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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.
Beverly M. GARY, Appellee, v. U. S. OIL SCREW ECHO, her engines, tackle, furnishings, etc., in rem, and Charles Alligood, her owner, in perso-nam, Appellants.
No. 9328.
United States Court of Appeals Fourth Circuit.
Argued April 24, 1964.
Decided June 15, 1964.
George H. McNeill, Morehead City, N. C., and George Rountree, Jr., Wilmington, N. C., for appellants.
C. R. Wheatly, Jr., Beaufort, N. C., for appellee.
Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and CRAVEN, District Judge.
CRAVEN, District Judge.
U. S. Oil Screw Echo and her owner, Charles Alligood, appeal from a decree of the district court adjudging Echo solely responsible for collision damage to yacht Beverly. Echo was not damaged. The vessels were meeting in a narrow channel. The collision occurred at 6:00 P.M. on October 15,1956. Darkness had overtaken the Beverly, a thirty-three foot Chris-Craft, as she proceeded south-wardly in the inland waterway about two and a half miles north of Beaufort and Morehead City, North Carolina. Mr. and Mrs. A. H. Marshall, parents of the owner of Beverly and the only persons aboard, had not intended to be under way at night. It was Mr. Marshall’s seventh trip to Florida via the inland waterway, but neither he nor Mrs. Marshall were experienced in nighttime navigation, and sought to avoid it. Their planned speed was cut in half because of a northeaster in the Neuse River. Otherwise, they would have made Beaufort before dark,
Shortly before the collision the Mar-shalls were studying their chart with the aid of a flashlight trying to locate their position. Beverly was equipped with radio and searchlight, but neither was used. Lost, unaware of where they were going and fearful of running into a bank, the Marshalls kept on at a steady speed of five to six land miles per hour. They never saw any lights other than what they thought to be the lights of Beaufort, and never saw the Echo until it was upon them. Both were standing on the port side of Beverly at time of impact, Perhaps instinctively, in the last seconds remaining, Mr. Marshall turned Beverly hard to port so that she took the bow of Echo into her starboard side.
At moment of impact, the Beverly wag) ¡n Mr_ Marsha]1»s own words> “defi-nitdy way over on the wrong side of the channel.”
a fifty foot shrimp trawler, was owned and operated by Charles Alligood, assisted by Joseph Davis. She was bound north to the mouth of Adams Creek- — -intending to fish for shrimp the next morning. Her speed was slightly faster than that of Beverly — about six to eight land miles per hour. With the Beaufort lights behind her, visibility was good enough so that Alligood had Beverly under observation for as long as eight to ten or maybe even fifteen minutes before collision. He knew he was meeting Beverly in a narrow two hundred foot channel, and expected to pass her within twenty-five yards. Echo hugged the starboard (east) side of the channel. Her master erroneously deemed that a sufficient precaution and failed to give one blast of her whistle as required by Rule 1. 33 U.S.C.A. § 203.
4-
Initially, libellant Beverly M. Gary, owner of Beverly, asserts that this court is without jurisdiction to consider the merits of the decision below. Although plausibly presented, the plea in bar is without merit.
On November 20, 1963, the district judge filed his findings of fact and con-elusions of law, coupled with an opinion, The entire paper writing was inadvertently entitled “Opinion and Decree”. Also, near the end of the opinion appear the words “Decree for Libellant”. On December 5, libellant Gary submitted proposed interlocutory decree “in compliance with opinion filed in this cause.” Clearly, counsel interpreted the words “Decree for Libellant” in the opinion of the court dated November 20, 1963, as meaning the routine invitation to prevailing counsel to submit an appropriate decree in accordance with the opinion. We agree with that interpretation. On December 9, the district court entered the interlocutory decree proposed by libellant referring to its opinion of November 20, and on December 11, 1963, Echo and her owner gave notice of appeal within the fifteen day period permitted by 28 U.S.C.A. § 2107.
We hold that the only decree entered is that one designated “Interlocutory Decree” as of the 9th day of December, 1963. There would have been no occasion for the entry of the interlocutory decree of December 9 if the opinion of the court of November 20 had been considered by the district court and the parties to be an interlocutory judgment. The viewpoint and conduct of counsel below and . of the district court, although not binding upon us, is certainly persuasive that the opinion of Judge Larkins of November 20 is that and nothing more. The word decree appeared in it ambiguously, but counsel correctly resolved the ambiguity. The purported first appeal by Echo on December 6 was premature and served merely to underscore the confusion of all concerned.
II.
We agree with the conclusion of the district court that the failure of the Echo to give a short and distinct blast when the vessels were meeting head and head in such manner as to involve risk of collision in a narrow channel constituted a statutory fault.
Echo’s master saw Beverly’s red and green lights until he lost the green light at a distance of one hundred or a hundred and fifty yards from Beverly. Echo correctly urges that Rule 1 had no application at night unless each vessel is “in such a position as to see both the sidelights of the other.” But the proviso in the Rule is not an invitation to wait until the last possible moment on the chance of a whistle blast becoming unnecessary. Long before he lost the green light, the master of Echo should have sounded one short and distinct blast of the whistle because the vessels were approaching each other nearly end on; and the statute so requires.
Like the tug in Esso Standard Oil Co. v. Oil Screw Tug Maluco I and Barge #127, 4 Cir., 332 F.2d 211, Echo asks what more was required to avoid collision, inasmuch as she was already hugging the right bank. The answer has just been manifested: one short blast of the whistle given far enough away to afford time to Beverly to heed the admonition. Correctly, the district court invoked the Pennsylvania rule. S. S. Pennsylvania v. Troop, 19 Wall. 125, 22 L.Ed. 148 (1874). To escape liability for her dereliction Echo “must acquit herself of every reasonable possibility of contribution to the misfortune.” Esso Standard Oil Co. v. Oil Screw Tug Maluco I and Barge #127, supra. Echo failed to show that her failure to blow her whistle could not have contributed to causing the collision. The district court thought it did contribute and adjudged her liable. In this aspect of the case we find no error.
III.
In its opinion and findings of fact dated November 20, 1963, the district court found that: “Unknown to Marshall and his wife, the Beverly had veered into the east side of the channel, i. e., the Marshalls’ port side.” Erroneously, we think, the district court applied the Major-Minor Rule and exculpated Beverly. The quoted finding of fact establishes a clear violation of the Narrow Channel Rule, Article 25 of Inland Rules of Navigation, 33 U.S.C. § 210:
“In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.”
This violation is not a minor or trivial fault. Neither the Marshalls’ inexperience in night navigation or the fact they were lost excuses the statutory fault. There is lacking here even the plausible excuse offered unavailingly by the tanker in Esso Standard Oil Co. v. Oil Screw Tug Maluco I and Barge #127, supra. There is no doubt with regard to the mismanagement of the Beverly. Unlike The Barbara, 62 F.Supp. 265 (D.C. Mass.1945), there was not ample room for the Echo to move farther to its starboard side and thus pass port to port: Echo was as far to starboard as it could go. Nor was Echo’s failure to whistle so “foolhardy and inexplicable” that it could not have been anticipated — as was the situation in Webb v. Davis, 236 F.2d 90 (4th Cir. 1956).
Beverly’s proceeding on the wrong side of the channel was a cause, not a condition, of the collision. Esso Standard Oil Co. v. Oil Screw Tug Maluco I and Barge #127, supra; Matton Oil Transfer Co. v. The Greene, 129 F.2d 618 (2d Cir. 1942).
Echo persuasively urges that Beverly was guilty of other serious defaults contributing to the collision. The district judge made no finding of fact with respect to whether Echo’s running lights were burning other than to note that the evidence was in sharp dispute. He did find that Mr. Marshall in the Beverly observed no approaching vessels. Probably, Beverly was guilty of failure to keep a proper lookout. It is not necessary to decide. Beverly’s undisputed violation of the Narrow Channel Rule affords sufficient rationale for joint liability and division of damages, and it will be so ordered.
Sustained as to liability of Echo and owner.
Reversed as to liability of Beverly M. Gary.
Affirmed in part and reversed in part.
. See footnote 11 in Boyer v. The Merry Queen, 202 F.2d 575 (3d Cir. 1953), for an interesting criticism of the Rule.
