining the cause and obtaining an adjudication of the questions involved, or that because of such a showing the court permitted the cause to be continued and maintained against Mr. Coe as successor in office to Mr. Robertson.
A similar question was before this court in the case of Black Clawson Co. v. Robertson, 63 App.D.C. 236, 71 F.(2d) 536, wherein similarly the six months’ period permitting the substitution, of the incoming Commissioner of Patents for the retiring Commissioner had not expired when the cause was argued and submitted to this court for decision, but that no action was taken within the six months’ period for a substitution under the statute. Upon a motion made after the expiration of such period praying for a substitution in the case, we held against the application and dismissed the case.
In United States ex rel. Claussen v. Curran, 276 U.S. 590, 48 S.Ct. 206, 72 L.Ed. 720, the court said: “It appearing that Henry H. Curran, sued herein as Commissioner of Immigration, resigned such office on March 31, 1926, and was succeeded by Benjamin M. Day, who now holds that office, and that no motion was made under section 11 of the Act of February 13, 1925 (chapter 229, 43 Stat. 936, 941 [28 U.S.C.A. § 780]), asking the Court to ‘permit the cause to be continued and maintained by or against the successor in office of such officer,’ and that the six months’ period, within which such a motion could have been made, has expired, the Court now vacates the judgments entered in the District Court and in the Circuit Court of Appeals and remands the cause to the District Court with a direction to dismiss the cause as abated.” See Le Crone v. McAdoo, 253 U.S. 217, 40 S.Ct, 510, 64 L.Ed. 869.
Consistently with the foregoing authorities, we affirm the judgment of the lower court dismissingv plaintiff’s bill, at appellant’s cost.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "O" thru "R"". Which specific federal government agency best describes this litigant?
A. Occupational Safety & Health Administration
B. Occupational Safety & Health Review Commission
C. Office of the Federal Inspector
D. Office of Management & Budget
E. Office of Personnel Management
F. Office of Workers Compensation Program
G. Parole board or parole commisssion, or prison official, or US Bureau of Prisons
H. Patent Office
I. Postal Rate Commission (U.S.)
J. Postal Service (U.S.)
K. RR Adjustment Board
L. RR Retirement Board
Answer:
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songer_usc1
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15
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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.
Jay S. ZELTZER, on behalf of himself and all others similarly situated, Appellant, v. CARTE BLANCHE CORPORATION, Appellee.
No. 74-1651.
United States Court of Appeals, Third Circuit.
Argued Feb. 13, 1975.
Decided April 21, 1975.
Mark A. Senick, Senick & Penkower, Pittsburgh, Pa., for appellant.
Clyde R. Mellott, John H. Morgan, Robert J. Tate, Eckert, Seamans, Cherin & Mellott, Pittsburgh, Pa., for appellee.
SEITZ, Chief Judge, and ALDISERT and GARTH, Circuit Judges.
GARTH, Circuit Judge.
This appeal calls upon us to determine the applicability of the Truth in Lending Act to Carte Blanche’s method of apportioning a cardholder’s payment between the cardholder’s airline account, which is subject to finance charges, and the cardholder’s general account, which is not. The district court held that the Truth in Lending Act did not require Carte Blanche to disclose its method of apportioning payments. We reverse.
I.
Defendant-appellee Carte Blanche Corporation (Carte Blanche) is a national credit card company, which gives to cardholders the privilege of charging items at retail establishments. Non-business retail purchases are recorded in the cardholder’s Carte Blanche general account; are billed on a monthly basis; apparently are not subject to finance charges, and are payable upon receipt.
A cardholder may also use his credit card to purchase airline tickets. Charges incurred for airline ticket purchases are billed in monthly installments under an extended payment plan and, in contrast to general account billings, are subject to finance charges.
During the. time period from January 1, 1970 to November 1, 1970, Carte Blanche with its monthly billing statement made the following disclosures with reference to a cardholder’s airline account:
“Airline Charges
Explanation of Extended Pay Plan
Monthly installments are billed as follows:
Amount of Individual Ticket Monthly Installment
$600 or less Yiz (min. $10 per .mo.)
$600.01 to $900 ■Us
$900.01 or more Yzí
“Larger payments may be made, or the entire remaining balance may be paid at any time without penalty.
“A monthly finance charge imposed at the periodic rate of 1V2% of the unpaid balance at billing date is added in accordance with tariff filed by airlines. This is an annual percentage rate of 18%.
“Default in any payment due may, at our option, render the entire balance due.”
The quoted language makes no mention of how a payment which exceeds the airline monthly installment (i.e. an “overpayment”) is applied to the cardholder’s airline and general accounts. During the period in question, unless specifically instructed by the cardholder, an airline account overpayment, if less in amount than the total airline account balance then due, was not applied to reduce the airline account. Instead the overpayment was credited to the cardholder’s general account, without regard to whether or not there were any outstanding charges in the cardholder’s general account. Carte Blanche’s practice in applying an overpayment is best understood by illustration. For our purposes here, we have assumed: (1) an airline charge of $600.00 was incurred by a cardholder; (2) this charge required a monthly installment payment of $50.00, and (3) no specific instruction as to allocation of payments was given to Carte Blanche by the cardholder.
1. Example 1: The cardholder, with a general account balance of $150.00, pays a total of $500.00. The airline account would be credited with $50.00 (thereby leaving an outstanding balance of $550.00 in the airline account upon which finance charges would be incurred). The general account balance of $150.00 would be deemed paid in full. The remainder of the payment made [$500.00 minus ($150.00 + 50.00)], $300.00, would then be credited to the general account for application against future charges and would bear no interest. The remaining $550.00 balance in the airline account would not be reduced.
2. Example 2: The cardholder, with no general account balance, pays a total of $550.00. The airline account would be credited with only $50.00 (thereby leaving an outstanding balance of $550.00 in the airline account upon which finance charges would be incurred). The balance of the payment made ($500.00) would be credited to the general account for application against future charges and would not bear interest.
The practice in applying airline account overpayments is easily summarized. No advice was given by Carte Blanche to its cardholders that they could direct the allocation of payments between two accounts. Accordingly, unless the cardholder paid the entire airline account balance plus any outstanding general account balance, the airline account would be reduced only by the amount of the minimum monthly installment due. Any overpayment credited to the cardholder’s general account would not bear interest, although the airline account balance remaining unpaid would be subject to finance charges.
On August 30, 1971, on behalf of himself and all others similarly situated, plaintiff-appellant Zeltzer filed this action against Carte Blanche. He alleged that Carte Blanche violated the Truth in Lending Act from January 1, 1970 to November 1, 1970 by failing to disclose its practice in applying overpayments made in connection with a cardholder’s airline account. Carte Blanche moved under Fed.R.Civ.P. 12 to dismiss the complaint for the following alternative reasons: (1) the court lacked in personam jurisdiction over Carte Blanche by reason of defective service; (2) the complaint failed to set forth a claim for relief under the Truth in Lending Act; (3) if a claim for relief under the Truth in Lending Act were alleged, plaintiff’s action was barred because it was already included within another purported class action then pending before the same district court. With the consent of all parties, further proceedings in this case were postponed pending decision of this Court in Katz v. Carte Blanche Corp., 496 F.2d 747 (3rd Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). Following decision of this Court in Katz, plaintiff filed an amended complaint and moved for class determination pursuant to Fed.R. Civ.P. 23. Thereafter the district court granted summary judgment to Carte Blanche, see Fed.R.Civ.P. 12(c), holding that Carte Blanche was not obligated under the Truth in Lending Act to disclose “the method of allocating overpayment credits to accounts.” Zeltzer v. Carte Blanche Corp., 375 F.Supp. 717 (W.D.Pa.1974). We disagree.
II.
The complaint alleged that the Truth in Lending Act obligated Carte Blanche to disclose the manner in which it applied payments to airline account balances and that Carte Blanche had failed to make these disclosures. Accordingly, we address ourselves to the sole question of whether Carte Blanche disclosed all that it was required to disclose under the Truth in Lending Act.
The Truth in Lending Act requires disclosure of terms and conditions of credit extension under open end credit plans. See 15 U.S.C. § 1637, Regulation Z, 12 C.F.R. § 226.7. When airline tickets are purchased by a Carte Blanche cardholder on a deferred payment basis, finance charges are imposed upon the balance remaining “open” at the end of each month in the airline account. Hence, the Carte Blanche airline account, unlike Carte Blanche’s general account, is an open end credit plan, for which disclosures are required. See III, infra; 15 U.S.C. § 1602(i); Regulation Z, 12 C.F.R. § 226.2(r).
The pertinent disclosure provisions of the Act provide:
(a) Before opening any account under an open end consumer credit plan, the creditor shall disclose to the person to whom credit is to be extended each of the following items, to the extent applicable:
$ sf: H< sf: :js
(2) The method of determining the balance upon which a finance charge will be imposed.
jjc !(s $ sf: sfc
Statement required with each billing cycle
(b) The creditor of any account under an open end consumer credit plan shall transmit to the obligor, for each billing cycle at the end of which there is an outstanding balance in that account or with respect to which a finance charge is imposed, a statement setting forth each of the following items to the extent applicable:
(8) The balance on which the finance charge was computed and a statement of how the balance was determined. If the balance is determined without first deducting all credits during the period, that fact and the amount of such payments shall also be disclosed.
* * * * * *
15 U.S.C. § 1637. Section 105 of the Act (15 U.S.C. § 1604) delegates to the Federal Reserve Board broad regulatory and rulemaking powers to effectuate its purposes. See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 364, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); Bone v. Hibernia Bank, 493 F.2d 135, 138 (9th Cir. 1974). Pursuant to the broad powers granted it, the Federal Reserve Board promulgated Regulation Z. The specific disclosures required by Regulation Z, and alleged to have been violated by Carte Blanche, are disclosures to be made on opening a new account, and disclosures to be made by periodic statements after an account has been opened.
Referring to the literal words of Regulation Z the district court speculated “that plaintiff, under this state of facts, [might have] stated a cause of action . . ..” 375 F.Supp. at 720. However, interpreting Regulation Z in accordance with an interpretive ruling of the Federal Reserve Board, the district court held that a cause of action was not so stated. Cf. Mourning v. Family Publications Service, Inc., 411 U.S. at 372, 93 S.Ct. 1652; Udall v. Tallman, 380 U.S. 1, 16 — 17 (1965); Bone v. Hibernia Bank, 493 F.2d at 139-40. The district court reached its conclusion without regard to whether disclosure was required under the Act. In so doing, the district court bypassed the question of whether disclosure was mandated and proceeded directly to hold that Carte Blanche’s practice would nevertheless be exempt from disclosure. As a result of this approach, we first deal with the issue of “exemption” under the interpretive ruling and then consider if disclosure is mandated.
For its holding, the district court emphasized, and apparently relied upon, just one sentence of the interpretive ruling:
(b) In disclosing the method of determining the balance(s) upon which finance charges are computed, it is not necessary to show the method of allocating payments or other credits.
12 C.F.R. § 226.706(b). Our analysis of the entire subsection (b) however, discloses that the interpretive ruling cannot support the district court’s conclusion.
First, when read in full context, subsection (b) limits drastically the scope of the introductory sentence which was central to the district court’s opinion. Subsection (b), through example, narrowly limits the types of charges (“late charges,” “overdue balances,” “insurance premiums,” etc.) to which payments may be applied without the necessity for disclosure. In this context, the ruling only exempts (by interpretation) a creditor from having to disclose the mechanics involved in allocating credits to those “internal” charges which, in aggregate, constitute the balance in an open end credit plan. It is evident from the full text of the interpretive ruling that the ruling applies only where payments are allocated among charges; it does not apply where, as here, payments are allocated between accounts.
Second, subsection (b) by its express terms, as well as by its title, applies solely to open end credit plans. It has no relation or application to payments or credits made with respect to an account which is “other than an open end credit plan.” As we have discussed earlier, an open end credit plan is distinguished from others in that such a plan is subject to finance charges; e. g., Carte Blanche’s airline account. Therefore, as Carte Blanche’s general account is not subject to finance charges, it is an “other than open end credit plan” and is accordingly beyond the reach of subsection (b).
Finally, subsection (b) is directed solely to the allocation of monies within an account. It does not encompass the threshold allocation of monies between two distinct accounts. To the extent that subsection (b) comes into play, it does so only after an initial division of monies has been made as between, in this instance, the airline and general accounts. It is only the “internal” allocation of monies, as distinct from the initial division of monies, which need not be disclosed.
Therefore, no matter how broadly the interpretive ruling may be read, it cannot exempt Carte Blanche from disclosing its division of monies between two separate accounts: one, an open end credit plan on which finance charges are imposed; and the other a general account not subject to such charges. It is this very Carte Blanche practice which is at issue here, for when Carte Blanche receives payments from a cardholder without instructions, see p. 1158 & note 5, supra, it unilaterally allocates the payment between the cardholder’s airline and general accounts. See examples at p. 1159 & n.7, supra.
Having determined, contrary to the district court’s holding, that the interpretive ruling does not exempt Carte Blanche from disclosure of its allocation practice, we now consider whether such a disclosure, if not so exempted, is required by the Truth in Lending Act. For that determination, we turn to the statute. See Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971 (5th Cir. 1974).
III.
It is the declared congressional purpose of the Truth in Lending Act to assure consumers a meaningful disclosure of credit provisions, thus enabling the consumer to compare more readily various available credit terms and to avoid the uninformed use of credit. 15 U.S.C. § 1601; see Mourning v. Family Publications Service, Inc., 411 U.S. at 364, 93 S.Ct. 1652. The language of the Truth in Lending Act requires the creditor of a consumer open end credit plan to disclose the method by which a bal-anee is determined both before the opening of an account and by a periodic statement once the account has been opened. 15 U.S.C. § 1637(a)(2), (b)(8). Similar disclosure requirements are imposed by the implementing language of Regulation Z. See 12 C.F.R. § 226.-7(a)(2), (b)(8).
Under Carte Blanche’s system of allocation, undisclosed to its cardholders, it is not until the succeeding billing cycle that a cardholder would discover that an airline account overpayment would not be applied to reduce the airline account balance. This we believe is in direct contravention of the express language of the Act which, as noted, requires disclosure of “the method of determining the balance upon which a finance charge will be imposed.” 15 U.S.C. § 1637(a)(2).
The language here quoted is found in that section of the Act pertaining to disclosure before the opening of an account. A corresponding disclosure requirement is imposed upon a creditor once an account has been opened. 15 U.S.C. § 1637(b)(8). Although the language of (b)(8) is more detailed than that of (a)(2), this difference results only because (b)(8) contemplates the disclosure of transactions which can only occur after an account has been opened. Thus, (b)(8) in full requires a statement setting forth:
(8) The balance on which the finance charge was computed and a statement of how the balance was determined. If the balance is determined without first deducting all credits during the period, that fact and the amount of such payments shall also be disclosed.
15 U.S.C. § 1637(b)(8); see Regulation Z, 12 C.F.R. § 226.7(b)(8).
Here, under Carte Blanche’s procedure, airline account balances were computed “without first deducting all credits during the period.” Under such a practice, a cardholder would be uninformed as to whether monthly payments would or would not be allocated by Carte Blanche as “credits” to the cardholder’s airline account. The legislative history indicates to us that the crucial objective of the Act was to insure that consumers be afforded access to information so that they could compare the cost of credit. See 1968 U.S.Code Cong. & Admin.News át 1970 — 71. In our view, an informed comparison of credit costs, as well as an informed determination of credit use, cannot be made where a creditor does not disclose information concerning the manner in which payments are applied to reduce an outstanding credit balance. It is not realistic to expect that a consumer will be able to make an informed credit decision where, as here, the creditor fails to reveal that payments received will be divided between accounts subject to finance charges and accounts not subject to finance charges. In the context of Truth in Lending disclosures, we cannot conceive of anything more fundamental than the furnishing of this type of credit information to a credit consumer.
Even if the statutory language of the Act were less explicit, and even if the announced congressional purpose were less clearly defined, we nonetheless would be obliged by sheer logic to hold that Carte Blanche’s allocation practices are within the scope of the Act’s required disclosure provisions. However, in resolving the issue presented here, we are not obliged to consider an ambiguous statute or an ill-defined congressional purpose. The statutory language before us is explicit and the congressional objective clear. In our view disclosure is required.
IV.
Inasmuch as we hold that plaintiff’s allegations state facts under which Carte Blanche was required to disclose the manner of its allocation of payments between accounts, the complaint suffices to state a cause of action arising under the Truth in Lending Act. Accordingly, Carte Blanche’s motion to dismiss the complaint should not have been granted.
The other grounds for dismissal urged by Carte Blanche in its motion to dismiss (see pp. 1159, 1160 supra) were not ruled upon by the district court in light of its disposition (now held erroneous) of this motion. Hence, on remand those grounds, if renewed, should be considered together with any other issues that may be raised by the parties. We express no opinion as to the disposition of the other issues raised in defendant’s motion, none of which were ruled upon by the district court.
We will reverse the order of April 30, 1974 which dismissed the complaint and remand to the district court for further proceedings consistent with this opinion.
. Consumer Credit Protection Act, Tit. I, 82 Stat. 146, 15 U.S.C. § 1601 et seq.
. As noted in our discussion, see infra at 1159, 1160, the district court properly considered defendant’s motion to dismiss as one for summary judgment inasmuch as the court considered matters outside the pleadings. Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Tomalewski v. State Farm Life Ins. Co., 494 F.2d 882 (3d Cir. 1973). Neither party on this appeal asserts that genuine issues exist as to material facts. Accordingly, the facts presented in the text are as stated in the pleadings, and in matters outside the pleadings which were considered by the district court.
. See generally Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974).
. If the general account charges are not paid in full within the requisite time period, late charges may be assessed on the overdue unpaid balances. As the plaintiff here does not allege that such late charges are in fact finance charges for which disclosure is required, compare Katz v. Carte Blanche Corp., 496 F.2d at 750 n.2, we do not treat this aspect of Carte Blanche’s practices. Cf. 12 C.F.R. § 226.401. It was represented to this Court at oral argument, however, that failure of a cardholder to tender prompt payment after late charges are imposed upon the general account, may result in the account being deemed delinquent, the account being terminated, and collection proceedings being instituted.
For purposes of this appeal, we assume, as did the parties at oral argument, that a Carte Blanche general account is not subject to finance charges.
. Nowhere in the Carte Blanche literature in the record before us, does it appear that the cardholders were ever advised that they could direct the manner of their payment to a particular account and in a particular sum.
. Carte Blanche has since changed its practice in allocating overpayments to now apply such overpayments to the balance of the airline account, if such existed, even without instructions to do so by the cardholder. Carte Blanche Brief at 19 n.5.
. For a complete illustration of Carte Blanche’s payment allocation practice, we describe two other factual circumstances. For these examples we make the same assumptions as are set out in the text.
3. Example 3: The cardholder, with no general account balance, pays a total of $600.00, an amount equal to the airline account charges. The airline account balance would be deemed paid in full.
4. Example 4: The cardholder, with no general account balance, fails to pay the airline account installment when due. Despite this failure, the amount of the airline account installment ($50.00) would be deducted from the airline account balance and would appear as a charge in the cardholder’s general account. Consequently, the cardholder would have an unpaid airline account balance of $550.00, upon which finance charges would be incurred. The cardholder would also have a general account balance of $50.00, which would not be subject to a finance charge, but which would be subject to Carte Blanche’s delinquency account procedures.
See Carte Blanche Brief at 19 n.5.
. Carte Blanche has never filed an answer to plaintiff’s complaint or amended complaint. Accordingly, only the allegations of the plaintiff’s complaint, as amended, are before us. The “factual” examples found in the text and footnotes were developed at oral argument.
. With respect to this contention, Carte Blanche asserted that if the allegations of the complaint alleged a claim for relief, such claim for relief arose under the Federal Trade Commission Act, 15 U.S.C. § 45, the enforcement of which is exclusively vested in the Federal Trade Commission. See Moore v. N. Y. Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). Given the nature and basis for our disposition of the instant case, we do not at this time reach the issue raised: that conduct constituting violation of the FTC Act cannot constitute a basis for private claims for relief under the Truth in Lending Act.
. See Katz v. Carte Blanche Corp., 53 F.R.D. 539 (W.D.Pa.1971), rev’d, 496 F.2d 747 (3d Cir.) (en banc), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974).
. Plaintiff’s original complaint alleged that Carte Blanche’s improper disclosure practices resulted in an overcharge to Zeltzer of $11.21. The amended complaint, however, stated that Zeltzer had suffered no actual monetary loss and therefore limited his claim for relief to statutory penalty, attorney’s fees and costs. 15 U.S.C § 1640(a).
. By granting summary judgment on the merits to Carte Blanche on the ground that plaintiff’s allegations failed to state a cause of action under the Truth in Lending Act, the district court did not pass upon plaintiff’s motion for class determination. Also by reason of its disposition, the district court did not consider the other grounds for dismissal urged in Carte Blanche’s Rule 12 motion.
. Regulation Z in part provides:
(a) Opening new account. Before the first transaction is made on any open end credit account, the creditor shall disclose to the customer in a single written statement, which the customer may retain, in terminology consistent with the requirements of paragraph (b) of this section, each of the following items, to the extent applicable: ******
(2) The method of determining the balance upon which a finance charge may be imposed.
12 C.F.R. § 226.7(a)(2);
. Regulation Z requires a creditor to provide a periodic statement for each billing cycle to a cardholder who has an outstanding account balance of more than $1.00. The periodic statement, in part, must set forth:
(8) The balance on which the finance charge was computed, and a statement of how that balance was determined. If any balance is determined without first deducting all credits during the billing cycle, that fact and the amount of such credits shall also be disclosed.
12 C.F.R. § 226.7(b)(8).
. Although the parties have devoted considerable discussion to the issue of the authority of the agency’s ruling and the extent to which it should control the disposition of this appeal, we do not reach that question. In our view, the interpretive ruling, 12 C.F.R. § 226.706, does not extend to the facts presented here.
. The interpretive ruling, 12 C.F.R. § 226.706, provides:
(a) Section 226.7(a)(2) provides that before the first transaction is made on any open end credit account, the creditor must disclose “the method of determining the balance upon which a finance charge may be imposed.” Section 226.7(b)(8) requires the creditor to disclose on the periodic statement “the balance on which the finance charge was computed, and a statement of how that balance was determined.” The question is raised whether these provisions require a creditor to provide a description of the manner in which payments or other credits are applied to various portions of the balance or balances on which finance charges are computed.
(b) In disclosing the method of determining the balance(s) upon which finance charges are computed, it is not necessary to show the method of allocating payments or other credits. For example, explanation of the manner in which payments or credits may be applied to late charges, overdue balances, finance charges, insurance premiums, or other portions of balances is not required. Similarly, explanation of the method of allocating such payments between cash advance and purchase portions of the account is not required. Such explanations in many cases involve lengthy and complex descriptions which may unduly complicate disclosures.
(c) Explanation of the allocation method may be made by creditors where it can be done in conformity with § 226.6(c) which authorizes additional information or explanations as long as they are not stated, utilized, or placed so as to mislead or confuse the customer or contradict, obscure, or detract attention from the required disclosures.
. The interpretive ruling is entitled: “Open End Credit — allocation of payments” (emphasis added).
. 15 U.S.C. § 1601 provides:
Congressional findings and declaration of purpose
The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.
. The underscored portion of the statute was not in the original version of the bill, but appeared as an amendment sponsored by the Senate Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency. 113 Cong.Rec. 14693 (1967). The amendment was designed to require disclosure of how balances were determined, since more than one method of' computing the base to which finance charges would be applied was known to exist. This amendment was in accordance with the recommendations made by Mr. J. L. Robertson, Vice Chairman of the Governors of the Federal Reserve System. See 113 Cong.Rec. 14693-5 (1967). Governor Robertson had testified that “more than one method is commonly used for computing the base to which the finance rate will be applied,” and that the disclosure required should include “the method of computing the balance against which the charge is imposed . . . Senate Hearings on S.5 before the Subcommittee on Financial Institutions of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 662 (1967).
. Under the examples posed supra at 1159, by operation of the former Carte Blanche system, the consumer would be deprived of the present value of $300 or $500. Such unwitting forfeiture of the potential to use credit or to earn interest is exactly the type of evil Congress sought to obviate.
. The statutory terms, being remedial in nature, are to be liberally construed. See N. C. Freed Co., Inc. v. Board of Governors, 473 F.2d 1210 (2d Cir. 1973), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61 (1974).
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_usc1
|
0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
626 F.2d 1022
In re FTC LINE OF BUSINESS REPORT LITIGATION. Appeal of AMERICAN CYANAMID CO. et al. In re FTC CORPORATE PATTERNS LITIGATION.
Nos. 77-2099, 77-2100.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1978.
Decided May 1, 1980.
William Simon, Washington, D. C., with whom Stuart H. Harris, Harold F. Baker and John DeQ. Briggs, Washington, D. C., were on the brief, for appellants.
John M. Wood, Washington, D. C., for appellee.
Before ROBINSON and MacKINNON, Circuit Judges, and PRATT, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Two law firms dispute the amount that one is owed as reimbursement in its role as liaison counsel in complex litigation over the Federal Trade Commission’s Line of Business Report (LB) and Corporate Patterns Report (CPR) programs. The District Court, without a hearing, ordered one, Howrey & Simon, to pay the other, Reed Smith Shaw & McClay (Reed Smith), sums in excess of $42,000, and Howrey & Simon appeals. We find the court’s disposition informationally inadequate for full appellate review, and accordingly remand the record for additional explanation.
I. BACKGROUND
The series of events giving rise to the instant contest began in 1975 when a number of corporations filed civil actions in the District Courts for the Southern District of New York and the District of Delaware challenging the LB and CPR programs. Responsively to recommendations set forth in the Manual for Complex Litigation, the Delaware District Court elected the expedient of liaison counsel to avoid needless duplication of effort in the cases pending before it. So, in 1976, the court entered an order appointing Reed Smith, the plaintiffs’ nominee, in that capacity on terms negotiated by them.
The order authorized Reed Smith to receive and distribute to counsel for other plaintiffs documents from the court and from defendants, to coordinate appearances of counsel at hearings and court conferences, to call meetings among plaintiffs’ counsel for various purposes, and to perform other administrative functions “expressly authorized by further Order of the Court.” The order also included this further provision:
For the foregoing administrative duties and functions, as liaison counsel shall perform pursuant to Order of the Court, liaison counsel shall be reimbursed periodically, not less often than quarterly, by plaintiffs, per capita, for the expense and time involved in preparation, duplication and distribution of court orders, notices, and other papers designated for distribution by liaison counsel to plaintiffs and for other administrative services rendered, pursuant to paragraphs 1 through 4 above or other Order or direction of the Court.
Reed Smith issued its first statement under this provision about two months later, covering February-April, 1976, and Howrey & Simon promptly paid its $7,110 share without apparent objection. On August 30,1976, Reed Smith sent Howrey & Simon a second statement, this time showing $11,-791.70 due, and the latter immediately requested an itemized breakdown. After-wards, as relations between them began to deteriorate, Howrey & Simon refused to pay anything unless and until Reed Smith deleted reimbursement for items that, in the opinion of Howrey & Simon, were not within the scope of the Delaware court’s order. This Reed Smith would not do, and the two firms, lawyerly negotiating skills notwithstanding, found themselves at an impasse.
Meanwhile, the amount in dispute continued to grow. By April of 1976, all of the LB and CPR litigation in Delaware and the Southern District of New York had been transferred to the District Court for the District of Columbia. Like its predecessor in Delaware, the District of Columbia court felt a need for liaison counsel, and it too asked the. plaintiffs to draft a proposed order. Ultimately, the court entered orders appointing Reed Smith as coordinating counsel in both cases and, over Howrey & Simon’s objection, incorporating the identical reimbursement provision that had appeared in the Delaware order. As might have been predicted, wrangling over billings continued after the new order, and neither correspondence nor face-to-face discussions succeeded in resolving the conflict.
Finally, in July, 1977, Reed Smith moved the District Court for an order directing Howrey & Simon to pay all amounts allegedly due. Both parties filed lengthy memoranda and voluminous documentation in support of their respective positions. Howrey & Simon requested a hearing on Reed Smith’s motion and raised essentially three objections: that the District Court should have allocated reimbursement on a per-firm rather than a per-client basis, that a substantial portion of the reimbursement sought was for activities beyond the compass of the court’s order, and that much of what was authorized by the order had been billed at disproportionately high rates. In particular, Howrey & Simon urged that amounts billed at Reed Smith’s usual commercial rates were actually attorney’s fees, and as such were not properly awardable.
The District Court reached its decision without a hearing. In a memorandum opinion, the court held that it was empowered to require reimbursement, and in the proportions previously set, and that it was “readily apparent that [Reed Smith’s] services and disbursements were well within the scope of the authority granted by [its earlier] order.” The court also noted that Howrey & Simon was the only firm that had not paid its allocated share of liaison counsel’s claimed expenses. Resultantly, Howrey & Simon was directed to pay most of Reed Smith’s charges, which aggregated more than $42,000.
II. THE OBJECTIONS
Howrey & Simon presses here essentially the same arguments it previously advanced in the District Court. We turn now to address each in turn, and that, we find, we can do with relative brevity.
A. The District Court's Power
We have no doubt as to the District Court’s authority to order reimbursement of liaison counsel on appropriate items or to allocate the responsibility for reimbursement in any reasonable manner. Courts are inherently empowered to control their dockets, and to that end to appoint liaison counsel and to assure that counsel will be reimbursed for his financial outlay. To the extent that objection is registered to raw judicial power in these areas, we find it wholly unavailing.
B. The Manner of Reimbursement
The District Court’s decision to require reimbursement on a per-client rather than a per-firm basis was also well within its authority. Howrey & Simon contends that because liaison counsel’s services were rendered directly to law firms, this method of allocation is unfair. True it is that because Howrey & Simon has more clients than any other firm involved in the litigation, the combined assessments against its group of clients are greater than the aggregate levy on clients of any other firm. But every client pays the same amount, and the District Court’s paramount concern— surely immune to condemnation — was fairness to the litigants. Since the economic burden of reimbursement is the client’s and not the attorney’s, no apparent harm to Howrey & Simon flows from the court’s scheme. We do not say that the court could not have adopted a different plan. We do say, however, that the method of allocation chosen by the court was reasonable and within the ambit of its discretion.
C. The Amounts Charged
This leaves only the question whether Reed Smith’s reimbursement items emanated from activities within the scope of the appointment orders and, if so, the further question whether the amounts requested were reasonable. The District Court expressly held that the bulk of the charges were both authorized and fair. The court did not, however, make factual findings or articulate reasons with sufficient particularity to enable suitable review of its holding.
The problem thus confronting us is similar to another which we addressed in the recent past. In Evans v. Sheraton Park Hotel, discussing an award of attorney’s fees by the District Court, we said:
We believe that a meaningful review requires a record that elucidates the factors that contributed to the fee decision and upon which it was based. Certainly it is not conducive to appropriate appellate review where, as here, the reviewing tribunal is completely in the dark as to what the trial judge found concerning the time and labor involved, the rate of compensation, and the aspects he may have deemed of significance.
In the case before us, the District Court’s brief discussion of Howrey & Simon’s claims of ultra vires and unreasonableness leaves us in much the same difficulty. The court’s opinion quoted a recent Third Circuit decision for the proposition that courts should not “ ‘become enmeshed in a meticulous analysis of every detailed facet of the professional representation.’ ” The District Court then proclaimed that “in fact, because it is concerned only with administrative matters and not professional representation, the court’s review will be even more limited.” Concluding at this point, the court merely stated that Reed Smith had sufficiently itemized its expenses, and ordered Howrey & Simon to pay its allotted share.
This exposition explains neither the analysis nor the synthesis underlying the court’s ruling. It thus does not afford an adequate foundation for appellate review on whether the activities for which reimbursement is claimed were within the scope of the appointment orders and, if so, the reasonableness of the amounts claimed. We therefore remand the record for more explicit findings of fact and conclusions on these two issues.
So ordered.
. We explain our use of “reimbursement” in note 14 infra.
. Section 1.90 of the Manual for Complex Litigation (West ed. 1977) provides in pertinent part:
When there are several parties on one or both sides of the case represented by different counsel, the court is confronted with a problem in communicating with counsel and in securing responses from counsel on procedural questions. If these circumstances appear at the preliminary pretrial conference, the court should consider requesting counsel for the parties on each side to select one or more of their number as liaison counsel.
. The Commission’s LB and CPR surveys, undertaken pursuant to 15 U.S.C. § 46(b) (1970), extended from 1972 through 1976. They were an ambitious endeavor to assemble statistical information on the internal workings of several hundred large American corporations. The surveys met with persistent opposition, and the result has been a steady stream of litigation. Our opinion in Appeal of FTC Line of Business Report Litigation, 193 U.S.App.D.C. 300, 595 F.2d 685, cert. denied, 439 U.S. 958, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978), and the Third Circuit’s in A. O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 1976), delineate the background and procedural history of the struggle.
. FTC Corporate Patterns Report Litigation, Misc. No. 76-126 (D.D.C. Oct. 20, 1977) (memorandum and order), Joint Appendix (J. App.) 68 [hereinafter cited as Memorandum and Order].
. See note 2 supra.
. Affidavit of Lee A. Rau ¶¶ 8-10, J. App. 182-183. Rau, an attorney with Reed Smith, was the individual who actually served as coordinator under both the Delaware and District of Columbia orders hereinafter described.
. A. O. Smith Corp. v. FTC, C.A. No. 75-15 (D.Del. Mar. 3, 1976) (order appointing liaison counsel), J. App. 187. See Affidavit of Lee A. Rau [Í 8, J. App. 182. The order also appointed as local liaison counsel the firm of Potter, Anderson & Corroon, which is not involved in the instant controversy.
. A. O. Smith Corp. v. FTC, supra note 7 (order appointing liaison counsel). The text of the order is almost a verbatim copy of the form recommended in the Manual for Complex Litigation, supra note 2, at 178. Such differences in duties of liaison counsel as there are between the form and the order are not germane to this appeal.
. Id. This paragraph likewise was a near-verbatim reproduction of the Manual model, with the notable omission of additional language there suggested:
Liaison counsel shall report to the Court periodically, not less often than_, his time and expenses expended in performing the duties imposed on him by Order of the Court, and, upon approval by the Court, he shall report his accounts to all with notice to each plaintiff of its pro rata share of the cost.
Manual for Complex Litigation, supra note 2, at 178. The order entered made no provision whatsoever for judicial approval of liaison counsel’s charges prior to billing, and had it done so the imbroglio before us might never have occurred. We heartily recommend consideration of inclusion in further liaison-counsel appointment orders of such a provision, for the extra burden thus imposed might well be far outweighed by avoidance of litigation over reasonableness of the charges.
. Letter, Edward T. Tait to Stuart H. Harris, May 28, 1976, J. App. 190, and enclosure, J. App. 191.
. Letter, Stuart H. Harris to Edward T. Tait, June 3, 1976, J. App. 192. Cf. Letter, Stuart H. Harris to Richard F. Corroon, June 28, 1976, J. App. 193 (making payment, similarly without objection, to local liaison counsel).
. Statement of August 30, 1976, J. App. 196.
. Letter, Harold F. Baker to Edward T. Tait, Sept. 9, 1976, J. App. 197.
. We recognize that the word “reimburse” in its usual sense contemplates a repayment of costs incurred — actual out-of-pocket expenses — and ordinarily does not include any element of profit. One of Howrey & Simon’s contentions is that in some items Reed Smith sought compensation — more than simply costs — instead of reimbursement. Since we do not reach that issue at this time, see note 28 infra and accompanying text, throughout this opinion we speak in terms of reimbursement, but that is not to be taken as necessarily an accurate characterization or as a judicial endorsement of any of Reed Smith’s claims, and most certainly not as the intimation of a view on the propriety of compensation to liaison counsel.
. See, e. g., Letter, Harold F. Baker to Lee A. Rau, Oct. 5, 1976, J. App. 198-199 (“I suggest that you make the appropriate adjustments . . . and send us a new statement”); Letter, John DeQ. Briggs to Lee A. Rau, Nov. 22, 1976, J. App. 200-201 (summary of Howrey & Simon’s position).
. Letter, Lee A. Rau to John DeQ. Briggs, Nov. 24, 1976, J. App. 202-204 (“[i]n sum, we continue to believe that the final Delaware liaison bill as finally stated is proper”). That letter also warned that unless the parties resolved the matter by the end of November, 1976, Reed Smith would likely seek judicial enforcement of its demand for payment. Id. at 3, J. App. at 204.
. See Civil Docket, In re FTC Corporate Patterns Report Litigation, Misc. No. 76-0126, at cover page, J. App. 1; Civil Docket, In re FTC Line of Business Report Litigation, Misc. No. 76-0127, at cover page, J. App. 36.
. FTC v. Air Prods. & Chem., Inc., Misc. No. 76-64 (D.D.C. July 14, 1976) (memorandum order), J. App. 281.
. In re FTC Line of Business Report Litigation, Civ. No. 76-835 (D.D.C. July 30; 1976) (pretrial order), at ¶ 14, J. App. 236-238; In re FTC Corporate Patterns Report Litigation, Civ. No. 76-842 (D.D.C. July 30, 1976) (pretrial order), at ¶ 14, J. App. 239-241. See text supra at note 9. The cited paragraphs of the two orders are identical.
Howrey & Simon had two basic objections to the orders:
First, we submit the proposed formula for reimbursement is inequitable. There can be no justification for requiring . . that a law firm representing six corporate parties bear six times the expense of a firm representing one corporate party, although each firm would receive but one copy of the same communication.
Secondly, [the order language] is imprecise to the extent it might require coordinating counsel to seek reimbursement for duties other than those ministerial duties described in paragraph A. For example, paragraph B provides for reimbursement for “time” spent by coordinating counsel in “preparation” and distribution of “other papers designated by coordinating counsel” and “for other administrative services rendered.”
Letter, Howrey & Simon by J. Wallace Adair to Hon. Thomas A. Flannery, July 27, 1976, at 2, J. App. 206 (footnotes omitted). This letter was sent before any dispute arose between Howrey & Simon and Reed Smith over amounts charged under these orders, but it was undeniably a precursor of future disagreements.
. On December 21, 1976, Reed Smith’s bill to Howrey & Simon exceeded $10,000 for the LB litigation and $7,000 for the CPR litigation. Exhibits T & U, J. App. 218, 219. On March 4, 1977, Reed Smith billed an additional $7,848 for the LB litigation and $5,468 for the CPR litigation. Exhibits V & W, J. App. 220, 221. Howrey & Simon declined to pay for the same reasons advanced for nonpayment of the final billing in the Delaware litigation. See, e. g.. Letter, Harold F. Baker to Lee A. Rau, Mar. 29, 1977, at 2, J. App. 223 (“[w]e simply cannot believe that the Court envisioned fees in the order of magnitude which you want to levy on our clients”); Letter, Lee A. Rau to Harold F. Baker, May 6, 1977, at 3, J. App. 227 (“such an inference [that Reed Smith had overcharged] is both unwarranted and erroneous”); Letter, Harold F. Baker to Lee A. Rau, May 23, 1977, at 1, J. App. 233 (“[w]e have received your letter of May 6 and regret that nothing stated therein serves to change our views”).
. See Civil Docket, In re FTC Corporate Patterns Report Litigation, supra note 17, at 25, J. App. 28; Civil Docket, In re FTC Line of Business Report Litigation, supra note 17, at 21, J. App. 60.
. Reed Smith suggests that Howrey & Simon “failed to comply with the procedural requirements for requesting ... a hearing.” Brief for Appellees at 29-30. We disagree. Rule l-9(f) of the District Court in pertinent part provides that “a party may in his motion or opposition, specifically request an oral hearing. . . .” In its opposition to Reed Smith’s motion to enforce payment, Howrey & Simon declared at the outset that “[u]nder the law prevailing in this Circuit and elsewhere, a reasonably specific accounting is required, as is an evidentiary hearing and the opportunity for cross-examination, if necessary.” Opposition to Motion to Enforce Order Appointing Liaison Counsel and Orders Appointing Coordinating Counsel, Aug. 15, 1977, at 2, J. App. 101. In the argument section of its memorandum, Howrey & Simon reiterated, “[i]n no event can Reed Smith’s motion be granted on this record, and until an opportunity for an evidentiary hearing has been accorded.” Id. at 14, J. App. 113. And finally, in the conclusion of the memorandum, Howrey & Simon stated that “a hearing may be required upon the completion of discovery, which should be completed within the next month unless such discovery is resisted by movant.” Id. at 28, J. App. 127. Although a more explicit demand for a hearing might be preferable, these requests satisfied the requirements of Local Rule l-9(f).
. Id.
. Id. at 19-26, I. App. 118-125.
. Memorandum and Order, supra note 4, at 4, J. App. 71.
. Id. at 2, J. App. 69.
. Id at 4-5, J. App. 71-72.
. Howrey & Simon points to several decisions on attorney’s fee awards and argues that they limit judicial power to order reimbursement of liaison counsel. Brief for Appellants at 12-19. These cases are relevant only if the District Court has approved charges properly classifiable as compensation rather than expense items, something we cannot ascertain on the present record, see Part 11(C) infra. It is argued that reimbursement items are attorney’s fees, and as such are impermissible, when they represent services performed by an attorney and are billed at the same hourly rate that any legal work done for a paying client would be. But Howrey & Simon offers no authority to support this position, and it certainly seems logical that the nature of the work performed, and not the amount demanded for it, determines whether a given charge is properly to be denominated an attorney’s fee. We need not explore the concept of attorney’s fees now, see Part 11(C) infra, but we note that the cases Howrey & Simon cites involved no more than adjudications over amounts due for professional representation or legal advice — in short, for peculiarly legal services. We leave it to the District Court on remand to explain whether its order encompasses payment for legal as well as administrative activities. If, as appears from the order under review, the tasks assigned Reed Smith under the liaison counsel order were wholly administrative in nature, see text infra at note 39, it follows that to the extent that Howrey & Simon complains that Reed Smith has billed for legal rather than administrative services, the only proper objection is that the activity billed was outside of the scope of the District Court’s appointment order. See notes 33-39 infra and accompanying text.
. As the Supreme Court observed in Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 166, 81 L.Ed. 153, 158 (1936), there is “power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” See Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 64, 442 F.2d 782, 786 (1971).
. Indeed, the commonly stated judicial rationale for the appointment of liaison counsel is the necessity for proper and efficient management of the court’s docket. See, e. g., Vincent v. Hughes Air West, Inc., 557 F.2d 759, 774-775 (9th Cir. 1977); MacAlister v. Guterma, 263 F.2d 65, 67-69 (2d Cir. 1958).
. Brief for Appellants at 42-44.
. In its brief, Howrey & Simon states that it represents 35 and 39 corporate clients in the LB and CPR proceedings, respectively. Brief for Appellants at 7. According to a letter accompanying Reed Smith’s initial reimbursement statement, Howrey & Simon represented 40 of the 88 corporations in the LB and CPR litigation. Letter from Edward T. Tait to Stuart H. Harris, supra note 10. In any event, it is clear that Howrey & Simon’s group of complaining corporations was larger than that of any other law firm involved.
Reed Smith’s practice of combined billing for the LB and CPR proceedings was another subject of the bickering. See, e. g., Brief for Appellants at 41-42. Since we will remand for additional findings and reasons, we have no cause to examine the contentions that this sort of billing was improper.
. Memorandum and Order, supra note 4, at 2, 4, J. App. 69, 71.
. “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Fed.R.Civ.P. 52(a). Nevertheless, a statement of the factual findings on which the court based its decision often is helpful to appellate review. See, e. g., Tygrett v. Washington, 177 U.S.App.D.C. 355, 359 n.17, 543 F.2d 840, 844 n.17 (1974). Moreover, “regardless of what the rule in terms requires, whenever decision of a matter requires the court to resolve conflicting versions of the facts, findings are desirable and ought to be made.” 9 C. Wright & A. Miller, Federal Practice § 2575, at 649 (1971). See Von der Heydt v. Rogers, 102 U.S.App.D.C. 114, 115, 251 F.2d 17, 18 (1958) (“[a]bsent specific findings to be reviewed in light of the evidence, we cannot make an adequate assessment of [the] issue”). Though findings are not normally required, then, we may properly remand for further elucidation when review would be substantially hindered without them. See text infra at note 36. Indeed, that has long been standard practice in this circuit.
. 164 U.S.App.D.C. 86, 503 F.2d 177 (1974).
. Id. at 97, 503 F.2d at 198.
. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976). This case is usually referred to as Lindy II. Lindy I, an earlier decision on attorney’s fees in the same multidistrict proceeding, is reported at 487 F.2d 161 (3d Cir. 1973).
. Memorandum and Order, supra note 4, at 4, J. App. 71 (quoting Lindy II, supra note 37, at 116). It is important to evaluate the quoted passage in its full context:
We find it necessary also to observe that we did not [in Lindy I] and do not intend that a district court, in setting an attorneys’ fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation. . . . Once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel’s work.
Lindy II, supra note 37, at 116 (emphasis added). It thus becomes evident that the Third Circuit was not advocating a total hands-off attitude in evaluating the reasonableness of fees charged by counsel. Moreover, taken as a whole, the Lindy decision attests to the judicial feeling that a court conducting a review of fees should put considerable effort into determining the accuracy of the billing and even the quality of the attorney’s work. See, e. g., id. at 117 (“the court should appraise the manner in which counsel discharged his or her professional responsibilities”); id. at 118 (“[i]f . . the court is persuaded that an increase or decrease ... is warranted, it should identify those factors supporting its conclusions, state the specific amount by which the basic fee should be altered . . . , and give a brief statement of the reasons therefor”).
. Memorandum and Order, supra note 4, at 4, J. App. 71. The problem with this approach is that the most serious question raised by Howrey & Simon was whether the billing was for administrative activities and thus was within the purview of the order appointing liaison counsel, or rather was for legal services and thus was beyond its contemplation. Only after stating that judicial review would be limited was it “readily apparent” to the District Court that the charges were for activities authorized by the appointment order. That conclusion cannot acceptably be based on the premise stated, for the premise incorporates the conclusion.
. The District Court will, of course, retain full authority to convene a hearing as a possible aid to achieving the objectives of our remand. That we leave to its decision in the first instance. Manifestly, no useful purpose can be served by considering at this stage the hearing issue, see note 22 supra and accompanying text, raised by Howrey & Simon.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Edward ABLES v. Honorable Richard J. HOPKINS, Judge of the United States District Court for the District of Kansas.
No. 2724.
Circuit Court of Appeals, Tenth Circuit.
April 5, 1943.
No appearance for either party.
Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.
PER CURIAM.
Application for leave to file a petition for a writ of mandamus denied.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_respondentstate
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51
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
PENRY v. LYNAUGH, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS
No. 87-6177.
Argued January 11, 1989
Decided June 26, 1989
O’ConnoR, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and IV-A, the opinion of the Court with respect to Parts II-B and III, in which BRENNAN, MARSHALL, Blackmun, and Stevens, JJ., joined, the opinion of the Court with respect to Parts II-A and IV-B, in which Rehnquist, C. J., and White, Scalia, and Kennedy, JJ., joined, and an opinion with respect to Part IV-C. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 341. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Blackmun, J., joined, post, p. 349. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, C. J., and White and Kennedy, JJ., joined, post, p. 350.
Curtis C. Mason argued the cause and filed briefs for petitioner.
Charles A. Palmer, Assistant Attorney General of Texas, argued the cause for respondent. With him on the briefs were Jim Mattox, Attorney General, Mary F. Keller, First Assistant Attorney General, Lou McCreary, Executive Assistant Attorney General, and Michael P. Hodge and William C. Zapalac, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed for the American Association on Mental Retardation et al. by James W. Ellis, Ruth Luckas-son, Barbara Bergman, and Donald N. Bersoff; for the Texas Criminal Defense Lawyers Association by David Botsford, Mark Stevens, and Carolyn Garcia; and for Billy Conn Gardner by Eugene 0. Duffy and Christine M. Wiseman.
Stanley G. Schneider filed a brief for the Harris County Criminal Lawyers Association as amicus curiae.
Justice O’Connor
delivered the opinion of the Court, except as to Part IV-C.
In this case, we must decide whether petitioner, Johnny Paul Penry, was sentenced to death in violation of the Eighth Amendment because the jury was not instructed that it could consider and give effect to his mitigating evidence in imposing its sentence. We must also decide whether the Eighth Amendment categorically prohibits Penry’s execution because he is mentally retarded.
H-I
On the morning of October 25, 1979, Pamela Carpenter was brutally raped, beaten, and stabbed with a pair of scissors in her home in Livingston, Texas. She died a few hours later in the course of emergency treatment. Before she died, she described her assailant. Her description led two local sheriff’s deputies to suspect Penry, who had recently been released on parole after conviction on another rape charge. Penry subsequently gave two statements confessing to the crime and was charged with capital murder.
At a competency hearing held before trial, a clinical psychologist, Dr. Jerome Brown, testified that Penry was mentally retarded. As a child, Penry was diagnosed as having organic brain damage, which was probably caused by trauma to the brain at birth. App. 34-35. Penry was tested over the years as having an IQ between 50 and 63, which indicates mild to moderate retardation. Id., at 36-38, 55. Dr. Brown’s own testing before the trial indicated that Penry had an IQ of 54. Dr. Brown’s evaluation also revealed that Penry, who was 22 years old at the time of the crime, had the mental age of a 654-year-old, which means that “he has the ability to learn and the learning or the knowledge of the average 654 year old kid.” Id., at 41. Penry’s social maturity, or ability to function in the world, was that of a 9- or 10-year-old. Dr. Brown testified that “there’s a point at which anyone with [Penry’s] IQ is always incompetent, but, you know, this man is more in the borderline range.” Id., at 47.
The jury found Penry competent to stand trial. Id., at 20-24. The guilt-innocence phase of the trial began on March 24, 1980. The trial court determined that Penry’s confessions were voluntary, and they were introduced into evidence. At trial, Penry raised an insanity defense and presented the testimony of a psychiatrist, Dr. Jose Garcia. Dr. Garcia testified that Penry suffered from organic brain damage and moderate retardation, which resulted in poor impulse control and an inability to learn from experience. Id., at 18, 19, 87-90. Dr. Garcia indicated that Penry’s brain damage was probably caused at birth, id., at 106, but may have been caused by beatings and multiple injuries to the brain at an early age. Id., at 18, 90. In Dr. Garcia’s judgment, Penry was suffering from an organic brain disorder at the time of the offense which made it impossible for him to appreciate the wrongfulness of his conduct or to conform his conduct to the law. Id., at 86-87.
Penry’s mother testified at trial that Penry was unable to learn in school and never finished the first grade. Penry’s sister testified that their mother had frequently beaten him over the head with a belt when he was a child. Penry was also routinely locked in his room without access to a toilet for long periods of time. Id., at 124, 126, 127. As a youngster, Penry was in and out of a number of state schools and hospitals, until his father removed him from state schools altogether when he was 12. Id., at 120. Penry’s aunt subsequently struggled for over a year to teach Penry how to print his name. Id., at 133.
The State introduced the testimony of two psychiatrists to rebut the testimony of Dr. Garcia. Dr. Kenneth Vogts-berger testified that although Penry was a person of limited mental ability, he was not suffering from any mental illness or defect at the time of the crime, and that he knew the difference between right and wrong and had the potential to honor the law. Id., at 144-145. In his view, Penry had characteristics consistent with an antisocial personality, including an inability to learn from experience and a tendency to be impulsive and to violate society’s norms. Id., at 149-150. He testified further that Penry’s low IQ scores underestimated his alertness and understanding of what went on around him. Id., at 146.
Dr. Felix Peebles also testified for the State that Penry was legally sane at the time of the offense and had a “full-blown anti-social personality.” Id., at 171. In addition, Dr. Peebles testified that he personally diagnosed Penry as being mentally retarded in 1973 and again in 1977, and that Penry “had a very bad life generally, bringing up.” Id., at 168-169. In Dr. Peebles’ view, Penry “had been socially and emotionally deprived and he had not learned to read and write adequately.” Id., at 169. Although they disagreed with the defense psychiatrist over the extent and cause of Penry’s mental limitations, both psychiatrists for the State acknowledged that Penry was a person of extremely limited mental ability, and that he seemed unable to learn from his mistakes. Id., at 149, 172-173.
The jury rejected Penry’s insanity defense and found him guilty of capital murder. Tex. Penal Code Ann. § 19.03 (1974 and Supp. 1989). The following day, at the close of the penalty hearing, the jury decided the sentence to be imposed on Penry by answering three “special issues”:
“(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
“(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
“(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.” Tex. Code Crim. Proc. Ann., Art. 37.071(b) (Vernon 1981 and Supp. 1989).
If the jury unanimously answers “yes” to each issue submitted, the trial court must sentence the defendant to death. Arts. 37.071(c)-(e). Otherwise, the defendant is sentenced to life imprisonment. Ibid.
Defense counsel raised a number of objections to the proposed charge to the jury. With respect to the first special issue, he objected that the charge failed to define the term “deliberately.” App. 210. With respect to the second special issue, he objected that the charge failed to define the terms “probability,” “criminal acts of violence,” and “continuing threat to society.” Id., at 210-211. Defense counsel also objected to the charge because it failed to “authorize a discretionary grant of mercy based upon the existence of mitigating circumstances” and because it “fail[ed] to require as a condition to the assessment of the death penalty that the State show beyond a reasonable doubt that any aggravating circumstances found to exist outweigh any mitigating circumstances.” Id., at 211. In addition, the charge failed to instruct the jury that it may take into consideration all of the evidence whether aggravating or mitigating in nature which was submitted in the full trial of the case. Id., at 212. Defense counsel also objected that, in light of Penry’s mental retardation, permitting the jury to assess the death penalty in this case amounted to cruel and unusual punishment prohibited by the Eighth Amendment. Id., at 211.
These objections were overruled by the trial court. The jury was then instructed that the State bore the burden of proof on the special issues, and that before any issue could be answered “yes,” all 12 jurors must be convinced by the evidence beyond a reasonable doubt that the answer to that issue should be “yes.” Id., at 25. The jurors were further instructed that in answering the three special issues, they could consider all the evidence submitted in both the guilt-innocence phase and the penalty phase of the trial. Id., at 26. The jury charge then listed the three questions, with the names of the defendant and the deceased inserted.
The jury answered “yes” to all three special issues, and Penry was sentenced to death. The Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. Penry v. State, 691 S. W. 2d 636 (1985). That court held that terms such as “deliberately,” “probability,” and “continuing threat to society” used in the special issues need not be defined in the jury charge because the jury would know their common meaning. Id., at 653-654. The court concluded that Penry was allowed to present all relevant mitigating evidence at the punishment hearing, and that there was no constitutional infirmity in failing to require the jury to find that aggravating circumstances outweighed mitigating ones or in failing to authorize a discretionary grant of mercy based upon the existence of mitigating circumstances. Id., at 654. The court also held that imposition of the death penalty was not prohibited by virtue of Penry’s mental retardation. Id., at 654-655. This Court denied certiorari on direct review. Sub nom. Penry v. Texas, 474 U. S. 1073 (1986).
Penry then filed this federal habeas corpus petition challenging his death sentence. Among other claims, Penry argued that he was sentenced in violation of the Eighth Amendment because the trial court failed to instruct the jury on how to weigh mitigating factors in answering the special issues and failed to define the term “deliberately.” Penry also argued that it was cruel and unusual punishment to execute a mentally retarded person. The District Court denied relief, App. 234-273, and Penry appealed to the Court of Appeals for the Fifth Circuit.
The Court of Appeals affirmed the District Court’s judgment. 832 F. 2d 915 (1987). The court stressed, however, that it found considerable merit in Penry’s claim that the jury was not allowed to consider and apply all of his personal mitigating circumstances in answering the Texas special issues. Although the jury was presented with evidence that might mitigate Penry’s personal culpability for the crime, such as his mental retardation, arrested emotional development, and abused background, the jury could not give effect to that evidence by mitigating Penry’s sentence to life imprisonment. “Having said that it was a deliberate murder and that Penry will be a continuing threat, the jury can say no more.”. Id., at 920. In short, the court did not see how Penry’s mitigating evidence, under the instructions given, could be fully acted upon by the jury because “[tjhere is no place for the jury to say ‘no’ to the death penalty” based on the mitigating force of those circumstances. Id., at 925. Although the court questioned whether Penry was given the individualized sentencing that the Constitution requires, it ultimately concluded that prior Circuit decisions required it to reject Penry’s claims. Id., at 926. The court also rejected Penry’s contention that it was cruel and unusual punishment to execute a mentally retarded person such as himself. Id., at 918 (citing Brogdon v. Butler, 824 F. 2d 338, 341 (CA5 1987)).
We granted certiorari to resolve two questions. 487 U. S. 1233 (1988). First, was Penry sentenced to death in violation of the Eighth Amendment because the jury was not adequately instructed to take into consideration all of his mitigating evidence and because the terms in the Texas special issues were not defined in such a way that the jury could consider and give effect to his mitigating evidence in answering them? Second, is it cruel and unusual punishment under the Eighth Amendment to execute a mentally retarded person with Penry’s reasoning ability?
I — I HH
A
Penry is currently before the Court on his petition in federal court for a writ of habeas corpus. Because Penry is before us on collateral review, we must determine, as a threshold matter, whether granting him the relief he seeks would create a “new rule.” Teague v. Lane, 489 U. S. 288, 301 (1989). Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions. Id., at 311-313.
Teague was not a capital case, and the plurality opinion expressed no views regarding how the retroactivity approach adopted in Teague would be applied in the capital sentencing context. Id., at 314, n. 2. The plurality noted, however, that a criminal judgment necessarily includes the sentence imposed, and that collateral challenges to sentences “delay the enforcement of the judgment at issue and decrease the possibility that ‘there will at some point be the certainty that comes with an end to litigation.’” Ibid, (quoting Sanders v. United States, 373 U. S. 1, 25 (1963) (Harlan, J., dissenting)). See also Mackey v. United States, 401 U. S. 667, 690-695 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). In our view, the finality concerns underlying Justice Harlan’s approach to retroactivity are applicable in the capital sentencing context, as are the two exceptions to his general rule of nonretroactivity. See Teague, supra, at 311-313.
B
As we indicated in Teague, “[i]n general... a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.” 489 U. S., at 301. Or, “[t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Ibid, (emphasis in original). Teague noted that “[i]t is admittedly often difficult to determine when a case announces a new rule.” Ibid. Justice Harlan recognized “the inevitable difficulties that will arise in attempting ‘to determine whether a particular decision has really announced a “new” rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.’ ” Mackey, supra, at 695 (opinion concurring in judgments in part and dissenting in part) (quoting Desist v. United States, 394 U. S. 244, 263 (1969) (Harlan, J., dissenting)). See generally Yates v. Aiken, 484 U. S. 211, 216-217 (1988) (concluding that Francis v. Franklin, 471 U. S. 307 (1985), did not announce a new rule but was “merely an application of the principle that governed our decision in Sandstrom v. Montana, [442 U. S. 510 (1979),] which had been decided before petitioner’s trial took place”).
Penry’s conviction became final on January 13, 1986, when this Court denied his petition for certiorari on direct review of his conviction and sentence. Sub nom. Penry v. Texas, supra. This Court’s decisions in Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982), were rendered before his conviction became final. Under the retroactivity principles adopted in Griffith v. Kentucky, 479 U. S. 314 (1987), Penry is entitled to the benefit of those decisions. Citing Lockett and Eddings, Penry argues that he was sentenced to death in violation of the Eighth Amendment because, in light of the jury instructions given, the jury was unable to fully consider and give effect to the mitigating evidence of his mental retardation and abused background, which he offered as the basis for a sentence less than death. Penry thus seeks a rule that when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether a defendant should be sentenced to death. We conclude, for the reasons discussed below, that the rule Penry seeks is not a “new rule” under Teague.
Penry does not challenge the facial validity of the Texas death penalty statute, which was upheld against an Eighth Amendment challenge in Jurek v. Texas, 428 U. S. 262 (1976). Nor does he dispute that some types of mitigating evidence can be fully considered by the sentencer in the absence of special jury instructions. See Franklin v. Lynaugh, 487 U. S. 164, 175 (1988) (plurality opinion); id., at 185-186 (O’Connor, J., concurring in judgment). Instead, Penry argues that, on the facts of this case, the jury was unable to fully consider and give effect to the mitigating evidence of his mental retardation and abused background in answering the three special issues. In our view, the relief Penry seeks does not “impos[e] a new obligation” on the State of Texas. Teague, supra, at 301. Rather, Penry simply asks the State to fulfill the assurance upon which Jurek was based: namely, that the special issues would be interpreted broadly enough to permit the sentencer to consider all of the relevant mitigating evidence a defendant might present in imposing sentence.
In Jurek, the joint opinion of Justices Stewart, Powell, and Stevens noted that the Texas statute narrowed the circumstances in which the death penalty could be imposed to five categories of murders. 428 U. S., at 268. Thus, although Texas had not adopted a list of statutory aggravating factors that the jury must find before imposing the death penalty, “its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose,” id., at 270, and effectively “requires the sentencing authority to focus on the particularized nature of the crime.” Id., at 271. To provide the individualized sentencing determination required by the Eighth Amendment, however, the sentencer must be allowed to consider mitigating evidence. Ibid. Indeed, as Woodson v. North Carolina, 428 U. S. 280 (1976), made clear, “in capital cases the fundamental respect for humanity underlying the Eighth Amendment... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Id., at 304 (plurality opinion).
Because the Texas death penalty statute does not explicitly mention mitigating circumstances, but rather directs the jury to answer three questions, Jurek reasoned that the statute’s constitutionality “turns on whether the enumerated questions allow consideration of particularized mitigating factors.” 428 U. S., at 272. Although the various terms in the special questions had yet to be defined, the joint opinion concluded that the sentencing scheme satisfied the Eighth Amendment on the assurance that the Texas Court of Criminal Appeals would interpret the question concerning future dangerousness so as to allow the jury to consider whatever mitigating circumstances a defendant may be able to show, including a defendant’s prior criminal record, age, and mental or emotional state. Id., at 272-273.
Our decisions subsequent to Jurek have reaffirmed that the Eighth Amendment mandates an individualized assessment of the appropriateness of the death penalty. In Lockett v. Ohio, 438 U. S. 586 (1978), a plurality of this Court held that the Eighth and Fourteenth Amendments require that the sentencer “not be precluded from considering, 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.” Id., at 604 (emphasis in original). Thus, the Court held unconstitutional the Ohio death penalty statute which mandated capital punishment upon a finding of one aggravating circumstance unless one of three statutory mitigating factors were present.
Lockett underscored Jurek,’s recognition that the constitutionality of the Texas scheme “turns on whether the enumerated questions allow consideration of particularized mitigating factors.” Jurek, supra, at 272. The plurality opinion in Lockett indicated that the Texas death penalty statute had “survived the petitioner’s Eighth and Fourteenth Amendment attack [in Jurek] because three Justices concluded that the Texas Court of Criminal Appeals had broadly interpreted the second question — despite its facial narrowness — so as to permit the sentencer to consider ‘whatever mitigating circumstances’ the defendant might be able to show.” 438 U. S., at 607. Thus, the Lockett plurality noted that neither the Texas statute upheld in 1976 nor the statutes that had survived facial challenges in Gregg v. Georgia, 428 U. S. 153 (1976), and Proffitt v. Florida, 428 U. S. 242 (1976), “clearly operated at that time to prevent the sen-tencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.” Lockett, supra, at 607. Cf. Hitchcock v. Dugger, 481 U. S. 393 (1987) (sustaining “as applied” challenge to Florida death penalty statute); Godfrey v. Georgia, 446 U. S. 420 (1980) (sustaining “as applied” challenge to Georgia death penalty statute).
In Eddings v. Oklahoma, 455 U. S. 104 (1982), a majority of the Court reaffirmed that a sentencer may not be precluded from considering, and may not refuse to consider, any relevant mitigating evidence offered by the defendant as the basis for a sentence less than death. In Eddings, the Oklahoma death penalty statute permitted the defendant to introduce evidence of any mitigating circumstance, but the sentencing judge concluded, as a matter of law, that he was unable to consider mitigating evidence of the youthful defendant’s troubled family history, beatings by a harsh father, and emotional disturbance. Applying Lockett, we held that “[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” 455 U. S., at 113-114 (emphasis in original). In that case, “it was as if the trial judge had instructed a jury to disregard the mitigating evidence [the defendant] proffered on his behalf.” Id., at 114.
Thus, at the time Penry’s conviction became final, it was clear from Lockett and Eddings that a State could not, consistent with the Eighth and Fourteenth Amendments, prevent the sentencer from considering and giving effect to evidence relevant to the defendant’s background or character or to the circumstances of the offense that mitigate against imposing the death penalty. Moreover, the facial validity of the Texas death penalty statute had been upheld in Jurek on the basis of assurances that the special issues would be interpreted broadly enough to enable sentencing juries to consider all of the relevant mitigating evidence a defendant might present. Penry argues that those assurances were not fulfilled in his particular case because, without appropriate instructions, the jury could not fully consider and give effect to the mitigating evidence of his mental retardation and abused childhood in rendering its sentencing decision. The rule Penry seeks — that when such mitigating evidence is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence in determining whether the death penalty should be imposed— is not a “new rule” under Teague because it is dictated by Eddings and Lockett. Moreover, in light of the assurances upon which Jurek was based, we conclude that the relief Penry seeks does not “impos[e] a new obligation” on the State of Texas. Teague, 489 U. S., at 301.
Underlying Lockett and Eddings is the principle that punishment should be directly related to the personal culpability of the criminal defendant. If the sentencer is to make an individualized assessment of the appropriateness, of the death penalty, “evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.” California v. Brown, 479 U. S. 538, 545 (1987) (O’Connor, J., concurring). Moreover, Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence. Hitchcock v. Dugger, supra. Only then can we be sure that the sen-tencer has treated the defendant as a “uniquely individual human bein[g]” and has made a reliable determination that death is the appropriate sentence. Woodson, 428 U. S., at 304, 305. “Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant’s background, character, and crime.” California v. Brown, supra, at 545 (O’Connor, J., concurring) (emphasis in original).
Although Penry offered mitigating evidence of his mental retardation and abused childhood as the basis for a sentence of life imprisonment rather than death, the jury that sentenced him was only able to express its views on the appropriate sentence by answering three questions: Did Penry act deliberately when he murdered Pamela Carpenter? Is there a probability that he will be dangerous in the future? Did he act unreasonably in response to provocation? The jury was never instructed that it could consider the evidence offered by Penry as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence.
Like the petitioner in Franklin v. Lynaugh, Penry contends that in the absence of his requested jury instructions, the Texas death penalty statute was applied in an unconstitutional manner by precluding the jury from acting upon the particular mitigating evidence he introduced. Franklin was the first case considered by this Court since Jurek to address a claim concerning the treatment of mitigating evidence under the Texas special issues. Like Jurek itself, Franklin did not produce a majority opinion for the Court. The Franklin plurality, and the two concurring Justices, concluded that Franklin was not sentenced to death in violation of the Eighth Amendment because the jury was free to give effect to his mitigating evidence of good behavior in prison by answering “no” to the question on future dangerousness. 487 U. S., at 177 (plurality opinion); id., at 185 (O’Connor, J., concurring in judgment). Moreover, a majority agreed that “residual doub[t]” as to Franklin’s guilt was not a constitutionally mandated mitigating factor. Id., at 173, and n. 6 (plurality opinion); id., at 187-188 (O’Connor, J., concurring in judgment).
In Franklin, however, the five concurring and dissenting Justices did not share the plurality’s categorical reading of Jurek. In the plurality’s view, Jurek had expressly and unconditionally upheld the manner in which mitigating evidence is considered under the special issues. Id., at 179-180, and n. 10. In contrast, five Members of the Court read Jurek as not precluding a claim that, in a particular case, the jury was unable to fully consider the mitigating evidence introduced by a defendant in answering the special issues. 487 U. S., at 183 (O’Connor, J., concurring in judgment); id., at 199-200 (Stevens, J., dissenting). Indeed, both the concurrence and the dissent understood Jurek as resting fundamentally on the express assurance that the special issues would permit the jury to fully consider all the mitigating evidence a defendant introduced that was relevant to the defendant’s background and character and to the circumstances of the offense. Moreover, both the concurrence and the dissent stressed that “the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sen-tencer was also permitted to give effect to its consideration” in imposing sentence. 487 U. S., at 185 (O’CONNOR, J., concurring in judgment); id., at 199 (Stevens, J., dissenting).
The concurrence in Franklin concluded that there was no Eighth Amendment violation in that case because Franklin’s evidence of his good prison behavior had no clear relevance to his character other than to demonstrate his ability to live in a highly structured prison environment without endangering others. Thus, the jury was able to give effect to the mitigating force of this evidence in answering the second special issue. The concurrence noted, however:
“If... petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence. If this were such a case, then we would have to decide whether the jury’s inability to give effect to that evidence amounted to an Eighth Amendment violation.” Id., at 185.
Penry argues that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its “reasoned moral response” to that evidence in determining whether death was the appropriate punishment. We agree. Thus, we reject the State’s contrary argument that the jury was able to consider and give effect to all of Penry’s mitigating evidence in answering the special issues without any jury instructions on mitigating evidence.
The first special issue asks whether the defendant acted “deliberately and with the reasonable expectation that the death of the deceased... would result.” Neither the Texas Legislature nor the Texas Court of Criminal Appeals have defined the term “deliberately,” and the jury was not instructed on the term, so we do not know precisely what meaning the jury gave to it. Assuming, however, that the jurors in this case understood “deliberately” to mean something more than that Penry was guilty of “intentionally” committing murder, those jurors may still have been unable to give effect to Penry’s mitigating evidence in answering the first special issue.
Penry’s mental retardation was relevant to the question whether he was capable of acting “deliberately,” but it also “had relevance to [his] moral culpability beyond the scope of the special verdict questio[n].” Franklin, supra, at 185. Personal culpability is not solely a function of a defendant’s capacity to act “deliberately.” A rational juror at the penalty phase of the trial could have concluded, in light of Penry’s confession, that he deliberately killed Pamela Carpenter to escape detection. Because Penry was mentally retarded, however, and thus less able than a normal adult to control his impulses or to evaluate the consequences of his conduct, and because of his history of childhood abuse, that same juror could also conclude that Penry was less morally “culpable than defendants who have no such excuse,” but who acted “deliberately” as that term is commonly understood. California v. Brown, 479 U. S., at 545 (O’Connor, J., concurring). See also Skipper v. South Carolina, 476 U. S. 1, 13-14 (1986) (Powell, J., concurring in judgment) (evidence concerning a defendant’s “emotional history... bear[s] directly on the fundamental justice of imposing capital punishment”).
In the absence of jury instructions defining “deliberately” in a way that would clearly direct the jury to consider fully Penry’s mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry’s mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry’s retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime “deliberately.” Thus, we cannot be sure that the jury’s answer to the first special issue reflected a “reasoned moral response” to Penry’s mitigating evidence.
The second special issue asks “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The mitigating evidence concerning Penry’s mental retardation indicated that one effect of his retardation is his inability to learn from his mistakes. Although this evidence is relevant to the second issue, it is relevant only as an aggravating factor because it suggests a “yes” answer to the question of future dangerousness. The prosecutor argued at the penalty hearing that there was “a very strong probability, based on the history of this defendant, his previous criminal record, and the psychiatric testimony that we’ve had in this case, that the defendant will continue to commit acts of this nature.” App. 214. Even in a prison setting, the prosecutor argued, Penry could hurt doctors, nurses, librarians, or teachers who worked in the prison.
Penry’s mental retardation and history of abuse is thus a two-edged sword: it may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future. As Judge Reavley wrote for the Court of Appeals below:
“What was the jury to do if it decided that Penry, because of retardation, arrested emotional development and a troubled youth, should not be executed? If anything, the evidence made it more likely, not less likely, that the jury would answer the second question yes. It did not allow the jury to consider a major thrust of Penry’s evidence as mitigating evidence.” 832 F. 2d, at 925 (footnote omitted) (emphasis in original).
The second special issue, therefore, did
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_genresp1
|
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.
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.
Clementine MITCHELL, Appellant, v. DISTRICT OF COLUMBIA, Appellee. DISTRICT OF COLUMBIA, Appellant, v. Clementine MITCHELL, Appellee.
Nos. 18972, 18973.
United States Court of Appeals District of Columbia Circuit.
Argued May 6, 1965.
Decided June 3, 1965.
Mr. Francis L. Casey, Jr., Washington, D. C., with whom Mr. Pierre J. La-Force, Washington, D. C., was on the brief, for appellant in No. 18,972 and appellee in No. 18,973.
Mr. Richard W. Barton, Asst. Corp. Counsel for District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Principal Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee in No. 18,972 and appellant in No. 18,973.
Before Danaher, Tamm, and Leven-THAL, Circuit Judges.
TAMM, Circuit Judge:
Clementine Mitchell brought a tort action in the United States District Court against the District of Columbia to recover damages for injuries growing out of a fall on a public sidewalk. During the course of the trial, the District of Columbia made timely motions and objections which properly placed before this court the issues represented by the appeals. The jury returned a verdict for Clementine Mitchell, and the District of Columbia timely moved for judgment non obstante veredicto or for a new trial. The District Court Judge in a detailed memorandum opinion granting the District of Columbia’s motion for judgment non obstante veredicto, stated that his action was taken for two reasons:
“(a) No showing of breach of duty, i. e., no showing of failure to exercise reasonable care which resulted in a dangerous condition which proximately resulted in plaintiff’s fall and (b) neither actual nor constructive notice to the District of Columbia of the alleged dangerous condition.”
On appeal, appellant Clementine Mitchell seeks in case No. 18,972 to reinstate the jury verdict, arguing that the trial court erred in granting appellee’s motion for judgment non obstante veredicto by (1) considering the weight of the evidence in ruling on the motion for judgment n. o. v., (2) by granting appellee’s motion for judgment n. o. v., when reasonable men could find that appellee was liable; (3) over-ruling the jury and holding that the defect in question did not constitute actionable negligence where there was ample evidence to support the jury’s determination that the appellee was negligent; and (4) overruling the jury and holding that appellee did not have notice of the dangerous condition, where there was ample evidence to support the jury’s determination that the appellee had such notice.
The trial judge did not rule upon the District of Columbia’s alternative motion for a new trial, which was filed with its motion for judgment n. o. v., and accordingly the District of Columbia, as appellant in case No. 18,973 seeks relief from so much of the trial court’s order “as fails to grant said defendant’s alternative motion for a new trial.”
This court has carefully reviewed the entire record in this case. Since the court’s ruling upon the fourth point of appellant Clementine Mitchell’s grounds of appeal is dispositive of the case, the court in the interest of brevity confines its opinion to that issue.
It is established law in this jurisdiction that before the District of Columbia may be held liable for damages in actions of this kind, it must be established that the District of Columbia had actual or constructive notice of the alleged dangerous condition.
The learned trial judge in his memorandum order granting the judgment n. o. v. in favor of the District of Columbia stated:
“Now as to the question of notice: “There is no evidence that the District created the alleged defect. There is no evidence that the District had actual notice prior to this fall; indeed there is no contention that it did. Hence, for the District to be held liable the evidence must be such as to permit of a conclusion that the District had constructive notice prior to the fall. In order for such a conclusion to be justified the evidence must show that in the exercise of reasonable care the District should have discovered the alleged dangerous condition. Furthermore, it must be shown that after such required discovery a reasonable time for the correction of such condition had elapsed without action by the District.
“There is no evidence as to when, or how, or by whom, the complained-of condition was brought about. Hence there could be no valid determination as to how long it had existed. There was no testimony of any character, certainly none of a probative nature, on which the jury could conclude the District had constructive notice. As to the claimed appearance of rust, no one, such as a metalurgist or his like, was called to testify as to thejtime required for rust to manifest itself on metal of the character here in question. It follows, therefore, that no determination could be properly made as to whether the District had had a reasonable time to correct the alleged condition prior to the accident.
“There was no showing of any previous accident at the spot in question, nor any report of a defective condition there.
“Plaintiff and two relatives, although standing in the immediate area for a period varying, according to the testimony, from one to five minutes, observed nothing unusual. It is significant that while this is a heavily traveled area, the character and size of the alleged condition were apparently not such as to make such condition obvious. Its shape and size, although stated differently by the respective witnesses, nevertheless lead to a fair conclusion that the measurement of the area complained of was about the size of a silver dollar or less (see Plaintiff’s Exhibit 5).
“The only testimony from which any inference at all as to the duration of the condition complained of could be made was that there was some rust or that the metal was rusty. The presence of dirt or dust without more could by no stretch of the imagination be deemed to permit of a conclusion that the alleged condition had existed for any period — certainly not such as would permit a finding that the District had not functioned within a reasonable time.”
This court is of the opinion, upon the basis of the entire record before the court, that there was, in fact, no evidence to establish that the District of Columbia had actual or constructive notice of the defect and that, consequently, the trial judge’s ruling upon this point was proper and completely supported by the record.
Although the appellant Clementine Mitchell cites and relies upon the cases of District of Columbia v. Boswell, 6 App.D.C. 402 (1895), District of Columbia v. Payne, 13 App.D.C. 500, 505 (1899), and Potomac Elec. Power Co. v. Hemler, 47 App.D.C. 34, 42 (1917), the court observes that the factual and resulting evidentiary conditions in those cases are readily distinguishable from the facts and evidence in the present case.
The judgment of the District Court in case No. 18,972 is affirmed.
Since the court affirms the action of the trial court in No. 18,972, the appeal of the District of Columbia in case No. 18,973 becomes moot, and this case is, accordingly, dismissed.
No. 18,972 — affirmed.
No. 18,973 — dismissed.
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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sc_casesource
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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 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.
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: 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
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050. Georgia Middle U.S. District Court
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055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
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059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
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085. New York Eastern U.S. District Court
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091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
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100. Pennsylvania Eastern U.S. District Court
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103. Puerto Rico U.S. District Court
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105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
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140. Missouri U.S. District Court
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148. Texas U.S. District Court
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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_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.
William SAWYER, Appellant, v. Maurice H. SIGLER, Warden of the Nebraska State Penitentiary et al., Appellees. Carl BECKER, Appellant, v. Maurice H. SIGLER, Warden of the Nebraska State Penitentiary et al., Appellees.
Nos. 71-1047, 71-1048.
United States Court of Appeals, Eighth Circuit.
June 29, 1971.
Donald E. Endacott, Lincoln, Neb., filed briefs for appellants.
Clarence A. H. Meyer, Atty. Gen., Lincoln, Neb., and C. C. Sheldon, Asst. Atty. Gen., filed brief for appellees.
Before MATTHES, Chief Judge, GIBSON, Ciruit Judge, and HENLEY, District Judge.
Chief Judge, United States District Court, Eastern District of Arkansas, sitting by designation.
PER CURIAM.
These two appeals from orders entered by the United States District Court for the District of Nebraska were submitted without argument and have been considered together. We affirm.
Appellants, William Sawyer and Carl Becker, are both inmates of the Nebraska State Penitentiary at Lincoln, Nebraska. In early 1970 they filed separate petitions in the District Court alleging that they, as inmates, were being deprived by State authority and under color of State law of rights protected by the Eighth and Fourteenth Amendments to the Constitution of the United States. Jurisdiction was invoked on the basis of 42 U.S.C.A., § 1983, read in connection with 28 U.S.C.A., § 1343(3).
Specifically, appellants complained that they were being denied needed medical attention and treatment. They also complained of a policy enunciated by ap-pellee, Sigler, to the effect that inmates of the Penitentiary would not be awarded either statutory good time or meritorious good time with respect to periods of confinement during which they were not working even though their idleness was due to illness or physical debility or disability.
Appellants were allowed to prosecute their petitions for relief in forma pau-peris, and counsel was appointed to represent them. Their petitions, along with a similar one filed by a third inmate, were consolidated for purposes of hearing. The District Court held a full evi-dentiary hearing, and in connection with its orders filed a memorandum opinion incorporating its findings of fact and conclusions of law. Sawyer v. Sigler, D.C.Neb., 320 F.Supp. 690 (1970).
In the case of Sawyer the District Court found that in general his claim of lack of proper medical attention had not been sustained. However, the Court found that requiring him to take needed medication in a particular form which nauseated him amounted to cruel and unusual punishment prohibited by the Eighth Amendment as carried forward into the Fourteenth and ordered the Warden to permit Sawyer “to receive and consume in pill or capsule form, such medication as may be prescribed by any physician employed by the Nebraska Penal and Correctional Complex, except where such physician in writing declares that the medication is reasonably effective to accomplish the desired medical purpose of that medication in crushed or liquid form.”
The claim of appellant Becker that he had unconstitutionally been deprived of needed medical attention and services was rejected in its entirety.
On the question of the Warden’s policy with respect to good time, the District Court held unconstitutional that part of the policy which denied statutory good time to convicts who due to illness or disability were unable to work but upheld the policy as it related to meritorious good time.
Appellants appeal from those portions of the orders adverse to them. Appel-lee did not take cross appeals.
Consideration of the opinion of the District Court convinces us that the Court in passing upon the claims of appellants applied correct legal standards, including constitutional standards, and that the findings adverse to appellants have adequate support in the record.
Although perhaps unnecessary for our decision here, we note that the District Court may have approached the outer limits of constitutional requirements in granting to Sawyer the limited relief that was granted to him in connection with the form of his medication. We make this observation because we wish to emphasize our frequently expressed view that the federal courts, whether in habeas corpus or in section 1983 contexts, should not be unduly hospitable forums for the complaints of either State or federal convicts; it is not the function of the courts to run the prisons, or to undertake to supervise the day-to-day treatment and disciplining of individual inmates; much must be left to the discretion and good faith of prison administrators. That is not to say, of course, that the federal courts should not exercise their jurisdiction in proper cases, but the exercise of it should be sparing. See: Holt v. Sarver, 442 F.2d 304 (1971); Wilwording v. Swenson, 8 Cir., 439 F.2d 1331 (1971); Burns v. Swenson, 8 Cir., 430 F.2d 771 (1970); Cates v. Ciccone, 8 Cir., 422 F.2d 926 (1970); Jackson v. Bishop, 8 Cir., 404 F.2d 571 (1968).
Throughout these proceedings appellants have been represented without charge by Mr. Donald E. Endacott of Lincoln under appointment by the District Court. We take this opportunity to thank him for his services.
Affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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sc_petitioner
|
059
|
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.
Clyde REED, et al., Petitioners
v.
TOWN OF GILBERT, ARIZONA, et al.
No. 13-502.
Supreme Court of the United States
Argued Jan. 12, 2015.
Decided June 18, 2015.
David A. Cortman, Lawrenceville, GA, for Petitioners.
Eric J. Feigin, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting neither party.
Philip W. Savrin, Atlanta, GA, for Respondents.
Kevin H. Theriot, Jeremy D. Tedesco, Alliance Defending Freedom, Scottsdale, AZ, David A. Cortman, Counsel of Record, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, for Petitioner.
Philip W. Savrin, Counsel of Record, Dana K. Maine, William H. Buechner, Jr., Freeman Mathis & Gary, LLP, Atlanta, GA, for Respondents.
Opinion
Justice THOMASdelivered the opinion of the Court.
The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, § 4.402 (2005).The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is "Temporary Directional Signs Relating to a Qualifying Event," loosely defined as signs directing the public to a meeting of a nonprofit group. § 4.402(P). The Code imposes more stringent restrictions on these signs than it does on signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny.
I
A
The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here.
The first is "Ideological Sign[s]." This category includes any "sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency." Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all "zoning districts" without time limits. § 4.402(J).
The second category is "Political Sign[s]." This includes any "temporary sign designed to influence the outcome of an election called by a public body." Glossary 23.The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and "rights-of-way."
§ 4.402(I).These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid.
The third category is "Temporary Directional Signs Relating to a Qualifying Event." This includes any "Temporary Sign intended to direct pedestrians, motorists, and other passersby to a 'qualifying event.' " Glossary 25 (emphasis deleted). A "qualifying event" is defined as any "assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization." Ibid.The Code treats temporary directional signs even less favorably than political signs.Temporary directional signs may be no larger than six square feet. § 4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid. And, they may be displayed no more than 12 hours before the "qualifying event" and no more than 1 hour afterward. Ibid.
B
Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church's name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week.
This practice caught the attention of the Town's Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church's failure to include the date of the event on the signs. Town officials even confiscated one of the Church's signs, which Reed had to retrieve from the municipal offices.
Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town's Code compliance manager informed the Church that there would be "no leniency under the Code" and promised to punish any future violations.
Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners' motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code's provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F.3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the " 'kind of cursory examination' " that would be necessary for an officer to classify it as a temporary directional sign was "not akin to an officer synthesizing the expressive content of the sign." Id.,at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code's distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech.
On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code's sign categories were content neutral. The court concluded that "the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs... are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign." 707 F.3d 1057, 1069 (C.A.9 2013). Relying on this Court's decision in Hill v. Colorado,530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court of Appeals concluded that the Sign Code is content neutral. 707 F.3d, at 1071-1072. As the court explained, "Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed" and its "interests in regulat[ing] temporary signs are unrelated to the content of the sign." Ibid.Accordingly, the court believed that the Code was "content-neutral as that term [has been] defined by the Supreme Court." Id.,at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id.,at 1073-1076.
We granted certiorari, 573 U.S. ----, 134 S.Ct. 2900, 189 L.Ed.2d 854 (2014), and now reverse.
II
A
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, "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. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R.A.V. v. St. Paul,505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992);Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991).
Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc.,564 U.S. ----, ---- - ----, 131 S.Ct. 2653, 2663-2664, 180 L.Ed.2d 544 (2011); Carey v. Brown,447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Mosley, supra,at 95, 92 S.Ct. 2286. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Sorrell, supra,at ----, 131 S.Ct., at 2664. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be " 'justified without reference to the content of the regulated speech,' " or that were adopted by the government "because of disagreement with the message [the speech] conveys," Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).Those laws, like those that are content based on their face, must also satisfy strict scrutiny.
B
The Town's Sign Code is content based on its face. It defines "Temporary Directional Signs" on the basis of whether a sign conveys the message of directing the public to church or some other "qualifying event." Glossary 25. It defines "Political Signs" on the basis of whether a sign's message is "designed to influence the outcome of an election." Id.,at 24. And it defines "Ideological Signs" on the basis of whether a sign "communicat [es] a message or ideas" that do not fit within the Code's other categories. Id.,at 23. It then subjects each of these categories to different restrictions.
The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke's Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. More to the point, the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.
C
In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town's Sign Code should be deemed content neutral. None is persuasive.
1
The Court of Appeals first determined that the Sign Code was content neutral because the Town "did not adopt its regulation of speech [based on] disagree [ment] with the message conveyed," and its justifications for regulating temporary directional signs were "unrelated to the content of the sign." 707 F.3d, at 1071-1072.
In its brief to this Court, the United States similarly contends that a sign regulation is content neutral-even if it expressly draws distinctions based on the sign's communicative content-if those distinctions can be " 'justified without reference to the content of the regulated speech.' " Brief for United States as Amicus Curiae20, 24 (quoting Ward, supra,at 791, 109 S.Ct. 2746; emphasis deleted).
But this analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech. Cincinnati v. Discovery Network, Inc.,507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have thus made clear that " '[i]llicit legislative intent is not the sine qua nonof a violation of the First Amendment,' " and a party opposing the government "need adduce 'no evidence of an improper censorial motive.' " Simon & Schuster, supra,at 117, 112 S.Ct. 501. Although "a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary." Turner Broadcasting System, Inc. v. FCC,512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.
That is why we have repeatedly considered whether a law is content neutral on its face beforeturning to the law's justification or purpose. See, e.g.,Sorrell, supra,at ---- - ----, 131 S.Ct., at 2663-2664(statute was content based "on its face," and there was also evidence of an impermissible legislative motive); United States v. Eichman,496 U.S. 310, 315, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990)("Although the [statute] contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression" (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent,466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)("The text of the ordinance is neutral," and "there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance"); Clark v. Community for Creative Non-Violence,468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)(requiring that a facially content-neutral ban on camping must be "justified without reference to the content of the regulated speech"); United States v. O'Brien,391 U.S. 367, 375, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)(noting that the statute "on its face deals with conduct having no connection with speech," but examining whether the "the governmental interest is unrelated to the suppression of free expression"). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny.
The Court of Appeals and the United States misunderstand our decision in Wardas suggesting that a government's purpose is relevant even when a law is content based on its face. That is incorrect. Wardhad nothing to say about facially content-based restrictions because it involved a facially content-neutralban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U.S., at 787, and n. 2, 109 S.Ct. 2746. In that context, we looked to governmental motive, including whether the government had regulated speech "because of disagreement" with its message, and whether the regulation was " 'justified without reference to the content of the speech.' " Id.,at 791, 109 S.Ct. 2746. But Ward's framework "applies only if a statute is content neutral." Hill,530 U.S., at 766, 120 S.Ct. 2480(KENNEDY, J., dissenting). Its rules thus operate "to protect speech," not "to restrict it." Id.,at 765, 120 S.Ct. 2480.
The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws-i.e., the "abridg[ement] of speech"-rather than merely the motives of those who enacted them. U.S. Const., Amdt. 1. " 'The vice of content-based legislation... is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.' " Hill, supra,at 743, 120 S.Ct. 2480(SCALIA, J., dissenting).
For instance, in NAACP v. Button,371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court encountered a State's attempt to use a statute prohibiting " 'improper solicitation' " by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id.,at 438, 83 S.Ct. 328. Although Buttonpredated our more recent formulations of strict scrutiny, the Court rightly rejected the State's claim that its interest in the "regulation of professional conduct" rendered the statute consistent with the First Amendment, observing that "it is no answer... to say... that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression." Id.,at 438-439, 83 S.Ct. 328. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church's substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly "rejected the argument that 'discriminatory... treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.' " Discovery Network, 507 U.S., at 429, 113 S.Ct. 1505. We do so again today.
2
The Court of Appeals next reasoned that the Sign Code was content neutral because it "does not mention any idea or viewpoint, let alone single one out for differential treatment." 587 F.3d, at 977. It reasoned that, for the purpose of the Code provisions, "[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted." 707 F.3d, at 1069.
The Town seizes on this reasoning, insisting that "content based" is a term of art that "should be applied flexibly" with the goal of protecting "viewpoints and ideas from government censorship or favoritism." Brief for Respondents 22. In the Town's view, a sign regulation that "does not censor or favor particular viewpoints or ideas" cannot be content based. Ibid. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is "endorsing or suppressing 'ideas or viewpoints,' " id.,at 27, and the provisions for political signs and ideological signs "are neutral as to particular ideas or viewpoints" within those categories. Id.,at 37.
This analysis conflates two distinct but related limitations that the First Amendment places on government regulation of speech. Government discrimination among viewpoints-or the regulation of speech based on "the specific motivating ideology or the opinion or perspective of the speaker"-is a "more blatant" and "egregious form of content discrimination." Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). But it is well established that "[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." Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y.,447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980).
Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Ibid.For example, a law banning the use of sound trucks for political speech-and only political speech-would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra,at 428, 113 S.Ct. 1505. The Town's Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination.
3
Finally, the Court of Appeals characterized the Sign Code's distinctions as turning on " 'the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.' " 707 F.3d, at 1069. That analysis is mistaken on both factual and legal grounds.
To start, the Sign Code's distinctions are not speaker based
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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sc_casesourcestate
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01
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
SOUTH CENTRAL BELL TELEPHONE CO. et al. v. ALABAMA et al.
No. 97-2045.
Argued January 19, 1999
Decided March 23, 1999
Breyer, J., delivered the opinion for a unanimous Court. O’Connor, J., post, p. 171, and Thomas, J., post, p. 171, filed concurring opinions.
Mark L. Evans argued the cause for petitioners. With him on the briefs were Henk Brands, Walter Hellerstein, Charles R. Morgan, Mark D. Hallenbeck, Albert G. Moore, Jr., Richard W. Bell, Walter R. Byars, David J. Bowling, and Courtney Hyers.
Charles J. Cooper argued the cause for respondents. With him on the brief were Bill Pryor, Attorney General of Alabama, Ron Bowden and Dan E. Schmaeling, Assistant Attorneys General, Michael W. Kirk, and David H. Thompson.
Briefs of amici curiae urging reversal were filed for Avon Products, Inc., et al. by William L. Goldman; for Tax Executives Institute, Inc., by Timothy J. McCormally and Mary L. Fahey; and for the Committee on State Taxation by William D. Peltz and Jeffrey A Friedman.
Justice Breyer
delivered the opinion of the Court.
The basic question in this ease is whether tax Alabama assesses on foreign corporations violates the Commerce Clause. We conclude that it does.
I
Alabama requires each corporation doing State to pay a franchise tax based upon the firm's capital. A domestic firm, organized under the laws of Alabama, must pay tax in an amount equal to 1% of the par value of the firm’s stock. Ala. Const., Art. XII, §229; Ala. Code §40-14-40 (1993); App. to Pet. for Cert. 50a, 52a, 61a (Stipulated Facts). A foreign firm, organized under the laws of a State other than Alabama, must pay tax in an amount equal to 0.3% of the value of “the actual amount of capital employed” in Alabama. Ala. Const., Art. XII, §232; Ala. Code §40-14-41(a) (Supp. 1998). Alabama law grants domestic firms considerable leeway in controlling their own tax base and tax liability, as a firm may set its stock’s par value at a level well below its book or market value. App. to Pet. for Cert. 52a-5Ba (Stipulated Facts). Alabama law does not grant a foreign firm similar leeway to control its tax base, however, as the value of the “actual” capital upon which Alabama calculates the foreign franchise tax includes not only the value of capital stock but also other accounting items (e. g., long-term debt, surplus), the value of whieh depends upon the firm’s financial status. Id., at 53a-54a; Ala. Code §§40-14-41(b)(1) — (5), (c) (Supp. 1998).
In 1986, the Reynolds Metals Company and three other foreign corporations sued Alabama’s tax authorities, seeking a refund of the foreign franchise tax they had paid on the ground that the tax discriminated against foreign corporations. Although the tax favored foreign firms in some respects (granting them a lower tax rate and excluding any capital not employed in Alabama), that favorable treatment was more than offset by the fact that a domestic firm, unlike a foreign firm, could shrink its tax base significantly simply by setting the par value of its stock at a low level. As a result, Reynolds Metals said, the tax burden borne by foreign corporations was much higher than the burden on domestic corporations, and the tax consequently violated both the Commerce and Equal Protection Clauses. U. S. Const., Art. I, §8, cl. 3, and Arndt. 14, § 1.
The Alabama Supreme Court rejected these claims. White v. Reynolds Metals Co., 558 So. 2d 373 (1989). Without denying that the franchise tax imposed a special burden upon foreign corporations, the court nonetheless thought that this special burden simply offset a different burden imposed exclusively upon domestic corporations by Alabama’s "domestic shares tax.” This latter tax is a property tax on shares of domestic stock; it is assessed against shareholders based upon the value of the shares they hold, but in practice it is normally paid by the corporation itself. Id., at 386-388 (citing, e. g., Gregg Dyeing Co. v. Query, 286 U. S. 472 (1932) (permitting taxes that discriminate against interstate commerce when they compensate for burdens placed uniquely upon domestic commerce)). Any remaining discrimination, the court concluded, was constitutionally insignificant. 558 So. 2d, at 388-390.
While the Alabama courts were considering Reynolds Metals, a different foreign corporation, South Central Bell Telephone Company, brought the lawsuit now before us. Bell asserted the same Commerce Clause and Equal Protection Clause claims as had Reynolds Metals, though in respect to different tax years. Bell initially agreed to hold its suit in abeyance pending the resolution of Reynolds Metals’ claims. Then, after the Alabama Supreme Court decided against the taxpayers in Reynolds Metals, Bell (joined by other foreign corporations with similar claims) went to trial.
The Bell plaintiffs that the empirical premises that underlay Reynolds Metals were -wrong: Despite the differences in franchise tax rates, Alabama’s franchise tax scheme in practice discriminates substantially against foreign corporations, and the Alabama tax on shares of domestic corporations does not offset the discrimination in the franchise tax. The Alabama trial court agreed with the Bell plaintiffs that their evidence, taken together with this Court’s recent Commerce Clause cases, “clearly and abundantly demonstrates that the franchise tax on foreign corporations discriminates against them for no other reason than the state of their incorporation.” Memorandum Opinion in App. to Pet. for Cert. 21a-22a (hereinafter Mem. Op.) (citing Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93 (1994); Associated Industries of Mo. v. Lohman, 511 U. S. 641 (1994); Fulton Corp. v. Faulkner, 516 U. S. 325 (1996)). But the trial court nonetheless dismissed their claims for a different reason, namely, that given the Alabama Supreme Court’s decision in Reynolds Metals, “the Taxpayer^’] claims [in this case] are barred by res judicata.” Mem. Op. 17a.
The Alabama Supreme a vote of 5 to 4. The majority’s decision cited Reynolds Metals and a procedural rule regarding summary dispositions and simply said, “PER CURIAM. AFFIRMED. NO OPINION.” 711 So. 2d 1005 (1998). One justice concurred specially to say that by requesting that their case be held in abeyance until Reynolds Metals was resolved, the Bell plaintiffs had agreed to be bound by Reynolds Metals. 711 So. 2d, at 1005-1007 (opinion of Maddox, J.). Three dissenters wrote that given the differences between this case and Reynolds Metals (e. g., different tax years, different plaintiffs), res judicata could not bind the Bell plaintiffs. 711 So. 2d, at 1008 (opinion of See, J.). On the merits, the dissenters concluded that the franchise tax violated the Commerce Clause. See id., at 1008-1011. (One other justice dissented without opinion.)
granted the Bell plaintiffs’ petition for certiorari, agreeing to decide (1) whether the Alabama courts’ refusal to permit the Bell plaintiffs to raise their constitutional claims because of res judicata “deprived” the Bell plaintiffs “of the due process of law guaranteed by the Fourteenth Amendment,” Pet. for Cert. (i); see Richards v. Jefferson County, 517 U. S. 798 (1996); and (2) whether the franchise tax “impermissibly discriminates against interstate commerce, in violation of the Commerce Clause,” Pet. for Cert, (i). We decide both questions in favor of the Bell plaintiffs.
hH
A
outset, the respondents — the State of Alabama and its State Department of Revenue (collectively, the State)— argue that this Court lacks “appellate jurisdiction over this case.” Brief for Respondents 15. The State points to the Eleventh Amendment, which provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State ....”
The State claims that this Amendment’s literal language applies here because this case began in state court as a suit brought against one State, namely, Alabama, by citizens of another; because we, in hearing this case, would be exereis-ing the “Judicial power of the United States”; and because Alabama has not waived its right to object to our exercise of that power.
the very argument that the State now makes. In McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990), we unanimously held that “[t]he Eleventh Amendment does not constrain the appellate jurisdiction of the Supreme Court over cases arising from state courts.” Id., at 31. We explained:
“[X]t is ‘inherent in the a state court takes cognizance of a case, the State assents to appellate review by this Court of the federal issues raised in the case ‘whoever may be the parties to the original suit, whether private persons, or the state itself.’ ” Id., at 30 (quoting Principality of Monaco v. Mississippi, 292 U. S. 313, 329 (1934); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 585 (1837) (Story, J., dissenting)).
Our holding in McKesson confirmed a long-established and uniform practice of reviewing state-court decisions on federal matters, regardless of whether the State was the plaintiff or the defendant in the trial court. 496 U. S., at 28; accord, General Oil Co. v. Crain, 209 U. S. 211, 233 (1908) (Harlan, J., concurring) (“[I]t was long ago settled” that the Eleventh Amendment does not bar “a writ of error to review the final judgment of a state court”).
Although the State now Brief for Respondents 27, it does not provide a convincing reason why we should revisit that relatively recent precedent, and we shall not do so. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854-855 (1992) (considerations relevant to overruling precedent include workability of prior precedent, its relation to other changes in law, and relevant reliance).
B
The State, in opposing Bell’s petition for certiorari, argued that the Alabama Supreme Court’s decision rested upon an adequate state ground, namely, state-law principles of res judicata. It now believes, however, that the Alabama Supreme Court’s decision rejected the plaintiffs’ claims on their merits and relied upon Reynolds Metals under principles of stare decisis, not res judicata. Brief for Respondents 3. For that reason, the State “offer[s] no defense of the decision as a valid application of the doctrine of res judicata.” Ibid. Nor do we believe a valid defense could be made. See Richards v. Jefferson County, supra.
we considered an Alabama Supreme Court holding that state-law principles of res judicata prevented certain taxpayers from bringing a case (which we will call Case Two) to challenge on federal constitutional grounds a state tax that the Alabama Supreme Court had upheld in an earlier case (Case One) brought by different taxpayers. We held that the Fourteenth Amendment forbade this “extreme” application of state-law preclusion (res judicata) principles, id., at 797, because the plaintiffs in Case Two were “strangers” to the earlier judgment, id., at 802.
case before us. In Richards, we pointed out that the taxpayers in Case One “did not sue on behalf of a class; their pleadings did not purport to assert any claim against or on behalf of any nonparties; and the judgment they received did not purport to bind any .. . taxpayers who were nonparties.” Id., at 801. We added that the taxpayers in Case One did not understand their suit “to be on behalf of” the different taxpayers involved in Case Two, nor did the Case One court make any special effort “to protect the interests” of the Case Two plaintiffs. Id., at 802. As far as we are aware, the same can be said of the circumstances now before us. The two relevant cases involve different plaintiffs and different tax years. Neither is a class action, and no one claims that there is “privity” or some other special relationship between the two sets of plaintiffs. Hence, the Case Two plaintiffs here are “strangers” to Case One, and for the reasons we explained in Richards, they cannot be bound by the earlier judgment.
The Alabama trial court stances before us from those in Richards by pointing out that the plaintiffs here were aware of the earlier Reynolds Metals litigation and that one of the Reynolds Metals lawyers also represented the Bell plaintiffs. See Mem. Op. 18a-19a. These circumstances, however, created no special representational relationship between the earlier and later plaintiffs. Nor could these facts have led the later plaintiffs to expect to be precluded, as a matter of res judicata, by the earlier judgment itself, even though they may well have expected that the rule of law announced in Reynolds Metals would bind them in the same way that a decided case binds every citizen.
A concurring cluded that the Bell plaintiffs had “agreed that the final decision in Reynolds Metals would be controlling” when, in a letter to the trial court, they “specifically requested that [their] case be held in abeyance until Reynolds Metals was decided.” 711 So. 2d, at 1006-1007 (opinion of Maddox, J.). That letter also said, however, that if “ ‘either party desires to proceed at a later date, with the Court’s permission this case would be activated/” Id., at 1006. Given this latter statement, the letter is no more than a routine request for continuance. It does not distinguish Richards.
In sum, if the case rests on state-law claim or issue preclusion (res judicata or collateral estoppel), that holding is inconsistent with Richards and with the Fourteenth Amendment’s due process guarantee.
C
Turning to the merits, we conclude that this Court’s Commerce Clause precedent requires us to hold Alabama’s franchise tax unconstitutional. Alabama law defines a domestic corporation’s tax base as including only one item — the par value of capital stock — which the corporation may set at whatever level it chooses. A foreign corporation’s tax base, on the other hand, contains many additional balance sheet items that are valued in accordance with generally accepted accounting principles, rather than by arbitrary assignment by the corporation. Accordingly, as the State has admitted, Alabama law gives domestic corporations the ability to reduce their franchise tax liability simply by reducing the par value of their stock, while it denies foreign corporations that same ability. App. to Pet. for Cert. 52a-53a (Stipulated Facts). And no one claims that the different tax rates for foreign and domestic corporations offset the difference in the tax base. The tax therefore facially discriminates against interstate commerce and is unconstitutional unless the State can offer a sufficient justification for it. Cf. Fulton Corp. v. Faulkner, 516 U. S. 325 (1996) (state tax scheme requiring shareholders in out-of-state corporations to pay tax on a higher percentage of share value than shareholders of corporations operating solely within the State facially discriminated in violation of the Commerce Clause). This discrimination is borne out in practice, as the record, undisputed here, shows that the average domestic corporation pays only one-fifth the franchise tax it would pay if it were treated as a foreign corporation. See App. to Pet. for Cert. 36a (plaintiffs’ statement of facts); Mem. Op. 21a, and n. 7 (adopting plaintiffs’ statement of facts).
cannot justify this discrimination on the ground that the foreign franchise tax is a “complementary” or “compensatory” tax that offsets the tax burden that the domestic shares tax imposes upon domestic corporations. E. g., Hen- neford v. Silas Mason Co., 300 U. S. 577 (1937) (upholding a facially discriminatory use tax as “complementary” to a domestic sales tax). Our cases hold that a discriminatory tax cannot be upheld as “compensatory” unless the State proves that the special burden that the franchise tax imposes upon foreign corporations is “roughly . . . approximate” to the special burden on domestic corporations, and that the taxes are similar enough “in substance” to serve as “mutually exclusive” proxies for one another. Oregon Waste Systems, 511 U. S., at 103; accord, Fulton, supra, at 332-333.
In this case, however, “roughly approximate.” See App. to Pet. for Cert. 36a-37a (plaintiffs’ statement of facts, showing that the foreign franchise tax burden far exceeds the domestic franchise tax and the domestic shares tax combined); Mem. Op. 21a, n. 7 (adopting plaintiffs’ statement of facts); cf. 711 So. 2d, at 1011 (See, J., dissenting) (in the face of the State’s “indefinite assertion,” plaintiffs offered “substantial evidence ... that the foreign franchise tax exceeds any intrastate burden” imposed through the higher franchise tax rate and the domestic shares tax). And the State has made no effort to persuade this Court otherwise.
Nor are the two tax bama imposes its foreign franchise tax upon a foreign firm’s decision to do business in the State; Alabama imposes its domestic shares tax upon the ownership of a certain form of property, namely, shares in domestic corporations. Compare Ala. Code §40-14-41 with §40-14-70 (1993 and Supp. 1998). No one has explained to us how the one could be seen as a “proxy” for the other.
stead says, with “respect to the merits,” that “the flaw in petitioners’ claim lies not in the application to Alabama’s corporate franchise tax of this Court’s recent negative Commerce Clause cases; the flaw lies rather in the negative Commerce Clause cases themselves.” Brief for Respondents 3. The State adds that the Court should “formally reconsider” and “abando[n]” its negative Commerce Clause jurisprudence.” Id., at 3, 28. We will not entertain this invitation to reconsider our longstanding negative Commerce Clause doctrine, however, because the State did not make clear it intended to make this argument until it filed its brief on the merits. We would normally expect notice of an intent to make so far-reaching an argument in the respondent’s opposition to a petition for certiorari, cf. this Court’s Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate. We are not aware of any convincing reason to depart from that practice in this case. And consequently we shall not do so.
For these reasons, the judgment of the Alabama Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_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
TEXAS & P. RY. CO. v. UNITED STATES.
No. 14287.
United States Court of Appeals, Eighth Circuit.
June 13, 1951.
Otto Atchley, Texarkana, Tex. (Atchley & Vance, Texarkana, Tex., on the brief), for appellant.
Leo Meltzer, Attorney, Department of Justice, Washington, D. C. (James M. Mclnerney, Asst. Atty. Gen., R. S. Wilson, U. S. Atty., Charles A. Beasley, Jr., Asst. U. S. Atty., Fort Smith, Ark., and James O. Tolbert, Attorney, Interstate Commerce Commission, Washington, D. C., on the brief), for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
RIDDICK, Circuit Judge.
The Texas and Pacific Railway Company appeals from a judgment in a civil action brought by the United States under the Safety Appliance Acts, 45 U.S.C.A. §§ 1-16.
So far as material on this appeal the complaint charged the Texas and Pacific with five separate violations of the Acts, committed in hauling five admittedly defective freight cars between two points in the joint freight and terminal yards of Texas and Pacific Railway Company and the Missouri-Pacific Railroad Company in Tex-arkana, U. S. A., the movement of the cars beginning in Arkansas and ending in Texas. The United States admits that if the movement of cars was in fact by the Missouri-Pacific and not by the Texas and Pacific, as the latter contends, there was no violation of the Safety Appliance Acts by either railroad under the proviso in 45 U.S.C.A. § 13.
The facts were stipulated. Texarkana is the southern terminus of one branch of Missouri-Pacific and the northern terminus of one branch of Texas and Pacific. Greater Texarkana lies in both Arkansas and Texas. The line separating the two States runs through the Union Station and the terminal yards of the railroads. Missouri-Pacific is the owner of all tracks and facilities in the yards in Arkansas, and Texas and Pacific is the owner of all tracks and facilities in the yards in Texas. For many years the terminal yards have been operated as joint yards for the use and benefit of both railroads under an agreement between them. Prior to March 30, 1933, the yards were operated by Missouri-Pacific for the benefit of both railroads, and thereafter under the same contract by Texas and Pacific. On July 1, 1935, the agreement between the railroads for the operation of the yards was changed, and thereafter and at all times pertinent in this case the operation of the yards has been as provided in the new agreement.
Five freight cars with defective appliances were brought into that portion of the freight yards belonging to the Missouri-Pacific by the Missouri-Pacific from some point north of Texarkana. On arrival they were inspected and found to possess the defects charged in the complaint. The necessary repairs were such that they could not be made at the point in the joint yards where the cars were found to be defective. The nearest point on the Missouri-Pacific lines where it maintained for its sole use facilities available for making the repairs necessary was 64 miles north of Texarkana at Gurdon, Arkansas. But, approximately 3,000 feet from the point where the cars were inspected and found to be defective, there were available repair facilities in that portion of the joint yards in Texarkana owned by the Texas and Pacific. The cars were moved from the point of inspection to the repair tracks just mentioned and were there repaired. When they left the repair tracks they contained no defects in violation of any of the requirements of the Safety Appliance Acts.
Under the contract of July 1, 1935, each railroad granted to the other the right to use any and all property and facilities owned by it in’ the joint yards. In the agreement the component parts of the joint yards were classified as joint freight station facilities, joint coach facilities, joint gas compressing facilities, joint engine-house facilities, and joint yard facilities. Joint yard facilities were defined as including “Car shops, repair track facilities, material racks, shop machinery, tools and equipment and other facilities appurtenant to the inspection and repairing of cars.” The contract also provided for the operation of the joint yards under the direct supervision of a terminal train master subject to the orders of the superintendent of each of the railroads relating to its business in the joint yards. Mechanical facilities were under the supervision of a general foreman subject to the orders of the master mechanic of each of the railroads relative to its work. No person was permitted to hold the office of terminal train master or general foreman except upon the approval of both the railroads.
The contract fixed the time and manner for the transfer from one railroad to the other of cars or property brought into the joint yards by one railroad for delivery to the other for further transportation. It provided that in the case of a loaded or empty car arriving in the joint yards with a penalty defect which could not be repaired at the point where the defect was discovered, possession of the car and its contents should pass to the receiving railroad only when the necessary repairs had been made on the repair tracks in the joint yards; and that the facilities and equipment, including the railway tracks used in the operation of the joint yards, when being used by one railroad in its work should be deemed the property of that road during the period of such use, and the employees in the joint yards when engaged on the work of either of the railroads should be for the time so engaged employees of the road for which the work was done.
The salaries of the terminal train master, of the general foreman, and of all employees working in the joint yards, including the labor cost of inspection, removing cars to repair tracks, and repairing defective cars, were paid by the Texas and Pacific which was reimbursed by the Missouri-Pacific for its proportion of such costs, the contract providing for the allocation of the costs of operation between the railroads in the ratio that the cars required to be handled by each respectively bore to the total cars handled.
The defective cars were hauled by engines owned by the Texas and Pacific and manned by employees of the joint yards from the point where discovered defective in Arkansas to the joint yard repair tracks in Texas where the necessary repairs were made by joint yard employees.
After finding the facts as stipulated, the court concluded as a matter of law that, since.the cars did not become defective while being 'hauled or used on its line, the Texas and Pacific violated the provisions of the Safety Appliance Acts in hauling the cars from the point of inspection to the repair tracks; and that the contract between the railroads did not vary the absolute mandate of the Acts and had no binding effect upon the Government. The United States interprets the court’s findings and conclusions as a finding of fact that the movement of the defective cars was done by the Texas and Pacific. If such was the court’s finding of fact, it is clearly erroneous because contrary to all the evidence. On the other hand, if the court concluded as a matter of law, as apparently it did, that the movement of the defective cars was by the Texas and Pacific, the court was wrong. Of course, the contract did not and could not vary the terms of the statute. But we know of nothing in the Safety Appliance Acts which condemns a contract for the joint operation of terminal yards and the use by each road of the facilities owned by the other in such operations where the two roads meet end to end as do the Missouri-Pacific and the Texas and Pacific at Texarkana. The contract for the operation of the joint yards was in the interest of the efficient and economical operation of both railroads. We find nothing in it which conflicts with the letter or the spirit of the Safety Appliance Acts. We hold, as the United States concedes in its brief, that the contract between the roads is valid and binding upon them.
It follows that the joint yard employees who inspected the cars and found them defective, who moved them to the repair tracks, and who repaired the defects were Missouri-Pacific employees; and the facilities, including the engine, the tracks, and the tools used in the operation, were for the time being Missouri-Pacific facilities. The movement of the defective cars was by the Missouri-Pacific “upon its line” within the meaning of the Safety Appliance Acts.
We have found no cases dealing with facts exactly like the facts in this case. Our conclusion, we think, finds support in Philadelphia & R. R. Co. v. United States, 3 Cir., 191 F. 1, and United States v. New York Cent. R. Co., D.C.N.D.N.Y., 70 F. Supp. 761. In both cases it is held that where one railroad under a valid agreement uses the tracks of another for the operation of its trains, the tracks of the second railroad while being used by the first are a part of the first railroad’s lines within the meaning of the Safety Appliance Acts. And see also Gray v. Louisville & N. R. Co., D.C.E.D.Tenn., 197 F. 874, 876.
Reversed and remanded to the District Court with directions to dismiss the complaint.
. “Provided,, That where any ear shall have been properly equipped, as provided in sections 1-16 of this title, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by this section or section 6 of this title, if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point * *
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_othcrim
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
McCOY v. UNITED STATES.
No. 11474.
Circuit Court of Appeals. Ninth Circuit.
Aug. 24, 1948.
Rehearing Denied Oct. 8, 1948.
Wellington D. Rankin and Arthur P. Acher, both of Helena, Mont., and Charles L. Zimmerman, of Butte, Mont., and H. B. Landoe, of Bozeman, Mont., for appellant.
John B. Tansil, U. S. Atty., of Billings, Mont., and Harlow Pease and Emmett C. Angland, Asst. U. S. Attys., both of Butte, Mont., for appellee.
Before GARRECHT, DENMAN, MATHEWS, STEPHENS, HEALY, BONE, and ORR, Circuit Judges.
STEPHENS, Circuit Judge.
This case was heretofore argued and submitted to a division of this court and thereafter was reargued and resubmitted to the court en banc. The court’s opinion and order affirming the judgment was filed and made June 28, 1948. On August 24, 1948, the opinion was withdrawn for correction and this opinion was filed. Judge Garrecht approved this opinion, but died before it was filed.
Irving McCoy was indicted in two counts with violations of 18 U.S.C.A. § 80 for the presentation of false claims and for aiding and abetting the presentations of false claims to an agency, of the United States. The trial court denied motions to dismiss as to each count, but ordered a judgment of acquittal as to the first count, and denied the motion to acquit as to the second count. In accordance therewith a judgment of acquittal on the first count was had, and the second count was tried to- a judge and jury. A verdict of guilty was returned. Judgment was entered and sentence was pronounced. McCoy appeals.
It was charged in the second count that McCoy “knowingly and wilfully made and caused to be made and aided and abetted in making a false and fraudulent statement and representation and knowingly and wilfully presented and caused to be presented and aided and abetted in presenting said false and fraudulent statement and representation to the United States Government, * * * knowing said statement to contain fraudulent and false statements for the purchase * * * ” of two surplus army trucks “ * * * for the purpose of aiding a veteran to establish and maintain his own small business, profession or agricultural enterprise while in truth and in fact the defendant was not a veteran entitled to purchase said trucks under the provisions of the Surplus Property Act, 50 U. S.C.A.Appendix, § 1611 et seq. * * * and the purchase of said trucks were in fact for the purpose of being used in a non-veteran’s business, viz., the business of the defendant.”
Upon appeal McCoy raises several points, each of which he argues as constituting reversible error. We treat each point under appropriate subheadings.
The court refused to dismiss second count.
Was an offense against the laws of the United States charged in the second count of the indictment? It is claimed that the purchase by a veteran of surplus property for use in a non-veteran’s business is not unlawful, so that even if the facts alleged in the indictment are true, the concluding allegation “and the purchase of s'aid trucks were in fact for the purpose of being used in a non-veteran’s business, viz., the business of the defendant” destroys the validity of the indictment. It is thus concluded by appellant that since the indictment alleges that the property was to be used in the business of the defendant, a non-veteran, but does not negative the idea that the property might have been required by the veteran, as a condition precedent to employment, all of the facts as alleged could be true and defendant could not be guilty. The Surplus Property Administration, Reg. 7, Fed. Reg., Vol. 10, No. 203, pp. 12849-50, is cited, in which it is provided that a veteran may be deemed to have his “own business” etc., for the purpose of acquiring property when he is “engaged by others as an employee or agent and is required by his employment to have his own tools or equipment.”
Appellant’s construction of the indictment is too narrow. In the first place every particular relating to the charge is not required to be set out in the indictment, and it is not required that every possible combination of facts, which would constitute legal acts, should be negatived in it. Hopper v. United States, 9 Cir., 142 F.2d 181. However, the indictment is not reasonably subject to the construction appellant puts upon it. The allegations of the indictment are that the purpose of the intended purchase was for a permitted use by the veteran in aid of his own business. Such purpose, however, was untrue, andl the real purpose was in the interest of the non-veteran. The claim that the indictment is fatally defective rests upon a strained technical analysis of the drafter’s rhetoric to the effect that a mere possible meaning of the language used could be that the trucks were purchased for use in the veteran’s business of hauling for the non-veteran in his business. However, even such technical analysis does not lead to appellant’s conclusions. The indictment must be considered as a whole, and the violated statute is cited in it and plainly informs the accused of the law allegedly violated. The gist of the government’s accusation is that the real purpose for acquiring the trucks was in the interest of the non-veteran and not in the interest of the veteran. The construction of the sentences reciting the acts which constitute the alleged offense plainly sets off the real purpose of the veteran-applicant as opposite to and inconsistent with any purpose of the veteran imhis own use of the trucks. The recital of such acts also precludes any possible double jeopardy, for they are definitely identified. See Bridgeman v. United States, 9 Cir., 140 F. 577; Bost v. United States, 9 Cir., 103 F.2d 717; and United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921.
In refusing to dismiss the second count, the court committed no error.
The court refused to order an acquittal on second count.
Appellant argues insufficiency of evidence to sustain the judgment of conviction and that the court erred in denying a motion for the entry of a judgment of acquittal on the second count. The case is built on evidence, which, the government asserts, shows that McCoy aided and abetted Frederick Browning, a veteran entitled to purchase surplus property for his own use, in presenting purchase applications on their faces representing that the property is to be used for the veteran in a permissible enterprise, such representations, however, being false and fraudulent.
Appellant, the defendant below, offered no evidence other than testimony as to his good reputation. The evidence introduced by the government, then, stands upon its own intrinsic merit affected only by the testimony as to McCoy’s reputation.
It was the.theory of the government that McCoy had a general plan to use veterans as a means of acquiring war surplus property for his own business. It is disclosed by the evidence that McCoy procured a catalogue issued by the War Assets Administration from one Lahren, a veteran. When McCoy discovered that Lahren was going to Seattle to secure some equipment with $2500, he offered to and did drive him from Livingston, Montana, to Seattle. Together they went to several places in the State of Washington where supplies of surplus property were held, and McCoy proposed to Lahren to pay half of the purchase price on various items. McCoy proposed that the two each pay one-half the purchase price of about $5000 for a bulldozer to be resold in California. While in Seattle, McCoy went to fill out applications with Lahren for the purchase of surplus property and helped fill in the details after having read the application blank and thereby familiarizing himself with its requisites. Lahren did not finally consent to make any purchase, and nothing was purchased on the trip. On another trip McCoy drove Lahren to Butte, Montana, where a sale was being advertised, and on the way he picked up Browning, another veteran. Lahren testified that McCoy told him “ * * * the more veterans he had, the more chance he had of getting equipment.”
It was at Butte that the transactions occurred with which we are directly concerned. Browning testified that he received advice on the trucks from McCoy, and that he signed the application in question for the purchase of two surplus property trucks after discussing the matter with McCoy. McCoy paid the whole purchase price and took delivery. According to Browning, an arrangement was entered into between the two, whereby McCoy was to retain possession of the trucks until they were paid for, which was to be accomplished through hauling agreements with “Gallatin Industries”, a corporation. After they had been paid for they were to belong to McCoy and Browning, “fifty-fifty.” “Gallatin Industries” was named in the application as the enterprise in which the trucks were to be used for hauling lava rock. Browning and McCoy each had an interest in “Gallatin Industries”. At the time of the trial the trucks had not been so used, and were still in the possession of McCoy, because, according to Browning, “Gallatin Industries” was waiting to get bigger block machines so the material could be used by the company. One of the two trucks was registered by McCoy in Browning’s name, and the other one remained unregistered. Browning denied that McCoy had anything to do with the actual making of the application itself, and that he, Browning, made no false statement in the application. Browning, at the trial, could not tell the cost of the trucks, but testified that no writing passed between himself and McCoy, and nothing was said about interest on the money paid for the trucks.
It was stated in the application: “(4) I hereby certify that the surplus property herein applied for is to be used in and as a part of the enterprise described herein.” A witness on behalf of the government, Mrs. Woodhull, testified that while the trial was in progress a note was given by McCoy to her to be delivered to the witness Lahren. The note, which is unsigned and undated, reads as follows:
“You have a right to change you.r story at any time. McCoy is a kind of boaster and might say he owned the trucks for a joke to be big. He also has a dealer’s license and can buy surplus property anywhere.
“He heard the boys wanting to borrow money from me to buy trucks and I said I might loan it if they would go on the rock haul from Tom Miner basin to Bozeman for the cement blocks.
“The boys say they heard him trying to get trucks or cats from someone. So he should be careful.
“I don’t know is a pretty good answer to most anything. Or I don’t remember.
“You can say you offered to take me in as a partner and I didn’t do it.
“Hi [meaning Hi Lahren], John Sexton and Browning, Dean and those fellows are on my side so you better look out.”
It is claimed by appellant that there is no evidence as to McCoy’s knowledge of representations made in the application signed by Browning, or that he suggested the making of any false representation. The recitation of facts hereinbefore stated does not support either of these claims. McCoy was familiar with the application form and the conditions stated therein. The trial court’s comments on the evidence when it ruled on the motion to dismiss are apropos, and we quote them in the margin.
In order to prove guilty knowledge, it is not necessary that the defendant knew or dictated the specific words used by the veteran. If this were not so, an active aider and abettor need only look the other way when the paper was filled out. The transcript of the evidence is all one way that McCoy knew the purchase of surplus property was open to veterans only, and not being a veteran, he knew that he was ineligible to purchase at the sale either for a full or part ownership of the trucks. Even veterans could purchase surplus property only for the veteran’s use in a permissible activity..
Of course, if Browning was the real purchaser and was purchasing the trucks for any of the permitted uses, Browning has committed no- offense, and it follows that McCoy could not be guilty of aiding and abetting in any offense committed by Browning. The jury had a right to weigh Browning’s full explanation of the purchase to determine whether Browning was purchasing for any of the permitted uses or whether he had fraudulently misrepresented as to such intended uses in the applications for the purchases and whether McCoy had knowingly and intentionally aided and abetted Browning in making the fraudulent representations. Browning’s own testimony is that the interest in the trucks was to be “fifty-fifty.” That is, according to Browning’s testimony, not only he was a purchaser, but so was McCoy. If the arrangement between Browning and McCoy had been actually made as testified by Browning and the purchases were for the purpose of aiding Browning in his own small business of acting with McCoy in using the two- trucks for hauling rode for “Gallatin Industries,” the arrangement was not within the law for the following reasons: The law, as we understand it, does not authorize the veteran to-buy for another at least without a full disclosure of the facts. No disclosure was made to the government that the purchaser’s small business was connected in any way with McCoy. The interest of the veteran with a non-veteran in the enterprise or income therefrom was not more than-fifty per cent. But the specific charge against McCoy is that Browning was- not purchasing the trucks or an interest therein for his own small business at all but solely for and at the instigation of the non-veteran McCoy. The finding of guilt necessarily means that the jury did not believe Browning’s account of his arrangement with McCoy, but believed that the whole proceeding was a scheme for McCoy, a non-veteran, to enjoy privileges available only to veterans.
The appellant cites cases holding that where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction. But we cannot say, as this court said in Karn v. United States, 9 Cir., 158 F.2d 568 (referred to herein under another subhead), that there is no evidence to sustain the verdict nor can we say that as a matter of law the evidence is as consistent with innocence as with guilt. The trial court did not think so. The jury thought the evidence as a whole established the guilt of appellant beyond a reasonable doubt. We hold that the court committed no error as to this subheading.
Was it error to receive in evidence certain testimony of the witness Lahren?
The court over appellant’s objection admitted into evidence the testimony of the veteran, Lahren, as to conversations between Lahren and McCoy in regard to the purchase of war surplus equipment. The conversations admitted into evidence do not relate to the surplus property referred to in the indictment, and for that reason appellant claims its reception was error. Evidence of another offense to be admissible, says appellant, must show prima facie the commission of a completed offense. This argument misses the point. The evidence objected to was introduced to show a course of conduct or general design and plan of McCoy’s to circumvent the law through the use of veterans to purchase surplus property for his own purposes. It goes to McCoy’s intent and purpose in his relation and actions with Browning. Incidentally it rather clearly shows McCoy’s familiarity with the requirements for the purchase of surplus goods by veterans.
Since a state of mind is difficult to prove precisely, evidence of surrounding circumstances may be admitted to prove intent. Shreve v. United States, 9 Cir., 103 F.2d 796, 803, and cases cited therein. In United States v. Uram, supra, 148 F.2d at page 189, the court admitted testimony of a 1938 transaction because it was pertinent to the instant charge in that it “ * * * bore heavily on his intent in the 1939 [instant] transaction. It proved his ‘knowledge’ and threw light on his purpose in the 1939 transaction.” Evidence was properly admitted as to McCoy’s attempt to induce Lahren to do that which later he succeeded in inducing Browning to do. Lahren’s testimony as to advice and aid of McCoy and that McCoy made out applications which Lahren later refused to go on with, was properly admitted. No error was committed in regard to this subheading.
Were the instructions fatally defective as to the subject of knowledge and intent?
It is argued that appellant was entitled to a proffered specific instruction upon the proposition that he must know what representations were made by Browning and know them to be false before he could be convicted. Of course, knowledge and intent are essential elements of the crime, and the court gave ample instructions on this subject. Throughout the instructions there are repeated statements to the effect that if the nominal purchaser (Browning) had no intention of buying upon his own account but instead was intentionally using his veteran right for the benefit of McCoy, and that. McCoy knew this and schemed, aided and abetted it, that McCoy was guilty as a principal of violating the law.
It is next contended that the instructions failed to call to the attention of the jury the necessity for finding beyond a reasonable doubt the presence of a wrongful intent on the part of the veteran Browning at the time the application Was filed. The requested instructions state that the intent of the veteran, at the time the representation or statement was made, would be controlling, and that if the veteran honestly believed that he had a right to make the application, he could not knowingly have made false representations to the government; further, that if the veteran acted in good faith, no offense was committed. All of these requirements were plainly and unmistakenly recited in the court’s instructions, and, therefore, there was no call upon the trial judge to repeat them by using appellant’s text covering the subj ects.
It is argued that the inference could be drawn from the charge to the jury that no affirmative action on McCoy’s part was necessary and that he might be convicted even though he had no active part in making the presentation of the false statement; that under the instructions given, defendant could be convicted even though he did not know that the veteran would make any false statements in his application; and that the jury was not charged that the defendant could be repaid out of the profits accruing from operation of the truck. We do not agree that there was error in not further instructing the jury on these subjects. The theories of the government and appellant in the prosecution and in the defense were fairly and impartially placed before the jury by the instructions.
We perceive no error in the case upon the subjects treated above.
Did the court err in submitting the case to the jury without a specific instruction on the subject of circumstantial evidence?
Appellant offered an instruction on the subject of circumstantial evidence, but the court declined to give it and submitted the case without any specific instruction on that subject. Appellant claims that all or practically all of the evidence was of circumstances and for that reason an instruction on the subject of circumstantial evidence should have been given. The government claims that the case is amply supported by direct evidence and for that reason it is not a circumstantial evidence case and that no instruction on the subject was required.
It is said in 20 Am.Jur. p. 258, § 270, that “the basic distinction between direct and circumstantial evidence is that in the former instant witnesses testify directly of their own knowledge as to the main facts to be proved, while in the later case proof is given of facts and circumstances from which the jury may infer other connecting facts which reasonably follow according to the common experience of mankind.”
Measured by the above rule there is evidence of both kinds in the case, each of which, in all probability, had considerable weight with the jury. However, even with the aid of such a concise statement, it is not always easy to lay one item of evidence on one side of the distinguishing line and another item on the other side of the line. Much evidence, which, with its recital, would be classed as direct evidence, upon closer observation turns out to be circumstantial in character. Events occur so often in pattern that we accept them as direct evidence of a fact proved, whereas they are only facts which habitually accompany the fact we deem proved. Any rule for the special treatment of evidence upon the basis of its character, direct or circumstantial, is bound to be difficult of correct application. And too, any instruction to a jury directing a different treatment for circumstantial evidence than is to be accorded direct evidence will, if heeded at all, tend to confusion and incite in the juror’s mind the too prevalent and persistent illusion that circumstantial evidence is inferior -to direct evidence. The giving of any such instruction is very apt to be regarded as in some degree judicially confirming the not uncommon belief that a conviction by the aid of circumstances is highly unreliable and unconscionable. The books are full of judicial discord through attempts to distinguish between direct and circumstantial evidence in jury instructions.
The second circuit has lead out with definite holdings that all evidence received in a case is to be given such effect as the jury deems it to be entitled. That court refuses to follow courts which have worked out technical and academic distinctions between direct and circumstantial evidence too fine for practical application and so fine as to impel misunderstanding and confusion on the part of the jurors. That the giving of an instruction on circumstantial evidence is not regarded by the United States Supreme Court as one of the essentials to the due process of law is shown in the case of Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343. It is held in that case that it is not error to submit the case without such instruction where none is requested. We do not say that the giving of an instruction on the subject is per se error; we do hold that it was not error to submit the instant case without it.
When the charge to the jury is read as an integrated whole, as all in-structions should be read, it is seen that the court in simple, understandable language defined the essential rights of both government and accused. It understood and realized that the duty of the jury was to listen to everything the court permitted to be presented to it and under certain fundamental rules to apply it to the issue of guilt or innocence. Together with defining the fundamental rules for the consideration of the evidence, the court told the jury: “When two conclusions may be reasonably drawn from the evidence, the one of guilt and the other of innocence, the jury should reject the one of guilt and accept the one of innocence, and in that event should find the defendant not guilty. That is where two conclusions can be drawn as reasonably one way as the other, one pointing to the guilt and one to the innocence, you, of course, must indulge the presumption of innocence and draw the conclusion of innocence.”
It is argued that the above instruction makes possible the finding of guilt notwithstanding the probative circumstances may not only be consistent with guilt but at the same time may not be inconsistent with some hypothesis of innocence. It must not be overlooked in considering this point that all conclusions and all hypothesis which may be found are not to be mere possibilities. They must be reasonable. Henderson v. United States, 9 Cir., 143 F.2d 681, 682. The instruction quoted told the jury that guilt could be found only in case the jury found that the matters proved were consistent with guilt and that no other conclusions could reasonably be drawn from the evidence.
A single circumstance, standing alone, within the realm of the possible, can usually be accounted for upon an innocent basis. But the jury is charged with making all of its conclusions upon the basis of what is reasonable and at every turn under' the admonition that the accused is presumed to be innocent and under the necessity of declining to find guilt until the proof convinces beyond a reasonable doubt. The instruction quoted fits all the evidence of facts into an integrated whole, and when this has been done and the jury’s verdict is guilt, the jury has found that no other determination could be reasonable. That a hiatus exists here whereby the evidence may reasonably be held not to be inconsistent with some hypothesis of fact other than guilt is faulty reasoning.
Of course, the jury’s conclusion must have support in the evidence to the effect •that there is no hypothesis determinable from the proof under which the verdict of guilt could reasonably be avoided, but this is not saying that any technical form of instruction need be given. In the very recent case of Karn v. United States, 9 Cir., 158 F.2d 568, this court, at page 570, said: “The prosecution relied entirely upon circumstantial evidence for a conviction. It is sufficient to say that under such circumstances the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. The evidence should be required to point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis but that of guilt. 23 C.J.S. Criminal Law, § 907, pages 151, 152; Paddock v. United States, 9 Cir., 1935, 79 F.2d 872, 876; Ferris v. United States, 9 Cir., 1930, 40 F.2d 837, 840. Our considered judgment is that the evidence in this case falls far short of meeting this exacting standard.”
In the cited case- the court was considering whether the evidence supported the judgment. In the Ferris case, cited therein, the court was considering the same issue and stated the same rule in substance as stated in the Kara case. In the Ferris case the appellate court found that the evidence did not permit of any reasonable hypothesis that would permit of an acquittal, and in the Kara case exactly the opposite was found from a consideration of the evidence. Thus, it is seen that neither of these cases are in conflict with what we have said.
In Gurera v. United States, 8 Cir., 40 F.2d 338, 340, it is said: “There are cases where such form of instruction is proper, but those are cases where the essential facts are proven only by circumstantial evidence, and where such evidence, taken to be true, is as consistent with innocence as with guilt. That is not the situation here. The • evidence here shows that, if the jury should believe the facts as detailed by the government, in fact, it may be said if they believe those facts which are undisputed, then there would be no room for more than one construction thereof •because they are not consistent with innocence.” In Affronti v. United States, 8 Cir., 145 F.2d 3, 9, it is said: “Some of the evidence in this case was circumstantial, such asi the evidence of flight. Some was direct and positive. The court might properly have told the jury that some of the evidence was circumstantial, and have included in its instructions the circumstantial evidence rule. Since the evidence of the government was unexplained and uncontradicted, and, if believed, was inconsistent with the innocence of the defendant, we think that the failure of the court to include the circumstantial evidence rule in its instructions was not error. Gurera v. United States, 8 Cir., 40 F.2d 338, 340; Corbett v. United States, 8 Cir., 89 F.2d 124, 128; Stryker v. United States, 10 Cir., 95 F.2d 601, 604.” See also Bedell v. United States, 8 Cir., 78 F.2d 358, 368.”
Our method of trying those accused of crime is to submit the issue of guilt or innocence to a jury upon the evidence adduced and the applicable law as given it by the court. When the case has been submitted to the jury for decision under the instruction that guilt is only to be found in case the jury regards guilt as the only reasonable determination, the verdict should not be set aside by us unless as a matter of law we should find that there is no adequate support in the evidence for such determination. Otherwise we should be interfering with the jury’s function. We cannot find such lack of support in the evidence of our case.
To the extent that the expressions and rulings of this court in Paddock v. United States, 9 Cir., 79 F.2d 872, must be construed as in conflict with our rulings and expressions herein, they may be deemed to be overruled.
Affirmed.
One of the purposes of the Surplus Property Act of 1944 (58 Stat. 765) was to afford returning veterans an opportunity to establish themselves as proprietors of agricultural, business, and professional enterprises (50 U.S.C.A.Appendix § 1611(f)). The Surplus Property Administrator had authority under the Act to prescribe regulations to effectuate the objectives of it to aid veterans in the acquisition of surplus property, in appropriate quantities and types, to enable them to establish and maintain their own small business, professional, or agricultural enterprises.
Under Regulation 7 (10 Fed.Reg. 6519), a veteran’s own small business or professional enterprise is defined to include any commercial, industrial, manufacturing, financial, service, legal, medical, dental,- or other lawful enterprise (other than agricultural — separate provision is made in this case) having an invested capital not in excess of $50,000, which a veteran maintains or desires to establish: Provided, That he is or will be, directly or indirectly, the sole proprietor thereof or that no person or persons, other than other veterans, have or will have any proprietary interest in the
enterprise, singly or together, directly or indirectly, in excess of 50% of either the capital invested in such enterprise or of the gross profits or income thereof.
Subsequent amendment of Regulation 7 (10 Eed.Reg. 12849), effective October 15, 1945, provided, “own” business or professional or agricultural enterprise means one of which more than fifty (50) per cent of the invested capital or net income thereof is owned by, or accrues to, a veteran or veterans. A veteran may be deemed to have his “own” business or professional or agricultural enterprise for the purpose of acquiring particular tools or equipment when he is engaged by others as an employee or agent and is required by his employment to have his own tools or equipment.
The subsection following relates to “small business.” Any construction of facts in the instant case would bring it within the definition of small business.
United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921: ‘“While it is certainly true that a valid indictment cannot be dispensed with as a predicate to conviction where an indictment is necessary, Grimsley v. United States, 5 Cir., 50 F.2d 509, it is also true that * * * a substantial compliance with the purpose of an indictment to acquaint the defendant with the offense of which he stands, charged, so that he can prepare his defense and protect himself against double jeopardy, is sufficient.’ Hutcheson, C. J., in Hartwell v. United States, 5 Cir., 107 F.2d 359, 302.
“So indictments under this statute are-to be upheld when they acquaint the defendant with the offense of which lie-stands charged, so that he can prepare his defense and protect himself against double jeopardy. Bridgeman v. United States, 9 Cir., 140 F. 577, 590; Bost v. United States, 9 Cir., 103 F.2d 717. The allegations here in question become somewhat involved, as seems to be a way indictments have, at least where the now much urged simplification of criminal procedure has not been authorized. But they do disclose the prosecution’s case so that the accused knows what he must meet. That is sufficient.”
“The jury from the evidence could reasonably find that this sale was held as provided by the regulation of the Surplus Property Administrator dated October 10th, 1945, that veterans shall be given preference to purchase surplus property for the use in their own small business, agricultural and professional enterprise. In other words, the defendant knew that veterans themselves could not purchase except for those particular purposes and had no preference except for those particular purposes. That being to the jury could find under the evidence that the defendant knew that written applications were required by the government before even a veteran would be permitted to buy. That certain information must be given to the government by the veteran in order to permit the veteran himself to purchase at the sale, and that this was a part of the information that would be given by the veteran that the purchase was for the purpose of permitting the veteran to maintain his own small business, agricultural and professional enterprise. In other words, those representations were to be made to the government although he didn’t see the particular blank that the witness signed. In addition to that there is evidence here a similar blank was placed before him and that he assisted in some degree in advising the veteran as to the data that should be put in that blank; that he had the blank and had an opportunity to read it. The witness, of course, could not testify whether he did or whether he didn’t. The jury might find that he did.
“In other words, I believe that if it was the purpose of the defendant to get these trucks for his own business and if he knew that in order to do that representations must be made to the government by another, that he agrees and confederates with the other that the other will make such representations as are needed to permit the scheme to be carried into its ultimate fruition, that then it is not necessary for the government to establish that the defendant was there personally when the representations were made or that he knew * * * that if in making those representations the person making them disclosed the true facts that the nefarious deal that they entered into would not be consummated and the government would not permit the sale of the truck, that the government has sustained its burden.”
It is stated in United States v. Uram, 2 Cir., 148 F.2d 187, 190: “Schomer’s [one of tlie defendants] contention that there is no proof of his connection with the alleged crime — that he was present merely when the Campbells signed the applications in blank — has only plausibility for its support. A reading of the record removes any apprehension one might otherwise have as to his guilty participation in the commission of the fraud. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914A, 614. He was the instigator of the whole transaction, was present at its inception, a real participant therein, and a beneficiary thereof. So the jury could have well found, and did find from all the evidence.” To the same effect is a statement made in United States v. Goldsmith, 2 Cir., 108 F.2d 917, 921: “The further claim is made that merely giving advice cannot be a crime. But the statute prohibits not only the cause of false statements to be made, but also the concealing or covering up of a material fact by a trick, scheme, or device; and the charge is that the trick here was the defendant’s. The statute is broad enough to reach the brains behind a scheme, as well as the mere instrument of its execution.” In Hamner v. United States, 5 Cir., 134 F.2d 592, the court held that the evidence was insufficient to justify a conclusion beyond a reasonable doubt that Hamner knew the false invoices were to be made or were made, that is, that it was not established that the defendant knew such representations were to be made to a government board. Thus, it was possible that the defendant in the cited case believed that the dealer in tires could get the tires some place where he was not required to make any representations to get them. The caséis distinguishable from the instant one because McCoy knew that certain representations must be made to the government before the- trucks could be purchased.
See 10 Fed.Reg. p. 12850, § 8307.3-4.
The rule is stated in a California case, Atkins Corporation v. Tourny, 6 Cal. 2d 208, 215, 57 P.2d 480, 485, which we quote because of its apt language: “Under such circumstances, to strengthen his case, intervener offered evidence of similar transactions of Simons [defendant] at or about the same time, dealing with the same oil stock. This the trial court excluded on the theory that intervener had
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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sc_certreason
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K
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
JAMES v. KENTUCKY
No. 82-6840.
Argued February 28, 1984
Decided April 18, 1984
White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Blackmun, Powell, Stevens, and O’Connor, JJ., joined. Rehnquist, J., filed a dissenting statement, post, p. 352. Marshall, J., took no part in the decision of the case.
C. Thomas Hectus argued the cause and filed a brief for petitioner.
Penny R. Warren, Assistant Attorney General of Kentucky, argued the cause for respondent. With her on the brief were David L. Armstrong, Attorney General, and Robert L. Chenoweth, Assistant Deputy Attorney General.
Justice White
delivered the opinion of the Court.
In Carter v. Kentucky, 450 U. S. 288 (1981), we held that a trial judge must, if requested to do so, instruct the jury not to draw an adverse inference from the defendant’s failure to take the stand. In this case, the Kentucky Supreme Court found that the trial judge was relieved of that obligation because defense counsel requested an “admonition” rather than an “instruction.”
I
Petitioner Michael James was indicted for receipt of stolen property, burglary, and rape. James had been convicted of two prior felonies — forgery and murder — and the prosecution warned that were James to take the stand it would use the forgery conviction to impeach his testimony. During voir dire, defense counsel asked the prospective jurors how they would feel were James not to testify. After a brief exchange between counsel and one member of the venire, the trial judge interrupted, stating: “They have just said they would try the case solely upon the law and the evidence. That excludes any other consideration.” App. 30. With that, voir dire came to a close. James did not testify at trial.
At the close of testimony, counsel and the judge had an off-the-record discussion about instructions. When they returned on the record, James’ lawyer noted that he objected to several of the instructions being given, and that he “requests that an admonition be given to the jury that no emphasis be given to the defendant’s failure to testify which was overruled.” Id., at 95. The judge then instructed the jury, which returned a verdict of guilty on all counts. At a subsequent persistent felony offender proceeding, the jury sentenced James to life imprisonment in light of his two previous convictions.
On appeal, James argued that the trial judge’s refusal to tell the jury not to draw an adverse inference from his failure to testify violated Carter v. Kentucky, supra. The Kentucky Supreme Court conceded that Carter requires the trial judge, upon request, to instruct the jury not to draw an adverse inference. 647 S. W. 2d 794, 795 (1988). The court noted, however, that James had requested an admonition rather than an instruction, and there is a “vast difference” between the two under state law. He “was entitled to the instruction, but did not ask for it. The trial court properly denied the request for an admonition.” Id., at 795-796. We granted certiorari, 464 U. S. 913 (1983), to determine whether petitioner’s asserted procedural default adequately supports the result below. We now reverse.
II
In Carter we held that, in order fully to effectuate the right to remain silent, a trial judge must instruct the jury not to draw an adverse inference from the defendant’s failure to testify if requested to do so. James argues that the essence of the holding in Carter is that the judge must afford some form of guidance to the jury, and that the admonition he sought was the “functional equivalent” of the instruction required by Carter. The State responds that the trial judge was under no obligation to provide an admonition when under Kentucky practice James should have sought an instruction. An examination of the state-law background is necessary to understand these arguments.
A
Kentucky distinguishes between “instructions” and “admonitions.” The former tend to be statements of black-letter law, the latter cautionary statements regarding the jury’s conduct. See generally Webster v. Commonwealth, 508 S. W. 2d 33, 36 (Ky. App.), cert. denied, 419 U. S. 1070 (1974); Miller v. Noell, 193 Ky. 659, 237 S. W. 373 (App. 1922). Thus, “admonitions” include statements to the jury requiring it to disregard certain testimony, Perry v. Commonwealth, 652 S. W. 2d 655, 662 (Ky. 1983); Stallings v. Commonwealth, 556 S. W. 2d 4, 5 (Ky. 1977), to consider particular evidence for purposes of evaluating credibility only, Harris v. Commonwealth, 556 S. W. 2d 669, 670 (Ky. 1977); Lynch v. Commonwealth, 472 S. W. 2d 263, 266 (Ky. App. 1971), and to consider evidence as to one codefen-dant only, Ware v. Commonwealth, 537 S. W. 2d 174, 177 (Ky. 1976). The State Rules of Criminal Procedure provide that at each adjournment the jury is to be “admonished” not to discuss the case. Ky. Rule Crim. Proc. 9.70 (“Admonition”). See generally 1 J. Palmore & R. Lawson, Instructions to Juries in Kentucky 16-20, 397-404 (1975) (hereinafter Palmore).
Instructions, on the other hand, set forth the legal rales governing the outcome of a case. They “state what the jury must believe from the evidence ... in order to return a verdict in favor of the party who bears the burden of proof.” Webster v. Commonwealth, supra, at 36. The judge reads the instructions to the jury at the end of the trial, and provides it a written copy. Ky. Rule Crim. Proc. 9.54(1). After Carter, Kentucky amended its Criminal Rules to provide that, if the defendant so requests, the instructions must state that he is not compelled to testify and that the jury shall not draw an adverse inference from his election not to. Rule 9.54(3).
The substantive distinction between admonitions and instructions is not always clear or closely hewn to. Kentucky’s highest court has recognized that the content of admonitions and instructions can overlap. In a number of cases, for example, it has referred to a trial court’s failure either to instruct or to admonish the jury on a particular point, indicating that either was a possibility. E. g., Caldwell v. Commonwealth, 503 S. W. 2d 485, 493-494 (1972) (“instructions” did not contain a particular “admonition,” but the “failure to admonish or instruct” was harmless); Reeves v. Commonwealth, 462 S. W. 2d 926, 930, cert. denied, 404 U. S. 836 (1971). See also Bennett v. Horton, 592 S. W. 2d 460, 464 (1979) (“instructions” included the “admonition” that the jury could make a certain setoff against the award); Carson v. Commonwealth, 382 S. W. 2d 85, 95 (1964) (“The fourth instruction was the usual reasonable doubt admonition”). The court has acknowledged that “sometimes mát-ters more appropriately the subject of admonition are included with or as a part of the instructions.” Webster v. Commonwealth, supra, at 36.
In pre-Carter cases holding that a defendant had no right to have the jury told not to draw an adverse inference, Kentucky’s highest court did not distinguish admonitions from instructions. See, e. g., Luttrell v. Commonwealth, 554 S. W. 2d 75, 79-80 (1977) (“instruction”); Scott v. Commonwealth, 495 S. W. 2d 800, 802 (“written admonition,” “admonition”), cert. denied, 414 U. S. 1073 (1973); Green v. Commonwealth, 488 S. W. 2d 339, 341 (1972) (“instruction”); Dixon v. Commonwealth, 478 S. W. 2d 719 (1972) (“an instruction admonishing the jury”); Jones v. Commonwealth, 457 S. W. 2d 627, 630 (1970) (“admonition” during another witness’ testimony), cert. denied, 401 U. S. 946 (1971); Roberson v. Commonwealth, 274 Ky. 49, 50, 118 S. W. 2d 157, 157-158 (1938) (“admonition”), citing Hanks v. Commonwealth, 248 Ky. 203, 205, 58 S. W. 2d 394, 395 (App. 1933) (“instruction”). A statement to the jury not to draw an adverse inference from the defendant’s failure to testify would seem to fall more neatly into the admonition category than the instruction category. Cautioning the jury against considering testimony not given differs little from cautioning it not to consider testimony that was. However, the Kentucky Criminal Rules treat it as an instruction. See n. 4, supra.
One procedural difference between admonitions and instructions is that the former are normally oral, while the latter, though given orally, are also provided to the jury in writing. See generally 1 Palmore, ch. 12. However, this distinction is not strictly adhered to. As the cases cited above indicate, “admonitions” frequently appear in the written instructions. See also id., at 21 (“An ‘admonition’. . . need not be in writing. However, it is not error to give such admonition in writing as an instruction”); id., at 17. Conversely, instructions may be given only orally if the defendant waives the writing requirement. Brief for Respondent 25; Tr. of Oral Arg. 31, 38-39. The State contends, though without citing any authority, that the instructions must be all in writing or all oral, and that it would have been reversible error for the trial judge to have given this “instruction” orally. Yet the Kentucky Court of Appeals has held, for example, that there was no error where the trial court, after reading the written instructions, told the jury orally that its verdict must be unanimous, a statement normally considered an “instruction.” Freeman v. Commonwealth, 425 S. W. 2d 575, 579 (1968). And in several cases the Court of Appeals has found no error where the trial court gave oral explanations of its written instructions. E. g., Allee v. Commonwealth, 454 S. W. 2d 336, 342 (1970), cert. dism’d sub nom. Green v. Kentucky, 401 U. S. 950 (1971); Ingram v. Commonwealth, 427 S. W. 2d 815, 817 (1968). Finally, given Kentucky's strict contemporaneous-objection rule, see, e. g., Webster v. Commonwealth, 508 S. W. 2d, at 36; Reeves v. Commonwealth, supra, at 930; Ky. Rule Crim. Proc. 9.54(2), it would be odd if it were reversible error for the trial court to have given a Carter instruction orally at the defendant’s request. See also Weichhand v. Garlinger, 447 S. W. 2d 606, 610 (Ky. App. 1969) (harmless error to give oral admonition where written instruction was requested and appropriate).
B
There can be no dispute that, for federal constitutional purposes, James adequately invoked his substantive right to jury guidance. See Douglas v. Alabama, 380 U. S. 415, 422 (1965). The question is whether counsel’s passing reference to an “admonition” is a fatal procedural default under Kentucky law adequate to support the result below and to prevent us from considering petitioner’s constitutional claim. In light of the state-law background described above, we hold that it is not. Kentucky’s distinction between admonitions and instructions is not the sort of firmly established and regularly followed state practice that can prevent implementation of federal constitutional rights. Cf. Barr v. City of Columbia, 378 U. S. 146, 149 (1964). Carter holds that if asked to do so the trial court must tell the jury not to draw the impermissible inference. To insist on a particular label for this statement would “force resort to an arid ritual of meaningless form,” Staub v. City of Baxley, 355 U. S. 313, 320 (1958), and would further no perceivable state interest, Henry v. Mississippi, 379 U. S. 443, 448-449 (1965). See also NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 293-302 (1964). “Admonition” is a term that both we and the State Supreme Court have used in this context and which is reasonable under state law and normal usage. As Justice Holmes wrote 60 years ago: “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U. S. 22, 24 (1923).
C
The State argues that this is more than a case of failure to use the required magic word, however. It considers James’ request for an admonition to have been a deliberate strategy. He sought an oral statement only in order to put “less emphasis on this particular subject, not before the jury, not in writing to be read over and over, but to have been commented upon and passed by.” Tr. of Oral Arg. 39-40. James, now represented by his third attorney, seems to concede that the first attorney did seek an oral admonition. He does not argue that the trial court had to include the requested statement in the instructions, though he suggests that it could have done so, and that he would have been happy with either a written or an oral statement. Brief for Petitioner 23-25.
We would readily agree that the State is free to require that all instructions be in writing; and to categorize a no-adverse-inference statement as an instruction. The Constitution obliges the trial judge to tell the jury, in an effective manner, not to draw the inference if the defendant so requests; but it does not afford the defendant the right to dictate, inconsistent with state practice, how the jury is to be told. Cf. Taylor v. Kentucky, 436 U. S. 478, 485-486 (1978). In Lakeside v. Oregon, 435 U. S. 333 (1978), we held that the judge may give a no-adverse-inference instruction over the defendant's objection. Given that, the State may surely give a written instruction over the defendant’s request that it be oral only. And if that is so, the State can require that if the instruction is to be given, it be done in writing. For reasons similar to those set out in Lakeside, we do not think that a State would impermissibly infringe the defendant’s right not to testify by requiring that if the jury is to be alerted to it, it be alerted in writing. See generally Cupp v. Naughten, 414 U. S. 141, 146 (1973).
This is not a case, however, of a defendant attempting to circumvent such a firm state procedural rule. For one thing, as the discussion in Part II-A, supra, indicates, the oral/written distinction is not as solid as the State would have us believe. Admonitions can be written and instructions oral, and the Kentucky Supreme Court has itself used the term “admonition” in referring to instructions that “admonish.” In addition, our own examination of the admittedly incomplete record reveals little to support the State’s view of petitioner’s request. The single passing reference to an “admonition” is far too slender a reed on which to rest the conclusion that petitioner insisted on an oral statement and nothing but.
Apart from this one use of the term, there is absolutely nothing in the record to indicate any such insistence. Indeed, other indications are to the contrary. Before going off the record, defense counsel stated that he had “a matter in regards to the instructions.” Tr. of Hearing (Jan. 19,1982), p. 3 (emphasis added). Returning to the record, he noted that he “object[ed] to several of the instructions being given to the jury” and that his request for “an admonition” to the jury regarding the defendant’s failure to testify had been overruled. The court below inferred from these two statements that counsel had sought an oral statement apart from the instructions. Yet the statements could also be a shift from an objection to what was being said to the jury (“the instructions being given”), to an objection to what was not (“requests an admonition . . . which was overruled”). It is also possible that counsel sought both a written and an oral statement and was denied on both counts.
Where it is inescapable that the defendant sought to invoke the substance of his federal right, the asserted state-law defect in form must be more evident than it is here. In the circumstances of this case, we cannot find that petitioner’s constitutional rights were respected or that the result below rests on independent and adequate state grounds.
III
Respondent argues that even if there was error, it was harmless. It made the same argument below, but the Kentucky Supreme Court did not reach it in light of its conclusion that no error had been committed. We have not determined whether Carter error can be harmless, see Carter, 450 U. S., at 304, and we do not do so now. Even if an evaluation of harmlessness is called for, it is best made in state court before it is made here. The case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Justice Marshall took no part in the decision of this case.
Justice Rehnquist dissents for the reasons stated in his dissenting opinion in Carter v. Kentucky, 450 U. S. 288, 307-310 (1981).
The charges grew out of three separate incidents, all involving Donna Richardson. Richardson testified that on April 23, 1980, her house was broken into and a gun taken from under her pillows. A week later, she came home to find that a pane of glass had been removed from her back door, the locks undone, and her pillows messed up. On May 6, James, her next-door neighbor, asked to use her telephone to call a doctor. When Kichardson let him in and began dialing, he put a gun to her side, tied her up, brought her to his house, and raped her.
James had the stolen pistol in his possession when arrested, hence the charge of receiving stolen property. His fingerprint was found on the missing pane of glass, hence the charge of burglary.
We rejected similar logic with regard to the instructions themselves in Carter v. Kentucky, 450 U. S. 288 (1981):
“Kentucky also argues that in the circumstances of this case the jurors knew they could not make adverse inferences from the petitioner’s election to remain silent because they were instructed to determine guilt ‘from the evidence alone,’ and because failure to testify is not evidence. The Commonwealth’s argument is unpersuasive. Jurors are not lawyers; they do not know the technical meaning of ‘evidence.’ They can be expected to notice a defendant’s failure to testify, and, without limiting instruction, to speculate about incriminating inferences from a defendant’s silence.” Id., at 303-304.
The relevant portion of the transcript reads, in its entirety, as follows: “JUDGE MEIGS: Call your witness. You have closed, I am sorry.
“MR. PEALE [defense counsel]: We have closed and has [sic] a matter in regards to the instructions.
“OFF THE RECORD.
“MR. PEALE: Note that the defendant objects to several of the instructions being given to the jury.
“JUDGE MEIGS: Overruled.
“MR. PEALE: The defendant requests that an admonition be given to the jury that no emphasis be given to the defendant’s failure to testify which was overruled.
“JUDGE MEIGS: Ladies and gentlemen of the jury, these are your instructions. . . .” Tr. of Hearing (Jan. 19, 1982), pp. 3-4.
That Rule provides:
“The instructions shall not make any reference to a defendant’s failure to testify unless so requested by him, in which event the court shall give an instruction to the effect that he is not compelled to testify and that the jury shall not draw any inference of guilt from his election not to testify and shall not allow it to prejudice him in any way.”
Indeed, such a statement is substantively indistinguishable from an “admonition” given in this very case. When James was brought into court for the persistent-felony-offender hearing, he was in handcuffs. After requesting and being denied a mistrial, his attorney asked: “Can we at least have an admonition to the jury, your Honor?” The judge obliged, telling the jury it was “admonished not to consider the fact that the defendant was brought into the courtroom shackled and handcuffed. That should have nothing to do, no bearing at all, on your decision in this case.” 5 Tr. 4.
See Bruno v. United States, 308 U. S. 287, 294 (1939) (Court unwilling to assume “that jurors, if properly admonished, neither could nor would heed the instructions of the trial court” not to draw an improper inference).
When asked at oral argument whether his “basic argument [is] that your client was entitled to an instruction because he had requested something almost like an instruction or that he was entitled to an admonition because he had requested an admonition,” petitioner’s counsel answered that his “basic argument is that he was entitled to an admonition, at the very least.” Tr. of Oral Arg. 25.
Whether Kentucky has in fact done so is not clear. See supra, at 348.
Neither of the trial lawyers was involved in the appeal. Thus, appellate counsel and the appellate court were working from the same un-elaborated record that is before us.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
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sc_respondentstate
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
ARIZONA v. CALIFORNIA et al.
No. 8,
Orig.
Decided June 3, 1963
Decree entered March 9, 1964— Amended decree entered February 28, 1966 — Argued October 10, 1978 — Decided and supplemental decree entered January 9, 1979
Ralph E. Hunsaker argued the cause for complainant.
Douglas B. Noble, Deputy Attorney General of California, argued the cause for defendant State of California et al. Robert P. Will argued the cause for defendant Metropolitan Water District of Southern California et al. ■
With Messrs. Hunsaker, Noble, and Will on the responses of the State of Arizona et al. to both motions to intervene were Evelle J. Younger, Attorney General of California, Sanford N. Gruskin, Chief Assistant Attorney General, R. H. Connett and N. Gregory Taylor, Assistant Attorneys General, Edwin J. Dubiel, Emil Stipanovich, Jr., and Anita E. Ruud, Deputy Attorneys General, Roy H. Mann, Maurice C. Sherrill, R. L. Knox, Jr., Burt Pines, Gilbert W. Lee, John W. Witt, C. M. Fitzpatrick, Joseph Kase, Jr., Robert List, Attorney General of Nevada, Lyle Rivera, Chief Deputy Attorney General, Brian McKay, Deputy Attorney General, and Thomas G. Nelson.
With Mr. Noble on the response of the State of California et al. to the motion to intervene of the Colorado River Indian Tribes et al. were Messrs. Younger, Gruskin, Connett, Taylor, Dubiel, Stipanovich, Ms. Ruud, Messrs. Sherrill, Knox, List, Rivera, McKay, and Nelson.
With Mr. Will on the response of the Metropolitan Water District of Southern California et al. to the motion to intervene of the Colorado River Indian Tribes et al. were Messrs. Pines, Lee, Witt, Fitzpatrick, and Kase.
Raymond C. Simpson argued the cause and filed briefs for the Fort Mojave Indian Tribe et al.
Lawrence D. Aschenbrenner argued the cause for the Co-copah Indian Tribe.
Terry Noble Fiske argued the cause for the Colorado River Indian Tribes.
Louis F. Claiborne argued the cause for the United States. On the memorandums for the United States were Solicitor General McCree, Assistant Attorney General Moorman, and Myles E. Flint.
Domald D. Stark filed a brief as amicus curiae.
Pee Cukiam
and Supplemental Deceee.
The United States of America, Intervenor, State of Arizona, Complainant, the California Defendants (State of California, Palo Verde Irrigation District, Imperial Irrigation District, Coachella Valley County Water District, The Metropolitan Water District of Southern California, City of Los Angeles, City of San Diego, County of San Diego), and State of Nevada, Intervenor, pursuant to Art. VI of the Decree entered in the case on March 9, 1964, at 376 U. S. 340, and amended on February 28, 1966, at 383 U. S. 268, have agreed to the present perfected rights to the use of mainstream water in each State and their priority dates as set forth herein. Therefore, it is hereby ORDERED, ADJUDGED, AND DECREED that the joint motion of the United States, the State of Arizona, the California Defendants, and the State of Nevada to enter a supplemental decree is granted and that said present perfected rights in each State and their priority dates are determined to be as set forth below, subject to the following:
(1) The following listed present perfected rights relate to the quantity of water which may be used by each claimant and the list is not intended to limit or redefine the type of use otherwise set forth in said Decree.
(2) This determination shall in no way affect future adjustments resulting from determinations relating to settlement of Indian reservation boundaries referred to in Art. II (D) (5) of said Decre^.
(3) Article IX of said Decree is not affected by this list of present perfected rights.
(4) Any water right listed herein may be exercised only for beneficial uses.
(5) In the event of a determination of insufficient mainstream water to satisfy present perfected rights pursuant to Art. II (B) (3) of said Decree, the Secretary of the Interior shall, before providing for the satisfaction of any of the other present perfected rights except for those listed herein as “MISCELLANEOUS PRESENT PERFECTED RIGHTS” (rights numbered 7-21 and 29-80 below) in the order of their priority dates without regard to State lines, first provide for the satisfaction in full of all rights of the Chemehuevi Indian Reservation, Cocopah Indian Reservation, Fort Yuma Indian Reservation, Colorado River Indian Reservation, and the Fort Mojave Indian Reservation as set forth in Art. II (D)(l)-(5) of said Decree, provided that the quantities fixed in paragraphs (1) through (5) of Art. II (D) of said Decree shall continue to be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations are finally determined. Additional present perfected rights so adjudicated by such adjustment shall be in annual quantities not to exceed the quantities of mainstream water necessary to supply the consumptive use required for irrigation of the practicably irrigable acres which are included within any area determined to be within a reservation by such final determination of a boundary and for the satisfaction of related uses. The quantities of diversions are to be computed by determining net practicably irrigable acres within each additional area using the methods set forth by the Special Master in this case in his Report to this Court dated December 5, 1960, and by applying the unit diversion quantities thereto, as listed below:
Unit Diversion Quantity Acre-Feet Indian Reservation Per Irrigable Acre
Cocopah 6.37
Colorado River 6.67
Chemehuevi 5.97
Ft. Mojave 6.46
Ft. Yuma 6.67
The foregoing reference to a quantity of water necessary to supply consumptive use required for irrigation, and as that provision is included within paragraphs (1) through (5) of Art. II (D) of said Decree, shall constitute the means of determining quantity of adjudicated water rights but shall not constitute a restriction of the usage of them to irrigation or other agricultural application. If all or part of the adjudicated water rights of any of the five Indian Reservations is used other than for irrigation or other agricultural application, the total consumptive use, as that term is defined in Art. I (A) of said Decree, for said Reservation shall not exceed the consumptive use that would have resulted if the diversions listed in subparagraph (i) of paragraphs (1) through (5) of Art. II (D) of said Decree and the equivalent portions of any supplement thereto had been used for irrigation of the number of acres specified for that Reservation in said paragraphs and supplement and for the satisfaction of related uses. Effect shall be given to this paragraph notwithstanding the priority dates of the present perfected rights as listed below. However, nothing in this paragraph (5) shall affect the order in which such rights listed below as “MISCELLANEOUS PRESENT PERFECTED RIGHTS” (numbered 7-21 and 29-80 below) shall be satisfied. Furthermore, nothing in this paragraph shall be construed to determine the order of satisfying any other Indian water rights claims not herein specified.
I
ARIZONA
A. Federal Establishments’ Present Perfected Rights
The federal establishments named in Art. II, subdivision (D), paragraphs (2), (4), and (5) of the Decree entered March 9, 1964, in this case, such rights having been decreed in Art. II:
Defined Area of Land Annual Diversions Net Priority (acre-feet) Acres1 Date
1) Cocopah Indian Reservation 2,744 431 Sept. 27, 1917
2) Colorado River Indian Reservation 358,400 53,768 Mar. 3, 1865 252,016 37,808 Nov. 22, 1873 51,986 7,799 Nov. 16, 1874
3) Fort Mojave Indian Reservation 27,969 4,327 Sept. 18, 1890 68,447 10,589 Feb. 2, 1911
B. Water Projects’ Present Perfected Rights
(4) The Valley Division, Yuma Project in annual quantities not to exceed (i) 254,200 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 43,562 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901.
(5) The Yuma Auxiliary Project, Unit B in annual quantities not to exceed (i) 6,800 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 1,225 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.
(6) The North Gila Valley Unit, Yuma Mesa Division, Gila Project in annual quantities not to exceed (i) 24,500 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 4,030 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.
C. Miscellaneous Present Perfected Rights
1. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed acre-feet of diversion from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed :
Defined Area of Land Annual Diversions Priority (acre-feet) Date
7) 160 acres in Lots 21, 24, and 25, Sec. 29 and Lots 15, 16, 17 and 18, and the SW% of the SE^, Sec. 30, T.16S., R.22E., San Bernardino Base and Meridian, Yuma County, Arizona. (Powers) 2 960 1915
8) Lots 11, 12, 13, 19, 20, 22 and SVs of SW%, Sec. 30, T.16S., R.22E., San Bernardino Base and Meridian, Yuma County, Arizona. (United States) 1,140 1915
Footnotes to table items 7 through 25 are on p. 428.