. Small pleasure boats such as Beverly are subject to these Rules. 12 Am.Jur.2d “Boats & Boating” Sections 14, 32, 33.
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_authoritydecision
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
CARTER et al. v. JURY COMMISSION OF GREENE COUNTY et al.
No. 30.
Argued October 21, 1969
Decided January 19, 1970
Norman C. Amaker argued the cause for appellants. With him on the briefs were Jack Greenberg and Orzell Billingsley, Jr.
Leslie Hall argued the cause for appellees. On the brief were MacDonald Gallion, Attorney General of Alabama, and Robert P. Bradley and Jasper B. Roberts, Assistant Attorneys General.
Mr. Justice Stewart
delivered the opinion of the Court.
The appellants, Negro citizens of Greene County, Alabama, commenced this class action against officials charged with the administration of the State’s jury-selection laws: the county jury commissioners and their clerk, the local circuit court judge, and the Governor of Alabama. The complaint alleged that the appellants were fully qualified to serve as jurors and desired to serve, but had never been summoned for jury service. It charged that the appellees had effected a discriminatory exclusion of Negroes from grand and petit juries in Greene County — the Governor in his selection of the county jury commission, and the commissioners and judge in their arbitrary exclusion of Negroes. The complaint sought (1) a declaration that qualified Negroes were systematically excluded from Greene County grand and petit juries, that the Alabama statutes governing jury selection were unconstitutional on their face and as applied, and that the jury commission was a deliberately segregated governmental agency; (2) a permanent injunction forbidding the systematic exclusion of Negroes from Greene County juries pursuant to the challenged statutes and requiring that all eligible Negroes be placed on the jury roll; and (3) an order vacating the appointments of the jury commissioners and compelling the Governor to select new members without racial discrimination.
Alabama’s jury-selection procedure is governed by statute. Ala. Code, Tit. 30, § 1 et seg. (1958 and Supp. 1967). The Governor appoints a three-member jury commission for each county. §§ 8-10. The commission employs a clerk, § 15, who is charged with the duty of obtaining the name of every citizen of the county over 21 and under 65 years of age, together with his occupation and places of residence and business. § 18. The clerk must “'scan the registration lists, the lists returned to the tax assessor, any city directories, telephone directories and any and every other source of information from which he may obtain information....” § 24. He must also “visit every precinct at least once a year to enable the jury commission to properly perform the duties required of it... Ibid. Once the clerk submits his list of names, the commission is under a duty to prepare a jury roll and jury box containing the names of all qualified, nonexempt citizens in the county, §§ 20, 24, who are “generally reputed to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment... § 21.
A three-judge District Court, convened pursuant to 28 U. S. C. §§ 2281 and 2284, conducted an extensive evidentiary hearing on the appellants’ complaint. The record fully supports the trial court’s conclusion, set out in its detailed opinion, that the jury-selection process as it actually operated in Greene County at the outset of this litigation departed from the statutory mandate in several respects:
“The clerk does not obtain the names of all potentially eligible jurors as provided by § 18, in fact was not aware that the statute directed that this be done and knew of no way in which she could do it. The starting point each year is last year’s roll. Everyone thereon is considered to be qualified and remains on the roll unless he dies or moves away (or, presumably, is convicted of a felony). New names are added to the old roll. Almost all of the work of the commission is devoted to securing names of persons suggested for consideration as new jurors. The clerk performs some duties directed toward securing such names. This is a part-time task, done without compensation, in spare time available from performance of her duties as clerk of the Circuit Court. She uses voter lists but not the tax assessor’s lists. Telephone directories for some of the communities are referred to, city directories not at all since Greene County is largely rural.
“The clerk goes into each of the eleven beats or precincts annually, usually one time. Her trips out into the county for this purpose never consume a full day. At various places in the county she talks with persons she knows and secures suggested names. She is acquainted with a good many Negroes, but very few ‘out in the county.’ She does not know the reputation of most of the Negroes in the county. Because of her duties as clerk of the Circuit Court the names and reputations of Negroes most familiar to her are those who have been convicted of crime or have been ‘in trouble.’ She does not know any Negro ministers, does not seek names from any Negro or white churches or fraternal organizations. She obtains some names from the county’s Negro deputy sheriff.
“The commission members also secure some names, but on a basis no more regular or formalized than the efforts of the clerk. The commissioners ‘ask around,’ each usually in the area of the county where he resides, and secure a few names, chiefly from white persons. Some of the names are obtained from public officials, substantially all of whom are white.
“One commissioner testified that he asked for names and that if people didn’t give him names he could not submit them. He accepts pay for one day’s work each year, stating that he does not have a lot of time to put on jury commission work.... He takes the word of thpse who recommend people, checks no further and sees no need to check further, considering that he is to rely on the judgment of others. He makes no inquiry or determination whether persons suggested can read or write.... Neither commissioners nor clerk have any social contacts with Negroes or belong to any of the same organizations.
“Through its yearly meeting in August, 1966, the jury commission met once each year usually for one day, sometimes for two, to prepare a new roll. New names presented by clerk and commissioners, and some sent in by letter, were considered. The clerk checked them against court records of felony convictions. New names decided upon as acceptable were added to the old roll. The names of those on the old roll who had died or moved away were removed.
“At the August, 1966 meeting one commissioner was new and submitted no names, white or Negro, and merely did clerical work at the meeting. Another had been ill and able to seek names little if at all. The third could remember one Negro name that he suggested. This commissioner brought the name, or names, he proposed on a trade bill he had received, and after so using it threw it away. All lists of suggested names were destroyed. As a result of that meeting the number of Negro names on the jury roll increased by 37.... Approximately 32 of those names came from lists given the clerk or commissioners by others. The testimony is that at the one-day August meeting the entire voter list was scanned. It contained the names of around 2,000 Negroes.
“Thus in practice, through the August, 1966 meeting the system operated exactly in reverse from what the state statutes contemplate. It produced a small group of individually selected or recommended names for' consideration. Those potentially qualified but whose names were never focused upon were given no consideration. Those who prepared the roll and administered the system were white and with limited means of contact with the Negro community. Though they recognized that the most pertinent information as to which Negroes do, and which do not, meet the statutory qualifications comes from Negroes there was no meaningful procedure by which Negro names were fed into the machinery for consideration or effectual means of communication by which the knowledge possessed by the Negro community was utilized. In practice most of the work of the commission has been devoted to the function of securing names to be considered. Once a name has come up for consideration it usually has been added to the rolls unless that person has been convicted of a felony. The function of applying the statutory criteria has been carried out only in part, or by accepting as conclusive the judgment of others, and for some criteria not at all.”
The District Court’s further findings demonstrated the impact of the selection process on the racial composition of Greene County juries. According to the 1960 census, Negroes composed three-fourths of the county’s population. Yet from 1961 to 1963 the largest number of Negroes ever to appear on the jury list was about 7% of the total. The court noted that in 1964 a single-judge federal district court had entered a declaratory judgment setting forth the duties of the jury commissioners and their clerk under Alabama law, instructing them not to pursue a course of conduct operating to discriminate against Negroes, forbidding them to employ numerical or proportional limitations with respect to race, and directing an examination of the jury roll for compliance with the judgment. Thereafter, the situation had improved only marginally. In 1966 only 82 Negroes appeared among the 471 citizens listed on the jury roll; 50% of the white male population of the county found its way to the jury roll in that year, but only 4% of the Negro. In 1967, following a statutory amendment, the commission added women to the jury roll. Upon the expansion of the list, Negroes composed 388 of the 1,198 potential jurors — still only 32% of the total, even though the 1967 population of the county was estimated to be about 65% Negro.
The District Court found that “there is invalid exclusion of Negroes on a racially discriminatory basis.” It enjoined the jury commissioners and their clerk from systematically excluding Negroes from the jury roll, and directed them “to take prompt action to compile a jury list... in accordance with the laws of Alabama and... constitutional principles”; to file a jury list so compiled within 60 days, showing the information required by Alabama law for each potential juror, together with his race and, if available, his age; and to submit a report setting forth the procedure by which the commission had compiled the list and applied the statutory qualifications and exclusions.