Defined Area of Land Annual Diversions (acre-feet) Priority-Date
9) 60 acres within Lot 2, Sec. 15 and Lots 1 and 2, Sec. 22, T.10N., R.19W, G&SRBM. (Graham) 2 360 1910
10) 180 acres within the N% of the S% and the S% of the N% of See. 13 and the SW% of the NE14 of Sec. 14, T.18N., R.22W., G&SRBM. (Hulet)2 1,080 1902
11) 45 acres within the NE% of the SW1^, the SW% of the SW% and the SE% of the SW% of Sec. 11, T.18N., R.22W., G&SRBM. 80 acres within the N% of the SW% of Sec. 11, T.18N., R.22W., G&SRBM. 10 acres within the NW% of the NE% of the NE% of Sec. 15, T.18N., R.22W., G&SRBM. 40 acres within the SE% of the SE^4 of Sec. 15, T.18N., R.22W., G&SRBM. (Hursehler) 1,050 1902
12) 40 acres within Sec. 13, T.17N., R.22W., G&SRBM. (Mifier)2 240 1902
13) 120 acres within Sec. 27, T.18N., R.21W.,) G&SRBM. 15 acres within the NW14 of the NW%, Sec. 23, T.18N., R.22W., G&SRBM. (McKellips and Granite Reef Farms) 810 1902
14) 180 acres within the NW% of the NE^, the SW^ of the NE(4, the NE% of the SW%, the NW% of the SE%, the NE% of the SE%, and the SW*4 of the SE%, and the SE% of the SE^, Sec. 31, T.18N., R.21W., G&SRBM. (Sherrill & Lafollette) 4 1,080 1902
Defined Area of Land Annual Diversions (acre-feet) Priority Date
16) 53.89 acres as follows: Beginning at a point 995.1 feet easterly of the NW comer of the NE% of Sec. 10, T.8S., R.22W., Gila and Salt River Base and Meridian; on the northerly boundary of the said NE%, which is the true point of beginning, then in a southerly direction to a point on the southerly boundary of the said NE% which is 991.2 feet E. of the SW comer of said NE% thence easterly along the S. line of the NE%, a distance of 807.3 feet to a point, thence N. 0°7' W., 768.8 feet to a point, thence E. 124.0 feet to a point, thence northerly 0°14' W., 1,067.6 feet to a point, thence E. 130 feet to a point, thence northerly 0°20' W., 405.2 feet to a point, thence northerly 63° 10' W., 506.0 feet to a point, thence northerly 90° 15' W., 562.9 feet to a point on the northerly boundary of the said NE^, thence easterly along the said northerly boundary of the said NE^, 116.6 feet to the true point of the beginning containing 53.89 acres. All as more particularly described and set forth in that survey executed by Thomas A. Yowell, Land Surveyor on June 24, 1969. (Molina) 4 318 1928
16) 60 acres within the NW1/^ of the NW% and the north half of the SW% of the NW^A of Sec. 14, T.8S., R.22W., G&SRBM. 70 acres within the S% of the SW^A of the ’ SW^, and the W% of the SW%, Sec. 14, T.8S., R.22W., G&SRBM. (Sturges) 4 780 1925
17) 120 acres within the N% NE^, NE% NW%, Section 23, T.18N., R.22W., G&SRBM. (Zozaya) 4 720 1912
Defined Area of Laud Annual Diversions Priority (acre-feet) Date
18) 40 acres in the W% of the NE% of Section 30, and 60 acres in the W% of the SE% of Section 30, and 60 acres in the E% of the NW% of Section 31, comprising a total of 160 acres all in Township 18 North, Range 21 West of the G&SRBM. (Swan) 4 960 1902
19) 7 acres in the East 300 feet of the W% of Lot 1 (Lot 1, being the SE1^ SE1^, 40 acres mofe or less), Section 28, Township 16 South, Range 22 East, San Bernardino Meridian, lying North of U. S. Bureau of Reclamation levee right of way. EXCEPT that portion conveyed to the United States of America by instrument recorded in Docket 417, page 150 EXCEPTING any portion of the East 300 feet of W% of Lot 1 within the natural bed of the Colorado River below the line of ordinary high water and also EXCEPTING any artificial accretions water-ward of said line of ordinary high water, all of which comprises approximately seven (7) acres. (Milton and Jean Phillips) 4 42 1900
2. The following miscellaneous present perfected rights in Arizona in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is. less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed:
Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date
20) City of Parker2 t-i CD O Ox O O O CO CD
21) City of Yuma2 f — i QO CD ÜO OO t*CO CO CO <N
II
CALIFORNIA
A. Federal Establishments’ Present Perfected Rights
The federal establishments named in Art. II, subdivision (D), paragraphs (1), (3), (4), and (5) of the Decree entered March 9, 1964, in this case such rights having been decreed by Art. II:
Annual Diversions Net Priority Defined Area of Land _ (acre-feet) Acres5 Date
1,900 Feb. 2,1907 22) Chemehuevi Indian Reservation 11,340
7,743 Jam. 9,1884 23) Yuma Indian Reservation 51,616
Nov. 22,1873 Nov. 16,1874 May 15,1876 24) Colorado River Indian Reservation 10,745 40,241 3,760 Qi 1 — i Ox W0 'Oi Q CO H lil Nl W
2119 Sept. 18,1890 25) Fort Mojave Indian Reservation 13,698
B. Water Districts' and Projects’ Present Perfected Rights
26) The Palo Verde Irrigation District in annual quantities not to exceed (i) 219,780 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 33,604 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1877.
27) The Imperial Irrigation District in annual quantities not to exceed (i) 2,600,000 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 424,145 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of 1901.
28) The Reservation Division, Yuma Project, California (non-Indian portion) in annual quantities not to exceed (i) 38,270 acre-feet of diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use required for irrigation of 6,294 acres and for the satisfaction of related uses, whichever of (i) or (ii) is less, with a priority date of July 8, 1905.
C. Miscellaneous Present Perfected Rights
1. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of diversions from the mainstream to supply the consumptive use required for irrigation and the satisfaction of related uses within the boundaries of the land described and with the priority dates listed: ■
Annual Diversions Priority Defined Area of Land (acre-feet) Date
29) 130 acres within Lots 1, 2, and 3, SE(4 of 780 1856 NE*4 of Section 27, T.16S., R.22E., S.B.B. & M. (Wavers)6
Footnotes to table items 29 through 80 are on p. 435.
Annual Diversions Defined Area of Land (acre-feet) Priority Date
30) 40 acres within W%, W% of E% of Section 1, 240 T.9N., R.22E., S.B.B. & M. (Stephenson) 8 1923
31) 20 acres within Lots 1 and 2, Sec. 19, T.13S., 120 R.23E., and Lots 2, 3, and 4 of Sec. 24, T.13S., R.22E., S.B.B. & M. (Mendivil)6 1893
32) 30 acres within NW% of SE%, S% of SE^, 180 Sec. 24, and NW% of NE%, Sec. 25, all in T.9S., R.21E., S.B.B. & M. (Grannis)6 1928
33) 25 acres within Lot 6, Sec. 5; and Lots 1 and 2, 150 SW% of NEÜ, and NE% of SE% of Sec. 8, and Lots 1 & 2 of Sec. 9, all in T.13S., R.22E., S.B.B. & M. (Morgan)6 1913
34) 18 acres within E% of NW% and W% of 108 NE% of Sec. 14, T.10S., R.21E., S.B.B. & M. (Milpitas) 6 1918
35) 10 acres within of NE%, SE% of NE%, 60 and NE% of SE*4, Sec. 30, T.9N., R.23E., S.B.B. & M. (Simons) 6 1889
36) 16 acres within E% of NW% and N% of 96 SW14, See. 12, T.9N., R.22E., S.B.B. & M. (Colo. R. Sportsmen’s League) 8 1921
37) 11.5 acres within E% of NW1^, Sec. 1, T.10S., 69 R.21E., S.B.B. & M. (Milpitas) 8 1914
38) 11 acres within S% of SW%, Sec. 12, T.9N., 66 R.22E., S.B.B. & M. (Andrade) 8 1921
39) 6 acres within Lots 2, 3, and 7 and NE% of 36 SW%, Sec. 19, T.9N., R.23E., S.B.B. & M. (Reynolds)8 1904
Defined Area of Land Annual Diversions Priority (acre-feet) Date
40) 10 acres within N% of NE%, SE% of NE^ 60 1905 and NE% of SE%, Sec. 24, T.9N., R.22E., S.B.B. & M. (Cooper)6
41) 20 acres within SW% of SW% (Lot 8), Sec. 19, 120 1925 T.9N., R.23E., S.B.B. & M. (Chagnon) 7
42) 20 acres within NE& of SW%, NV2 of SE%, 120 1915 SWA of SE&, Sec. 14, T.9S., R.21E., S.B.B. & M. (Lawrence) 7
2. The following miscellaneous present perfected rights in California in annual quantities of water not to exceed the listed number of acre-feet of (i) diversions from the mainstream or (ii) the quantity of mainstream water necessary to supply the consumptive use, whichever of (i) or (ii) is less, for domestic, municipal, and industrial purposes within the boundaries of the land described and with the priority dates listed:
Annual Annual Consumptive Diversions Use Priority Defined Area of Land (acre-feet) (acre-feet) Date
43) City of Needles 1,500 950 1885
44) Portions of: Secs. 5, 6, 7 & 8, T.7N., 1,260 273 1896 R.24E.; Sec. 1, T.7N., R.23E.; Secs. 4, 5, 9, 10, 15, 22, 23, 25, 26, 35, & 36, T.8N., R.23E.; Secs. 19, 29, 30, 32 & 33, T.9N., R.23E., S.B.B. & M. (Atchison, Topeka and Santa Fe Railway Co.) 6
45) Lots 1, 2, 3, 4, 5, & SW% NW±4 of 1.0 0.6 1921 Sec. 5, T.13S., R.22E., S.B.B. & M. (Conger)7
Annual Annual Consumptive Diversions Use Defined Area of Land (acre-feet) (acre-feet) Priority Date
46) Lots 1, 2, 3, 4 of Sec. 32, T.11S., R.22E., 1.0 S.B.B. & M. (G. Draper) 7 0.6 1923
47) Lots 1, 2, 3, 4, and SE% SW% of Sec. 1.0 20, T.11S., R.22E., S.B.B. & M. (McDonough) 7 0.6 1919
48) SW*4 of See. 25, T.8S., R.22E., S.B.B. 1.0 & M. (Faubion) 7 0.6 1925
49) Wy2 NW% of Sec. 12, T.9N., R.22E., 1.0 S.B.B. & M. (Dudley) 7 0.6 1922
50) N% SEy, and Lots 1 and 2 of Sec. 13, 1.0 T.8S., R.22E., S.B.B. & M. (Douglas) 7 0.6 1916
51) N% SWÁ, NW% SE%, Lots 6 and 7, 1.0 Sec. 5, T.9S., R.22E., S.B.B. & M. (Beauchamp) 7 0.6 1924
52) NE*4 SE%, SE% NE%, and Lot 1, 1.0 Sec. 26, T.8S., R.22E., S.B.B. & M. (Clark) 7 0.6 1916
53) N% SW%, NW% SEyé, SW% NE%, 1.0 Sec. 13, T.9S., R.21E., S.B.B. & M. (Lawrence) 7 0.6 1915
54) N% NE%, W/z NWVi, Sec. 13, T.9S., 1.0 R.21E., S.B.B. & M. (J. Graham) 7 0.6 1914
55) SE%, Sec. 1, T.9S., R.21E., S.B.B. & M. 1.0 (Geiger)7 0.6 1910
Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority-Date
56) Fractional of SW% (Lot 6) Sec. 1.0 6, T.9S., R.22E., S.B.B. & M. (Schneider) 7 0.6 1917
57) Lot 1, See. 15; Lots 1 & 2, Sec. 14; 1.0 Lots 1 & 2, Sec. 23; all in T.13S., R.22E., S.B.B. & M. (Martinez) 7 0.6 1895
58) NE14, Sec. 22, T.9S., R.21E, S.B.B. & 1.0 M. (Earle) 7 0.6 1925
59) NE& SE%, Sec. 22, T.9S., R.21E., 1.0 S.B.B. & M. (Diehl)7 0.6 1928
60) N% NW%, Ni/2 NE%, Sec. 23, T.9S., 1.0 R.21E., S.B.B. & M. (Reid)7 0.6 1912
61) Wy2 SW%, Sec. 23, T.9S., R.‘2lE., 1.0 S.B.B. & M. (Graham)7 0.6 1916
62) Sy2 NW%, NE% SW%, SW% NE%, 1.0 Sec. 23, T.9S., R.21E., S.B.B. & M. (Cate)7 0.6 1919
63) SE% NE%, Ny2 SE%, SE% SEPA, 1.0 Sec. 23, T.9S., R.21E., S.B.B. & M. (McGee)7 0.6 1924
64) SW% SEPA, SE% SW%, Sec. 23, NE% 1.0 NW%, NW% NE%, Sec. 26; afi in T.9S., R.21E., S.B.B. & M. (Stafiard) 7 0.6 1924
65) W2 SEPA, SE% SE%, Sec. 26, T.9S., 1.0 R.21E., S.B.B. & M. (Randolph)7 0.6 1926
Annual Diversions Defined Area of Land (acre-feet) Annual Consumptive Use (acre-feet) Priority Date
66) E% NE%, SW% NE%, SE% NW%, 1-0 Sec. 26, T.9S., R.21E., S.B.B. & M. (Stallard)7 0.6 1928
67) S% SWJ4, See. 13, N% NW%, Sec. 1.0 24; all in T.9S., R.21E., S.B.B. & M. (Keefe)7 0.6 1926
68) SE14 NW%, NW% SE%, Lots 2, 3 & 1.0 4, Sec. 25, T.13S., R.23E., S.B.B. & M. (C. Ferguson)7 0.6 1903
69) Lots 4 & 7, Sec. 6; Lots 1 & 2, Sec. 7; 1.0 all in T.14S., R.24E., S.B.B. & M. (W. Ferguson)7 0.6 1903
70) SW(4 SE}4, Lots 2, 3, and 4, Sec. 24, 1.0 T.12S., R.21E., Lot 2, Sec. 19, T.12S., R.22E., S.B.B. & M. (Vaulin)7 0.6 1920
71) Lots 1, 2, 3 and 4, Sec. 25, T.12S., 1.0 R.21E., S.B.B. & M. (Salisbury)7 0.6 1920
72) Lots 2, 3, SE% SE%, Sec. 15, NE% 1.0 NE%, Sec. 22; all in T.13S., R.22E., 5.B.B. & M. (Hadlock)7 0.6 1924
73) SW% NE%, SE(4 NW)4, and Lots 7 1.0 & 8, Sec. 6, T.9S., R.22E., S.B.B. & M. (Streeter) 7 0.6 1903
74) Lot 4, Sec. 5; Lots 1 & 2, Sec. 7; Lots 1.0 1 & 2, Sec. 8; Lot 1, Sec. 18; all in T.12S., R.22E., S.B.B. & M. (J. Draper) 7 0.6 1903
Defined Area of Land Annual Annual Consumptive Diversions Use (acre-feet) (acre-feet) Priority-Date
75) SW% NW%, Sec. 5; SE% NE% and 1.0 Lot 9, Sec. 6; all in T.9S., R.22E., S.B.B. & M. (Fitz) ^ 0.6 1912
76) NW% NE%, Sec. 26; Lots 2 & 3, 1.0 W/2 SE%, Sec. 23; all in T.8S., R.22E., S.B.B. & M. (Williams)7 0.6 1909
77) Lots 1, 2, 3, 4, & 5, Sec. 25, T.8S., 1.0 R.22E., S.B.B. & M. (Estrada)7 0.6 1928
78) S% NW%, Lot 1, frac. NE% SW%, 1.0 Sec. 25, T.9S., R.21E., S.B.B. & M. (Whittle)7 0.6 1925
79) W/z NW%, See. 25; S% SW%, Sec. 1.0 24; all in T.9S., R.21E., S.B.B. & M. (Corington)7 0.6 1928
80) Sy2 NW%, N% SW%, See. 24, T.9S., 1.0 R.21E., S.B.B. & M. (Tolliver) 0.6 1928
III
NEVADA
A. Federal Establishments’ Present Perfected Rights
The federal establishments named in Art. II, subdivision (D), paragraphs (5) and (6) of the Decree entered on March 9, 1964, in this case, such rights having been decreed by Art. II:
Annual Diversions Net Priority-Defined Area of Land (acre-feet) Acres Date
81) 12,534 1,939 s Sept.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_casetyp1_1-2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Appellee, Charles Lindburg CARTER, Appellant.
No. 20099.
United States Court of Appeals, Eighth Circuit.
Sept. 28, 1970.
Emmett Colvin, Jr., Dallas, Tex., and George E. Cochran, Fort Worth, Tex., for appellant.
Bethel B. Larey, U. S. Atty., and James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for appellee.
Before VOGEL, GIBSOÑ and BRIGHT, Circuit Judges.
VOGEL, Circuit Judge.
Charles Lindburg Carter, defendant-appellant, was indicted by a grand jury which charged:
“That on or about August 23, 1968, in the Western District of Arkansas, at Texarkana, Arkansas, Charles Lindburg Carter did knowingly and wilfully transport in interstate commerce from a point in Texarkana, Texas, to Texarkana, Arkansas, a certain stolen motor vehicle, to-wit: a 1967 Ford, bearing vehicle identification number 7A56C109119, the property of Bill Baker Used Cars, 10th and Texas Avenue, Texarkana, Texas, knowing the same to have been stolen, in violation of 18 U.S.C. 2312.”
He was tried before a jury, found guilty, and thereupon sentenced to three years’ imprisonment. On appeal, he raises the single contention that
“Where an issue was submitted to the jury as to the admissibility of the confession, the trial judge was in error in failing to conduct a hearing outside the presence of the jury and in failing to make a record determination as to the admissibility despite defendant’s failure to so request.”
Finding no error, we affirm.
A brief résumé of the facts in connection with the theft and transportation across state lines is necessary. On August 17, 1968, the defendant appeared at the Bill Baker Used Car Lot in Texar-kana, Texas, representing himself as being in the market for buying a car. He requested and was granted permission to drive a 1967 red Ford Galaxie, during which time he removed two keys from the car before returning it to the car lot. Five days later, on August 22, 1968, after business hours, defendant returned to the used car lot at approximately 9:00 or 9:30 P.M. and, using one of the stolen keys obtained August 17, 1968, drove the vehicle from the lot and from the State of Texas into the State of Arkansas. On the same evening, the owner of the car lot passed his place of business and noticed that the car in question was missing. He immediately reported the loss to the Texas and Arkansas law enforcement officers. About 4:30 the following morning, August 23rd, Arkansas police, while on routine patrol, discovered the stolen vehicle behind a business establishment, the motor running, blinker lights flashing and the defendant in the front seat behind the wheel in an intoxicated state. In answer to the questions, “Did you interrogate him? Did he make any statements to you at the time?”, one of the arresting officers replied, “No, sir.” The officer was asked, “Was he in any condition to make any statements?” He answered, “He wasn’t in much condition, he didn’t make any statements to me.” Defendant was placed under arrest and taken to the police station.
Some nine or ten hours thereafter James Weis, a Special Agent for the FBI, interviewed Carter while the latter was in jail, obtaining a signed statement with reference to the offense herein charged. Agent Weis, after testifying that he showed Carter his credentials and advised him of his rights prior to the interview, stated:
“Q When you advised him of his rights, what rights did you advise him of?
“A I read the standard warning and waiver form to him, and then presented it to him. This warning and waiver form states as follows: ‘Before we ask you any questions you must understand your rights. You have a right to remain silent, anything you say can be used against you in court, you have a right to talk to a lawyer for advice before we ask you any questions, or to have him with you during the questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have a right to stop answering at any time when you talked to a lawyer. I have read this statement of my rights and understand what my rights are and am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I’m doing. No promises or threats have been made to me, and no pressure or coercion of any kind has been used against me.’
“Q Did he make a statement freely and voluntarily and without any promises of reward or coercion ?
“A. That’s right.
“Q About what time of the day was it when the statement was made ?
“A The statement itself commenced at 2:11 P.M., and it was completed at 2:33 P.M. At 2:33 P.M. the statement was given to Carter for review, at 2:38 P.M. Carter signed the statement, 8/23/68.
***** *
“Q Was Mr. Carter sober and in full control of himself, of his physical and mental faculties at that time?
“A Yes, sir.
“Q After you introduced yourself and advised him of all of his rights, did you present a waiver form ?
“A I did, sir. I gave him the waiver form — I advised him of his rights orally at 1:21, after advising him of his rights I gave him the waiver form which he read. He said that he understood it and signed it.
“Q. After he did that — after Mr. Carter did that, then did he make a statement to you?
“A Yes, sir, the statement was made at 2:11 P.M.”
The waiver signed by Carter was offered in evidence, at which time the court asked defendant’s personally selected and employed counsel if there was any objection, to which counsel replied, “No objection.”
After signing the waiver, the defendant made a written statement to Agent Weis, which he signed at 2:38 P.M. Such signed statement read as follows:
“I, Charles Lindburg Carter, do voluntarily make this statement to James D. Weis, who has identified himself as a Special Agent of the FBI. I have been advised of my rights by SA James Weis, and I waived these rights on a signed waiver form. I was born November 20, 1928, at Hattiesburg, Mississippi, and my parents are O. D. Carter and Ellen Carter. I have a 12th grade education and can read, write and understand the English language.
“On August 17, 1968, I went to Bill Baker’s Used Car Lot, Texas Avenue, Texarkana, Texas, on the pretense of purchasing a car. I took a 1967 Ford Galaxie, four door, red in color, for a test drive alone on the pretense of buying the car. I returned the car approximately one hour later that same day to Bill Baker’s Used Car Lot. When I returned the car I kept two keys from the car without the knowledge of Mr. Baker,
“On August 22, 1968, at approximately 9:00 P.M., I went to Bill Baker’s Used Car Lot and using the key which I kept, took the 1967 Ford Gal-axie, four door, red in color, which I had taken for a test drive on August 17, 1968. The Used Car Lot was closed at the time I took this car, and I did not have Mr. Baker’s permission to use the car.
“I drove the car to the Starlight Ballroom on Highway 67 north of Texarkana, Arkansas, where I drank too much and became intoxicated. During the course of the evening, August the 22nd-23rd, ’68, the battery went dead in the car, and I hired a Yellow Cab to take me to the L. E. Meyers Construction Company where I am employed. There I got a large ten foot chain which we used to tow the 1967 Ford with the cab. Early in the morning hours I was apprehended by the Texarkana, Arkansas, Police Department on August 23, 1968. I intended to take the car back to Bill Baker’s Used Car Lot early in the morning of August 23, 1968, before they opened for business.
“I have read the above statement consisting of this page and one additional page. I now sign both pages because the statement is true.”
The statement was signed “Charles L. Carter”, 8/23/68 at 2:38 P.M. When the statement was offered into evidence before the jury, the court again asked defendant’s counsel if there was any objection and received the reply, “No objection.” The defendant did not testify.
In instructing the jury, the trial court gave the standard instruction with reference to confessions, taken in its entirety from Mathes & Devitt, Federal Jury Practice and Instructions, § 8.16, Confession — Voluntary, page 101, as follows:
“A confession is an admission by the defendant of all the material facts constituting the crime charged. The very nature of a confession requires that the circumstances surrounding it be subject to careful scrutiny always, in order to determine surely whether the confession was voluntarily and intentionally made.
“If the evidence in the case does not convince beyond a reasonable doubt that a confession was made voluntarily and intentionally, the jury should disregard it entirely; on the other hand, if the evidence in the case does show beyond a reasonable doubt that a confession was in fact voluntarily and intentionally made by a defendant, the jury should consider it as evidence in the case against the defendant who voluntarily and intentionally made the confession.”
At the close of all of the instructions, and out of the presence and hearing of the jury, the court inquired:
“THE COURT: Any questions or objections, or request for additional instruction on behalf of the Government?
“MR. GUTENSOHN: None on behalf of the Government.
“THE COURT: All right, Mr. Potter, on behalf of the Defendant?
“MR. POTTER: None on behalf of the Defendant.”
On this record we are asked to hold that under Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and Sims v. Georgia, 1967, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593, that the case should be reversed or that it should be remanded to the District Court for full hearing on the voluntariness of the confession. We do not agree. Among the reasons for holding that there was no error on the part of the trial court in failing to give a Jackson v. Denno hearing are: (1) Some nine to ten hours had elapsed between 4:30 in the morning when defendant was found asleep or intoxicated and the time he was interviewed and the waivers made and the statement given to the FBI; (2) the undisputed testimony is that at that time, that is when interviewed by the FBI, Carter was sober and in full control of himself and his physical and mental faculties. (3) Carter was advised of his rights orally, given a written waiver form, which he read, stating that he understood it, and he then signed it. (4) Carter signed a written statement claiming that he did so voluntarily. (5) Both written waiver and written statement were received in evidence without objection and with defendant’s counsel in each instance stating that there was no objection to the introduction of the waiver or the statement. (6) No objection to or exception to the instructions to the jury was taken by defendant’s counsel, although he was specifically asked by the court if the defendant had any objections or exceptions. (7) In defendant’s counsel’s argument to the jury he made no claim whatsoever that the statement given by the defendant to the FBI was not voluntary. As a matter of fact, he capitalized on the statement, referred to it, and pointed out to the jury that nowhere was the word “stolen” used. He also referred to the fact that the defendant in the statement claimed that although he took the car, he intended to take it back — thus claiming lack of intent to steal.
Defendant maintains that the mere giving to the jury of an instruction on the voluntariness of a confession creates the necessity for a Jackson v. Den-no hearing. Among other cases, which we find distinguishable on their facts, defendant directs our attention to People v. Howie, N.Y., 1969, 38 A.D.2d 648, 305 N.Y.S.2d 295, and People v. Huntley, N.Y., 1965, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179. Read together, Howie and Huntley implement Jackson v. Denno for the New York state courts. In essence, they require advance notice of the use of a confession by the prosecution coupled with reply notice of objection thereto by the defense, necessitating a Jackson v. Denno hearing. Moreover, Howie would seem to hold that even if there is no objection to the confession, the trial court may not instruct on the issue of voluntariness without also holding a separate hearing. If this is the meaning of Howie, we find it unpersuasive. The Supreme Court, in Jackson v. Denno, at page 380 of 378 U.S., at page 1783 of 84 S.Ct., made reference to our present factual situation in this fashion:
“A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined.” (Emphasis supplied.)
By inference we conclude that a defendant, failing to object, is entitled to no hearing on voluntariness, absent the exceptional circumstances suggested in United States v. Taylor, 7 Cir., 1967, 374 F.2d 753, 756, and discussed in Hizel v. Sigler, 8 Cir., 1970, 430 F.2d 1398. Such exceptional circumstances are not present here.
Affirmed.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
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songer_usc2
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18
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What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 5. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
CHRYSLER CORPORATION, Appellant in No. 76-1970 v. James A. SCHLESINGER, Secretary United States Department of Defense, Lt. Gen. Wallace Robinson, Director, Defense Supply Agency, Philip J. Davis, Director, Office of Federal Contract Compliance, and John Dunlop, Secretary United States Department of Labor, Appellants in No. 76-2238.
Nos. 76-1970 and 76-2238.
United States Court of Appeals, Third Circuit.
Argued June 13, 1977.
Decided Sept. 26, 1977.
As Amended Oct. 18, 1977.
Burt A. Braverman, Borovsky, Smetana, Ehrlich & Kronenberg, Alan Raywid, Washington, D. C., A. William Rolf, Detroit, Mich., for Chrysler Corp.; Michael Goldman, David Anderson, Potter, Anderson & Corroon, Wilmington, Del., of counsel.
Irving Jaffe, Acting Asst. Atty. Gen., Washington, D. C., W. Laird Stabler, Jr., U. S. Atty., Wilmington, Del., Paul Blanken-stein, Morton Hollander, Attys., Appellate Section, Civ. Div., Dept, of Justice, Washington, D. C., for federal appellants.
Victor H. Kramer, Charles E. Hill, Washington, D. C., for amicus.
Before VAN DUSEN, ADAMS and GIBBONS, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
Plaintiff, Chrysler Corporation (Chrysler), appeals and defendants, federal government officials, cross-appeal from a final judgment of the district court in an action for injunctive and declaratory relief aimed at preventing public disclosure of certain documents furnished by Chrysler to federal governmental agencies. The action was originally prompted by the decision of the defendants to honor a request by third parties for public disclosure of the contested documents under the Freedom of Information Act (FOIA). The district court, after a trial de novo, permanently enjoined public disclosure of certain portions of the contested documents, but denied the full range of injunctive relief requested by Chrysler, and also denied its request for a declaratory judgment that any future disclosure of similar documents would violate federal law. Chrysler appeals from the denial of the full declaratory and injunctive relief it requested. The federal government defendants in their cross-appeal originally contended (1) that Chrysler has no right to judicial review of an agency decision to disclose information requested by third parties under the FOIA; (2) that even if judicial review is available, the scope of review is limited to that defined in the Administrative Procedure Act and does not include a trial de novo; and (3) that even if a trial de novo was proper, the district court erred in enjoining disclosure of portions of the contested documents. After the government’s initial brief was filed in this court, the Solicitor General, in a petition for a writ of certiorari to review the decision of the Fourth Circuit in Westinghouse Elec. Corp. v. Schlesinger, 542 F.2d 1190 (4th Cir. 1976), cert. denied sub nom., Brown v. Westinghouse Elec. Corp., 431 U.S. 924, 97 S.Ct. 2199, 53 L.Ed.2d 239 (1977), took the position that the exceptions to judicial review listed in 5 U.S.C. § 701 were inapplicable to so-called reverse FOIA actions and that Pub.L.No. 94-574, 90 Stat. 2721, eliminated federal sovereign immunity as a bar to such review. We have been advised by the Justice Department that it is now the government’s position that judicial review is available to parties objecting to disclosure of information under the FOIA, but that the Administrative Procedure Act controls our scope of review. Chrysler contended in the district court, and continues to urge here, that any disclosure of the contested documents was prohibited by several federal statutes to which specific reference will be made hereafter and by the due process clause of the fifth amendment. It maintained in the district court, and urges here, that a trial de novo was proper. Because we are in substantial agreement with the government’s present position, we vacate the judgment of the district court and remand for further proceedings.
I
THE REGULATORY FRAMEWORK
Chrysler is a government contractor. As a condition of its doing business with the government it is required by an Executive Order, and regulations promulgated thereunder by the Secretary of Labor, to employ and treat all employees without regard to race, color, religion, sex, or national origin and to take affirmative action to eliminate discrimination in employment. In order to monitor compliance with these requirements, federal regulations require that every government contractor or subcontractor with fifty or more employees and a contract valued at $50,000 or more prepare and file an annual Employer Information Report, known as an EEO-1 report. The EEO-1 report contains data on the number of women and minority group members employed. Contractors must also prepare and make available for inspection by appropriate federal agencies an Affirmative Action Program (AAP), providing detailed information on their past and projected employment of women and minority group members. The AAP must contain a “utilization analysis” which describes the occupational levels of minority personnel employed by the contractor and “goals and time tables” by which opportunities for minority group members can be improved. The failure of a contractor to comply with the Executive Order and regulations can result in the cancellation, termination, or suspension of existing contracts and debarment from future awards.
The Secretary of Labor has delegated administrative responsibility for the enforcement of the Executive Order to the Director of the Office of Federal Contract Compliance' (OFCC). The Director of OFCC has designated various federal agencies as “compliance agencies.” These compliance agencies have primary responsibility for assuring adherence to the Executive Order by contractors within certain geographic areas or industrial classifications. In Chrysler’s case the Defense Supply Agency of the Department of Defense (DSA) is the designated compliance agency. As part of its monitoring duties DSA has conducted “compliance reviews” of Chrysler’s employment practices. These reviews consist of an examination of Chrysler’s EEO-1 and AAP documents and on site inspections of its facilities. Compliance reviews result in a compliance review report (CRR), setting forth information supplied by the contractor, an analysis of his performance, and recommendations for sanctions or corrective measures. DSA is also responsible for investigation and resolution of complaints of violations of the Executive Order and must file a “complaint investigation report” (CIR) with OFCC within sixty days of the receipt of a complaint.
Regulations promulgated by the Secretary of Labor contain rules providing for access by the public to information in the records of OFCC or its various compliance agencies.
These regulations implement 5 U.S.C. § 552, the Freedom of Information Act and supplement the policy and regulations of the Department of Labor, 29 C.F.R. Part 70. It is the policy of the OFCC to disclose information to the public and to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment..
41 C.F.R. § 60-40.1. Consistent with the general policy of disclosure to aid in eliminating employment discrimination, the regulations provide:
Upon the request of any person for identifiable records obtained or generated pursuant to Executive Order 11246 (as amended) such records shall be made available for inspection and copying, notwithstanding the applicability of the exemption from mandatory disclosure set forth in 5 U.S.C. 552 subsection (b), if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC or the Compliance Agencies except in the case of records disclosure of which is prohibited by law.
41 C.F.R. 60-40.2(a). Thus the regulations contain a blanket waiver of any authority the government might have to resist disclosure of any information which falls into one of the nine categories of information which are exempt from mandatory disclosure under the FOIA. OFCC’s regulations also provide that.. all contract compliance documents within the custody of the OFCC and the Compliance Agencies shall be disclosed upon request unless specifically prohibited by law or as limited elsewhere herein.” 41 C.F.R. § 60-40.2(b). This blanket and mandatory disclosure requirement with respect to compliance documents is qualified in 41 C.F.R. § 60-40.3(a), which lists six categories of documents or parts thereof which “are exempt from mandatory disclosure by the OFCC and the compliance agencies, and should be withheld if it is determined that the requested information does not further the public interest and might impede the discharge of any of the functions of the OFCC or the Compliance Agencies.” Thus, even information within these six categories may be disclosed if OFCC determines that such disclosure is in the public interest and does not impede the discharge of the functions of OFCC or its compliance agencies. Finally, 41 C.F.R. §.60-40.4 provides that EEO-1 reports shall be disclosed, even though the same forms are furnished to the Equal Employment Opportunity Commission (EEOC) and EEOC is statutorily prohibited from disclosing EEO-1 reports in its possession.
The contested documents in this case include Chrysler’s EEO-1 reports and information which falls under three of the six exempt categories defined in 41 C.F.R. § 60-40.3(a), namely: (1) those parts of Chrysler’s AAP’s which contain confidential commercial information indicating that a contractor plans major changes or shifts in his personnel requirements not yet publicly disclosed, (2) those parts of Chrysler’s AAP’s which set forth staffing patterns and pay scales the release of which would injure the business or financial position of the contractor, and (3) compliance investigation files and related documents to the extent that such information constitutes trade secrets and confidential commercial or financial information.
II
THE AGENCY PROCEEDINGS
On May 14, 1975, DSA notified Chrysler that third parties had requested under the FOIA the disclosure of the 1974 AAP of Chrysler’s Newark, Delaware, assembly plant and the October 1974 CIR for that facility. Chrysler, on May 23, 1975, objected to the requested disclosure of the AAP, relying on the FOIA exemptions and OFCC disclosure regulations. It also requested a copy of the October 1974 CIR, which it had never seen, so that it could determine which parts of it should be treated as confidential. On May 30, 1975, DSA notified Chrysler that it had determined that the Newark AAP and CIR were subject to disclosure under the FOIA and OFCC disclosure rules, that Chrysler would not be furnished with a copy of the CIR prior to disclosure, and that both documents would be disclosed on June 4, 1975.
On July 1, 1975, DSA notified Chrysler that it had received a request under the FOIA for disclosure of the AAP and CRR for Chrysler’s Hamtramck, Michigan, assembly plant. The July 1 notice indicated that under the recent amendments to the FOIA, Pub.L. No. 93-502, 5 U.S.C. § 552(a)(6)(A)(i), DSA was required to make a substantive decision on release of these documents within ten working days of receipt of the request and for that reason could not await the results of an appeal to OFCC under 41 C.F.R. § W-GOA^d) The DSA letter suggested that any comments Chrysler wished 'to make should be made promptly. Chrysler, by letters dated July 3 and July 11, 1975, objected to the disclosure of the documents relating to its Hamtramck plant, contending that both the AAP and CRR were exempt from disclosure under the FOIA and also that disclosure of certain information contained in the AAP, including EEO-1 data, was prohibited by 18 U.S.C. § 1905, by § 709(e) of the Civil Rights Act of 1964,42 U.S.C. § 2000e-8(e), and by 44 U.S.C. § 3508. Chrysler’s letter also requested a copy of the Hamtramck CRR, which it had never seen. On July 18, 1975, DSA replied in part:
Full consideration has been given by this agency to your comments and objections. Nevertheless, a determination has been made to release both the Affirmative Action Plan and the Compliance Review Report to the requester, subject to the exceptions noted in the attached list for the reasons given therein. Your assertions of competitive harm were unsupported by any showing of the likelihood of such harm, and only in one context would we agree to the existence of such a likelihood without such a showing. This is reflected in the first ten exceptions on the attached list.
This decision may be appealed to the Office of Federal Contract Compliance,
Washington, D. C., 20210, within 10 days, per 41 C.F.R. 60-60.4. However, due to the time constraints imposed by the recent amendments to the Act (Public Law 93-502), we cannot wait for the results of such an appeal. Accordingly, the subject documents, with deletions as noted in the attached list, will be released 5 ■working days after your receipt of this letter.
(JA-100). The July 18 letter also made clear DSA’s position that neither 18 U.S.C. § 1905,42 U.S.C. § 2000e-8(e), nor 44 U.S.C. § 3508 applied to any part of the AAP, report, including the EEO-1 data.
Ill
THE DISTRICT COURT PROCEEDINGS
Faced with the DSA determination that the FOIA, as amended, prohibited the agency from withholding disclosure while Chrysler exhausted an administrative appeal to OFCC, Chrysler commenced this action in the district court on June 4, 1975. The initial complaint, which was filed before Chrysler learned of the request for disclosure of the Hamtramck documents, only sought injunctive relief against disclosure of the documents relating to the Newark, Delaware plant and a declaratory judgment that public disclosure of any similar documents was prohibited by law. The district court issued a temporary restraining order which prohibited disclosure of the Newark plant documents and which required the defendants to give Chrysler five days notice prior to the release of any similar documents relating to any of its other facilities. When DSA notified Chrysler of its intention to release the Hamtramck plant documents, it amended the complaint to refer to those documents and obtained from the district court temporary relief covering them as well.
Chrysler’s amended complaint contained three counts. First, Chrysler charged that disclosure of any portion of its AAP’s, EEO-l’s, CIR’s, or CRR’s relating to any of its facilities would be unlawful under exemptions (b)(3)(4)(5) and (7) of the FOIA, 5 U.S.C. § 552(b)(3)(4)(5) and (7), under 42 U.S.C. § 2000e-8(e), under 18 U.S.C. § 1905, and under 44 U.S.C. § 3508. Second, it alleged that such disclosure would be an abuse of agency discretion since it would be contrary to 41 C.F.R. § 60-40.3(a) and 29 C.F.R. §§ 70.21, 70.-22, 70.24, and 70.31. Third, it contended that the POIA and OFCC disclosure rules as applied to Chrysler violate due process in that they afford no meaningful right to be heard initially or on appeal before disclosure of Chrysler’s confidential information. By a stipulation and consent order the pendente lite restraints were continued until final hearing. In its pre-trial papers the government defendants objected to the court’s jurisdiction and to the holding of an evidentiary hearing. The court reserved decision on these objections until a decision on the merits. Trial on the merits was held on August 25 and 26, 1975, and thereafter the parties filed a detailed “Stipulation of Facts and Issues.”
The district court’s opinion correctly holds that there is subject matter jurisdiction under 28 U.S.C. § 1331(a). On the merits the court found that part of the information the agency proposed to release, described generically as the “manning tables,” was confidential commercial information, the release of which could cause Chrysler substantial competitive harm. On the basis of this finding the court con-eluded that the manning tables constituted information falling within exemption (b)(4) of the FOIA and was therefore exempt from its mandatory disclosure provisions. The court then reasoned that since the manning tables constituted exempt information under the FOIA, whether DSA possessed the power to disclose these documents was to be determined by reference to other federal disclosure statutes, apart from the FOIA. Thus the court rejected Chrysler’s argument that the FOIA creates a so-called reverse FOIA cause of action based on the theory that Congress, by exempting certain information from mandatory disclosure, intended to prohibit absolutely all agency disclosure of such exempt information under any circumstances. Instead, the court held that 18 U.S.C. § 1905, a criminal statute, made it a crime for a government employee to disclose the manning tables. Observing that the Secretary of Labor, on the authority of 5 U.S.C. § 301, a general statute providing for the use and custody of government records, promulgated 29 C.F.R. § 70.21(a), which forbids disclosure of confidential information the release of which would violate 18 U.S.C. § 1905, the court concluded that DSA was acting in violation of its own regulations and contrary to law. Thus, it construed what it held to be DSA’s governing regulation as consistent with 18 U.S.C. § 1905. It issued the injunction appealed from on the authority of 5 U.S.C. § 706(2)(A) to prevent agency action “not in accordance with law.” The court also held that 42 U.S.C. § 2000e-8(e) was inapplicable and rejected Chrysler’s due process contentions.
IV
DISCUSSION
This case is one of a burgeoning number growing out of the conflict between the demands of federal regulatory agencies, as a necessary by-product of their regulatory activities, for the submission by private businesses of detailed financial, commercial and employee information, which would not voluntarily be disclosed to competitors, and the public access to most information in federal agency files which is mandated by the FOIA. It is, however, the first occasion which requires this Court to consider a reverse FOIA case, in which a corporate plaintiff (the submitter) seeks to enjoin an agency from disclosing submitter-generated business information The case presents several important issues about agency management of such information, about agency discretion to disclose information in the public interest, about submitter rights prior to disclosure, and about the availability of remedies for the prevention of disclosure.
The FOIA requires agencies to disclose upon request any information not falling within one of nine specifically exempted categories. The arguments of Chrysler and other corporate submitters seeking to prevent disclosure break down into three broad categories. First, Chrysler and others have urged that the FOIA itself both prohibits agency disclosure of information falling within any of the nine exemptions and affords an implied cause of action for injunctive or declaratory relief to prevent such disclosure. Second, they have claimed that even if the FOIA does not prohibit agency disclosure of exempt FOIA information, other statutes, such as 18 U.S.C. § 1905 and 42 U.S.C. § 2000e-8(e) do so and afford an implied cause of action. Third, they contend that disclosure of submitter-generated business information that is exempt under the FOIA or protected by some other federal statute or regulation is an abuse of agency discretion subject to judicial review under the Administrative Procedure Act at the behest of a submitter adversely affected by such agency action. The first two categories would afford relief in the form of a trial de novo, while in the third judicial review would be limited to that available under 5 U.S.C. § 706. The posture of this appeal and cross-appeal requires that we address each theory on which a reverse FOIA action could be founded.
A. The Freedom of Information Act
The FOIA expressly creates a cause of action in favor of requesters of information to enjoin federal agencies from withholding information. It does not by its terms provide a cause of action for submitters of information to prevent disclosure. But while there is no express provision for an action by submitters, the FOIA’s nine categories of exempt information reveal a Congressional concern that disclosure of certain information might injure interests in privacy or confidentiality which may be as important as the public’s right to general access to agency information. The fourth FOIA exemption, for example, covers “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” There is ample Congressional history suggesting that Congress sought to afford some protection of submitters’ interest in the confidentiality of such information. Moreover we recognize that disclosure of submitter information is qualitatively different from disclosure of data directly relating to government operations and that the interest in privacy appears stronger with respect to the former than the latter. But while the Congressional concern over confidentiality of submitter information is clear, an intention to make mandatory the non-disclosure of exempt information is less so, and the evidence of an intent to create a submitter cause of action is practically non-existent.
Among the circuits which have considered the issue, the District of Columbia and the Fifth Circuits have held that the FOIA exemptions are permissive and do not mandate agency withholding of exempt information. The Fourth Circuit has held that the exemptions mandate non-disclosure. The Ninth Circuit, while first holding that the exemptions are mandatory, on rehearing withdrew that part of its opinion as premature. The closest the Supreme Court has come to addressing the issue is the statement in E. P. A. v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973), that the FOIA exemptions represent “the congressional determination of the types of information that the Executive Branch must have the option to keep confidential, if it so chooses.” In our view, none of the opinions referred to contains a complete analysis of the myriad problems presented in reverse FOIA cases.
We conclude that Congress in the FOIA intended neither that the exemptions make non-disclosure mandatory, nor that they provide the predicate for an implied cause of action. The two questions are interdependent, since it would obviously be difficult to imply a cause of action under the FOIA to bar government officials from releasing information the disclosure of which Congress intended to leave to agency discretion or other federal disclosure statutes. Both the plain language of § 552(b) and the Congressional reports and debates suggest that no more was intended than a discretionary exception to the general mandatory duty of disclosure. Nor can we ignore the contrast between the FOIA’s express grant of a cause of action for requesters of information and its silence respecting submitter relief. Moreover, we note that when Congress in the Privacy Act of 1974 decided to create a civil cause of action to enjoin agency disclosure of FOIA exempt information, it did so explicitly. See 5 U.S.C. § 552a(g)(l) (Supp. V 1975). But only private persons, not business entities, were afforded this protection. Finally, we think that judicial reconstruction of the statute to imply from the exemptions either a mandatory duty of non-disclosure or a cause of action to prevent disclosure would be inconsistent with the basic purpose of the FOIA, which was not to afford confidentiality, but to overcome restrictive agency interpretations of the original public information section of the Administrative Procedure Act. The general philosophy reflected in the FOIA is that of full agency disclosure to provide the public with speedy access to relevant information. Recognizing an implied cause of action to prevent agency disclosure of exempt FOIA information would, we think, be inconsistent with that general philosophy, since it would place in the hands of interested submitters of information, rather than those of presumably disinterested governmental officials, the authority to take steps which might impede the dissemination of information of public importance. Thus we hold that the FOIA’s language, legislative history, and philosophy of full disclosure bar a construction of the Act which mandates agency withholding of exempt information or recognizes an implied cause of action to prevent the disclosure of such information.
B. Other Non-Disclosure Statutes
Although we conclude that the FOIA does not limit the discretionary power of federal agencies to disclose exempt FOIA information, we recognize that the exercise of this discretionary authority may be prohibited, or substantially curtailed, by other federal non-disclosure statutes. See FAA Administrator v. Robertson, supra, 422 U.S. at 264-66, 95 S.Ct. 2140. Chrysler contends that, apart from the FOIA, at least three non-disclosure statutes prohibit DSA from releasing the contested documents. Our consideration of that contention requires, with respect to each statute, the same dual inquiry we made respecting the FOIA: (1) does the statute forbid disclosure of the documents in issue; and (2) if so, can a private cause of action be implied from it.
1. 18 U.S.C. § 1905.
The statute on which Chrysler and most other reverse FOIA plaintiffs place principal reliance is 18 U.S.C. § 1905. On its face, this broadly worded criminal statute encompasses virtually every category of business information likely to be in the files of any federal agency. However, in Westinghouse Elec. Corp. v. Nuclear Regulatory Commission, supra, we noted that § 1905’s broad non-disclosure prohibitions apply only to disclosures “not authorized by law” and held that information disclosed pursuant to a validly enacted agency regulation is authorized by law. Chrysler urges that in Westinghouse we erred, that an agency regulation does not have the force of law for purposes of § 1905, and that only specific Congressional statutes can authorize the release of information covered by § 1905. Moreover, it urges that even assuming the correctness of Westinghouse, disclosures pursuant to the OFCC disclosure regulations are not authorized by law for purposes of § 1905, because these regulations were adopted under the authority of 5 U.S.C. § 301 and because Congress intended that § 301 not be used to limit the scope of § 1905.
While our discussion of the scope of the “not authorized by law” qualification to § 1905 in Westinghouse was not extended, we are confident that the holding is correct. In Westinghouse we found authority for the promulgation of the Nuclear Regulatory Commission’s disclosure regulations in that agency’s Congressionally enacted enabling act. That holding was consistent with those of the Supreme Court in cases involving the disclosure of information by other federal agencies. Though OFCC has no statutory enabling act, it is authorized to promulgate disclosure regulations under the so-called housekeeping statute, 5 U.S.C. § 301, which provides in part:
The head of an executive department or military department may prescribe regulations for the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.
Section 301 can be traced to the Act of July 27, 1789, Ch. 4, § 4, 1 Stat. 28, dealing with records of the State Department, and the Act of August 7,1789, Ch. 7, § 4,1 Stat. 49, dealing with records of the War Department. Various housekeeping statutes were collected and codified in 1874, and, as codified, granted authority to prescribe disclosure regulations. The present version, and in particular the last sentence, was enacted in 1958. The legislative history makes clear that the addition of the last sentence was aimed at stopping agencies from relying on the housekeeping statute as authority to deny the requests of citizens for information.
In Non-Resident Taxpayers Ass’n v. Municipality of Philadelphia, 478 F.2d 456 (3d Cir. 1973), we held that § 301 authorized a Bureau of the Budget circular that instructs executive departments to furnish information to state and local taxing authorities regarding compensation paid to federal employees. Such a disclosure, absent the regulation, would clearly conflict with the broad language of § 1905. Thus, although we did not expressly address § 1905 in Non-Resident Taxpayers Ass’n, the holding is consistent with our conclusion in Westinghouse, that disclosures pursuant to validly adopted agency regulations are not subject to the strictures of § 1905.
We have been referred to no legislative history suggesting that § 1905, a 1948 codification of a group of statutes applicable to specific agencies was intended to limit the longstanding rulemaking authority under the 1874 codification of the housekeeping statute. Nor do we attach to the statement of Congressman Moss, respecting the 1958 amendment to the housekeeping statute (adding the last sentence of § 301), the same significance as did the District of Columbia Circuit in Charles River Park “A”, Inc. v. Department of HUD, supra, 519 F.2d at 942-43. Relying on Congressman Moss’ statement that the 1958 amendment “does not affect the confidential status of infor'mation given to the government and carefully detailed in Title 18, United States Code, Section 1905.,”, that court concluded that “§ 301 does not authorize regulations limiting the scope of § 1905.” In doing so, however, the court took the statement out of context. Congressman Moss only stated that the amendment would not affect the confidential status of information covered by § 1905. He did not say that the amendment eliminated disclosure authority existing since 1789 or that it eliminated the “authorized by law” qualification in § 1905. Such an interpretation of the 1958 amendment is totally at odds with its central purpose — the elimination of governmental secrecy — as it would transmogrify § 1905 into a weapon for those parties who advocate government secrecy. Thus we adhere to the position we took in NonResident Taxpayers Ass’n, that § 301 is a separate source of agency authority for the promulgation of disclosure regulations and that disclosures pursuant to such regulations are authorized by law and immune from the prohibitions of § 1905. Since the OFCC disclosure regulations are valid under § 301, all disclosures pursuant to those regulations are authorized by law and therefore not subject to § 1905.
Since we find authority for the promulgation of the OFCC disclosure regulations in § 301, we need not consider whether the FOIA itself, properly construed, is an independent source of authority for the promulgation of disclosure regulations for exempt information. Nor need we decide whether, absent § 301, Executive Order 11246, which confers authority on the Secretary of-Labor to adopt “such rules and regulations... as he deems necessary to achieve the' purposes of the order”, is a separate source of authority for such promulgation. Our deferment of these grounds for sustaining the regulations should not be considered an expression of doubt as to these sources of authority, but only of confidence in our prior § 301 holding.
Even if we were incorrect in the Westinghouse holding that agency regulations are laws for purposes of the qualification to § 1905, we would, in any event, réject the proposition that § 1905, would serve as a predicate for a private civil cause of action. Recent pronouncements of the Supreme Court have severely limited' the circumstances in which a federal court may imply a private cause of action from a federal statute. Whatever the merits of this trend, the decisions bind us. Here the criminal statute provides for a fine of not more than $1000, imprisonment for not more than a year, and automatic removal from office upon conviction. The adequacy of these penalties would seem to assure the achievement of the Congressional objectives underlying § 1905. The very breadth of the prohibitions in § 1905 militates against opening the courts to civil suits which may involve substantial problems of construction. Moreover, as we hold hereafter, there is an available remedy under the Administrative Procedure Act, in which judicial review will be enlightened by agency interpretation. We do not believe we can properly imply a cause of action, and thus the right to a trial de novo, from § 1905.
2. 42 U.S.C. § 2000e-8(e)
Section 709(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-8(e), is a criminal statute making it unlawful
for any officer or employee of [EEOC] to make public in any manner whatever any information obtained by [EEOC] pursuant to its authority under this section prior to the institution of any proceeding under this subchapter involving such information.
Like § 1905, the maximum fine is $1000 and the maximum imprisonment one year. And, as with § 1905 and the FOIA, we must determine both whether the prohibition in § 709(e) applies and, if it does, whether a private cause of action for its enforcement may be implied. By its terms § 709(e) applies only to employees of EEOC and only to information obtained by that agency on its own statutory authority. Since it is a criminal statute, ordinary rules of construction would seem to preclude its application, at least in a criminal enforcement context, to officers or employees of a different agency or to information obtained by a different agency under that agency’s separate authority. Two circuits have concluded that OFCC compliance agencies are not governed by the § 709(e) prohibition. Chrysler argues that those cases were wrongly decided, first, because OFCC and EEOC are performing identical antidiscrimination functions and, second, because the EEO-1 reports are filed initially with the Joint Reporting Committee, which it describes as the alter ego of EEOC.
It has long since been settled in this circuit that the federal government’s anti-discrimination effort directed at government contractors rests upon a different authority and even serves a different, though complementary, purpose than the efforts of EEOC. The Executive Order program antedated the passage of Title VII, and Congress has rejected proposals to transfer the Executive Order functions of OFCC to EEOC. The two agencies function independently, and we decline the invitation to disregard that independence in order to read § 709(e) as applicable to OFCC compliance agencies such as DSA.
The argument that the Joint Reporting Committee (JRC) is the alter ego of EEOC and that all EEO-1 forms filed with JRC must therefore fall within § 709(e) is no more persuasive. The JRC is a consequence of the 1972 amendments to Title VII which established the Equal Employment Opportunity Coordinating Council, 42 U.S.C. § 2000e-14. The Coordinating Council is responsible for, among other things, implementing inter-agency agreements to eliminate duplication among the operations, functions, and jurisdictions of various federal agencies enforcing federal antidiscrim-ination employment policies. JRC was organized by the Coordinating Council to streamline the collection of employment discrimination information and to distribute it, without the necessity for multiple filings, to the separate agencies involved. It is clear that JRC is the agent of several enforcement authorities. Nevertheless, nothing in 42 U.S.C. § 2000e-14 or in the implementing regulations which created JRC suggests an intention to extend the applicability of § 709(e) to federal employees outside EEOC or to information possessed by other agencies on their own authority.
Even assuming the applicability of § 709(e) to DSA, we are no more persuaded that a private cause of action can be implied from this criminal statute than from § 1905. The same reasons for our rejection of a private cause of action implied from § 1905 apply to § 709(e), and we will not repeat them. Chrysler’s argument for a right to a trial de novo based on § 709(e) of Title VII is rejected.
3. 44 U.S.C. § 3508
Section 423 of the Federal Reports Act of 1942, now codified as 44 U.S.C. § 3508, provides:
(a) If information obtained in confidence by a Federal agency is released by that agency to another Federal agency, all the provisions of law including penalties which relate to the unlawful disclosure of information apply to the officers and employees of the agency to which information is released to the same extent and in the same manner as the provisions apply to the officers and employees of the agency which originally obtained the information. The officers and employees of the agency to which the information is released, in addition, shall be subject to the same provisions of law, including penalties, relating to the unlawful disclosure of information as if the information had been collected directly by that agency.
(b) Information obtained by a Federal agency from a person under this chapter may be released to another Federal agency only—
(1) in the form of statistical totals or summaries; or
(2) if the information as supplied by persons to a Federal agency had not, at the time of collection, been declared by that agency or by a superior authority to be confidential; or
(3) when the persons supplying the information consent to the release of it to a second agency by the agency to which the information was originally supplied; or
(4) when the Federal agency to, which another Federal agency releases the information has authority to collect the information itself and the authority is supported by legal provision for criminal penalties against persons failing to supply the information.
Chrysler argues that by virtue of the second sentence in § 3508(a
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 5. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_appel1_8_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Your task is to determine which of the following specific subcategories best describes the litigant.
ORR et al. v. NEILLY.
No. 6992.
Circuit Court of Appeals, Fifth Circuit.
Nov. 7, 1933.
William A. Fuller and Douglas M. Orr, both of Atlanta, Ga., and D. C. Webb, of Knoxville, Tenn., for appellants.
Marion Smith and Clarence H. Calhoun, both of Atlanta, Ga., for appellee.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
BRYAN, Circuit Judge.
This is ah appeal from an order in bankruptcy in which it was held that the claim of appellants was not provable against the estate of the Lane Drug Stores, Inc., bankrupt. The claim grows out of a lease of the premises occupied by the bankrupt prior to bankruptcy, executed in 1922 for a term of 50 years.
The owner of the premises reserved a rental of $600 per month, with the usual right of re-entry in ease of default. In 1923 the original lessee transferred the lease in consideration of the payment by the transferee of the $600 per month rent to the owner, and also of the payment to him of the additional sum of $250 per month, also designated as rent, during the life of the lease. The transfer provided that, if the transferee “should make default or fail to perform any of the terms and provisions of the lease aforesaid, or any of the terms and provisions in this assignment of said lease, this assignment of said lease shall at once terminate and the parties of the second part shall be liable to the parties of the first part for all unpaid rent, specified and provided for in the lease aforesaid and the assignment of said lease.” This leasehold estate by mesne conveyances passed in 1928 to the Lane Drug Stores, so that it was obligated to pay both the original rent reserved by the owner and the $250 in addition reserved by the first lessee. The right to this additional sum of $250 per month was acquired by appellants in 1928 and held by them when they presented their claim to the bankruptcy court. After the original lease was entered into, the owner mortgaged the premises and the mortgage has been foreclosed. The Lane Drug Stores defaulted on its obligations to pay under both the original lease and the transfer; and appellants failed to keep the original lease alive by paying the rent therein reserved, with the result that they are without remedy unless they have the right to prove their claim against the estate of the bankrupt. The ground of the district court’s decision is that the claim of appellants is for future rent, and that such a claim is not provable in bankruptcy. Appellants contend (1) that, assuming the general rule to be that future rents accruing after bankruptcy are not provable against the estate of a bankrupt, nevertheless their claim ought to be recognized because they are without remedy except in the bankruptcy court; and (2) that their claim is not one based on rent “in the usual meaning of the term.”
Under section 63 of the Bankruptcy Act, 11 USCA § 103, claims for future rent are not provable in bankruptcy. In re Both & Appel (C. C. A.) 181 F. 667, 31 L. R. A. (N. S.) 270; Slocum v. Soliday, 183 F. 410; Britton v. Western Iowa Co. (C. C. A.) 9 F.(2d) 488, 45 A. L. R. 711; Trust Co. of Ga. v. Whitehall Holding Co. (C. C. A.) 53 F.(2d) 635. It is not thought that such claims are made provable by section 74 of the amendment to the act adopted March 3, 1933, 11 USCA § 202 as apparently that amendment has reference only to composition and extension proceedings brought under it. Whatever the reason for the rule, it is one of general application. In our opinion, the facts disclosed in this case do not afford a sufficient reason for departing from it, if that may ever be done. Appellants acquired their interest in the lease subject to the loss of it by default in payment of the rent reserved by the owner. They could have protected that interest by themselves paying the rent, since the lease antedated the mortgage. It was their business to keep the lease from being in default. The result is that their interest was lost, not only because of the default of the bankrupt, but also because they too -were in default.
We are of opinion also that their claim was for future rent. The transfer under which they assert their rights designated the additional payment of $250 per month as rent, and provided that both the original lease and the transfer or assignment of it should terminate upon default in the payment of any rent whether reserved by the original lease or by the initial assignment. While the designation of the additional payment of $250 per month as rent is not conclusive, it is a strong indication of the intention of the parties, as is also the provision for the termination of the lease, which was but another way of saying that the original lessee had the right of re-entry. The reason for the last-named provision is plain; it was to restore to the lessee his rights under the original lease. The clear intention of the parties to the transfer was to create an additional rental, and an effective method of doing that was to transfer an estate in the land for a term of years, reserving a rental charge. Although as to the original landlord the transfer from the original lessee may be an assignment, as between the original lessee and his lessee or transferee, the relation of landlord and tenant is created if the parties intend a lease. Stewart v. Long Island R. R. Co., 103 N. Y. 601, 8 N. E. 200, 55 Am. Rep. 844. And it is generally true that whether the relationship of landlord and tenant is created depends almost entirely upon the intention of the parties. Taylor, Landlord and Tenant (9th Ed.) § 16; Sexton v. Chicago Storage Co., 129 Ill. 318, 21 N. E. 920, 16 Am. St. Rep. 274; Davidson v. Minn. Loan & Trust Co., 158 Minn. 411, 197 N. W. 833, 32 A. L. R. 1418; Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451, 69 S. E. 734. We are unable to say that the trial court erred in refusing to allow appellants to prove their claim.
The order appealed from is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous", specifically "other". Which of the following specific subcategories best describes the litigant?
A. Indian Tribes
B. Foreign Government
C. Multi-state agencies, boards, etc. (e.g., Port Authority of NY)
D. International Organizations
E. Other
F. Not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Cecil E. CRIDDLE, Appellant, v. Elliott L. RICHARDSON, Secretary of Health, Education and Welfare, Appellee.
No. 71-1241.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 5, 1971.
Decided Oct. 14, 1971.
Franklin W. Kern, Charleston, W. Va., for appellant.
Robert M. Feinson, Atty., Dept, of Justice, Washington, D. C. (L. Patrick Gray, III, Asst. Atty. Gen., Kathryn H. Baldwin, Atty., Dept. of Justice and W. Warren Upton, U. S. Atty., on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.
PER CURIAM:
Affirmed on the letter opinion of the District Judge, 334 F.Supp. 344.
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_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Reverend Jerry FALWELL, Appellee, v. Larry C. FLYNT; Hustler Magazine, Inc., Appellants, and Flynt Distributing Company, Inc., Defendant. Reverend Jerry FALWELL, Appellant, v. Larry C. FLYNT, Hustler Magazine, Inc.; Flynt Distributing Company, Inc., Appellees.
Nos. 85-1417(L), 85-1480.
United States Court of Appeals, Fourth Circuit.
Argued April 8, 1986.
Decided Aug. 5, 1986.
Rehearing and Rehearing En Banc Denied Nov. 4,1986.
Alan L. Isaacman and David Carson (Cooper, Epstein & Hurewitz, Beverly Hills, Cal., Arthur P. Strickland, Strickland & Rogers, Roanoke, Va., on brief) for appellants/cross-appellees.
Norman Roy Grutman (Jewel H. Bjork, Jeffrey H. Daichman, Thomas V. Marino, Grutman, Miller, Greenspoon, Hendler & Levin, New York City, on brief), for appellee cross-appellant.
Before HALL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
The order denying rehearing, with dissenting opinions, will be published in 805 F.2d —.
CHAPMAN, Circuit Judge:
This lawsuit arises out of an “ad parody” that appeared in the November 1983 and March 1984 issues of Hustler, which is published by defendants Larry Flynt and Hustler Magazine, Inc. (Hustler), and is distributed by defendant Flynt Distributing Company (FDC). The subject of this parody was the Reverend Jerry Falwell, a well-known pastor and commentator on political issues. Falwell sued the defendants for libel, invasion of privacy, and intentional infliction of emotional distress. At the close of evidence, the district court dismissed Falwell’s claim for invasion of privacy and sent the other two claims to the jury. The jury found against Flynt and Hustler on the emotional distress claim and against Falwell on the libel claim.
These defendants have appealed, and Falwell has filed a cross appeal. The issues before this court can be grouped into four categories: the constitutional issues, the common law tort issues related to intentional infliction of emotional distress, the evidentiary issues, and finally, Falwell’s cross appeal, which claims that the district court erred in dismissing his claim for invasion of privacy.
I
The “ad parody” which gives rise to the instant litigation attempts to satirize an advertising campaign for Campari Liqueur. In the real Campari advertisement celebrities talk about their “first time.” They mean, their first encounter with Campari Liqueur, but there is double entendre with a sexual connotation. In the Hustler parody, Falwell is the celebrity in the advertisement. It contains his photograph and the text of an interview which is attributed to him. In this interview Falwell allegedly details an incestuous rendezvous with his mother in an outhouse in Lynchburg, Virginia. Falwell’s mother is portrayed as a drunken and immoral woman and Falwell appears as a hypocrite and habitual drunkard. At the bottom of the page is a disclaimer which states “ad parody — not to be taken seriously.” The parody is listed in the table of contents as “Fiction; Ad and Personality Parody.”
Falwell was first shown the ad parody by a reporter in the fall of 1983. Shortly thereafter, he filed suit against Flynt, Hustler and FDC in the United States District Court for the Western District of Virginia. Falwell alleged three theories of liability: libel, invasion of privacy under Va. Code § 8.01-40 (1984), and intentional infliction of emotional distress. Hustler then republished the parody in its March 1984 issue.
In June 1984, Falwell’s counsel took Larry Flynt’s deposition, which was recorded on video tape. During the deposition Flynt identified himself as Christopher Columbus Cornwallis I.P.Q. Harvey H. Apache Pugh and testified that the parody was written by rock stars Yoko Ono and Billy Idol. It also contained the following colloquy concerning the parody:
Q. Did you want to upset Reverend Falwell?
A. Yes....
Q. Do you recognize that in having published what you did in this ad, you were attempting to convey to the people who read it that Reverend Falwell was just as you characterized him, a liar?
A. He’s a glutton.
Q. How about a liar?
A. Yeah. He's a liar, too.
Q. How about a hypocrite?
A. Yeah.
Q. That’s what you wanted to convey? A. Yeah.
Q. And didn’t it occur to you that if it wasn’t true, you were attacking a man in his profession?
A. Yes.
Q. Did you appreciate, at the time that you wrote “okay” or approved this publication, that for Reverend Falwell to function in his livelihood, and in his commitment and career, he has to have an integrity that people believe in? Did you not appreciate that?
A. Yeah.
Q. And wasn’t one of your objectives to destroy that integrity, or harm it, if you could?
A. To assassinate it.
[J.A. 901-902].
Trial began in December 1984. While the district court had initially granted the defendant’s pretrial motion to suppress the deposition on the grounds that Flynt could not comprehend the obligation of the oath or give a correct account of events, the district court reversed itself on the first day of trial and permitted Falwell to introduce an edited version containing only those portions relevant to the instant lawsuit. The defendants then showed the jury the entire deposition, stating that the edited deposition was misleading. In spite of the defendants’ strenuous objections, the district court also permitted the introduction of the two Hustler issues containing the parody and excerpts from prior issues that had lampooned Falwell.
At the close of evidence, the district court dismissed Falwell’s invasion of privacy claim brought under Va.Code 8.01-40 (1984), which creates a cause of action for damages arising from the use of a person’s name or likeness for purposes of trade or advertising without his consent. The district court ruled that although the parody used FalwelPs name and likeness, the use was not for purposes of trade within the meaning of the statute.
The jury returned a verdict for the defendants on the libel claim, finding that no reasonable man would believe that the parody was describing actual facts about Falwell. On the emotional distress claim, the jury returned a verdict against Flynt and Hustler, but not F.D.C. The jury awarded $100,000 in actual damages, $50,000 in punitive damages against Flynt, and $50,000 in punitive damages against Hustler.
II
The defendants make two constitutional arguments. First, they assert that since Falwell is admittedly a public figure the actual malice standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) must be met before Falwell can recover for emotional distress. They argue that the actual malice standard has not been met. Second, the defendants contend that since the jury found that the parody was not reasonably believable, the statements contained therein cannot be statements of fact but must be opinion and are, therefore, completely shielded by the first amendment.
The defendants maintain initially that since Falwell is a public figure, they are entitled to the same level of first amendment protection in an action for intentional infliction of emotional distress that they would receive in an action for libel. We agree. Once an action for libel was a plaintiff's sole remedy for a defamatory publication in a news medium. The last century has, however, seen the acceptance of the new emotional distress and invasion of privacy torts which may arise from the same underlying facts. Thus, while a tortious publication once gave rise only to an action for libel, it may now support the additional claims. There has been, of late, a growing trend toward pleading libel, invasion of privacy and intentional infliction of emotional distress in lawsuits arising from a tortious publication. Mead, Suing the Media for Emotional Distress: A Multi-Method Analysis of Tort Law Evolution, 23 Wash. L.J. 24 (1983). The instant case typifies this trend; Falwell asserted all three theories of liability.
In New York Times, the Supreme Court determined that libel actions brought by public officials against the press can have a chilling effect on the press inconsistent with the first amendment. Therefore, when a public official sues for libel based upon a tortious publication, the defendant is entitled to a degree of first amendment protection. This protection has been extended to cases in which the plaintiff is a public figure, Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and to actions of invasion of privacy for casting the plaintiff in a false light, Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), but not to cases in which the plaintiff is a private figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). It is not the theory of liability advanced, but the status of the plaintiff, as a public figure or official and the gravamen of a tortious publication which give rise to the first amendment protection prescribed by New York Times.
In the case at bar, Falwell is a public figure, and the gravamen of the suit is a tortious publication. The defendants are, therefore, entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in Falwell’s claim for libel. To hold otherwise would frustrate the intent of New York Times and encourage the type of self censorship which it sought to abolish.
The issue then becomes what form the first amendment protection should take in an action for intentional infliction of emotional distress. The defendants argue that Falwell must prove that the parody was published with knowing falsity or reckless disregard for the truth. This is the actual malice standard of New York Times v. Sullivan. While we agree that the same level of protection is due the defendants, we do not believe that the literal application of the actual malice standard which they seek is appropriate in an action for intentional infliction of emotional distress.
The actual malice standard originated as a remedy for the first amendment problem that arises under common law defamation. Historically, the individual’s interest in a good reputation has been regarded as so significant that the law has held one who intentionally published defamatory material to a standard of strict liability. But recognizing that people in a free society must have ready access to information and ideas if that society is to endure, the established common law attempted to reconcile these divergent interests by holding a publisher strictly liable for his publication unless he could prove that the publication was either true or subject to a conditional privilege. There was no privilege for a good faith mistake of fact. Owens v. Scott Publishing, 46 Wash.2d 666, 284 P.2d 296 (1955), cert. denied 350 U.S. 968, 76 S.Ct. 437, 100 L.Ed. 840 (1956); Peck v. Tribune Company, 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960 (1909).
The Supreme Court changed the law in New York Times v. Sullivan. The court held that defendants could be held liable for defamation of public officials only if the defamatory falsehood was published with actual malice. The effect of New York Times and its progeny is to increase the level of fault necessary for a public figure to prevail in an action for defamation. Where the defendant was once held strictly liable for a false publication, he is now held liable only for his knowing or reckless misconduct. New York Times gives the press protection from honest mistakes, but it is not a license to lie.
The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity---- Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964).
When applied to a defamation action, the actual malice standard alters none of the elements of the tort; it merely increases the level of fault the plaintiff must prove in order to recover in an action based upon a publication. Requiring a plaintiff to prove knowledge of falsity or reckless disregard of the truth in an action for intentional infliction of emotional distress would add a new element to this tort, and alter its nature. The defendants argue that New York Times dictates such a result. But their argument emphasizes the language “falsity or ... disregard for the truth,” and thus misreads New York Times. Properly read, New York Times focuses on culpability. The emphasis of the actual malice standard is “knowing ... or reckless.”
The first of the four elements of intentional infliction of emotional distress under Virginia law requires that the defendant’s misconduct be intentional or reckless. This is precisely the level of fault that New York Times requires in an action for defamation. The first amendment will not shield intentional or reckless misconduct resulting in damage to reputation, and neither will it shield such misconduct which results in severe emotional distress. We, therefore, hold that when the first amendment requires application of the actual malice standard, the standard is met when the jury finds that the defendant’s intentional or reckless misconduct has proximately caused the injury complained of. The jury made such a finding here, and thus the constitutional standard is satisfied.
The defendants also argue that since the jury found that a reader could not reasonably believe that the parody was describing actual facts about Falwell, it must be an opinion and therefore is protected by the first amendment. At common law the dichotomy between statements of fact and opinion was often dispositive in actions for defamation. An action for intentional infliction of emotional distress concerns itself with intentional or reckless conduct which is outrageous and proximately causes severe emotional distress, not with statements per se. We need not consider whether the statements in question constituted opinion, as the issue is whether their publication was sufficiently outrageous to constitute intentional infliction of emotional distress. The defendants’ argument on this point is, therefore, irrelevant in the context of this tort.
Ill
The defendants argue that since Falwell was unable to recover for libel, he cannot recover for emotional distress. It is the defendant’s theory that emotional distress is intended to provide tort remedies to plaintiffs who have none, but that intentional infliction of emotional distress is not available when the conduct complained of falls well within the ambit of other traditional tort liability. While there is some support for the defendant’s position in at least one jurisdiction, see Fischer v. Maloney, 43 N.Y.2d 553, 373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978), we believe the law of Virginia to be otherwise. Raftery v. Scott, 756 F.2d 335 (4th Cir.1985). The elements of libel and intentional infliction of emotional distress are different and the facts in the instant case will independently support the latter tort. We are convinced, therefore, that Falwell’s failure to recover for libel does not, as a matter of law, prevent him from recovering for intentional infliction of emotional distress. Cf. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979) (en banc).
The defendants also argue that Falwell presented insufficient evidence to sustain any of the elements of intentional infliction of emotional distress. We may reverse a jury verdict only when there is a complete absence of facts to support the conclusions reached by the jury. Sherril White Construction, Inc. v. South Carolina National Bank, 713 F.2d 1047 (4th Cir.1983). The four elements which must be shown in order to recover for intentional infliction of emotional distress in Virginia have been set forth in footnote 4.
In his deposition, Flynt testified that he intended to cause Falwell emotional distress. If the jury found his testimony on this point to be credible, then it could have found that Falwell satisfied the first element. Evidence of the second element, outrageousness, is quite obvious from the language in the parody and in the fact that Flynt republished the parody after this lawsuit was filed. The final elements require the plaintiff to prove that the defendant’s conduct proximately caused severe emotional distress. At trial, when Falwell was asked about his reaction to the parody, he testified as follows:
A. I think I have never been as angry as I was at that moment____ My anger became a more rational and deep hurt. I somehow felt that in all of my life I had never believed that human beings could do something like this. I really felt like weeping. I am not a deeply emotional person; I don’t show it. I think I felt like weeping.
Q. How long did this sense of anger last?
A. To this present moment.
Q. You say that it almost brought you to tears. In your whole life, Mr. Falwell, had you ever had a personal experience of such intensity that could compare with the feeling that you had when you saw this ad?
A. Never had. Since I have been a Christian I don’t think I have ever intentionally hurt anybody. I am sure I have hurt people but not with intent. I certainly have never physically attacked anyone in my life. I really think that at that moment if Larry Flynt had been nearby I might have physically reacted.
A colleague of Falwell s, Dr. Ron Godwin, testified that Falwell’s enthusiasm and optimism visibly suffered as a result of the parody. Godwin also stated that Falwell’s ability to concentrate on the myriad details of running his extensive ministry was diminished. This testimony would enable a jury to find that Falwell’s distress was severe and that it was proximately caused by defendant’s publication of the parody. We find, therefore, that the evidence is sufficient to sustain the jury’s verdict against the defendants for intentional infliction of emotional distress.
IV
The defendants appeal several evidentiary rulings made by the district court during the course of trial. The primary issue involves the district court’s decision to admit Flynt’s videotaped deposition. The defendants argue that Flynt was mentally incapable of telling the truth at the time he was deposed. At common law a charge of mental incapacity could be used to challenge a witness’ competency to testify, but under the Federal Rules of Evidence this objection excludes testimony only in the rare case in which the judge finds that because of the witness’ infirmities, the proffered testimony fails to meet the relevancy requirements of Rules 104(b), 401 and 403. Consequently, in cases in which lawyers would have once argued to the judge that a witness should not be heard, they now argue to the jury that the witness should not be believed. J. Weinstein & M. Berger, 3 Weinstein’s Evidence, § 607[04] (1985). The Notes of Advisory Committee on Proposed Rules for Rule 601 offer the following instruction:
No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. (Citations omitted)
We agree with these authorities. The relevant question posed by Flynt’s deposition testimony was not one of competency but rather of credibility. The district court did not abuse its discretion in admitting that evidence.
The defendants argue that the district court erred in admitting derogatory statements about Falwell that had been published in prior issues of Hustler. The defendants admit that these statements might be indicative of hatred or ill will toward Falwell, but they argue such evidence is not relevant to the actual malice inquiry necessitated by Falwell’s libel claim. It is, however, well established that the jury may infer from the totality of the defendant’s conduct toward a plaintiff “a predetermined and preconceived plan to malign [plaintiff’s] character” and cause him injury which is, of course, a functional definition of actual malice. Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.1969), cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). This evidence was properly admitted.
The defendants also objected to the introduction of those issues of Hustler in which the parody had appeared. They maintained that the magazines were irrelevant in the first place and more prejudicial than probative in the second place. The context in which the parody was published is relevant to Falwell’s libel claim on the issue of the credibility of the statements made about Falwell and on the issue of damages. The defendants’ objection that these magazines were more prejudicial than probative must also fail, since it was necessary for the jury to see the parody in context in order to decide these issues. See Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir.1985).
V
At the close of evidence, the district court dismissed Falwell’s action for invasion of privacy pursuant to Va.Code § 8.01-40 (1985) on the grounds that the ad parody which appeared in Hustler did not constitute a use of Falwell’s name and likeness “for purposes of trade” within the meaning of the statute. Falwell has filed a cross appeal alleging that the district court erred in this ruling. We disagree.
The Virginia statute reads, in pertinent part:
Any person whose name, portrait, or picture is used without having first obtained the written consent of such person ... for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.
There are no decisions of the Virginia courts which construe this statute. This statute is, however, substantially similar to § 51 of the New York Civil Rights Law. This court has looked to the New York courts for guidance in construing the Virginia privacy statute. Brown v. American Broadcasting Co., 704 F.2d 1296 (4th Cir. 1983).
In order to further the legitimate dissemination of news and information, the New York courts have routinely held that use of a public figure’s name or likeness cannot constitute a use for purposes of trade. See Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752 (1st Dep’t 1919) and Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 (1952). There is an exception to this general rule which holds that if the use of a public figure’s name or likeness is infected with substantial and material falsification, and if it is published with knowledge of such falsification or with reckless disregard for the truth, then it is a use for purposes of trade and the public figure can recover. Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 233 N.E.2d 840, 286 N.Y.S.2d 832 (1967), appeal dismissed 393 U.S. 1046, 89 S.Ct. 676, 21 L.Ed.2d 600 (1969). This exception has been further refined in the case of Hicks v. Casablanca Records, 464 F.Supp. 426 (S.D.N.Y.1978) in which the court held that in addition to containing substantial and material falsification, the use of the public figure’s name or likeness must take such a form that the reader would reasonably believe the falsification. Thus, in Spahn where the use took the form of biography, there was a use for purposes of trade, but in Hicks where the use took the form of a novel, there was no use for purposes of trade.
Because the jury found that the parody in the instant case was not reasonably believable and because it contained a disclaimer, publication of the parody did not constitute a use of Falwell’s name and likeness for purposes of trade. The district court properly dismissed this claim. For these reasons, the decision of the district court is affirmed.
AFFIRMED.
. Defendants argue that the more vile and outrageous the statement about a public figure, the greater the protection to the publisher because the public is not apt to believe such a statement.
. "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
376 U.S. at 279-80, 84 S.Ct. at 726.
. Actual malice under New York Times is different from common law malice, which is the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. New York Times' actual malice might be better understood if designated as "constitutional malice” or "publication malice.”
. In Virginia, the essential elements to be proved in an action for intentional infliction of emotional distress are that the wrongdoer’s conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with plaintiffs emotional distress; and (4) caused emotional distress that was severe. Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974).
. He had recently suffered a broken leg and was on medication.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_source
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
Wesley ROBERTS, Personal Representative of the Estate of David Roberts, Deceased, Plaintiff-Appellant, v. The CITY OF TROY and Forrest O. Fisher, Jointly and Severally, Defendants-Appellees.
No. 83-1334.
United States Court of Appeals, Sixth Circuit.
Argued July 19, 1984.
Decided Sept. 30, 1985.
Julie H. Hurwitz (argued), John P. Quinn (argued), Detroit, Mich., for plaintiff-appel-lee.
Bernard P. McClorey (argued), Livonia, Mich., Jeannette A. Paskin, Detroit, Mich., for defendants-appellees.
Before KENNEDY, Circuit Judge, CELEBREZZE, Senior Circuit Judge, and NEESE, Senior District Judge.
Honorable C.G. Neese, Senior Judge, of Nashville, Tennessee, who retired as a United States District Judge for the Eastern District of Tennessee, sitting by designation and assignment.
CORNELIA G. KENNEDY, Circuit Judge.
Plaintiff’s decedent David Roberts hanged himself in the defendant City of Troy’s jail. This action brought under 42 U.S.C. § 1983 asserted that David Roberts’ constitutional rights were violated by the failure of defendant Fisher, the Chief of Police of the City of Troy, to promulgate and enforce procedures to identify potential suicides and prevent their occurrence. The jury returned a verdict for defendants. Plaintiff appeals from the denial of his motion for judgment notwithstanding the verdict and for new trial. He also appeals from the summary judgment for defendants on the pendent state claims. We affirm the judgment on the 1983 claims, and on the pendent state claim against the City of Troy. We reverse the summary judgment in favor of Fisher on the pendent state claims.
Roberts was arrested on September 17, 1977 for fraudulent use of a credit card. When stopped by a store security officer he plunged through a glass door in an attempt to escape and received serious cuts. He was taken by the police to a local hospital where he was treated. He was cooperative with hospital personnel but uncommunicative and withdrawn from the police officers.
He was then booked at the police station. There was no special screening or questioning to determine if he was a high suicide risk. He was permitted to make a phone call and placed in a cell. He was given his medication as prescribed. In accordance with procedures at the Troy jail he was observed at least once during each clock hour, that is, once between 12 and 1 o’clock, once between 1 and 2 o’clock, once between 2 and 3 o’clock, etc. Regulations promulgated by the Michigan Department of Corrections and applicable to local jails required visual checks of each inmate at least once every 60 minutes. Some time during the next morning Roberts made another telephone call and spoke to his mother. The police cadet checking Roberts’ cell saw him at 10:42 a.m. At approximately 11:50 a.m., a police officer found Roberts hanging in his jail cell. Efforts to revive him were unsuccessful and he was pronounced dead on his arrival at the hospital.