The court declined, however, either to enjoin the enforcement of the challenged Alabama statutory provisions or to direct the Governor to appoint Negroes to the jury commission. From these rulings the appellants took a direct appeal to this Court pursuant to 28 U. S. C. § 1253. We noted probable jurisdiction. 393 U. S. 1115.
I
This is the first case to reach the Court in which an attack upon alleged racial discrimination in choosing juries has been made by plaintiffs seeking affirmative relief, rather than by defendants challenging judgments of criminal conviction on the ground of systematic exclusion of Negroes from the grand juries that indicted them, the trial juries that found them guilty, or both. The District Court found no barrier to such a suit, and neither do we. Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion. Surely there is no jurisdictional or procedural bar to an attack upon systematic jury discrimination by way of a civil suit such as the one brought here. The federal claim is bottomed on the simple proposition that the State, acting through its agents, has refused to consider the appellants for jury service solely because of their race. Whether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise. Once the State chooses to provide grand and petit juries, whether or not constitutionally required to do so, it must hew to federal constitutional criteria in ensuring that the selection of membership is free of racial bias. The exclusion of Negroes from jury service because of their race is “practically a brand upon them..., an assertion of their inferiority....” That kind of discrimination contravenes the very idea of a jury — “a body truly representative of the community,” composed of “the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.”
II
On the merits, the appellants argue that the District Court erred in refusing to invalidate the Alabama statute requiring the jury commissioners to select for jury service those persons who are “generally reputed to be honest and intelligent and... esteemed in the community for their integrity, good character and sound judgment... Ala. Code, Tit. 30, §21 (Supp. 1967). The appellants say § 21 is unconstitutional on its face because, by leaving Alabama’s jury officials at large in their selection of potential jurors, it provides them an opportunity to discriminate on the basis of race — an opportunity of which they have in fact taken advantage. Specifically, the charge is that § 21 leaves the commissioners free to give effect to their belief that Negroes are generally inferior to white people and so less likely to measure up to the statutory requirements; to the commissioners’ fear that white people in the community will suffer if Negroes are accorded the opportunity to exercise the power of their majority; and to the commissioners’ preference for Negroes who tend not to assert their right to legal and social equality. The appellants say the injunctive relief granted by the District Court is inadequate, because the history of jury selection in Greene County demonstrates a practice of discrimination persisting despite the federal court’s prior grant of declaratory relief. Moreover, so long as § 21 remains the law, it is argued, Negro citizens throughout Alabama will be obliged to attack the jury-selection process on a county-by-county basis, thereby imposing a heavy burden on already congested court dockets and delaying the day that Alabama will be free of discriminatory jury selection.
While there is force in what the appellants say, we cannot agree that § 21 is irredeemably invalid on its face. It has long been accepted that the Constitution does not forbid the States to prescribe relevant qualifications for their jurors. The States remain free to confine the selection to citizens, to persons meeting specified qualifications of age and educational attainment, and to those possessing good intelligence, sound judgment, and fair character. “Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.”
Statutory provisions such as those found in § 21 are not peculiar to Alabama, or to any particular region of the country. Nearly every State requires that its jurors be citizens of the United States, residents of the locality, of a specified minimum age, and able to understand English. Many of the States require that jurors be of “good character” or the like; some, that they be “intelligent” or “well informed.”
Provisions of similar breadth have been challenged here and sustained before. In Franklin v. South Carolina, the Court rejected a similar attack upon a jury-selection statute alleged by the plaintiff in error to have conferred arbitrary power upon the jury commissioners. The pertinent law there provided that the commissioners should “prepare a list of such, qualified electors under the provisions of the constitution, between the ages of twenty-one and sixty-five years, and of good moral character, of their, respective counties as they may deem otherwise well qualified to serve as jurors, being persons of sound judgment and free from all legal exceptions, which list shall include not less than one from every three of such qualified electors... In upholding the validity of these standards, the Court said:
“We do not think there is anything in this provision of the statute having the effect to deny rights secured by the Federal Constitution.... There is nothing in this statute which discriminates against individuals on account of race or color or previous condition, or which subjects such persons to any other or different treatment than other electors who may be qualified to serve as jurors. The statute simply provides for an exercise of judgment in attempting to secure competent jurors of proper qualifications.”
Again, in Smith v. Texas, we dealt with a statute leaving a wide range of choice to the commissioners. Yet we expressly upheld the validity of the law. The statutory scheme was not in itself unfair; it was “capable of being carried out with no racial discrimination whatsoever.”
No less can be said of the statutory standards attacked in the present case. Despite the overwhelming proof the appellants have adduced in support of their claim that the jury clerk and commissioners have abused the discretion that Alabama law confers on them in the preparation of the jury roll, we cannot say that § 21 is necessarily and under all circumstances invalid. The provision is devoid of any mention of race. Its antecedents are of ancient vintage, and there is no suggestion that the law was originally adopted or subsequently carried forward for the purpose of fostering racial discrimination. The federal courts are not incompetent to fashion detailed and stringent injunctive relief that will remedy any discriminatory application of the statute at the hands of the officials empowered to administer it. In sum, we cannot conclude, even on so compelling a record as that before us, that the guarantees of the Constitution can be secured only by the total invalidation of the challenged provisions of § 21.
Ill
The appellants also attack the composition of the Greene County jury commission. They urge that the record demonstrates the causal relation between the conceded absence of Negroes from the commission for at least the past decade and the systematic racial discrimination in the selection of potential jurors established before the District Court. It is argued that even the best-intentioned white jury commissioners are unlikely to know many Negroes who satisfy the statutory qualifications and that white jury officials in Alabama generally regard Negroes as incapable of satisfying the prerequisites for jury membership. Having shown a course of continuing and consistent disregard of statutory and constitutional standards on the part of the Greene County jury commissioners and the clerk, the appellants contend that if the discretionary provisions of § 21 are to remain the law, it is essential that the jury commission be representative of the community in which it functions, particularly in an area such as Greene County, where Negroes constitute a majority of the population. The District Court erred, the appellants say, in not ordering the Governor of Alabama to appoint Negroes to the Greene County jury commission.
The claim was not presented to the District Court in precisely these terms. There the appellants did not urge that white commissioners could not perform their statutory task in an unbiased manner in a predominantly Negro county. Rather, they contended that the Governor of Alabama had deliberately appointed a segregated jury commission in exercising the discretion conferred upon him by statute. The argument, in short, went to the alleged racial discrimination in the appointment of the commission, not to the biases inherent in a commission composed entirely of white people, without regard to claimed discriminatory selection by the Governor.
For present purposes we may assume that the State may no more exclude Negroes from service on the jury commission because of their race than from the juries themselves. But the District Court found the appellants had shown only that for many years the jury commission had been composed entirely of white men, and concluded that without more the appellants’ attack failed for want of proof. We think that ruling was correct. Quite apart from the problems that would be involved in a federal court’s ordering the Governor of a State to exercise his discretion in a particular way, we cannot say on this record that the absence of Negroes from the Greene County jury commission amounted in itself to a prima facie showing of discriminatory exclusion. The testimony before the District Court indicated that the Governor had appointed no Negroes to the Greene County commission during the 12 years preceding the commencement of suit. But the appellants’ trial counsel conceded that he could not prove his charge of discriminatory selection without the testimony of the Governor. Whether or not such a concession was necessary, the statement may well have led counsel for the appellees to conclude that they were not obliged to produce witnesses on the State’s behalf with respect to this phase of the appellants’ case.
Nor can we uphold the appellants’ present contention that, apart from the question of discrimination in the composition of the jury commission, the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners. The appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury.
IV
There remains the question of the propriety of the relief afforded the appellants by the District Court. The court, as we have noted, enjoined the jury clerk and commissioners from systematically excluding Negroes from the Greene County jury roll, and directed them “to take prompt action to compile a jury list... in accordance with the laws of Alabama and... constitutional principles....” Pursuant to the court’s order, the commission submitted a new jury roll, dated November 6, 1968. The clerk stated she had been into each of the precincts of Greene County and had contacted people of both races by personal visit, letter, or telephone; with their recommendations and with the help of the voting list and telephone directory, the commission compiled a new jury roll. Whether this roll complies with the terms of the District Court’s decree is a matter for that court to consider in the first instance. The court properly recognized that other and further relief might be appropriate. For that court “has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.”