Roberts’ personal representative, first his mother, then after her death his brother, brought this suit. The complaint charged the City of Troy, the Chief of Police, and various police officers with violating Roberts’ constitutional rights under 42 U.S.C. § 1983; the defendants were also charged with negligence and gross negligence under Michigan law. Before trial, the District Court granted summary judgment under § 1983 in favor of the police officers, and denied it to Police Chief Forrest O. Fisher and the City of Troy. The state law counts were dismissed as to the police officers. Summary judgment on the state law counts was granted to Fisher.
At trial, the plaintiff attempted to demonstrate that proper screening at the jail would have shown that Roberts fitted the profile of an individual at high risk of committing suicide in a lockup, and should have been monitored more closely. The plaintiff also attempted to show that the failure of the Troy Police Department to comply with state regulations requiring monitoring every 60 minutes was a contributing cause of Roberts’ death. The case was submitted to the jury on a deliberate indifference standard. The jury returned a verdict for defendants, and the District Court ordered the case dismissed. This appeal followed.
1. Deliberate Indifference Standard
The essence of plaintiff’s claim is that David Roberts had a constitutional due process right to reasonably necessary medical care while incarcerated; that he had a serious and obvious medical need for precautions designed to prevent a suicide; that defendants through acts, omissions, customs and policies, and practices, were negligent and grossly negligent (i.e., deliberately indifferent) in their failure to take the necessary precautions; and that the defendants’ negligence and gross negligence substantially increased the risk that David Roberts would die by suicide. (Plaintiff’s Brief, p. 1). The instructions to the jury permitted recovery only if defendants exhibited deliberate indifference. Plaintiff did not object to the instruction that was given.
The seminal ease with respect to the constitutional due process right of pretrial detainees is Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Its holding is succinctly summarized in Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984):
Four Terms ago, in Bell v. Wolfish ... we considered for the first time, in light of these security concerns, the scope of constitutional protection that must be accorded pretrial detainees. The respondents in Wolfish challenged numerous conditions of their confinement at the pretrial detention facility in New York City and various policies and practices of that institution. We held that, where it is alleged that a pretrial detainee has been deprived of liberty without due process, the dispositive inquiry is whether the challenged condition, practice, or policy constitutes punishment, “[f]or under the Due Process Clause, a detainee must not be punished prior to an adjudication of guilt in accordance with due process of law.” Id., at 535, 99 S.Ct., at 1872 (footnote omitted).
In addressing the particular challenges in Wolfish, we carefully outlined the principles to be applied in evaluating the constitutionality of conditions of pretrial detention. Specifically, we observed that “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id., at 538, 99 S.Ct., at 1873 (citation omitted). Absent proof of intent to punish, we noted, this determination “generally will turn on ‘whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].’ ”
Plaintiff does not claim that in failing to have in place procedures to reduce the likelihood of Roberts’ accomplishing the suicide defendants intended to punish him. Rather, in accordance with the holding in Bell v. Wolfish that “pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners,” id. at 545, 99 S.Ct. at 1877, plaintiff claims that his decedent’s rights under the eighth amendment were violated by “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97. S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ (citation omitted) proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. at 291.) Roberts, as a pretrial detainee rather than a convicted prisoner, was not within the protection of the eighth amendment; however, the eighth amendment rights of prisoners are analogized to those of detainees under the fourteenth amendment, to avoid the anomaly of extending greater constitutional protection to a convict than to one awaiting trial. See Norris v. Frame, 585 F.2d 1183, 1187 (3d Cir.1978). See also Bell v. Wolfish, supra.
Plaintiff argues that although the case was submitted to the jury on this basis, the court’s charge defining deliberate indifference constitutes reversible error. Plaintiff did not object to this instruction. Under Rule 51, Fed.R.Civ.P., failure to object waives the right to appeal from an incorrect instruction. The plaintiff’s argument that he implicitly objected by offering a different instruction is not persuasive, see Kropp v. Ziebarth, 601 F.2d 1348, 1356-57 (8th Cir.1979). Rule 51 can be satisfied by less than a formal objection, but “only if it is clear that the judge was made aware of the possible error in or omission from the instructions.” Transcontinental Leasing, Inc. v. Michigan National Bank, 738 F.2d 163 (6th Cir.1984). Here the plaintiff did nothing to make the court aware of his opposition to the language defining deliberate indifference.
Plaintiff also argues that he may recover under § 1983 on the basis of a failure to exercise due care in failing to prevent suicides of pretrial detainees. Again, plaintiff did not object to the failure to give such an instruction. The transcript is replete however with arguments between counsel for the plaintiff and the court over using a negligence standard. Plaintiff argues that he repeatedly made known to the court his position that he should be permitted to recover on the basis of negligence and that this case falls within the category of exceptions to Rule 51 in which “the failure to object may be disregarded if the party’s position has previously been made clear to the court and it is plain that a further objection would have been unavailing.” Lang v. Texas & Pacific Railway Co., 624 F.2d 1275, 1279 (5th Cir.1980). Since we find that plaintiff was not entitled to an instruction on negligence we need not decide if that claimed error was preserved.
The plaintiff essentially argues that a claim is established under § 1983 by showing an official’s negligence in the face of a pervasive and unreasonable risk of harm. This standard is derived from cases dealing with assaults on prisoners by other prisoners. See, e.g., Lovell v. Brennan, 728 F.2d 560 (1st Cir.1984); Gullatte v. Potts, 654 F.2d 1007 (5th Cir.1981); Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980). Under this standard, a plaintiff must still show deliberate indifference, and not merely negligence:
[T]he test is whether prison administrators are taking reasonable steps to prevent a pervasive risk of harm. A pervasive risk of harm entails much more than mere negligence. In essence, the pervasive risk would exist because the administrators are taking no steps to control violence. Thus, for a pervasive or constant risk to exist, officials would have to be intentionally indifferent to that risk.
... mere negligence is not enough. An official would have to be intentionally indifferent or in reckless disregard before liability in a 1983 action is established.
Massey v. Smith, 555 F.Supp. 743, 747 (N.D.Ind.1983); Risner v. Duckworth, 562 F.Supp. 378 (N.D.Ind.1983).
Moreover, the standard urged by plaintiff has not been recognized by the Sixth Circuit in prison assault cases; the court has looked for “gross negligence or deliberate indifference on the part of the officials to appellant’s risk of injury,” observing that “mere negligence on the part of prison officials is not sufficient to give rise to culpability under the eighth amendment.” Stewart v. Love, 696 F.2d 43, 44 (6th Cir.1982). Moreover, the prison assault situation is not as analogous to suicide in custody as is the failure to provide medical care. Indeed, the suieidally inclined prisoner is in need of medical care. In Wright v. Wagner, 641 F.2d 239, 242 (5th Cir.1981), a suicide case, the court, citing Gamble, used the deliberate indifference standard.
This Court in its recent en banc decision in Wilson v. Beebe, 770 F.2d 578 (6th Cir.1985), has held that where a negligent act of a state officer deprived a person of a liberty interest and the law of the state provided a remedy in damages, there is no procedural due process claim under § 1983, and no substantive due process violation unless there is intentional conduct which meets the “shocks the conscience” test in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). There is no conduct here approaching that level. Michigan provides a damage remedy. The District Court did not err in refusing to give an instruction based on negligence.
Although Bell v. Wolfish, supra, deals with actions rather than the failure to act, if we transpose the Bell v. Wolfish standard to failures to act, we would also arrive at a deliberate indifference requirement. If a failure to act is reasonably related to a legitimate governmental objective, the failure to act cannot have the purpose of punishment unless the failure to act was deliberate. Bell v. Wolfish requires an intent to punish. Absent intent to punish, the police chiefs failure to provide better suicide prevention training and to learn about and implement a new regulation and the City of Troy's failure to employ better trained jailers do not amount to constitutional violations because the failures arose from the allocation of resources-time, personnel, and money, which constitutes a legitimate governmental purpose. Since the jury found that defendants were not deliberately indifferent, plaintiff could not recover under the Bell v. Wolfish standard for the failures to act. Consequently, the District Court’s failure to submit to the jury the question whether the defendants intended to punish the deceased by the failures to act does not amount to plain error.
2. Proximate Cause Instruction
The plaintiff also contends that the District Court erred in its instruction to the jury regarding proximate cause:
When I use the words “proximate cause” I mean first that there must have been a connection between the conduct of the defendants which the plaintiff claims was unlawful and the injury complained of by the plaintiff, and, second, that the occurrence which is claimed to have produced the injury was a natural and probably [sic] cause of such conduct of the defendants.
There may be more than one proximate cause. To be a proximate cause the claimed wrongful conduct need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence.
The plaintiff argues that his proposed instruction, paraphrased from Sutter v. Biggs, 377 Mich. 80, 88, 139 N.W.2d 684 (1966), should have been given instead:
If the Defendant’s [sic] acts did not directly cause the injury for which Plaintiff seeks recovery, but, instead, subjected Plaintiff to an increased exposure to the risk of occurrence of another event which did occur and did cause Plaintiff’s death, the Defendant’s [sic] acts are a proximate cause of the injury and the Defendant [sic] may be held liable therefore if that Defendant [sic] should have foreseen that some such injury might be caused by such other event.
These instructions are similar although the proposed instruction highlights the idea of an increase in a preexisting risk of harm. It is also somewhat confusing. The District Court did not err in giving the standard general proximate cause instruction. Counsel for the plaintiff was free to explain in his closing argument any facts he claimed as multiple proximate causes which increased the risk of harm to the decedent.
3. Statements by Roberts’ Mother
Plaintiff also objects to the admission of a statement by Roberts’ mother that she had spoken to him on the telephone shortly after 11:00 a.m. This was less than 60 minutes before he committed suicide. If Roberts actually made a call less than an hour before his death, since the police would have escorted Roberts from his locked cell to the telephone, the failure of the Troy police to check the cell every 60 minutes could not be a proximate cause of his death. His siblings testified the call was made around 9:30 a.m. The District Court received the evidence as a statement against interest. Fed.R.Evid. 804(b)(3). We question whether it was admissible under that exception.
Hearsay under the declaration against interest exception is unreliable unless the declarant is aware at the time of making the statement that it is against his interest. See Donovan v. Crisostomo, 689 F.2d 869 (9th Cir.1982); Workman v. Cleveland-Cliffs Iron Co., 68 F.R.D. 562 (N.D.Ohio 1975). Here, Mrs. Roberts was not aware that her statement that she had spoken to her son within an hour of his death was against her interest until she learned about the state regulation requiring checks every 60 minutes. Indeed, when the statement was made, it may have appeared to be in her interest; Mrs. Roberts was expressing her disbelief that her son would have committed suicide so soon after speaking with her.
Defendants argue that the statement is not hearsay at all. Fed.R.Evid. 801(d)(2) says that a statement is not hearsay if it is an admission by a party-opponent. Mrs. Roberts as administrator was the original named plaintiff in this case. She was not, however, administrator when she made the statement. By the time of trial, she had died and-was replaced as personal representative and named plaintiff by her son Wesley Roberts. The District Court found that her estate was a party since she was one of the two possible beneficiaries of the action. (There was a claim that Wesley Roberts was also survived by an illegitimate son.) The plaintiff argues at length that under Michigan law only the personal representative, not heirs such as parents, can be named parties in a wrongful death action. See, e.g., Maiuri v. Sinacola Construction Co., 382 Mich. 391, 170 N.W.2d 27 (1969). However, courts have recognized “the established principle that admissions by the beneficial party or real party in interest ... are admissible in evidence against the nominal plaintiff representing his interests.” A.N. Deringer, Inc. v. United States, 287 F.Supp. 1016, 1023 n. 6 (Cust.Ct.1968). For example, statements by an insurance company were found admissions by a party in a suit brought by the insured in Krebs Pigment & Chemical Co. v. Sheridan, 79 F.2d 479 (3d Cir.1935). That line of authority does not answer the problem that arises in this case because the admission is by only one of two heirs. As to the deceased’s son it is hearsay and is not his admission.
We need not decide this issue, however, because we find the admission of this evidence harmless. Fisher was unaware that the regulations had been changed from requiring a check during every clock hour to requiring a check every 60 minutes. As a matter of law, his failure to know of this change in regulation does not amount to deliberate indifference. The mere failure to comply with a state regulation is not a constitutional violation. Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984).
4. Dismissal of State Claims
The District Court granted summary judgment on certain of plaintiff’s state claims and dismissed the remainder. The order of dismissal does not state that the dismissals are without prejudice. However, the memorandum opinion which accompanies the dismissals stated no reason for dismissing them with prejudice.
The judge’s comments on the first day of trial indicate that the state law claims had been dismissed without prejudice. The court obviously expected the plaintiff to try his negligence claims in state court, and checked with the defense counsel to confirm that the federal case would have no preclusive effect on the negligence action in state court.
The exercise of pendent jurisdiction is a matter of discretion for the District Court. See Cemer v. Marathon Oil Co., 583 F.2d 830, 832 n. 2 (6th Cir.1978); Ohio Inns, Inc. v. Nye, 542 F.2d 673, 680 (6th Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1583, 51 L.Ed.2d 794 (1977); Williams v. Bennett, 689 F.2d 1370, 1378 (11th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Americana Healthcare Corp. v. Schweiker, 688 F.2d 1072, 1087 (7th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983); Cancellier v. Federated Department Stores, 672 F.2d 1312, 1318 (9th Cir.), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982). In this case, the District Court did not abuse its discretion in refusing to exercise pendent jurisdiction over the state claims. The introduction of a negligence standard would have complicated the trial of the § 1983 action, and the Michigan law of governmental immunity was at that time uncertain.
The action is remanded to the District Court to amend the order dismissing the state claims to recite that the dismissals are without prejudice.
The court granted summary judgment to defendant Fisher on the state claims finding that he was performing a discretionary governmental function for which he was immune under state law. With respect to much of his activity that conclusion is correct. However, the Michigan Supreme Court in its recent decision in Ross v. Consumers Power, 420 Mich. 567, 363 N.W.2d 641 (1984), has had occasion to clarify the distinction between ministerial and discretionary functions. Negligence in instructing and supervising students at an outing is held to be ministerial when the decision-making is a relatively minor part of the activity. Provision of safety devices required by the school’s safety policy was held to be ministerial. At least some of defendant Fisher’s acts may fall into the ministerial category under the Ross definition. To be discretionary they must be “decisional.” Id. at 634, 363 N.W.2d 641.
We vacate the summary judgment granted on the state claims against Fisher and remand for further consideration under Ross, supra. The District Court may if it wishes decline to exercise pendent jurisdiction on this claim as well. We affirm the summary judgment granted the City of Troy on the state claims. The operation of the jail is a governmental function. Ross, supra.
The judgment of the District Court is affirmed on the § 1983 claims and on the state claim against the City of Troy. The remaining claims are remanded for further proceedings consistent with this opinion.
. The summary judgment in favor of the police officers and their dismissal are not appealed.
. The assault cases are based on Estelle v. Gamble’s interpretation of the eighth amendment. Lovell relied on Withers .which in turn relied upon Woodhous v. Virginia, 487 F.2d 889 (4th Cir.1973) in which the Fourth Circuit, relying upon Estelle v. Gamble, found a violation of the right to be free from cruel and unusual punishment when prison authorities failed to prevent attacks by prisoners on prisoners. Gullatte also relied on the earlier Fourth Circuit cases.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their 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.
Alvin W. MEADE, Plaintiff-Appellant, v. MERCHANTS FAST MOTORLINE, INC., Defendant-Appellee.
No. 85-1061.
United States Court of Appeals, Tenth Circuit.
June 18, 1987.
Lawrence W. Allred of Allred-Lilley, Las Cruces, N.M., for plaintiff-appellant.
Duane C. Gilkey and Tracy E. McGee of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., for defendant-appellee.
Before LOGAN, MOORE and TACHA, Circuit Judges.
PER CURIAM.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument.
Plaintiff, Alvin W. Meade, appeals from an order of the district court dismissing with prejudice his employment discrimination complaint against defendant, Merchants Fast Motorline, Inc., for failure to state a claim under 42 U.S.C. § 1981. The district court found that the facts alleged did not support a § 1981 claim, but its order does not specify in what respect the complaint is deficient. Defendant advances several arguments in support of the district court’s decision.
Defendant’s primary argument, and the only one urged in the district court, is that the complaint fails to state a § 1981 claim because it contains no allegation of purposeful or intentional discrimination. On the contrary, we believe the following allegation sufficient on this issue: “Plaintiff was disciplied [sic] and finally terminated because of his race and not for good cause in connection with his employment ... plaintiff has been discriminated against by Merchants on account of his race.” (emphasis added). Although the words “purposeful” or “intentional” are not recited, the requisite state of mind is adequately captured in the allegation set out above. See New Mexico ex rel. Candelaria v. City of Albuquerque, 768 F.2d 1207, 1209 (10th Cir.1985).
The second argument advanced by defendant is that the claim of discrimination is not supported by sufficient factual allegations. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Plaintiff, a black man, alleged that he had been disciplined and, ultimately, terminated on account of his race for conduct which did not give rise to similar sanctions when engaged in by defendant’s nonblack employees. Certainly, if plaintiff were to prove these allegations, he would be entitled to relief under § 1981. Although the specifics of the underlying incidents are not detailed in the complaint, we are unwilling to say at this early stage that plaintiff’s action is subject to dismissal on this basis, especially since the issue has not been raised and considered first in the district court. See generally Lessman v. McCormick, 591 F.2d 605, 607, 611 (10th Cir.1979); Candelaria, 768 F.2d at 1210.
Finally, defendant argues that the § 1981 claim cannot stand because Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, provides the exclusive remedy for the wrong alleged in this case, citing Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), and Tafoya v. Adams, 612 F.Supp. 1097 (D.Colo.1985), aff'd on other grounds, 816 F.2d 555 (10th Cir.1987). In Novotny, the Supreme Court held that rights created by Title VII may not be asserted as the basis for a cause of action under 42 U.S.C. § 1985(3). 442 U.S. at 378, 99 S.Ct. at 2352. Obviously, the Novotny holding itself, which dealt only with § 1985(3), is not controlling in the present context. More importantly, Novotny rests on a dual rationale, neither prong of which is applicable to § 1981. First, the Supreme Court emphasized that § 1985(3) is a purely remedial provision that creates no substantive rights. Novotny, 442 U.S. at 372, 376, 99 S.Ct. at 2349, 2351. Consequently, the § 1985(3) remedy cannot stand independently of Title VII when the underlying right to be vindicated is created by Title VII. Id. at 376-77, 378, 99 S.Ct. at 2351, 2352. However, § 1981 differs from § 1985(3) in this important respect, as the Court expressly recognized in Novotny. In addition to its remedial role, § 1981 provided a substantive right against racial discrimination in employment before the enactment of Title VII, and it is that right— not the similar, but supplementary one created by Title VII — upon which plaintiffs § 1981 claim rests. See id. at 377-78, 99 S.Ct. at 2351-52; see also Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975).
Second, the Supreme Court noted in Novotny that, while the legislative histories of the Civil Rights Acts of 1964 and 1968 clearly indicate that Title VII was not meant to disturb the existing substantive rights and remedy provided in § 1981, no mention was made of § 1985. 442 U.S. at 377 & n. 21, 99 S.Ct. at 2351 & n. 21; see also Brown v. General Services Administration, 425 U.S. 820, 833-34, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976); Johnson, 421 U.S. at 459, 95 S.Ct. at 1719.
Although it is important to understand the limited reach of Novotny, an earlier precedent resolves the Title VII preemption issue raised in this case. We believe the Supreme Court’s decision in Johnson, as explained, distinguished and reaffirmed in Brown, 425 U.S. at 833-34, 96 S.Ct. at 1968, and Novotny, 442 U.S. at 377-78, 99 S.Ct. at 2351-52, continues to control this issue and permits the § 1981 cause of action asserted by plaintiff. In Johnson, the Court referred repeatedly to the “independence” of the Title VII and § 1981 remedies and gave effect to the legislative histories discussed above, stating:
“We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted, as, for example, a proscription of a § 1981 action while an EEOC claim is pending.”
Johnson, 421 U.S. at 461, 95 S.Ct. at 1720. The Court concluded that “Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII.” Id. at 466, 95 S.Ct. at 1723. Although Johnson specifically holds only that a claimant’s pursuit of administrative remedies under Title VII does not toll the running of the limitations period for an associated action under § 1981, the case has generally been recognized as establishing the principle that Title VII does not preempt § 1981 as a remedy for private employment discrimination. We have recognized Johnson as establishing the principle that Title VII does not preempt § 1981 as a remedy for private employment discrimination. See Whatley v. Skaggs Companies, Inc., 707 F.2d 1129, 1139 & 1139 n. 9 (10th Cir.), cert. denied, 464 U.S. 938, 104 S.Ct. 349, 78 L.Ed.2d 314 (1983); see also Brown, 425 U.S. at 833, 96 S.Ct. at 1968; Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir.1985), amended, 784 F.2d 1407 (1986); Day v. Wayne County Board of Auditors, 749 F.2d 1199, 1203 (6th Cir.1984); Gooding v. Warner-Lambert Co., 744 F.2d 354, 359 (3d Cir.1984).
We recognize that use of § 1981 to redress wrongs also actionable under Title VII may to some extent appear to subvert the comprehensive statutory scheme established in the latter by, for example, permitting the complainant to bypass the mandatory administrative procedure of Title VII in favor of immediate resort to the courts under § 1981. See Tafoya, 612 F.Supp. at 1100, 1101-02. The Supreme Court, however, while sympathetic to this concern, recognized in Johnson that Congress’ resolution of this issue in favor of joint applicability controls. 421 U.S. at 459, 461, 465-66, 95 S.Ct. at 1722-23; see also Novotny, 442 U.S. at 377 n. 21, 99 S.Ct. at 2351 n. 21; Brown, 425 U.S. at 833-34, 96 S.Ct. at 1968.
Accordingly, we hold that plaintiff may properly pursue his cause of action under § 1981 for private employment discrimination despite the applicability of Title VII to the same conduct. The judgment of the United States District Court for the District of New Mexico is REVERSED and REMANDED.
. This prohibition was extended by the district court in Tafoya to claims brought pursuant to 42 U.S.C. § 1981 and § 1983, although the result in the case was ultimately affirmed by this court on other grounds. Tafoya, 816 F.2d at 556-57, 558.
. Similarly, in Tafoya, we held that the right to be free of retaliatory discharge, created by Title VII, cannot be the sole basis of a § 1983 action. 816 F.2d 558.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_r_nonp
|
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 "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Thomas A. JOHNSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 843, Docket 92-6231.
United States Court of Appeals, Second Circuit.
Submitted Feb. 25, 1993.
Decided March 31, 1993.
Thomas A. Johnson, pro se.
James A. Bruton, Acting Asst. Atty. Gen., Dept, of Justice, Tax Div., Washington, DC (Gary R. Allen, William S. Esta-brook, Billie L. Crowe, Philip H. Karter, Attys., Dept, of Justice, Tax Div., Washington, DC, Albert S. Dabrowski, U.S. Atty. for D. Conn., New Haven, CT, H. Gordon Hall, Asst. U.S. Atty., of counsel), for defendant-appellee.
Before: LUMBARD, McLAUGHLIN, Circuit Judges, and DUFFY, District Judge.
Hon. Kevin Thomas Duffy, United States District Judge for the Southern District of New York, sitting by designation.
LUMBARD, Circuit Judge:
Thomas A. Johnson, pro se, appeals from an order of the District Court of Connecticut, Dorsey, J, granting the government’s motion for summary judgment in his action to quiet title to his property by removing a tax lien. Johnson contends that this ruling was in error because the IRS assessed the tax which formed the basis of the lien before his time for filing an appeal expired. We agree and reverse.
On August 2, 1990, the Tax Court, Wright, /., determined that Johnson was liable for income tax deficiencies for the taxable years 1980 through 1984. On September 24, 1990, 53 days after this ruling, the IRS assessed Johnson for these deficiencies, and on July 9, 1991, the IRS filed a tax lien on Johnson’s real and personal property in the amount of $347,364.33.
Johnson brought this suit, pursuant to 28 U.S.C. § 2410(a) (1988), to quiet title to his property, claiming that the lien was invalid because the IRS assessed the deficiency prior to the Tax Court’s decision becoming final, in violation of 26 U.S.C. § 6213(a) (1988). Thereafter, the IRS reassessed Johnson’s tax deficiency for 1984, but not for 1980 to 1983 because the statute of limitations for supplemental, assessments had expired.
Both parties moved for summary judgment on the issue of the validity of an assessment made before expiration of the 90-day period for filing an appeal provided in 26 U.S.C. § 6213(a). By order dated August 17, 1992, Judge Dorsey upheld the assessment, concluding that a tax assessment cannot be stayed during the appeal period unless the taxpayer files a notice of appeal and an appellate bond as provided by 26 U.S.C. § 7485 (1988). Because an assessment made during the unexpired appeal period is void, we reverse.
A. Jurisdiction
Initially, we find that the district court had subject matter jurisdiction over this case because 28 U.S.C. § 2410(a) waives the sovereign immunity of the United States. Section 2410(a) states that the United States may be named as a party in “any civil action ... to quiet title to ... real or personal property on which the United States has or claims a mortgage or other lien.” When a federal tax lien is involved, however, an action pursuant to § 2410(a) will not lie if its sole purpose is to challenge the validity of the underlying assessment. See Falik v. United States, 343 F.2d 38, 41 (2d Cir.1965).
An exception to this restriction permits a party to challenge procedural irregularities in the assessment process by way of § 2410(a). In Kulawy v. United States, 917 F.2d 729, 733 (2d Cir.1990), we held that § 2410(a) permitted the taxpayer to “challenge procedural irregularities in the seizure and sale of his property following such an assessment.” As the Tenth Circuit explained, the scope of this exception includes “procedural violations arising from assessment, levy, and seizure.” Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir.1992).
Because Johnson’s claim is procedural in nature, it falls within this exception. A procedural claim is one which does not challenge “the existence or extent of substantive tax liability.” Guthrie, 970 F.2d at 736. Applying this standard, the Guthrie court held that the alleged failure of the IRS to assess the tax properly or to send valid notices of assessment were procedural defects cognizable in a quiet title suit. Id. at 737. See also Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990) (failure to send valid notice of assessment is procedural); Brewer v. United States, 764 F.Supp. 309, 314 (S.D.N.Y.1991) (§ 2410(a) may be used to challenge the procedures used in making the assessment). Here, Johnson’s claim is procedural because he disputes the timing of the assessment, not its amount.
B. Validity of the Assessment
We find that the assessment was invalid because it was made before the Tax Court’s decision became final. Section 6213(a) provides that “no assessment of a deficiency ... shall be made ... until the decision of the Tax Court has become final.” 26 U.S.C. § 6213(a). A decision becomes final upon expiration of the 90-day period allowed for filing a notice of appeal. See 26 U.S.C. § 7481(a)(1) (1988). In this case, the tax was assessed 53 days after the Tax Court’s decision, well before the period for filing a notice of appeal expired.
In concluding that the assessment was valid, the district court relied on 26 U.S.C. § 7485, which provides:
Notwithstanding any provision of law imposing restrictions on the assessment and collection of deficiencies, the review under section 7483 shall not operate as a stay of assessment or collection ... unless a notice of appeal in respect of such portion is duly filed ... and then only if the taxpayer ... has filed with the Tax Court a bond....
The court interpreted this provision as requiring a taxpayer to file a notice of appeal and to post a bond before an assessment would be stayed.
As the government now concedes, this reliance is misplaced. Thus, we conclude that the assessment is void because it was made during the unexpired period for filing a notice of appeal. Section 7485 establishes the circumstances under which appellate review of a Tax Court decision stays an assessment. In seeking such review, the taxpayer must file a timely notice of appeal. See 26 U.S.C. § 7483 (1988). Since Johnson did not file a notice of appeal, there is no appellate review, and § 7485 does not apply.
We also reject the government’s argument that the assessment becomes valid upon the expiration of the appeal period. The assessment violated § 6213(a), and we decline to “give the Commissioner an arbitrary power which it was not intended he should have,” United States v. Yellow Cab Co., 90 F.2d 699, 701 (7th Cir.1937), by validating the assessment. This view is consistent with United States v. Walker, 217 F.Supp. 888, 892 (W.D.S.C.1963), in which the court held an identical assessment, i.e. one made within the appeal period, “null, void and of no force and effect.” See also Philadelphia & Reading Corp. v. United States, 944 F.2d 1063, 1072 (3d Cir.1991) (assessment was void because deficiency notices were not issued); Ventura Consol. Oil Fields v. Rogan, 86 F.2d 149, 153 (9th Cir.1936) (assessment during the period for petitioning the Board of Tax Appeals (now the Tax Court) was illegal and given no effect), cert. denied, 300 U.S. 672, 57 S.Ct. 610, 81 L.Ed. 878 (1937); Yellow Cab Co., 90 F.2d at 701 (assessment while petition was pending before the Board of Tax Appeals was void).
Reversed.
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
FIGGE AUTO CO., a Co-Partnership, and Greg Figge, Individually, and Lloyd H. Strand, Administrator of the Estate of Cyril R. Figge, Deceased, Appellants, v. David James TAYLOR, by Mrs. Arlene Taylor, His Mother and Next Friend, Appellee.
No. 17393.
United States Court of Appeals Eighth Circuit.
Jan. 7, 1964.
Arthur H. Jacobson, Waukon, Iowa, James D. Bristol, Waukon, Iowa, Jacobson & Bristol, Waukon, Iowa, of counsel, for appellants.
Ira J. Melaas, Jr., Decorah, Iowa, Frank R. Miller and Floyd S. Pearson, Decorah, Iowa, Miller, Pearson & Melaas, Decorah, Iowa, for appellee.
Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.
VOGEL, Circuit Judge.
David James Taylor, by his mother and next friend, brought this action against Figge Auto Company, a co-partnership, and Cyril R. Figge and Greg Figge, co-partners, individually, defendants, and Lloyd H. Strand, Administrator of the estate of Cyril R. Figge, deceased, substituted defendant. All parties will be designated here as they were in the court below. Plaintiff sought money damages because of personal injuries sustained by him as the result of an automobile accident. Diversity of citizenship and amount meet federal court jurisdictional requirements.
The case was tried to a jury and resulted in a verdict in plaintiff’s favor in the amount of $22,509. Defendants appealed from the judgment based upon the jury verdict. Error is predicated upon:
1. The District Court’s overruling defendants’ motions for directed verdict and for judgment notwithstanding the verdict.
2. The District Court’s overruling defendants’ motion to clarify a pre-trial order with reference to $1,509 medical expense and the inclusion of such amount in the jury’s verdict. It is defendants’ contention that because plaintiff was a minor, the right to recover for medical expenses would be owned by his parents and testimony regarding such expense was therefore irrelevant in this action.
The first claim of error is based mainly upon defendants’ contention that the plaintiff was guilty of contributory negligence as a matter of law, that he therefore failed to sustain the burden of proving freedom from contributory negligence (a requirement under the law of Iowa) and, further, that the driver of the defendants’ car was not guilty of negligence. As in practically all tort cases, there are here conflicts in the evidence and disputes between witnesses and parties, from which tangled web it was the duty of the jurors, as the finders of the facts, to ascertain and to declare the truth. This they have done as they saw it. That was their responsibility. This as an appellate court, in ruling upon the correctness of the trial court’s overruling a motion for a directed verdict and a motion for judgment notwithstanding the verdict, must view the evidence in the light most favorable to sustaining the jury’s findings. We must also give to the prevailing party the benefit of every reasonable inference that may be drawn from the evidence. MacDonald Engineering Co. v. Hover, 8 Cir., 1961, 290 F.2d 301; Clinton Foods, Inc. v. Youngs, 8 Cir., 1959, 266 F.2d 116, 117-118; Nesei v. Willey, Iowa, 1956, 247 Iowa 621, 75 N.W.2d 257, 259; Gowing v. Henry Field Co., 1938, 225 Iowa 729, 281 N.W. 281, 283; and Goman v. Benedik, 1962, 253 Iowa 719, 113 N.W.2d 738, wherein the Supreme Court of Iowa stated, at page 739 of 113 N.W.2d:
“ * * * It is not disputed by appellant, that we must view the evidence in the light most favorable to plaintiff; that it is only the exceptional case in which the issue of freedom from contributory negligence should not be submitted to the jury — only where such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion; that if there is any evidence tending to establish plaintiff’s freedom from contributory negligence, the question is one of fact for the jury and doubts should be resolved in favor of such submission.”
As Judge John Sanborn said in Glawe v. Rulon, 8 Cir., 1960, 284 F.2d 495, 497:
“It must be kept in mind that this Court will not concern itself with doubtful issues of fact which were for the jury nor with doubtful issues of local law as to which the trial court has reached a permissible conclusion. Webb v. John Deere Plow Co., Inc., 8 Cir., 260 F.2d 850, 852. In that case we said (at page 852): ‘Personal injury eases such as this are essentially fact cases, and it is rarely that a party aggrieved by the verdict of the jury can, on appeal, successfully visit his grievance against the jury upon the trial court.’ See, also, Greene v. Werven, 8 Cir., 275 F.2d 134, 137-138. It seems safe to say that as a general rule the verdict of the jury marks the end of such a case.”
See Minnesota Mutual Life Ins. Co. v. Wright, 8 Cir., 1963, 312 F.2d 655; Gulf, Mobile & Ohio R. Co. v. Thornton, 8 Cir., 1961, 294 F.2d 104; Hanson v. Ford Motor Co., 8 Cir., 1960, 278 F.2d 586; and Greene v. Werven, 8 Cir., 1960, 275 F.2d 134.
Having these rules in mind and notwithstanding that there is evidence to the contrary, the record indicates and the jury could have found and undoubtedly did find the following: The accident occurred on August 14, 1960, at about 12:30 in the morning on a highway between the towns of Calmar and Ossian, Winneshiek County, Iowa. The main traveled portion of the highway was concrete pavement eighteen feet in width and running in an east-west direction. There was an asphalt strip on the south shoulder of the concrete some twelve to eighteen inches wide. The grass shoulder on the south side of the highway measured from eight to eight and one-half feet. The shoulder on the north side of the highway measured approximately seven and a half feet in width. There was a slight drizzle of rain at the time. The plaintiff, then 17 years of age, (20 years old at the time of trial), accompanied by his father, the owner of the car, his mother and four younger sisters and a brother, was driving in an easterly direction on the highway when the left tire on a trailer the family ear was pulling went flat. Plaintiff drove the car and trailer off onto the south shoulder of the highway two to three feet from the main traveled portion of the road. Plaintiff and his father unhooked the trailer from the automobile and the plaintiff prepared to change the tire on the trailer. In the meantime, his father took the car, drove on farther east to a point where he could turn around, which he did, returned to the scene of the accident, and parked his car on the south shoulder of the highway facing west with the headlights shining upon the trailer. The lights were on low beam. Plaintiff began working on the wheel and tire of the trailer. While he was doing so, at least three cars approached from the west going east and passed them safely without any incident whatsoever. At this time Cyril R. Figge, accompanied by his wife, minor son and two minor daughters, was enroute home to Ossian, Iowa, having left Pine Bluff, Wyoming, the morning of August 13, 1960. He was traveling in an easterly direction. There is credible evidence supporting the view that he was traveling at a high rate of speed estimated at 60 to 70 miles per hour; that as he came over a slight rise in the highway approximately 700 feet west of the Taylor vehicles, he saw the headlights of the Taylor car and said to his wife, “I just can’t understand what is ahead of us.” As he approached the Taylor vehicles, he swung to his right onto the south shoulder, striking the plaintiff, the parked and disabled trailer and knocking the Taylor car backward across the highway and into the ditch on the north side. There is substantial evidence in the record supporting the jury’s finding that Cyril R. Figge was guilty of negligence which was a proximate cause of the accident. It requires no detailed discussion.
Under the law of Iowa the plaintiff in such a case as this must plead and prove freedom from contributory negligence before he may recover. Scott v. Chicago, Rock Island & Pacific R. Co., 8 Cir., 1952, 197 F.2d 259, 260; Fort Dodge Hotel Co. of Fort Dodge, Iowa, v. Bartelt, 8 Cir., 1941, 119 F.2d 253, 258; Paulsen v. Haker, 1959, 250 Iowa 532, 95 N.W.2d 47, 55. It is also the law of Iowa, and so conceded by counsel for the defendants, that the negligence of the father is not attributable to his minor child, so that here, if the plaintiff’s father was guilty of negligence, that fact in itself does not establish that the plaintiff was guilty of negligence by imputation. See Wheatley v. Heideman, 1960, 251 Iowa 695, 102 N.W.2d 343, at page 353 of 102 N.W.2d; Primus v. Bellevue Apartments, 1950, 241 Iowa 1055, 44 N.W.2d 347, 25 A.L.R.2d 565; Ives v. Welden, 1901, 114 Iowa 476, 87 N.W. 408. The main, if not the only question regarding liability is whether the jury’s finding that plaintiff was not guilty of contributory negligence is supported by the evidence or if such finding is so contrary to the conclusion which would be reached in the minds of reasonable men that it must be set aside as a matter of law.
Plaintiff himself has no recollection of the collision. He does recall three cars approaching from the west and passing him without interference as he worked on the tire. His last recollection is of turning around and attempting to wash some grease from one of his hands. He was on the shoulder of the highway.
While aside from general rules of law which have been referred to, these cases generally speaking must be determined on a case-to-case basis. Nevertheless, the Supreme Court of Iowa, by whose decisions we are herein bound, has had occasion to pass upon fact situations not too dissimilar from that with which we are here concerned and in doing so has laid down guide lines to assist in determining this one. Such a case is Hanson v. Manning, 1931, 213 Iowa 625, 239 N.W. 793. The accident there occurred on an east-west highway at about 5:30 p. m. November 20, 1929. It was dark. Plaintiff was a guest in a car which had been headed east and was stopped on its right or south side of the highway about one and one-half feet from the south edge of the main traveled portion thereof and so stopped in order to repair a left rear tire. A service car, facing west, was backed within ten to fifteen feet of the disabled car. The road was dry and straight. A light from the rear of the service car furnished light between the two cars where the repairmen were working. Defendant’s car came from the west, passed the service car on the south side, striking the open front door of the disabled car and hitting the plaintiff as he was facing north and about to get into the car from the right side. Defendant’s was the only car that evening that tried to pass to the south of the vehicles. All other traffic had passed on the north side without incident. Because of erroneous instructions, the Supreme Court reversed a jury’s verdict and judgment for the defendant and directed a new trial. In doing so, the court stated at pages 796 and 797 of 239 N.W.:
“Negligence is a relative term. Both plaintiff and defendant were bound to exercise ordinary or reasonable care. Whether either or both have done so depends on the circumstances of the case. When from the facts and circumstances reasonable minds might come to different conclusions as to whether ordinary care was exercised or not, the question is for the jury. Wine v. Jones, 183 Iowa, 1166, 162 N.W. 196, 168 N.W. 318; Vass v. Martin, 209 Iowa, 870, 226 N.W. 920; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465.
“Plaintiff, or rather the owner of the car, had the right to stop, using reasonable care, and the owner and his employees had the right to make repairs and to use the highway in reasonable manner, exercising reasonable care, for that purpose. They were not trespassers, though they might have been negligent. Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130. Presence on one side of the street or the other is not per se negligence. Dickeson v. Lzicar, 208 Iowa, 275, 225 N.W. 406; Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369; Billingsley v. McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424, 426; Schacht v. Quick, 178 Wis. 330, 190 N.W. 87, 25 A.L.R. 130.
******
“The defendant in argument assumes that the lights of the repair truck blinded or deceived defendant, and that defendant did not know that the repair truck was standing still and was deceived into thinking that the repair truck was a moving car. Defendant assumes that defendant did not see the truck or tower light or observe that a car was stationed in the rear of the truck, and assumes that defendant did not know, and in the exercise of reasonable care would not have known, that persons were or might be standing about the truck and car and in peril from his automobile. These matters were for the jury, not fpr the court.
“Plaintiff was not required as matter of law to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury. Wine v. Jones, 183 Iowa, 1166, 1170, 162 N.W. 196, 168 N.W. 318; Spiker v. Ottumwa, 193 Iowa, 844, 849, 186 N.W. 465; Smith v. Spirek, 196 Iowa, 1328, 1333, 195 N.W. 736; 42 C.J. 1135. (Emphasis supplied.)
******
“ * * * Plaintiff was not required to anticipate negligence on the part of the drivers of approaching vehicles. Id.; Shields v. Holtorf, 199 Iowa, 37, 201 N.W. 63; Pixler v. Clemens, 195 Iowa, 529, 532, 191 N.W. 375; 45 C.J. 954.”
Another such case is Janes v. Roach, 1940, 228 Iowa 129, 290 N.W. 87. There a stalled Chevrolet was parked facing west on the north shoulder of a generally east-west highway, with the left rear tire on the pavement. Plaintiff was driving a truck in the opposite direction. He passed the Chevrolet and then parked his truck on his right or gouth shoulder of the pavement, leaving the headlights lighted. Plaintiff left his truck, crossed the highway and was standing in front of the stalled Chevrolet. Defendant, traveling in the same direction as that in which the Chevrolet had been traveling and opposite to that in which plaintiff’s truck had been traveling, ran into the rear of the Chevrolet, which struck the plaintiff, causing injuries which were the basis of his cause of action. In sustaining a judgment based on a verdict of the jury in plaintiff’s behalf, the Supreme Court of Iowa said, at page 90 of 290 N.W.:
“The contention that appellee was guilty of contributory negligence as a matter of law is without merit. He was not standing upon the travel-led portion of the highway and was not required, as a matter of law, to keep a constant lookout for vehicles approaching upon the pavement or to anticipate that another automobile would be driven against the rear of the Chevrolet. He was only required to exercise ordinary care. Whether or not he did so was a question for the fury. Hanson v. Manning, 213 Iowa 625, 239 N.W. 793; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17. The court also instructed the jury that the parking of appellee’s truck on the opposite side of the highway unattended, with motor running and without proper flares, would constitute negligence and submitted to the jury the question of whether or not such negligence contributed to the accident. No reversible error appears in either of said instructions.” (Emphasis supplied.)
See, also, Marts v. John, 1949, 240 Iowa 180, 35 N.W.2d 844, 846, and Engle v. Nelson, 1935, 220 Iowa 771, 263 N.W. 505, citing with approval the Hanson case, supra, and stating at page 508 of 263 N.W.:
“ * * * In that case we held that the ‘plaintiff was not required * * * to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury.’ ”
The principle that it is for the jury to determine whether or not the plaintiff exercised the standard of care required of him was recently reiterated by the Supreme Court of Iowa in Mundy v. Olds, 1961, 252 Iowa 888, 109 N.W.2d 241, 242:
“ * * * Whether or not appellee, in view of the conflict in the testimony, exercised due care under the circumstances for his personal safety, presents a question upon which reasonable minds might well differ. There is substantial proof in the record supporting each party in his contention. It was clearly a fact question for the jury and this Court on appeal will not reweigh the evidence and substitute its opinion for that of the jury. Schoonover v. Fleming, 239 Iowa 539, 32 N.W.2d 99; L. & W. Const. Co. v. Kinser, 251 Iowa 56, 99 N.W.2d 276.”
Defendants rely heavily on Denny v. Augustine, 1937, 223 Iowa 1202, 275 N.W. 117, and Fortman v. McBride, 1935, 220 Iowa 1003, 263 N.W. 345. Each is clearly distinguishable on the facts and is of no help to defendants herein. Other cases cited have been considered and found not to be applicable. We conclude that on defendants’ first point, a jury question as to contributory negligence was presented and that the trial court properly overruled the motion for a directed verdict and the motion for judgment n. o. v.
Defendants’ second point questions the propriety of allowing the jury to include in the verdict the amount of the plaintiff’s medical expense. In plaintiff’s complaint, he sought recovery for medical and hospital expense attributable to his injuries in the amount of $1,693.37. No particular point of the fact that the plaintiff was a minor was made in the defendants’ answer. After a pre-trial conference held on September 18, 1961, before the Honorable John W. Delehant, United States District Judge sitting by assignment, the following order was made:
“The admissions of fact or of documents which will avoid unnecessary proof:
“b) After discussion between counsel, counsel for the defendants agreed to waive the foundation for the introduction in evidence upon the trial of statements or bills for items of expense for which claim is made by the plaintiff but with the understanding that the defendants reserve the right to object to the admission of any such statement or bills in evidence on the ground of relevancy or materiality.”
On November 21, 1962, the attorneys for the parties reported to the court on what apparently was a “preliminary pre-trial conference”, in which they stated:
“11. The following medical and hospital bills have been identified in pencil as preliminary pre-trial exhibits :
“Preliminary Pre-Trial Exhibit Numbers
1. French’s Funeral Home, ambulance service .... $ 15.00
2. Smith Memorial Hospital, hospital expense 1,191.87
3. Garfield Miller, M. D., medical ............. 390.00
4. D. W. Wright, M. D. .. 10.00
5. E. R. S. Wyatt, medical 50.00
6. Kitchener-Waterloo Hospital ............ 44.00
“Defendants agree to waive the foundation for the introduction in evidence upon the trial of the above exhibits but with the understanding that the defendants reserve the right to object to the admission of any such exhibit on the ground of relevancy or materiality. Defendants agree that the amounts stated in the various exhibits above set forth are fair and reasonable values for the services for which the charges are made. The foregoing exhibits are retained in the file of the plaintiff’s attorney and will be produced upon pre-trial conference.
“29. The parties call the Court’s attention to the pre-trial conference report made by the Hon. John W. Delehant on September 18, 1961.”
On January 31, 1963, the Honorable Edward J. McManus, to whom the preliminary pre-trial conference report had been presented, made the following “Final Pre-Trial Order”:
“1. * * * It is further stipulated that as a result of injuries received in the collision, plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00 and that a person the age of plaintiff at the time of trial has a life expectancy of 50.37 years. It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendant objects to its causal connection with the collision.” (Emphasis supplied.)
On April 22, 1963, the day the case opened for trial before a jury, defendants’ counsel filed a motion to clarify the final pre-trial order entered January 31, 1963, supra. The motion was resisted by plaintiff’s counsel. Judge McManus overruled defendants’ motion, stating, inter alia:
“In view of the stipulation and the final pre-trial order of January 31, 1963, the Court is going to, and does, overrule the motion to clarify the final pre-trial order with the feeling that the interest of justice dictates the decision under the circumstances of the case.”
During trial and just before the plaintiff rested, plaintiff’s counsel, without objection by the defendants, read the following stipulation into the record before the jury:
“Mr. Melaas: The parties stipulate and agree that on August 14, 1960, at 12:30 Á.M., a collision occurred between an automobile being driven and operated by Cyril R. Figge and certain motor vehicle equipment with which the plaintiff was working, and that as a direct result of such collision plaintiff was injured. It is further agreed that at such time and place the Corvair automobile operated by Cyril R. Figge was owned by the Figge Auto Company, a partnership consisting of Cyril R. Figge and Gregg Figge as co-partners, and that at the time of the collision the defendant, Cyril R. Figge, who is now deceased, was driving the automobile with the consent of its owner.
“It is further stipulated — I should read about the medical.
“The Court: Now this paragraph of the stipulation covers the matters in your medical and hospital bills, Exhibits Q to U, inclusive, and this will be for the particular benefit of the jury as far as the totals involved are concerned.
“Mr. Melaas: It is further stipulated that as a result of the injuries received in the collision, plaintiff sustained damages for medical and hospital expense in the total sum of $1509.00, and that a person the age of the plaintiff at the time of trial has a life expectancy of 50.37 years.
“It is further stipulated that plaintiff sustained hospital and doctor expenses in the sum of $191.87 as a result of mononucleosis, but the defendants object to its causal connection with the collision. The Court has sustained defendants’ objection to the hospital and doctor expenses in the sum of $191.87 that are attributable to the mononucleosis. The Court has admitted into evidence the bills totalling $1509.00 for the medical and hospital expense as stipulated to by the parties.” (Emphasis supplied.)
In charging the jury, the trial court stated:
“Plaintiff alleges that by reason of his claimed injuries, proximately resulting from the accident involved in this case, he has sustained general damages in the sum of $75,000.00 and has lost an additional sum of $1,693.37 on account of medical and hospital expenses.”
No exception was taken to such charge. During their deliberations the jurors sent a note to the trial judge as follows:
“Does the amount to be placed on the face of the verdict include the medical expenses.
“Example: of his recovery at $40,000.00 or $41,509.00.
“This is just an example attach no significance to figures.
“Mr. A. P. DeLong, Foreman.”
The court gave the following supplemental instruction, to which no exception was taken:
“In answer to your request for supplemental instruction, you are instructed that the amount to be placed on the form of the verdict should include the medical expense, if the jury finds the plaintiff is entitled to recover.”
The verdict was for $22,509, obviously giving the plaintiff $1,509 medical expense incurred by reason of the accident and excluding the $191.87 medical ex-' pense attributed to mononucleosis, to which defendants had particularized objections while stipulating that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00.”
We think the following matters are supportive of our opinion that no error has been committed: (1) The failure of defendants’ counsel to object to the reading of the stipulation before the jury during the trial of the case; (2) the failure of defendants’ counsel to object to the court’s charge with reference to the medical expense; and (3) the failure of the defendants’ counsel to object to the supplemental instruction with reference to medical expense. Under Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C.A., no party may assign as error -the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
With reference to possible exceptions to the applicability of Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A., Vol. 2B, Barron and Holtzoff, Federal Practice and Procedure, 1961 edition, states at page 475:
“ * * * if there is to be a plain error exception to Rule 51 at all, it should be confined to the exceptional case where the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings.”
We do not consider this such a case but, rather, that if there was error at all, it was harmless error within the provisions of Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A.
Additionally, it should be pointed out that at the time of trial plaintiff was earning $67 a week as a technician for the Naugatauk Chemicals; that he was also operating the family farm; and that he was raising rabbits commercially. It may well be that he had himself paid the medical expenses or had promised to pay for them. Furthermore, under Section 599.2 of the Iowa Code Annotated there could well be a secondary liability on the plaintiff even though he was a minor at the time of trial. In any event, the stipulation entered into by the parties through their counsel to the effect that “ * * * plaintiff sustained damages for medical and hospital expenses in the total sum of $1,509.00” (emphasis supplied) and their particularization in the stipulation with reference, to their objections to the $191.87 expense for mononucleosis because it was not connected with the accident, may-very well have led counsel into believing,, as we think it did, that no proof of payment or obligation to pay or further establishment of personal liability on the part of the plaintiff himself was necessary. For all of the reasons given, we believe that the inclusion in the general verdict of the stipulated $1,509 medical expense as damages sustained by the plaintiff “as a result of injuries received in the collision” was not error but was substantial justice.
Affirmed.
. Both plaintiff’s father and Cyril R. Figge, driver of the Figge car, became deceased subsequent to the accident and before trial in the Distinct Court. Neither death is connected with this accident.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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sc_casesource
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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.
McCREARY COUNTY, KENTUCKY, et al. v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al.
No. 03-1693.
Argued March 2, 2005
Decided June 27, 2005
Mathew D. Staver argued the cause for petitioners. With him on the briefs were Erik W. Stanley, Rena M. Lindevald-sen, Bruce W. Green, and Mary E. McAlister.
Acting Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Deputy Assistant Attorney General Katsas, Patricia A Millett, Robert M. Loeb, and Lowell V. Sturgill, Jr.
David A. Friedman argued the cause for respondents. With him on the brief were Lili R. Lutgens and Steven R. Shapiro
Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Troy King, Attorney General of Alabama, Kevin C. New-som, Solicitor General, and Charles B. Campbell, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Phill Kline of Kansas, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Jim Hood of Mississippi, Jim Petro of Ohio, Gerald J. Pappert of Pennsylvania, Henry McMaster of South Carolina, Greg Abbott of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, and Patrick J. Crank of Wyoming; for the State of Minnesota et al. by Mike Hatch, Attorney General of Minnesota, and John S. Garry, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Jeremiah W. (Jay) Nixon of Missouri, Patricia A Madrid of New Mexico, W. A Drew Edmondson of Oklahoma, and Peggy A Lauten-schlager of Wisconsin; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Francis J. Manion, and Walter M. Weber; for the American Legion by Kelly Shackelford and Philip B. Ond-erdonk, Jr.; for the American Liberties Institute et al. by Frederick H. Nelson; for the Ashbrook Center for Public Affairs et al. by Steven C. Seeger; for the Becket Fund for Religious Liberty by Anthony R. Pi-carello, Jr.; for the Conservative Legal Defense and Education Fund et al. by Herbert W. Titus and William J. Olson; for the Eagle Forum Education & Legal Defense Fund by Douglas G. Smith and Phyllis Schlajly; for Faith and Action et al. by Bernard P. Reese, Jr.; for the Family Research Council, Inc., et al. by Robert P. George; for the Foundation for Moral Law, Inc., by Benjamin D. DuPré and Gregory M. Jones; for Judicial Watch, Inc., by Paul J. Orfanedes and Meredith L. Cavallo; for the Pacific Justice Institute by Peter D. Lepiscopo; for the Rutherford Institute by John W. Whitehead; for the Thomas More Law Center by Edward L. White III; and for Wallbuilders, Inc., by Barry C. Hodge.
Briefs of amici curiae urging affirmance were filed for American Atheists by Robert J Bruno; for the American Humanist Association et al. by Elizabeth L. Hileman; for Americans United for Separation of Church and State et al. by William M. Hohengarten, Ian Heath Gershengorn, Ayesha Khan, Richard B. Katskee, and Judith E. Schaeffer; for the Anti-Defamation League et al. by Jeffrey R. Babbin, Aaron S. Bayer, Kenneth D. Heath, Frederick M. Lawrence, Daniel S. Alter, and Steven M. Freeman; for the Atheist Law Center et al. by Pamela L. Sumners and Larry Darby; for the Baptist Joint Committee et al. by Douglas Laycock, Jeffrey P. Sinensky, K Hollyn Hollman, and Marc D. Stern; for the Council for Secular Humanism et al. by Ronald A Lindsay; for the Freedom from Religion Foundation by James A Friedman and James D. Peterson; and for Legal Historians and Law Scholars by Steven K Green.
Julie Underwood filed a brief of amici curiae for the National School Boards Association et al.
Justice Souter
delivered the opinion of the Court.
Executives of two counties posted a version of the Ten Commandments on the walls of their courthouses. After suits were filed charging violations of the Establishment Clause, the legislative body of each county adopted a resolution calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code,” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. Action No. 99-507, p. 1 (ED Ky.) (hereinafter Def. Exh.. 1). The result in each instance was a modified display of the Commandments surrounded by texts containing religious references as their sole common element. After changing counsel, the counties revised the exhibits again by eliminating some documents, expanding the text set out in another, and adding some new ones.
The issues are whether a determination of the counties’ purpose is a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the counties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.
I
In the summer of 1999, petitioners McCreary County and Pulaski County, Kentucky (hereinafter Counties), put up in their respective courthouses large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus. In McCreary County, the placement of the Commandments responded to an order of the county legislative body requiring “the display [to] be posted in ‘a very high traffic area’ of the courthouse.” 96 F. Supp. 2d 679, 684 (ED Ky. 2000). In Pulaski County, amidst reported controversy over the propriety of the display, the Commandments were hung in a ceremony presided over by the county Judge-Executive, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine God” after viewing the Earth from the moon. Dodson, Commonwealth Journal, July 25, 1999, p. Al, col. 2, in Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction in Civ. Action No. 99-509 (ED Ky.) (internal quotation marks omitted). The Judge-Executive was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.” Id., at A2, col. 3 (internal quotation marks omitted). In both Counties, this was the version of the Commandments posted:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven images.
“Thou shalt not take the name of the Lord thy God in vain.
“Remember the sabbath day, to keep it holy.
“Honor thy father and thy mother.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness.
“Thou shalt not covet.
“Exodus 20:3-17.” Def. Exh. 9 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. Action No. 99-507 (ED Ky.) (hereinafter Def. Exh. 9).
In each County, the hallway display was “readily visible to... county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register ears, to pay local taxes, and to register to vote.” 96 F. Supp. 2d, at 684; American Civil Liberties Union of Kentucky v. Pulaski County, 96 F. Supp. 2d 691, 695 (ED Ky. 2000).
In November 1999, respondents American Civil Liberties Union of Kentucky et al. sued the Counties in Federal District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, and sought a preliminary injunction against maintaining the displays, which the ACLU charged were violations of the prohibition of religious establishment included in the First Amendment of the Constitution. Within a month, and before the District Court had responded to the request for injunction, the legislative body of each County authorized a second, expanded display, by nearly identical resolutions reciting that the Ten Commandments are “the precedent legal code upon which the civil and criminal codes of... Kentucky are founded,” and stating several grounds for taking that position: that “the Ten Commandments are codified in Kentucky’s civil and criminal laws”; that the Kentucky House of Representatives had in 1993 “voted unanimously... to adjourn... ‘in remembrance and honor of Jesus Christ, the Prince of Ethics’ that the “County Judge and... magistrates agree with the arguments set out by Judge [Roy] Moore” in defense of his “display [of] the Ten Commandments in his courtroom”; and that the “Founding Father[s] [had an] explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.” Def. Exh. 1, at 1-3, 6.
As directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that it, too, be posted, id., at 9. In addition to the first display’s large framed copy of the edited King James version of the Commandments, the second included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the “endowed by their Creator” passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, “In God We Trust”; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30,1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible,” reading that “[t]he Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact. 96 F. Supp. 2d, at 684; 96 F. Supp. 2d, at 695-696.
After argument, the District Court entered a preliminary injunction on May 5, 2000, ordering that the “display... be removed from [each] County Courthouse IMMEDIATELY” and that no county official “erect or cause to be erected similar displays.” 96 F. Supp. 2d, at 691; 96 F. Supp. 2d, at 702-703. The court’s analysis of the situation followed the three-part formulation first stated in Lemon v. Kurtzman, 403 U. S. 602 (1971). As to governmental purpose, it concluded that the original display “lack[edj any secular purpose” because the Commandments “are a distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God.” 96 F. Supp. 2d, at 686; 96 F. Supp. 2d, at 698. Although the Counties had maintained that the original display was meant to be educational, “[t]he narrow scope of the display — a single religious text unaccompanied by any interpretation explaining its role as a foundational document — can hardly be said to present meaningfully the story of this country’s religious traditions.” 96 F. Supp. 2d, at 686-687; 96 F. Supp. 2d, at 698. The court found that the second version also» “clearly lack[ed] a secular purpose” because the “Count[ies] narrowly tailored [their] selection of foundational documents to incorporate only those with specific references to Christianity.” 96 F. Supp. 2d, at 687; 96 F. Supp. 2d, at 699.
The Counties filed a notice of appeal from the preliminary injunction but voluntarily dismissed it after hiring new lawyers. They then installed another display in each courthouse, the third within a year. No new resolution authorized this one, nor did the Counties repeal the resolutions that preceded the second. The posting consists of nine framed documents of equal size, one of them setting out the Ten Commandments explicitly identified as the “King James Version” at Exodus 20:3-17, 145 F. Supp. 2d 845, 847 (ED Ky. 2001), and quoted at greater length than before:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water underneath the earth: Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.
“Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain.
“Remember the sabbath day, to keep it holy.
“Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.
“Thou shalt not kill.
“Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness against thy neighbour.
“Thou shalt not covet thy neighbour’s house, thou shalt not covet th[y] neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is th[y] neighbour’s.” App. to Pet. for Cert. 189a.
Assembled with the Commandments are framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. The collection is entitled “The Foundations of American Law and Government Display” and each document comes with a statement about its historical and legal significance. The comment on the Ten Commandments reads:
“The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that ‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.’ The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.” Id., at 180a.
The ACLU moved to supplement the preliminary injunction to enjoin the Counties’ third display, and the Counties responded with several explanations for the new version, in-eluding desires “to demonstrate that the Ten Commandments were part of the foundation of American Law and Government” and “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.” 145 F. Supp. 2d, at 848 (internal quotation marks omitted). The court, however, took the objective of proclaiming the Commandments' foundational value as “a religious, rather than secular, purpose” under Stone v. Graham, 449 U. S. 39 (1980) (per curiam), 145 F. Supp. 2d, at 849, and found that the assertion that the Counties’ broader educational goals are secular “crumble[s]... upon an examination of the history of this litigation,” ibid. In light of the Counties’ decision to post the Commandments by themselves in the first instance, contrary to Stone, and later to “accentuate]” the religious objective by surrounding the Commandments with “specific references to Christianity,” the District Court understood the Counties’ “clear” purpose as being to post the Commandments, not to educate. 145 F. Supp. 2d, at 849-850 (internal quotation marks omitted).
As requested, the trial court supplemented the injunction, and a divided panel of the Court of Appeals for the Sixth Circuit affirmed. The Circuit majority stressed that under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with other material so as to carry “a secular message,” 354 F. 3d 438, 449 (2003). The majority judges saw no integration here because of a “lack of a demonstrated analytical or historical connection [between tfle Commandments and] the other documents.” Id., at 451. They noted in particular that the Counties offered no support for their claim that the Ten Commandments “provided] the moral backdrop” to the Declaration of Independence or otherwise “profoundly influenced” it. Ibid, (internal quotation marks omitted). The majority found that the Counties’ purpose was religious, not educational, given the nature of the Commandments as “an active symbol of religion [stating] ‘the religious duties of believers.’ ” Id., at 455. The judges in the majority understood the identical displays to emphasize “a single religious influence, with no mention of any other religious or secular influences,” id., at 454, and they took the very history of the litigation as evidence of the Counties’ religious objective, id., at 457.
Judge Ryan dissented on the basis of wide recognition that religion, and the Ten Commandments in particular, have played a foundational part in the evolution of American law and government; he saw no reason to gainsay the Counties’ claim of secular purposes. Id., at 472-473. The dissent denied that the prior displays should have any bearing on the constitutionality of the current one: a “history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display.” Id., at 478.
We granted certiorari, 543 U. S. 924 (2004), and now affirm.
II
Twenty-five years ago in a case prompted by posting the Ten Commandments in Kentucky’s public schools, this Court recognized that the Commandments “are undeniably a sacred text in the Jewish and Christian faiths” and held that their display in public classrooms violated the First Amendment’s bar against establishment of religion. Stone, 449 U. S., at 41. Stone found a predominantly religious purpose in the government’s posting of the Commandments, given their prominence as “ ‘an instrument of religion,’ ” id., at 41, n. 3. (quoting School Dist. of Abington Township v. Schempp, 374 U. S. 203, 224 (1963)). The Counties ask for a different approach here by arguing that official purpose is unknowable and the search for it inherently vain. In the alternative, the Counties would avoid the District Court’s conclusion by having us limit the scope of the purpose enquiry so severely that any trivial rationalization would suffice, under a standard oblivious to the history of religious government action like the progression of exhibits in this case.
A
Ever since Lemon v. Kurtzman summarized the three familiar considerations for evaluating Establishment Clause claims, looking to whether government action has “a secular legislative purpose” has been a common, albeit seldom dis-positive, element of our cases. 403 U. S., at 612. Though we have found government action motivated by an illegitimate purpose only four times since Lemon, and “the secular purpose requirement alone may rarely be determinative..., it nevertheless serves an important fimetion.” Wallace v. Jaffree, 472 U. S. 38, 75 (1985) (O’Connor, J., concurring in judgment).
The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonre-ligion.” Epperson v. Arkansas, 393 U. S. 97, 104 (1968); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947); Wallace, supra, at 53. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335 (1987) (“Lemon’s ‘purpose’ requirement aims at preventing [government] from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters”). Manifesting a purpose to favor one faith over another,, or adherence to religion generally, clashes with the “understanding, reached... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens....” Zelman v. Simmons-Harris, 536 U. S. 639, 718 (2002) (Breyer, J., dissenting). By showing a purpose to favor religion, the government “sends the... message to... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members-’” Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 309-310 (2000) (quoting Lynch v. Donnelly, 465 U. S. 668, 688 (1984) (O’Connor, J., concurring)).
Indeed, the purpose apparent from government action can have an impact more significant than the result expressly decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable. This is the teaching of McGowan v. Maryland, 366 U. S. 420 (1961), which upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind centuries-old predecessor laws. Id., at 449-451
B
Despite the intuitive importance of official purpose to the realization of Establishment Clause values, the Counties ask us to abandon Lemon's purpose test, or at least to truncate any enquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredietably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing.
Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country, e. g., General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 600 (2004) (interpreting statute in light of its “text, structure, purpose, and history”), and governmental purpose is a key element of a good deal of constitutional doctrine, e. g., Washington v. Davis, 426 U. S. 229 (1976) (discriminatory purpose required for Equal Protection violation); Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 352-353 (1977) (discriminatory purpose relevant to dormant Commerce Clause claim); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993) (discriminatory purpose raises level of scrutiny required by free exercise claim). With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago.
But scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts. Wallace, 472 U. S., at 74 (O’Connor, J., concurring in judgment). The eyes that look to purpose belong to an “ ‘objective observer,’ ” one who takes account of the traditional external signs that show up in the “ ‘text, legislative history, and implementation of the statute,’” or comparable official act. Santa Fe, supra, at 308 (quoting Wallace, supra, at 76 (O’Connor, J., concurring in judgment)); see also Edwards v. Aguillard, 482 U. S. 578, 594-595 (1987) (enquiry looks to “plain meaning of the statute’s words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute,... and the specific sequence of events leading to [its] passage”). There is, then, nothing hinting at an unpredictable or disingenuous exercise when a court enquires into purpose after a claim is raised under the Establishment Clause.
The cases with findings of a predominantly religious purpose point to the straightforward nature of the test. In Wallace, for example, we inferred purpose from a change of wording from an earlier statute to a later one, each dealing with prayer in schools. 472 U. S., at 58-60. And in Edwards, we relied on a statute’s text and the detailed public
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
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011. U.S. Court for China
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016. Territorial Trial Court
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025. U.S. Court of Appeals, Sixth Circuit
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029. U.S. Court of Appeals, Tenth Circuit
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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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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
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192. Rhode Island U.S. Circuit for the District of Rhode Island
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196. Vermont U.S. Circuit for the District of Vermont
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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
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204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_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.
MOGIS v. LYMAN-RICHEY SAND & GRAVEL CORP.
No. 14182.
United States Court of Appeals Eighth Circuit.
June 28, 1951.
Swenson, Viren & Turner, Omaha, Neb., for the appellant Einar Viren, Omaha, Neb., argued.
Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for the appellee Leo Eisenstatt and Yale C. Holland, Omaha, Neb., argued.
Before COLLET and STONE, Circuit Judges, and DELEHANT, District Judge.
PER CURIAM.
On May 18, 1951, this Court, 189 F.2d 130, affirmed the judgment of the District Court, 90 F.Supp. 251. June 2, 1951, appellant filed a petition for rehearing. Included in the grounds urged in this petition are that “this court erred in oyerruling appellant’s motion to stay the proceedings until a construction of the Nebraska filing statute could be obtained in the courts of the State of Nebraska, and the appellant further urges that the court erred in affirming the action of the district court in dismissing the appellant’s complaint rather than remanding the cause with directions to hold pending decision of the state question in the state court.”
Several months before argument and submission of this appeal, appellant filed a motion requesting further time to file his briefs and moving “that the Court not hear and determine this appeal, until a reasonable time has passed, during which a conclusive interpretation by the Nebraska State Courts can be sought on the question of Nebraska law presented to this Court in this appeal.” As an exhibit and part of this motion was attaohed a petition in the District Court of Lancaster County, Nebraska, filed by Albert Tady against the Nebraska State Railway Commission, its officers and members for a declaratory judgment determining the legal duties of the Commission “in respect to the filing of motor carrier rates fixed by the Nebraska State Railway Commission with the Secretary of State of Nebraska and the applicability of Chapter 84 — 901 to Chapter 84-906, to rates fixed and established by the Railway Commission; and that the Court declare the legal effect and validity of the motor carrier rates issued and prescribed by the Nebraska State Railway Commission and purporting to be presently effective but not filed with the Secretary of State of Nebraska; and that in the event the Court should find that Official Motor Vehicle Tariff No. 3, together with its amendments, should be filed by the Railway Commission with the Secretary of State, then in that event,” an order is prayed requiring such filing.
In so far as this motion sought “to stay these proceedings pending the determination of another action by the Supreme Court of Nebraska”, appellee moved this Court to “dismiss and overrule appellant’s motion”. This Court denied stay sought by appellant; granted further time for briefs and reassigned the setting of this appeal to the later March 1951 term. The case was then presented and submitted.
We think we have no power to grant the stay thus sought. This case is purely one at law seeking a personal judgment for money. Only in “exceptional cases,” Meredith v. Winter Haven, 320 U.S. 228, 234, 64 S.Ct. 7, 11, 88 L.Ed. 9, is it not the duty of federal courts “to decide questions of state law whenever necessary to the rendition of a judgment” (same citation). “The exceptions relate to the discretionary powers of courts of equity,” 320 U.S. at page 235, 64 S.Ct. at page 11. Had we power to suspend or stay decision here (in some proper form and upon suitable terms) we would be inclined so to do.
Because of lack of power as to this ground for rehearing and for lack of merit in the other grounds presented in the petition, the petition for rehearing is
Denied.
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_procedur
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
George M. MASON, Appellant, v. UNITED STATES of America, Appellee.
No. 5639.
United States Court of Appeals Tenth Circuit.
Dec. 18, 1957.
Walter L. Budge, Salt Lake City, Utah, for appellant.
C. Nelson Day, Asst. U. S. Atty., Salt Lake City, Utah (A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, on the brief), for appellee.
Before HUXMAN, HURRAH and BREITENSTEIN, Circuit Judges.
HUXMAN, Circuit Judge.
Appellant, George M. Mason, was duly tried and convicted by a jury on an eight count information in the United States District Court for the District of Utah. Count one and two charged him with wilfully and knowingly failing to make and file an income tax return for the years 1952 and 1953, respectively. Counts three through eight charged him with wilfully and knowingly failing to file employment tax returns for the periods set out in the various counts. Trial was had to a jury and it found appellant guilty on all counts. He was sentenced to serve six months and one day on each of counts one, two, three and four, the sentences being made to run concurrently. Sentence on counts five, six, seven and eight was suspended and as to those counts he was placed on probation for two years.
One general assignment of error is urged for reversal. It is that “Trial of appellant in the court below was not conducted in a manner ‘fair’ as guaranteed by the Constitution of the United States of America.” The gist of this is to say that the trial resulted in a denial of due process. This general assignment is broken down into three parts.
It is urged that the court violated appellant’s constitutional rights by requiring trial by jury. Appellant sought to waive trial by jury and requested a court trial. Over appellant’s objection, the court submitted the case to a jury for trial. Trial by jury is guaranteed to an accused by the Sixth Amendment to the Constitution and by Article 3, Section 2 of the United States Constitution. It is argued that trial by jury is a privilege accorded to the accused which he may waive and when waived by him and a trial by the court is requested the request must be granted.
In most cases where this question has been considered the accused had waived the right to a jury trial and the question then arose whether there was a valid constitutional waiver of such right. No cases are cited and our search has failed to reveal one in which the precise question of an accused’s right to waive a jury trial and demand trial by the court was in issue. We, however, feel that the philosophy of the law is well established that the trial court is vested with a sound discretion in determining whether a jury trial should or should not be had, notwithstanding the accused’s, request that he be tried to the court. Such is the sense of Rule 23(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides that “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” Under this rule, the right to waive a jury and be tried to the court is not an. absolute one; it requires the approval of the court and the consent of the government. Such we think is also the philosophy of the law as declared by the Supreme Court in Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854, where the Court <said:
“In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect' at all events. That perhaps sufficiently appears already. Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact-finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.”
Appellant’s contention that the trial court violated due process in refusing to accept appellant’s offer to plead nolo contendere is not well taken. Rule 11 of the Federal Rules of Criminal Procedure provides that “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere * * * ”. It is not necessary to decide whether a refusal to accept a plea of nolo contendere under certain circumstances may constitute an abuse of discretion. All the cases hold that the trial court is vested with a broad discretion in determining whether a plea of nolo contendere shall be accepted. The record is devoid of any suggestion that the court abused its discretion in refusing to accept the plea.
Finally, it is contended that such grave errors were committed throughout the trial in the admission and rejection of evidence as to result in the denial of due process. We have examined the lengthy record of 375 pages. It contains a great amount of detailed evidence relating to receipt of money by appellant, not only in the years in question but in other years as well, with respect to his failure to file income tax returns in a number of years other than the ones in question. There was also a great deal of detailed evidence of questionable probative value, cumulative evidence, and matters of that kind. It may be conceded that much of this evidence might well have been eliminated. It is sufficient, however, to say that there was little objection to the receipt of any evidence. The trial court gave clear, full and correct instructions on all material issues. Assuming without deciding that evidence was erroneously received and that some was also excluded, none of it was of such a nature as to be offensive to the concept of a fair and impartial trial as contemplated by what is meant by due process. In other words, the record is devoid of any suggestion showing that the trial was not carried on in a wholesome manner having due regard to the protection of every right afforded appellant by the law of the ^nd.
Affirmed.
. Reaffirmed in Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 87 L.Ed. 268.
. United States v. Standard Ultramarine & Color Co., D.C., 137 F.Supp. 167; A.B. Dick Co. v. Marr, D.C., 95 F.Supp. 83; United States v. Jones, D.C., 119 F.Supp. 288; United States v. Safeway Stores, D.C., 20 F.R.D. 451.
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_genapel2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
In the Matter of ED HUGHES FURNITURE COMPANY, Inc., Bankrupt; H. H. Woodsmall Agency, Inc., Plaintiff-Appellant, v. B. Howard CAUGHRAN, Trustee in Bankruptcy, Defendant-Appellee.
No. 11165.
United States Court of Appeals, Seventh Circuit.
Feb. 3, 1955.
Edward B. Raub, Jr., Indianapolis, Ind., Carl T. Reis, Indianapolis, Ind., White, Raub, Craig & Forrey, Indianapolis, Ind., of counsel, for appellant.
Frank C. Olive, Murray E. Dulberger, Indianapolis, Ind., Dulberger, Talesnick, Claycombe & Bagal, Olive, Knox & O'Hara, Indianapolis, Ind., John H. O’Hara, Indianapolis, Ind., of counsel, for appellee.
Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
Ed Hughes Furniture Company, Inc., became a bankrupt in October, 1952. Plaintiff, H. H. Woodsmall Agency, Inc., filed its proof of secured claim on November 21, 1952. Thereafter, the Trustee in Bankruptcy filed his petition to disallow the claim as secured, which the Referee granted on October 1, 1953. Upon review, the District Court sustained the order. Thereupon, this appeal was prosecuted.
On February 8, 1952, the bankrupt was indebted to plaintiff for insurance premiums upon its stock of merchandise, in the sum of $2635.30. On that date, plaintiff loaned the bankrupt $15,000.00, taking therefor the debtor’s promissory note, deducting from the amount of the loan the sum of $2635.30 in full payment of its then due insurance premiums and paying the remainder to the bankrupt.
The note provided for monthly payments of $1,000.00, and acceleration of maturity in case of failure to pay any installment. To secure it, the bankrupt, simultaneously, executed a chattel mortgage upon all merchandise in its place of business at 317 East Washington Street, Indianapolis, Indiana, containing this provision: “said mortgagor agrees that in the event that there are any removals from said stock by reason of sale, same will be replaced with like or comparable merchandise so that said value shall at all times be maintained at Thirty five thousand Dollars ($35,-000.00) during the term of this agreement.” It included no other provision defining the duties, rights and privileges of the mortgagor with respect to the proceeds of sale of the merchandise.
The balance of the loan remaining after deducting the insurance premiums was deposited in the bank account of the bankrupt, as were proceeds from sales of merchandise from time to time thereafter. Out of the funds received on the note, the bankrupt paid the expenses of normal operation of its business, certain creditors and some installments on the purchase price of the business, which it had not yet fully paid for.
In July, 1952, plaintiff, claiming default on the part of the bankrupt, started foreclosure. On August 1, the two parties entered into an agreement providing that the suit remain in abeyance, and that the bankrupt make H. H. Woodsmall, individually, as escrow agent, certain payments. This it did, and these were applied on the mortgage, so that at the time of bankruptcy the debtor was indebted to plaintiff in the sum of $7,000.00.
After hearing the evidence, the Referee found, inter alia,, that the property covered by the mortgage was never “tagged” as to liens; that the bankrupt owned certain other merchandise stored in warehouses; that the proceeds of sales of merchandise purporting to be covered by the chattel mortgage, from February, 1952 to October 21, 1952, were used to pay operating expenses, including salary, and general indebtedness of the bankrupt; that there was no agreement between the mortgagor and mortgagee that the proceeds of sale of the property were to be “applied upon the mortgage debt”, or “subjected to the lien” thereof, or “used solely for the purpose” of paying the expenses of processing, marketing, or otherwise rendering merchantable or salablé the remaining property purporting to be covered by the mortgage; that after February 8, 1952, the bankrupt received proceeds from the sale of mortgaged property in sums in excess of the amount of the mortgage; that, at the time of the filing of the petition in bankruptcy, the bankrupt had as part of its inventory of salable merchandise some of its merchandise which was on hand February 1952, but that it was not possible to determine the amount and value thereof. The Referee concluded, as a matter of law, that plaintiff was not entitled to a secured claim, and filed a memorandum as to his conception of the controlling principles of the law, all of which was approved by the District Judge on review.
The validity of the chattel mortgage as against the creditors and the Trustee in Bankruptcy, who stands in the shoes of a judgment creditor armed with an execution, is to be determined from the Indiana Statutes. Section 5 of the Chattel Mortgage Act, Section 51-505, Burns’ Indiana Statutes, provides that any mortgage may validly include replacements of mortgaged property; Section 6, Section 51-506, Burns’ Indiana Statutes that a mortgage may validly provide that the mortgagor shall have the right to sell any of the mortgaged chattels “under the conditions stated in said mortgage”, if the proceeds are applied upon the mortgage debt or subjected to the lien of the mortgage. A further provision is that the mortgage will be valid if the proceeds are used solely for the purpose of paying for services of cultivating, harvesting, preparing for market, processing, marketing or otherwise preserving or rendering merchantable or salable the remaining property covered by the said mortgage. This last provision, however, we think, has no relevance to the issues before us.
This statute was passed in 1935. At an early date the Supreme Court had held, in Mobley v. Letts, 61 Ind. 11, that an arrangement whereby the mortgagor was allowed to remain in possession of a mortgaged stock of goods with power to sell the same, was presumed to be fraudulent if it lacked provision for the proper application of the proceeds of sale. The Indiana Legislature later amended the statute, and, accordingly, the earlier decision was overruled in McFadden v. Fritz, 90 Ind. 590, in which the court held that fraudulent intent cannot be presumed, but must be proved as a fact. In other words, the Indiana courts have not explicitly held any such mortgage valid but have decided that, prior to the amendment of 1935, in order to invalidate an instrument, the Fraudulent Conveyance Act, Burns’ Ann.St. § 33-409, required proof that the transaction was founded in fraud. The amendment of 1935 added the specific provisions we have mentioned. Whether it changed substantially the law existing prior thereto it seems unnecessary to decide. At all events it would seem clear that, in view of the express provisions of the statute which had not theretofore appeared in the Indiana laws, the amendment reflected a legislative intent to safeguard the dangers inherent in chattel mortgages upon stocks of merchandise by providing certain restrictions and limitations. At any rate, in In re Turley, 7 Cir., 92 F.2d 944, we held that, under the prior statute, in the absence of fraud, such a mortgage was valid. However, after commenting that it had been consistently held that in Indiana a mortgage containing an after-acquired property clause which permits the mortgagor to remain in possession and sell chattels in the course of business is not necessarily void, Judge Major added, 92 F.2d at page 946: “If an agreement exists, however, by which the mortgagor can sell the goods and divert the proceeds from the business or that the mortgagor did so with the knowledge of the mortgagee, then no valid lien attaches to after-acquired property.” (Citing Indiana cases.) (Emphasis supplied.) Under this holding, then, we have decided that, before the amendment, if there was an agreement by which the mortgagor could sell the goods and divert the proceeds from the mortgagee indiscriminately, no lien would attach to the after-acquired property. In Helms v. American Security Co. of Indiana, 216 Ind. 1, 22 N.E.2d 822, the 1935 statute was involved, but that case furnishes little light on the question before us, as the holding there was that such a mortgage was void as against an innocent purchaser from the mortgagor.
The Referee, in his memorandum, said that he was dealing with a chattel mortgage on a shifting stock of merchandise, where the mortgagor retained possession and had the right to sell and use the proceeds of sale; that such a transfer is ordinarily held invalid, citing In re Baumgartner, 7 Cir., 55 F.2d 1041, and Benedict v. Ratner, 268 U.S. 353, 45 S.Ct. 566, 69 L.Ed. 991; that, under the Indiana statute as amended, such a mortgage is valid provided the proceeds of the sale are applied upon the mortgage debt, or are subjected to the lien of the mortgage; that in the present case the mortgagor agreed that if there were any removals of merchandise, the same should be replaced with like or comparable merchandise, but that there was no provision in the instrument controlling disposition of the proceeds of sale. Consequently, he concluded that, under the mortgage, the bankrupt had the right to dispose of the goods and to apply the proceeds thereof to its own use without restriction, and that this was beyond the sanctions of the Indiana statute. He concluded, further, that, inasmuch as the mortgage did not conform to the requirements of Section 51-506 of the Indiana Act of 1935, it was voidable at the suit of the Trustee in Bankruptcy
After careful examination of the record and the Indiana Statute and authorities, although there is no Indiana decision directly in point upon the proper interpretation of the statute involved, we are of the opinion that the Referee and the Court properly decided the question presented. The amended statute explicitly limits the right of a mortgagee to a valid mortgage upon a stock of merchandise to instances where the mortgagor, by “the conditions stated in said mortgage” is obligated to apply the proceeds of sale upon the mortgage debt, or to subject the same to the lien of the mortgage. The mortgagee here has not brought itself within the mandate of this statute by prescribing the obligations of the mortgagor in “the conditions” of the mortgage. Rather, it has permitted the bankrupt to sell merchandise without having the proceeds applied upon the mortgage or without having provided that the proceeds of the sale be subjected to the mortgage. It made no such provision in its mortgage. From the cash it received, the bankrupt has paid part of the purchase price it owed to other persons; it has paid creditors; it has paid salaries and other running expenses of the business. The mortgage does not conform to the requirements of the statute.
In view of our conclusions, it is unnecessary to discuss other points.
The judgment is
Affirmed.
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_procedur
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
The OHIO CASUALTY INSURANCE CO., Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
No. 73-1435.
United States Court of Appeals, Sixth Circuit.
Submitted Dec. 7, 1974.
Decided Aug. 23, 1974.
Paul C. Weick, Circuit Judge, dissented and filed opinion.
Charles N. Myers, Jr., Hamilton, Kramer, Myers & Summers, Columbus, Ohio, on brief, for plaintiff-appellant.
Vorys, Sater, Seymour & Pease, Edgar A. Strause, Columbus, Ohio, on brief, for defendant-appellee.
Before WEICK, McCREE, and MILLER, Circuit Judges.
McCREE, Circuit Judge.
This appeal requires us to decide whether, under Ohio law, the six-year statute of limitations, governing actions upon contracts, express or implied, or the two-year statute of limitations, governing actions for bodily injury or injury to personal property, applies in an action for indemnification against an automobile manufacturer brought by an insurance company, subrogated to the rights of its insured, who was compelled to respond to third persons for personal injury and property damage allegedly caused by a defect in one of the manufacturer’s vehicles. The district court held that the two-year statute of limitations applied and dismissed the complaint on defendant’s motion. We determine that the six-year statute of limitations is applicable and reverse.
Under Ohio decisional law, which is applicable in this diversity case, “The period of limitation within which an action must be commenced is determined from the nature of the demand and the ground of the action as set out in the pleadings.” State ex rel. Lien v. House, 144 Ohio St. 238, 58 N. E.2d 675 (1944). See also Ohio Casualty Insurance Co. v. Capolino, 44 O.L. Abs. 564, 65 N.E.2d 287, 289 (1945).
The complaint alleged that the brakes on the insured’s truck failed ■ because of a defect, and that the truck went out of control and caused extensive personal injury and property damage to third persons; that Ford Motor Company, the manufacturer, was “primarily liable” for all damages; and that appellant is entitled to indemnification for payments it made in settlement of damage claims when Ford failed to act after having been given notice and an opportunity to defend.
All the settlement payments were made more than two years before the complaint was filed, but, with one exception, all were made within six years of the commencement of the action. Although the parties disagree about which statute of limitations applies, they agree that the applicable statute began to run when each payment was made. Appellant’s Brief at 6; Appellee’s Brief at 24. See 28 O.Jur.2d, Indemnity § 2. See generally 20 A.L.R. 2d 925. Of course, the insurance company, as subrogee, has no greater rights against Ford — no longer time in which to commence an action — than the insured would have had if he, instead of the insurance company, had paid the claims and sued appellee for indemnification. 50 O.Jur.2d, Subrogation § 26.
The “ground of the action pleaded,” see State ex rel. Lien v. House, supra, is “[if] one secondarily liable for a wrongful injury is compelled to respond in damages to the injured person, he may recoup his loss, upon an implied contract of indemnity, from the one who actually created the danger or perpetrated the wrong.” 28 O.Jur.2d Indemnity § 12 (emphasis added). This rule applies not only when a formal judgment is rendered, Maryland Casualty Co. v. Frederick, 142 Ohio St. 605, 53 N.E.2d 795 (1944), but also when the party vicariously or secondarily liable is compelled to settle a claim, after giving notice and an opportunity to defend to the party primarily liable. Globe Indemnity v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944). And an action for indemnification based upon primary and secondary liability may be brought in Ohio whether or not there exists in fact a contractual relationship between the parties. Burns v. Pennsylvania Rubber & Supply Co., 117 Ohio App. 12, 189 N. E.2d 645, 22 Ohio Op.2d 451 (1961). See also Aetna Casualty & Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568 (1952).
The cause of action for indemnification based on primary and secondary liability is considered to be an action arising under an “implied contract.” Maryland Casualty Co. v. Frederick, supra; 28 O.Jur.2d Indemnity § 12. And the Ohio courts have held that an action arising under an “implied contract” for indemnification is governed by the six-year statute of limitations. Poe v. Dixon, 60 Ohio St. 124, 54 N.E. 86 (1899); Ohio Casualty Insurance Co. v. Capolino, 44 O.L.Abs. 564, 65 N.E.2d 287 (1945); 28 O.Jur.2d Indemnity § 19, p. 326. We conclude that these authorities require reversal of the district court’s decision.
We are not persuaded by appellee’s argument that this action is governed by the two-year statute of limitations because the “real purpose” of the action is to recover for personal injury and property damage. See, e. g., Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951); Mahalsky v. The Salem Tool Company, 461 F.2d 581 (6th Cir. 1972); Tomle v. New York Central Railroad, 234 F.Supp. 101 (N. D.Ohio 1964). These cases were actions to gain compensation for personal injury or property damage. Here, the “real purpose” of the action is not to recover compensation for damage incurred in the automobile accident but, instead, to obtain indemnification for monies paid to the injured third persons who suffered the damage. This difference is dispositive. In Ohio Casualty Insurance Co. v. Capolino, supra, for example, the plaintiff insurer agreed to indemnify an employer for any loss caused by the negligence of his employees acting in the scope of their employment. Following a motor vehicle accident involving the negligence of employee Capolino, the insurance company paid a damage claim to an injured third person and then proceeded to bring an action against Capolino for indemnification on the theory that he was primarily liable. The court held the action was governed by the six-year statute of limitations for implied contracts and was not barred by the two-year limitations period governing actions for personal injury or property damage. See also Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). As in this case, the underlying basis for the implied contract of indemnification was the payment of a tort claim for personal injury and property damage arising from an automobile accident.
We reject appellee’s argument that the six-year statute of limitations governs an action for indemnification only when there is contractual privity between the parties. Although the court in Capolino mentioned the contractual relations between the negligent employee and the insured employer as one basis for the “implied contract” of indemnification, the court also relied upon the broader rule that “A person who, without fault, has become subject to tort liability for the unauthorized act and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.” Ohio Casualty Insurance Co. v. Capolino, supra 65 N.E.2d at 289 ,quoting Restatement of Restitution, p. 418. We have found nothing in Ohio law indicating that, for purposes of determining the applicable statute of limitations in indemnification actions based on primary and secondary liability, a distinction should be drawn between eases involving parties in privity of contract and those where the parties in fact have no contractual relationship. In either case, the reason for recognizing an “implied contract” of indemnification is not that an agreement to indemnify is implied in fact but, instead, that equitable principles of fairness require the party primarily liable to compensate a party only secondarily or vicariously liable who has been compelled to pay damages that the former should in equity bear. In either case, the existence or non-existence of privity of contract is immaterial in determining the applicable statute of limitations. Cf. Perry County v. Newark S. & R. Co., 43 Ohio St. 451, 2 N.E. 854 (1885); Hansen v. City of New York, 43 Misc.2d 1048, 252 N.Y.S.2d 695 (1964).
Accordingly, we hold that under Ohio law, the six-year statute of limitations applies to an action for indemnification arising where a party secondarily liable has been compelled to pay damages that should have been borne by a party primarily liable, even if the parties are not in fact in privity of contract.
Reversed and remanded for proceedings not inconsistent with this opinion.
. Ohio Revised Code § 2305.07.
. Ohio Revised Code § 2305.10.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_respond1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
WILKINS v. TRAVELERS INS. CO.
No. 9640.
Circuit Court of Appeals, Fifth Circuit.
Feb. 18, 1941.
Rehearing Denied March 20, 1941.
HUTCHESON, Circuit Judge, dissenting. ,
Charles H. Murchison and Rhydon C. Latham, both of Jacksonville, Fla., for appellant.
Francis M. Holt, of Jacksonville, Fla., for appellee.
Before FOSTER, HUTCHESON, and McCORD, Circuit Judges.
McCORD, Circuit Judge.
Travelers Insurance Company brought suit to cancel two $5,000 policies of life insurance issued to Randolph C. Wilkins. It was the contention of the insurance company that Wilkins, after he had signed the application for insurance but before he paid the first premium, had visited his physician for treatment; that he violated paragraph 17B of the application in that after visiting his doctor he had knowledge and information that he was not in good health; that he failed and refused to disclose this information to the company; and that such failure constituted a concealment or suppression of material facts and thereby perpetrated a fraud upon the company. Mildred T. Wilkins, the widow of Randolph C. Wilkins and beneficiary under the policy, answered the complaint and denied the charges, and on cross-complaint prayed that upon a final hearing the court enter its decree upholding the policies and requiring the insurance company to pay the principal amount of the policies plus interest and attorney’s fees. A trial was had and the court, after determining that there was no issue of fact to be submitted, discharged the jury. The court thereupon found the issues in favor of the Travelers Insurance Company and entered judgment canceling and holding void the two policies. From this judgment Mildred T. Wilkins appealed. The opinion of the trial court is reported, Travelers Ins. Co. v. Wilkins, D. C., 33 F.Supp. 117.
On March 14, 1939, Randolph C. Wilkins signed “Part 1” of an application for insurance with the Travelers Company, and thereafter on April 12, 1939, he signed “Part 2” of the application. “Part 1” consisted of answers to questions propounded by the company’s agent, and “Part 2” consisted of answers to questions propounded by the company’s examining physician. On May 5, 6, and 18, 1939, Wilkins again presented himself to the company’s doctor for a further and thorough physical examination. As a result of the examinations the company physician ascertained that Wilkins was in good health. The doctor certified his findings to the insurance company and the two policies of life insurance were issued. The policies were delivered to Wilkins and he paid the first premium on June 14, 1939.
It is without dispute that the answers to the questions in the application for insurance, both as to “Part 1” and “Part 2”, were true when made, and that the application was attached to and made a part of the two policies issued to Wilkins. The two paragraphs of the policy contract which are important to decision of this case are as follows :
“Entire Contract — This instrument and the application constitute the entire contract between the parties hereto, and all statements purporting to- be made by or on behalf of the Insured shall in the absence of fraud be deemed representations and not warranties and no statement shall avoid the contract or be used in defense to a claim under the contract unless it be contained in the application herefor and a copy of such application is attached hereto.”
“17B. That every statement herein above contained is true; and that the contract issued hereupon shall not take effect unless the first premium shall be actually paid while I am in good health in so far as I have knowledge or information.”
On April 28, 1939, Wilkins consulted his personal physician, Dr. Edwin C. Swift, and advised him that a few days before his visit he had noticed a lump in his chest and had experienced a feeling of dizziness while walking. He made known to his doctor that he had been working an average of fourteen to sixteen hours a day for many years, and that he smoked two or three packages of cigarettes a day. Dr. Swift gave Wilkins a thorough physical examination including an electrocardiogram. Dr. Swift testified that he found Wilkins normal and healthy with the exception of what was diagnosed as a toxic heart muscle, which he attributed to excessive smoking and overwork. Wilkins visited his doctor three or four times and on May 31, 1939, Dr. Swift told him that if he would cut down on his smoking and lighten up on his work he would have no cause to give the matter further thought. On that day his physician discharged him “as a man in good health.”
Dr. Swift was given a rigid examination by counsel and the court. We quote excerpt? from his testimony:
“The Court: You say you had diagnosed that electrocardiogram. What was your opinion about that? A. My opinion on this electrocardiogram was, the electrocardiogram was within perfectly normal limits for a man of his age with the exception of one or two slight discrepancies that might mean a toxicity of the heart muscle; a slight poisoning of the heart muscle. Rate, rhythm, direction of all waves, with one exception, were normal. * * *
“Q. That heart condition you spoke about, disclosed by the electrocardiogram. Was there anything shown that you would describe as an organic infirmity? A. There was not.
“Q. Would you describe that, what you call a slight condition of toxicity, a functional impairment or not? A. Yes. I would call it a functional impairment; a functional irritation.
“Q. Functional irritation? A. Yes, sir.
“Q. Of a transitory nature as a rule, or more or less chronic nature ? A. Shown by his progress during the course of five weeks, transitory.”
“Counsel Murchison: Dr. Swift, was it your opinion,- that anything that was indicated from this examination of Mr. Wilkins, was anything but a toxic condition which was completely transitory in its nature? A. That was my impression at that time and I so informed Mr. Wilkins that he had nothing to worry about, in my opinion, at that time.
“Q. When you discharged him did you say anything to Mr. Wilkins as to your opinion in that regard? A. Yes, I told him, ‘You can forget it as long as you behave yourself. In the matter of cutting down and keeping your cigarettes cut down and not going back to sixteen or fourteen hours work a day; you can forget your heart.’
“Q. In other words, it is your opinion and you discharged him as a man in good health? A. It is my opinion and I discharged him as a man in good health, with the admonition that I give all my patients, ‘If I can be of further help to you, I will hear from you.’
“Q. Did you tell him if he had a recurrence or any indisposition, to come back to see you, or not, later? A. I always tell the patient that.
“Q. Did he come back to see you? A. I did not see him until. the night of his death.
“Q. Was there anything that you can remember that you said to Mr. Wilkins that would, in your opinion, convey to his mind that he was not a well man when you discharged him? A. No, not in the least.”
Wilkins went from the doctor’s office with the opinion of that expert that he was a well man, and with his advice that he could forget his heart. His conduct from that time out indicates that he believed that he was in good health. He went back to work without taking any time off; his doctor had given him no medicine for his heart; he continued to work constantly and strenuously building a new filling station, doing much of the work with his own hands; and he continued to work in and about his business until October 30, 1939, when, without disclosing any sign of illness, he died suddenly of coronary thrombosis.
The record shows that the agent of the insurance company sought out Wilkins and induced him to take out the two policies of insurance. Wilkins’ conduct was not that of a man seeking to defraud the insurance company: The agent tried to write additional insurance for him but he refused to take it; he directed that his premiums be changed from the monthly basis to semiannual payments; he added another filling station to those he already owned. His conduct was that of a man who expected to live. It was his opinion, and that of his physician, that he was a well man, and on June 14, 1939, when he paid the premium on his insurance policies he was in good health insofar as he had “knowledge or information”. This was in full conformity with paragraph 17B of the policy contract.
Whatever information Dr. Swift conveyed to Mrs, Wilkins about her husband’s health, so far as the record discloses, was never brought to the attention of Wilkins and should be given no weight or bearing with reference to the “knowledge or information” of the insured.
The cases relied upon by the appellee and the trial court are not controlling: Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895; Massachusetts Bonding & Ins. Co. v. Hoxie, 129 Fla. 332, 176 So. 480; New York Life Ins. Co. v. Odom, 5 Cir., 93 F.2d 641. In the Stipcich case the applicant, before delivery of the policy and payment of the first premium, suffered a recurrence of a duodenal ulcer and was informed by two physicians that the ulcer would have to be removed by an operation. It was alleged that Stipcich failed to disclose this condition of which he was fully aware. In the Hoxie case indemnity insurance policies were involved and the insured concealed the fact that an accident had occurred for which the insurer might be liable under its policies which had been antedated at the request of the insured. A fraud upon the insurance company. In the Odom case the insured made false statements in his application for reinstatement of policies which had lapsed for nonpayment of premiums. The facts of the case at bar set it apart from the cases relied upon by the appellee. Here we have no such conduct on the part of the insured. This is not a case for the application of the doctrine of “continuing representations” for Wilkins acted in the utmost good faith and in accordance with the express provisions of the insurance contract. He accepted the policies of insurance and paid the first premium while he was in good health insofar as he had “knowledge or information”, paragraph 17B.
Applying the uncontradicted facts and giving full weight to the contract provisions of the policies, we are of opinion and so hold that the policies were valid and subsisting contracts at the time of Wilkins’ death and that the court erred in entering judgment for the insurance company. New York Life Ins. Co. v. Kincaid, 122 Fla. 283, 165 So. 553; New York Life Ins. Co. v. Kincaid, 136 Fla. 120, 186 So. 675; Winer v. New York Life Ins. Co., 143 Fla. 652, 197 So. 487; Cf. Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311, 315, 48 S.Ct. 512, 72 L.Ed. 895.
The judgment is reversed and the cause remanded with direction to enter judgment for the appellant for the principal amount of the two policies together with interest from the date of Wilkins’ death and reasonable attorney’s fees.
Reversed and remanded.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
sc_caseorigin
|
009
|
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.
TANK TRUCK RENTALS, INC., v. COMMISSIONER OF INTERNAL REVENUE.
No. 109.
Argued January 29-30, 1958.
Decided March 17, 1958.
Leonard Sarner argued the cause for petitioner. With him on the brief was Paul A. Wolkin.
Solicitor General Rankin argued the cause for respondent. With him on the brief were Assistant Attorney General Rice, Joseph F. Goetten and Meyer Rothwacks.
Mr. Justice Clark
delivered the opinion of the Court.
In 1951 petitioner Tank Truck Rentals paid several hundred fines imposed on it and its drivers for violations of state maximum weight laws. This case involves the deductibility of those payments as “ordinary and necessary” business expenses under §23 (a)(1)(A) of the Internal Revenue Code of 1939. Prior to 1950 the Commissioner had permitted such deductions, but a change of policy that year caused petitioner’s expenditures to be disallowed. The Tax Court, reasoning that allowance of the deduction would frustrate sharply defined state policy expressed in the maximum weight laws, upheld the Commissioner. 26 T. C. 427. The Court of Appeals affirmed on the same ground, 242 F. 2d 14, and we granted certiorari. 354 U. S. 920 (1957). In our view, the deductions properly were disallowed.
Petitioner, a Pennsylvania corporation, owns a fleet of tank trucks which it leases, with drivers, to motor carriers for transportation of bulk liquids. The lessees operate the trucks throughout Pennsylvania and the surrounding States of New Jersey, Ohio, Delaware, West Virginia, and Maryland, with nearly all the shipments originating or terminating in Pennsylvania. In 1951, the tax year in question, each of these States imposed maximum weight limits for motor vehicles operating on its highways. Pennsylvania restricted truckers to 45,000 pounds, however, while the other States through which petitioner operated allowed maximum weights approximating 60,000 pounds. It is uncontested that trucking operations were so hindered by this situation that neither petitioner nor other bulk liquid truckers could operate profitably and also observe the Pennsylvania law. Petitioner's equipment consisted largely of 4,500- to 5,000-gallon tanks, and the industry rate structure generally was predicated on fully loaded use of equipment of that capacity. Yet only one of the commonly carried liquids weighed little enough that a fully loaded truck could satisfy the Pennsylvania statute. Operation of partially loaded trucks, however, not only would have created safety hazards, but also would have been economically impossible for any carrier so long as the rest of the industry continued capacity loading. And the industry as a whole could not operate on a partial load basis without driving shippers to competing forms of transportation. The only other alternative, use of smaller tanks, also was commercially impracticable, not only because of initial replacement costs but even more so because of reduced revenue and increased operating expense, since the rates charged were based on the number of gallons transported per mile.
Confronted by this dilemma, the industry deliberately operated its trucks overweight in Pennsylvania in the hope, and at the calculated risk, of escaping the notice of the state and local police. This conduct also constituted willful violations in New Jersey, for reciprocity provisions of the New Jersey statute subjected trucks registered in Pennsylvania to Pennsylvania weight restrictions while traveling in New Jersey. In the remainder of the States in which petitioner operated, it suffered overweight fines for several unintentional violations, such as those caused by temperature changes in transit. During the tax year 1951, petitioner paid a total of $41,060.84 in fines and costs for 718 willful and 28 innocent violations. Deduction of that amount in petitioner’s 1951 tax return was disallowed by the Commissioner.
It is clear that the Congress intended the income tax laws “to tax earnings and profits less expenses and losses,” Higgins v. Smith, 308 U. S. 473, 477 (1940), carrying out a broad basic policy of taxing “net, not . . . gross, income . . . .” McDonald v. Commissioner, 323 U. S. 57, 66-67 (1944). Equally well established is the rule that deductibility under § 23 (a)(1) (A) is limited to expenses that are both ordinary and necessary to carrying on the taxpayer’s business. Deputy v. du Pont, 308 U. S. 488, 497 (1940). A finding of “necessity” cannot be made, however, if allowance of the deduction would frustrate sharply defined national or state policies proscribing particular types of conduct, evidenced by some governmental declaration thereof. Commissioner v. Heininger, 320 U. S. 467, 473 (1943); see Lilly v. Commissioner, 343 U. S. 90, 97 (1952). This rule was foreshadowed in Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326 (1941), where the Court, finding no congressional intent to the contrary, upheld the validity of an income tax regulation reflecting an administrative distinction “between legitimate business expenses and those arising from that family of contracts to which the law has given no sanction.” 314 U. S., at 339. Significant reference was made in Heininger to the very situation now before us; the Court stated, “Where a taxpayer has violated a federal or a state statute and incurred a fine or penalty he has not been permitted a tax deduction for its payment.” 320 U. S., at 473.
Here we are concerned with the policy of several States “evidenced” by penal statutes enacted to protect their highways from damage and to insure the safety of all persons using them. Petitioner and its drivers have violated these laws and have been sentenced to pay the fines here claimed as income tax deductions. It is clear that assessment of the fines was punitive action and not a mere toll for use of the highways: the fines occurred only in the exceptional instance when the overweight run was detected by the police. Petitioner’s failure to comply with the state laws obviously was based on a balancing of the cost of compliance against the chance of detection. Such a course cannot be sanctioned, for judicial deference to state action requires, whenever possible, that a State not be thwarted in its policy. We will not presume that the Congress, in allowing deductions for income tax purposes, intended to encourage a business enterprise to violate the declared policy of a State. To allow the deduction sought here would but encourage continued violations of state law by increasing the odds in favor of noncompliance. This could only tend to destroy the effectiveness of the State’s maximum weight laws.
This is not to say that the rule as to frustration of sharply defined national or state policies is to be viewed or applied in any absolute sense. “It has never been thought . . . that the mere fact that an expenditure bears a remote relation to an illegal act makes it nondeductible.” Commissioner v. Heininger, supra, at 474. Although each case must turn on its own facts, Jerry Rossman Corp. v. Commissioner, 175 F. 2d 711, 713, the test of nondeductibility always is the severity and immediacy of the frustration .resulting from allowance of the deduction. The flexibility of such a standard is necessary if we are to accommodate both the congressional intent to tax only net income, and the presumption against congressional intent to encourage violation of declared public policy.
Certainly the frustration of state policy is most complete and direct when the expenditure for which deduction is sought is itself prohibited by statute. See Boyle, Flagg & Seaman, Inc., v. Commissioner, 25 T. C. 43. If the expenditure is not itself an illegal act, but rather the payment of a penalty imposed by the State because of such an act, as in the present case, the frustration attendant upon deduction would be only slightly less remote, and would clearly fall within the line of disallowance. Deduction of fines and penalties uniformly has been held to frustrate state policy in severe and direct fashion by reducing the “sting” of the penalty prescribed by the state legislature.
There is no merit to petitioner’s argument that the fines imposed here were not penalties at all, but merely a revenue toll. It is true that the Pennsylvania statute provides for purchase of a single-trip permit by an over-weighted trucker; that its provision for forcing removal of the excess weight at the discretion of the police authorities apparently was never enforced; and that the fines were devoted by statute to road repair within the municipality or township where the trucker was apprehended. Moreover, the Pennsylvania statute was amended in 1955, raising the maximum weight restriction to 60,000 pounds, making mandatory the removal of the excess, and graduating the amount of the fine by the number of pounds that the truck was overweight. These considerations, however, do not change the fact that the truckers were fined by the State as a penal measure when and if they were apprehended by the police.
Finally, petitioner contends that deduction of the fines at least for the innocent violations will not frustrate state policy. But since the maximum weight statutes make no distinction between innocent and willful violators, state policy is as much thwarted in the one instance as in the other. Petitioner’s reliance on Jerry Rossman Corp. v. Commissioner, supra, is misplaced. Deductions were allowed the taxpayer in that case for amounts inadvertently collected by him as OPA overcharges and then paid over to the Government, but the allowance was based on the fact that the Administrator, in applying the Act, had differentiated between willful and innocent violators. No such differentiation exists here, either in the application or the literal language of the state maximum weight laws.
Affirmed.
“SEC. 23. DEDUCTIONS FROM GROSS INCOME.
“In computing net income there shall be allowed as deductions: “(a) EXPENSES.—
“(1) Trade or business expenses.—
“ (A) In General. — All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business . . . .” 53 Stat. 12, as amended, 56 Stat. 819.
Letter ruling by Commissioner Helvering, dated September 10, 1942 (IT:P:2-WTL), 5 CCH 1950 Fed. Tax Rep. ¶ 6134.
1951 — 1 Cum. Bull. 15.
Delaware, Del. Laws 1947, c. 86, §2; Maryland, Flack’s Md. Ann. Code, 1939 (1947 Cum. Supp.), Art. 66%, § 254, and Flack’s Md. Ann. Code, 1951, Art. 66%, §278; New Jersey, N. J. Rev. Stat., 1937, 39:3-84; Ohio, Page’s Ohio Gen. Code Ann., 1938 (Cum. Pocket Supp. 1952), § 7248-1; Pennsylvania, Purdon’s Pa. Stat. Ann., 1953, Tit. 75, § 453; West Virginia, W. Va. Code Ann., 1949, § 1546, and 1953 Cum. Supp., § 1721(463).
N. J. Rev. Stat., 1937 (Cum. Supp. 1948-1950), 39:3-84.3.
Because state policy in this case was evidenced by specific legislation, it is unnecessary to decide whether the requisite “governmental declaration” might exist other than in an Act of the Legislature. See Schwartz, Business Expenses Contrary To Public Policy, 8 Tax L. Rev. 241, 248.
Unlike the rest of the States, Pennsylvania imposed the fines on the driver rather than on the owner of the trucks. In each instance, however, the driver was petitioner’s employee, and petitioner paid the fines as a matter of course, being bound to do so by its collective bargaining agreement with the union representing the drivers.
See, e. g., United States v. Jaffray, 97 F. 2d 488, aff'd on other grounds, sub nom. United States v. Bertelsen & Petersen Engineering Co., 306 U. S. 276 (1939); Tunnel R. Co. v. Commissioner, 61 F. 2d 166; Chicago, R. I. & P. R. Co. v. Commissioner, 47 F. 2d 990; Burroughs Bldg. Material Co. v. Commissioner, 47 F. 2d 178; Great Northern R. Co. v. Commissioner, 40 F. 2d 372; Davenshire, Inc., v. Commissioner, 12 T. C. 958.
Purdon’s Pa. Stat. Ann., 1953 (1957 Cum. Ann. Pocket Part), Tit, 75, § 453.
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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songer_respond1_5_3
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Your task is to determine which specific state government agency best describes this litigant.
J. Norman “Stoney” STONE, Appellant, v. The Honorable WYOMING SUPREME COURT, Appellee.
No. 5372.
United States Court of Appeals Tenth Circuit.
Aug. 4, 1956.
J. Norman Stone, Washington, D. C., pro se.
Robert H. McPhillamey, Deputy Atty. Gen. (George F. Guy, Atty. Gen. of Wyoming, and Howard B. Black, Asst. Atty. Gen., of Wyoming, were with him on the brief), amicus curiae.
Before BRATTON, Chief Judge, PHILLIPS, Circuit Judge, and ROGERS, District Judge.
BRATTON, Chief Judge.
J. Norman Stone, hereinafter referred to as petitioner, made application for admission to the Bar of Wyoming. After certain intervening procedure, the application was denied. Application of Stone, Wyo., 288 P.2d 767. Petitioner then filed in the United States Court for Wyoming this proceeding in which he sought a writ of mandamus to compel the Supreme Court of Wyoming to admit him to the Bar of that state. Honorable T. Blake Kennedy, United States Judge for Wyoming, retired, but assigned to active service in the court, entered an order dismissing the petition for want of jurisdiction. Petitioner then filed in the proceeding a pleading styled “Motion for Permission to Exercise Legal Right of Argument in Open Court and for Disqualification of Honorable Judge Blake T. Kennedy”. An order was entered denying the motion. Petitioner thereafter filed a pleading denominated “Motion to Reconsider Honorable Court’s Order Overruling Plaintiff’s Motion to Exercise Legal Right of Argument in Open Court and for Disqualification of Honorable Judge T. Blake Kennedy and Motion for Citation by Honorable Judge TV Blake Kennedy of Cases Supporting Said Denial as Explained in Judge’s Memorandum”. An order was entered denying such motion. Later, petitioner filed a pleading styled “Motion for Leave to File Amended Complaint and for Disqualification of Hon. T. Blake Kennedy, Retired Judge”. An affidavit of prejudice and a proposed amended complaint were tendered with the motion. At the same time, petitioner filed a pleading styled “Motion for Leave to Argue Motion for Leave to File Amended Complaint and for Disqualification of Honorable T. Blake Kennedy, Retired Judge”. At that juncture a letter was filed in the proceeding. The letter was written by the judge to the clerk. It was stated in the letter that the orders already entered in the cause formed the basis of any appeal upon the question of the court’s action in declining jurisdiction and on all collateral issues involved; that the court would make no further orders in the case except those necessary to expedite an appeal; that the letter should become a part of the files in the case; and that a copy thereof be transmitted to plaintiff for his information. Petitioner appealed.
Courts of appeals are courts of limited jurisdiction; and save for excepted instances in which it is provided otherwise by statute, they have jurisdiction to review only final decisions of the district courts. Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478; Crutcher v. Joyce, 10 Cir., 134 F.2d 809; State Tax Commission of Utah v. United States, 10 Cir., 136 F.2d 903; Breeding Motor Freight Lines v. Reconstruction Finance Corp., 10 Cir., 172 F.2d 416, certiorari denied 338 U.S. 814, 70 S.Ct. 54, 94 L.Ed. 493; Kanatser v. Chrysler Corp., 10 Cir., 195 F.2d 104; The Atchi-son, Topeka and Santa Fe Railway Co. v. Jackson, 10 Cir., 235 F.2d 390.
With exceptions which do not have any material bearing here, Rule of Civil Procedure 73(a), 28 U.S.C.A., provides that when an appeal is permitted by law from a district court to a court of appeals, it shall be taken by filing with the district court a notice of appeal, and that such notice shall be filed within thirty days after entry of the judgment from which the appeal is taken. And the filing of the notice within that time is essential to the jurisdiction of the court of appeals. Spengler v. Hughes Tool Co., 10 Cir., 169 F.2d 166. The order of the court dismissing the petition for the writ was entered on December 16, 1955, and the notice of appeal by which the proceeding was brought to this court was filed February 28, 1956. If the notice could be considered as an attempt to appeal from the final order dismissing the petition for the writ, it did not operate to effectuate such appeal for the reason that it was not filed within the time specified in the rule.
Rule of Civil Procedure 73(b), 28 U.S. C.A., provides in presently pertinent part that the notice of appeal shall designate the judgment or part thereof appealed from. That exaction constitutes a mandatory requirement and the jurisdiction of the court of appeals is limited to the judgment or portion thereof designated. Long v. Union Pacific R. Co., 10 Cir., 206 F.2d 829.
The notice of appeal filed in this case did not make any reference to the final order dismissing the petition for the writ. It expressly stated that the appeal was taken “from the order on motion of plaintiff to reconsider motion entered in this action on January 25, 1956, and from a communication directed to Clerk, U. S. District Court for Wyoming by Honorable Judge T. Blake Kennedy, retired, * * * stating that he will make no further orders in this case * A direct appeal will not lie from a post-judgment order denying a motion to reconsider earlier action taken on a post-judgment motion. American Fire & Casualty Co. v. Allison, 5 Cir., 189 F.2d 255; Vaughan v. City Bank & Trust Co., Natchez, Miss., 5 Cir., 218 F.2d 802, cer-tiorari denied 350 U.S. 832, 76 S.Ct. 67. Neither will a direct appeal lie from an announced declination to enter further post-judgment orders in a case. And a dissatisfied suitor may not maintain a direct appeal from an order denying requested disqualification of the judge. Skirvin v. Mesta, 10 Cir., 141 F.2d 668.
The appeal is dismissed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "judicial". Which specific state government agency best describes this litigant?
A. Judge (non-local judge; appellate judge)
B. Prosecutor/district attorney (non-local, e.g., special prosecutor)
C. Jail/Prison/Probation Official (includes juvenile officials)
D. Other judicial official
E. not ascertained
Answer:
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songer_treat
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
DOWLING v. WESTERN UNION TEL. CO. WESTERN UNION TEL. CO. v. DOWLING.
Nos. 3253, 3254.
Circuit Court of Appeals, First Circuit.
Nov. 9, 1937.
Charles Ingram and Ingram & Ingram, all of Lynn, Mass., for James Dowling.
Arthur P. Hardy, of Boston, Mass. (Hardy, Hall & Iddings, of Boston, Mass., and Francis R. Stark, of New York City, on the brief), for Western Union Telegraph Company.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
MORTON, Circuit Judge.
These are cross-appeals in an action brought by Dowling, whom we shall refer to as the plaintiff, against the telegraph company to recover damages for its failure to deliver a message sent to him by one Deshler. The District Judge instructed the jury that the plaintiff could in no event recover more than $500, the limitation on damages for unrepeated messages under the regulations of the defendant approved by the Public Utilities Commission. The defendant requested the court to rule that the plaintiff could recover only nominal damages. The plaintiff obtained a verdict for $500 limited in accordance with the instruction. The defendant appeals from the refusal to rule that only nominal damages were recoverable; the plaintiff appeals from the ruling limiting the amount of his recovery.
The plaintiff’s evidence showed the following facts: He was by occupation a baker and at the time in question was out of employment. Accompanied by his friend Deshler he called on the proprietor of a bakery in Franklin, Mass., looking for work. The three discussed the employment of the plaintiff to take the place of another baker then working there whose services were to be terminated. -During the conversation the proprietor stated that he was willing to pay $40 per week for the services of a baker. Shortly afterwards the proprietor notified Deshler that the expected vacancy had occurred and that he was ready to employ another baker. Desh-le‘r thereupon telephoned to an office of the defendant the message to the plaintiff on which this action is based. At that time he notified the defendant’s clerk who accepted the message that it was being sent to a friend who had an opportunity of employment as a baker, and that it was essential that the message be delivered as soon as possible. It was sent as a straight unrepeated message. It read “Call Charlie Deshler at once Blue .Hills 0820 (signed) Charlie.” This message was not delivered. The proprietor of the bakery testified that after waiting two days to hear from Desh-ler he hired another man; and that he has continued in the same business ever since. There was no direct evidence as to how long or for what period of time the plaintiff'would have been employed if he had promptly applied for and received employment as a baker in the bakery at Franklin. The plaintiff testified that he had been unable to obtain steady employment iip to the time of the trial.
As to the defendant’s appeal: The defendant’s liability depends on the character of the message sent. Obviously it was not an offer of employment from the proprietor of the bakery. An understanding may be implied from the circumstances that the proprietor of the bakery intended Deshler to inform the plaintiff.of the vacancy, but no offer of employment was made to the plaintiff through Deshler. The most that could be said was that if Deshler should inform the plaintiff of the vacancy and if the plaintiff should apply for the place his application would be favorably considered. The nondelivery of the telegram prevented the plaintiff from making the application.
The case is by no means of the first impression, many similar ones have arisen. The law is well settled that where a telegraph message relates to a proposed contract between plaintiff and another person, but is neither an acceptance of a previous offer nor itself a definite offer, but only an invitation to submit an offer or to meet or correspond with the sender for the purpose of further negotiation, the failure duly to deliver the message is not, as a matter of law, the proximate cause of the failure of the negotiations to result in a binding contract; and, damages for the loss of a contract which might or might not have resulted from further negotiations .being too remote and uncertain, only nominal damages can be recovered. See 37 Cyc. pp. 1760, 1761. “The courts have held strictly to the rule that the mere probability that a certain event would have happened, upon which a claim of damages is predicated, will not support such a claim nor furnish the foundation for an action for such damages. The damages which are recoverable for the alleged negligence of a telegraph company in not delivering a telegram, the receipt of which on time would have enabled the person to whom it should have been promptly delivered, to make an advantageous contract, must Joe such damages as would follow as a legal certainty from the negligent act of the company, and not merely those damages the accruing of which would depend upon the act of some third person which might or might not be done.” (Italics supplied.) McQuilkin v. Postal Telegraph Cable Co., 27 Cal.App. 698, 151 P. 21, 22; see too Johnson v. Western Union Telegraph Co., 79 Miss. 58, 29 So. 787, 89 Am.St.Rep. 584.
Moreover, the contract which the plaintiff claims he lost by the nondelivery of the message was not one for the loss of which substantial damages could be recovered. His employment, had he obtained it, was subject to termination at any time at the will of his employer or himself. For the loss of a contract of this character substantial damages cannot be awarded; they are too uncertain and speculative. In Merrill v. Western Union Telegraph Co., 78 Me. 97, 2 A. 847, 848, there was a verbal contract that the plaintiff was to be employed at $2.21 per day. The message notifying the plaintiff of this employment was not delivered and he lost the opportunity to be employed. It was held that the telegraph company was not liable beyond nominal damages on the ground that “Under the terms of the contract in proof, he was liable to be dismissed from his employment as soon as he had entered upon it, and it cannot be known what damages he has suffered in the premises.” In Kenyon v. Western Union Telegraph Co., 100 Cal. 454, 35 P. 75, 76, an applicant for an appointment as deputy assessor lost the appointment because of the delay in a telegraph message. He was held entitled to recover only nominal damages. “A deputy is appointed to hold during the pleasure of the officer appointing him. * * * The allegation, therefore, that he would have received the appointment, is not an allegation that he would have been retained for any definite length of time; nor could such allegation be made. * * * As damages ,or compensation must be measured by the loss sustained, where that loss cannot be ascertained damages cannot be recovered.” In McQuilkin v. Postal Telegraph Cable Co., supra, it was said that “the courts have held strictly to the rule that the mere probability that a certain event would have happened, upon which a claim of damages is predicated, will not support such claim nor furnish the foundation for an action for such damages.”
See too Wilson v. Western Union Telegraph Co., 124 Ga. 131, 52 S.E. 153; Larsen v. Postal Telegraph Cable Co., 150 Iowa 748, 130 N.W. 813; Savage v. Western Union Telegraph Co., 120 Kan. 258, 242 P. 1015; Kenyon v. Western Union Telegraph Co., 100 Cal. 454, 35 P. 75.
The Massachusetts statute bringing telegraph companies under the jurisdiction of the Department of Public Utilities (G.L. Mass. (Ter.Ed.) c. 159, §§ 12, 18, 19) does not increase the defendant’s common-law liability in this respect.
In each case:
The judgment of the District Court is reversed and the case is remanded to that court, with instructions to enter judgment for nominal damages.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_casetyp1_6-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
ANDERSON v. SHIPOWNERS’ ASS’N OF PACIFIC COAST et al.
(Circuit Court of Appeals, Ninth Circuit.
January 18, 1926.)
No. 4682.
1. Courts <@=>289 — Practice of shipowners’ association held not violation of commerce or anti-trust statutes, so as to give federal courts jurisdiction.
Practice of shipowners’ association in refusing to employ seamen not registered held not restraint of interstate or foreign commerce, or violation of Sherman Act (Comp. St. § 8820 et seq.), Clayton Act, § 16 (Comp. St. § 8835o), or other federal act, so as to give federal courts jurisdiction of injunction suit, under Judicial Code, § 24 (8), (23), being Comp. St. § 991 (8), (23).
2. Courts <@=>284 — Practice of shipowners’ association held not violative of statute relative to seamen’s shipping contract, so as to give federal courts jurisdiction.
Practices of shipowners’ association in refusing to employ seamen, not registered held not violative of Rev. St. §§ 4508, 4514, 4515, 4551, 4612 (Comp. St. §§ 8297, 8304, 8305, 8340, 8392), relating to shipping contracts,, so as to give federal courts jurisdiction of suit to enjoin such practice.
Appeal from the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.
Suit by Cornelius Anderson against the Shipowners’ Association of the Pacific Coast and another. Decree for defendants, and plaintiff appeals.
Affirmed.
Appellant, hereinafter ealled plaintiff, sues on behalf of himself and all other seamen. employed in interstate and foreign commerce by sea on American merchant vessels sailing to and from Pacific Coast ports of the United States. He seeks to enjoin certain practices of appellees, hereinafter called the defendants, in the employment of seamen, on the ground that these practices constitute a restraint of interstate and foreign commerce. The District Court sustained defendants’ motion to dismiss.
H. W. Hutton, of San Francisco, Cal., for appellant.
Chauncey F. Eldridge and George O. Bahrs, both of San Francisco, Cal., for appellees.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
McCAMANT, Circuit Judge
(after stating the facts as above). The practices sought to be enjoined are stated with some fullness in the opinion of this court in the suit brought by Alfred Street against these same defendants, 299 F. 5; also in the opinion of the Supreme Court in the same case, 263 U. S. 334, 44 S. Ct. 119, 68 L. Ed. 326. It is charged that the defendants control every vessel flying the American flag, and engaged in the carrying of passengers and cargo between Pacific Coast ports and other American and foreign ports; that they have established a system for registering seamen, and that it is impossible for a seaman not registered with them to secure employment. Plaintiff alleges that on the 15th of June, 1925, he applied at the offices of the defendants in San Francisco for employment as a seaman, and was refused employment because he did not have the registration papers required by the defendants’ rules. It is alleged that on the 18th of June plaintiff was employed by the mate of the steamship Caddopeak; that defendants interfered with plaintiff’s contract of employment and caused his employer to dispense with his services, to plaintiff’s damage in the sum of $135.
Defendants challenge the jurisdiction of the federal courts. It is conceded that the jurisdiction cannot rest on diversity of citizenship, because the amount in controversy is less than $3,000. Pinel v. Pinel, 240 U. S. 594, 596, 597, 36 S. Ct. 416, 60 L. Ed. 817. Plaintiff relies on section 24 of the Judicial Code (section 991, Comp. Stat.) subds. 8 and 23. These statutes are as follows:
“The District Courts shall have original jurisdiction as follows: * * *
“Eighth. Of all suits and proceedings arising under any law regulating commerce, except those suits and proceedings exclusive jurisdiction of which has been conferred upon the Commerce Court. * * *
“Twenty-third.' Of all suits and proceedings arising under any law to protect trade and commerce against restraints and monopolies.”
Plaintiff also relies on section 16 of the Clayton Act (section 8835o, Comp. Stat.), which is in part as follows:
“Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws.”
It is not alleged that the purpose of the practice complained of is the restraint of interstate or foreign commerce. It is contended that less capable men are employed on vessels than would be employed if the officers of the vessels looked after the employment of seamen. This result is alleged to follow from defendants’ practice of employing seamen in the order in which they apply for work. This is at most an indirect and incidental impediment to the transaction of interstate commerce. The conduct complained of falls without the inhibition of the Sherman Act (Comp. St. § 8820 et seq.), the Clayton Act (Comp. St. § 8835a et seq.), and the federal anti-trust acts generally. Street v. Shipowners’ Association (C. C. A.) 299 F. 5; Tilbury v. Oregon Stevedoring Co., Inc. (C. C. A.) 7 F.(2d) 1. The law applicable to this contention of plaintiff has been stated by this court so clearly and so recently in these decisions that it would serve no good purpose to restate the law and cite in this opinion the cases construing the federal anti-trust laws.
It is sought to distinguish the Street Case on the ground that it was not alleged that plaintiff therein had applied for employment and been refused. This allegation, however, is found in the bill of complaint in the Til-bury Case, which was adjudged insufficient by the District Court for Oregon and by this court.
It is also contended that the practices complained of violate the federal statutes defining the manner in which seamen are to be employed and the nature of the shipping contract. Sections 4508, 4514, 4515, 4551 and 4612, R. S. (sections 8297, 8304, 8305, 8340 and 8392, Co.mp. Stat.). The registration of seamen by the defendants and the arrangements made for their employment are preliminary to the execution of the form of contract required by the statute. It does not appear from the bill that the defendants have taken seamen to sea without the execution before a commissioner of the statutory contract, or that defendants have otherwise violated the above statutes.
If plaintiff has a cause of action, it is not cognizable in the federal courts. The decree is affirmed.
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
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.
James DELANEY and Helen Delaney, t/a 290 Madison Corporation, 290 Madison Corporation, a New Jersey Corporation, and James Delaney and Helen Delaney v. CAPONE, Carmine E., James J. Brown, Raymond M. Codey, Anthony Della Salla, Ernest Monfiletto, Patricia Juliano, Benjamin F. Jones, Michael Marucci, Joel L. Shain, Quincy Lucarello, Past and Present Commissioners and Councilmembers of the City of Orange; Edward Ferrari, Beverly Savage, Marion Stewart, Ralph Perrella, Kenneth Condon, Frank M. Pannucci, Jr., Sean McCarthy, R. Frank Curry, Arnold Reiter, Stanley Robinson, Past and Present Members of the Rent Leveling Board of the City of Orange; Essex County Legal Services Corporation, and John Atlas, 290 Madison Corporation and James Delaney and Helen Delaney, Appellants in 80-1776, Edward Ferrari, Beverly Savage, Marion Stewart, Ralph Perrella, Kenneth Condon, Frank M. Pannucci, Jr., Sean McCarthy, R. Frank Curry, Arnold Reiter, Stanley Robinson, Past and Present Members of the Rent Leveling Board of the City of Orange, Appellants in 80-1777, Carmine E. Capone, James J. Brown, Raymond M. Codey, Anthony Della Salla, Ernest Monfiletto, Patricia Juliano, Benjamin F. Jones, Michael Marucci, Joel L. Shain, Quincy Lucarello, Past and Present Members of the City of Orange Board of Commissioners and Councilmembers, Appellants in 80-1778.
Nos. 80-1776 to 80-1778.
United States Court of Appeals, Third Circuit.
Argued Jan. 20, 1981.
Decided Feb. 27, 1981.
Anthony M. Mahoney (argued), and Dennis M. Mahoney, Mahoney & Mahoney, Westfield, N. J., for appellants in No. 80-1776.
Alfonso C. Viscione (argued), Orange, N. J., for appellants in No. 80-1777.
Francis J. Dooley (argued), Orange, N. J., for appellants in No. 80-1778.
Before GIBBONS, VAN DUSEN and WEIS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Alleging that unconstitutional actions of the defendant city officials caused the loss of an apartment building through foreclosure, the plaintiffs brought suit under 42 U.S.C. § 1983 (1976). Their principal contention was that the income from the building was reduced, and the building itself eventually lost, through the actions of a rent leveling board created by a city ordinance. Inverse condemnation challenges to the constitutionality of the rent control regulation in the New Jersey state courts were unsuccessful, and the plaintiff’s building was finally sold in a mortgage foreclosure proceeding.
After a bench trial, the district court found that res judicata barred consideration of the federal claim, since it was indistinguishable from the prior state actions. The court further found that even if res judicata was not dispositive, the plaintiffs had failed to establish that the loss of the building was proximately caused by the regulatory acts of the city officials. Although rent control reduced the income from the property, the court found the plaintiffs had chosen to maintain a thin equity in the building and did not meet the mortgage payments. In addition, the court concluded that the proceedings before the board comported with due process and that there was adequate cause to support the board’s orders. Moreover, the court found that the defendant officials had established their claim to qualified immunity.
The plaintiffs have appealed from the judgment of the district court, and the defendants have cross-appealed the failure of the district court to award them costs as prevailing parties.
We have reviewed the plaintiffs’ briefs and considered the contentions they raised at oral argument. We conclude that the district court’s findings of fact are not clearly erroneous, and we perceive no reversible error in its rulings of law. Accordingly, the judgment in favor of the defendants will be affirmed.
The district court directed that “each party to the suit is to bear its own costs,” but did not disclose its reasons for that action. Normally costs are allowed as a matter of course to the prevailing party, although the court may direct otherwise. See Fed.R.Civ.P. 54(d). In ADM Corp. v. Speedmaster Packaging Corp., 525 F.2d 662, 664-65 (3d Cir. 1975), we said that when the district court determines that a prevailing party is not entitled to costs, there should be an explanation entered on the record. See also Samuel v. University of Pittsburgh, 538 F.2d 991 (3d Cir. 1976).
Although the decision to deny costs is largely a matter of discretion, an articulation of the basis for the order is necessary for purposes of appellate review. Of course, we express no view as to whether costs should be awarded in this case.
Accordingly, the case will be remanded for further proceedings consistent with this opinion.
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
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
ARNETTE et al. v. UNITED STATES.
No. 5496.
Circuit Court of Appeals, Fourth Circuit.
Nov. 11, 1946.
C. T. McDonald, of Florence, S. C., for appellants.
Henry H. Edens, Asst. U. S. Atty., of Columbia, S. C. (Claud N. Sapp, U. S. Atty., of Columbia, S. C., and Louis M. Shimel, Asst. U. S. Atty., of Charleston, S. C., on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PER CURIAM.
This is an appeal from a conviction on an indictment charging the operation of a liquor distillery in violation of the provisions of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 2810 et seq. The exceptions relate to the refusal of the trial judge to allow more than 10 peremptory challenges to all of the defendants charged, to the ruling which permitted the United States Attorney to propound leading questions to an accomplice introduced by him as a witness and to the ruling which permitted cross examination of one of the defendants as to other violations of the liquor laws of which he had been convicted. Appellants also complain that their connection with the crime charged was established by co-defendants, whose testimony was subject to the suspicion that the law attaches to that of self-confessed accomplices. We find no merit in any of these contentions and no point of sufficient importance to justify discussion in an opinion. The cross examination as to prior conviction was allowed to take a somewhat wider range than would ordinarily be justified, but the defendant admitted the conviction and we cannot see that his case was in any way prejudiced by the cross examination, the scope of which was, in any event, a matter resting very largely in the sound discretion of the trial judge. Counsel for appellants points out that at one point the judge refused to permit him to ask a leading question of one of the defendants who had been introduced as a witness by the prosecution. This was doubtless an inadvertence, since it is no ground for excluding leading questions on cross examination that the witness is favorable to the side of the examiner. It is clear from the record, however, that no prejudice resulted to the defendants from this ruling.
The judgment appealed from will be affirmed.
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_casetyp1_1-3-1
|
P
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
Claude Anderson TAYLOR, Appellant v. UNITED STATES of America, Appellee.
No. 16524.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 30, 1961.
Decided Nov. 22, 1961.
Mr. John W. Brennan, Washington, D. C. (appointed by the District Court) for appellant.
Mr. Abbott A. Leban, Asst. U. S. Atty., with whom Messrs’. David C. Acheson, U. S. Atty., Nathan J. Paulson and Frederick G. Smithson, Asst. U. S. Attys., were on the brief, for appellee. Mr. Charles T. Duncan, Principal Asst. U. S. Atty., also entered an appearance for appellee.
Before Fahy, Washington and Danaher, Circuit Judges.
DANAHER, Circuit Judge. •
A jury returned a guilty verdict against the appellant on all 52 counts of an indictment charging that appellant procured payment on 52 false pay vouchers for four persons who were not entitled to compensation. Sentenced to imprisonment for concurrent terms of one to three years, he has appealed alleging as error: (1) the receipt, oyer objection, of authenticated photostat copies of the false vouchers rather than the originals; and (2) the introduction of records and information obtained in the course of investigation by a special agent of the F.B.I. who examined pertinent material in possession of the House of Representatives.
Appellant from January, 1955 to May, 1959 was Superintendent of the Folding Room of the House. The evidence disclosed that over 1956-1957, some 16 vouchers had been prepared for one Penner, 16 for one Day, a like number for one Fordham, with 4 vouchers for one Spotts, all ostensibly employed in or through the Folding Room. Many witnesses actually there employed over the period in question had never seen, known or heard of Penner, Day, Spotts or Fordham. No District of Columbia income tax records could be found as to any of them. Yet other evidence indicated that no such persons either were employed by the House or lived at addresses carried on the House records. Appellant’s secretary received from appellant various vouchers already bearing the purported signatures of Penner, Day, Spotts or Fordham. Against each voucher a salary check, drawn on the Treasurer of the United States, was issued. Then the secretary or one other employee in the Folding Room was instructed by the appellant to cash salary checks already endorsed in the name of the payee, at the office of the Sergeant-at-Arms. The cash was turned over to the appellant.
28 U.S.C. § 1731 (1958) provides that “The admitted or proved handwriting of any person shall be admissible, for purposes of comparison, to determine the genuineness of other handwriting attributed to such person.”
As the Government’s case was developed, exhibits bearing appellant’s signature were received. Included were a deed, of trust on appellant’s property, a note, a signature card at a bank, and an affidavit of citizenship, all signed by the appellant. A handwriting expert examined such documents for the purpose of comparing appellant’s true signature appearing on such material with yet other documents.
A witness from the Treasury Department produced thirty-nine original checks for which, after identification, photostat copies were substituted. In all, some fifty-two checks had been issued purportedly to Penner, Day, Spotts or Fordham against vouchers, certified photostat copies of which pursuant to subpoena had been prepared by the General Accounting Office. The Unit Head of the Records Information Unit of G.A.O. produced photostats of the vouchers and testified that he had control, custody and possession of such records. The various photostats were received in evidence over appellant’s objection that the original vouchers were the best evidence.
The Government here relies upon 28 U.S.C. § 1733 (1958) which provides:
Ҥ 1733. Government records and papers; copies
“(a) Books or records of account or minutes of proceedings of any department or agency of the United States shall be admissible to prove the act, transaction or occurrence as a memorandum of which the same were made or kept.
“(b) Properly authenticated copies or transcripts of any books, records, papers or documents of any department or agency of the United States shall be admitted in evidence equally with the originals thereof.”
The appellant’s secretary testified for the Government that the appellant had instructed her to prepare the vouchers, in the names of Penner, Day, Fordham and Spotts. When she received the vouchers from the appellant, they bore only the endorsements of the named payees. She filled in the number of hours of employment as calculated and supplied to her by the appellant. She saw him sign the vouchers thereafter. So signed, the vouchers went with the payroll to the Disbursing Clerk, whereupon checks were prepared in the names of the respective payees. The handwriting expert compared enlarged photographs of the appellant’s signature on the vouchers with the known specimens of his handwriting. In his opinion, based upon his studies of the many documents, the appellant had signed the vouchers. We would burden our discussion unduly were we to recount the mass of detailed evidence which, the jury quite evidently concluded, inextricably bound the appellant to the scheme by which the Government was mulcted.
We do not doubt that the originals of the vouchers might more accurately satisfy the requirements of the “best evidence” rule. The overwhelming evidence of the pattern followed by the appellant clearly established his guilt even if the vouchers had in fact been destroyed. The jury had before it, however, not only the testimony of the many witnesses, but the direct evidence of the photostats which Congress has said “shall be admitted in evidence equally with the originals thereof.” There is no suggestion that appellant sought and was denied production of the originals. He made no showing as to particulars in which the photostats failed faithfully to reproduce aspects of appellant’s handwriting as it appeared in the photostats. The expert’s identification of the appellant’s signature was not controverted. There was no limitation upon cross examination. We have carefully examined the entire record and can find no slightest particular as to which the appellant can properly claim prejudicial error.
Appellant’s next point is little short of frivolous. In the course of the Government’s investigation, special agents of the Federal Bureau of Investigation examined the files and records of the House of Representatives. It is argued that in so doing the Executive Department had conducted a “clandestine” search of the files of the Legislative Branch of the Government. Appellant points to 2 U.S.C.A. § 91 (1958) as placing upon the Committee on House Administration the duty to inquire from time to time “into the enforcement or violation of any of the provisions of sections 85-88, 89 and 90 of this title.” The agents were said to have inspected the records without procuring “authority from the Speaker of the House of Representatives.”
For all that appears, the Committee on House Administration requested the investigation. Certainly the records were made available to the inspecting agents in the Superintendent’s office. Moreover, the House of Representatives by resolution authorized release of the House records for use in this very prosecution. There is no merit in the suggestion that any personal rights of this appellant were thus violated.
The appellant was fairly tried and was convicted on evidence overwhelmingly establishing his guilt. We find no error.
Affirmed.
. Drawn pursuant to 18 U.S.C. § 287 (1958).
. Received in evidence also were other certified photostat cópies of checks in the custody and control of the General Accounting Office.
. Fed.R.Crim.P. 27, 18 U.S.C. provides:
“An official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions.” As to the latter, see Fed.R.Civ.P. 44, 28 U.S.C. And see Annot., 70 A.L.R.2d 1227 (1960).
. Moreover, on cross examination appellant brought out that the handwriting expert had studied the originals and had caused them to be photographed in the E.B.I. laboratory. Enlargements of the photographs were in part the subject of his explanatory testimony. The Doorkeeper and tbe Clerk of the House of Representatives also identified the appellant’s signature on various documents.
. Trimble v. Johnston, 173 F.Supp. 651 (D.D.C.1959) relied upon by the appellant is not to the contrary.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Eugene YOUNG, Defendant-Appellant.
No. 960, Docket 90-1570.
United States Court of Appeals, Second Circuit.
Argued March 15, 1991.
Decided May 3, 1991.
Michael F. Bachner, New York City, for defendant-appellant.
Alan Brudner, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., David E. Brodsky, Asst. U.S. Atty., on the brief), for appellee.
Before NEWMAN, PIERCE and WALKER, Circuit Judges.
JON 0. NEWMAN, Circuit Judge:
This sentencing appeal concerns the sentencing guideline for abuse of a trusted position and the extent of a sentencing judge’s discretion in revising a sentence that includes what the Government concedes is an excessive amount of restitution. Eugene Young appeals from the September 20, 1990, judgment of the District Court for the Southern District of New York (Kenneth Conboy, Judge) convicting him, on his guilty plea, of impersonating a federal officer, in violation of 18 U.S.C. § 912 (1988). We vacate the restitution portion of the sentence and remand.
Facts
Young was an informant for the Drug Enforcement Administration and the Customs Service. While working undercover as an informant, he met a Customs Service employee, who offered to sell him Customs Service identification cards. Working in cooperation with the Customs Service, Young purchased various stolen items from the employee, including blank Customs Service identification cards. He turned over most of these cards to the Government in connection with the prosecution of the employee, but retained some of the cards to facilitate his own criminal activity. Young then approached Luvena John, used the stolen Customs identification card to identify himself as a federal agent, and offered to sell John a car allegedly confiscated by the Government. Ultimately, Young obtained $5,500 from John and her employer (to whom he also displayed his false i.d.) but produced no car. Young used a similar scheme with three other victims and obtained $14,900 from them.
Young pled guilty to one count of impersonating a federal officer, in violation of 18 U.S.C. § 912, in connection with obtaining $5,500 from John and her employer. The Government acknowledges that at his plea allocution Young was not advised that his sentence might include an order of restitution. Young was sentenced to 18 months’ imprisonment and ordered to pay restitution in the amount of $20,400, the total obtained from all of his victims.
Discussion
I. Abuse of Trust
In calculating Young’s applicable guideline range, Judge Conboy added two levels pursuant to U.S.S.G. § 3B1.3, which applies to a defendant who “abused a position of public or private trust ... in a manner that significantly facilitated the commission or concealment of the offense.” The enhancement was entirely proper, and certainly an application of the guideline warranting “due deference.” See 18 U.S.C. § 3742(e) (1988); United States v. Shoulberg, 895 F.2d 882, 884 (2d Cir.1990). Young obtained the Customs i.d. because the Customs Service reposed sufficient trust in him to work as an informant, and his display of the i.d., in connection with his claim to be selling confiscated Government property, significantly facilitated the offense. See United States v. Drabeck, 905 F.2d 1304, 1305-06 (9th Cir.), reh’g granted and mandate recalled, 915 F.2d 1404 (9th Cir.1990).
II. Restitution
The restitution order, as the Government concedes, is invalid in two respects. First, the plea allocution did not inform Young that restitution could be ordered, as required by Fed.R.Crim.P. 11(c)(1). See United States v. Khan, 857 F.2d 85 (2d Cir.1988), modified on reh’g, 869 F.2d 661 (2d Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 682, 112 L.Ed.2d 674 (1991). Second, the amount of restitution exceeded the $5,500 obtained in the offense of conviction, a result that is impermissible under Hughey v. United States, — U.S. -, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990).
What remains for determination is the appropriate remedy for the infirmities in the restitution order. Apparently recognizing that the lack of advice concerning the prospect of restitution could be readily cured on remand and not wishing to withdraw his plea, Young informed us at oral argument that the sole remedy he seeks is to have the amount of restitution reduced from $20,400 to $5,500, thereby, in effect, waiving the Rule 11 defect and remedying the Hughey defect. The Government concedes that the restitution amount should be reduced to $5,500, but contends that on remand the District Judge should be given discretion to impose a fine, in lieu of the amount of restitution precluded by Hughey. As the Government points out, Judge Conboy felt that Young’s financial condition was insufficient to warrant both a fine and restitution to all the victims, and he expressly declined to impose a fine in order to “give priority to” the victims. In the Government’s view, the District Judge should be able to repackage his sentence to include both restitution of $5,500 and a fine, up to an aggregate monetary sanction of $20,400, the amount of the original restitution. It will be convenient to consider the Government’s contention that a fine is permissible on remand before considering whether the Rule 11 violation may be waived.
Citing our decisions in United States v. Diaz, 834 F.2d 287, 290 (2d Cir.1987), cert. denied, 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988), and McClain v. United States, 676 F.2d 915, 916-18 (2d Cir.), cert. denied, 459 U.S. 879, 103 S.Ct. 174, 74 L.Ed.2d 143 (1982), the Government broadly asserts, “It is settled law that when one component of a sentencing package is set aside on appeal, the District Court may adjust the other components in order to restore the sentencing package’s original size and shape.” Brief for Appellee at 9. That is not the law in this Circuit, as the Government found out when we rejected this same contention in United States v. Pisani, 787 F.2d 71 (2d Cir.1986). As we there explained, an upward revision of a previously imposed sentence was permitted in Diaz and McClain because of the invalidation of a mandatory consecutive sentence. In that situation, it was reasonable to assume that the aggregate sentence reflected the fact that the sentencing judge had diminished the length of the sentence underneath the consecutive sentence that he incorrectly had thought he was obliged to impose. But in Pisani, which did not involve a mandatory consecutive sentence, we refused to permit an increase in a mail fraud sentence after vacating sentences for other offenses. Recently, we permitted upward revision of a sentence on one count after invalidation of sentences on other counts where the counts, which charged tax evasions in consecutive years, could be regarded, for sentencing purposes, as “fungible,” United States v. Gelb, No. 90-1396, slip op. 2381, 2398 (2d Cir. Mar. 5, 1991). We noted, however, that “[w]e would face a different and closer question if a judge who had determined that a particular offense merited slight punishment revised that punishment to compensate for the dis-allowance of a penalty imposed for wrongdoing of a different sort.” Id. We have also permitted an upward revision to conform to the terms of an explicit sentence bargain. See United States v. Rico, 902 F.2d 1065 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 352, 112 L.Ed.2d 316 (1990).
This case is unlike either Diaz, McClain, or Pisani in that the Government seeks an upward revision of only one component of a sentence on a single count in light of the invalidation of another component, rather than, as in those cases, an upward revision of a sentence on one count in light of the invalidation of sentences on other counts. Though the restitution component of Young’s sentence was not mandatory, Judge Conboy explicitly stated that he was withholding a fine in order to give priority to restitution; he was not making an assessment that the conduct in question did not merit financial sanctions. Under these circumstances, he should have an opportunity to determine whether to impose a fine, now that the restitution component has been invalidated.
The next issue is whether the restitution order should be eliminated or whether only a reduction of the amount to $5,500 is required. In Khan, 869 F.2d at 662, at the Government’s request we permitted the District Court to eliminate a restitution order because of a Rule 11 violation. Here, appellant has indicated willingness to waive the Rule 11 violation and accept a reduction of the restitution amount to $5,500. However, that willingness was expressed before we had ruled that the sentence may be revised to include a fine. We cannot enforce that waiver under this changed circumstance. On remand, if the Government wishes to forgo restitution, it may so indicate, and the guilty plea will stand, as in Khan. If it wishes to obtain restitution (limited, under Hughey, to $5,500), then Young must be afforded an opportunity to withdraw his plea. If restitution is not sought, or if Young does not withdraw his plea and accepts a reduction of the restitution amount to $5,500, Judge Conboy may then impose a fine up to an amount that, when added to the amount of restitution, does not exceed the original monetary sanction of $20,400.
Sentence vacated in part, and case remanded for further proceedings consistent with this opinion.
. Though we appreciate the Government’s candor in acknowledging on appeal the two deficiencies in the restitution order, the Government would have been more helpful if it had alerted the District Court to both matters.
. Had there been no Rule 11 violation, the logic of Khan would permit the Government to acknowledge the Hughey violation and insist on the $5,500 of restitution, without affording Young an opportunity to withdraw his plea. However, the existence of the Rule 11 violation requires either an abandonment of restitution, as in Khan, or a waiver of the Rule 11 violation by a defendant fully informed of the range of sentencing options.
. It appears that the District Judge applied the version of section 2J1.4 that was in effect at the time of Young’s offense, whereas the appropriate guideline was the version in effect at the time of the sentence. See 18 U.S.C. § 3553(a)(4) (1988); United States v. Adeniyi, 912 F.2d 615, 618 (2d Cir.1990). Under the new guideline, if impersonation was done to facilitate another offense, the sentencing judge is to use the guideline for an attempt to commit that offense. U.S.S.G. § 2J1.4(c)(l) (Nov. 1, 1989); see id. App. C (amendment 176). The attempt guideline, § 2X1.1, in conjunction with the fraud offense guideline, § 2F1.1, will not necessarily alter Young’s offense level, though it might. Although any increased sentence would be barred by the Ex Post Facto Clause, Young is entitled to any decrease that might result under the revised guideline. On remand, we authorize the District Judge to accord Young the benefit of a reduction in sentence, if any, that results from application of the revised guideline.
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_applfrom
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Calvin W. SLAUGHTER and Carol Ann Slaughter, Plaintiffs-Counter Defendants-Appellants, v. ALLSTATE INSURANCE COMPANY, et al., Defendants-Counter Plaintiff-Appellees.
No. 86-2201.
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 3, 1986.
David T. Lopez & Associates, David T. Lopez, Houston, Tex., for plaintiffs-counter defendants-appellants.
Bracewell & Patterson, V. Scott Kneese, Dennis Childs, Houston, Tex., for defendants-counter plaintiff-appellees.
Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.
ALVIN B. RUBIN, Circuit Judge:
Calvin W. Slaughter, who was forty-one years old and had worked for Allstate Insurance Company for sixteen years, was discharged for the stated reason that he had submitted a false insurance claim for damages to his home. Allstate replaced him with a younger person. Slaughter and his wife sued Allstate and various Allstate employees, asserting claims under the Age Discrimination in Employment Act of 1967, as well as various tort claims under Texas state law. Allstate counterclaimed, asserting that Slaughter had violated a covenant not to compete following his discharge, and obtained a preliminary injunction from the district court against his competition. Subsequently, the district court dismissed the claims against the Allstate employees and rendered summary judgment in favor of Allstate. We affirm the judgments of the district court.
I.
Slaughter, an insurance sales agent for Allstate, had an Allstate policy on his home for fire and extended coverage in the amount of $85,000, subject to a deductible of $850. The premium was lower than it would have been if the deductible had been less. The policy was to expire on March 27, 1984. Slaughter testified in his deposition that he had decided to increase the coverage and decrease the deductible, but had neither filed an application to do so nor paid the additional premium that this would entail when on March 24 he suffered water damage, amounting to $550, to a carpet in his home. Subsequently, on March 26, Slaughter filed an application to Allstate to increase the insured value of his home and decrease the deductible. He dated the application March 26, but backdated the effective date of the change to March 23. As a result of the lower deductible, half of the damage to the carpet was covered. Slaughter filed a claim for his loss without reporting to his supervisors that he had made the changes in his policy after the loss had occurred.
Several days thereafter, Slaughter discussed the changes with his superior. What was said then is disputed. Slaughter’s version is that the superior told him that the claim would probably be denied, but that denial would be the worst that could happen, and that Slaughter should submit it for a “management exception.” Allstate investigated the matter, and after further discussions with Slaughter, discharged him on September 7.
In his complaint, Slaughter prayed for reinstatement and compensatory and punitive damages. Although he alleged that, “unless subjected to the specific injunctive orders of this court, the Defendants will continue to deny to the Plaintiff the benefits of his contract of employment as an insurance sales agent, and the Plaintiff has no plain and adequate remedy at law,” Slaughter did not seek any injunctive relief other than reinstatement in the complaint.
II.
The Act gives no basis for relief against the company employees as individuals. Reinstatement, the only appropriate relief sought by Slaughter under the Act, could be granted only by Allstate. The complaint stated no other federal claim against the named individual defendants. The judgment dismissing the age discrimination claim against the individual defendants was, therefore, correct. In the absence of a federal claim, a district court may in its discretion, and generally should, dismiss pendent state law claims. The district court properly declined to exercise jurisdiction of the state law claims against the individual defendants.
III.
The district court entered the preliminary injunction enforcing Slaughter’s covenant not to compete on May 23, 1985. The preliminary injunction was then appealable as of right. Fed.R.App.Proc. 4(a)(1) requires the notice of appeal from any order appealable as of right to be filed within 30 days after the order is entered. That time limit is jurisdictional. Because Slaughter did not file a notice of appeal until March 1986, we lack jurisdiction to consider the appeal from the preliminary injunction.
IV.
The party opposing a motion for summary judgment may not rest on the allegations of his complaint. As the Supreme Court held in Celotex Corp. v. Catrett, the party who bears the burden of proof on an issue at trial must, in responding to a proper motion for summary judgment, “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. If he has had sufficient time for discovery, he must “designate ‘specific facts showing that there is a genuine issue for trial.'" Although our earlier jurisprudence required the district judge to search the record for a genuine dispute about a material fact, Celotex Corp., as well as this court’s recent decision in Fontenot v. Upjohn Co., makes clear that the moving party must point out to the court the absence of evidence showing a genuine dispute — though the moving party need not always present actual evidence negating a dispute. The court in Celotex Corp. said:
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.
Allstate’s motion for summary judgment was based almost entirely on Slaughter’s deposition supplemented by other evidentiary materials. The Slaughters did not file any evidentiary material in opposition
to this motion. The Slaughters do not point, either in the record or in their brief to this court, to any genuine dispute of a material fact. While Slaughter did not backdate the form that he filled out to change his policy, he did backdate the effective date of the change. The Slaughters’ suggestion that it is not dishonest to backdate the effective date of an insurance policy to acquire retroactive coverage betrays a curious sense of morality. That Slaughter took such action was sufficient to warrant his discharge absent use of the incident as a pretext to cloak discrimination.
Whether, as Slaughter contends, he told his supervisor about the discrepancy in dates a few days after making the change, or, as Allstate’s evidence indicates, this conversation about the discrepancy in dates took place a month later, when Allstate was investigating the matter, is immaterial. The conversation did not negate the earlier dishonesty but, at most, minimized in Slaughter’s mind the danger to which he had exposed himself. Slaughter points to nothing other than this conversation to show that Allstate’s reasons for discharging him were pretextual.
While Slaughter said in his deposition that he believed and suspected that Allstate had a company policy of replacing agents over 40 with younger agents to reduce expenses, he admitted having no personal knowledge of such a policy and adduced no evidence of it. Testimony based on conjecture alone is insufficient to raise an issue as to the existence of the alleged policy. It is difficult indeed to see how Allstate would save money with such a policy, since the evidence shows that all agents were paid on a commission basis, with compensation keyed to sales, so that younger agents making greater sales earned more than Slaughter.
The burden of establishing pretext rests on the party asserting age discrimination. In Anderson v. Liberty Lobby, Tree., the Supreme Court held that “evidence” as weak as Slaughter’s cannot preclude summary judgment, saying:
The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
* * * * * *
If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted.)
There is, of course, no rule of law prohibiting summary judgment in an age discrimination case.
Slaughter’s pendent state claims against Allstate include a contention that Allstate breached its contract with him by discharging him without notice. The contract, however, does not require notice and an opportunity for corrective action before discharge on grounds of dishonesty. It requires advance warning and counselling only in instances of unsatisfactory work. Here, dishonesty was the ground for discharge.
The Slaughters also assert the existence of evidence from which a jury might have determined that Allstate slandered him, but do not identify that evidence. The only testimony adduced on this issue related to the circumstances of Slaughter’s termination. The publicity given Slaughter’s discharge was in publications that (i) were privileged because they were made in good faith, between persons within the Allstate system who had an interest in the discharge, or (ii) stated nothing about the reason for his termination.
The state law claim against Allstate for intentional infliction of emotional distress depends on the successful assertion of an independent tort, and was therefore properly dismissed. The conspiracy claim was properly dismissed because it was made only against the individual defendants, who had already been dismissed from the case, and not against Allstate.
Y.
The Slaughters assert that the district court erred in “failing to consider and exercise pendent party jurisdiction” of their state law claims against the Allstate employees. The Slaughters, however, never invoked pendent party jurisdiction. Moreover, even when properly invoked, the exercise of pendent jurisdiction is left to the discretion of the district judge. Their claims were dismissed without prejudice.
For these reasons, we AFFIRM the judgments of the district court.
. 29 U.S.C. § 623, et seq. (1986).
. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
. --- U.S. ---, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Id. at ---, 106 S.Ct. at 2553.
. Id.
. 780 F.2d 1190, 1195-97 (5th Cir.1986).
. Celotex Corp., --- U.S. at ---, 106 S.Ct. at 2555.
. Confer v. SKF Industries, Inc., 40 FEP 1721, 1724 (W.D.Pa.1986). [Available on WESTLAW, DCTU database].
. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).
. --- U.S. ---, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id. at ---, 106 S.Ct. at 2512, 2511.
. See Anderson v. Liberty Lobby, --- U.S. ---, 106 S.Ct. 2505.
. Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App. --- Tyler 1980, no writ).
. Vietnamese Fishermen’s Assn. v. Knights of the Ku Klux Klan, 518 F.Supp. 993, 1013-14 (S.D.Tex.1981); cf. Fenslage v. Dawkins, 629 F.2d 1107, 1110-11 (5th Cir.1980).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_numappel
|
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.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Herman KROGMANN and Emil Klauss, Appellants, v. UNITED STATES of America, Appellees.
No. 12268.
United States Court of Appeals Sixth Circuit.
Aug. 16, 1955.
Samuel Goldstein, Pittsburgh, Pa. (Charles J. Margiotti, Margiotti & Casey, Pittsburgh, Pa., Loyal S. Martin, Cincinnati, Ohio), on the brief, for appellants.
Thomas Stueve, Asst. U. S. Atty., Cincinnati, Ohio (Hugh K. Martin, U. S. Atty., Thomas Stueve, Richard H. Pennington, Asst. U. S. Attys., Cincinnati, Ohio), on the brief, for appellee.
Before SIMONS, Chief Judge, and MILLER and STEWART, Circuit Judges.
MILLER, Circuit Judge.
Appellants, Herman Krogmann and Emil Klauss, were tried and convicted under two indictments charging them with bribing an officer in the United States Air Force, in violation of Section 201, Title 18 U.S.Code, and with conspiring between themselves and with the Air Force Officer to commit such offense, in violation of Section 371, Title 18 U.S. Code and Section 202, Title 18 U.S.Code. The cases were heard together, and their various appeals have been consolidated in this Court.
Indictment No. 8526, consisting of two counts, charged in Count 1 that on or about July 23, 1953, appellant Krogmann gave the sum of $3,500 to Donald Arthur Krueger, a First Lieutenant in the U. S. Air Force, assigned as Chief, Readjustment Section and Plant Clearance Officer with the Air Force Plant .Representative’s Office, General Electric Plant, Evendale, Ohio, and acting on behalf of the United States by authority of the United States Air Force, with intent to influence the decision of Krueger in making disposal sales of property which had been declared surplus to the needs of the U. S. Air Force, which by law were brought before Krueger in his official capacity. Count 2 charged appellants Krogmann and Klauss with making another payment of $1,500 to Krueger on or about August 18, 1953 for the same purpose.
Indictment No. 8528 charged Krueger and the appellants Krogmann and Klauss with conspiring between November 1, 1952 and December 3,1953 to violate Section 202, Title 18, U.S.Code, by having Krueger receive from them compensation for services in the sales of property which was declared surplus to the needs of the United States Air Force which were before Krueger in his official capacity, said services consisting of securing an award of a sale to Krogmann and Klauss of surplus material identified as Negotiated Sale No. 20. The indictment alleged four overt acts in furtherance of the conspiracy. In this indictment Krueger was also separately indicted under Counts 2 and 3 which charged the substantive offenses under Section 202, Title 18, U.S.Code. Krueger pleaded guilty to all three counts under indictment No. 8528.
At the close of the Government’s evidence and again at the close of all the evidence, appellants moved for judgment of acquittal, which motions were overruled. These motions were based upon the claim that the Government’s evidence failed to show that Krueger had any official authority to act in the transaction complained of, which was necessary to prove the commission of the offense. Blunden v. United States, 6 Cir., 169 F.2d 991.
The Government’s evidence showed the following facts: Krueger was a First Lieutenant in the United States Air Force stationed during the time in question at the General Electric Plant, Even-dale, Ohio, where he served as Chief, Readjustment Section and Plant Clearance Officer with the Air Force Plant Representative’s Office. John T. Kearney, a civilian employee of the Air Force, stationed at the G. E. Plant, served as a contracting officer and assigned Krueger to certain contracts under him. As a plant clearance officer it was Krueger’s responsibility to clear the plant of excess and surplus material. Krueger had no power to declare property surplus. He had authority to canvass the market for prospective buyers for surplus property and to negotiate sales under the sum of $1,000 without further approval. If the sales were over $1,000 he was required to secure the approval of the Property Disposal Board and of the contracting officer. By letter of March 4, 1952, Kearney appointed Krueger as his representative and authorized and directed him to dispose of the inventory located at the ANP Project, Oak Ridge, Tennessee, in accordance with applicable rules and regulations.
Krueger first met the appellants in the late summer of 1952 at the G. E. Plant at Evendale, Ohio, where they were the successful bidders with respect to some surplus property there. In July 1953, Krueger went to Oak Ridge to show prospective- customers available surplus. Krogmann met Krueger there on July 8, 1953, and inspected certain material, an inventory of which had previously been furnished him. Krueger testified that Krogmann was very anxious to get the material and asked when the award would be made and when his firm could start moving the material. Krueger also testified that he orally recommended to Kear-ney an alleged offer by the Euclid Foundry and Equipment Company of Cleveland, Ohio, of which Krogmann and Klauss were officers, of $40.00 per ton; that Kearney approved the recommendation and told him to go ahead and award the contract, which he did.
Krueger testified that Krogmann called him by phone from Cleveland on July 23rd and told him he was flying to Cincinnati; that he met him at the airport in Northern Kentucky where Krogmann asked to be driven to the Terrace Plaza Hotel in Cincinnati; and that during the ride from the airport to downtown Cincinnati, Krogmann gave Krueger $3,500 in $100 bills, telling him that it was part of the $5,000 which he had originally told Krueger he would give him for the award of the Oak Ridge contract. Krueger told Krogmann that he intended to purchase a car with the money. Krogmann asked Krueger not to put the money in the bank, but to place it in a safety deposit box, which, however, Krueger did not do.
On August 18,1953, in accordance with previous arrangements by phone, Krue-ger met Krogmann and Klauss at the Greater Cincinnati Airport and drove them to a restaurant in "Northern Kentucky to lunch. Krueger testified that he had preparéd an undated letter of an award to the Euclid Company, and that enroute to the restaurant he gave the appellants the original and copies. For his own records, Krueger arbitrarily designated the transaction as Negotiated Sale' No. 20, although actually there was no such negotiated sale. While at the restaurant, Klauss -excused himself to make a telephone call and in his absence, Krogmann handed Krueger $1,500 in $100 bills saying, “Here is the rest of the $5,000 which we — :which I promised you. And if we make any money on this we will give you an additional $5,000.” The proposed sale was never consummated, and following an FBI investigation these indictments were returned.
Appellants denied that Krueger had given them the alleged typewritten letter of award to the Euclid Company and much of Krueger’s other testimony. It was admitted that the two payments of $3,500 and $1,500 had been made to Krueger on the dates referred to, but appellants denied that it was given for the purpose of securing an award. Krogmann testified that shortly after July 8, 1953 Krueger telephoned him that his wife was pregnant and he was badly in need of money, and requested a loan of $5,000. He advised Klauss of the request. After discussing the possibility of having the company make the loan, and being advised by the company’s attorney that it could not be done, they agreed to make the loan to Krueger from their personal funds'. Krogmann claimed that he made such loans to other parties in the past without interest, without evidence of obligation and without collateral: that when he gave Krueger the $3,500 he asked for a note which Krueger promised to give, and that he expected to receive the note and to be repaid by Krueger as soon as he could do so. There was additional evidence by appellants, which it is unnecessary to give in detail, contradicting Krueger’s testimony and sup-‘ porting their contention that the $5,000 was actually a loan to Krueger, and that there was no intent on their part to influence Krueger in making disposal sales of property at Oak Ridge to them. However, this presented a question of fact for the jury. In our opinion, the Government’s evidence was sufficient to take the case to the jury on this issue.
This case is materially different from Blunden v. United States, 6 Cir., 169 F.2d 991, 994, upon which appellants strongly rely. That case rested upon the fact that the civilian employee of the United States Army, had no authority to act at all in the sale of the Government property therein involved. In that case, the Government employee did not make a decision or recommendation favorable to appellants in a matter under his jurisdiction, but actually stole the property from the Government and turned it over to purchasers for resale and for a division of the profits. We agree with the contentions of appellants, as there pointed out, that the crux of the offense is the intent to influence an official decision, that the statute requires that the employee be acting for the Government in an “official function,” and that the matter in which his decision is to be influenced be “ ‘before him in his official capacity.’ ” However, the statute refers to the “decision or action” of the Government employee, and is applicable to a situation where the advice and recommendation of the Government employee involved would be influential in securing the decision desired by the persons offering the bribe, even though the employee did .lot have the authority to make the final decision. Rembrandt v. United States, 6 Cir., 281 F. 122; Browne v. United States, 6 Cir., 290 F. 870; Cohen v. United States, 6 Cir., 294 F. 488; Hurley v. United States, 4 Cir., 192 F.2d 297. The evidence was sufficient to show the necessary authority in Krueger to make a recommendation favorable to appellants in the disposal of surplus property at the Oak Ridge plant, and that the appellants intended to influence his “action” in disposing of such property.
Closely linked with the above question of Krueger’s authority to act in the matter is appellants’ further contention that the evidence was insufficient to prove that the property included in the so-called Negotiated Sale No. 20 was surplus property to the Air Force, and that Krueger had no authority to act with respect to that particular property although he may have had authority to act with respect to other property which had been declared surplus. Although the evidence may not have shown specifically that the particular property included in Negotiated Sale No. 20 had been declared surplus, there was testimony from Kearney that the property at Oak Ridge was surplus property, having been declared so by the General Electric Company when it moved from Oak Ridge to the General Electric plant in Ohio, and that the property with which Krue-ger dealt had been declared surplus. Inventories of the property which was for sale had been sent to prospective purchasers, including the appellants. The testimony as a whole, with the reasonable deductions therefrom, was, in our opinion, sufficient to take the case to the jury on this issue.
In addition, the offense charged was complete upon the payment of the money to Krueger with the intent to influence his action with respect to the sale of surplus property. The evidence was sufficient to show that appellants were interested in the surplus property at Oak Ridge and made the payments for the purpose of influencing Krueger’s action with respect to such property. Whether the attempt was successful or what the officer did in attempting to perform his side of the bargain are accordingly immaterial. Wolf v. United States, 6 Cir., 292 F. 673, 675; Curtis v. State, 113 Ohio St. 187, 191, 148 N.E. 834; Underhill on Criminal Evidence, 4th Edition, Sec. 715. For this reason appellants’ contention that there actually was no Negotiated Sale No. 20 of property specifically shown to be surplus is without merit.