Accordingly, the judgment below is affirmed, without prejudice to the right of the appellants to seek modification of the District Court’s decree as circumstances may require.
It is so ordered.
The sole purpose of these requirements is to insure that the jury commissioners will have as complete a list as possible of names, compiled on an objective basis, from which to select qualified jurors.” Mitchell v. Johnson, 250 F. Supp. 117, 123.
The commission may not select any person who is under 21, a habitual drunkard, unfit to discharge a juror’s duties because afflicted with a permanent disease or physical weakness, or unable to read English, nor anyone who has been convicted of an offense involving moral turpitude. A person who would be disqualified only because he cannot read English is still eligible for jury service if he is a freeholder or householder. A person over 65 may not be required to serve but is eligible if he is willing to do so. §21. The commission is also required to exempt various classes of persons, based on their occupation, unless they consent to serve. § 3. In addition, the court may excuse any person who appears to be unfit to serve on a jury, or who is disqualified or exempt, “or for any other reasonable or proper cause....” §§4, 5.
Until 1966 only men were eligible for service. The blanket exclusion of women was declared unconstitutional in White v. Crook, 251 F. Supp. 401, 408-409; thereafter Alabama amended its statutes to render women eligible. § 21 (1). The trial judge may, however, excuse them from jury duty for good cause shown. § 21.
The requirement that the commission place the name of every qualified, nonexempt person on the jury roll is permissive, not mandatory, in that the jury commission’s failure to do so does not, absent fraud or denial of constitutional rights, compel the quashing of the indictment or venire. Fikes v. State, 263 Ala. 89, 95, 81 So. 2d 303, 309, rev’d on other grounds, 352 U. S. 191; see Swain v. Alabama, 380 U. S. 202, 207 n. 3; White v. Crook, supra, at 403 n. 6; Mitchell v. Johnson, supra, at 119 n. 5.
Bokulich v. Jury Commission of Greene County, 298 F. Supp. 181, 187-188. (Footnotes omitted.)
Coleman v. Barton, No. 63-4 (N. D. Ala. 1964). The opinion is unreported. See 298 F. Supp., at 184.
In 1966 Alabama still limited jury service to males. See n. 2, supra.
The District Court rejected the appellees’ contention that an emigration of younger and better-educated Negroes from the county in the 1960’s accounted for the disparity between the racial composition of the county in 1960 and of the jury rolls during the succeeding years of the decade. 298 F. Supp., at 188. See Coleman v. Alabama, 389 U. S. 22, 23.
Other plaintiffs in the suit sought similar relief, as well as an injunction to prevent the grand jury from considering charges of grand larceny then outstanding against them. The District Court denied relief with respect to those plaintiffs, and they took a separate appeal. We affirmed that portion of the District Court’s judgment last Term, and those plaintiffs are no longer before us. Bokulich v. Jury Commission of Greene County, 394 U. S. 97 (per curiam).
Arnold v. North Carolina, 376 U. S. 773 (per curiam); Eubanks v. Louisiana, 356 U. S. 584; Reece v. Georgia, 350 U. S. 85, 87; Cassell v. Texas, 339 U. S. 282; Hill v. Texas, 316 U. S. 400, 404, 406; Smith v. Texas, 311 U. S. 128, 129-130; Pierre v. Louisiana, 306 U. S. 354, 356-358, 362; Rogers v. Alabama, 192 U. S. 226, 231; Carter v. Texas, 177 U. S. 442, 447; Bush v. Kentucky, 107 U. S. 110, 121.
Avery v. Georgia, 345 U. S. 559; Hollins v. Oklahoma, 295 U. S. 394 (per curiam).
Sims v. Georgia, 389 U. S. 404, 407-408; Whitus v. Georgia, 385 U. S. 545; Swain v. Alabama, 380 U. S. 202; Coleman v. Alabama, 377 U. S. 129; Patton v. Mississippi, 332 U. S. 463; Hale v. Kentucky, 303 U. S. 613 (per curiam); Norris v. Alabama, 294 U. S. 587, 589; Martin v. Texas, 200 U. S. 316, 319; Neal v. Delaware, 103 U. S. 370, 396-397; Strauder v. West Virginia, 100 U. S. 303.
Billingsley v. Clayton, 359 F. 2d 13, 16 (en banc); Jewell v. Stebbins, 288 F. Supp. 600, 604-605; White v. Crook, 251 F. Supp. 401, 405-406; Mitchell v. Johnson, 250 F. Supp. 117, 121. See Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L. Rev. 235, 247-249; Note, The Congress, The Court and Jury Selection: A Critique of Titles I and II of the Civil Rights Bill of 1966, 52 Va. L. Rev. 1069, 1084-1094 (1966).
Cf. Carrington v. Rash, 380 U. S. 89, 91; Lassiter v. Northampton County Board of Elections, 360 U. S. 45, 50-51; Pope v. Williams, 193 U. S. 621, 632.
Compare Duncan v. Louisiana, 391 U. S. 145, with Hurtado v. California, 110 U. S. 516.
See Ex parte Virginia, 100 U. S. 339, 346-347; Virginia v. Rives, 100 U. S. 313, 321.
Strauder v. West Virginia, supra, at 308.
Smith v. Texas, supra, at 130.
Strauder v. West Virginia, supra. Congress, recognizing such a right, has long provided a criminal sanction for its violation:
“No citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude; and whoever, being an officer or other person charged with any duty in the selection or summoning of jurors, excludes or fails to summon any citizen for such cause, shall be fined not more than $5,000.” 18 U. S. C. § 243.
Cf. Whitus v. Georgia, supra, at 552.
Cf. Witcher v. Peyton, 405 F. 2d 725, 727.
Cf. Gray v. Main, 309 F. Supp. 207, 224.
Cf. Brooks v. Beto, 366 F. 2d 1, 27 (Wisdom, J., concurring in result), cert, denied, 386 U. S. 975.
According to the appellants, civil suits challenging alleged racial discrimination in jury selection have been commenced in federal district courts throughout Alabama.
Brown v. Allen, 344 U. S. 443, 473 (opinion of Mr. Justice Reed, announcing judgment); Cassell v. Texas, supra, at 291 (Frankfurter, J., concurring in judgment); Virginia v. Rives, supra, at 334r-335 (Field J., concurring in judgment); Strauder v. West Virginia, supra, at 310.
Neal v. Delaware, supra, at 386; Strauder v. West Virginia, supra,
Gibson v. Mississippi, 162 U. S. 565, 589. The federal courts have upheld similar qualifications in reviewing their own jury-selection system. See, e. g., United States v. Flynn, 216 F. 2d 354, 388 (C. A. 2d Cir.) (Harlan, J.), cert. denied, 348 U. S. 909; United States v. Dennis, 183 F. 2d 201, 220 (C. A. 2d Cir.) (L. Hand, J.), cert. granted, limited to other grounds, 340 U. S. 863.
Brown v. Allen, supra, at 474 (opinion of Mr. Justice Reed, announcing judgment).
See, e. g., Ariz. Rev. Stat. Ann. § 21-201 (1956); Wis. Stat. Ann. §255.01 (1) (Supp. 1969).
See, e. g., Cal. Civ. Pro. Code § 198 (1954); Wash. Rev. Code §2.36.070 (2) (1956).
E. g., Colo. Rev. Stat. Ann. § 78-1-1 (1) (1963) (21 years old); Md. Ann. Code, Art. 51, § 1 (1968 Repl. Vol.) (25 years); Hawaii Rev. Stat. §609-1 (1) (1968) (20 years); Neb. Rev. Stat. §25-1601 (1) (1964) (25 years); R. I. Gen. Laws Ann. § 9-9-1 (1956) (same).
See, e. g., Pa. Stat. Ann., Tit. 17, § 1322 (1962). Vermont has delegated the function of determining qualifications to court administrators. Vt. Stat. Ann., Tit. 4, § 902 (Supp. 1969).