Each of the appellants introduced five character witnesses in his behalf. In the Government’s opening summation to the jury, counsel belittled the value of character testimony, stating in substance that practically any defendant can find somebody that would say a good word for him. In appellants’ summation to the jury counsel stressed the importance of character testimony and called attention to the failure on the part of the Government to contradict the testimony so given. After referring to the investigating facilities of the FBI he argued to the jury — “If they had any evidence that at any other time any of these defendants had committed a dishonest act or had been unfair with their fellow man, they could have cross examined those witnesses by asking them: ‘Did you ever hear it said — ’ ”. The trial judge interrupted at that point and stated “That isn’t the fact, as you well know. Now, if you will just consider what you said the Government could have done, that isn’t the law.” A colloquy followed between Court and counsel, which developed the fact that the Court probably misunderstood the argument to mean that the Government could have introduced in the presentation of its case evidence of other offenses, while counsel attempted to explain that such was not the purport of the argument. Counsel asked for a ruling. Without giving a specific ruling the Court said' — -“I just want to say to you that it’s taking in too much territory,” and a few sentences later added — “I say, you can go on from here; and if you want to take an exception to the interruption, all right.” Counsel thereupon resumed his argument to the jury, calling attention to the failure of the Government to produce evidence showing that the appellants did not have a good reputation, together with the inference to be drawn in appellants’ favor by reason of such failure.
Appellants claim that the Court’s interruption of counsel’s argument and ruling as above set out constituted prejudicial error. The trial judge was correct in his understanding of the general rule that it was not permissible for the Government to introduce evidence of prior criminal offenses in the presentation of its case in chief. However, he was incorrect in concluding that counsel was making a contrary contention in his closing argument to the jury. On the contrary, counsel was attempting to argue to the jury what we believe is settled law, that when a defendant in a criminal case introduces evidence tending to prove his good reputation he throws open the entire subject and prosecution may cross-examine the defendant’s character witnesses to test their credibility, which cross-examination may include questions as to their knowledge of prior criminal offenses if such offenses actually existed. Michelson v. United States, 335 U.S. 469, 477-479, 69 S.Ct. 213, 93 L.Ed. 168; Malatkofski v. United States, 1 Cir., 179 F.2d 905, 913; United States v. H. Wool & Sons, Inc., 2 Cir., 215 F.2d 95, 98-99. However, any error in this respect was corrected, or any prejudice resulting from the error was avoided, by allowing counsel to thereafter resume the argument and to present to the jury the same point which he was trying to make when previously interrupted by the Court.
In the cross examination of Krueger, testifying for the Government, he was asked if he had received any other money in addition to the amounts he had admitted receiving by pleas of guilty to several indictments, including the one in these cases. He declined to answer on the ground that it might tend to incriminate him, which position was sustained by the trial judge. Appellants contend that Krueger, having voluntarily appeared as a witness for the Government, and having pleaded guilty to indictments charging him with accepting bribes, had waived his constitutional privilege against self-incrimination, and that the trial court’s ruling was prejudicial error. We do not agree. If the witness had accepted other bribes he was subject to prosecution under additional indictments. The pleas of guilty to indictments already returned waived the privilege with respect to those offenses, but we do not construe it as being a blanket waiver with respect to other offenses that might be charged against him later. In our opinion, United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376; Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 and Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344, relied upon by appellants, do not sustain their contention. On the contrary, it seems to be recognized in Rogers v. United States, supra, that although privilege has been waived with respect to certain questions it still exists when additional questions present a reasonable danger of further crimination.
Both indictments allege venue in the Southern District of Ohio, Western Division. Appellants contend that the evidence failed to establish that fact, which defect was raised by their motions to dismiss at the close of the Government’s evidence and at the close of all the evidence. It is their contention that they gave the $3,500 to Lieutenant Krueger on July 23rd in Covington, Kentucky; that the second payment of $1,500 was made to him on August 18th at a restaurant in Northern Kentucky; and that the correct venue of the action was the Northern District of Kentucky rather than the Southern District of Ohio.
With respect to the first payment of $3,500, appellant Krogmann testified that he gave it to Lieutenant Krueger under a traffic light on the street before he left Covington, Kentucky. However, Lieutenant Krueger testified that it was paid to him after they crossed the River and were in Cincinnati, Ohio. With respect to the second payment of $1,500 the evidence is uncontradicted that it occurred at the restaurant in Northern Kentucky. The appellants requested in indictment No. 8526 an instruction with respect to each count of the indictment that if the jury should find that the bribery as charged therein occurred in the State of Kentucky then the jury’s verdict should be not guilty. The trial judge refused to give this instruction. On the contrary, he was of the opinion that from the uncontradicted evidence venue was properly proven in the Southern District of Ohio and so instructed the jury. This ruling was based on Section 3237, Title 18, U.S.Code, which provides that any offense against the United States begun in one district and completed in another may be prosecuted in any district in which the offense was begun, continued or completed. He considered the alleged offense of bribery as being a continuing one, including the acts leading up to it, a number of which occurred in the Southern District of Ohio, as well as the actual act of transferring the money. The correctness of his ruling necessarily depends upon this construction of the alleged offense.
We are of the opinion that the District Judge was incorrect in construing the offense as a continuing one. The statute refers to a specific act, namely the giving of money to a Government official. Although considerable planning and preparation may precede the actual transfer of the money, we are of the opinion that the essence of the offense is the actual transfer of the money at the time and place where it occurs, accompanied by the unlawful intent. Preparations for the commission of the crime are not parts of the crime. Reass v. United States, 4 Cir., 99 F.2d 752; United States v. Borow, D.C.N.J., 101 F.Supp. 211; United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897.
The Government in support of its contention to the contrary relies upon Lad-ner v. United States, 5 Cir., 168 F.2d 771; United States v. Cohen, 3 Cir., 197 F.2d 26, and Goodloe v. United States, 88 U.S.App.D.C. 102, 188 F.2d 621. Both the Ladner and Cohen cases involved conspiracies. In such cases it is well settled that since a conspiracy is a continuing crime, jurisdiction exists either where the conspiracy was entered into or where any overt act was committed. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114; Costal v. United States, 6 Cir., 13 F.2d 843. The Goodloe case involved an attempt to bribe. The Court was of the opinion that the attempt to bribe included certain overt acts over a period of time, some of which occurred in the district in which the indictment was returned. We think the offense involved in that case is materially different from the one charged in this case, namely, the actual giving of money at a time and place to an officer of the United States. The appellants were entitled to the requested instructions with respect to Count No. 1 of indictment No. 8526. With respect to Count No. 2 in indictment No. 8526, the motion to dismiss should have been sustained. The issue was not raised in indictment No. 8528 which charged a conspiracy.
Appellants also complain of the ruling of the District Judge in excluding testimony of third parties about similar loans made by one or other of the appellants to them in the past without the execution of a note, without interest and without collateral, offered for the purpose of showing that it was not unusual for the appellants to make loans of that character. The District Judge was of the opinion that the relationship between the parties and the circumstances under which the loans were made were materially different from the relationship and circumstances in the present case. We are of the opinion, however, that the circumstances were sufficiently similar to make such testimony relevant and competent, with the distinguishing features going to the weight of the testimony. Prior transactions on the part of a defendant in a criminal case, similar to the one involved in which the element of intent is an issue, have a bearing upon the issue of intent and are admissible in evidence for the purpose of proving or disproving the necessary intent. Wood v. United States, 16 Pet. 342, 360, 10 L.Ed. 987; Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705, 68 S.Ct. 793, 92 L.Ed. 1009; N.L.R.B. v. National Seal Corp., 2 Cir., 127 F.2d 776, 778; State ex rel. Attorney General v. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.N.S., 553.
During the .course of .the trial, an article was published in the Cincinnati Times Star, a daily newspaper, of wide circulation, which referred to testimony given in the trial by Klauss, and which carried the headline in bold type— “Part in bribe admitted.” The article itself was short, was a. fair summary of the testimony on the particular point involved, and. did not sustain the headline. Appellants moved for a mistrial. The District Judge asked the jurors if any of them had read it. Two. jurors replied they had. During colloquy with-counsel, the District Judge read to the jury .the headline and admonished the jurors that they were to decide the case solely on the evidence given from the witness stand and were not to be influenced one way or the other by what they read in the newspapérs. Counsel for appellants, upon being asked by the Court if he would suggest some additional instructions, replied that he thought the action of the Court in reading the objectionable headline to the jury was incurable, and renewed his motion for a mistrial. The District Judge then read the entire article to the jury and instructed them again to decide the case upon the evidence given from the witness stand and not to be influenced by the article in the newspaper, pointing out that no one in the court room had any control over the newspapers. He then asked the two jurors who had read the article if they would be influenced by what they had read in the paper. The two jurors answered they would not. The District Judge then directed that the trial proceed, and upon being asked by counsel for a ruling, overruled the motion for a mistrial, to which ruling counsel excepted.
Unfavorable publicity to a defendant given in newspapers about a pending jury trial is not necessarily grounds for setting aside a verdict, but under certain circumstances may result in prejudice to a defendant so as to cause a mistrial. Generally, an incorrect, unfavorable report of the evidence presented against a defendant on a material issue, which comes to the attention of a juror or jurors during the pendency of the trial raises a rebuttable presumption that the rights of the defendant have been prejudiced. The District Judge should ascertain if the report has come to the attention of a juror and. if so, take the necessary steps to rebut such presumption, and if not convinced that the .presumption has been rebutted, declare a mistrial. Briggs v. United States, 6 Cir., 221 F.2d 636; Marson v. United States, 6 Cir., 203 F.2d 904; Harrison v. United States, 6 Cir., 200 F. 662, 669. The District Judge attempted to perform that duty in making inquiry .of the jurors if the article had come to their attention. But, after learning that two of the jurors had seen it, we are of the opinion that he erred in reading the objectionable headline to all the jurors, and in later obtaining assurances from only two of them, that no prejudice had been created. Stone v. United States, 6 Cir., 113 F.2d 70, 77; Briggs v. United States, supra; Marson v. United States, supra.
Appellants also complain of the ruling of the District Judge in refusing to permit them to testify that in giving the money to Krueger they did not intend to influence his decision in making disposal sales of the property in question. The Government contends that the specific questions asked of the appellants did not raise this issue. We are of the opinion that they did. There is some question whether the point was sufficiently presented by an avowal of what the witnesses would say. However, for the purposes of a new trial it can be stated that the rule is well settled that in a criminal proceeding where the intent of the defendant is in issue the defendant may testify as to what his intent was. Crawford v. United States, 212 U.S. 183, 202-203, 29 S.Ct. 260, 53 L.Ed. 465; Bentall v. United States, 8 Cir., 262 F. 744, 746; Haid v. United States, 9 Cir., 157 F.2d 630; Haigler v. United States, 10 Cir., 172 F.2d 986; Collazo v. United States, 90 U.S.App.D.C. 241, 196 F.2d 573, 581.
We find it unnecessary to discuss in detail other contentions of the appellants. They deal mainly with the instructions of the District Judge to the jury and contend that in several instances well-recognized principles of criminal law were violated. Appellants correctly argue that it was the duty of the trial judge to instruct the jury with reference to the appellants’ theory of the case; to point out to the jury the necessity on the part of the Government of proving beyond a reasonable doubt each of the elements constituting the offense charged, including in this case the element that Krueger received the money in a matter which was before him “in his official capacity”; that it was not necessary that the jury convict or acquit both defendants, but that separate and alternate verdicts as to each defendant were permissible under the four counts which the jury was considering. It is of course also a fundamental principle that the trial judge in his conduct of the trial should be fair and impartial to both the Government and to the defendants, and should not by undue participation in his cross examination of witnesses or unwarranted criticism of counsel indicate to the jury what he thought their verdict should be. Although the trial judge actively participated in the examination of certain witnesses, in our opinion, a consideration of the transcript of the evidence as a whole and of his instructions to the jury in their entirety does not convince us that any of these principles were transgressed. In any event, the criticism which appellants make in these respects on the present review will no doubt be avoided in the retrial of these cases.
The judgments of the District Court are reversed and the cases remanded to that Court for new trials under Count 1 in indictment No. 8526 and Count 1 in indictment No, 8528, and for the entry of an order sustaining appellants’ motion to dismiss Count 2 under indictment No. 8526.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
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songer_const1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES v. FORTIER et al.
No. 4521.
United States Court of Appeals First Circuit.
Dec. 12, 1950.
Robert D. Branch, Asst. U. S. Atty., Concord, N. H. (John J. Sheehan, U. S. Atty., Concord, N. H., on brief), for appellant.
Stanley M. Brown, Manchester, N. H. (McLane, Davis, Carleton & Graf, Manchester, N. H., and Meyer Green and Green, Green, Romprey & Sullivan, Manchester, N. H., on brief), for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and FAHY, Circuit Judges.
MAGRUDER, Chief Judge.
On November 9, 1948, the United States filed its complaint in the court below under § 7(c) of the Veterans’ Emergency Housing Act of 1946, 60' Stat. 207, 50 U.S.C.A. Appendix, § 1821 et seq., against the defendants, doing business in partnership under the name Modern Building Company. Relief was sought by way of mandatory injunction requiring the defendants to make restitution to two veterans, who had purchased houses constructed by the defendants, of sums which they had paid for said houses in excess of the. maximum sales prices set forth in defendants’ approved application for priorities assistance under Priorities Regulation 33, 11 F.R. 4085. The district court gave judgment for the defendants, and the United States appealed.
Priorities Regulation 33 was issued by Civilian Production Administration pursuant to the provisions of Title III of the Second War Powers Act, as amended, 56 Stat. 176, 50 U.S.C.A. Appendix, § 633, and executive orders thereunder. Subsequently, by Housing Expediter Priorities Order 5, 12 F.R. 2111, the blousing Expediter took over and adopted Priorities Regulation 33 as his own regulation under the regulatory power conferred upon him by § 4 of the Veterans’ Emergency Housing Act of 1946.
The defendants, on August 21, 1946., made application for a residential construction permit under Priorities Regulation 33. Upon approval of the application on September 9, 1946, defendants were authorized to construct two five-room houses in accordance with detailed specifications. A project serial number was assigned, and an HH preference rating was issued to the defendants; also, a maximum sales price of $8,350 was established for each house. At this time the building materials which were to be purchased with the priorities assistance were all under price control. But by Supplementary Order 193, issued by the Price Administrator November 12, 1946, price controls were lifted from all such commodities (11 F.R. 13464). It does not appear that the defendants had made use of their preference rating to obtain any substantial amount of building materials prior to the lifting of price control. Indeed, the record is lacking any dear indication that the defendants had any substantial benefit from their preference rating in the obtaining of building materials. Apparently such preference ratings which had not been used prior to March 31, 1947, ceased to be of value after that date. See testimony by the Housing Expediter, Hearings before the Committee on Banking and Currency, House of Representatives, 80th Cong., 1st Sess., 1947, on H.R. 2547, at p. 55.
One of the houses, which was completed in August, 1947, was sold on December 4, 1947, for the price of $12,000. The other house was not completed until January, 1948, but it had been sold by the defendants, prior to completion, on November 12, 1947, for $12,800. The defendants offered to prove, through the testimony of an appraiser for the Veterans’ Administration, that, in performance of his duties in conjunction with G.I. loans, he had appraised the first house as being of the fair value of $11,100 for loan purposes, and the second of the fair value of $12,500 for loan purposes. This offer of proof was rejected by the court.
Section 944.54(g) of Priorities Regulation 33 forbade any person to sell a dwelling house built under said regulation for more than the approved maximum sales price; such -restriction, the regulation stated, “must be observed so long as this regulation remains in effect.” Section 1 (b) of the Veterans’ Emergency Housing Act of 1946 provided that the Act, “and all regulations and orders issued thereunder, shall terminate on December 31, 1947, or upon the date specified in a concurrent resolution by the two Houses of the Congress, declaring that the provisions of the Act are no longer necessary to deal with the existing national emergency, whichever date is the earlier.” Section 5 of the Veterans’ Emergency Housing Act provided, 60 Stat. 210: “It shall be unlawful for any person to effect, either as principal or broker, a sale of any housing accommodations at a price in excess of the maximum sales price applicable to such sale under the provisions of this Act, or to solicit or attempt, offer, or agree to make any such sale. It shall be unlawful for any person to violate the terms of any regulation or order issued under the provisions of this Act. Notwithstanding any termination of this Act as contemplated in section 1(b) hereinabove, the provisions of this Act, and of all regulations and orders issued thereunder, shall be treated as remaining in force, as to rights or liabilities incurred or offenses committed prior to such termination date, for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.”
Section 7 of the same Act contained various provisions for criminal and civil enforcement.
As it happened, the Veterans’ Emergency Housing Act of 1946 was not terminated in either of the two ways contemplated in § 1(b) of that Act, above quoted. Rather, such Act, or the part thereof here involved, was repealed on June 30, 1947, by the Housing and Rent Act of 1947, § 1(a) of which provided, 61 Stat. 193, 50 U.S. C.A.Appendix, § 1881(a): “Sections 1, 2(b) through 9, and sections 11 and 12, of Public Law 388, Seventy-ninth Congress, are hereby repealed, and any funds made available under said sections of said Act not expended or committed prior to the enactment of this Act are hereby returned to the Treasury: Provided, That any allocations made or committed, or priorities granted for the delivery, of any housing materials or facilities under any regulation or order issued under the authority contained in said Act, and before the date of enactment of this Act, with respect to veterans of World War II, their immediate families, and others, shall remain in full force and effect.”
It seems clear that the United States cannot base its present suit upon the last sentence of § 5 of the Veterans’ Emergency Housing Act, which was thus repealed outright on June 30, 1947, prior to the sales of the houses now in question. True, the repealing section, § 1(a) of the Housing and Rent Act of 1947, contained a proviso keeping in effect certain priorities theretofore granted for the delivery of housing materials. But the language of the proviso does not aptly express an intention by Congress to keep in effect the maximum selling price restrictions of Priorities Regulation 33, as applied to future sales of houses built under residential construction permits approved prior to June 30, 1947. The legislative history of the proviso is somewhat obscure and inconclusive. Apparently what Congress had in mind is indicated in the report of the House Committee on Banking and Currency on S. 2182 which became the Housing and Rent Act of 1948. This report stated, H.R.Rep. No. 1560, 80th Cong., 2d Sess.: “The Housing and Rent Act of 1947 protected any allocation made or committed or priorities granted for building materials to veterans of World War II or their families under Public Law 388, of the Seventy-ninth Congress. This protection was continued in effect in this bill to honor any such commitments which might stil'l exist.”
Having -repealed the Veterans’ Emergency Housing Act of 1946, it is significant that Congress addressed itself specifically to the problem of veterans’ housing, in the Housing and Rent Act of 1947, 50 U.S.C.A. Appendix, § 1881 et seq. Thus in § 4(a) (1) of that Act it was provided that no single family dwelling house, “the construction of which is completed after the date of enactment of this title and prior to March 1, 1948, shall be sold or offered for sale, prior to the expiration of thirty days after construction is completed, for occupancy by persons other than” veterans of World War II or their families, and in § 4(a) (3) it was provided that no such dwelling house “shall be sold or offered for sale to any person at a price less than the price for which it is offered to veterans or their families”. If Congress had further intended to keep in force for the future any maximum selling prices which had theretofore been imposed under Priorities Regulation 33, it would have been natural to express such intent in the proviso to § 1(a) which repealed the Veterans’ Emergency Housing Act of 1946, the statutory basis for Priorities Regulation 33.
The United States puts much reliance upon the Act of March 22, 1944, 58 Stat. 118, amending R.S. § 13 to read as follows as now found in 1 U.S.C.A. § 109: “The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as stil'l remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”
Since § 1(a) of the Housing and Rent Act of 1947 did not expressly provide that the repeal of the Veterans’ Emergency Housing Act of 1946 should have the effect of releasing or extinguishing any “penalty, forfeiture, or liability incurred” under such Act and Priorities Regulation 33 thereunder, we take it that, by virtue of the provision of 1 U.S.C.A. § 109 above quoted, the Veterans’ Emergency Housing Act of 1946 and Priorities Regulation 33 thereunder must be treated as still remaining in force for the purpose of sustaining any proper action for the enforcement of any “penalty, forfeiture, or liability” incurred by the defendants thereunder prior to June 30, 1947, when the Act was repealed. But that is of no’ help to the United States in the case at bar, for here the sales of the two houses did not take place until after June 30, 1947, and therefore the defendants as of that date had not incurred any “liability” to make any restitution of a portion of the purchase price paid by the purchasers of the two houses. The obligation of the defendants to observe a maximum sales price of $8,350l in the sale of the two houses in question was in no proper sense of a contractual nature, but resulted by imposition of law under § 4 of the Veterans’ Emergency Housing Act of 1946 and Priorities Regulation 33 thereunder. That contingent obligation necessarily lapsed with the repeal of the Act and the regulation; indeed, as above stated, § 944.54(g) of Priorities Regulation 33 expressly provided that such maximum price restriction “must be observed so long as this regulation remains in effect.” In this respect, price regulation on the sale of houses under the Veterans’ Emergency Housing Act of 1946 was no different from price regulation under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq. When the latter Act terminated on June 30, 1947, there was of course no further obligation to observe price ceilings in the future sale of commodities, although under § 1(b) of the Price Control Act, “as to offenses committed, or rights or liabilities incurred, prior to such termination date,” the provisions of the Act and the regulations thereunder “shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.” 56 Stat. 24.
United States v. Carter, 5 Cir., 1948, 171 F.2d 530, 532, is distinguishable, for there the government was allowed to maintain an action “to secure restitution of overcharges that had been made while the 1946 Act was in full effect.” Other cases, in so far as they tend against the conclusion we have reached, are to us unpersuasive in their reasoning. See United States v. Tyler Corp., D.C.E.D.Va.1949, 90 F.Supp. 395; Rheinberger v. Reiling, D.C.D.Minn.1950, 89 F.Supp. 598; Pruitt v. Litman, D.C.E.D.Pa.1949, 89 F.Supp. 705; Katz v. Litman, D.C.E.D.Pa.1949, 89 F.Supp. 706.
The judgment of the District Court is affirmed.
. So far as Priorities Regulation 33 rested upon the statutory basis of Title III of the Second War Powers Act, that basis was eliminated by the expiration of said Title III on March 31, 1947, by force of Section 3 of the First Decontrol Act of 1947, 61 Stat. 34, 50 U.S.O. A.Appendix, § 633 note.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_indict
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Jeffrey L. SILVERMAN, Petitioner, v. COMMODITY FUTURES TRADING COMMISSION, Respondent.
No. 77-1320.
United States Court of Appeals, Seventh Circuit.
Argued June 3, 1977.
Decided Sept. 19, 1977.
Joel J. Bellows, Charles B. Bernstein, Chicago, Ill., for petitioner.
Richard E. Nathan, Joanne Leveque, Commodity Futures Trading Comn., Washington, D. C., for respondent.
Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior United'States District Judge for the Northern District of Indiana, is sitting by designation.
CUMMINGS, Circuit Judge.
Petitioner Jeffrey L. Silverman is an account executive employed by a commodity futures commission merchant in Chicago, Illinois. Petitioner presently appeals from the revocation of his registration as an “associated person” licensed to do business on commodity futures markets pursuant to the regulatory authority of the Commodity Futures Trading Commission (Commission) as empowered by the Commodity Futures Trading Commission Act of 1974 (1 U.S. Code Cong. & Admin.News (1974), pp. 1589-1622).
Procedural History
On February 16, 1977, in Silverman v. Commodity Futures Trading Commission, 549 F.2d 28 (7th Cir. 1977), this Court affirmed a two-year suspension of petitioner’s trading privileges on commodity futures markets as a result of certain unauthorized and fraudulent trades on behalf of five customers’ accounts in 1970 and 1971. The nature of petitioner’s improvident trades was the subject matter of a disciplinary petition dated March 13, 1973, as initiated by the Secretary of Agriculture pursuant to the Commodity Exchange Act of 1936. See In Re Jeffrey L. Silverman, CFTC Docket No. 75-6. At issue there was Silverman’s allegedly fraudulent placement of 23 futures transactions in eggs, hogs, and pork bellies, with respect to five customers’ accounts during September and October 1970 and in March 1972. In Silverman, supra at 33, we fully concurred in the Commission’s finding that petitioner had wilfully violated the anti-fraud provision of the 1936 Act (7 U.S.C. § 6b) and held that the suspension of his trading privileges was justified by the record.
After jurisdiction in the above case had been transferred to the Commission, but before an administrative decision in the matter could be reached, petitioner on March 31, 1975, applied for registration as an “associated person” with the Commission pursuant to 7 U.S.C.A.Sup. § 6k(2). The completed application form (CFTC Form 4-R) disclosed under item 15 that Silver-man was currently involved in administrative proceedings before the Commission on account of CFTC Docket No. 75-6, supra. Nonetheless, on July 18, 1975, the Commission granted petitioner’s application for registration as an “associated person” and issued him License Number [ XXX-XX-XXXX ]. Thereafter, on February 28, 1977, during the pendency of this controversy, petitioner’s registration was renewed for another two years as a matter of course. See 7 U.S.C.A.Sup. § 6k.
Events subsequent thereto before the Commission have resulted in petitioner’s revocation of registration as an “associated person,” in accordance with the Commission’s regulatory authority as an independent federal agency entrusted with the safeguarding of the nation’s commodity futures industry. The revocation of registration was to be effective 15 days from the date of the Commission’s final order of March 14, 1977, which would have been March 29, 1977. However, due to the serious effect of this unreviewed sanction, this Court on March 29, 1977, granted Silver-man’s emergency motion to stay enforcement of the Commission’s order pending our decision in this matter and ordered that the appeal be expedited. This appeal arises on a petition to review the revocation of petitioner’s registration.
Regulatory Mission of the Commission
On October 23, 1974, Congress enacted the Commodity Futures Trading Commission Act of 1974 which extensively amended the Commodity Exchange Act of 1936, its predecessor. The legislative aim of the 1974 Act was to further the purpose of the previous Act in “ensuring fair practice and honest dealing on the commodity exchanges and providing a measure of control over those forms of speculative activity which often demoralizes the markets to the injury of producers, and consumers, and the exchanges themselves.” See Senate Report No. 93-1131, 93rd Cong., 2nd Sess. (1974), reported in 3 U.S.Code Cong. & Admin. News (1974), pp. 5843, 5856.
An integral part of the 1974 Act was the creation of a new independent federal regulatory agency to be known as the Commodity Futures Trading Commission. See 7 U.S.C.A.Sup. § 4a. Unlike the Commodity Exchange Authority, the Commission was to have exclusive jurisdiction over all previously unregulated commodities and all transactions involving the sale of commodities on the nation’s futures markets. See 7 U.S.C.A.Sup. § 2. In addition, the Commission was armed with broad regulatory and rule-making powers necessary to its operating procedures and business. See 7 U.S.C. A.Sup. §§ 2 and 4a(j).
Scope of Registration Expanded
The 1974 Act also added a new category known as the “associated person” to the list of those persons required to be registered with the Commission in order to conduct business.
In relevant part, 7 U.S.C.A. Sup. § 6k regulates an “associated person” as follows:
“(1) It shall be unlawful for any person to be associated with any futures commission merchant or with any agent of a futures commission merchant as a partner, officer, or employee * * * in any capacity which involves (i) the solicitation or acceptance of customer’s orders * * or (ii) the supervision of any person or persons so engaged, unless such person shall have registered * * * with the Commission * * *.
“(2) Any such person desiring to be registered shall make application to the Commission in the form and manner prescribed by the Commission * * *. Such person, when registered hereunder, shall likewise continue to report and furnish to the Commission such information as the Commission may require. Such registration shall expire two years after the effective date thereof, and shall be renewed upon application therefor unless the registration has been suspended * * or revoked after notice and hearing as prescribed in Section 9 of this title *
Revocation of Registration
Critical to the present controversy is the Commission’s discretionary power to revoke the registration of an “associated person” pursuant to the procedures set forth in 7 U.S.C.A.Sup. § 9. Under this provision the Commission may upon reasonable belief of wrongdoing serve an “associated person” with a complaint and order to show cause why his registration should not be suspended or revoked. The substantive grounds for such revocation are contained in 7 U.S.C.A. Sup. § 12a(3) as follows:
“The Commission is authorized:
******
“(3) in accordance with the procedure provided for in section 9 of this title, to suspend or revoke the registration of any person registered under this chapter if cause exists under paragraph (2)(B) [e. g., violation of the anti-fraud provisions of Section 4(b) of the 1936 Act, 7 U.S.C. § 6b] or (C) [failure to meet certain minimal financial requirements] of this section * *
Thereafter, the Commission may in its discretion, “suspend, for a period not to exceed six months, or revoke the registration of such person, and may assess such person a civil penalty of not more than $100,000 for each violation.” See 7 U.S.C.A.Sup. § 9.
In addition to administrative sanctions, the 1974 Act contains criminal penalties ranging from several felonies, as defined in 7 U.S.C.A.Sup. §§ 13(a) and (b), to numerous misdemeanors as defined in 7 U.S.C.A. Sup. § 13(c). In particular, violation of the anti-fraud provisions of Section 4b of the 1936 Act (7 U.S.C. § 6b) is a misdemeanor punishable by imprisonment not to exceed one year or a fine not to exceed $100,000, or both.
Order to Show Cause
On May 27, 1976, an order to show cause was issued by the Commission in In the Matter of Jeffrey L. Silverman (Docket No. 76 — 18) pursuant to 7 U.S.C.A.Sup. § 9. Therein petitioner was ordered to appear before an Administrative Law Judge (ALJ) on June 10, 1976, in Washington, D.C., for the purpose of attending a public hearing to determine whether Silverman’s registration as an “associated person” should be revoked.
The order to show cause, inter alia, contained the following allegations:
“A. Jeffrey L. Silverman willfully violated Section 4b of the Act (7 U.S.C. § 6b) in that, while employed as a solicitor and account executive for two registered futures commission merchants in 1970 and 1972, Jeffrey L. Silverman cheated and defrauded five customers of such registered futures commission merchants by executing trades for the accounts of such customers without their knowledge, consent or prior authorization.
“B. On May 5, 1976, the Commission issued a Final Order, in CFTC Docket No. 75-6, prohibiting Jeffrey L. Silverman from trading on or subject to the rules of any contract market for a period of two years and ordering that all contract markets should- refuse him all trading privileges during said period. It was further ordered that Jeffrey L. Silverman permanently cease and desist from placing, or causing to be placed, in any customer’s account, any contracts of sale of any commodity for future delivery, without the prior knowledge, consent or authorization of such customer or otherwise to cheat or defraud, or attempt to cheat or defraud, any person in connection with any order to make, or the making of, any contract of sale of any commodity for future delivery on or subject to the rules of any contract market for, or on behalf of, any person.
“C. By reason of the willful violations of the Act as alleged in paragraph A above and the sanctions imposed as described in paragraph B above, the registration of Jeffrey L. Silverman as an associated person as described in Section 4k of the Act (7 U.S.C. § 6k) should be revoked.”
Thereafter, pursuant to the Commission’s Rules of Practice (Rule 10.3(b), 17 C.F.R. § 10.3(b)), the rule to show cause was scheduled for hearing on an expedited basis. However, on June 10, 1976, the ALJ modified the Commission’s order in fairness to petitioner who had complained in a motion attached to his answer that (1) he would be unable to adequately prepare his defense on such short notice; (2) the Washington, D.C., location for the hearing would prevent many local defense witnesses from testifying in his behalf; and (3) sufficient evidence in the nature of mitigation and rehabilitation could not be developed in such a short period of time. Significantly, the ALJ changed the location of the hearing to Chicago, Illinois, as requested by petitioner, and granted him additional time to prepare his defense.
Hearing Before ALJ in Chicago
On June 24, 1976, the hearing was commenced in this case before an ALJ pursuant to 7 U.S.C.A.Sup. § 9. The cause was prosecuted by the Commission’s Department of Enforcement (DE) whose case in chief consisted of the introduction of three official Commission records, identified as exhibits DE-1, 2, and 3.
Exhibit DE-1 was the March 1973 complaint and notice of hearing in CFTC Docket No. 75-6 and alleged in detail the fraud engaged in by petitioner. Exhibit DE-2 was the December 1975 decision and order of the ALJ finding petitioner guilty of willful fraud and ordering suspension of his trading privileges. Exhibit DE-3 was the final order of the Commission entered on May 5, 1976, upholding the finding of willful violation of the anti-fraud provisions of the Act but modifying the suspension sanction from five years to two years. See Silverman v. Commodity Futures Trading Commission, supra. The exhibits constituted the DE’s prima facie case and were received into evidence as official documents by the ALJ pursuant to the Commission’s Rules of Practice (Rule 10.67(b), 17 C.F.R. § 10.67(b)). The DE then rested its case.
At the conclusion of the DE’s case, petitioner moved for a directed verdict on the grounds that the Commission had failed to meet its “high” burden of proof as to his unfitness and that the official documents previously introduced into evidence were insufficient to satisfy this burden. Petitioner argued that “the Government must actually show that a licensee is truly unfit, that he is morally degenerate, that he cannot be trusted with customer’s funds, that he is thoroughly a bad guy and does not deserve to act in the industry or earn his livelihood to support his family in and around the commodities markets” (Tr. 32).
The ALJ denied petitioner’s motion, holding that the DE had made out a prima facie case under Section 6b of the 1936 Act by virtue of the official documents alone (Tr. 34). The ALJ rejected sub silentio petitioner’s contention that the DE shouldered a “special” burden of proof in this matter. An alternative motion for a continuance on behalf of petitioner was likewise denied.
Mitigation and Rehabilitation
Thereafter petitioner presented his defense of mitigation and rehabilitation. The evidence consisted entirely of testimony garnered from 15 witnesses personally acquainted with him. All of the witnesses, with the exception of one, were intimately involved with the commodity futures markets and in varying professional capacities had dealt with petitioner.
Fairly summarized, the evidence consisted of testimony as to their opinion of petitioner’s honesty and integrity since the filing of the March 13,1972, complaint (CFTC Docket No. 75-6); testimony as to his expertise as an associated person in the commodities markets; and the probable financial, as well as personal, consequences the revocation of registration would have on his career. To a limited extent the witnesses were cross-examined by the DE.
On August 24, 1976, the ALJ entered an initial decision in this matter concluding that the evidence did not warrant revocation of petitioner’s registration and ordering the proceeding dismissed.
Commission’s Final Review
On August 27,1976, the DE filed a timely notice of appeal with the Commission seeking review of the ALJ’s adverse ruling. On March 14, 1977, the five-member Commission unanimously reversed the AU and ordered petitioner’s registration revoked, stating:
“[W]e have carefully reviewed respondent’s [Silverman’s] evidence of extenuation and rehabilitation, but conclude that it is insufficient in view of the serious nature of his violations. While revocation is a severe sanction the public cannot be adequately protected, or the requisite deterrent effects achieved, if a person who has intentionally cheated and defrauded customers * * * is allowed to continue to handle customer accounts or to supervise others so engaged.” (Final Opinion and Order, CFTC Docket No. 76-18, R. 231.)
The Commission accordingly ordered petitioner’s registration revoked effective fifteen days hence.
Appropriateness of Commission’s Sanction
In Butz v. Glover Livestock Commission Co., 411 U.S. 182, 185, 93 S.Ct. 1455, 1458, 36 L.Ed.2d 142 the Supreme Court clearly stated the applicable standard for appellate review of administrative sanctions in circumstances such as these:
“The applicable standard of judicial review in such cases required review of the Secretary’s order according to the ‘fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy “the relation of remedy to policy is peculiarly a matter for administrative competence.” ’ ” American Power Co. v. SEC, 329 U.S. 90, 112, 67 S.Ct. 133, 146, 91 L.Ed. 103 (1946).
As noted by Judge Hastings in Nowicki v. United States, 536 F.2d 1171, 1178 (7th Cir. 1976), the Butz Court twice cited this Circuit’s opinion in G. H. Miller & Co. v. United States, 260 F.2d 286 (7th Cir. 1958) (en banc), certiorari denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 as a supporting authority. See 411 U.S. at 187, 93 S.Ct. 1455.
In G. H. Miller, supra, we affirmed the six-month revocation of the Miller company’s registration as a futures commission merchant and of Miller’s registration as a floor broker because of manipulative trades in egg futures. The revocation was pursuant to Section 6(b) of the Commodity Exchange Act of 1936 (7 U.S.C. § 9). On rehearing by this court en banc, we concluded:
“It is, therefore, clear to us that if the order of an administrative agency finding a violation or a statutory provision is valid and the penalty fixed for the violation is within the limits of the statute [and] the agency has made an allowable judgment in its choice of the remedy * * ordinarily the Court of Appeals has no right to change the penalty because the agency might have imposed a different penalty.” 260 F.2d at 296.
Applying these principles to the case at hand, it is likewise clear to us that the Commission has been entrusted by Congress with the special mission of enforcing fair practice and honest dealing on the commodity futures markets. As was made clear in Savage v. Commodity Futures Trading Commission, 548 F.2d 192, 197 (7th Cir. 1977):
“* * * we must be mindful of a Congressional purpose, clearly evidenced at least since 1933, to protect the American investing and speculating public not only from fraud and fraudulent practices, but from those whose past actions indicate that they might be tempted to engage in such practices. * * * Congress cannot specify licensing requirements for each particular applicant but, of necessity, must within reason adopt somewhat general standards and authorize some agency to apply them.” (Citations and footnote omitted).
Contrary to petitioner’s arguments, the DE did not have to shoulder a special burden of proof here and need only have established a prima facie case in order for the Commission to revoke petitioner’s registration under 7 U.S.C.A.Sup. § 12a(3), as it did (Tr. 34). As was the case in Savage, supra, at 196, once the DE proved Silverman’s willful violation of the anti-fraud provisions of Section 4b of the 1936 Act (7 U.S.C. § 6b), it became his burden to go forward to persuade the Commission to exercise its discretion to permit his continued registration.
The Commission’s final opinion in this matter articulated a rational connection between the petitioner’s willful violations of Section 4b of the 1936 Act (as established in CFTC Docket No. 75-6) and its considered choice to revoke his registration. See Burlington Truck Lines v. United States, 371 U.S. 156, 167-168, 83 S.Ct. 239, 9 L.Ed.2d 207. As the Commission explained, otherwise the public could not be adequately protected and deterrent effects would not be achieved. The Commission also exercised its expert discretion by balancing the evidence of extenuation and rehabilitation against the seriousness of the offense and the need to insure the highest fiduciary standards for persons registered under the 1974 Act.
Furthermore, we do not agree with petitioner that the expedited hearing and briefing schedule adopted by the Commission in this case violated due process. In support of this argument, petitioner cited United States v. Heffner, 420 F.2d 809 (4th Cir. 1970) and Pacific Molasses v. Federal Trade Commission, 356 F.2d 386 (5th Cir. 1966) for the proposition that the failure of a government agency to abide scrupulously by its own rules, regulations, or procedures violates administrative due process where prejudice is shown. As stated, supra, Commission Rule 10.3(b) (17 C.F.R. § 10.3(b)) permits the Commission to expedite hearing procedures in its discretion so long as no party is prejudiced and the ends of justice will be served. It is clear from the record that the modified schedule of June 10,1076, ordered by the ALJ was an attempt to balance the Commission’s desire to provide immediate public protection and the petitioner’s due process right to defend himself. Under the circumstances there was no violation of Rule 10.3(b).
In addition, the violations of agency regulations in Heffner and Pacific Molasses, supra, are distinguishable from the Commission’s adoption of an expedited hearing and briefing schedule here. Thus in Heffner, Special Agents of the IRS Intelligence Division blatantly violated Internal Revenue Service procedures aimed at protecting the Fifth and Sixth Amendment rights of persons suspected of criminal tax fraud. See 420 F.2d at 811. In Pacific Molasses, supra, the Federal Trade Commission violated a prehearing conference agreement to furnish that petitioner a list of all the Commission’s prospective witnesses and documentary evidence although Section 3.10 of the FTC’s Rules of Practice provided that an agreement reached at a prehearing conference would control the subsequent course of the proceedings. See 356 F.2d at 388. The prejudice to litigants which prompted reversal in Heffner and Pacific Molasses prevented a full and fair adjudication of the merits. Even assuming arguendo that Silverman was prejudiced by the expedited schedule, it was not reversible error. The record clearly demonstrates that he was not deprived of an opportunity to present substantial evidence of mitigation and rehabilitation. The possibility that additional testimony would have changed the Commission’s sanction is sheer speculation and exists in any proceeding of this kind.
Petitioner was unable to convince the Commission that he presents no further danger to the investing public. It described his violations as of “serious nature” (R. 23). His willfulness was discussed in our prior opinion (549 F.2d at 31). After a careful review of the record we are convinced that he was afforded administrative due process and was given a “meaningful opportunity” to prepare his defense. While there is a surface inconsistency between the suspension imposed in the prior proceeding and the revocation imposed here, Commission counsel has pointed out that Congress had not required registration of associated persons nor provided for revocation of such registration at the time of the 1973 disciplinary proceeding.
The revocation of petitioner’s registration was a permissible administrative sanction addressed to the sound discretion of the Commission. Congress invested the Commission with revocation power to safeguard the public interest in the well being of the nation’s commodity futures markets. Petitioner may reapply for registration at any time. On this record, we cannot say that the penalty imposed was an abuse of discretion.
The Commission’s order is affirmed.
. The two-year suspension of trading privileges went into effect on May 25, 1976, and would, therefore, continue in full force until May 25, 1978. The record does not disclose nor do the parties make mention in their briefs of any stay of enforcement of the sanction.
. In relevant part, 7 U.S.C. § 6b, provides:
“It shall be unlawful * * * for any member of a contract market * * * or employee of any member, in or in connection with any order to make, or the making of * * * any contract of sale of any commodity for future delivery, made, or to be made, on or subject to the rules of any contract market, for or on behalf of any other person * * * to cheat or defraud or attempt to cheat or defraud such other person.”
This is Section 4b of the 1936 Act.
. The Commission has taken jurisdiction from the Secretary of Agriculture without abatement pursuant to Section 411 of the Commodity Futures Trading Commission Act of 1974:
“All operations of the Commodity Exchange Commission and the Secretary of Agriculture under the Commodity Exchange Act, including all pending administrative proceedings, shall be transferred to the Commodity Futures Trading Commission as of the effective date of this Act and to continue to completion * *
. Even though petitioner is precluded by virtue of the suspension of trading privileges order from trading on his own account or for the account of any other person for two years, as an “associated person” registered with the Commission, he could, nevertheless, solicit or accept customers’ orders and supervise others so engaged unless his registration was revoked.
. Under the 1936 Act, only future commission merchants and floor brokers were required to be registered with the Secretary of Agriculture. The 1974 Act incorporates these provisions in toto but substitutes the Commission for the Secretary. See 7 U.S.C.A.Sup. §§ 6d and 6f.
. In relevant part 17 C.F.R. § 10.3(b) provides: “§ 10.3 Suspension, amendment, revocation and waiver of rules.
******
(b) In the interest of expediting decision or to prevent undue hardship on any party or for other good cause the Commission may order the adoption of expedited procedures and may waive any rule * * * of this part in a particular case and may order proceedings in accordance with its direction upon a determination that no party will be prejudiced and that the ends of justice will be served. — Reasonable notice shall be given to all parties of any action taken pursuant to this provision.”
. In relevant part, the CFTC’s Rules of Practice (17 C.F.R. 10.104(b)) provide:
“On review, the Commission may affirm, reverse, modify, set aside or remand for further proceedings, in whole or in part, the initial decision by * * * [an] Administrative Law Judge and make any findings or conclusions which in its judgment are proper based on the record in the proceeding.”
Question: Did the court rule that the indictment was defective?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appfiduc
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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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Juan Angel HUGUEZ-IBARRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dagobastro OLIVARRIA-PALACIOS, Defendant-Appellant.
Nos. 88-1354, 88-1384.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 12, 1989.
Decided Jan. 21, 1992.
Peter B. Keller, Keller & Postero, Tucson, Ariz., for defendant-appellant Juan Huguez-Ibarra.
Stephen G. Ralls, Sean Bruner, Ralls & Bruner, Tucson, Ariz., for defendant-appellant Dagobastro Olivarria-Palacios.
Phillip G. Espinosa, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.
Before POOLE, REINHARDT and BEEZER, Circuit Judges.
POOLE, Circuit Judge:
Appellants Juan Huguez-Ibarra and Da-gobastro Olivarria-Palacios appeal their convictions for conspiracy to possess with intent to distribute and possession with the intent to distribute 500 grams or more but less than five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(l)(B)(ii)(II). They were tried as co-defendants and their appeals have been consolidated.
They appeal the district court’s denial of their motions to suppress. Both also claim that the district court erred when it denied their motions to exclude from evidence notebooks found in their residence. Hu-guez-Ibarra alone alleges the district court erred when it allowed a receipt for the purchase of an automobile, found in the residence, to be admitted into evidence. Furthermore, Huguez-Ibarra challenges the district court’s denial of his motion for a mistrial or continuance based on the late disclosure of evidence. Finally, Huguez-Ibarra argues that the district court erred when it denied his proposed jury instruction on a so-called “lesser included offense.”
We conclude that the government agents lacked probable cause for their warrantless entry into Appellants’ residence. The evidence which the government obtained as a result of that entry should therefore have been suppressed. Because of the prejudicial impact which the inadmissible evidence potentially had on the jury, we reverse the convictions and remand for a new trial.
We have also concluded that the search warrant for the residence was not supported by probable cause. Accordingly, we reverse and remand to the district court for further proceedings to consider whether the evidence seized pursuant to the search warrants is nevertheless admissible under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the guidance of the district court in the event of retrial, we also discuss the other issues raised by Appellants in their appeals.
FACTS
In August 1987, United States Drug Enforcement Administration (DEA) agents received citizen complaints regarding a high level of vehicular traffic at 3701 East Dover Stravenue (“residence”), in Tucson, Arizona. In response to the citizen complaints, DEA Agents Teresa Gulotta and Alex Vazquez began drive-by surveillance of the residence several times a week in August 1987. Agents began extended surveillance in October 1987, while continuing to drive by periodically. Starting in December 1987 or January 1988, stationary surveillance of the residence was conducted one or two times a month. Agent Gulotta herself participated in stationary surveillance three or four times over the course of the investigation.
Over the course of the entire investigation, agents documented in excess of forty different vehicles at the residence. The agents ran checks on those vehicles, and found that some were registered to individuals reputed to be “affiliates” of narcotics organizations. Agents on occasion tried to follow vehicles departing the residence, and found them to drive in “an erratic and circuitous manner.” Several vehicles were stopped after leaving the residence, their occupants questioned, and the vehicles searched.
During the stationary surveillance, which lasted five or six hours, agents observed as many as six to eight vehicles pulling up to the residence, although the number of vehicles observed varied. Individuals would enter the residence, sometimes empty-handed and sometimes carrying boxes or bags. Visits would last anywhere from a few minutes to several hours, and then the visitors would return to their vehicles, sometimes carrying boxes and bags, and sometimes empty-handed. Agents also observed cars pulling into the carport, and on at least one occasion, a vehicle pulling through the carport and into the backyard. Agents noted that when the vehicle would reach the carport, the carport lights would be extinguished. Agents also on occasion observed “activity” surrounding the vehicles, but were unable to discern what was being done.
On April 29, 1988, at approximately 6:00 p.m., agents Vazquez and Gulotta, accompanied by other agents from the United States Customs Service and the United States Border Patrol, set up a stationary surveillance at the house. Two cars parked in front of the residence were joined by a Mercury Lynx (Mercury) and later a two-tone pick-up truck (pick-up). The occupants of the Mercury were seen entering the residence empty-handed and returning to their car with a white plastic shopping bag. They then drove away from the residence. The Border Patrol agents stopped the Mercury about two miles from the residence. Upon approaching the car, the agents detected the smell of marijuana. They brought a narcotics detection dog to the car, and the dog alerted to two suitcases visible in the car’s hatch area. The white plastic bag seen carried to the car was empty and a search of the car revealed no drugs. A subsequent search of the suitcases also failed to reveal any narcotics. The occupants of the Mercury were released.
When the dog alerted to the suitcases, the agents decided to seek a search warrant for the residence. Agent Gulotta ended her surveillance of the residence to obtain the warrant. After she left the surveillance area but before she could obtain the search warrant, Agent Vazquez with other agents stopped the pick-up. Agent Gulotta’s affidavit supporting the first search warrant contains no information regarding the events which took place after the stop of the Mercury. The stop of the pick-up occurred some time between 6:40 p.m. and 6:52 p.m. In response to questioning, the occupants of the pick-up denied having been at the residence. In addition to questioning the occupants, the agents brought a narcotics detection dog to the pick-up. The dog did not alert to the presence of drugs, and the agents released the pick-up.
At 7:20 p.m., Agent Vazquez made the decision to secure the residence until the search warrant could be obtained. He estimated that it would take two hours to obtain the search warrant and he was afraid that the occupants of the stopped vehicles would warn the residents of 3701 East Dover Stravenue. At approximately 7:36 p.m., Agent Vazquez and law enforcement agents drove up to the residence in one unmarked car and three marked cars. While approaching the residence, the agents saw the front door shut and the lights inside the residence go out. Agent Vazquez proceeded to the front door of the residence, knocked on the door, and announced his presence in Spanish and English. He heard rustling inside the residence. Receiving no response, he forced the front door open and entered the residence.
Agent Vazquez entered a bedroom and opened its bathroom door where he found a man, later identified as Huguez-Ibarra, holding an empty plastic bag, later found to contain cocaine residue, over a toilet. Agent Vazquez retrieved a semi-liquid slush from the toilet. The slush was found to be cocaine. A plastic bag and plastic sifter both containing cocaine residue, and money totaling approximately $10,000 were scattered around the toilet.
A second agent entered another bedroom and found Olivarria-Palacios in it. Both Huguez-Ibarra and Olivarria-Palacios were taken from the residence, and the agents waited outside for the search warrant. Until they entered the residence, the agents neither knew who lived in the residence nor had they actually found or seen any narcotics being carried into or out of the residence.
Upon obtaining the search warrant, the agents re-entered the residence. In the residence agents found a loaded Colt .38 revolver, phone bills, some rent receipts, and bottled water receipts in the name of Olivarria-Palacios. Inside the bedroom in which they found Olivarria-Palacios, the agents discovered two safes, one open and one closed. In the open safe they found a plastic bag containing cocaine residue, a notepad, a check payable to Olivarria-Pa-lacios, and an automobile receipt in the name of Juan Beltran Hughes. In the closed safe, opened at the DEA office pursuant to a second search warrant, agents found approximately three pounds (1,323.6 grams) of cocaine, about $9,000 in cash, and five more notebooks.
PROCEDURAL HISTORY
On May 18, 1988, Huguez-Ibarra and Olivarria-Palacios were charged in a two-count indictment with conspiracy to possess with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute 500 grams or more but less than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(l)(B)(ii)(II). Huguez-Ibarra and Oli-varria-Palacios filed various pre-trial motions. Among them were motions requesting a Franks hearing, the suppression of evidence seized in the warrantless entry, and the suppression of evidence seized in the subsequent entry pursuant to the search warrant.
In response, the district court redacted portions of the affidavit used to obtain the search warrant. The court then denied the motion for a Franks hearing and the motions to suppress, finding that probable cause existed to support a search warrant and, after the testimony of Agent Vazquez, that exigent circumstances existed to justify the warrantless entry.
On July 13, 1988, the first day of trial, the government revealed the existence of a videotape recording of activities surrounding the residence taken by a neighbor of the defendants. The government previously had turned the tape over to the the court for in camera review. Huguez-Ibarra’s motion to produce the tape was denied. On July 14, 1989 he renewed his motion to produce the tape, which was also denied. At the end of that day the court reconsidered and allowed Huguez-Ibarra’s attorney to view the tape before he cross-examined Agent Gulotta. For security reasons it was not introduced at trial.
The district court denied Appellants’ motions to exclude the notebooks allegedly detailing drug transactions as well as Hu-guez-Ibarra’s motion to exclude the car payment receipt. The notebooks were admitted with a limiting instruction. In addition, the court denied Huguez-Ibarra’s motion for a continuance or mistrial based on the late disclosure of the videotape and the agents’ notes. Finally, the court denied Huguez-Ibarra’s proffered jury instruction on a so-called “lesser included offense.”
Both Appellants were found guilty on each count of the indictment. On July 22, 1988, Huguez-Ibarra filed a motion for a new trial which was denied on September 16, 1988. On September 16, 1988, both Appellants were sentenced to six years imprisonment on both counts to run concurrently with one another.
DISCUSSION
1. The Motions to Suppress
Appellants have argued for suppression of evidence seized in the warrant-less search of the residence, and for evidence seized pursuant to the search warrants. We review de novo the trial court’s determination of the validity of a warrant-less entry into a residence. United States v. Lindsey, 877 F.2d 777, 780 (9th Cir.1989). In assessing the validity of the searches conducted pursuant to the warrants, we review the magistrate’s decision that probable cause existed for clear error. The district court’s determination of probable cause in a case with redacted affidavits is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).
A. The Warrantless Entry
The agents’ warrantless entry securing the residence was a seizure subject to the requirements of the Fourth Amendment. United States v. Howard, 828 F.2d 552, 554 (9th Cir.1987). The government has the burden of justifying the seizure under one of a few specifically established exceptions to the warrant requirement. To justify a warrantless entry, the government must demonstrate both probable cause and the existence of an exception to the warrant requirement, such as exigent circumstances. Lindsey, 877 F.2d at 780. Because we find that there was no probable cause, we need not consider whether exigent circumstances existed.
In reviewing a warrantless entry, it is up to this court “to make a practical, commonsense decision” whether based on the “totality of the circumstances” as known by the agents when they entered the residence there was a “fair probability that contraband or evidence of a crime” would be found inside. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Lindsey, 877 F.2d at 780.
The agents observed facts during the course of the investigation giving rise to a suspicion of illegal activity. However, the only evidence of narcotics ever uncovered during the vehicular stops — the narcotics detection dog alerting to the suitcases in the Mercury on April 29th — was discredited when a search of the suitcases failed to turn up any narcotics. In addition, as the agents themselves admitted, there was no connection between the suitcases and the residence — the occupants of the Mercury had entered the residence empty handed and had returned with only a bag, itself found to be empty.
The only other circumstance supporting an inference that the residence housed narcotics or evidence of narcotics trafficking was the ability of agents to trace automobiles frequenting the residence to “affiliates” of narcotics organizations or “facilitators” of narcotics trafficking. While such evidence is certainly relevant, it alone is not sufficient to transform otherwise legal (albeit suspicious) activity into circumstances supporting probable cause. This is especially true where, as here, the visitors to the residence had at best a tenuous and undefined relationship to narcotics trafficking. Such allegations show only that the residents of the house at 3701 East Dover Stravenue were acquaintances of acquaintances of individuals involved in the narcotics trade. Such twice-removed evidence, while not wholly irrelevant, cannot reasonably give rise to a “fair probability” that the residence was the locus of criminal activities. This is true even when combined with the unusual amount of vehicular traffic.
Since there was not probable cause supporting the warrantless entry of the residence, the evidence seized as a direct result of this illegal entry should have been suppressed. Segura v. United States, 468 U.S. 796, 812, 104 S.Ct. 3380, 3389, 82 L.Ed.2d 599 (1984).
B. Searches Pursuant to Warrants
In reviewing the magistrate’s decision that probable cause existed, we are limited to the information contained within the four corners of the affidavits supporting the application for the search warrant. United States v. Stanert, 762 F.2d 775, 778 (9th Cir.), amended, 769 F.2d 1410 (1985). The redacted affidavits in this case contained even less proof than that known to the agents who seized the residence, and thus were deficient for the same reasons as discussed above. We therefore find that the magistrate’s determination that sufficient probable cause existed to issue the warrant was clearly erroneous.
This, however, does not automatically require suppression. Under United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677 (1984), evidence will not be suppressed if the government acted in good faith — i.e., if the agents’ reliance on the warrant was objectively reasonable. Because the reasonableness of the agent’s reliance on the facially valid search warrant was not addressed in the trial court, we remand for a hearing on this issue.
II. The Notebooks
Appellants assert that the court erred in admitting the notepads because the government did not sufficiently establish the factual predicate for their admission as co-conspirator statements. They argue that under United States v. Ordonez, 737 F.2d 793 (9th Cir.1984), the government was required to lay a foundation for admission of drug ledgers. Ordonez, however, held only that the hearsay rule prohibits the introduction of drug ledgers without a foundation when the ledgers are being admitted to prove the truth of the matters asserted in them. In this case the trial judge made clear in his limiting instructions to the jury that the ledgers were not being admitted to prove the truth of what was written in them. Instead, they were admitted to show that the type of activities charged in the indictment were being carried out in the residence. Thus, “the rule against hearsay was not implicated and the requirement of ‘a proper foundational showing for admitting the records to prove the truth of the matters asserted’ was not triggered.” United States v. Jaramillo-Suarez, 942 F.2d 1412, 1416 (9th Cir.1991).
Since it is not hearsay, such evidence may come in if there is a sufficient showing of relevance and authenticity and if its probative value outweighs undue prejudice. Id. at 1416-1417 (citing United States v. Wilson, 532 F.2d 641, 645 (8th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976)). The notebooks in this case were circumstantially authenticated because they were found in the Appellants’ home in safes with cocaine and documents bearing the Appellants’ names. They were further authenticated by the nature of their contents and the fact that they corroborated the testimony of government agents regarding the suspected drug-trafficking. We do not believe that the trial court abused its discretion in determining that the ledgers were sufficiently authenticated and relevant to come into evidence.
III.The Car Payment Receipt
Appellant Huguez-Ibarra argues that the district court erred in admitting into evidence a receipt for an automobile in the name of “Juan Hughes.” The receipt showed a cash payment of $4000.00 to Watson Chevrolet on March 18, 1988. It was found in the unlocked safe in the same room as the locked safe in which the cocaine was found. Appellant Huguez-Ibar-ra argues that the admission of this document violates the hearsay rule and the prejudice caused by it outweighs its probative value.
As was the case with the notebooks, the receipt falls outside of the hearsay doctrine because it was not offered for the purpose of proving the truth of its contents. See United States v. Campbell, 466 F.2d 529, 531 (9th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972).
The fact that the name on the receipt was spelled differently than Huguez-Ibarra’s was fully probed. Defense counsel was permitted to attempt to establish that the receipt belonged to Juan Beltran Hughes and not the Appellant. In light of the foregoing, the district court did not abuse its discretion in allowing the receipt into evidence.
IV. The Videotape and Agent’s Notes
Huguez-Ibarra asserts that his conviction was based on an alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and in light of this violation he should have been granted a mistrial or at the very least a continuance. It is well-settled that the suppression of evidence favorable to the accused upon request violates due process when the evidence is material to either guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Since, however, we reverse the Appellants’ conviction on other grounds, this argument is now moot. Appellants’ counsel have had access to all the information that was sought and, in the event of a retrial, will be fully able to employ that information in Appellants’ defense.
V. Huguez-Ibarra’s Requested Jury Instruction
Huguez-Ibarra asserts that the court erred in refusing to give the jury an instruction which would have allowed him to be convicted of possession of less than 500 grams of cocaine.
Huguez-Ibarra’s theory of the case at the beginning of the trial was to ask the jury to find him guilty only of possession of the drugs he was caught dumping in the toilet and not conspiracy or possession of the three pounds in the safe. The district court refused to instruct the jury on possession of the cocaine recovered from the toilet because the indictment did not charge Huguez-Ibarra with possession of that cocaine. Instead, both Appellants were charged with conspiracy and possession with intent to distribute the three pounds of cocaine found in the safe.
We see no grounds for granting the request for instructing the jury on a crime unconnected with the charges in the indictment. The prosecution enjoys broad discretion in choosing what charges to bring against criminal defendants. Since the government did not charge Huguez-Ibarra with possession of the approximately 74 grams of cocaine recovered from the toilet, the jury could not have rationally convicted him of possession of that cocaine, and consequently there was no error in the refusal to instruct the jury on the “lesser charge.” See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir.1986).
CONCLUSION
The judgment is REVERSED as to each count. The case is REMANDED to the district court for further proceedings consistent with this opinion.
. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
. One example is provided by the affidavit supporting the applications for search warrants, which observes that Clementina Rivera, one of the subscribers for utilities at the residence, was married to Jesus Arias "who was involved in a narcotics related shooting in 1984.” This fact, although more specific than many of the other allegations of involvement with narcotics trafficking, does little to support an inference that the residence was the site of illegal narcotics trade.
This would, of course, be a different case were there a specific showing that the individuals frequenting the residence had themselves been previously involved in narcotics trafficking. Even so, however, such evidence would not alone provide probable cause for a seizure of the residence.
. It is well established that mere association with known or suspected criminals does not give rise to probable cause. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979); United States v. Hillison, 733 F.2d 692, 697 (9th Cir.1984).
. The affidavit in support of the search warrant for the closed safe included information gained in the warrantless seizure of the residence. It goes without saying that this "fruit of the poisonous tree” is not to be considered in evaluating the existence of probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
.As we read the record, the district court denied Appellants’ motion for a Franks hearing on the ground that probable cause existed even without the allegedly false statements in the supporting affidavit. Since we reverse on the issue of probable cause, we direct the district court on remand to determine whether Appellants can make a "substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.” Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676-77, 57 L.Ed.2d 667 (1978).
. We note that a limiting instruction should have been given but was not, apparently due to the failure of defense counsel to request one. Prior to admitting the document the court asked defense counsel if he wanted a limiting instruction. Counsel moved to have the jury advised where the receipt was found but to withhold submitting the actual document to the jury. This motion was denied, and no limiting instruction was given. Huguez-Ibarra does not specifically raise the failure to give one on appeal.
. Huguez-Ibarra seems to have recognized this by arguing in his closing presentation that his theory of the case had changed — that now it was "all or nothing,” and that the jury could either convict him of possession of the three pounds or acquit him, but that it could not convict him for possession of the cocaine he was found dumping in the toilet.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
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sc_authoritydecision
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D
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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.
KOON v. UNITED STATES
No. 94-1664.
Argued February 20, 1996
Decided June 13, 1996
Kennedy, J., delivered the opinion of the Court, which was unanimous except insofar as Stevens, J., did not join Part IV-B-1, and Souter, Ginsburg, and Breyer, JJ., did not join Part IV-B-3. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 114. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined, post, p. 114. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined, post, p. 118.
Theodore B. Olson argued the cause for petitioner in No. 94-1664. With him on the briefs were Theodore J. Boutrous, Jr., John K. Bush, Richard J. Leighton, Joel Levine, and Ira M. Salzman. William J. Kopeny argued the cause and filed briefs for petitioner in No. 94-8842.
Deputy Solicitor General Dreeben argued the cause for the United States in both cases. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Acting Assistant Attorney General Keeney, Irving L. Gornstein, Jessica Dunsay Silver, Linda F. Thome, and Vicki Marani.
Together with No. 94-8842, Powell v. United States, also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed for the Law Enforcement Legal Defense Fund by Richard K. Willard and David Henderson Martin in No. 94-1664; for the National Association of Criminal Defense Lawyers by Lawrence S. Goldman in No. 94-1664; and for the National Association of Police Organizations, Inc., by William J Johnson and Byron L. Warnken in both cases.
Justice Kennedy
delivered the opinion of the Court.
The United States Sentencing Commission Guidelines establish ranges of criminal sentences for federal offenses and offenders. A district court must impose a sentence within the applicable Guideline range, if it finds the case to be a typical one. See 18 U. S. C. § 3553(a). District courts may depart from the Guideline range in certain circumstances, however, see ibid., and here the District Court departed downward eight levels. The Court of Appeals for the Ninth Circuit rejected the District Court’s departure rulings, and, over the published objection of nine of its judges, declined to rehear the case en banc. In this suit we explore the appropriate standards of appellate review of a district court’s decision to depart from the Guidelines..
I
A
The petitioners’ guilt has been established, and we are concerned here only with the sentencing determinations made by the District Court and Court of Appeals. A sentencing court’s departure decisions are based on the facts of the case, however, so we must set forth the details of the crime at some length.
On the evening of March 2, 1991, Rodney King and two of his friends sat in King’s wife’s car in Altadena, California, a city in Los Angeles County, and drank malt liquor for a number of hours. Then, with King driving, they left Altadena via a major freeway. King was intoxicated.
California Highway Patrol officers observed King’s car traveling at a speed they estimated to be in excess of 100 m.p.h. The officers followed Kang with red lights and sirens activated and ordered him by loudspeaker to pull over, but he continued to drive. The Highway Patrol officers called on the radio for help. Units of the Los Angeles Police Department joined in the pursuit, one of them manned by petitioner Laurence Powell and his trainee, Timothy Wind.
King left the freeway, and after a chase of about eight miles, stopped at an entrance to a recreation area. The officers ordered King and his two passengers to exit the car and to assume a felony prone position — that is, to lie on their stomachs with legs spread and arms behind their backs. King’s two friends complied. King, too, got out of the car but did not lie down. Petitioner Stacey Koon arrived, at once followed by Ted Briseno and Roland Solano. All were officers of the Los Angeles Police Department, and as sergeant, Koon took charge. The officers again ordered King to assume the felony prone position. King got on his hands and knees but did not lie down. Officers Powell, Wind, Bri-seno and Solano tried to force King down, but King resisted and became combative, so the officers retreated. Koon then fired taser darts (designed to stun a combative suspect) into King.
The events that occurred next were captured on videotape by a bystander. As the videotape begins, it shows that King rose from the ground and charged toward Officer Powell. Powell took a step and used his baton to strike King on the side of his head. King fell to the ground. From the 18th to the 30th second on the videotape, King attempted to rise, but Powell and Wind each struck him with their batons to prevent him from doing so. From the 35th to the 51st second, Powell administered repeated blows to King’s lower extremities; one of the blows fractured King’s leg. At the 55th second, Powell struck King on the chest, and King rolled over and lay prone. At that point, the officers stepped back and observed King for about 10 seconds. Powell began to reach for his handcuffs. (At the sentencing phase, the District Court found that Powell no longer perceived King to be a threat at this point.)
At one-minute-five-seconds (1:05) on the videotape, Bri-seno, in the District Court’s words, “stomped” on King’s upper back or neck. King’s body writhed in response. At 1:07, Powell and Wind again began to strike King with a series of baton blows, and Wind kicked him in the upper thoracic or cervical area six times until 1:26. At about 1:29, King put his hands behind his back and was handcuffed. Where the baton blows fell and the intentions of King and the officers at various points were contested at trial, but, as noted, petitioners’ guilt has been established.
Powell radioed for an ambulance. He sent two messages over a communications network to the other officers that said “‘ooops’” and ‘“I havent [sic] beaten anyone this bad in a long time.’” 34 F. 3d 1416, 1425 (CA9 1994). Koon sent a message to the police station that said: “ ‘U[nit] just had a big time use of force.... Tased and beat the suspect of CHP pursuit big time.’ ” Ibid.
King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions. Learning that King worked at Dodger Stadium, Powell said to King: “ ‘We played a little ball tonight, didn’t we Rodney?... You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs.... Yes, we played a little ball and you lost and we won.’ ” Ibid.
B
Koon, Powell, Briseno, and Wind were tried in state court on charges of assault with a deadly weapon and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge against Powell that resulted in a hung jury. The verdicts touched off widespread rioting in Los Angeles. More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed. New Initiatives for a New Los Angeles: Final Report and Recommendations, Senate Special Task Force on a New Los Angeles, Dec. 9, 1992, pp. 10-11.
On August 4, 1992, a federal grand jury indicted the four officers under 18 U. S. C. § 242, charging them with violating King’s constitutional rights under color of law. Powell, Bri-seno, and Wind were charged with willful use of unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. After a trial in United States District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno.
We now consider the District Court’s sentencing determinations. Under the Sentencing Guidelines, a district court identifies the base offense level assigned to the crime in question, adjusts the level as the Guidelines instruct, and determines the defendant’s criminal history category. United States Sentencing Commission, Guidelines Manual § 1B1.1 (Nov. 1992) (1992 USSG). Coordinating the adjusted offense level and criminal history category yields the appropriate sentencing range. Ibid.
The District Court sentenced petitioners pursuant to 1992 USSG §2H1.4, which applies to violations of 18 U. S. C. §242. Section 2H1.4 prescribes a base offense level which is the greater of the following: 10, or 6 plus the offense level applicable to any underlying offense. The District Court found the underlying offense was aggravated assault, which carries a base offense level of 15, 1992 USSG §2A2.2(a), to which 6 was added for a total of 21.
The court increased the offense level by four because petitioners had used dangerous weapons, § 2A2.2(b)(2)(B). The Government asked the court also to add four levels for King’s serious bodily injury pursuant to § 2A2.2(b)(3)(B). The court found, however, that King’s serious injuries were sustained when the officers were using lawful force. (At trial, the Government contended that all the blows administered after King fell to the ground 30 seconds into the videotape violated § 242. The District Court found that many of those blows “may have been tortious,” but that the criminal violations did not commence until 1:07 on the videotape, after Briseno stomped King. 833 F. Supp. 769, 778 (CD Cal. 1993).) The court did add two levels for bodily injury pursuant to § 2A2.2(b)(3)(A). The adjusted offense level totaled 27, and because neither petitioner had a criminal record, each fell within criminal history category I. The sentencing range for an offense level of 27 and a criminal history category I was, under the 1992 Guidelines, 70-to-87 months’ imprisonment. Rather than sentencing petitioners to a term within the Guideline range, however, the District Court departed downward eight levels. The departure determinations are the subject of this controversy.
The court granted a five-level departure because “the victim’s wrongful conduct contributed significantly to provoking the offense behavior,” §5K2.10, p. s. 833 F. Supp., at 787. The court also granted a three-level departure, based on a combination of four factors. First, as a result, of the “widespread publicity and emotional outrage which have surrounded this case,” petitioners were “particularly likely to be targets of abuse” in prison. Id., at 788. Second, petitioners would face job-termination proceedings, after which they would lose their positions as police officers, be disqualified from prospective employment in the field of law enforcement, and suffer the “anguish and disgrace these deprivations entail.” Id., at 789. Third, petitioners had been “significantly burden[ed]” by having been subjected to successive state and federal prosecutions. Id., at 790. Fourth, petitioners were not “violent, dangerous, or likely to engage in future criminal conduct,” so there was “no reason to impose a sentence that reflects a need to protect the public from [them].” Ibid. The court concluded these factors justified a departure when taken together, although none would have been sufficient standing alone. Id., at 786.
The departures yielded an offense level of 19 and a sentencing range of 30-to-37 months’ imprisonment. The court sentenced each petitioner to 30 months’ imprisonment. The petitioners appealed their convictions, and the Government appealed the sentences, arguing that the District Court erred in granting the downward departures and in failing to adjust the offense level upward for serious bodily injury. The Court of Appeals affirmed petitioners’ convictions, and affirmed the District Court’s refusal to adjust the offense level, but it reversed the District Court's departure determinations. Only the last ruling is before us.
The Court of Appeals reviewed “de novo whether the district court had authority to depart.” 34 F. 3d, at 1451. The court reversed the five-level departure for victim misconduct, reasoning that misbehavior by suspects is typical in cases involving excessive use of force by police and is thus comprehended by the applicable Guideline. Id., at 1460.
As for the three-level departure, the court rejected each factor cited. Acknowledging that a departure for susceptibility to abuse in prison may be appropriate in some instances and that police officers as a group are susceptible to prison abuse, the court nevertheless said the factor did not justify departure because “reliance solely on hostility toward a group of which the defendant is a member provides an unlimited open-ended rationale for departing.” Id., at 1455. The court further noted that, unlike cases in which a defendant is vulnerable to prison abuse due to physical characteristics over which he has no control, here the petitioners’ vulnerability stemmed from public condemnation of their crimes. Id., at 1456.
As for petitioners’ collateral employment consequences, the court first held consideration of the factor by the trial court inconsistent with the sentencing goals of 18 U. S. C. § 3553(a) because the factor did not “speak to the offender’s character, the nature or seriousness of the offense, or some other legitimate sentencing concern.” 34 F. 3d, at 1453. The court noted further that because the societal consequences of a criminal conviction are almost unlimited, reliance on them “would create a system of sentencing that would be boundless in the moral, social, and psychological examinations it required courts to make.” Id., at 1454. Third, the court noted the ease of using the factor to justify departures based on a defendant’s socioeconomic status, a consideration that, under 1992 USSG §5H1.10, is never a permitted basis for departure. As a final point, the Court of Appeals said the factor was “troubling” because petitioners, as police officers, held positions of trust they had abused. Section 3B1.3 of the Guidelines increases, rather than decreases, punishment for those who abuse positions of trust. 34 F. 3d, at 1454.
The Court of Appeals next found the successive state and federal prosecutions could not be a downward departure factor. It deemed the factor irrelevant to the sentencing goals of § 3553(a)(2) and contradictory to the Attorney General’s determination that compelling federal interests warranted a second prosecution. Id,., at 1457. The court rejected the last departure factor as well, ruling that low risk of recidivism was comprehended in the criminal history category and so should not be double counted. Id., at 1456-1457.
We granted certiorari to determine the standard of review governing appeals from a district court’s decision to depart from the sentencing ranges in the Guidelines. 515 U. S. 1190 (1995). The appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion. Having invoked the wrong standard, the Court of Appeals erred further in rejecting certain of the downward departure factors relied upon by the District Judge.
II
The Sentencing Reform Act of 1984, as amended, 18 U.S.C. §3551 et seq., 28 U. S. C. §§991-998, made far-reaching changes in federal sentencing. Before the Act, sentencing judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, 488 U. S. 361, 363 (1989). The discretion led to perceptions that "federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances.” S. Rep. No. 98-225, p. 38 (1983). In response, Congress created the United States Sentencing Commission and charged it with developing a comprehensive set of sentencing guidelines, 28 U. S. C. § 994. The Commission promulgated the United States Sentencing Guidelines, which “specify an appropriate [sentencing range] for each class of convicted persons” based on various factors related to the offense and the offender. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, p. 1 (Nov. 1995) (1995 USSG). A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.
The Act did not eliminate all of the district court’s discretion, however. Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, see 28 U. S. C. § 991(b)(1)(B), Congress allows district courts to depart from the applicable Guideline range if “the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.” 18 U. S. C. § 3553(b). To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to “consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.” Ibid.
Turning our attention, as instructed, to the Guidelines Manual, we learn that the Commission did not adequately take into account cases that are, for one reason or another, “unusual.” 1995 USSG ch. 1, pt. A, intro, comment. 4(b). The Introduction to the Guidelines explains:
“The Commission intends the sentencing courts to treat each guideline as carving out a ‘heartland,’ a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.” Ibid.
The Commission lists certain factors that never can be bases for departure (race, sex, national origin, creed, religion, socioeconomic status, 1995 USSG §5H1.10; lack of guidance as a youth, §5H1.12; drug or alcohol dependence, §5H1.4; and economic hardship, §5K2.12), but then states that with the exception of those listed factors, it “does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.” 1995 USSG ch. 1, pt. A, intro, comment. 4(b). The Commission gives two reasons for its approach:
“First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refine the guidelines to specify more precisely when departures should and should not be permitted.
“Second, the Commission believes that despite the courts’ legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission’s data indicate made a significant difference in pre-guidelines sentencing practice.” Ibid.
So the Act authorizes district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission. The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not “adequately taken into consideration,” and factors that may make a case atypical provide potential bases for departure. Potential departure factors “cannot, by their very nature, be comprehensively listed and analyzed in advance,” 1995 USSG §5K2.0, of course. Faced with this reality, the Commission chose to prohibit consideration of only a few factors, and not otherwise to limit, as a categorical matter, the considerations that might bear upon the decision to depart.
Sentencing courts are not left adrift, however. The Commission provides considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure. Encouraged factors are those “the Commission has not been able to take into account fully in formulating the guidelines.” §5K2.0. Victim provocation, a factor relied upon by the District Court in this suit, is an example of an encouraged downward departure factor, §5K2.10, whereas disruption of a governmental function is an example of an encouraged upward departure factor, § 5K2.7. Even an encouraged factor is not always an appropriate basis for departure, for on some occasions the applicable Guideline will have taken the encouraged factor into account. For instance, a departure for disruption of a governmental function “ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense.” Ibid. A court still may depart on the basis of such a factor but only if it “is present to a degree substantially in excess of that which ordinarily is involved in the offense.” §5K2.0.
Discouraged factors, by contrast, are those “not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range.” 1995 USSG ch. 5, pt. H, intro, comment. Examples include the defendant’s family ties and responsibilities, 1995 USSG §5H1.6, his or her education and vocational skills, § 5H1.2, and his or her military, civic, charitable, or public service record, §5H1.11. The Commission does not view discouraged factors “as necessarily inappropriate” bases for departure but says they should be relied upon only “in exceptional cases.” 1995 USSG ch. 5, pt. H, intro, comment.
The Commission’s treatment of departure factors led then-Chief Judge Breyer to explain that a sentencing court considering a departure should ask the following questions:
“1) What features of this case, potentially, take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, case?
“2) Has the Commission forbidden departures based on those features?
“3) If not, has the Commission encouraged departures based on those features?
“4) If not, has the Commission discouraged departures based on those features?” United States v. Rivera, 994 F. 2d 942, 949 (CA1 1993).
We agree with this summary. If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Cf. ibid. If a factor is unmentioned in the Guidelines, the court must, after considering the “structure and theory of both relevant individual guidelines and the Guidelines taken as a whole,” ibid., decide whether it is sufficient to take the case out of the Guideline’s heartland. The court must bear in mind the Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be “highly infrequent.” 1995 USSG ch. 1, pt. A, p. 6.
Against this background, we consider the standard of review.
Ill
Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal. Dorszynski v. United States, 418 U. S. 424, 431 (1974) (reiterating “the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end”); United States v. Tucker, 404 U. S. 443, 447 (1972) (same). The Act altered this scheme in favor of a limited appellate jurisdiction to review federal sentences. 18 U. S. C. § 3742. Among other things, it allows a defendant to appeal an upward departure and the Government to appeal a downward one. §§ 3742(a), (b).
That much is clear. Less clear is the standard of review on appeal. The Government advocates de novo review, saying that, like the Guidelines themselves, appellate review of sentencing, and in particular of departure decisions, was intended to reduce unjustified disparities in sentencing. In its view, de novo review of departure decisions is necessary “to protect against unwarranted disparities arising from the differing sentencing approaches of individual district judges.” Brief for United States 12.
We agree that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not intend, by establishing limited appellate review, to vest in appellate courts wide-ranging authority over district court sentencing decisions. Indeed, the text of § 3742 manifests an intent that district courts retain much of their traditional sentencing discretion. Section 3742(e)(4), as enacted in 1984, provided “[t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.” In 1988, Congress amended the statute to impose the additional requirement that courts of appeals “give due deference to the district court’s application of the guidelines to the facts.” Examining § 3742 in Williams v. United States, 503 U. S. 193 (1992), we stated as follows:
“Although the Act established a limited appellate review of sentencing decisions, it did not alter a court of appeals’ traditional deference to a district court’s exercise of its sentencing discretion.... The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, fit is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.’ ” Id., at 205 (quoting Solem v. Helm, 463 U. S. 277, 290, n. 16 (1983)).
See also S. Rep. No. 225, at 150 (“The sentencing provisions of the reported bill are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing and should not be displaced by the discretion of an appellate court”).
That the district court retains much of its traditional discretion does not mean appellate review is an empty exercise. Congress directed courts of appeals to “give due deference to the district court’s application of the guidelines to the facts.” 18 U. S. C. § 3742(e)(4). The deference that is due depends on the nature of the question presented. The district court may be owed no deference, for instance, when the claim on appeal is that it made some sort of mathematical error in applying the Guidelines; under these circumstances, the appellate court will be in as good a position to consider the question as the district court was in the first instance.
A district court’s decision to depart from the Guidelines, by contrast, will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court. See Mistretta, 488 U. S., at 367 (noting that although the Act makes the Guidelines binding on sentencing courts, “it preserves for the judge the discretion to depart from the guideline applicable to a particular case”). Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. In 1994, for example, 93.9% of Guidelines cases were not appealed. Letter from Pamela G. Montgomery, Deputy General Counsel, United States Sentencing Commission (Mar. 29,1996). “To ignore the district court’s special competence — about the ‘ordinariness’ or ‘unusualness’ of a particular case — would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case....” Rivera, 994 F. 2d, at 951.
Considerations like these persuaded us to adopt the abuse-of-discretion standard in Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990), which involved review of a District Court’s imposition of Rule 11 sanctions, and in Pierce v. Underwood, 487 U. S. 552 (1988), which involved review of a District Court’s determination under the Equal Access to Justice Act, 28 U. S. C. § 2412(d), that the position of the United States was “substantially justified,” thereby precluding an award of attorney’s fees against the Government. There, as here, we noted that deference was owed to the “ ‘judicial actor... better positioned than another to decide the issue in question.’ ” Pierce, supra, at 559-560 (quoting Miller v. Fenton, 474 U. S. 104, 114 (1985)); Cooter & Gell, supra, at 403. Furthermore, we adopted deferential review to afford “the district court the necessary flexibility to resolve questions involving ‘multifarious, fleeting, special, narrow facts that utterly resist generalization.’” 496 U. S., at 404 (quoting Pierce, supra, at 561-562). Like the questions involved in those cases, a district court’s departure decision involves “the consideration of unique factors that are ‘little susceptible... of useful generalization,’ ” 496 U. S., at 404, and as a consequence, de novo review is “unlikely to establish clear guidelines for lower courts,” id., at 405.
The Government seeks to avoid the factual nature of the departure inquiry by describing it at a higher level of generality linked closely to questions of law. The relevant question, however, is not, as the Government says, “whether a particular factor is within the ‘heartland’ ” as a general proposition, Brief for United States 28, but whether the particular factor is within the heartland given all the facts of the case. For example, it does not advance the analysis much to determine that a victim’s misconduct might justify a departure in some aggravated assault cases. What the district court must determine is whether the misconduct that occurred in the particular instance suffices to make the case atypical. The answer is apt to vary depending on, for instance, the severity of the misconduct, its timing, and the disruption it causes. These considerations are factual matters.
This does not mean that district courts do not confront questions of law in deciding whether to depart. In the present suit, for example, the Government argues that the District Court relied on factors that may not be considered in any case. The Government is quite correct that whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point. Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. Cooter & Gell, supra, at 402. A district court by definition abuses its discretion when it makes an error of law. 496 U. S., at 405. That a departure decision, in an occasional case, may call for a legal determination does not mean, as a consequence, that parts of the review must be labeled de novo while other parts are labeled an abuse of discretion. See id., at 403 (court of appeals should “appl[y] a unitary abuse-of-discretion standard”). The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.
IV
The principles we have explained require us to reverse the rulings of the Court of Appeals in significant part.
A
The District Court departed downward five levels because King’s “wrongful conduct contributed significantly to provoking the offense behavior.” 833 F. Supp., at 786. Victim misconduct was an encouraged basis for departure under the 1992 Guidelines and is so now. 1992 USSG §5K2.10; 1995 USSG §5K2.10.