Ariz. Rev. Stat. Ann. §21-201 (1956); Ark. Stat. Ann. §39-206 (1962 Repl. Vol.); Conn. Gen. Stat. Rev. §51-217 (1968); Fla. Stat. § 40.01 (3) (1965); Hawaii Rev. Stat. § 609-1 (3) (1968); 111. Rev. Stat., c. 78, §2 (1967) (“fair character”); Iowa Code §607.1 (1966); Kan. Stat. Ann. §43-102 (1964); Ky. Rev. Stat. § 29.025 (1962) (“temperate, discreet, and of good demeanor”); Me. Rev. Stat. Ann., Tit. 14, §1254 (1964); Neb. Rev. Stat. §25-1601 (1) (1964) (“fair character”); N. Y. Judiciary Law § 504 (4) (Supp. 1969); Okla. Stht. Ann., Tit. 38, § 28 (Supp. 1969); S. C. Code Ann. § 38-52 (Supp. 1968); Tex. Rev. Civ. Stat. Ann., Art. 2133 (2) (1964); Wis. Stat. Ann. §255.01 (5) (Supp. 1969).
Another phrase frequently found is “approved integrity.” E. g., Conn. Gen. Stat. Rev. § 51-217 (1968); Fla. Stat. § 40.01 (3) (1965); in. Rev. Stat., c. 78, §2 (1967); Kan. Stat. Ann. §43-102 (1964); Me. Rev. Stat. Ann., Tit. 14, § 1254 (1964); Neb. Rev. Stat. §25-1601 (1) (1964). See also Ariz. Rev. Stat. Ann. §21-201 (1956) (“sober”); Md. Ann. Code, Art. 51, § 9 (Supp. 1968) (“integrity”); Miss. Code Ann. § 1762-02 (Supp. 1968) (not a “habitual drunkard”); Mo. Ann. Stat. §494.010 (Supp. 1969) (“sober”); Okla. Stat. Ann., Tit. 38, § 28 (Supp. 1969) (not a habitual drunkard); Tenn. Code Ann. § 22-102 (1955) (same); W. Va. Code Ann. § 52-1-2 (1966) (same); cf. N. H. Rev. Stat. Ann. §500:29 (1968 Repl. Vol.) (disqualification on account of “vicious habits”); Wash. Rev. Code § 2.36.110 (1959) (“unfit persons” must be excused).
Ariz. Rev. Stat. Ann. §21-201 (1956); Cal. Civ. Pro. Code § 198 (1954); Fla. Stat. § 40.01 (3) (1965); Hawaii Rev. Stat. § 609
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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Orlando W. HODGE, Petitioner-Appellant, v. T. W. MARKLEY, Warden, United States Penitentiary, Terre Haute, Indiana, Respondent-Appellee.
No. 14563.
United States Court of Appeals Seventh Circuit.
Jan. 11, 1965.
Holland C. Capper, Chicago, 111., for appellant.
Richard P. Stein, U. S. Atty., Robert W. Geddes, Indianapolis, Ind., for appel-lee.
Before DUFFY and KNOCH, Circuit Judges, and MAJOR, Senior Circuit Judge.
DUFFY, Circuit Judge.
The petitioner who is confined in the United States penitentiary at Terre Haute, Indiana, petitioned the United States District Court for the Southern District of Indiana for the issuance of a writ of habeas corpus. Petitioner claims his constitutional rights were violated because he was effectively denied counsel and the opportunity to present testimony of voluntary witnesses at his parole revocation hearing which was held far from his home and the place of the alleged parole violation. The District Court, without hearing evidence, denied the application for the writ of habeas corpus. Petitioner appealed to this Court in forma pauperis. We appointed counsel to represent him on this appeal.
Petitioner was convicted of a violation of the federal narcotic laws. He was sentenced to serve a three to nine year term. After six years confinement, he was mandatorily released, having served his full term less time earned for good behavior. In accordance with federal law, he was placed on parole for the remainder of his term less 180 days.
After petitioner was released from prison in 1961, he resided in Columbus, Ohio, where his mother lived. His parole officer was named Williams. In February 1963, petitioner .was convicted in a state court for petty larceny and reckleás operation of a motor vehicle. Parole Officer Williams knew of the incident but did not feel it necessary “to violate” the petitioner who continued on parole until arrested on June 29, 1963 for alleged parole violation. This arrest followed a report dated June 3, 1963 by Parole Officer Miller with whom petitioner had had no previous contact.
Petitioner was not afforded a hearing in Columbus, Ohio, his place of residence, and the place of the alleged parole violation. Instead, he was transported to the United States penitentiary at Terre Haute, Indiana. A hearing was there held. Petitioner was told he could have counsel of his own choosing and present voluntary witnesses at a revocation hearing to be held in October. However, he signed a waiver and thus obtained an immediate hearing.
We have, this day, handed down our opinion and decision in Richardson v. Markley, 339 F.2d 967. In that case, the petitioner filed a petition for a writ of habeas corpus seeking release from the federal penitentiary at Terre Haute, Indiana. He alleged the invalidity of the proceedings resulting in the revocation of • his parole. In Richardson, we described and discussed in considerable detail, the applicable federal statutes, and also various practices, rules and proceedings of the United States Board of Parole. In the instant opinion, we incorporate by reference, our statements in Richardson with reference to such statutes, rules, practices and proceedings.
As pointed out in our decision in Richardson v. Markley, 339 F.2d 967, the Board of Parole amended its rules on August 24, 1962, so that each parolee or mandatorily released violator would be advised that he may, upon request, be represented by counsel and call voluntary witnesses having relevant and material information; and that after the Hyser decision, the Board of Parole, on October 5, 1963, again amended its rule to provide the parolee with a hearing prior to his transfer to a federal institution, if requested, and if the parolee had not been convicted of a crime while under community supervision.
Our comments in Richardson v. Mark-ley on the decision in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, are applicable here. In Hyser, the Court did not say that the failure to provide petitioner with a preliminary hearing or any of the other steps mentioned, was a violation of the parolee’s constitutional rights.
We hold in the case at bar that petitioner’s confinement is not unlawful because he was not furnished counsel at the revocation proceedings, or because preliminary hearing was not granted in the district of the alleged parole violation.
One of the points principally stressed by petitioner is that nine years (his maximum sentence) have expired since his commitment on November 18, 1955; that inasmuch as his full term expired on November 17, 1964, he was entitled to be released on that date and that inasmuch as release was not granted, habeas corpus should issue.
Title 18, United States Code, Section 4205 provides: “Retaking parole violator under warrant; time to serve undiminished. A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”
Petitioner insists, however, the courts have misconstrued the applicable statute; that properly interpreted, the statute does not permit incarceration past the expiration date of the maximum sentence. If the statute is so interpreted, petitioner says it offends against the Fifth Amendment to the United States Constitution forbidding double jeopardy for one offense.
Petitioner argues that the words “ * * * the time the prisoner was on parole shall not diminish the time he was sentenced to serve” simply means that such a parole prisoner does not earn good time while on parole; that accordingly, if arrested for parole violation, he faces imprisonment for the total unexpired term of his maximum sentence, but not beyond.
In Dolan v. Swope, 7 Cir., 138 F.2d 301, this Court held that the predecessor statute to § 4205 hereinbefore quoted is not unconstitutional as increasing sentence and thereby subjecting a prisoner to double jeopardy. The decision in Do-lan v. Swope has met approval in other Circuits. It is still the law in this Circuit, and applies to revocations of parole under Section 4205.
The Court of Appeals for the District of Columbia, in construing a provision of the District of Columbia Code (D.C.Code 1981, § 24-206), which is similar to 18 U.S.C. § 4205, in a comparatively recent decision, has held that a prisoner was not entitled, on return to prison following the revocation of parole, to credit against the remaining sentence for time spent on parole. The Court stated at page 312: “The language of the statute is clear and the import of similar language under the general federal parole statute has been acknowledged in many cases.” Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963).
In Van Horn v. Maguire, 5 Cir., 328 F.2d 585, 586, which involved the same issue, the Court stated: “This appeal from denial of habeas corpus borders on the frivolous.”
Consistent with our holding in Dolan, and in accord with all of the published decisions on this point of which we are aware, we hold the petitioner was not entitled to credit on his original sentence for the time which he spent on parole.
We have considered other points raised by petitioner herein, but do not think that they merit further discussion.
Holland C. Capper, Esquire, of the Chicago Bar, was court-appointed counsel upon this appeal. We thank Mr. Cap-per for his diligent and competent efforts upon behalf of the petitioner.