Most Guidelines prescribe punishment for a single discrete statutory offense or a few similar statutory offenses with rather predictable fact patterns. Petitioners were convicted of violating 18 U. S. C. § 242, however, a statute unusual for its application in so many varied circumstances. It prohibits, among other things, subjecting any person under color of law “to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” A violation of §242 can arise in a myriad of forms, and the Guideline applicable to the statute applies to any violation of §242 regardless of the form it takes. 1992 USSG §2H 1.4. Section 2H1.4 takes account of the different kinds of conduct that might constitute a § 242 violation by instructing courts to use as a base offense level the greater of 10, or 6 plus the offense level applicable to any underlying offense. In this way, §2H1.4 incorporates the base offense level of the underlying offense; as a consequence, the heartland of §2H1.4 will vary depending on the defendant’s conduct.
Here, the underlying offense was aggravated assault. After adjusting the offense level for use of a dangerous weapon and bodily injury, see 1992 USSG § lB1.5(a) (a Guideline that incorporates another Guideline incorporates as well the other’s specific offense characteristics), the District Court added six levels as required by
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_counsel
|
B
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Castel VENABLE, Petitioner-Appellant, v. William S. NEIL, Warden, Tennessee State Penitentiary, Respondent-Appellee.
No. 71-1593.
United States Court of Appeals, Sixth Circuit.
June 30, 1972.
Charles L. Hendrix, Jr., Nashville, Tenn., for appellant.
Bart Durham, Asst. Atty. Gen., Nashville, Tenn., for appellee; David M. Pack, Atty. Gen., of counsel.
Before McCREE and KENT, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
PER CURIAM.
This is an appeal from an order denying a petition for a writ of habeas eorpus attacking the constitutional validity of petitioner’s conviction on his plea of guilty to second degree murder. Although two contentions were asserted, only one presents an issue cognizable in this proceeding: that petitioner was denied the effective assistance of counsel appointed to represent him in the state criminal proceedings. He has exhausted available state remedies.
The District Judge stated that petitioner would be entitled to an evidentiary hearing before him on his allegations of ineffective assistance but for the fact that he was not prejudiced thereby because petitioner, by his own statement at the state court post-conviction hearing, was guilty of at least second degree murder for which he received the minimum sentence (10 years) which could lawfully be imposed. The District Judge made no reference to the relationship between the alleged ineffective assistance and two charges of assault with intent to commit murder to which a plea of guilty was also accepted and for which concurrent 3 year sentences to begin after expiration of the murder sentence were imposed.
We have examined the transcript of the state post-conviction proceeding upon which the District Court based its findings, and we observe that assigned trial counsel did not testify. Recognizing that predicting the outcome of criminal trials is at best an uncertain undertaking, we conclude that petitioner may have, with the assistance of counsel, presented an effective self-defense plea at trial. He testified that the victim had cut his throat eight months before the fatal shooting, had threatened his life more than once, and that petitioner shot the victim only because he was going for his knife. The uncontradicted testimony of petitioner is that his appointed attorney spoke to him for only ten minutes and refused to listen to his version of the shooting or to investigate the surrounding circumstances. The serious default of counsel alleged here was not cured when his guilty plea was accepted because he testified that his efforts to explain that counsel’s infidelity compelled it were frustrated. Cf. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
We cannot determine from this record whether petitioner’s version of his relationship with his counsel is accurate. If it is, he has been denied a constitutional right. Accordingly, we reverse and remand for an evidentiary hearing with the assistance of counsel and for a determination whether appellant is entitled to habeas corpus relief.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_respond1_3_2
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 86-1199.
United States Court of Appeals, Fourth Circuit.
Argued April 6, 1987.
Decided Nov. 12, 1987.
Daniel M. Gribbon (Jerome Ackerman, Douglas S. Abel, Covington & Burling, Washington, D.C., James J. Burns, William A. Young, Jr., Wallerstein, Goode & Dobbins, Richmond, Va., on brief), for petitioner.
Karen Ruth Cordry, N.L.R.B. (Rosemary M. Collyer, General Counsel, John E. Higgins, Jr., Deputy General Counsel, Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, Peter Winkler, Supervisory Atty., Washington, D.C., on brief), for respondent.
Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge. ■
WIDENER, Circuit Judge:
This is a petition of Prudential Insurance Company of America to review an order of the National Labor Relations Board and the Board’s cross petition for enforcement. Prudential challenges a representation election based on the propriety of a bargaining unit which included an alleged confidential employee. We hold that the employee was not properly included in the bargaining unit and remand the case with instructions.
The United Food & Commercial Workers International Union, AFL-CIO-CLC, filed a petition with the Board seeking to represent a unit of office and clerical employees at Prudential’s Cape Cod district office located in Hyannis, Massachusetts. These employees, referred to by Prudential as the field service staff, support the Company’s sales agents in their selling and service functions. There are several job categories that are involved in these functions: service representative, senior service representative, service assistants, service coordinator, senior service coordinator, and assistant to the district manager. These positions comprise the bargaining unit sought by the Union and approved by the Board. The Company’s challenge is directed to the inclusion within the unit of the assistant to the district manager, Patricia Roberts.
In May 1985, the Board conducted a pre-election hearing. The Company contended that the inclusion of Mrs. Roberts was improper because she was a confidential employee. After hearings, the Board’s Regional Director issued a Decision and Direction of Election in which he concluded that Mrs. Roberts was not a confidential employee. The Regional Director’s conclusion was based on two alternative findings. First, he found that the district manager does not formulate, determine and effectuate labor relations policies. Second, the Regional Director also found that Mrs. Roberts did not assist and act in a confidential capacity to the district manager. The Company subsequently filed a request for review with the Board, challenging the Regional Director’s unit determinations. The Board denied this request based on the Regional Director’s finding that the district manager does not formulate, determine, and effectuate management labor relations policy. Given this determination, the Board did not comment on the Regional Director’s alternate finding.
On August 28,1985, the Board’s regional office conducted a secret ballot election. The Company unsuccessfully challenged the ballot of Mrs. Roberts. The Board agent rejected Prudential’s challenge and refused to impound and segregate her ballot since the Board had already ruled on her eligibility. However, the agent permitted the Union’s challenge to two votes. Those two ballots were sealed and not counted in the election count. The tally, including the ballot of the assistant to the district manager, was 4-1 in favor of the Union. Prudential objected to both the conduct of the election and the conduct affecting the results of the election, but these objections were rejected by the Regional Director, who certified the Union as the bargaining unit’s representative. The Company then requested Board review of the Regional Director’s certification of the Union as representative. However, this request for review was denied by the Board on October 29,1985 as raising “no substantial issues warranting review.”
In order to gain judicial review of the Board’s certification of the representative, Prudential refused to bargain with the Union. As stated, this case comes to us upon a petition to review the Board’s order requiring Prudential to bargain with the Union and its determination that the Company violated §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to do so.
In order to evaluate Prudential’s claim that the assistant to the district manager should have been excluded from the field service bargaining unit as a confidential employee, it is necessary for us to examine the relationship between her and the district manager as well as the district manager’s responsibilities. With little exception, the facts in this case are not in dispute and the Board’s findings are essentially a summary of undisputed evidence. Accordingly, it is appropriate to reproduce the Board’s findings concerning the district manager and the assistant to the district manager.
As district manager, Leary oversees the day-to-day operation of the Cape Cod district office. He is responsible for hiring and training new employees, setting their levels of compensation, determining work assignments, scheduling overtime, scheduling vacations, evaluating employees, making disciplinary recommendations, recommending promotions, merit increases and bonuses and resolving day-to-day problems that arise in the office. The collective bargaining agreement between the Employer and the Petitioner covering district agents provides that the district manager is the Employer’s representative at Step One of the contractual grievance procedure. While Leary has the authority to respond to grievances at Step One, since he has been at the Cape Cod District office (a year and a half) his practice has been to receive and investigate each grievance, formulate a recommended response and then clear it with YPRM Russo before presenting it to the Petitioner. Leary does not participate either in the preparation for, or the actual negotiations with the Petitioner concerning the district agents’ unit. The Employer’s labor relations and personnel policies, including compensation plans and levels, and benefits, are established and/or negotiated and managed from the Employer’s corporate headquarters in Newark, New Jersey and/or its regional offices, in this case located in Boston, Massachusetts. As district manager, Leary is responsible for ensuring that the Employer’s policies are administered in the Cape Cod District office consistently with the Employer’s national policy.
Patricia Roberts is the ATTM in the Cape Cod District office. In this capacity, she handles correspondence and clerical work for Leary. Thus, she performs customary secretarial duties, such as typing and filing; she does not take dictation. Roberts maintains files of grievances submitted by the Petitioner and types Leary’s proposed and actual responses to them. Roberts types Leary’s correspondence with Russo and other Employer representatives and maintains a file of such correspondence in her desk, which is unlocked. Roberts also compiles and types office sales reports and submits them to the appropriate regional office. Roberts types correspondence concerning the employment, compensation, evaluation and discipline of district agents. Roberts has access, as needed, to employees’ personal job history files, which are maintained in a locked portion of Leary’s desk. She also shares a private telephone line with Leary, but she has never been asked by him to listen in on a conversation. In one instance, at Leary’s request, Roberts compiled mileage figures as part of a grievance response. However, she was asked to perform this task after the Employer had given its grievance answer to the Petitioner. In another instance, she looked up a date in an unspecified file.
Section 2(3) of the NLRA provides that the “term ‘employee’ shall include any em-ployee_” 29 U.S.C. § 152(3). But, notwithstanding that under a literal reading of this language Mrs. Roberts would be an employee, both the Board and the courts exclude certain confidential employees from collective bargaining units. See NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 177, 102 S.Ct. 216, 222, 70 L.Ed.2d 323 (1981). In Hendricks, the Supreme Court approved the Board’s “labor-nexus” rule as determinative of whether or not a worker is to be deemed a confidential employee. Under this labor-nexus rule, “the term ‘confidential’ ... embrace[s] only those employees who assist and act in a confidential capacity to persons who exercise ‘managerial’ functions in the field of labor relations.” Hendricks, 454 U.S. at 180-81, 102 S.Ct. at 224. This concise statement of law presents the two questions involved in this case. First, whether the district manager was a person who exercised managerial functions in the field of labor relations. And, second, whether the Regional Director erred in finding that the assistant to the district manager did not assist or act in a confidential capacity to the district manager.
In NLRB v. Quaker City Life Insurance Co., 319 F.2d 690 (4th Cir.1963), we held that the secretary of the district manager of a national insurance company was a confidential employee and that “[i]t would be patently unfair to require the company to bargain with a union that contain[ed] such an employee.” 319 F.2d at 694. The facts of this case are indistinguishable from those of the Quaker City case. In Quaker City, we noted that the district manager in that case “generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.” 319 F.2d at 692. This description of Quaker City’s district manager’s duties takes in only a part of those of Prudential’s district manager here. Additionally, for example, Prudential’s district manager is the employer’s representative at Step One of the grievance procedure. He may respond to Step One or formulate and recommend a response for his superior. He is also responsible for ensuring that Prudential’s national labor and personnel policies are carried out in the district office. Accordingly, we conclude that the district manager here exercises managerial functions in the field of labor relations. The Board has invited us to reject Quaker City as lacking in precedential value in light of the Supreme Court’s ruling in Hendricks. However, this argument is foreclosed by our decision in NLRB v. Rish Equipment Co., 687 F.2d 36 (4th Cir.1982). In Rish, on facts similar to those here, we rejected the argument that our decision in Quaker City was displaced by Hendricks. 687 F.2d at 37. We follow our earlier determination, and Quaker City and Rish are yet controlling precedent in this circuit. Accordingly, we conclude that the Board erroneously decided to deny review of the Regional Director’s decision on the ground that the district manager did not exercise sufficient managerial functions in the field of labor relations.
This conclusion, however, does not end our review. We must also examine the Regional Director’s alternate finding that Mrs. Roberts, the assistant to the district manager, did not assist or act in a confidential manner in her relations with the district manager.
We think that the Regional Director’s finding is not supported by substantial evidence in light of the entire record. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Regional Director’s own findings concerning Mrs. Roberts, already reproduced, supra, demonstrate that her position’s confidential characteristics exceed those of the Quaker City employee “who makes weekly reports to the home office indicating receipts, disbursements, attendance of the agents and sales productions. She checks the details of each new policy before they are submitted. She types correspondence for the District Manager and is privy to all confidential matters and communications between the District Manager and the home office, including those in which the performance of the other employees of the branch office is discussed. Although she is licensed to sell insurance, she never has done so, and the license is probably not a condition of her employment.” Quaker City, 319 F.2d at 692. Moreover, there was undisputed documentary evidence that Prudential’s job description questionnaire for the position of assistant to the district manager describes the job as “confidential” by its very nature. The confidential character of the position of assistant to the district manager is further elaborated on in Prudential’s personnel policy handbook. Significantly, both the district manager and Mrs. Roberts testified that the Company had told her that her job was confidential. Finally, the Board has cited us to no convincing reason to sustain the Regional Director’s finding in light of our decisions in Quaker City and Rish. We thus find that the Regional Director’s finding that Mrs. Roberts did not assist or act in a confidential manner to the district manager is not supported by substantial evidence. Having concluded that Mrs. Roberts does serve in a confidential capacity to a manager who exercises sufficient managerial function in the field of labor relations, we are of the opinion that she should not be included within the bargaining unit in question.
We must now decide what action should be taken on remand. We reject the Company’s position that a new election must be held merely because the employees’ vote may have been different had they known that the assistant to the district manager was not a member of the bargaining unit. The case cited by the Company for that proposition, Hamilton Test Systems, N. Y., Inc. v. NLRB, 743 F.2d 136 (2d Cir.1984), does not support that result. In Hamilton Test Systems, the voting employees were misinformed by the Board and believed that they were voting for representation in a broad facility-wide unit. However, the Board later considered “the ballot as a vote for representation in a unit that [was] less than half [that] size and considerably different in character.” 743 F.2d at 140. Thus, that case should be distinguished on its facts from ours because we deal here with a unit that has been altered by only one member.
While we conclude that the Company is not necessarily entitled to a new election, we recognize that upon remand it will be necessary for the Board to consider the two votes challenged by the Union and not included in the tally. Given the fact that it is impossible to determine which way Mrs. Roberts’ improper vote was cast, we have no way of knowing whether a correct tally would favor the Union by a 3-1 or 4-0 margin. Accordingly, it is quite possible that the two challenged employee votes, if they survive the Union’s challenge and if they were cast against union representation, would affect the Union’s majority status. In that case, it would in fact be necessary to hold a new election in a properly constituted unit. Otherwise, the representation election result must stand.
Accordingly, we reverse the Board’s finding that Mrs. Roberts was not a confidential employee and remand this case for proceedings consistent with this opinion.
The petition for review of Prudential is granted in part and remanded in part.
The cross petition of the Board for enforcement is denied at this time but may be reinstated depending on the result of the proceedings on remand.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_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".
LOUISVILLE JOINT STOCK LAND BANK v. RADFORD.
No. 6959.
Circuit Court of Appeals, Sixth Circuit.
Feb. 11, 1935.
J. E. Tarrant and William Marshall Bullitt, both of Louisville, Ky. (J. E. Tarrant, of Louisville, Ky., on the brief), for appellant.
E. A. Krauthoff, of Chicago, 111., Harry H. Peterson, of St. Paul, Minn., and William Lemke, of Washington, D. C. (P. O. Sathre, of Bismarck, N. 1)., David A. Sachs, Jr., of Louisville, Ky., and Frank Rives, of Hopkinsville, Ky., on the brief), for appellee.
Robert II. Winn, of Mount Sterling; Ky., amicus curise.
Before MOORMAN, HICKS, and SI-MONS, Circuit Judges.
Writ of certiorari granted 55 S. Ct. 547, 79 L. Ed.-
SIMONS, Circuit Judge.
This appeal, seasonably allowed by us and by the District Court, raises questions in respect to the constitutionality of section 75 of the Bankruptcy Act, as amended by the Frazier-Lemke Act of June 28, 1931 (adding subsection (s), 11 USCA § 203). The facts are not in dispute, and are sufficiently found in the opinion of the District Judge. In re Radford, 8 F. Supp. 489.
The bankrupt is a farmer. In 1922 he borrowed $8,000 and in 1924 an additional $1,000 from the appellant bank, giving as security mortgages on his 170-acre farm in Christian county, Ky., the mortgages containing covenants to pay taxes and to keep the buildings insured. Upon default in the payment of principal, interest, and taxes, and through allowance of insurance to lapse, the bank, pursuant to the terms of the mortgages, declared the entire indebtedness thereon due and payable, and on June 5, 1933, filed a foreclosure suit in the circuit court of Christian county. Later the bank moved for the appointment of a receiver, but, upon being informed by the conciliation commissioner of the county that Radford desired to avail himself of the benefits of section 75 of the Bankruptcy Act (11 USCA § 203), providing for agricultural compositions and extensions, the court declined to appoint the receiver, and stayed the foreclosure suit. On February 26, 1934, Radford filed in the United States District Court his petition and schedule under section 75. On June 30, 1934, the Christian county circuit court entered judgment for the bank for the full amount of Radford’s indebtedness, sustained the mortgages as a first lien upon his farm, and ordered the property sold by the master commissioner. Before the sale could be had, Radford, on August 6, 1934, filed in the District Court an amended petition under the Frazier-Lemke Act, asking to be adjudged a bankrupt; that proceedings against him be stayed for a period of five yeans; that he be allowed to retain possession of the property during that period; and that he be given an option to purchase the mortgaged property at its appraised value at its termination. The bank intervened and answered, alleging section 75 as amended to be unconstitutional, asking dismissal of the bankruptcy proceedings, and that it be allowed to pursue its remedies in accordance with the judgment of the circuit court. Rad-ford admitted the allegations of fact in the answer, and the case was submitted upon the pleadings. The court held section 75 and the Frazier-Lemke Amendment constitutional, adjudged Radford a bankrupt, and referred the cause to the referee for further proceedings.
Radford then petitioned to have his property appraised, his exemptions set aside, and that he be allowed to retain possession of the property and pay for it under the terms of subsection (s) of section 75 of the Bankruptcy Act (11 USCA § 203 (s). The referee appointed appraisers, who appraised all of Radford’s property, and fixed the fair and reasonable value of the mortgaged property at $4,445. The bank in open court offered to pay $9,205.09 in cash for the mortgaged property, but the referee refused to consider the offer, approved the report of the appraisers, fixed the fair and reasonable value at $4,445, and ordered that possession thereof should remain in Radford, subject to a general lien in the trustee as security for the payment of the value of the property. Radford thereupon requested the trustee to sell him the mortgaged property under the terms and conditions of paragraph (3) of subsection (s) of section 75 of the act, 11 USCA § 203 (s) (3). The bank refused consent, and filed its written'objections thereto. Radford then petitioned the court to stay all proceedings against him for five years, and to allow him to retain possession upon a reasonable annual rental to be fixed by the court. The petition was granted, proceedings were stayed, the bank enjoined from enforcing its mortgage lien for five years, and Radford allowed to retain possession on payment of $325 on May 1, 1935, as rental for the first year, with rental for subsequent years to be fixed by the court. Upon a petition to the District Court for review, the referee’s orders were sustained, and the bank took its appeal.
Section 75 of the Bankruptcy Act, as originally enacted, was part of_the Act of March 3, 1933, entitled “Provisions for the Relief of Debtors.” It provided that any farmer claiming to be insolvent or unable to.meet his debts might file a petition for composition or an extension. This automatically gave the bankruptcy court the same power and jurisdiction over the farmer and his property as if a voluntary petition for adjudication had been filed, and a decree of adjudication entered. Thereupon all proceedings against the farmer and his farm property, including his home and household effects, were stayed, except for the collection of taxes. The proposed composition or extension could be confirmed by the court only upon written acceptance by a majority of creditors in number and amount, but such composition or extension might not reduce the amount of or impair the lien of a secured creditor, but affect only the time and method of its liquidation.
The Fra-zier-Lemke Act of June 28, 1934, is an amendment to section 75 of the Act of March 3, 1933. Its text is fully set forth in the opinion of the District Judge, and it is therefore not necessary to burden this opinion with It. It is sufficient for our purpose to say that it provides that a farmer failing to obtain the necessary consent to the terms of a composition or extension may by amended petition ask to be adjudged a bankrupt and secure the appointment of appraisers, who shall appraise all of his property at its then fair and reasonable value, not necessarily its market value, and, after such appraisal, and after his exemptions under the state law have been set aside to him, then upon an agreement with the lienholders the trustee in bankruptcy must sell back to him all or any part of his property upon the terms specified in the act, but that, if any secured creditor refuses to consent to such sale, the court shall stay all proceedings for a period of five years, during which time the farmer may retain possession of all or any part of his property, provided he pays a reasonable annual rental therefor. At any time within five years the farmer may obtain full possession and title to his property by paying into court either its original appraised value, or, in the case of mortgaged real estate, a reappraised price at the option of the lien-holder, and may apply for his discharge in bankruptcy. The provisions of the act apply, however, only to debts existing on Jttne 28, 1934.
The legislation in respect to its validity under the Federal Constitution is attacked on two main grounds. It is asserted (1) that section 75 as amended i.s not a law on the subject of 'bankruptcies and does not deal with any subject over which power is delegated to Congress, and so is in contravention of the Tenth Amendment to the Constitution of the United States; and (2) that it deprives creditors of their property without due process of law, and is therefore in contravention of the Fifth Amendment to the Constitution.
The power to legislate with respect to bankruptcies is conferred upon the Congress by the fourth clause of section 8 of article 1 of the Constitution, whereby there is vested in it the power “ * * * to establish * * * uniform laws on the subject of bankruptcies throughout the United States.” This power is conferred by express grant, and is, so far as the granting clause is concerned, without qualification or limitation. “The power of Congress to establish uniform laws on the subject of bankruptcies throughout the United States is unrestricted and paramount.” International Shoe Co. v. Pinkus, 278 U. S. 261, 265, 49 S. Ct. 108, 110, 73 L. Ed. 318.
On the first ground it is said that a law is not one on the subject of bankruptcies which does not provide for the speedy distribution of an insolvent debtor’s assets among his creditors. The contention is that the attacked legislation fails to meet this test in providing that the debtor may at his option retain his property, that his debts may be reduced to the fair and reasonable value of his property, not necessarily the market value, and that he shall have a five-year moratorium on the payment of this reduced amount.
Whatever may have been the primary purpose of bankruptcy laws, their historical development and the concept of an earlier day, illustrated by the provisions of English bankruptcy statutes and colonial insolvency laws, it is now established that the subject of bankruptcies includes, not only the ratable distribution of the debtor’s property, but the discharge of the bankrupt from his obligations. No commentary upon the„ connotation of the constitutional phrase has been so often quoted as that of Mr. Justice Catron in the case of Matter of Klein, reported in the note to Nelson v. Carland, 1 How. 265, 277, 11 L. Ed. 126: “I hold, it extends to all cases where the law causes to be distributed, the property of the debtor among his creditors : this is its least limit. Its greatest, is a discharge of the debtor from his contracts. And all intermediate legislation, affecting substance and form, but tending to further the great end of the subject — distribution and discharge — are in the competency and discretion of Congress.
“With the policy of a law, letting in all classes, others as well as traders; and permitting the bankrupt to come in voluntarily, and be discharged without the consent of his creditors, the courts have no concern; it belongs to the’ lawmakers.”
To this conjment the Supreme Court gave approval in Hanover National Bank v. Moyses, 186 U. S. 181, at page 186, 22 S. Ct. 857, 46 L. Ed. 1113. Whether the limits drawn by Mr. Justice Catron mark the ultimate of the modern concept of bankruptcy it is not necessary to decide, for they are sufficient for present purposes. It has been said that distribution of property is the principal object to be attained, and that the discharge of the debtor is merely incidental, U. S. v. Fox, 95 U. S. 670, 24 L. Ed. 538. This but illustrates the historical development of bankruptcy legislation. Judge Taft, speaking for this court in Leidigh Carriage Co. v. Stengel, 95 F. 637, 647, enumerates the purposes of bankruptcy acts in the order of their chronological development rather than in the order of their present importance when he declares that the third purpose of a Bankruptcy Act is “to relieve debtors from the burden of debts which, through business misfortunes and otherwise they have incurred, and which they are unable to pay.”
One of the tests applied to state insolvency laws to determine whether they invade the field conveyed to and occupied by the Congress is to ascertain whether they contain provisions for the discharge of the insolvent debtor from all or part of his debts. If they do, the statute is one of bankruptcy. Pobreslo v. Joseph M. Boyd Co., 287 U. S. 518, 53 S. Ct. 262, 77 L. Ed. 469; Johnson v. Star, 287 U. S. 527, 53 S. Ct. 265, 77 L. Ed. 473; International Shoe Co. v. Pinkus, supra. While this may not be the sole test, it is undoubtedly an important one. See “What is a Bankruptcy Act,” by Prof. Max Radin, vol. 20, American Bar Association Journal, 792.
It is an undoubtedly desirable concomitant of bankruptcy legislation that distribution of the debtor’s assets be made as speedily as is consistent with the attainment of the principal objectives of such laws, but that prompt distribution is a necessary prerequisite to the exercise of the granted power we doubt, and no cited case so holds. Observations on the manifest purpose of specific statutes are not to be interpreted as limitations upon a constitutional power, nor is its exercise to be based upon a standard so elastic as to shift with varying judgments based upon differences of time and circumstance. Even so it is doubtful whether the courts will oppose their judgment as to what constitutes speedy distribution to that of the Congress, except as the legislative standard may be so grossly arbitrary and unreasonable as to offend against the due process clause of the Fifth Amendment, to be hereinafter discussed.
The challenged statute provides for ratable distribution of the bankrupt’s assets among his creditors. It provides for his discharge. That it also in response to a manifest public purpose opens the door of opportunity to his ultimate rehabilitation is not of itself destructive of the character of the legislation as within the constitutional grant of power. The limitation of its assailed provisions to a single class does not invalidate it if the classification be reasonable, for the uniformity required by the Constitution is geographical and not personal. Hanover National Bank v. Moyses, supra.
Compositions have generally been regarded as in some respects outside of bankruptcy proceedings, but nevertheless as reasonably auxiliary thereto. Provisions in bankruptcy statutes for compositions have never been held to invalidate them, though the creditor by reason thereof receives but his pro rata share of the fair value of the bankrupt’s assets, while the debtor retains possession and title to his property. Of course, with respect to consenting creditors, it is a matter of agreement, In re Lane (D. C.) 125 F. 772, 773; Cumberland Glass Mfg. Co. v. DeWitt, 237 U. S. 447, 452, 35 S. Ct. 636, 59 L. Ed. 1042, yet it is coercion as to nonassenting creditors, however, it may be rationalized by considering creditors as a class with the will of the majority enforced upon the minority. Nor has the provision in bankruptcy acts permitting trustees to sell mortgaged property free and clear of lien been considered destructive of their validity as acts upon the subject of bankruptcy. “To transfer the lien from the property to the proceeds of its sale is the exercise of a lesser power [than sale]; and legislation conferring it is obviously constitutional.” Van Huffel v. Harkelrode, 284 U. S. 225, 228, 52 S. Ct. 115, 116, 76 L. Ed. 256, 78 A. L. R. 453.
It must be remembered that constitutional power is not necessarily confined within those limits within which the Congress has hitherto seen fit to exercise it. The novelty of a provision is no demonstration of its invalidity. The grant to Congress of the power to establish bankruptcy laws involves the power to impair the obligation of contracts — this the States are by the Fourteenth Amendment forbidden to do. Hanover National Bank v. Moyses, supra. No case has been cited which limits this power to contracts which are unsecured, and none has been found. On the contrary, it has frequently been held that private contracts may not impose a restriction upon the exercise of a constitutional power, Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 485, 31 S. Ct. 265, 55 L. Ed. 297, 34 L. R. A. (N. S.) 671; Monongahela Bridge Co. v. U. S., 216 U. S. 177, 193, 30 S. Ct. 356, 54 L. Ed. 435; Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211, 229, 20 S. Ct. 96, 44 L. Ed. 136, and preferences valid under state law have been destroyed by the exercise of federal power under the bankruptcy clause. The subject of bankruptcies comprehends every phase of the relations between an insolvent or nonpaying or fraudulent debtor and his creditors, extending to his or their relief. In re Reiman, 20 Fed. Cas. 496, No. 11,673 (D. C. N. Y.), affirmed Fed. Cas. No. 11,675 (C. C. N. Y.).
We come then to the contention that the assailed statute offends against the due process clause of the Fifth Amendment. Conceding that the due process clause limits the power or the manner of its exercise under the bankruptcy clause, it nevertheless does not vitiate it. The Constitution is not self-destructive — “the powers which it confers on the one hand it does not immediately take away on the other.” Billings v. U. S., 232 U. S. 261, 282, 34 S. Ct. 421, 424, 58 L. Ed. 596; McCray v. U. S., 195 U. S. 27, 24 S. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561. Perhaps all that is or can be said from the point of view of the appellant is expressed in Hanover National Bank v. Moyses, supra: “Congress may prescribe any regulations concerning discharge in bankruptcy that arc not so grossly unreasonable as to be incompatible with fundamental law,” and this is the test that we apply to the contentions upon which the validity of the statute is attacked.
While the Congress does not by reason of a national emergency draw unto itself under the bankruptcy clause powers not previously possessed, since “emergency does not create power,” yet the existence of an emergency is not to be ignored when validity is to be determined by the reasonableness of the extent to which, and the means by which, constitutional power is exercised, assuming limitations upon such power exerted by the due process clause. That the assailed legislation was conceived in emergency and addressed to the legitimate end of relieving widespread national distress is implicit in the provisions limiting the operation of paragraph 7 of section 75 (s) of the act, 11 US CA § 203 (s) (7), to debts existing June 28, 1934, providing that it shall expire in 1938, and by the declaration of policy in substantially contemporaneous amendments to the Bankruptcy Act. That the Frazier-Lemke Act does not itself contain an express declaration of a policy based upon the existence óf an emergency is unimportant. A declaration by the Legislature as to the existence of an emergency, while entitled to great weight, is not conclusive. Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165. It must follow that the absence of such formal declaration, if the purpose and policy of the act be otherwise disclosed, is equally inconclusive, and the courts are not required to close their eyes to that which everybody knows exists.
In considering whether the regulations concerning discharge are so grossly unreasonable as to be incompatible with fundamental law, we apply, therefore, a criterion which itself is not one of unyielding rigidity or narrow conception. “There has been a growing appreciation,” said the Supreme Court in Home Building & Loan Ass’n v. Blaisdell, 290 U. S. 398, 442, 54 S. Ct. 231, 241, 78 L. Ed. 413, 88 A. L. R. 1481, “of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare.” As a leading text-writer has put it: “The concept of the balance of convenience between private rights and public welfare runs throughout the entire scope of due process.” Mott, Due Process of Law (1926), 597. It follows, if these observations are sound, that the exercise of constitutional power in the public interest is not to be limited by considerations of form rather than of substance, and that the fair intent of the constitutional limitation in the Fifth Amendment no more precludes the Congress from meeting the public need because of a pressing public disaster than does that in the Fourteenth Amendment constrain the states in similar situations so long as the relief afforded has reasonable relation to the legitimate end to which the legislation is directed. W. B. Worthen Co. v. Thomas, 292 U. S. 426, 433, 54 S. Ct. 816, 78 L. Ed. 1344, 93 A. L. R. 173. The public welfare sought to be conserved by the assailed legislation not only transcends the interest of the class to be affected, but is rooted in the traditional policy of the United States to prevent the development of a great class of dependent tenant farmers comparable to the peasantry of European states. This policy was early reflected in the disposition of the public domain, the homestead laws, and the limitations written into ,the railroad land grants restricting sales in quantity and price and to actual settlers. Oregon & California R. Co. v. U. S., 238 U. S. 393, 35 S. Ct. 908, 59 L. Ed. 1360. This is not to say that substantial private rights must yield to public policy in the face of constitutional limitation, but is indicated as an aid to determining whether constitutional power has been arbitrarily or unreasonably exercised or the balance between individual int crests and the public welfare destroyed.
We pass without consideration the arguments advanced to show that the law is unreasonable or arbitrary with respect to the rights of sureties or unsecured creditors. The appellant is not a surety, nor does the record disclose that its debt is secured otherwise than by mortgage. Neither is it an unsecured creditor. Having offered to pay to the trustee for the mortgaged property an amount equivalent to the total of the mortgage debt and to step out of the bankruptcy proceedings with its mortgages fully discharged, it may become an unsecured creditor if at all only by the failure of its assault upon the statute, and then to the extent of the deficiency that may result after purchase by the bankrupt at appraised value. It is settled that the constitutionality of a statute may be considered only when the justification for some direct injury suffered or threatened presenting a justiciable issue is made to rest upon the enforcement of the act. See City of Allegan v. Consumers’ Power Co., 71 F.(2d) 477, 481 (C. C. A. 6), and authorities there cited. The record presents no issue as between the bankrupt and unsecured creditors.
Complaint is made, however, that the statute prevents the appellant from enforcing its mortgages for an arbitrary period of five years, and this without relation to the continuance of an emergency; that the rental terms are unreasonable; that no provision is made for taxes and insurance, or for the prevention of waste; that the interest on the mortgage debt is wiped out; that fixing the value of the debtor’s property at its fair and reasonable value, not necessarily its market value, is arbitrary, unreasonable, and capricious; that all risk of decline in value is borne by the mortgagee; and, generally, that part of its debt is confiscated for the benefit of the mortgagor.
As to the first)’ it may be sufficient to say that any forecast as to the extent and, duration of the emergency must necessarily be uncertain, and we are unable to say until “experience is available to correct uncertain prophesy” that the judgment of the Congress after hearing and deliberation is wrong. But the appellant gives no challenge to the present existence of the emergency, and manifestly can give none. We are not obliged to speculate as to validity of the statute at another time and under other circumstances. “A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed,” Chastleton Corp. v. Sinclair, 264 U. S. 543, 547, 548, 44 S. Ct. 405, 406, 68 L. Ed. 841, and “it is always open to judicial inquiry whether the exigency still exists upon which •the continued operation of the law depends,” Home Bldg. & Loan Ass’n v. Blaisdell, supra.
The principal inquiry, however, that suggests itself in relation to the appellant’s grievance, and this in respect to all of the specifications of its complaint, must concern itself with consideration of what it is in fact deprived through the operation of the challenged law. It is true that the appellant will not be able to collect the face value of its mortgages, nor the accrued interest thereon. But this is a loss it has already sustained, not through the operation of the statute, but through the default, insolvency, and bankruptcy of its debtor. But for the bankruptcy, it would still have its right to foreclose and to bid in the property. It is by the measure of that right that the reasonableness of section 75 must be judged. The appraisers have declared, and the court has found, that the fair value of the mortgaged property is $4,445. The fairness of the appraisal is not attacked. That the appellant offered to buy the property from the trustee for an amount equal to the mortgage debt is of course beside the point. Such offer can have no possible bearing upon the fair value of the property. It is this value that forms the base for the price the bankrupt is to pay upon the exercise of his option. True, the mortgagee, upon bidding in the property under foreclosure, has the expectation that by holding the property for a time values may be restored, and it may recoup part or all of its loss. The statute does not take from him this opportunity. It provides for a reappraisal at the end of five years — the option period — upon the mortgagee’s request, and the debtor must pay the reappraised price or the original appraised value at the mortgagee’s option. If in composition proceedings nonassenting creditors may be compelled, without valid constitutional objection, to accept in discharge of their claims their pro rata share of the fair value of the bankrupt’s assets— if under the doctrine of Van Huffel v. Harkelrode, supra, it is “obviously constitutional” to transfer the creditor’s lien from the bankrupt’s property to the proceeds of its sale — we can see no constitutional bar to the substitution for the value of the appellant’s right to foreclose the fair value of the mortgaged property.
But the appellant complains that the provisions for appointment of appraisers is arbitrary and unreasonable, and that the appraisal of the security at its “fair and reasonable value, not necessarily its market value,” somehow offends against due process. It has never been thought that, in the taking of private property for public use under the power of eminent domain, an award made by a jury or commissioners under the supervision of a court violates the due process clause or results in taking private property without just compensation. The appraisals are by paragraph (1) of section 75 (s) of the act, 11 USCA § 203 (s) (1), subject to the right of exceptions, objections, and appeal, in accordance with the act. This obviously means the Bankruptcy Act of which the Frazier-Lemke Act has become a component part. If there is any doubt about this, construction must under familiar principles of statutory interpretation be arrived at to the end that validity rather than invalidity results. An appraisal at “fair and reasonable value, not necessarily market val-tie,” must necessarily mean that market value is the minimum value to be found beyond which other circumstances may be considered to arrive at “fair value.” It is inconceivable that an appraisal aiming at fair value will ever be lower than market value, or, if so, would stand the test of judicial review.
When the appellant complains of its loss of interest during the option period, or the insufficiency of the rental to pay taxes, insurance, and repairs, it still speaks in the terms of the mortgage covenants rather than with an evaluation of its remedies for broken contracts, and is tilting at economic distress rather than at the reasonableness of the challenged statute. The foreclosure that is stayed would have brought it no interest, and reasonable rental value has always been the compensatory equivalent for deprivation of the use of property in the eyes of the law. Nor is there substance to the grievance that the property will be seized for taxes and deteriorate through waste. Rentals are to he paid to the bankruptcy trustee, who is still under the supervision of the referee and the court. There is no warrant for the assumption that the trustee may or will be permitted to be less diligent with respect to his duties than with bankrupt estates generally. Moreover, the property is by subsection (b) of section 75 (11 USCA § 203 (b) placed under the supervision of the conciliation commissioner, and the rights of the appellant to invoke the protection of the bankruptcy court as a court of equity are not less under the assailed statute than are those of mortgagees or lessors generally.
Finally, the grounds of complaint are in many respects similar to those upon which the constitutionality of section 77 of the Bankruptcy Act, 11 USCA § 205 (providing for corporate reorganizations) has been assailed. While we express no opinion upon the validity of that section, the constitutionality of which will presently be passed upon by the Supreme Court, it is important to note that, so far as its provisions are similar to those here considered, they have not generally been considered incompatible with validity. In re Chicago, R. I. & P. R. Co., 72 F.(2d) 443 (C. C. A. 7). Compare In re Landquist et al., 70 F.(2d) 929 (C. C. A. 7).
The decree below is affirmed.
See vol. 21, American Bar Ass’n Journal, 49, 50.
See, also, Corwin, No Doctrine of Due Process of Law Before the Civil War, 24 Har. L. Rev. 306, 400; Hough, Due Process of Law Today, 32 Har. L. Rev. 218.
Due process does not require a. jury trial if one would be inappropriate. Ex parte Wall, 107 U. S. 265, 289, 2 S. Ct 569, 27 L. Ed. 552; Maxwell v. Dow, 176 U. S. 581, 20 S. Ct. 448, 494, 44 L. Ed. 597.
See, also, vol. 21 American Bar Ass’n Journal, 47; 12 N. Y. Univ. Law Quarterly Rev. 196. 44 Yale Law Journal 197 (December, 1934); 32 Mich. L. Rev. 221. Also as to § 75, 48 Harv. L. Rev. 332 and 29 Ill. Law Rev. 645.
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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sc_caseoriginstate
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17
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
RIVERA v. ILLINOIS
No. 07-9995.
Argued February 23, 2009
Decided March 31, 2009
James K. Leven argued the cause for petitioner. With him on the briefs were Sarah O'Rourke Schrwp, Robert N. Hochman, and Jeffrey T Green.
Michael A. Scodro, Solicitor General of Illinois, argued the cause for respondent. With him on the brief were Lisa Madigan, Attorney General, Jane Elinor Notz, Deputy Solicitor General, Michael M. Glick and Karl R. Triebel, Assistant Attorneys General, Alan J. Spellberg, and Judy L. DeAngelis.
Matthew D. Roberts argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Kneedler, Acting Assistant Attorney General Glavin, Deputy Solicitor General Dreeben, and Deborah Watson
Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Bill McCollum, Attorney General of Florida, Scott D. Makar, Solicitor General, and Courtney Brewer and Craig D. Feiser, Deputy Solicitors General, by Richard S. Gebelein, Chief Deputy Attorney General of Delaware, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, John W. Suthers of Colorado, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Gregory F. Zoeller of Indiana, Tom Miller of Iowa, Steve Six of Kansas, Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Chris Koster of Mssouri, Steve Bullock of Montana, Kelly A. Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary K. King of New Mexico, Roy Cooper of North Carolina, Richard Cordray of Ohio, W. A. Drew Edmondson of Oklahoma, John R. Kroger of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William Sorrell of Vermont, Robert M. McKenna of Washington, and J. B. Van Hollen of Wisconsin; for Wayne County, Michigan, by Kym L. Worthy and Timothy A Baughman; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the National District Attorneys Association by Linda T. Coberly and Gene C. Schaerr.
Abigail K. Hemani, Kevin P. Martin, and Barbara Bergman filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.
Justice Ginsburg
delivered the opinion of the Court.
This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?
Following a jury trial in an Illinois state court, defendant-petitioner Michael Rivera was convicted of first-degree murder and sentenced to a prison term of 85 years. On appeal, Rivera challenged the trial court’s rejection of his peremptory challenge to venire member Deloris Gomez. Gomez sat on Rivera’s jury and indeed served as the jury’s foreperson. It is conceded that there was no basis to challenge Gomez for cause. She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him. The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court.
The right to exercise peremptory challenges in state court is determined by state law. This Court has “long recognized” that “peremptory challenges are not of federal constitutional dimension.” United States v. Martinez-Salazar, 528 U. S. 304, 311 (2000). States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.” Georgia v. McCollum, 505 U. S. 42, 57 (1992). Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. Accordingly, we have no cause to disturb the Illinois Supreme Court’s determination that, in the circumstances Rivera’s case presents, the trial court’s error did not warrant reversal of his conviction.
I
Rivera was charged with first-degree murder in the Circuit Court of Cook County, Illinois. The State alleged that Rivera, who is Hispanic, shot and killed Marcus Lee, a 16-year-old African-American, after mistaking Lee for a member of a rival gang.
During jury selection, Rivera’s counsel questioned prospective juror Deloris Gomez, a business office supervisor at Cook County Hospital’s outpatient orthopedic clinic. App. 32-33. Gomez stated that she sometimes interacted with patients during the check-in process and acknowledged that Cook County Hospital treats many gunshot victims. She maintained, however, that her work experience would not affect her ability to be impartial. After questioning Gomez, Rivera’s counsel sought to use a peremptory challenge to excuse her. Id., at 33. At that point in the jury’s selection, Rivera had already used three peremptory challenges. Two of the three were exercised against women; one of the two women thus eliminated was African-American. Illinois law affords each side seven peremptory challenges. See Ill. Sup. Ct. Rule 434(d) (West 2006).
Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez. App. 34-36. Under Batson v. Kentucky, 476 U. S. 79 (1986), and later decisions building upon Batson, parties are constitutionally prohibited from exercising peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex. Without specifying the type of discrimination he suspected or the reasons for his concern, the judge directed Rivera’s counsel to state his reasons for excusing Gomez. Counsel responded, first, that Gomez saw victims of violent crime on a daily basis. Counsel next added that he was “pulled in two different ways” because Gomez had “some kind of Hispanic connection given her name.” App. 34. At that point, the judge interjected that Gomez “appears to be an African American”— the second “African American female” the defense had struck. Id., at 34-35. Dissatisfied with counsel’s proffered reasons, the judge denied the challenge to Gomez, but agreed to allow counsel to question Gomez further.
After asking Gomez additional questions about her work at the hospital, Rivera’s counsel renewed his challenge. Counsel observed, outside the jury’s presence, that most of the jurors already seated were women. Counsel said he hoped to “get some impact from possibly other men in the ease.” Id., at 39. The court reaffirmed its earlier ruling, and Gomez was seated on the jury.
Rivera’s case proceeded to trial. The jury, with Gomez as its foreperson, found Rivera guilty of first-degree murder. A divided panel of the Appellate Court of Illinois rejected Rivera’s challenge to the trial judge’s Batson ruling and affirmed his conviction. 348 Ill. App. 3d 168, 810 N. E. 2d 129 (2004).
The Supreme Court of Illinois accepted Rivera’s petition for leave to appeal and remanded for further proceedings. 221 Ill. 2d 481, 852 N. E. 2d 771 (2006). A trial judge, the court held, may raise a Batson issue sua sponte only when there is a prima facie case of discrimination. Concluding that the record was insufficient to evaluate the existence of a prima facie case, the court instructed the trial judge to articulate the bases for his Batson ruling and, in particular, to clarify whether the alleged discrimination was on the basis of race, sex, or both. 221 Ill. 2d, at 515-516, 852 N. E. 2d, at 791.
On remand, the trial judge stated that prima facie evidence of sex discrimination — namely, counsel’s two prior challenges to women and “the nature of [counsel’s] questions” — had prompted him to raise the Batson issue. App. 136. Counsel’s stated reasons for challenging Gomez, the judge reported, convinced him that “there had been a purposeful discrimination against Mrs. Gomez because of her gender.” Id., at 137.
The case then returned to the Illinois Supreme Court. Although that court disagreed with the trial judge’s assessment, it affirmed Rivera’s conviction. 227 Ill. 2d 1, 879 N. E. 2d 876 (2007). The Illinois High Court concluded “that the record fails to support a prima facie case of discrimination of any kind.” Id., at 15, 879 N. E. 2d, at 884. Accordingly, the court determined, the trial judge erred, first in demanding an explanation from Rivera’s counsel, and next, in denying Rivera’s peremptory challenge of Gomez. Ibid.
Even so, the Illinois Supreme Court rejected Rivera’s ultimate argument that the improper seating of Gomez ranked as “reversible error without a showing of prejudice.” Id., at 16, 879 N. E. 2d, at 885 (quoting Swain v. Alabama, 380 U. S. 202, 219 (1965)). Citing this Court’s guiding decisions, the Illinois court observed that “the Constitution does not confer a right to peremptory challenges.” 227 Ill. 2d, at 17, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91). Although “peremptory challenges are ‘one means of assuring the selection of a qualified and unbiased jury,’” the court explained, they are not “indispensable to a fair trial.” 227 Ill. 2d, at 16, 879 N. E. 2d, at 885 (quoting Batson, 476 U. S., at 91).
Accordingly, the court held, the denial of Rivera’s peremptory challenge did not qualify as a structural error requiring automatic reversal. See 227 Ill. 2d, at 19-20, 879 N. E. 2d, at 887 (citing Washington v. Recuenco, 548 U. S. 212, 218-219 (2006)). The court saw no indication that Rivera had been “tried before a biased jury, or even one biased juror.” 227 Ill. 2d, at 20, 879 N. E. 2d, at 887. In that regard, the court stressed, Rivera did “not suggest that Gomez was subject to excusal for cause.” Ibid.
Relying on both federal and state precedents, the court proceeded to consider whether it was “clear beyond a reasonable doubt that a rational jury would have found [Rivera] guilty absent the error.” Id., at 21, 879 N. E. 2d, at 887 (quoting Neder v. United States, 527 U. S. 1, 18 (1999)). After reviewing the trial record, the court concluded that Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.” 227 Ill. 2d, at 26, 879 N. E. 2d, at 890.
Having held the error harmless beyond a reasonable doubt, the court added that it “need not decide whether the erroneous denial of a peremptory challenge is an error of constitutional dimension in these circumstances.” Id., at 27, 879 N. E. 2d, at 891. This comment, it appears, related to Rivera’s arguments that, even absent a freestanding constitutional entitlement to peremptory challenges, the inclusion of Gomez on his jury violated his Fourteenth Amendment right to due process of law.
We granted certiorari, 554 U. S. 945 (2008), to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant’s conviction as a matter of federal law. Compare Angus v. State, 695 N. W. 2d 109, 118 (Minn. 2005) (applying automatic reversal rule); State v. Vreen, 143 Wash. 2d 923, 927-932, 26 P. 3d 236, 238-240 (2001) (same), with People v. Bell, 473 Mich. 275, 292-299, 702 N. W. 2d 128, 138-141 (2005) (rejecting automatic reversal rule and looking to state law to determine the consequences of an erroneous denial of a peremptory challenge); 227 Ill. 2d, at 15-27, 879 N. E. 2d, at 884-891 (case below). We now affirm the judgment of the Supreme Court of Illinois.
II
The Due Process Clause of the Fourteenth Amendment, Rivera maintains, requires reversal whenever a criminal defendant’s peremptory challenge is erroneously denied. Rivera recalls the ancient lineage of the peremptory challenge and observes that the challenge has long been lauded as a means to guard against latent bias and to secure “the constitutional end of an impartial jury and a fair trial.” McCollum, 505 U. S., at 57. When a trial court fails to dismiss a lawfully challenged juror, Rivera asserts, it commits structural error: The jury becomes an illegally constituted tribunal, and any verdict it renders is per se invalid. According to Rivera, this holds true even if the Constitution does not itself mandate peremptory challenges, because criminal defendants have a constitutionally protected liberty interest in their state-provided peremptory challenge rights. Cf. Evitts v. Lucey, 469 U. S. 387, 393 (1985) (although “the Constitution does not require States to grant appeals as of right to criminal defendants,” States that provide such appeals “must comport with the demands of the Due Process and Equal Protection Clauses”).
The improper seating of a juror, Rivera insists, is not amenable to harmless-error analysis because it is impossible to ascertain how a properly constituted jury — here, one without juror Gomez — would have decided his case. Thus, he urges, whatever the constitutional status of peremptory challenges, automatic reversal must be the rule as a matter of federal law.
Rivera’s arguments do not withstand scrutiny. If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.
As Rivera acknowledges, Brief for Petitioner 38, this Court has consistently held that there is no freestanding constitutional right to peremptory challenges. See, e. g., Martinez-Salazar, 528 U. S., at 311. We have characterized peremptory challenges as “a creature of statute,” Ross v. Oklahoma, 487 U. S. 81, 89 (1988), and have made clear that a State may decline to offer them at all, McCollum, 505 U. S., at 57. See also Holland v. Illinois, 493 U. S. 474, 482 (1990) (dismissing the notion “that the requirement of an ‘impartial jury’ impliedly compels peremptory challenges”). When States provide peremptory challenges (as all do in some form), they confer a benefit “beyond the minimum requirements of fair [jury] selection,” Frazier v. United States, 335 U. S. 497, 506 (1948), and thus retain discretion to design and implement their own systems, Ross, 487 U. S., at 89.
Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. “[A] mere error of state law,” we have noted, “is not a denial of due process.” Engle v. Isaac, 456 U. S. 107, 121, n. 21 (1982) (internal quotation marks omitted). See also Estelle v. McGuire, 502 U. S. 62, 67, 72-73 (1991). The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but “the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U. S. 554, 563-564 (1967).
The trial judge’s refusal to excuse juror Gomez did not deprive Rivera of his constitutional right to a fair trial before an impartial jury. Our decision in Ross is instructive. Ross, a criminal defendant in Oklahoma, used a peremptory challenge to rectify the trial court’s erroneous denial of a for-cause challenge, leaving him with one fewer peremptory challenge to use at his discretion. The trial court’s error, we acknowledged, “may have resulted in a jury panel different from that which would otherwise have decided [Ross’s] case.” 487 U. S., at 87. But because no member of the jury as finally composed was removable for cause, we found no violation of Ross’s Sixth Amendment right to an impartial jury or his Fourteenth Amendment right to due process. Id., at 86-91.
We encountered a similar situation in Martinez-Salazar and reached the same conclusion. Martinez-Salazar, who was tried in federal court, was entitled to exercise peremptory challenges pursuant to Federal Rule of Criminal Procedure 24(b). His decision to use one of his peremptory challenges to cure the trial court’s erroneous denial of a for-cause challenge, we held, did not impair his rights under that Rule. “[A] principal reason for peremptories,” we explained, is “to help secure the constitutional guarantee of trial by an impartial jury.” 528 U. S., at 316. Having “received precisely what federal law provided,” and having been tried “by a jury on which no biased juror sat,” Martinez-Salazar could not “tenably assert any violation of his... right to due process.” Id., at 307, 317.
Rivera’s efforts to distinguish Ross and Martinez-Salazar are unavailing. First, Rivera observes, the defendants in Ross and Martinez-Salazar did not challenge any of the jurors who were in fact seated. In contrast, Rivera attempted to exercise a peremptory challenge against a specific person — Gomez—whom he perceived to be unfavorable to his cause. But, as Rivera recognizes, neither Gomez nor any other member of his jury was removable for cause. See Tr. of Oral Arg. 9. Thus, like the juries in Ross and Martinez-Salazar, Rivera’s jury was impartial for Sixth Amendment purposes. Rivera suggests that due process concerns persist because Gomez knew he did not want her on the panel. Gomez, however, was not privy to the in camera discussions concerning Rivera’s attempt to exercise a peremptory strike against her. See supra, at 153. We reject the notion that a juror is constitutionally disqualified whenever she is aware that a party has challenged her. Were the rule otherwise, a party could circumvent Batson by insisting in open court that a trial court dismiss a juror even though the party’s peremptory challenge was discriminatory. Or a party could obtain a juror’s dismissal simply by making in her presence a baseless for-cause challenge. Due process does not require such counterintuitive results.
Second, it is not constitutionally significant that the seating of Gomez over Rivera’s peremptory challenge was at odds with state law. The defendants in Ross and Martinez-Salazar, Rivera emphasizes, were not denied their peremptory challenge rights under applicable law — state law in Ross and the Federal Rules of Criminal Procedure in Martinez-Salazar. But as we have already explained, supra, at 157-159, errors of state law do not automatically become violations of due process. As in Ross and Martinez-Salazar, there is no suggestion here that the trial judge repeatedly or deliberately misapplied the law or acted in an arbitrary or irrational manner. Martinez-Salazar, 528 U. S., at 316; Ross, 487 U. S., at 91, n. 5. Rather, the trial judge’s conduct reflected a good-faith, if arguably overzealous, effort to enforce the antidiscrimination requirements of our Batson-related precedents. To hold that a one-time, good-faith misapplication of Batson violates due process would likely discourage trial courts and prosecutors from policing a criminal defendant’s discriminatory use of peremptory challenges. The Fourteenth Amendment does not compel such a tradeoff.
Rivera insists that, even without a constitutional violation, the deprivation of a state-provided peremptory challenge requires reversal as a matter of federal law. We disagree. Rivera relies in part on Swain, 380 U. S. 202, which suggested that “[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” Id., at 219. We disavowed this statement in Martinez-Salazar, observing, albeit in dicta, “that the oft-quoted language in Swain was not only unnecessary to the decision in that case . . . but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U. S., at 317, n. 4. As our recent decisions make clear, we typically designate an error as “structural,” therefore “requiring] automatic reversal,” only when “the error ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’” Recuenco, 548 U. S., at 218-219 (quoting Neder, 527 U. S., at 9). The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here, constitute an error of that character.
The automatic reversal precedents Rivera cites are inapposite. One set of cases involves constitutional errors concerning the qualification of the jury or judge. In Batson, for example, we held that the unlawful exclusion of jurors based on race requires reversal because it “violates a defendant’s right to equal protection,” “unconstitutionally discriminate[s] against the excluded juror,” and “undermine[s] public confidence in the fairness of our system of justice.” 476 U. S., at 86, 87. Similarly, dismissal of a juror in violation of Witherspoon v. Illinois, 391 U. S. 510 (1968), we have held, is constitutional error that requires vacation of a death sentence. See Gray v. Mississippi, 481 U. S. 648 (1987). See also Gomez v. United States, 490 U. S. 858, 876 (1989) (“Among those basic fair trial rights that can never be treated as harmless is a defendant’s right to an impartial adjudicator, be it judge or jury.” (internal quotation marks omitted)).
A second set of cases involves circumstances in which federal judges or tribunals lacked statutory authority to adjudicate the controversy. We have held the resulting judgment in such cases invalid as a matter of federal law. See, e. g., Nguyen v. United States, 539 U. S. 69 (2003); Wingo v. Wedding, 418 U. S. 461 (1974). Nothing in these decisions suggests that federal law renders state-court judgments void whenever there is a state-law defect in a tribunal’s composition. Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptory challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and. unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as harmless under state law.
In sum, Rivera received precisely what due process required: a fair trial before an impartial and properly instructed jury, which found him guilty of every element of the charged offense.
* * *
For the reasons stated, the judgment of the Supreme Court of Illinois is
Affirmed.
See Dept. of Justice, Bureau of Justice Statistics, State Court Organization 2004, pp. 228-232 (2006) (Table 41), http://www.ojp.usdoj.gov/bjs/pub/ pdf/sco04.pdf (as visited Mar. 27, 2009, and in Clerk of Court’s case file) (detailing peremptory challenge rules by State).
Under Witherspoon v. Illinois, 391 U. S. 510 (1968), “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” Id., at 522.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_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.
COMMISSIONER OF INTERNAL REVENUE v. CLEVELAND ADOLPH MAYER REALTY CORPORATION.
No. 10363.
Circuit Court of Appeals, Sixth Circuit.
April 14, 1947.
SIMONS, Circuit Judge, dissenting.
I. Henry Kutz, of Washington, D. C. (Sewall Key, J. Louis Monarch, and Helen Goodner, all of Washington, D. C., on the brief), for petitioner.
Irwin N. Loeser, of Cleveland, Ohio (Irwin N. Loeser and Daniel W. Loeser, both of Cleveland, Ohio, on the brief), for respondent.
Before HICKS, SIMONS, and MILLER, Circuit Judges.
HICKS, Circuit Judge.
Petitioner, Commissioner of Internal Revenue, seeks a review of the decision of the Tax Court that there are deficiencies in income 'tax due by the taxpayer, Cleveland Adolph Mayer Realty Corporation, the respondent, for the years 1940, 1941 and 1942, in the respective amounts of $677.63, $950.55 and $1021.19.
Upon its organization in 1938, the taxpayer acquired a building ‘which, conced-edly, had been constructed by its predecessor in 1915 at a cost of $131,565.96. Until December 21, 1939, the taxpayer and its predecessor had taken depreciation on the building' at- the rate of 3% annually upon a supposed cost of $165,000, excepting six months of the year 1915 and the full years of 1916, 1917 and 1921, when no depreciation was claimed and no deduction therefor allowed.
The 3% depreciation rate was figured on a thirty-three and a third year life for the building. As of January 1, 1940, the parties agreed that the allowance for depreciation should be based upon a fifty year life.
As indicated above, income taxes for the years 1940, 1941 and 1942 are here involved. Our question is: How to arrive .at an adjusted basis on December 31, 1939 for depreciating the remaining twenty-five years of the life of the building, in view of the three and a half years, when no depreciation was taken.
The Commissioner and the taxpayer deducted from the $131,565.96 cost the depreciation reserve which had been claimed for the years 1918-20 and for 1922-39, inclusive, at the rate of 3% on the supposed -$165,000 cost, but they failed to agree on the rate to be used in calculating the depreciation for the period for which none had been claimed or allowed. The taxpayer insisted that the calculation should be made at the rate of 2% upon the cost price of $131,565.96 since both parties agree that 'the building had a life of fifty years.
The Commissioner asserted that the 3% rate should be used, since depreciation is to be calculated on the facts known at the end of each year and since in the tax periods in question the building had a supposed life of thirty-three and a third years. If the 2% rate is used, the depreciation for the three and a half years (six months in 1915, all of 1916, 1917 and 1921) in which none was taken, would, on December 21, 1939, aggregate $9209.60 with a total recovered cost of $113,059.60. If the 3% rate is used, the aggregate would be $13,-814.43, with a total recovered cost of $117,-764.43. Under the taxpayer’s claim, unde-preciated cost on December 31, 1939, would be $18,406.36, and under the Commissioner’s insistence, $13,801.53. If the larger base is used the allowance for the tax years 1940, 1941 and 1942 would be larger and the tax less. The Commissioner, using the smaller base, determined deficiencies for 1940-1-2. The Tax Court, following its own decision in Mutual Fertilizer Co." v. Commissioner, 5 T.C. 1122, decided that the depreciation “allowable” for the years 1915, 1916, 1917 and 1921 should be computed at the revised rate of 2%; whereupon the Commissioner sought review. ■
The applicable statutes are Sec. 23(1) and Sec. 113(b) (1) (B) of the Internal Revenue Code, (26 U.S.C.A. Int.Rev.Code, §§ 23(1), 113(b) (1) (B). Sec. 23(1) provides in part:
“Sec. 23. In computing net income there shall be allowed as deductions:
* * H* * * *
“(J) Depreciation. - A reasonable allowance for the exhaustion, wear and tear of property used in the trade or business * * * ” ,
Sec. 113(b) (1) (B)-reads in part:
“(b) Adjusted basis. "The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall-be the basis determined under subsection (a), adjusted as hereinafter provided.
“(1) General Rule. Proper adjustment in respect of the property shall in all cases be made—
******
“(B) in respect of any period since February 28, 1913, for exhaustion, wear and tear, obsolescence, amortization, and depletion, to the extent allowed (but not less than the amount allowable) under this chapter or prior income tax laws. * * * ” (Italics ours.)
Treasury Regulations 103, Sec. 19.113(b) (1)-1 (and the same section in effect in T. R. Ill), provide in part:
“ * , * * A taxpayer is not permitted to take advantage in a later year of his prior failure to take any depreciation allowance. * * * The determination of the amount properly allowable shall, however, be made on the basis of facts reasonably known to exist at the end of such year or period. * * * ” (Italics ours.)
Treasury Regulations 103, Sec. 19.23(1)-5 providing “Method of computing depreciation allowance” (and the same section in éffect in T.R. Ill) provide in part:
“ * * * The reasonableness of any claim for depreciation shall be determined upon the conditions known to exist at the end of the period for which the return is made. * * *
"A taxpayer is not permitted wider the law to take advantage in later years of his prior failure to take. any depreciation allowance. * * * ” (Italics ours.)
The Commissioner insists that in utilizing the 2% rate, the Tax Court erroneously failed to apply the regulations. There is nothing in the Tax Court’s decision indicating that it considered the regulations at all.
In Mutual Fertilizer Co. v. Commissioner, supra, the majority opinion made'no reference to the regulations and that it considered them at all appears only from a statement in the dissenting opinion of Judge Disney, to-wit, “As I view this situation, the .majority opinion disregards the regulation without.saying that it is invalid; # $ * »
In that case the majority opinion simply stated:
“The case is one in which a twenty-year useful life period1 was mistakenly applied in 1934 and it now appears that the proper life span was at all times thirty-three years. In the circumstances we think it must be held that the depreciation ‘allowable’ for -the years in question should be computed upon the longer useful life period.”
The opinion concluded:
“However, under the circumstances here present, the depreciation allowable for the open years on the basis of the shorter useful life should, we think, give way to that allowable under a computation based upon the corrected life span.”
The question whether the decision of the Tax Court is in accordance with law when tested by the provisions of the statutes, and especially of the regulations, is clearly presented. Trust of Bingham v. Commissioner, 325 U.S. 365, 370, et seq., 65 S.Ct. 1232, 89 L.Ed. 1670; John Kelley Co. v. Commissioner, 326 U.S. 521, 66 S.Ct. 299; Dobson v. Commissioner, 320 U.S. 489, 64 S. Ct. 239, 88 L.Ed. 248.
The statute, Sec. 113(b). (1) (B), has been in effect since 1932. Sec. 19,113 (b) (1)-1 has been included in the regulations since 1934 and Sec. 19.23 (l)-5 since 1921, during which time the statutory sections have been repeatedly re-enacted without change.
In Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 46, 83 L.Ed. 52, it was said:
“Treasury regulations and interpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.”
Moreover, it affirmatively appears that in considering the 1932 amendment to Sec. 113(b) (1) (B), the Senate Finance Committee, S.Rep. 665, 72nd Congress, 1st Sess., p. 29, approved the regulations. Its report appears in part:
“Your committee has not thought it necessary to include any express provision against retroactive adjustments of depreciation on the part of the Treasury as the regulations of the Treasury seem adequate to protect the interests of the taxpayers in such cases. These regulations require the depreciation allowances to be made from year to year in accordance with the then known facts, and do not permit a retroactive change in these allowances by reason of the facts developed or ascertained after the years by .which such allowances are made.” (Italics ours.)
Since no claim for depreciation was made in 1915-16-17 and 1921, no depreciation was “allowed.” The question presented therefore is, what depreciation was “allowable?” The answer is found in Sec. 19.113(b) (1)-1, T.R. 103, to wit:
“The determination of the amount properly allowable * * * shall be made on the basis of facts reasonably known to exist at the end of such year or period.”
This language refers to conditions known or existing at the time and not those ascertained years later, and the Tax Court gave no reason for disregarding the regulation and permitting conditions ascertained years later to control the rate and hence the amount of allowable depreciation for those years.
The Circuit Court of Appeals, for the Fifth Circuit in reversing the decision of the Tax Court in Commissioner v. Mutual Fertilizer Co., supra, 159 F.2d 470, 472, said:
“The error of The Tax Court lies in its majority’s view that it ‘now appears’, years after the end of the periods for which ‘allowable’ amounts' must be determined, that 33 years is and was the foreseeable useful life of the plant assets. The crucial factor is not what ‘now appears’, hut what ‘then appeared’ to he the useful life of the plant; that is, what reasonably was known and ascertainable at the end of each of such periods as to the reasonably foreseeable useful life of the plant.” (Italics ours.)
See also Goss & DeLeeuw Mach. Co. v. United States, D.C., 53 F.Supp., 853.
Indeed, the Supreme Court in Virginian Hotel Corp. v. Helvering, 319 U.S. 523, 525, 63 S.Ct. 1260, 1261, 87 L.Ed. 1561, 152 A.L.R. 871, in a discussion preliminary to its consideration of the main question, makes it abundantly clear that the amount ■“allowable” for depreciation must be taken ■“each year.” We quote:
“ * * * The basis upon which depreciation is to be ‘allowed’ is the cost of the property with proper adjustments for depreciation ‘to the extent allowed (but not less than the amount allowable) under this Act or prior income tax laws.’ That provision makes it plain that the depreciation basis is reduced by the amount ‘allowable’ each year whether or not it is claimed. * * * Moreover the basis must be reduced by that amount even though no tax benefit results from the use of depreciation .as a deduction. Wear and tearr do not wait cm net income. Nor can depreciation be .accumulated and held for use in that year in which it will bring the taxpayer the most tax benefit. Congress has elected to make .the year the unit of taxation. * * * Thus the amount ‘allowable’ must he taken each year. * * * ” (Italics ours.)
See discussion in United States v. Ludey, 274 U.S. 295, 300, 301, 47 S.Ct. 608, 71 L. Ed. 1054; Kittredge v. Commissioner, 2 Cir., 88 F.2d 632; United States Industrial Alcohol Co. v. Helvering, 2 Cir., 137 F.2d 511, 517. And if depreciation is to be taken each year, it must perforce be taken upon the basis of the understanding of value, .existing at that time (at the end of the accounting period), and not, as has been said in the light of “hindsight.”
The decision of the Tax Court is reversed and the cause remanded for further proceedings not inconsistent herewith.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
SEAGRAVE CORP. v. MOUNT et al. SPAIN et al. v. MOUNT et al.
Nos. 11914, 11915.
United States Court of Appeals, Sixth Circuit.
April 23, 1954.
Walter M. Shohl, Cincinnati, Ohio (Allen I. Pretzman, Noel L. Greenlee, Columbus, Ohio, on the brief), for appellants.
George E. Netter, New York City, Robert S. Marx, Cincinnati, Ohio (Robert N. Gorman, Cincinnati, Ohio, Robert Dow Hamilton, Columbus, Ohio, on the brief), for appellees.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
MILLER, Circuit Judge.
Appellees, minority stockholders in The Seagrave Corporation, hereinafter called Seagrave, brought a stockholders’ derivative suit against Seagrave and its officers to enjoin them from carrying out a proposed transaction between Seagrave and Herbert A. Post, Incorporated, hereinafter called Post, which provided for the purchase by Seagrave from Post of all the common stock of The Fyr-Fyter Company, hereinafter called Fyr-Fyter, on the ground that it was unfair to Sea-grave and its stockholders and in violation of the fiduciary duty of the officers and dominant stockholders to Seagrave and all its stockholders. The District Judge held the plan to be unfair and illegal, and enjoined the defendants from consummating the transaction. Separate appeals by Seagrave and by its officers were consolidated and heard together.
The underlying facts, which are not in controversy, are as follows: Seagrave, a Michigan Corporation, has its principal place of business in Columbus, Ohio. Its principal product is motorized firefighting equipment. It has an authorized capital of 125,000 shares of common stock of the par value of $5 per share, of which there are issued and outstanding 122,700 shares. The ten plaintiffs own 800 shares.
The Fyr-Fyter Company, an Ohio corporation, is engaged in the manufacture of portable fire extinguishers and other items of fire-fighting equipment. Its capital consists of 40,000 shares of common stock of the par value of $5 per share, owned by Herbert A. Post, Incorporated, and 20,000 shares of 5% cumulative preferred stock of the par value of $30 per share, of which William McKinley Wetzel owns at least 9,485 shares, and Mr. Marlier, a friend and business associate of Wetzel, owns 10,000 shares. Wetzel is the owner of all the issued and outstanding stock of Post. Fyr-Fyter owns the stock of the Wooster Brass Company, which it operates as a division of its business.
Seagrave’s chief competitor is American-LaFrance Foamite Company, which not only manufactures motorized firefighting equipment, but also portable fire prevention equipment, such as is manufactured by Fyr-Fyter. Seagrave has no affiliation with any company manufacturing portable fire prevention equipment.
The proposed transaction now under attack would join Seagrdve with Fyr-Fyter and its subsidiary the Wooster Brass Company for the purpose of enabling Seagrave to better meet the competition of American-LaFrance. The plan provides for the purchase by Sea-grave from Post of all of the common stock of Fyr-Fyter, in consideration of the issuance and delivery to Post of 146,084 shares of Seagrave common stock, and for the purchase by Seagrave •from the holders thereof of not less than 95% of the 20,000 shares of 5% cumulative preferred stock of Fyr-Fyter of the par value of $30 per share, in consideration of the issuance and delivery to such preferred shareholders of Fyr-Fyter shares of 5% cumulative preferred stock of Seagrave, of the par value of $30 per share, on a share for share basis. This required that Sea-grave increase its authorized common stock to 268,784 shares and create a new issue of 20,000 of 5% cumulative preferred stock of the par value of $30 per share. The plan provided for an increase in the authorized common stock to 368,784 shares, thus authorizing 100,-000 shares of unissued common stock. A written agreement of date August 26, 1952 was entered into between Seagrave and Post containing the foregoing provisions.
As a part of the over-all plan, Wet-zel, who owns all of the outstanding stock of Post, entered into contracts with approximately thirty stockholders of Seagrave for the purchase of 35,000 shares of the Seagrave stock at a price of $20 per share. Of these 35,000 shares, Arthur A. Marcus and Charles B. Wilkes, two of the seven Seagrave directors, are selling 1700 shares and 15,700 shares respectively. This purchase is conditioned upon consummation of the contract between Seagrave and Post and its approval by a majority vote of all outstanding Seagrave stockholders, after deducting from the total outstanding shares the stock of those stockholders who were under contract to sell to Wet-zel. This contract provides that the selling stockholders deliver to Wetzel, on the closing date therein referred to, the written resignations of four directors of the Company.
Following approval of the plan by the Board of Directors of Seagrave, it was submitted to a special meeting of the stockholders of Seagrave on September 29, 1952, at which 97,168 shares voted in favor of the purchase, and 6,673 shares voted against the purchase. This action was filed shortly prior to the stockholders’ meeting, but by agreement the meeting was permitted to be held, but completion of the transaction was stayed pending the final ruling of the Court upon the merits.
The evidence showed that as of June 30, 1952, Seagrave had capital and surplus of $2,377,158.37, while Fyr-Fyter and its subsidiary had capital and surplus of $1,087,986.72. For the four and one-half years prior to June 30, 1952 Seagrave earned $1,661,681, while Fyr-Fyter and its subsidiary earned $842,-095. In the eleven and one-half years prior to June 30, 1952 Seagrave earned $2,160,804, while Fyr-Fyter and its subsidiary earned $2,810,396. The years 1943-1947 were poor years for Seagrave. Its net earnings in 1946 and 1947 dropped to $25,213 and $36,791 respectively from $130,053 in 1941 and $124,-609 in 1942. In 1948, they jumped to $322,567. On the other hand, Fyr-Fyter and its subsidiary had two of its best years in 1946 and 1947 with net earnings of $318,244 and $334,393 respectively. In 1948, its net earnings were $298,268. The book value of the shares of Sea-grave as of June 30, 1952 was $19.37 per share. Upon consummation of the plan it would be $10.29 per share. The high and low sales prices on the New York Stock Exchange on August 22, 1942 for Seagrave common stock was 15 and 14y2 respectively.
The evidence also showed that a group of investors, headed by Charles B. Wilkes, Arthur A. Brown, and Morton Globus, of New York City or environs, had over a period of time accumulated sufficient stock of Seagrave to constitute by the spring of 1951 a working majority for the election of directors and to enable them to accomplish the replacement of a majority of four of the seven board members with directors of their own choosing at the annual meeting in March 1951. This stockholder group, referred to as the Wilkes group, are represented on the board by Charles B. Wilkes, Robert B. Wilkes, Arthur A. Marcus and John J. McCarthy. The other three directors are H. B. Spain, President, J. Lester Stevenson, Vice-President, and Allen Pretzman, Counsel and Chairman of the Board, who constitute the active management. Their connection with the corporation long antedates that of the Wilkes group. Spain, Stevenson and Pretzman have been in disagreement with the dominant Wilkes group. The Wilkes group was insistent upon a dividend in excess of the current earnings which was strongly opposed by the management group. This, together with other differences, made an unhappy situation for these three to the extent that their resignations were probable if the Wilkes group continued to dominate the Board. Under the plan, the four members of the Wilkes group would resign as directors, Wetzel would name their successors, and Spain, Stevenson and Pretzman would continue with the Company, with Pretzman becoming local counsel and director instead of Counsel and Chairman of the Board.
The Proxy Statement, sent out in connection with the stockholders meeting, gave the details of the plan together with appropriate background and financial information about the two companies. It recited the purpose and advantages of the plan. It referred to the proposed purchase by Wetzel of 35,000 shares at $20 per share and contained the statement, “such price being approximately one-third higher than the current market on the New York Stock Exchange.” It stated the proposed change of directors effective upon the consummation of the plan, advising that it was the intention of the Board to elect as the four new directors Wetzel and three others to be nominated by Wetzel, who had “not yet been determined.” It stated that consummation of the plan would vest voting control in Wetzel, who “does not at present contemplate any substantial change in the operating management.” No reference was made to any existing differences among the present directors. It stated that the Board of Directors of Seagrave (Arthur A. Marcus opposing) had approved the plan. The reason for the negative vote of Marcus was not given.
The District Judge found that the conflict between the members of the Board of Directors was so bitter and intense that if it continued the logical consequences appeared to be either the resignation or discharge of Pretzman, Spain and Stevenson from their respective positions as Counsel, President and Vice-President of Seagrave; that Wetzel, who would gain control of Seagrave if the plan was consummated, had promised to continue to employ Pretzman, Spain and Stevenson in their respective positions with the Corporation; that the proxy statement did not inform the stockholders of the conflict among the directors or of the fact that Pretzman, Spain and Stevenson had definite reasons to believe that their continued employment by the Corporation would be more certain if the plan was consummated; that the members of the Wilkes group who would sell 35,000 shares of common stock to Wetzel under the plan would receive approximately $6 per share in excess of the current market value, or a total of more than $200,000 in excess of the current market value of said common stock; that the invested capital of Seagrave was several times greater than that of Fyr-Fyter and its subsidiary Wooster Brass; that in the last four and one-half years Seagrave earned for its common stockholders $1,661,681 while during the same period Fyr-Fyter and its subsidiary Wooster Brass earned $842,095; that each of the Directors had a substantial personal interest in the consummation of the proposed plan; that in the case of the four Directors representing the so-called Wilkes group the interest of such Directors and of the group which they represented was clearly in conflict with the interest of the minority stockholders; that these four directors did not act in the unprejudiced exercise of their judgment for the benefit of Seagrave and all its stockholders, but acted primarily in the special interest of the controlling group of stockholders; that Directors Pretzman, Spain and Stevenson, in considering and approving the proposed plan, did not act in the unprejudiced exercise of their judgment for the benefit of Seagrave and all its stockholders, but acted primarily because of their desire to continue in their present positions ; that the plan was inequitable, unfair and illegal; that the Directors in considering and approving the proposed plan did not act in good faith or with reasonable care, but on the contrary violated their fiduciary duties as directors; that the proxy statement was inadequate, incomplete, misleading, unfair and did not fairly inform the stockholders of all the material facts; and that the approval by the majority of the stockholders of the proposed plan, which was in violation of the principles of equity, was not binding upon the stockholders or the Corporation.
Appellees contend that these findings are supported by the evidence, are not clearly erroneous, and must be accepted on this review under Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A. Appellants contend that since substantially all of the testimony was submitted to the Court in written form with the District Judge not seeing or hearing the witnesses, the District Judge had no better opportunity of judging the credibility of the witnesses than does this Court, and that the findings of the District Judge are not accorded the finality which would otherwise attach under Rule 52(a). This appears to be the prevailing view throughout the Circuits. Letcher County v. De Foe, 6 Cir., 151 F.2d 987, 990; Orvis v. Higgins, 2 Cir., 180 F.2d 537, 539; Bowles v. Beatrice Creamery Co., 10 Cir., 146 F.2d 774, 780; Equitable Life Assur. Soc. v. Irelan, 9 Cir., 123 F.2d 462, 464; State Farm Mut. Automobile Ins. Co. v. Bonacci, 8 Cir., 111 F.2d 412, 415; Himmel Bros. Co. v. Serrick Corp., 7 Cir., 122 F.2d 740, 742. Accordingly, we do not accept the findings as controlling. The documentary and statistical evidence, including the details of the plan, are not in dispute, but we will make our own evaluation of the conclusions to be drawn from them on this review. Letcher County v. De Foe, supra.
Appellees successfully contended in the District Court, and renew the contention here, that the underlying provisions of the plan caused the proposed purchase to be unfair and equitable to the minority stockholders of Seagrave. They rely chiefly upon the material difference in the net assets of the two companies, the fact that the earnings of Sea-grave over the past four and one-half years were approximately double those of Fyr-Fyter and its subsidiary, and the decrease in book value of Seagrave stock from $19.37 per share to $10.29 a share upon consummation of the plan. Appellants urge upon us that the fairness of the plan involves numerous factors, including, in addition to the ones referred to, such intangible ones as good will, effect of existing patents, recent and prospective earning power, and the competitive situation in the industry. They point out that regardless of the difference in the net assets, the annual net profits of Fyr-Fyter have been more consistent than those of Seagrave, and over the period of the past eleven and one-half years, instead of the four and one-half considered by the District Judge, Fyr-Fyter’s net profits have exceeded those of Seagrave. They contend that the economic fairness of the plan is a matter of business judgment, in the exercise of which the action of the Board of Directors and the majority of the stockholders is controlling, and that majority stockholders are at liberty to dispose of their shares at any time and for any price to which they may agree without being liable to other stockholders.
As a general proposition appellants are correct in this contention. United Milk Products Corp. v. Lovell, 6 Cir., 75 F.2d 923, 927, certiorari denied 295 U.S. 751, 55 S.Ct. 831, 79 L.Ed. 1696; Roby v. Dunnett, 10 Cir., 88 F.2d 68, 69. However, there are recognized exceptions to the general rule, such as where fraud is involved in the actions of the dominant directors and stockholders, where controlling stockholders turn over their shares to purchasers who mismanage the corporation or loot the corporate assets, where non-controlling stockholders are induced to sell their shares by concealment of the fact that a premium is to be paid to the controlling stockholders, where controlling stockholders or directors make a secret profit from a transaction, or where directors are dealing directly with the corporation to their own personal advantage, known or unknown. Ashman v. Miller, 6 Cir., 101 F.2d 85, 90; Oil Shares v. Kahn, 3 Cir., 94 F.2d 751, reversed on other grounds, Oil Shares v. Commercial Trust Co., 304 U.S. 551, 58 S.Ct. 1059, 82 L.Ed. 1522; Kroese v. General Castings Corp., 3 Cir., 179 F.2d 760, 763, 15 A.L.R.2d 1117; Moulton v. Field, 7 Cir., 179 F. 673; In-suranshares Corp. of Delaware v. Northern Fiscal Corp., D.C., 35 F.Supp. 22.
A recognition of this general principle and the exceptions to it removes from the case a great deal of what has been argued to us by the parties on this appeal. The fairness of the plan to the stockholders of Seagrave is questionable, but its provisions are not so inequitable or so at variance with what sound business judgment would call for under existing business conditions, as to constitute actual fraud on the part of the directors. We find it unnecessary to discuss and compare the alleged inequities and the claimed advantages. It is a matter which addresses itself to the business judgment of the directors and those in control of the destinies of Seagrave. United Milk Products Corp. v. Lovell, supra, 75 F.2d at page 927.
We also agree with appellants’ contention that the case does not fall within any of the other classifications referred to above, such as where directors are dealing directly with the corporation for their own personal advantage, or are making a secret profit for themselves in a corporate transaction. The profit from the sale of their stock to Wetzel at $20 per share was fully disclosed by the Proxy Statement.
Appellees’ contention and the finding of the District Judge, that the Proxy Statement was incomplete, misleading, and did not fairly inform the stockholders of the material facts, are not, in our opinion, sustained by the evidence. The factual situation is explained in detail by the Proxy Statement, which contains a copy of the Plan and financial statements of the two companies giving the information hereinabove referred to. It appears to us to be a complete and fair statement of the Plan and the expected result of the merger. Appellees strongly stress its failure to refer to the existing differences between the two factions on the Board of Directors. As hereinafter pointed out, we think such dissention plays a part in the final ruling on this case. But it has little, if any, bearing on the intrinsic merits of the Plan, and is an intangible factor difficult to accurately portray, any statement of which is potentially misleading or prejudicial to at least some of the stockholders. What effect, if any, it would have had on the voting is not shown. In our opinion, a statement concerning it in the Proxy Statement, would have probably influenced votes in favor of the Plan, and would have been definitely prejudicial to appellees. We do not consider the omission prejudicial to appellees.
We are of the opinion, however, that the case is controlled by the fundamental principle of equity governing the personal transactions of fiduciaries in matters involving the interests of those to whom the fiduciary duty runs. As expressed by then Chief Justice Cardozo of the Court of Appeals of New York in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546, 62 A.L.R. 1: “Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honestly alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions.”