Judgment
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_applfrom
|
J
|
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).
RAILWAY LABOR EXECUTIVES’ ASSOCIATION, Appellant, v. CHICAGO AND NORTHWESTERN TRANSPORTATION COMPANY and Dakota, Minnesota and Eastern Railroad, Appellees. State of South Dakota, Amicus Curiae/Appellee.
No. 87-5071.
United States Court of Appeals, Eighth Circuit.
Nov. 29, 1989.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
ORDER
On June 26, 1989, the Supreme Court granted a writ of certiorari in the above-entitled case. It then vacated the judgment of this court, — U.S. -, 109 S.Ct. 3207, 106 L.Ed.2d 558, and remanded the case to us for further consideration in the light of Pittsburgh & Lake Erie R.R. v. Railway Labor Executives’ Ass’n, 491 U.S. -, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989) (P & LE).
This court requested the parties to file letter briefs with respect to the application of P & LE to the instant case. After a careful review of the decision of the United States Supreme Court and the letter briefs, we revise our original opinion.
I.
There is one important difference between the facts in P & LE and those in this case. In P & LE, the carrier sold all of its assets to a newly formed subsidiary. Here, the Chicago and Northwestern (C & NW) sold only a portion of its assets (826 miles of rail line and 126 miles of trackage in South Dakota) to a newly formed railway company. Thus, we must decide whether the Supreme Court’s decision that a railway company need not bargain with the unions with respect to a sale of all of its assets to another corporation applies to a case in which a railway company sells only a portion of its assets.
We believe that C & NW was not required to bargain over the sale in this case prior to the sale’s completion. The sale was approved by the I.C.C., the sale was for an unprofitable, discrete section of the railway that might have been abandoned but for the sale, and after the sale C & NW would have no relationship with the purchaser. Thus, we hold that C & NW was not obligated to serve a section 156 notice on the union in connection with the proposed sale nor was it obligated to maintain the status quo and postpone the sale beyond the time the sale was approved by the Commission and was scheduled to be consummated.
This holding does not, however, end the matter. We also believe that P & LE made it clear that a railroad selling all or a part of its assets is required to bargain about the effects that the sale will or might have on its employees:
The disputed issue is whether P & LE was required to bargain about the effects that the sale would or might have upon its employees. P & LE, in our view, was not entirely free to disregard the unions’ demand that it bargain about such effects.
P & LE, 491 U.S. at -, 109 S.Ct. at 2597, 105 L.Ed.2d at 435 (emphasis added). Moreover, C & NW can bargain about the effects of the sale even after the sale is consummated.
In P & LE, the Supreme Court held that the obligation to bargain over effects existed “only until the date for closing the sale arrived,” which, of course, would not occur in this case until the ex parte 392 exemption became effective and the transfer occurred. We are convinced that the Supreme Court placed a time limitation on the obligation to bargain because after that date, the selling railroad would have no assets and no employees. Here, the selling railroad will retain the major portion of its assets and will continue to employ persons who are members of the labor organizations that are parties to this case. Thus, C & NW can bargain about the effects of the sale without delaying or upsetting the sale.
II.
We reject the suggestion of the C & NW and of the dissent that the dispute between the parties is a minor dispute and thus subject to arbitration. The facts here are quite close to those in P & LE, and the Supreme Court there held that the dispute was a major one and that the railroad company was obligated to bargain with the union as to the effects of the sale. The union is not seeking an interpretation of the express or implied terms of the collective bargaining agreement nor is it seeking a ruling that a past practice should be enforced. Rather, it is seeking to negotiate over the effects of a sale on those C & NW employees who are affected by it. No clear reason has been advanced by the C & NW as to why we should categorize this dispute differently.
We have no quarrel with the test advanced by the dissent to determine whether a dispute is a major or a minor one. Post at 1029. That test was approved by the United States Supreme Court in Consolidated Rail Corp. v. Railway Labor Executives Ass’n, — U.S. -, -, 109 S.Ct. 2477, 2482, 105 L.Ed.2d 250, 264 (1989), and this court in Brotherhood of Maintenance of Way Employees v. Burlington Northern R.R., 802 F.2d 1016, 1022 (8th Cir.1986). Here, C & NW claims that the dispute over what benefits, if any, the railroad employees should receive only relates to the execution of the agreement and should be arbitrated. We disagree. This fact can be illustrated by attempting to frame the issue that would be decided by an arbitration board established under the Railway Labor Act.
C & NW suggested before the district court for the Northern District of Illinois in a case they argue is controlling, that the issue in a case such as this should be whether C & NW violated its agreements with the unions. Chicago & Northwestern Railway v. Railway Labor Executives Ass’n, No. 88 C 444, slip op. (N.D.Ill. Oct. 6, 1989). We disagree. Both parties concede that their agreements neither permit nor prohibit the C & NW from selling a portion of its business.
Nor should or would the issue be as formulated by the district court in that case: “what treatment, in terms of pay (severance or otherwise), seniority rights, benefit rights, transfer rights, etc., the employees of the C & NW (who are affected by the line sale) are entitled to in terms of contractual provisions and attendant past practices.” Id. at 6. The question thus phrased would give the arbitrator a roving commission to invent terms which were never agreed to by the parties.
III.
The Supreme Court in P & LE has determined that disputes of this nature are major ones. In light of P & LE, we conclude that the C & NW is obligated to bargain with the unions with respect to the effects of the sale only. Bargaining should commence promptly and proceed in accordance with the provisions of the Railway Labor Act.
Under our decision the sale will stand, and the right of the C & NW to exercise its right to sell all or a part of its holdings will be preserved. Thus, the unions cannot prevent the sale. As in P & LE, however, the railroad company will be required to bargain over the effects of the sale on its employees, thus accomplishing the intent of Congress to balance the rights of employers and workers.
We vacate our opinion of May 31, 1988 and remand to the district court with directions that it enter an order requiring the C & NW to bargain on request of the Railway Labor Executives Association with respect to the effects of the sale on the employees of C & NW.
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_interven
|
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.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
MURPHY v. CITY OF ASBURY PARK et al.
No. 8378.
Circuit Court of Appeals, Third Circuit.
Argued Oct. 22, 1943.
Decided Jan. 14, 1944.
Ward Kremer, of Asbury Park, N. J. (Joseph F. Mattice, of Asbury Park, N. J., on the brief), for appellant.
Theodore D. Parsons, of Red Bank, N. J. (Parsons, Labrecque & Borden, of Red Bank, N. J., on the brief), for appellee.
Before TONES, GOODRICH, and McLAUGHLIN, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a personal injury case. The plaintiff was a passenger in an automobile, owned by John J. Bennett and operated by Peter A. Bennett, which collided with one of a series of structures erected on Ocean Avenue, Asbury Park, New Jersey, by that municipality. The accident happened about 6:00 P.M., January 20, 1940, on Ocean Avenue at its intersection with Sixth Avenue in that city. Ocean Avenue runs north and south. It is the most easterly thoroughfare of Asbury Park and is next to and parallels the ocean front. It is 54 feet, seven inches wide. It is a main highway, carrying much of the Asbury Park vehicular traffic and is crossed by pedestrians going to and from the beach. At the time of the accident, there was in existence, a set of standards at intervals along the center of Ocean Avenue for substantially its length, or at least for a number of blocks. The standards had bell-shaped concrete bases. The bottom diameter of such base was 4 feet, its height was 3L/z feet. From the top of the base, a vertical metal column extended about 10 feet further into the air. At the top of the column there was an electric light fixture. In addition, some of the poles had traffic lights attached to them. The particular standard identified with the collision, did not. It did, however, have an inlaid sign on its base reading “Sixth Avenue,” which was the east-west street opposite and deadending into Ocean Avenue. ' The particular base had painted on it the words “No center parking.”
The Bennett automobile had been proceeding north on Ocean Avenue and to avoid hitting a car, Peter Bennett turned out to his left and struck the standard. In the District Court, there was a judgment in favor of the plaintiff and against the driver, Peter Bennett, and the City of Asbury Park. This appeal is taken by the City of Asbury Park. The defendant, Peter Bennett, did not take any appeal.
It is evident that the standard was a part of Asbury Park’s lighting and traffic system on Ocean Avenue. The municipality itself installed and maintained that system, including the particular stanchion in question. The fundamental question in the case is whether it was authorized by law. If it was, then, as Judge Biggs, speaking for this Court, said in Delaware, Lackawanna & Western Railroad Company v. Chiara, 3 Cir., 95 F.2d 663, at page 664: “* * * members of the public, including the appellees, are required to take notice of its presence and situation, and the learned trial judge should have directed a verdict for the appellant as prayed for by it.”
It is not clear from the testimony just when the standards were erected. The only one of plaintiff’s witnesses who ventured to hazard a date, fixed the time as about 1927. Plaintiff’s attorney, in response to the Court’s questions, said that from the best proof they had, the standard had been erected approximately fifteen years prior to the trial date which was M ay 1942 and which woi:ld make the construction date approximately 1927. The date of construction is not mentioned in the trial court’s charge. However, in the opinion on the motion to set aside the verdict, the court, from language in one of the Asbury Park ordinances in evidence inferred that the standards were erected in 1921. In any event, 1921 is the earliest possible date.
In 1917, the New Jersey Legislature passed what is popularly called the “Home Rule Act” (P.L. 1917, Chapter 152, pages 319, 410, N.J.S.A. 40:42-1 et seq.). Paragraph 1, Article XXIV of that Act reads as follows: “1. The governing body of every municipality shall have power by ordinance to cause the streets and public places of such municipality to be lighted, to acquire all necessary lands and real estate for that purpose by purchase, gift or condemnation, and to erect thereon all necessary buildings and to equip the same with all necessary machinery and equipment, and to erect and maintain on or under said streets and public places all necessary poles, conduits, wires, fixtures and equipment, and to operate such lighting system at public expense.” N.J.S.A. 40:67-13.
That law as it reads was in effect in 1921. It will be noted that a municipality was directed to proceed by ordinance. In 1921, Asbury Park enacted its ordinance No. 335 which ordained “that the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue be installed and completed, and that the paving of Ocean Avenue Boulevard be completed * * In the same ordinance, the cost “for the extension and completion of the sewers and drains and bases for lamp standards in Ocean Avenue and for the completion of the paving of said Ocean Avenue” was estimated at $52,000.
In 1927 Asbury Park passed Ordinance No. 454 which referred to the previous Ordinance No. 335, saying that the work called for by the latter had been completed and authorizing a bond issue to pay for same.
In Paragraph 5(a) of Ordinance No. 454 appeared the following sentence in parenthesis: “(The original average periods of usefulness of said improvements being twenty years, six years of the period of said usefulness having already expired and leaving remaining fourteen years.)” This referred to all of the improvements mentioned in the ordinance, including “the necessary drains and sewers for standard lamps necessary in connection with the improvements to Ocean Avenue.” It is from the above that the trial court assumed that the standard, with which we are concerned, was erected in 1921.
In 1923 a supplement to the 1917 Home Rule Act was enacted, P.L. 1923, Chapter 92, page 178, N.J.S.A. 40:67-16. That reads: “1. The governing body of every municipality shall have the power to establish safety zones, to erect, construct and maintain platforms, commonly called ‘safety isles’; to erect, construct, maintain and operate standards, commonly called ‘silent policemen,’ beacon lights, guide posts or other structures, which in its judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.”
As is seen, the 1923 statute contained-no restrictions on municipalities as to the necessity of proceeding by ordinance. This statute was more concerned with traffic regulation and control than with lighting, which latter had been the primary purpose of the 1917 Act.
A photograph of the stanchion, one of the exhibits in the case, was before this court on the argument of this appeal. It gives a general idea of the Ocean Avenue light and traffic setup. From it, and the other facts in the case, it is clear that the particular stanchion is authorized under both the 1917 and the 1923 statutes. It is in reality an ornamental pole or fixture set in a wide base and serving the double purpose of street lighting and traffic assistance. The appellant argues at length that the structure was not specifically authorized by either law. It is true that the Legislature did not in either Act, see fit to detail exact dimensions of “light poles” or of “standards, commonly called silent policemen, beacon lights, guide posts or other structures, which in its (the municipality) judgment may be necessary for the safety and convenience of persons and vehicles using the streets in said municipality.” However, having in mind that both Acts were general laws, applying to every municipality in New Jersey and to an endless variety of local conditions, it is difficult to conceive how either law could be more specific and at the same time enable the municipalities of the State- to function for practical purposes under them, in the respects indicated. As was said in Denzer v. D., L. & W. R. Co., 103 N.J.L. 95, 134 A. 820, at page 821, by the New Jersey Court of Errors and Appeals: “* * * the inquiry must be whether the particular structure is authorized by law; and whether a structure in one place differs from one in another is beside the mark.”
Though it is extremely doubtful from the evidence, assuming that the standards were constructed in 1921, we think that the 1923 statute is applicable. That law, in addition to giving the municipalities the power to erect standards, etc., in the .same sequence specifically authorizes them to maintain and operate such standards, etc. The language fairly embraces municipal structures of the type designated as were in existence at the time the 1923 Act came into being and authorizes their maintenance and operation. The Legislature in its effort to assist municipalities with their then increasing traffic problems never intended to create chaos. It certainly did not intend forcing the municipalities of the entire 'State to make the stupid, costly gestures of tearing down existing traffic structures and immediately thereafter erecting similar ones guided entirely by their judgment as to what was necessary for the safety and convenience of persons and vehicles using the streets of the municipalities. That such retrospective law is valid seems well settled. Professor Dillon in his work on Municipal Corporations, 4th Edition 2, page 780 says: “By virtue of its authority over public ways, the legislature may authorize acts to be done in and upon them or legalize obstructions therein which would be otherwise deemed nuisances.”
In Calder v. Bull, 3 Dall. 386, at page 391, 1 L.Ed. 648, Justice Chase said:
“Every law that is to have an operation before the making thereof, as to commence at an antecedent time; * * * is retrospective. But such laws may be proper or necessary, as the case may be. * * *
“There are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement.”
The issue herejs controlled by New Jersey law and the statutes and decisions of that State have been carefully examined in this light. It is settled in New Jersey that there can be no recovery as the result of a collision with a legalized permanent obstruction on a highway. In Lorentz v. P. S. R. Co., 103 N.J.L. 104, 134 A. 818, 49 A.L.R. 989, which is a New Jersey Court -of Errors and Appeals case, an automobile collided with an elevated structure maintained by the defendant utility company on Central Avenue, Jersey City, New Jersey. It was shown that the structure was authorized by a New Jersey statute which contained a general authority to erect structures of that type. There was also an ordinance of Jersey City permitting its construction. The Court said at page 818 of 134 A.: “From what has been said it should be sufficiently obvious that the structure in question was a lawful one, sanctioned by legislative and municipal authority. It is elementary, of course, that any unlawful obstruction of the highway is prima facie a nuisance, and that the party responsible for it is liable in damages to the one injured thereby. This was the theory of the leading case of Durant v. Palmer, 29 N.J.L. 544. But it is equally well settled that the Legislature may legalize what would otherwise be a nuisance.”
The Chiara case, supra, also involved a personal injury claim arising out of a New Jersey accident and decided under New Jersey law. There, an automobile collided with the base of a support of defendant’s railroad bridge crossing Henderson Street, Jersey City. This Court said on page 664 of 95 F.2d: “The sole question presented for our consideration is whether or not the structure in question was a lawful one, sanctioned by legislative and municipal authority. Under the law of New Jersey, as construed by the Court of Errors and Appeals, any unlawful obstruction of a highway is prima facie a nuisance and the party responsible for it is liable in damages to one injured thereby. It is equally well settled that the Legislature may legalize what otherwise might be a nuisance.” Citing the Lorentz case and a number of other New Jersey decisions.
In this view of the case, since the standard was authorized by law, it follows that the question of alleged active negligence on the part of the municipality does not arise. The trial court should have directed a verdict for the appellant as prayed for by it.
The judgment of the District Court is reversed.
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_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
DU PONT v. COMMISSIONER OF INTERNAL REVENUE.
No. 6453.
Circuit Court of Appeals, Third Circuit.
June 24, 1938.