A director is a fiduciary. So is a dominant or controlling stockholder or group of stockholders. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 250 U.S. 483, 491-492, 39 S.Ct. 633, 63 L.Ed. 1099; Wagner Elec. Corp. v. Hydraulic Brake Co., 269 Mich. 560, 566, 257 N.W. 884. When the dual relationship of individual and fiduciary creates a conflict of interest the fiduciary relationship must prevail. The Supreme Court said in United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, at pages 263-264, 37 S.Ct. 509, at page 510, 61 L.Ed. 1119, that questions of internal management are ordinarily left to the discretion of the directors, and “Courts interfere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; * * * (Emphasis added.) This was repeated with approval by this Court in United Milk Products Corp. v. Lovell, supra, 75 F.2d 923, 927. In Ashman v. Miller, supra, 101 F.2d 85, 91, we again said: “It is too plain for citation of authority that a director of a corporation cannot barter or sell his official discretion or enter into any contract whatever that will in any way restrict or limit the free exercise of his judgment and discretion in his official capacity, nor can he place himself under any direct and powerful inducement to disregard his duty to the corporation and its stockholders in the management of corporate affairs.” See also: Thomas v. Matthews, 94 Ohio St. 32, 43, 60, 113 N.E. 669, L.R.A.1917A, 1068.
In the present case, we are of the opinion that the personal interest of the directors representing the Wilkes group was involved to an extent which interferred with the unprejudiced exercise of judgment to which the minority stockholders were entitled. As part of their contract of purchase on behalf of Seagrave from Post (in practical effect Wetzel) they were at the same time selling for themselves and others to Wetzel 35,000 shares of Seagrave stock at a price of $5 or more per share than was available on the open market. This price was not available to the minority stockholders. Nor was the purchase of any of this stock by Wetzel necessary to give Wetzel a majority of the voting stock of Seagrave. Against the background of dissention in the Board of Directors, the possibility of such an advantageous sale of this stock interest necessarily injected into the picture a personal interest which could affect the exercise of unprejudiced judgment with respect to the interests of the corporation and the minority stockholders. . The desire of the three management directors to get rid of the Wilkes group, to end the dissention which threatened their positions with the Company, together with Wetzel’s ■stated intention to make no substantial change in operating management if the plan was consummated, likewise injected into the picture a personal interest on the part of these three directors in favor of consummating the plan. Whether conscious of the effect or not, the combination of such factors deprived the stockholders of that impartial, unprejudiced action which the fiduciary relationship required.
Although good faith on the part of the Directors and the disclosure of the material facts eliminate the question of actual fraud, equity will still act to enforce the fiduciary obligation under circumstances amounting to constructive fraud. Constructive fraud refers to acts which may have been done in good faith, with no purpose to harm the corporation, but which are done by one who has placed himself in a position of conflict between a fiduciary obligation and his own private interests. In such a situation, by reason of the strict rule applicable to fiduciaries, equity will take appropriate action to prevent the harm resulting from such actions, regardless of the good intentions of the fiduciary. Levitan v. Stout, D.C.W.D.Ky., 97 F.Supp. 105, 117; Epstein v. United States, 6 Cir., 174 F.2d 754, 765-766; Hyams v. Calumet & Hecla Mining Co., 6 Cir., 221 F. 529, 542-543.
Appellants contend that because a large majority of the shares voted at the stockholders’ meeting were in favor of the purchase, the action of the directors was ratified. We must take into consideration the influence of the Wilkes group, the solicitation and use of proxies by management, and the previous action of the directors in determining the effect of such an alleged ratification. Under the circumstances, we do not consider it a valid ratification. Hyams v. Calumet & Hecla Mining Co., 6 Cir., supra, 221 F. 529, 541-542; Kahn v. Schiff, D.C.S.D.Ohio, 105 F.Supp. 973, 976. See also Geddes v. Anacondo Mining Co., 254 U.S. 590, 591, 599, 41 S.Ct. 209, 65 L.Ed. 425. In any event, in order to amend the charter, as required by the Plan, it was necessary under the law of Michigan, the State of incorporation, to obtain the vote of the majority of the outstanding shares, which would require 61,351 shares. Not counting the vote of the 43,-000 shares of the Wilkes group, only 53,979 shares voted in favor of the proposed change.
The judgment is affirmed.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_applfrom
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Eugene A. WAHL and Vibra Screw, Incorporated, Appellants, v. REXNORD, INC.
No. 79-2054.
United States Court of Appeals, Third Circuit.
Argued Feb. 15, 1980.
Decided June 16, 1980.
John W. Logan, Jr. (argued), Thomas M. Ferrill, Jr., Robert P. Seitter, Ferrill & Logan, Fort Washington, Pa., Harold Friedman, Kirsten, Friedman & Cherin, Newark, N. J., for appellants.
Thomas F. McWilliams (argued), McWil-liams, Mann & Zummer, Chicago, 111., for appellee.
Before ALDISERT, WEIS and HIGGIN-BOTHAM, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
It is a generally recognized precept in patent law that an inventor can obtain no more than one patent for any original discovery. Many decisions of this and other circuits have analyzed the circumstances in which a patented discovery can be said to copy an earlier patented discovery, and therefore is invalid as a double patent. This case, one of first impression in this court, requires us to analyze double patenting in the unusual circumstance where the two patents are of different types; the first is a design patent covering the “ornamental design for an article of manufacture,” while the second is a utility patent covering the mechanical claims of an article of manufacture. Because we conclude that there are remaining issues of material fact on whether the design and utility patent in this case embody the same inventive concept, we will reverse the district court’s grant of summary judgment.
I.
The appellants, Vibra Screw, Inc. (Vibra Screw) and Eugene Wahl, have sued the appellee, Rexnord, Inc. (Rexnord), for patent infringement of a utility patent. This appeal concerns the holding by the district court for Rexnord on the ground that the utility patent Rexnord allegedly infringed was invalid because it was a double patent of an earlier issued design patent.
On August 24, 1965 a design patent was issued to Eugene Wahl under United States Patent No. 202,068 (’068 patent). A design patent covers a “new original and ornamental design for an article of manufacture.” Wahl’s invention concerned the external design of a “storage bin flow promoter,” a device used at the base of a storage bin to expedite the flow of material out the bottom of the bin. On July 19, 1966, one year later, Wahl secured a utility patent, United States Patent No. 261,508 (’508 patent). A utility patent covers a “new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof.” Wahl’s patent covered the internal structure of a “vibratory bin activator,” the same type of device that was the subject of his design patent. Generally speaking while the ’068 patent covered an external ornamental design of the device, the ’508 utility patent covered an internal mechanical structure.
The exclusive United States licensee for both patents was Vibra Screw, of which Wahl served as president. Under an agreement between Wahl and Vibra Screw, Wahl received 2lA% of net sales price of all patented devices sold by Vibra Screw.
On April 30, 1976 Wahl and Vibra Screw filed suit against Rexnord for patent infringement of the ’508 utility patent. They claimed, inter alia, that Rexnord was using and selling vibratory bin activators embodying the inventions described and claimed in the utility patent. Rexnord moved for summary judgment on July 8, 1978 on the ground that the ’508 utility patent was invalid as a double patent of Wahl’s earlier issued ’068 design patent. Wahl and Vibra Screw, in turn, moved for summary judgment on the ground that the ’508 utility patent was not invalid.
The parties submitted three types of evidence in support of their motions.
The first, and most important, were the patents themselves. The ’068 design patent claimed “the ornamental design for a storage bin flow promoter as shown and described” in the three patent diagrams included below.
Des. 202,068
United States Patent Office Patented Aug. 24. 1965
202,068
STORAGE BIN FLOW PROMOTER Eugene A. Wahl. 294 Forest Ave.. Glen Ridge, N.J.
Filed Nov. 27, 1963, Ser. No. 77.588 Term of patent 14 vears (CL D55 — 1)
The distinctive features of the ’068 design are the plurality of increasingly narrow convex surfaces that are outlined by the full lines in the diagram. It is important to note that the patent diagram can only claim the aesthetic appearance of these dominant lines. The internal broken lines explain the environment in which the patent exists, but are technically not part of its claims. See Transmatic, Inc. v. Guiton Industries, Inc., 601 F.2d 904, 912 (6th Cir. 1979); Application of Blum, 874 F.2d 904, 907 & n. 1 (C.C.P.A.1967). Thus, the outline suggesting an interior of concave surfaces and the mechanical gyrator attached to the baffle in figure two are not specifically claimed by the design patent.
The ’508 utility patent claimed a vibratory bin activator which was portrayed in patent diagrams similar to the interior suggested by the ’068 patent. These diagrams are as follows:
JULY 19, 1966 E. A. WAHL 3,261,508
VIBRATORY BIN ACTIVATOR
Filed Jan. 24. 1964 3 Sheets — Sheet 1
July 19, 1966 E. A. WAHL 3,261,508
VIBRATORY BIN ACTIVATOR
Filed Jan. 24. 1964 3 Sheets — Sheet 2
July 19, 1966 E. A. WAHL 3,261,508
VIBRATORY BIN ACTIVATOR
Filed Jan. 24. 1964 3 Sheets — Sheet 3
The diagrams accompanying the utility patent provide an illustration of the mechanical claims of the mechanical invention and do not constitute the patent claim itself. Anchor Hocking Corp. v. Eyelet Specialty Co., 377 F.Supp. 98, 101 (D.Del.1974). The actual patent is embodied in the word claims included with the diagram. A representative claim in the ’508 utility patent states it is an
[apparatus for promoting the flow of material from a storage hopper having a discharge opening formed in the bottom thereof, said apparatus comprising,
(a) a material-receiving member having a bottom wall defined by a plurality of concave surfaces terminating in a central outlet opening,
(b) means vibrationally suspending the material receiving member from the hopper and in spaced position to the hopper wall, and
(c) means for vibrating the material-receiving member.
The second type of evidence the parties submitted was depositions and affidavits by Wahl and other experts on the unique inventive contribution of each patent. Finally, the appellants submitted drawings of hypothetical devices with non-conforming interiors and exteriors which would supposedly infringe one patent and not the other.
On January 25, 1979 the district court granted summary judgment for Rexnord on the ground that the utility patent was invalid because it was a double patent of the design patent. Wahl v. Rexnord, Inc., 481 F.Supp. 573 (1979) (Wahl I) To find double patenting, it reasoned, “the features in which the novel aesthetic effect resides [must be] the identical features which produce the novel function claimed in the utility patent.” Id. at 583. In this case, the novel feature of the design patent was its
outside proportions and the exterior configuration thereof, which produce a plurality of convex exterior surfaces for the bottom walls of the storage bin promoter. This novel design feature clearly produces the novel interior configuration which forms surfaces of the dish-shaped sides, resulting in a positive discharge of material through the outlet when the gyrator is operating, while at the same time preventing discharge of material when the gyrator is not operating. Such construction facilitates the movement of material down from the upper regions of the storage bin and alleviates the congestion and packing of material at the bin discharge opening, thereby assuring a positive and uniform flow.
Id. at 583. The court conceded that there were elements of the utility patent not necessarily found or even “necessarily implied” by the design patent, but concluded “[double patenting in the design-utility situation cannot turn on the niceties of precise ornamentation,” but rather “on the presence or absence of design features which produce the novel function claimed in the utility patent.” Id.
The appellants subsequently moved for reconsideration of the court’s decision on the basis of newly submitted evidence of over 50 instances of commercial sales of bin flow promoters with non-conforming interiors and exteriors. On May 25, 1979 the district court denied the motion on the ground that this evidence did not undermine its conclusion that the two patents were “the same.” Wahl v. Rexnord, 481 F.Supp. 573, 597 (D.N.J.1979) (Wahl II).
Wahl and Vibra Screw have appealed from the district court’s decision on two grounds. First, while they agree that the district court adopted the appropriate standard for determining double patenting in a design utility context, they argue it interpreted that standard too “liberally.” They contend, in effect, that there must be a one-to-one correspondence between all of the features claimed or necessarily implied by each patent in order to establish double patenting. Second, even if the district court interpreted the standard properly, they claim that the facts of this case do not warrant summary judgment. They suggest that the presence of not insignificant commercial sales of devices with nonconforming interiors and exteriors creates a material issue of fact under any interpretation. We will first review the standard the courts have applied in this context and then analyze the district court’s interpretation. Finally, we will consider the legal significance of the sale of bin activators with non-conforming interiors and exteriors under this interpretation.
II.
It has long been recognized that an inventor may not secure a second patent on a discovery in which he already has secured a prior patent. This principle derives from the temporal limitation placed on the monopoly granted for a patent. Design and utility patents provide their inventors with a statutory monopoly over their claims for fourteen or seventeen years, respectively. A second patent on a previously patented discovery would impermissibly extend the inventor’s monopoly over the discovery beyond these limitations, and therefore is invalid. Enforcement of this prohibition, however, is complicated by the nuances of discerning when patents embody identical inventive ideas.
Most of the prior decisions in this area have considered double patenting of two utility patents and, less frequently, two design patents. In these cases comparison of the patentable contributions of the two inventions is facilitated by the fact that they both consider the same type of subject matter — either the mechanical or the ornamental qualities of a device. The most frequently cited expression of the standard to be applied in this circumstance appears in Miller v. Eagle Manufacturing Co., 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121 (1894). There the Supreme Court stated that “no patent can issue for an invention actually covered by a former patent, especially to the same patentee, although the terms of the claims may differ.” It noted that
where the second patent covers matter described in the prior patent, essentially distinct and separable from the invention covered thereby, and claims made thereunder, its validity may be sustained.
In [this] class of cases it must distinctly appear that the invention covered by the later patent was a separate invention, distinctly different and independent from that covered by the first patent; in other words, it must be something substantially different from that comprehended in the first patent. It must consist in something more than a mere distinction of the breadth or scope of the claims of each patent.
Id. at 198, 14 S.Ct. at 315.
This court applied this standard for comparing utility inventions in Pierce v. Allen B. DuMont Laboratories, Inc., 297 F.2d 323 (3d Cir. 1961), cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed.2d 55 (1962). We observed:
Since Miller v. Eagle, courts have repeatedly ruled that an inventor’s separate applications embodying the same inventive concept afford proper bases for the issuance of separate patents at different times only if one of them also embodies an additional inventive concept not present in the other. In other words, the difference between the claims of the two applications must itself be inventive.
Id. at 327.
Discerning whether double patenting exists between design and utility patents is more complex. By definition the two inventive ideas in these cases are not identical because they cover different subject matter. One concerns mechanical performance, while the other concerns ornamental design. Indeed, some courts originally held that a design and utility patent could never embody the same inventive contribution, and therefore could not double patent. In Gross v. Norris, 18 F.2d 418, 420 (D.Md.1927), modified on other grounds, 26 F.2d 898 (4th Cir. 1928), the court observed:
But it is difficult to understand how a situation of double patenting can arise in the case of a design and of a mechanical patent applicable to the same device, notwithstanding certain statements in the books to the contrary. . . . There may be double patenting when two patents for the same mechanical structure are sought, . . . and when two patents for the same design are applied for .. But a design patent and a mechanical patent relate to different subject matter. The first pertains to the appearance while the second relates to the mechanical structure of a device, and it is well settled that a design and a mechanical patent covering the same article of manufacture, may coexist.
This position was underscored by the absence of an express statutory prohibition on double patenting of a design and utility patent. See Application of Thorington, 418 F.2d 528, 536 (C.C.P.A.1969), cert. denied, 397 U.S. 1038, 90 S.Ct. 1356, 25 L.Ed.2d 649 (1970).
Most recently, however, the Sixth and Seventh Circuits, in Transmatic, Inc. v. Guiton Industries, Inc., 601 F.2d 904 (6th Cir. 1979), and Ropat Corp. v. McGraw-Edison Co., 535 F.2d 378 (7th Cir. 1976), and the Court of Customs and Patent Appeals in Thorington, have held that double patenting can occur between a design and utility patent. See also In re Hargraves, 53 F.2d 900 (C.C.P.A.1931). These courts recognized, and we concur, that the unique inventive contribution reflected in an ornamental design can be identical to the unique inventive contribution of a mechanical process. The underlying purposes of federal patent law empower courts to invalidate patents in this context. See Thorington, 418 F.2d at 536. We also agree with the standard adopted by the Seventh Circuit in Ropat and followed by the Sixth Circuit in Transmatic for determining double patenting in this context. The court in Ropat stated:
The law of double patenting in the precise situation where a design patent and a utility patent are involved is plagued by a dearth of case law. A review of the cases which do exist reveals various “tests” for determining whether a design patent and a utility patent claim the “same invention.” We believe the best formulation of the applicable standard in this situation is that set forth in such decisions as In re Hargraves, 53 F.2d 900 (Cust. & Pat.App.1931), and Application of Du-Bois, 262 F.2d 88, 46 C.C.P.A. 744 (1958). Those cases state that double patenting exists if the feature in which the novel esthetic effect resides is the identical feature which produces the novel function so that a structure embodying the mechanical invention would of necessity embody the design, and vice versa.
535 F.2d at 381 (footnote omitted and emphasis added). Like the district court below, we adopt this as the appropriate standard.
III.
While both parties agree that Ropat articulates the proper standard, they disagree sharply on what that standard requires. The source of this disagreement is the district court’s holding that the Ropat test does not mandate that the two patents “cross-read.”
Cross-reading is a standard for comparing the unique contribution of patents. To say that patents cross-read means that a device embodying the patentable design of the design patent must infringe the utility patent; and that a device embodying the patentable claims of the utility patent must infringe the design patent. The importance of this requirement can be shown by a simple illustration. If patent M includes inventive factors ABC and patent Q includes inventive factors ABC as well as DEF, patent M would infringe Q, but Q would not infringe M; Q would cover inventive contributions not included in patent M, thereby precluding a finding of infringement. The district court held as a matter of law that Ropat only requires that the patents read in one direction. Thus, the court only needed to consider whether a device embodying the design of the ’068 design patent would necessarily infringe the ’508 utility patent.
The appellants challenge this interpretation on the basis of the inclusion in Ropat of the clause “vice versa.” The appellees, on the other hand, while conceding that cross-reading is required of utility patents, see, e. g., Application of Stanley, 214 F.2d 151, 155 (C.C.P.A.1954), contend it is not required when utility and design patents are involved. Reading the first to issue design patent on the utility patent is all that is necessary to preclude an extension of monopoly. To require more would protect an extension of that monopoly.
We agree with the appellants that to establish double patenting in this context the patents must cross-read. Requiring only that the design patent infringe the utility patent, but not vice versa, could invalidate utility patents that make a unique patentable contribution independent of the contribution they share with the design patent. As we noted in Pierce, double patenting cannot occur if “the difference between the claims of the two applications [is] itself inventive.” 297 F.2d at 327. A similar approach was adopted by the Sixth Circuit in Transmatic, which reversed the district court for failing to cross-read the two patents. Although the design and utility patents in that case shared a unique external design for a subway light fixture, the utility patent included special novel features concerning the location of the lighting source and type of bulb that were not claimed by the external design. 601 F.2d at 912. This requirement of cross-reading assures that a utility patent is not invalidated when it possesses a unique inventive contribution beyond that of the prior design patent. The failure of the district court in this case to cross-read the patents was error.
Having held that the two patents must cross-read, however, we note that this does not require, as the district court noted, that every feature of each patent must always be replicated in the other. The appellants have essentially taken the position that there must be a mathematical one-to-one correspondence between the claim of each patent. Many aspects of each patent, however, may be unrelated to its unique patentable contribution. These obvious variations on the basic contribution do not preclude a finding of double patenting when two utility patents are concerned, see, e. g., Miller v. Eagle Manufacturing Co., 151 U.S. at 198 (1894), and there appears to be no reason that they should in themselves prevent a finding of double patenting here. As the court in Ropat observed:
Double patenting in the design-utility situation cannot turn on niceties of precise ornamentation . . ., but rather must turn on the presence or absence of design features which produce the novel function claimed in the utility patent. If narrow, nonfunctional decorative variations which contribute in no way to the novel function were allowed to enter into the inquiry, it would become virtually impossible ever to find double patenting in the design utility situation. . A design patent and a utility patent need not claim every incidental feature of the other in order to claim the “same invention.”
535 F.2d at 382. See also Application of DuBois, 262 F.2d 88, 90-91 (C.C.P.A.1958). To require that every feature of each patent be replicated in the other would elevate form over substance and sanction the protection of patents with no inventive contribution other than obvious variations on pri- or patents.
We also note, as the district court held, that a patent can cover certain items not specifically claimed in the patent but necessarily implied by it. Section 171 authorizes a patent on the design of an article of manufacture, and not just on its appearance. Thus, a patent on the design of an article of manufacture may necessarily imply the mechanical function associated with that design. See Ropat, 535 F.2d at 382; Thorington, 418 F.2d at 537; In re Aslanian, 200 U.S.P.Q. 500, 503 (S.D.N.Y.1979).
IV.
Having outlined the standard for evaluating double patenting in this context, we must consider whether there was a dispute of material fact on this issue. The district court held that the two patents embodied the “same invention.” The novel external configuration of the design patent “produce[d] the novel interior configuration which forms the surfaces of the dish-shaped sides.” Wahl I, 481 F.Supp. at 583. The court’s decision was based on the substance of the two patents themselves, and depositions of experts concluding that the patentable contributions of both patents were identical. Wahl II, 481 F.Supp. at 600 & n.5.
A motion for summary judgment may only be granted if there are no remaining issues of material fact which, if believed by the trier of fact, would justify a finding for the party opposing that judgment. Bryson v. Brand Insulation, Inc., 621 F.2d 556, 559 (3d Cir. 1980). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Applying this standard we believe it was error for the district court to grant summary judgment.
Affidavits of the appellant establish the existence of not insignificant commercial sales of bin activators with non-conforming internal and external surfaces. The appellees even produced some of these bin activators. This raises the substantial probability that the novel feature of the design patent is not the “identical feature” that produces the utilitarian function. There may be a novel patentable advantage to the peculiar design exterior which is unrelated to the mechanical interior. The present record simply cannot resolve this question.
Though appellants have a very strong factual case in their favor, we are not holding on the present record that it would clearly be reversible error to make a finding of double patenting. At a minimum on the present record the issue is at least one which requires a fact finder’s careful evaluation of the evidence before the conclusion of double patenting would be permissible. The standard for double patenting in a design/utility context cannot be too rigorous because of the necessary incongruity between inventions in the two areas. It is clear that appellants’ ability to posit hypothetical nonconforming devices which would infringe one patent and not the other does not defeat summary judgment. The court in Thorington, 418 F.2d at 537 & n.10, rejected a similar claim which, if adopted generally, would prevent any finding of double patenting. It is always possible to conjure designs that will not be associated with the mechanical claim. Moreover, the fact that appellants have provided affidavits showing that these hypothetical devices are commercially feasible is not necessarily determinative. However, here the record does not consist of mere hypothesis devoid of reality. Instead, here we have the record of the actual market place associated with the mechanical claim. Whether the record establishes double patenting is a subtle question of fact concerning the unique inventive contribution of each patent that must be considered in the first instance by the trier of fact.
V.
For these reasons we will reverse the grant of summary judgment by the district court and remand for further proceedings not inconsistent with this opinion.
. 35 U.S.C. § 171:
Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title. The provisions of this title relating to patents for inventions shall apply to patents for designs, except as otherwise provided.
. 35 U.S.C. § 101:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
. In the alternative, Rexnord moved for summary judgment on the ground that it had not infringed the utility patent.
. The storage bin flow promoter is described in the patent as follows: Figure 1 is a front, eleva-tional view of a storage bin flow promoter. Figure 2 is a side, elevational view. Figure 3 is a top plan view. The dominant features of the design reside in the portions, shown in full lines. The bottom of the cylindrical projection on the bottom of the promoter has a conventional cylindrical opening.
. Indeed, the patent itself states, “The dominant features of my new design reside in the portions, shown in full lines.” ’068 patent, reprinted in App., at 481a.
. The ’508 utility patent, reprinted in App., at 477a, describes the diagrams as follows:
FIGURE 1 is a top plan view of apparatus made in accordance with this invention, with a portion of the baffle member broken away;
FIGURE 2 is a side, elevational view thereof, with a portion of the side walls of the concave members broken away;
FIGURE 3 is a side elevational view showing the apparatus attached to a storage bin, and drawn to a reduced scale; and
FIGURE 4 is an enlarged, fragmentary, view showing the apparatus attached to the storage bin, with certain parts in cross-section.
. The district court denied Rexnord’s motion for summary judgment that it had not infringed the ’508 utility patent. Wahl I, Id. at 586-87. That decision has not been challenged on appeal.
. The district court also dismissed a separate claim and counterclaim of the parties that are not involved in this appeal. Wahl and Vibra Screw’s claim against Rexnord was for infringing another utility patent, No. 3,173,583. In an earlier opinion of May 19, 1977, the district court granted summary judgment for Rexnord on this claim on the ground that the patent had previously been held to be invalid by the Seventh Circuit; the district court’s decision was upheld by this court, without opinion, in Wahl v. Rexnord, No. 77-1968 (3d Cir. April 12, 1978). Rexnord’s counterclaim against Wahl and Vibra Screw was for allegedly harassing Rexnord and its customers by filing meritless patent infringement claims in Idaho in violation of Sections One and Two of the Sherman Act, 15 U.S.C. §§ 1 and 2. In Wahl I the district court granted summary judgment to the plaintiff on the Section One violation. The court dismissed the claim of a Section Two violation on December 20, 1979.
. The decision of the Sixth Circuit in Transmatic is not to the contrary. There the court held that the novel characteristics of the interior of light fixtures were not necessarily implied by the external design covered by the design patent. It specifically held that each of the features were part of the novel contribution of the patent and there were numerous variations consistent with the design patent that would not replicate these features. 601 F.2d at OH-12.
. Appellants also argue that the gyrator and the means for suspending the device are unique features included in the utility patent and are not necessarily implied by the design patent. We think this question is also better left for consideration by the trier of fact in the first instance.
We recognize that other evidence may on remand support an opposite conclusion. Wahl apparently conceded in response to one question on the differences between the two patents that there was “[o]nly one difference, really, that is apparent from the sketchy presentation in the [design] patent, and that has to do with the baffle.” Deposition of Eugene Wahl, May 19, 1977, reprinted in App., at 449a. Rexnord’s expert, Don Fisher, also stated via affidavit that the only difference was in the baffle. Affidavit of Eugene Fisher, June 22, 1978, reprinted in App., at 70a. Neither apparently considered evidence of commercial sales of non-conforming interior and exterior walls.
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_adminrev
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
MINTER et al. v. FEDERAL TRADE COMMISSION.
No. 6795.
Circuit Court of Appeals, Third Circuit.
Feb. 14, 1939.
David H. Kinley, of Philadelphia, Pa., for petitioners.
W. T. Kelley, Chief Counsel, Federal Trade Commission, Martin A. Morrison, Ass’t. Chief Counsel, and James W. Nichol, Sp. Atty., all of Washington, D. C., for respondent.
Before BIGGS, CLARK, and BUF-FINGTON, Circuit Judges.
CLARK, Circuit Judge.
This case seems to us a futile continuation of earlier litigation. The trade practices of these petitioners have already been expressly condemned in a unanimous opinion of the United States Supreme Court, Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 54 S.Ct. 423, 78 L.Ed. 814, February 5, 1934. As the high court there adopted, or rather amplified, the view of the then minority of this court, we can be supposed to be thoroughly familiar with the holding.
The particular practice whose ceasing and desisting was there and here ordered is known in the marts of commerce as selling by “break and take” (pick and take, draw deals, punch cards and punch boards) rather than by “straight goods” packages. The nomenclature furnishes a clue to the disapproval both of the judicial bodies and encouragingly, of the “better element” in the trade itself.
The “break and take” method is the sale of merchandise (or amusement as in the case of motion picture bank nights, 12 Wisconsin Law Review 251, 17 Boston University Law Review 238), by the inducement of a lottery. The customer does not buy only a chance represented by a ticket, he pays for a chattel and a chance for another unpaid chattel, the ticket being the opportunity for fortuitous selection of a differentiated article. It is, so to speak, a lottery with trimmings, and one might observe that a lottery by any other name will smell as bad.
This selling by lottery seems to have prevailed largely where it least should have prevailed, namely, in the sale of penny candy to little children. The Federal Trade Commission’s brief cites eighteen of these candy cases initiated by it and sustained by the Circuit Courts of Appeal and the United States Supreme Court since the decision of the Keppel case above cited. These cases are collected in the notes to Section 45 of Title 15, U.S.C.A. on pages 66-75 of the supplement, and see note 5 of 43 Yale Law Journal 1339. See also In the matter of Boyd Houser Candy Company and In the matter of The Newton Products Company, Vol. 4 Federal Register, No. 27, p. 607. It has not always been so limited. As long ago as 1918 we find the Federal Trade Commission prohibiting the sale of tea and coffee with coupons for prizes concealed in certain packages, Federal Trade Comm. v. Brumage-Loeb Co., Successor to Buddha Tea Co., 1918, 1 F.T.C. 159, Federal Trade Comm. v. Everybody’s Mercantile Co., 1920, 3 F.T.C. 60, and only recently the commission was sustained in its objection to the sale of silk stockings by punch cards, Chicago Silk Co. v. Federal Trade Commission, 7 Cir.1937, 90 F.2d 689, certiorari denied, 1938, 302 U.S. 753, 58 S.Ct. 281, 82 L.Ed. 582. And see also as to the sale of gas and oil an injunction by competitor, Jones v. Smith Oil & Refining Co., 1938, 295 Ill. App. 519,15 N.E.2d 42; 29 Journal of Criminal Law and Criminology 598.
The petitioners and the other practitioners of this type of merchandising have followed that ancient precept of the sea, “women and children first”, except that they pervert instead of protect weakness. Taking candy from children has never been highly regarded. Forcing it upon them through their possession of an instinct that the adult world recognizes and has always recognized as at the bottom of many of its troubles, seems to us shameful. We have rarely seen of a more unpleasant example of commercial cynicism than is disclosed by the testimony of the petitioners’ president, Ira W. Minter:
“Q. In your opinion, Mr. Minter, is this form of advertising injurious to the public? A. The public benefits by it.
“Q. In what way would you say the public benefits by it ? A. By getting additional value for the purchase of the particular goods that it is being offered with”. Record, p. 148.
The “benefit”' and “additional value” so euphemistically referred to, is our old friend “something for nothing”, the consequences of too enthusiastic pursuit of which are known to judges in their official capacities.
In view of the controlling decision of the Supreme Court in Federal Trade Commission v. Keppel & Bro., above cited, any extended discussion of the law is inappropriate. Petitioners attempt three distinctions. Two of them touch upon the judicial history of its iñterpretation. They say, first, that the Federal Trade Commission has no statutory power because the whole candy manufacturing business is infectéd with the “break and take” virus. In the light of the sentiments we have just expressed, we should be loath to believe this of any body of business men. Happily we do not have to. First, the witnesses making this depressing assertion, Minter and Coughlin, the president and candy broker of the petitioners, are somewhat interested. Second, it is flatly contradicted by two other candy manufacturers called by the Commission, Voneiff, p. 39, and Roskamm, p. 102. Although the latter’s business reformation was not altogether voluntary (cease and desist order), he did not limit himself to his own business but referred to earlier and, to him, more Halcyon days in the trade generally, saying: “In the days when break and take were so actively sold in a much larger volume than they are today,- we used to receive constant requests from our salesmen, wanting to know why, if other firms could make these packages, we would not make them, and advised us that in many instances their customers were buying a general line of merchandise such as ours, from sources who could supply them with break and take, and vigorously demanded therefore that we also give them a similar assortment to do business with so that they can get their normal share of the distribution and earn their pro rata commission”. Record, p. 102.
The Commission’s finding, paragraph 6, Record pp. 200-201 is supported by evidence and is by well-settled law conclusive, Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S.Ct. 315, 78 L. Ed, 655, January 8, 1934, Federal Trade Commission v. Standard Education Society, 302 U.S. 112, 117, 58 S.Ct. 113, 82 L.Ed. 141, November 8, 1937.
Even if this had not been so and if the entire penny candy trade had indulged in the practice alleged to be obnoxious, we believe the present trend of decision under section 45, Title 15, U.S.C.A., supports the order. That trend is away from the requirement of injury to a particular competitor and toward the protection of- the general consumer.
The direction of that judicial current depends, of course, upon the construction of a very general word “competition”. The issue is whether it may be construed to include situations where the practices to be struck down are rife in an entire industry, Jurisdiction of Federal Trade Commission Over False Advertising, 31 Col.Law Rev. 527, or whether the Commission can only intervene when one honest competitor enters the field, Scope of the Jurisdiction of the Federal Trade Commission over False and Misleading Advertising, 40 Yale Law Journal 617 (comment), The Meaning of Methods of Competition in Commerce, 31 Michigan Law Review 808.
Light has, very properly, been sought in the halls of Congress. An entire article has been devoted to a collection of excerpts from the Debates in the Senate, Unfair Methods of Competition, 25 Yale Law Journal 20, and further references to the Congressional Debates are collected in note 18 on page 532 of Mr. Handler’s (a leading authority on the subject) article in 31 Col. Law Review 534, above cited. A perusal of these debates leaves us with the impression that general words were employed to make possible the meeting of future contingencies. We say this although we recognize the danger voiced by Mr. Justice Cardozo in repeating the words of Professor Gray in his lectures on the Nature and Sources of the Law: “ ‘that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind, if the point had been present’-”. Cardozo, The Nature of the Judicial Process, p. 15.
Surely emasculation of the Commission in proportion to the prevalence of the roguery involved would be a failure to recognize such contingency. The contrary or strict construction by some of the courts arises, as we think, from too long judicial considerations of the technical difficulties in the enforcement of common law private and public sanctions against dishonest trade practices, Handler, False and Misleading Advertising, 39 Yale Law Journal 22, The Meaning of Methods of Competition in Commerce, 31 Michigan Law Review 808, above cited, Handler, Jurisdiction of Federal Trade Commission over False Advertising, 31 Col.Law Review 527, above cited, Scope of the Jurisdiction of the Federal Trade Commission over False and Misleading Advertising, 40 Yale Law Journal 617 (comment), above cited.
It is not unreasonable to suppose that the very purpose of the legislative body, here as often, was to stop the gaps of judge made law. If we can indulge in a priori reasoning, we might note the addition by Congress on June 23, 1938 of the phrase “unfair or deceptive acts or practices in commerce” to the former “unfair methods of competition in commerce”, 52 Stat. 1028, 15 U.S.C.A. § 45.
Petitioners’ second ground for distinguishing the Keppel case opens up another vista of interpretation as to the meaning of another general word — this time the word “unfair”. Here again and again naturally the effort is toward limitation. The rugged individual wishes to continue in his ruggedness and wishes to correspondingly narrow the scope of interference by a bureaucratic and possibly slightly more ethical government. The courts have not agreed with their rugged view, however, and have gradually widened that scope. They have brought their standard of fairness even closer to an ever, we think, higher conception of business ethics. That process of widening is discussed in the law review articles above cited, 39 Yale Law Journal 22, 31 Michigan Law Review 808, 31 Col.Law Review 527, 40 Yale Law Journal 617. See also The Legal Phases of Advertising by Francis Finkelhor, 1938.
The distinction attempted is based on a difference of fact. In the Keppel case the candy of the break and take package was of inferior quality to that of the straight goods. Here it is not. The argument seems to be derived from the attempt of the dissenting opinion of this court, Keppel & Bro. v. Federal Trade Commission, 3 Cir,, 63 F.2d 81, 85, to bring the practice within the conception of “deception”.
The learned judge of this Court writing that opinion concludes that driving the non-gambling packages from the shelves forced cheating of the consuming children. This stretching of logic was, we surmise, occasioned by a desire to bring the case within the established precedents which stressed deception.
The Supreme Court, as is its special privilege, rejected this, shall we say, rather tortured construction of the practice and placed its decision on a more satisfactory legal and a more fundamental ethical ground. If you cheat people, you affect their pocketbook; if you encourage them to gamble, you affect their character. Mr. Justice Stone said: “But here the competitive method is shown to exploit consumers, children, who are unable to protect themselves. It employs a device whereby the amount of the return they receive from the expenditure of money is made to depend upon chance. Such devices have met with condemnation throughout the community. Without inquiring whether, as respondent contends, the criminal statutes imposing penalties on gambling, lotteries and the like, fail to reach this particular practice in most or any of the states, it is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy. For these reasons a large share of the industry holds out against the device, despite ensuing loss in trade, or bows reluctantly to what it brands unscrupulous. It would seem a gross perversion of the normal meaning of the word, which is the first criterion of statutory construction, to hold that the method is not ‘unfair.’” Federal Trade Commission v. Keppel & Bro., 291 U.S. 304, 313, 54 S.Ct. 423, 426, 78 L.Ed. 814.
The writer of a note in the Yale Law Journal has commented on this opinion, saying: “Granting that those practices which business men ‘should not adopt’ constitute unfair methods of competition, the question still remains as to why, in the face of a diversion of trade which might otherwise be retained, they should refuse to use the method involved in the principal case. The reason is found in the injury which its use will entail to the public. In the advertising cases, that injury consists of deception with the resultant purchase of a different and usually inferior article than is represented. In the case under consideration, while the deception element was lacking, still the consumers of the product were induced by the gaming device to purchase a product inferior to that which they might otherwise procure for the same price. But in the eyes of the Court the financial injury was subordinate to the moral one, which consisted of a tendency to encourage gambling, a form of conduct that it deemed subversive of general morality and so contrary to public policy as frequently to have been an object of statutory prohibition”. Powers of the Federal Trade Commission in Prohibiting Unfair Methods of Competition, 43 Yale Law Journal 1338, 1340 (note). See also 10 N.Y.U.Law Quarterly Rev. 11, 82 U.Pa. Law Rev. 664, 665.
It is interesting to record that the business men responsible -for the publication of that most excellent book, Public Regulation of Competitive Practices, had anticipated the sentiments of the learned Justice and the learned author. We quote:
“As a method of sales promotion, lotteries are so unusual as to warrant but passing notice. They are unusual because they were well known to be opposed to public policy even prior to the enactment of the regulatory legislation of 1914, and in some states they have been made penal offenses by statute. The reasons for this general condemnation of lotteries are primarily ethical and not economic. It is regarded as contrary to sound morality that men should be encouraged to seek ‘something for nothing’ — or for a trifle. At the same time it is recognized that there are economic objections to a scheme which extracts small contributions from many, without compensation, for the benefit of the chance recipient of an unearned prize”. Pages 138-139.
“In other words an honest lottery as a method of promoting sales was held to constitute an unfair method of competition. This appears to be sound doctrine. If it is unfair competition to tempt buyers by misrepresentations of the quality of goods, it may be regarded as likewise unfair to tempt them to buy goods not upon their merits but upon the chance of securing something for nothing”. Page 140.
As the United States Supreme Court in. the Keppel case has rejected the petitioners’ officers’ tolerance toward children’s lotteries, it is perhaps impertinent to indulge in any homily on the economics and ethics of gambling. The temptation and its cause have been eloquently described by Lecky: “The foregoing remarks will show the great difficulty and complexity of these questions about the connection between legislation and morals. Perhaps the most important and most difficult is the attitude the law should assume towards voluntary habits which are the cause of great and widespread misery in the community. One of the most conspicua ous of these is gambling. * * * Yet no one will doubt that gambling may easily become a passion scarcely less irresistible and less injurious than drink, and it is a passion which is common to all latitudes and to all stages of civilisation. Probably its chief root is that craving for excitement to which I have just referred as one of the deepest and strongest springs of human action. Man is so constituted that tranquil pleasure rarely suffices him. There are chords in his being which must be touched in another way, and he imperiously needs the thrill of intense emotion, even when that emotion is far from being exclusively pleasurable.” Democracy and Liberty, Vol. 2, Page 107. See also Hastings, Encyclopedia of Religion and Ethics, Vol. 3, p. 584, Encyclopedia of the Social Sciences, Vol. 6, p. 555, Keynes, Treatise on Probability, p. 20, p. 320.
The particular form of gambling in question here, the lottery, has come in for particular attention. Because of the ease of and profit in its operation, the lottery has had a long and international history and has been utilized for the support of the revenue and other beneficent purposes, Channing, History of the United States, Vol. 4, pp. 24— 27, Vol. 5, pp. 197-200, The Reference Shelf, Muller, Lotteries, Vol. 10, No. 2. Its evil has been thus described: “The real objection to lotteries is that most of their patrons are poor people, who can ill afford the sums they spend. Their dreams of success, of sudden unearned riches, are the unhealthy dreams of the escapist who finds the burden of his normal existence almost insupportable. The lottery, in short, has the same weakness as the sales tax; it is a levy on those who can least afford it: it reduces the purchasing power of the poor, and the revenues that might be derived from it by the government would help reduce the tax burden on the rich”. The Reference Shelf, Muller, Lotteries, Vol. 10, No. 2, pp. 103— 104. And it is accurate, we think, to say that the number of lotteries and of those approving them in the world are on the decline. The Reference Shelf, Muller, Lotteries, Vol. 2, No. 2, Negative Discussion, p. 103.
However that may be, there is no doubt about the current attitude of our people, at least so far as it is reflected in their institutions, if not in their habits. By constitutional mandate four states forbid all forms of gambling, Index Digest of State Constitutions, The New York State Constitutional Convention Commission, 1915, p. 702, and thirty-three states forbid it in the form of lotteries, Index Digest of State Constitutions, above cited, p. 977. All attempts to repeal these provisions have failed, Proceedings of the New York State Constitutional Convention, 1938, Vol. 6, p. 200. The United States (Sections 191, 336, 387, Title 18, U.S.C.A., Sections 135, 136, Title 19, U.S.C.A.) and all forty-eight states have signified their legislative abhorrence of gambling by lottery, 38 C.J. 303.
More germane to the principal case is the position of our courts. We say more germane because we cannot overlook (as some people did in 1919) the difficulties inherent in the enforcement of sumptuary legislation. “It is necessary to lay the foundation of the public administration in the affections of the people”. George Washington, Richardson, Messages and Papers of the Presidents (1789-1897) Vol. VI, p. 10; and see Lecky, above cited, pp. 106, 107. There is no such difficulty in the negative act of failing to give effect to transactions deemed to be contrary to public policy. Although wagering contracts were valid at common law, in modern times, in both England and most of the states of the United States, gambling transactions are “unenforceable” and only the loser has recourse to the courts) 27 C.J. 1048, 1080.
In our opinion, the requirement that the trader cease and desist from making a profit out of a lottery is more analogous to this abstention of the courts than it is to positive punishment of the habits of a people. As a matter- of fact, even a nation of adult bingo players (cf. testimony of petitioners’ candy broker, Record p. 179) would acquiesce in the prevention of pandering to the same instinct in their young.
Such, at any rate, has been the attitude of the law makers from earliest times. So we find the Pandect providing: “It is determined that no one that has given money on loan to a filiusfamilias, to be paid even after the death of the parent in whose power he is, shall be given any action or claim, that so these money-lenders of the worst sort may know that no filiusfamilias can contract a debt that will be good in the event of his father’s death”. D. 14, 6, 1. This enactment “derived its name either from Macedo, a well-known usurer; or from Macedo, a young debauchee, whose crimes had drawn the attention of the Senate to the perils arising from spendthrift children”, Tacitus, Ann. 11, 13, Suetonius, Vesp. 11. In England in 1541 an act prohibited lotteries because the young men spent their time gambling instead of prac-tising archery, 29 Journal of Criminal Law and Criminology 598, above cited. Many states attach special criminal significance to the encouragement of gambling by minors, 21 Cent., Gaming, sec. 203, 20 Cyc., 909. This ancient and modern legislation is but the reflection of a general opinion. The editors of The School Review related it to the particular practices of the case at bar:
“Children as well as adults are today constantly being exposed to the lure of various types of gambling schemes. These are rapidly increasing in number. One can hardly drop into the corner store or stop on the road while driving without running into slot machines, punchboards, and pin-ball games. And how appealing to the eye and imagination the manufacturers have made these devices!
“The situation has reached such proportions that serious consideration must be given to an intelligent attack on the problem. The soundest protection of the individual against the gambling evil would seem to be found in an intelligent understanding of the truth. Children cannot be protected from the various gambling schemes so common today by merely allowing them to grow up in ignorance of the facts, in the hope that they will never come into contact with them. The truth of the matter is that they come into contact with them at an early age and learn about them through very undesirable experiences. Various gambling schemes are used at American Legion carnivals and even church bazaars. As if the end justified the means!
“In order to find out what proportion of our children had some experience with slot machines and punchboards, we checked the children in the eighth grade. We found that 93 pupils or 78 per cent of the class had played slot machines and 64 pupils or 52 per cent had played punchboards. With such proportions at the elementary-school level, what can we expect later on?
“The experiences of children with such devices are usually very inadequate and misleading. The unfortunate thing about gambling is the fact that people tend to forget their losses but always remember their ‘winnings’. The thrill of winning makes a strong impression on the individual, and it remains in his memory. Then too it inflates his ‘ego’ to win, and he constantly reminds others of his ‘good judgment’. The losses are not as clearly appreciated because usually no account is kept of the nickels or quarters squandered on the machines from time to time. The ‘winnings’, however, always come in one larger payment and greatly impress the individual. Have you ever heard people tell about their great losses? But you have heard them tell about their ‘winnings’. As a result the impression grows that certain people are always lucky. Individuals themselves develop the attitude that they are just naturally lucky and can get something for nothing. This impression is particularly effective with children”. An Instance of Realistic Civil Education, The School Review, February 1938, pp. 92, 93. See also Evans, Are We Teaching Our Children To Gamble?, Parents Magazine, March 1937, p. 24; Hauser, A Short. Course in Gambling, Parents Magazine, June 1938, p. 31.
Petitioners seem to have had some realization of the reaction we have just been discussing. Their third ground of distinction from Federal Trade Commission v. Keppel & Bro. above cited, is the pretense that the candy does not reach the mouths of children. This assertion almost calls for the application of the Physical Facts Rule discussed in two recent opinions of this court. “The manufacturer puts up candy for sale to jobbers who sell to small neighborhood stores particularly those adjacent to schools”, Witness, Roskamm, p. 98. Does petitioners’ president envisage many of his grown-up friends and acquaintances gorging themselves on penny candy ? If he does, we do not.
The petition for review is dismissed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
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sc_authoritydecision
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D
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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.
GEIER et al. v. AMERICAN HONDA MOTOR CO., INC., et al.
No. 98-1811.
Argued December 7, 1999
Decided May 22, 2000
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Thomas, and Ginsburg, JJ., joined, post, p. 886.
Arthur H. Bryant argued the cause for petitioners. With him on the briefs were Leslie A. Brueckner and Robert M. N. Palmer.
Malcolm E. Wheeler argued the cause for respondents. With him on the brief were Benjamin S. Boyd, Mark A. Brooks, and Brad J. Safan.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Matthew D. Roberts, Douglas N. Letter, Kathleen Moriarty Mueller, Nancy E. McFadden, Paul M. Geier, and Frank Seales, Jr.
Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, Jaynes R. Layton, State Solicitor, Charles Hatfield, and Barbara McDonnell, Chief Deputy Attorney General of Colorado, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane Brady of Delaware, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Joseph R Mazurek of Montana, Philip T. McLaughlin of New Hampshire, Eliot Spitzer of New York, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, William H. Sorrell of Vermont, and Christine 0. Gregoire of Washington; for the Association of Trial Lawyers of America by Jeffrey Robert White; for the Attorneys Information Exchange Group by Larry E. Coben; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; and for Robert B Leñar et al. by Mr. Lefiar, pro se.
Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Theodore B. Olson, Theodore J. Bou-trous, Jr., Thomas G. Hungar, and Robin S. Conrad; for the Alliance of Automobile Manufacturers et al. by Thomas W. Merrill, Gene C. Schaerr, Brett M. Kavanaugh, and Richard A. Cordray; for the Blue Cross Blue Shield Association by Anthony F. Shelley and Alan I. Horowitz; for the Defense Research Institute by Kevin M. Reynolds, Robert L. Fanter, Richard J. Kirschman, Lloyd H. Milliken, Jr., Randall R. Riggs, and T. Joseph Wendt; for General Motors Corp. by David M. Heilbron and Leslie G. Landau; for the Product Liability Advisory Council, Inc., by Kenneth S. Getter, Erika Z. Jones, and John J. Sullivan; and for the Washington Legal Foundation by Lawrence S. Ebner, Daniel J. Popeo, and Richard A. Samp.
David Overlock Stewart and Thomas M. Susman filed a brief for the Business Roundtable as amicus curiae.
Justice Breyer
delivered the opinion of the Court.
This case focuses on the 1984 version of a Federal Motor Vehicle Safety Standard promulgated by the Department of Transportation under the authority of the National Traffic and Motor Vehicle Safety Act of 1966,80 Stat. 718,15 U. S. C. §1381 et seq. (1988 ed.). The standard, FMVSS 208, required auto manufacturers to equip some but not all of their 1987 vehicles with passive restraints. We ask whether the Act pre-empts a state common-law tort action in which the plaintiff claims that the defendant auto manufacturer, who was in compliance with the standard, should nonetheless have equipped a 1987 automobile with airbags. We conclude that the Act, taken together with FMVSS 208, pre-empts the lawsuit.
I
In 1992, petitioner Alexis Geier, driving a 1987 Honda Accord, collided with a tree and was seriously injured. The car was equipped with manual shoulder and lap belts which Geier had buckled up at the time. The car was not equipped with airbags or other passive restraint devices.
Geier and her parents, also petitioners, sued the car’s manufacturer, American Honda Motor Company, Inc., and its affiliates (hereinafter American Honda), under District of Columbia tort law. They claimed, among other things, that American Honda had designed its car negligently and defectively because it lacked a driver’s side airbag. App. 3. The District Court dismissed the lawsuit. The court noted that FMVSS 208 gave ear manufacturers a choice as to whether to install airbags. And the court concluded that petitioners’ lawsuit, because it sought to establish a different safety standard — i. e., an airbag requirement — was expressly preempted by a provision of the Act which pre-empts “any safety standard” that is not identical to a federal safety standard applicable to the same aspect of performance, 15 U. S. C. § 1392(d) (1988 ed.); Civ. No. 95-CV-0064 (D. D. C., Dec. 9, 1997), App. 17. (We, like the courts below and the parties, refer to the pre-1994 version of the statute throughout the opinion; it has been recodified at 49 U. S. C. § 30101 et seq.)
The Court of Appeals agreed with the District Court’s conclusion but on somewhat different reasoning. It had doubts, given the existence of the Act’s “saving” clause, 15 U. S. C. § 1397(k) (1988 ed.), that petitioners’ lawsuit involved the potential creation of the kind of “safety standard” to which the Safety Act’s express pre-emption provision refers. But it declined to resolve that question because it found that petitioners’ state-law tort claims posed an obstacle to the accomplishment of FMVSS 208’s objectives. For that reason, it found that those claims conflicted with FMVSS 208, and that, under ordinary pre-emption principles, the Act consequently pre-empted the lawsuit. The Court of Appeals thus affirmed the District Court’s dismissal. 166 F. 3d 1236,1238-1243 (CADC 1999).
Several state courts have held to the contrary, namely, that neither the Act’s express pre-emption nor FMVSS 208 preempts a “no airbag” tort suit. See, e. g., Drattel v. Toyota Motor Corp., 92 N. Y. 2d 35, 43-53, 699 N. E. 2d 376, 379-386 (1998); Minton v. Honda of America Mfg., Inc., 80 Ohio St. 3d 62, 70-79, 684 N. E. 2d 648, 655-661 (1997); Munroe v. Galati, 189 Ariz. 113, 115-119, 938 P. 2d 1114, 1116-1120 (1997); Wilson v. Pleasant, 660 N. E. 2d 327, 330-339 (Ind. 1995); Tebbetts v. Ford Motor Co., 140 N. H. 203, 206-207, 665 A. 2d 345, 347-348 (1995). All of the Federal Circuit Courts that have considered the question, however, have found pre-emption. One rested its conclusion on the Act’s express pre-emption provision. See, e.g., Harris v. Ford Motor Co., 110 F. 3d 1410, 1413-1415 (CA9 1997). Others, such as the Court of Appeals below, have instead found preemption under ordinary pre-emption principles by virtue of the conflict such suits pose to FMVSS 208’s objectives, and thus to the Act itself. See, e. g., Montag v. Honda Motor Co., 75 F. 3d 1414, 1417 (CA10 1996); Pokorny v. Ford Motor Co., 902 F. 2d 1116, 1121-1125 (CA3 1990); Taylor v. General Motors Corp., 875 F. 2d 816, 825-827 (CA11 1989); Wood v. General Motors Corp., 865 F. 2d 395, 412-414 (CA1 1988). We granted certiorari to resolve these differences. We now hold that this kind of “no airbag” lawsuit conflicts with the objectives of FMVSS 208, a standard authorized by the Act, and is therefore pre-empted by the Act.
In reaching our conclusion, we consider three subsidiary questions. First, does the Act’s express pre-emption provision pre-empt this lawsuit? We think not. Second, do ordinary pre-emption principles nonetheless apply? We hold that they do. Third, does this lawsuit actually conflict with FMVSS 208, hence with the Act itself? We hold that it does.
II
We first ask whether the Safety Act’s express pre-emption provision pre-empts this tort action. The provision reads as follows:
“Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment[,] any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard.” 15 U. S. C. § 1892(d) (1988 ed.).
American Honda points out that a majority of this Court has said that a somewhat similar statutory provision in a different federal statute — a provision that uses the word “requirements” — may well expressly pre-empt similar tort actions. See, e. g., Medtronic, Inc. v. Lohr, 518 U. S. 470, 502-504 (1996) (plurality opinion); id., at 503-505 (Breyer, J., concurring in part and concurring in judgment); id., at 509-512 (O’Connor, J., concurring in part and dissenting in part). Petitioners reply that this statute speaks of pre-empting a state-law “safety standard,” not a “requirement,” and that a tort action does not involve a safety standard. Hence, they conclude, the express pre-emption provision does not apply.
We need not determine the precise significance of the use of the word “standard,” rather than “requirement,” however, for the Act contains another provision, which resolves the disagreement. That provision, a “saving” clause, says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” 15 U. S. C. § 1397(k) (1988 ed.). The saving clause assumes that there are some significant number of common-law liability eases to save. And a reading of the express pre-emption provision that excludes common-law tort actions gives actual meaning to the saving clause’s literal language, while leaving adequate room for state tort law to operate — for example, where federal law creates only a floor, i. e., a minimum safety standard. See, e. g., Brief for United States as Amicus Curiae 21 (explaining that common-law claim that a vehicle is defectively designed because it lacks antilock brakes would not be pre-empted by 49 CFR §571.105 (1999), a safety standard establishing minimum requirements for brake performance). Without the saving clause, a broad reading of the express pre-emption provision arguably might pre-empt those actions, for, as we have just mentioned, it is possible to read the pre-emption provision, standing alone, as applying to standards imposed in common-law tort actions, as well as standards contained in state legislation or regulations. And if so, it would pre-empt all nonidentical state standards established in tort actions covering the same aspect of pei'-■formance as an applicable federal standard, even if the federal standard merely established a minimum standard. On that broad reading of the pre-emption clause little, if any, potential “liability at common law” would remain. And few, if any, state tort actions would remain for the saving clause to save. We have found no convincing indication that Congress wanted to pre-empt, not only state statutes and regulations, but also common-law tort actions, in such circumstances. Hence the broad reading cannot be correct. The language of the pre-emption provision permits a narrow reading that excludes common-law actions. Given the presence of the saving clause, we conclude that the pre-emption clause must be so read.
HH f — 1 1 — 1
We have just said that the saving clause at least removes tort actions from the scope of the express pre-emption clause. Does it do more? In particular, does it foreclose or limit the operation of ordinary pre-emption principles insofar as those principles instruct us to read statutes as preempting state laws (including common-law rules) that “actually conflict” with the statute or federal standards promulgated thereunder? Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982). Petitioners concede, as they must in light of Freightliner Corp. v. Myrick, 514 U. S. 280 (1995), that the pre-emption provision, by itself, does not foreclose (through negative implication) “any possibility of implied [conflict] pre-emption,” id., at 288 (discussing Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517-518 (1992)). But they argue that the saving clause has that very effect.
We recognize that, when this Court previously considered the pre-emptive effect of the statute’s ianguage, it appeared to leave open the question of how, or the extent to which, the saving clause saves state-law tort actions that conflict with federal regulations promulgated under the Act. See Freightliner, supra, at 287, n. 3 (declining to address whether the saving clause prevents a manufacturer from “us[ing] a federal safety standard to immunize itself from state common-law liability”). We now conclude that the saving clause (like the express pre-emption provision) does not bar the ordinary working of conflict pre-emption principles.
Nothing in the language of the saving clause suggests an intent to save state-law tort actions that conflict with federal regulations. The words “Compliance” and “does not exempt,” 15 U. S. C. § 1397(k) (1988 ed.), sound as if they simply bar a special kind of defense, namely, a defense that compliance with a federal standard automatically exempts a defendant from state law, whether the Federal Government meant that standard to be an absolute requirement or only a minimum one. See Restatement (Third) of Torts: Products Liability § 4(b), Comment ~e (1997) (distinguishing between state-law compliance defense and a federal claim of preemption). It is difficult to understand why Congress would have insisted on a compliance-with-federal-regulation precondition to the provision’s applicability had it wished the Act to “save” all state-law tort actions, regardless of their potential threat to the objectives of federal safety standards promulgated under that Act. Nor does our interpretation conflict with the purpose of the saving provision, say, by rendering it ineffectual. As we have previously explained, the saving provision still makes clear that the express pre-emption provision does not of its own force pre-empt common-law tort actions. And it thereby preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor. See supra, at 867-868.
Moreover, this Court has repeatedly “decline[d] to give broad effect to saving clauses where doing so would upset the careful regulatory scheme established by federal law.” United States v. Locke, ante, at 106-107; see American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U. S. 214, 227-228 (1998) (AT&T); Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 446 (1907). We find this concern applicable in the present ease. And we conclude that the saving clause foresees — it does not foreclose— the possibility that a federal safety standard will pre-empt a state common-law tort action with which it conflicts. We do not imderstand the dissent to disagree, for it acknowledges that ordinary pre-emption principles apply, at least sometimes. Post, at 899-900 (opinion of Stevens, J.).
Neither do we believe that the pre-emption provision, the saving provision, or both together, create some kind of “special burden” beyond that inherent in ordinary pre-emption principles — which “special burden” would specially disfavor pre-emption here. Cf. post, at 898-899. The two provisions, read together, reflect a neutral policy, not a specially favorable or unfavorable policy, toward the application of ordinary conflict pre-emption principles. On the one hand, the pre-emption provision itself reflects a desire to subject the industry to a single, uniform set of federal safety standards. Its pre-emption of all state standards, even those that might stand in harmony with federal law, suggests an intent to avoid the conflict, uncertainty, cost, and occasional risk to safety itself that too many different safety-standard cooks might otherwise create. See H. R. Rep. No. 1776, 89th Cong., 2d Sess., 17 (1966) (“Basically, this preemption subsection is intended to result in uniformity of standards so that the public as well as industry will be guided by one set of criteria rather than by a multiplicity of diverse standards”); S. Rep. No. 1301,89th Cong., 2d Sess., 12 (1966). This policy by itself favors pre-emption of state tort suits, for the rules of law that judges and juries create or apply in such suits may themselves similarly create uncertainty and even conflict, say, when different juries in different States reach different decisions on similar facts.
On the other hand, the saving clause reflects a congressional determination that occasional nonuniformity is a small price to pay for a system in which juries not only create, but also enforce, safety standards, while simultaneously providing necessary compensation to victims. That policy by itself disfavors pre-emption, at least some of the time. But we can find nothing in any natural reading of the two provisions that would favor one set of policies over the other where a jury-imposed safety standard actually conflicts with a federal safety standard.
Why, in any event, would Congress not have wanted ordinary pre-emption principles to apply where an actual conflict with a federal objective is at stake? Some such principle is needed. In its absence, state law could impose legal duties that would conflict directly with federal regulatory mandates, say, by premising liability upon the presence of the very windshield retention requirements that federal law requires. See, e. g., 49 CFR § 571.212 (1999). Insofar as petitioners’ argument would permit common-law actions that "actually conflict” with federal regulations, it would take from those who would enforce a federal law the very ability to achieve the law’s congressionally mandated objectives that the Constitution, through the operation of ordinary preemption principles, seeks to protect. To the extent that such an interpretation of the saving provision reads into a particular federal law toleration of a conflict that those principles would otherwise forbid, it permits that law to defeat its own objectives, or potentially, as the Court has put it before, to “‘destroy itself.’” AT&T, supra, at 228 (quoting Abilene Cotton, supra, at 446). We do not claim that Congress lacks the constitutional power to write a statute that mandates such a complex type of state/federal relationship. Cf. post, at 900, n. 16. But there is no reason to believe Congress has done so here.
The dissent, as we have said, contends nonetheless that the express pre-emption and saving provisions here, taken together, create a “special burden,” which a court must impose “on a party” who claims conflict pre-emption under those principles. Post, at 898. But nothing in the Safety Act’s language refers to any “special burden.” Nor can one find the basis for a “special burden” in this Court’s precedents. It is true that, in Freightliner Corp. v. Myrick, 514 U. S. 280 (1995), the Court said, in the context of interpreting the Safety Act, that “[a]t bestS” there is an “inference that an express pre-emption clause forecloses implied pre-emption.” Id., at 289 (emphasis added). But the Court made this statement in the course of rejecting the more absolute, argument that the presence of the express pre-emption provision entirely foreclosed the possibility of conflict pre-emption. Id., at 288. The statement, headed with the qualifier “[a]t best,” and made in a case where, without any need for inferences or “special burdens,” state law obviously would survive, see id., at 289-290, simply preserves a legal possibility. This Court did not hold that the Safety Act does create a “special burden,” or still less that such a burden necessarily arises from the limits of an express pre-emption provision. And considerations of language, purpose, and administrative workability, together with the principles underlying this Court’s pre-emption doctrine discussed above, make clear that the express pre-emption provision imposes no unusual, “special burden” against pre-emption. For similar reasons, we do not see the basis for interpreting the saving clause to impose any such burden.
A “special burden” would also promise practical difficulty by further complicating well-established pre-emption principles that already are difficult to apply. The dissent does not contend that this “special burden” would apply in a case in which state law penalizes what federal law requires — i. e., a case of impossibility. See post, at 892-893, n. 6, 900, n. 16. But if it would not apply in such a ease, then how, or when, would it apply? This Court, when describing conflict preemption, has spoken of pre-empting state law that “under the circumstances of th[e] particular ease... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” — whether that “obstacle” goes by the name of “conflicting; contrary to;... repugnance; difference; irreconcilability; inconsistency; violation; curtailment;... interference,” or the like. Hines v. Davidowitz, 312 U. S. 52, 67 (1941); see Jones v. Rath Packing Co., 430 U. S. 519, 526 (1977). The Court has not previously driven a legal wedge — only a terminological one — between “conflicts” that prevent or frustrate the accomplishment of a federal objective and “conflicts” that make it “impossible” for private parties to comply with both state and federal law. Rather, it has said that both forms of conflicting state law are “nullified” by the Supremacy Clause, De la Cuesta, 458 U. S., at 152-153; see Locke, ante, at 109; English v. General Elec. Co., 496 U. S. 72, 78-79 (1990), and it has assumed that Congress would not want either kind of conflict. The Court has thus refused to read general “saving” provisions to tolerate actual conflict both in cases involving impossibility, see, e. g., AT&T, 524 U. S., at 228, and in “frustration-of-purpose” eases, see, e. g., Locke, ante, at 103-112; International Paper Co. v. Ouellette, 479 U. S. 481, 493-494 (1987); see also Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U. S. 311, 328-331 (1981). We see no grounds, then, for attempting to distinguish among types of federal-state conflict for purposes of analyzing whether such a conflict warrants pre-emption in a particular case. That kind of analysis, moreover, would engender legal uncertainty with its inevitable systemwide costs (e.g., conflicts, delay, and expense) as courts tried sensibly to distinguish among varieties of “conflict” (which often shade, one into the other) when applying this complicated rule to the many federal statutes that contain some form of an express pre-emption provision, a saving provision, or as here, both. Nothing in the statute suggests Congress wanted to complicate ordinary experience-proved principles of conflict pre-emption with an added “special burden.” Indeed, the dissent’s willingness to impose a “special burden” here stems ultimately from its view that “frustration-of-purpos[e]’’ conflict pre-emption is a freewheeling, “inadequately considered” doctrine that might well be “eliminate^].” Post, at 907-908, and n. 22. In a word, ordinary pre-emption principles, grounded in longstanding precedent, Hines, supra, at 67, apply. We would not further complicate the law with complex new doctrine.
IV
The basic question, then, is whether a common-law “no airbag” action like the one before us actually conflicts with FMVSS 208. We hold that it does.
In petitioners’ and the dissent’s view, FMVSS 208 sets a minimum airbag standard. As far as FMVSS 208 is concerned, the more airbags, and the sooner, the better. But that was not the Secretary’s view. The Department of Transportation’s (DOT’s) comments, which accompanied the promulgation of FMVSS 208, make clear that the standard deliberately provided the manufacturer with a range of choices among different passive restraint devices. Those choices would bring about a mix of different devices introduced gradually over time; and FMVSS 208 would thereby lower costs, overcome technical safety problems, encourage technological development, and win widespread consumer acceptance — all of which would promote FMVSS 208’s safety objectives. See generally 49 Fed. Reg. 28962 (1984).
A
The history of FMVSS 208 helps explain why and how DOT sought these objectives. See generally Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 34-38 (1983). In 1967, DOT, understanding that seatbelts would save many lives, required manufacturers to install manual seatbelts in all automobiles. 32 Fed. Reg. 2408, 2415. It became apparent, however, that most occupants simply would not buckle up their belts. See 34 Fed. Reg. 11148 (1969). DOT then began to investigate the feasibility of requiring “passive restraints,” such as airbags and automatic seatbelts. Ibid. In 1970, it amended FMVSS 208 to include some passive protection requirements, 35 Fed. Reg. 16927, while making clear that airbags were one of several “equally acceptable” devices and that it neither “ 'favored’ [n]or expected the introduction of airbag systems.” Ibid. In 1971, it added an express provision permitting compliance through the use of nondetachable passive belts, 36 Fed. Reg. 12858, 12859, and in 1972, it mandated full passive protection for all front seat occupants for vehicles manufactured after August 15, 1975, 37 Fed. Reg. 3911. Although the agency’s focus was originally on airbags, 34 Fed. Reg. 11148 (1969) (notice of proposed rule-making); State Farm, 463 U. S., at 35, n. 4; see also id., at 46, n. 11 (noting view of commentators that, as of 1970, FMVSS 208 was “ ‘a de facto airbag mandate’ ” because of the state of passive restraint technology), at no point did FMVSS 208 formally require the use of airbags. From the start, as in 1984, it permitted passive restraint options.
DOT gave manufacturers a further choice for new vehicles manufactured between 1972 and August 1975. Manufacturers could either install a passive restraint device such as automatic seatbelts or airbags or retain manual belts and add an “ignition interlock” device that in effect forced occupants to buckle up by preventing the ignition otherwise from turning on. 37 Fed. Reg. 3911 (1972). The interlock soon became popular with manufacturers. And in 1974, when the agency approved the use of detachable automatic seatbelts, it conditioned that approval by providing that such systems must include an interlock system and a continuous warning buzzer to encourage reattachment of the belt. 39 Fed. Reg. 14593. But the interlock and buzzer devices were most unpopular with the public. And Congress, responding to public pressure, passed a law that forbade DOT from requiring, or permitting compliance by means of, such devices. Motor Vehicle and Schoolbus Safety Amendments of 1974, § 109,88 Stat. 1482 (previously codified at 15 U. S. C. § 1410b(b) (1988 ed.)).
That experience influenced DOT’S subsequent passive restraint initiatives. In 1976, DOT Secretary William T. Coleman, Jr., fearing continued public resistance, suspended the passive restraint requirements. He sought to win public acceptance for a variety of passive restraint devices through a demonstration project that would involve about half a million new automobiles. State Farm, supra, at 37. But his successor, Brock Adams, canceled the project, instead amending FMVSS 208 to require passive restraints, principally either airbags or passive seatbelts. 42 Fed. Reg. 34289 (1977).
Andrew Lewis, a new DOT Secretary in a new administration, rescinded the Adams requirements, primarily because DOT learned that the industry planned to satisfy those requirements almost exclusively through the installation of detachable automatic seatbelts. 46 Fed. Reg. 53419-53420 (1981). This Court held the rescission unlawful. State Farm, supra, at 34, 46. And the stage was set for then-DOT Secretary, Elizabeth Dole, to amend FMVSS 208 once again, promulgating the version that is now before us. 49 Fed. Reg. 28962 (1984).
B
Read in light of this history, DOT’s own contemporaneous explanation of FMVSS 208 makes clear that the 1984 version of FMVSS 208 reflected the following significant considerations. First, buckled up seatbelts are a vital ingredient of automobile safety. Id., at 29003; State Farm, supra, at 52 (“We start with the accepted ground that if used, seatbelts unquestionably would save many thousands of lives and would prevent tens of thousands of crippling injuries”). Second, despite the enormous and unnecessary risks that a passenger runs by not buckling up manual lap and shoulder belts, more than 80% of front seat passengers would leave their manual seatbelts unbuckled. 49 Fed. Reg. 28983 (1984) (estimating that only 12.5% of front seat passengers buckled up manual belts). Third, airbags could make up for the dangers caused by unbuckled manual belts, but they could not make up for them entirely. Id., at 28986 (concluding that, although an airbag plus a lap and shoulder belt was the most “effective” system, airbags alone were less effective than buckled up manual lap and shoulder belts).
Fourth, passive restraint systems had their own disadvantages, for example, the dangers associated with, intrusiveness of, and corresponding public dislike for, nondetachable automatic belts. Id., at 28992-28993. Fifth, airbags brought with them their own special risks to safety, such as the risk of danger to out-of-position occupants (usually children) in small cars. Id., at 28992, 29001; see also 65 Fed. Reg. 30680, 30681-30682 (2000) (finding 158 confirmed airbag-induced fatalities as of April 2000, and amending rule to add new requirements, test,procedures, and injury criteria to ensure that “future air bags be designed to create less risk of serious airbag-induced injuries than current air bags, particularly for small women and young children”); U. S. Dept, of Transportation, National Highway Traffic Safety Administration, National Accident Sampling System Crash-worthiness Data System 1991-1993, p. viii (Aug. 1995) (finding that airbags caused approximately 54,000 injuries between 1991 and 1993).
Sixth, airbags were expected to be significantly more expensive than other passive restraint devices, raising the average cost of a vehicle price $320 for full frontal airbags over the cost of a car with manual lap and shoulder seatbelts (and potentially much more if production volumes were low). 49 Fed. Reg. 28990 (1984). And the agency worried that the high replacement cost — estimated to be $800 — could lead ear owners to refuse to replace them after deployment. Id., at 28990, 29000-29001; see also id., at 28990 (estimating total investment costs for mandatory airbag requirement at $1.3 billion compared to $500 million for automatic seatbelts). Seventh, the public, for reasons of cost, fear, or physical intrusiveness, might resist installation or use of any of the then-available passive restraint devices, id., at 28987-28989 — a particular concern with respect to airbags, id., at 29001 (noting that “[a]irbags engendered the largest quantity of, and most vociferously worded, comments”).
FMVSS 208 reflected these considerations in several ways. Most importantly, that standard deliberately sought variety — a mix of several different passive restraint systems. It did so by setting a performance requirement for passive restraint devices and allowing manufacturers to choose among different passive restraint mechanisms, such as airbags, automatic belts, or other passive restraint technologies to satisfy that requirement. Id., at 28996. And DOT explained why FMVSS 208 sought the mix of devices that it expected its performance standard to produce. Id., at
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_respond1_1_3
|
I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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.
Paul William LITTLEFIELD, Appellant, v. FORT DODGE MESSENGER, a newspaper published daily by Messenger Printing Company, a division of The Ogden Newspapers, Inc., a corporation, and Mike Glover, Appellees.
No. 79-1215.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 8, 1979.
Decided Jan. 2, 1980.
Certiorari Denied March 24, 1980.
See 100 S.Ct. 1342.
Paul William Littlefield, pro se.
Herbert R. Bennett, Bennett, Beisser & Wilke, Fort Dodge, Iowa, for appellees.
Before LAY, HEANEY and HENLEY, Circuit Judges.
HEANEY, Circuit Judge.
Paul Littlefield appeals from the dismissal of his libel complaint by the court below. We affirm.
On August 6, 1973, in the Fayetteville Circuit Court for the State of Kentucky, Littlefield, a lawyer, pled guilty to the misdemeanor of attempting to commit a felony. He was placed on three years probation which was conditioned in part on his forsaking the practice of law for the duration of the probation.
A little over a year later, the Committee on Professional Ethics and Conduct of the Iowa State Bar Association reported to the Iowa Supreme Court that Littlefield was practicing law in Iowa in violation of his Kentucky probation. On December 16, 1974, notice was issued by that court advising Littlefield as follows: “[Sjatisfactory evidence has been received by this Court of your conviction of a crime. Said evidence being you were on or about August 6, 1973 convicted upon your plea of guilty to a charge of attempting to commit a felony[.]” The notice further informed him of a hearing concerning his temporary suspension from the practice of law.
In reporting on this chain of events, the Fort Dodge Messenger ran a front-page article entitled “Set hearing on license suspension.” The eleventh paragraph of that article misquoted the above cited notice (which it called an order) as follows: “The order, filed by the court Monday states that ‘satisfactory evidence has been received of your (Littlefield’s) pleading guilty of a felony [.]’” (Emphasis added.) The italicized portion should have read “of a crime.” It is this misquotation that Littlefield characterizes as libelous.
The law of libel involves the accommodation of federal constitutional interests in free speech and a robust press with state interests in protecting the reputations of its citizens from defamatory falsehoods. In recent years, the Supreme Court has on several occasions described the contours of that accommodation. See Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As a result, distinctions between “public officials” or “public figures” and “private individuals” have assumed critical importance. Public officials or figures can recover damages caused by defamatory falsehoods from media defendants only if they can demonstrate actual malice — i. e., that the publication was made “with knowledge of [the statement’s] falsity or with reckless disregard for the truth.” Gertz v. Welch, supra, 418 U.S. at 342, 94 S.Ct. at 3008. States may permit private individuals to recover damages from media defendants in accordance with a less stringent standard of culpability, so long as state law does “not impose liability without fault.” Id at 347, 94 S.Ct. 2997.
While the line between public figures and private persons is not always clear, the Supreme Court’s decisions in Gertz and Firestone offer guidance. In Gertz, an attorney representing the family of a youth killed by a Chicago police officer complained of an allegedly defamatory article published about him in American Opinion, “a monthly outlet for the views of the John Birch Society.” Gertz v. Welch, supra at 325, 94 S.Ct. at 3000. In determining what level of constitutional protection should be afforded this article, the Supreme Court rejected the position advanced by a plurality in Rosenbloom v. Metromedia, supra, that the inquiry should focus on whether the article involved a topic of “public or general interest.” Gertz v. Welch, supra, 418 U.S. at 346, 94 S.Ct. 2997. Rather, in recognition of the state interest in “the compensation of individuals for the harm inflicted on them by defamatory falsehood,” id. at 341, 94 S.Ct. at 3008, the Court focused on “the status of the person defamed.” Id. at 333, 94 S.Ct. at 3004. It drew a line between public figures and private individuals, noting that public figures have greater ability to contradict falsehoods through self-help, id. at 344, 94 S.Ct. 2997, and that public figures are assumed to have “voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them.” Id. at 345, 94 S.Ct. at 3010.
In Firestone, Mary Alice Firestone alleged that she had been defamed by a Time magazine squib reporting on the Florida court proceedings in which she was divorced from her husband, Russell Firestone, “the scion of one of America’s wealthier industrial families.” Time, Inc. v. Firestone, supra, 424 U.S. at 450, 96 S.Ct. at 963. The Court rejected two arguments proffered in support of the actual malice standard. First, it held that Ms. Firestone was not a public figure because she “did not assume any role of especial prominence in the affairs of society, other than perhaps Palm Beach Society, and she did not thrust herself to the forefront of any particular public controversy in order to influence the resolution of the issues involved in it.” Id. at 453, 96 S.Ct. at 965. Her “voluntary” resort to court and even the press conferences she held during the divorce proceedings were not attempts to influence the resolution of any public controversy. Id. at n. 3, 96 S.Ct. 958. Second, the Court rejected the argument that coverage of judicial proceedings is, per se, sufficient to warrant invocation of the actual malice standard. In reaffirming Gertz’s rejection of the “public or general interest” standard, it emphasized that the focus remains on the status of the person defamed rather than the issue under discussion. It noted that
while participants in some litigation may be legitimate “public figures,” either generally or for the limited purpose of that litigation, the majority will more likely resemble respondent, drawn into a public forum largely against their will in order to attempt to obtain the only redress available to them or to defend themselves against actions brought by the State or by others.
Id. at 457, 96 S.Ct. at 966-67.
We turn now to the case before us. The district court, in dismissing Littlefield’s complaint, concluded that he was a public figure for the limited issue of his bar discipline proceedings. In so holding, the court found a voluntariness in Littlefield’s actions that was absent in Gertz and Firestone.
[Littlefield] is unlike Gertz and Firestone in that he was drawn into a public forum and debate as a result of his purposeful act of practicing law in Iowa in direct contravention of his probation.
Littlefield v. Fort Dodge Messenger et al., 481 F.Supp. 919, 922 (D.N.D.Iowa 1978). The district court also noted that the substantial public interest in bar disciplinary proceedings was an additional factor that .may be relevant, in finding Littlefield to be a public figure. Id. at 922. The court applied the public figure standard, and concluded that actual malice had not been proven. Id. at 920. Finally, it noted that “even if [Littlefield] were found to be a private person, his utter failure to prove actual injury or damages of any kind would bar recovery.” Id. at 923 (footnote and citation deleted).
Our analysis differs in part from that of the district court since we cannot agree that Littlefield is a public figure. We fail to see anything in Littlefield’s status indicating that he has ready access to effective means of self-help or that he has voluntarily assumed the risks of public exposure by thrusting himself into a public controversy with a view toward influencing its resolution. While it is true that he “voluntarily” practiced law in violation of his probation, there is no indication that he did so out of a desire to influence any public controversy. Rather, his voluntary action is akin to that of Ms. Firestone’s in her petitioning a court for separate maintenance from her husband. Although the issue in which Littlefield became involved was of great public interest, he like the “majority” of litigants, was “drawn into a public forum largely against [his] will in order * * * to defend [himself] against actions brought by the State.” Time, Inc. v. Firestone, supra, 424 U.S. at 457, 96 S.Ct. at 967. Furthermore, the public’s interest should not be considered in making the public figure/private individual determination. After Gertz and Firestone, the status of the person allegedly defamed is the controlling factor.
Although we find Littlefield to be a private individual for the purposes of this libel action, we agree with the district court that he has failed to prove damages. Gertz held that “States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Gertz v. Welch, supra, 418 U.S. at 349, 94 S.Ct. at 3011. Only actual damages may be compensated on a showing of lesser fault. Though actual damages could include “impairment of reputation * * *, personal humiliation, and mental anguish and suffering,” id. at 350, 94 S.Ct. at 3012, Littlefield’s only evidence of damage concerned his dismissal from employment. This evidence was inadequate since it consisted solely of Little-field’s testimony that he was dismissed from his employment with the federal government in Brentwood, Missouri, after his supervisor made a trip to Fort Dodge, Iowa, where he learned of Littlefield’s disbarment. Littlefield failed to prove either (1) that his supervisor ever believed him to be a felon, or (2) that such belief, rather than knowledge of his disbarment, was the motivating factor in his termination. Moreover, Littlefield failed to prove any link between the article of which he complains, published in 1974, and his supervi- . sor’s 1976 discovery of his disbarment. Thus, Littlefield failed to prove any actual damage resulting from the article.
Littlefield raises two ancillary contentions. The first is that the district court erred in not granting his request for a jury trial. Littlefield never made a written demand for a jury trial as required by Rule 38(b), Fed.R.Civ.P. This failure constitutes a waiver of a trial by jury. Rule 38(d), Fed.R.Civ.P. He now contends that the district court abused its discretion in failing to grant a jury trial when a belated request was made for one at the pretrial conference. See Rule 39(b), Fed.R.Civ.P. While we agree that courts “ought to approach each application under Rule 39(b) with an open mind,” 9 C. Wright & A. Miller, Federal Practice and Procedure § 2334, at 116 (1971), and that jury trials ought to be liberally granted when no prejudice results, we do not find the denial here to be an abuse of the district court’s discretion. Littlefield offers no justification for the failure to make an appropriate demand other than inexperience, and he points to no prejudice resulting from denial. Furthermore, the record shows that Littlefield engaged in a pattern of conduct apparently intended to delay trial. Granting his request for a trial by jury at the pretrial conference stage would have further delayed final disposition of the matter. In these circumstances, denial of the request was within the bounds of the discretion of the trial court.
Second, Littlefield contends that the district court erred in failing to decide whether Littlefield’s right to privacy had been invaded. He contends that his disciplinary proceedings were confidential under Iowa Sup.Ct.R. 118.7 and, therefore, that the Fort Dodge Messenger invaded his privacy by publishing its article relating to those proceedings. It is clear, however, that the rule on which Littlefield relies governs only the actions of the Iowa bar. It does not purport to govern the actions of the press. If so, it would constitute a constitutionally suspect prior restraint on publication.
For the reasons set forth in this opinion, the order of the district court is affirmed.
. United States District Court for the Northern District of Iowa, Central Division.
. Littlefield also alleges that he was libeled in the concluding paragraph of a subsequent article entitled “Former F. D. Man disbarred,” printed in the Fort Dodge Messenger on August 30, 1976. That paragraph reads as follows: “Littlefield no longer lives in Fort Dodge and his present whereabouts are not known, though he was reportedly living in New Orleans at one time.” Littlefield contends that this was written in an “FBI wanted poster style and con-taints] false and misleading information.” The record discloses that the paper made several attempts to determine Littlefield’s current address but was unable to do so. Thus, although Littlefield’s whereabouts may have been known to some, we cannot say that the statement was false. Certainly it was not libelous.
. The court specifically avoided making the nature of the issue under discussion, i. e., disciplinary proceedings, a determinative factor in reaching the conclusion that Littlefield was a public figure; it considered Littlefield’s voluntary conduct alone to be sufficient to support its holding. Littlefield v. Fort Dodge Messenger et al., 481 F.Supp. 919, 922 (D.N.D.Iowa 1978).
. While we do not reach the issue of fault, we note that the standard required of private plaintiffs under Iowa libel law is not clear. Gertz v. Welch, 418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), requires that state libel law not impose liability without fault. Thus, states must require defamation plaintiffs to prove at least negligence in the publication of defamatory falsehoods; they may require more. See Troman v. Wood, 62 Ill.2d 184, 340 N.E.2d 292 (Ill.1975). The Supreme Court of Iowa expressly reserved its judgment on the standard applicable to private plaintiffs in McCarney v. Des Moines Register & Tribune Co., 239 N.W.2d 152, 158 (Iowa 1976). Even assuming that Iowa would adopt the negligence standard, it appears that Littlefield failed to make even that showing. The record indicates that the defendant reporter, who checked his story, in general terms, with a variety of sources including Littlefield, exercised due care in writing the piece.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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