Ward Loveless and Frederick O. Graves, both of Washington, D. C. (Miller & Chevalier, of Washington, D. G, of counsel), for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key, Norman D. Keller, and Joseph M. Jones, Sp. Assts. to Atty. Gen., for respondent.
Before BUFFINGTON, DAVIS, and BIGGS, Circuit Judges.
Writ of certiorari denied 59 S.Ct. 97, 83 L.Ed. —.
BIGGS, Circuit Judge.
The petitioner purchased prior to the year 1932, the taxable year in question, 5,-800 shares of the common stock of General Motors Corporation, 15,600 shares of the common stock of E. I. duPont de Nemours & Company, 6,500 shares of the common stock of McKeesport Tin Plate Company, and 400 shares of the common stock of United Aircraft & Transport Company. Certificates for these shares were in the possession of the petitioner’s brokers, carried in long accounts. All of the stock referred to was acquired by the petitioner more than two years prior to October 11, 1932.
At various times from April 15, 1930 to November 19, 1932, inclusive, the petitioner directed his brokers to sell short, and his brokers did sell short, 5,800 shares of the common stock of General Motors Corporation, 13,400 shares of the common stock of the duPont Company, 6,500 shares of the common stock of McKeesport Tin Plate 'Company, and 400 shares of the common stock of United Aircraft & Transport Company. The proceeds of these sales were credited by the brokers to a short account of the petitioner with his brokers.
Upon October 11, 1932, the petitioner’s brokers, acting upon the petitioner’s instructions, transferred from his long accounts to his short account the necessary number of shares of stock to cover the petitioner’s short sales of the common stock of General Motors Corporation and Mc-Keesport Tin Plate Company. Upon this day also, at the petitioner’s instructions, his brokers transferred from the long accounts to the short account 11,300 shares of the common stock of the duPont Company, leaving the account of the petitioner short only 2,100 shares of duPont Company common stock. Upon December 17, 1932, acting again upon the petitioner’s instructions, his brokers transferred 400 shares of United Aircraft & Transport Company stock from the petitioner’s long accounts to his short account, thus closing the short account in respect to this stock. It will therefore be observed that all of the short sales of the petitioner with the exception of the short obligation of 2,100 shares of the common stock of the duPont Company were balanced by transfers from the petitioner’s long accounts to his short account no later' than December 17, 1932.
The question presented to us for solution may be stated briefly as follows. There was a net gain to the petitioner of $118,396.63 from the sale of the shares of stock delivered. The respondent contends that this gain arose out of a short sale and that therefore the gain is taxable as ordinary income, pursuant to the provisions of subsection (s) of Section 23 of the Revenue Act of 1932, c. 209, 47 Stat. 179, 26 U.S.C.A. § 23 note. The petitioner for his part contends that the gain was capital net gain upon stock held for more than two years prior to sale and therefore must be taxed in accordance with the provisions of subsection (a) of Section 101 of the Revenue Act of 1932, c. 209, 47 Stat. 191, 26 U.S.C.A. § 101 note.
It will be observed that both transactions in the case at bar possessed, to a certain degree, a dual nature and reciprocal characteristics. When the petitioner covered the short sales by delivery of the securities held by him in the long accounts he disposed by one step of a long interest and of a short obligation. The price at which the short sales were made did in fact fix the price or value of the stock delivered by him from his long accounts. On the other hand, the sales made by the petitioner were short sales of the type known generally as “hedging sales” or “sales against the box”. Such sales are made when the owner of stock desires to avoid the risk of future price fluctuations of stock owned by him. He has shares on hand and available but does not desire to dispose of them immediately for reasons which he deems sufficient. If the stock declines, he can cover at a profit. If the stock increases in value, he can deliver the shares which he owns and avoid loss.
James Edward Meeker, Economist to the New York Stock Exchange, states in his book “Short Selling”, “A short sale may be briefly but comprehensively defined as a sale which creates a debt in terms of goods”. The sales made by the petitioner from April 15, 1930 to November 19, 1932, inclusive, are precisely within the definition given by Meeker. The net gain realized to the petitioner was in fact realized by reason of such sales. The amount of the gains is estimated by the sum of the difference between the cost of the long interest of the petitioner and the sum realized by the short sales.
It is true that the petitioner purchased the stock in his long account for purposes of profit, and to say that the profit realized did not come from his original investment would be untrue. The fact remains, however, that he moulded the disposition of his long interest into the form and substance of short sales. When the petitioner once ordered his brokers to sell stock short, a covering process of some kind was inescapable. Had he covered the short sales by the purchase of securities upon the open market and had achieved a gain thereby, such a gain would have been the result of a short sale. Had he sold his long interest without relation to a short sale, the net gain, if any, would have been taxable solely under the provisions of Section 101 of the Revenue Act of 1932. But the petitioner has elected to make use of a short sales device to dispose of his long interest. It cannot be said that the sales made by the petitioner were short sales, in form and not in substance for they were short sales in fact. In our opinion the case of Provost v. United States, 269 U.S. 443, 46 S.Ct. 152, 70 L.Ed. 352, in which it was held that a short sale contemplates a covering purchase, does not rule the case at bar as contended by the petitioner. In the cited case the Supreme Court was ruling upon the nature of a transaction wherein securities had been sold short and had been covered by the purchase of stock rather than by delivery of stock theretofore held by the taxpayer. The question presented by the case at bar was therefore not before the Supreme Court. The petitioner contends that the hedging transaction, the short sale, was a mere adjunct to the principal transaction, viz., the disposition of a long interest. In our opinion, however, the short sales were not mere adjuncts to the disposition of the long interest of the petitioner, they were the veritable means by which the long interest was disposed of. The short sales did more than fix the price of disposition of the petitioner’s long interest. They were in fact the conduit or channel through which the long interest passed out of the petitioner’s hands.
In our opinion the contention of the petitioner, viz., that the gain to him was not realized from short sales, is untenable. See Farr v. Commissioner, 33 B.T.A. 557.
The petitioner makes a further contention which must be considered. It is to the effect that Section 23 (s) of the Revenue Act of 1932 is a supplement to Section 23 (r) which limits deductible losses and has no bearing on net gains. This contention is both plausible and ingenious, and we state frankly that the interpretation of Section 23 of the Revenue Act of 1932 has caused us much difficulty. We cannot accept the contention of the petitioner, however. Subsection (s) contains the phrase “For the purposes of this title”, and in so stating, we think that Congress was referring to the whole of “Title I — Income Tax”. If the provisions of subsection (s) had been intended by Congress to apply to and serve as a modification of the provisions of subsection (r) the phrase referred to would not have been used. Therefore the provisions of subsection (s) of Section 23 must be deemed to relate not only to limitation of deductible losses but they must also be deemed to relate to calculations of income to individual taxpayers upon net gains. Otherwise the phrase referred to becomes meaningless. We cannot disregard the plain tenor and import of this phrase used in the subsection itself. The heading of the subsection is ambiguous, but the meaning of the text is plain and we cannot set it aside. Cornell v. Coyne, 192 U.S. 418, 430, 24 S.Ct. 383, 48 L.Ed. 504; Strathearn S. S. Co. v. Dillon, 252 U.S. 348, 354, 40 S.Ct. 350, 351, 64 L.Ed. 607. The petitioner also urges upon us that it is inconceivable that after Congress had gone into detail to fix a special rate for the taxing of capital gains, that it would doscngt that rate of taxation by language inserted solely in Section 23, which is headed “Deductions from gross income”. Indubitably, it is strange that Congress did so but in our opinion the answer is that it did so, and with facts no man can quarrel successfully. The petitioner also takes the position that such a construction results in injustice to the taxpayer. If the result of the transactions of the taxpayer had been net loss instead of net gain, and the theory of taxation of the petitioner were accented, the taxpayer would be penalized since such a loss would have to he treated asa capital loss.
In the case at bar there were short sales. The net gains to the petitioner arise out of short sales, “ * * * from short sales of stocks * * *The transactions of the petitioner were within the literal language of the applicable statute, viz., subsection (s) of Section 23 of the Revenue Act of 1932.
The decision of the Board of Tax Appeals is affirmed.
The pertinent provisions of the Revenue Act of 1932, c. 209, 47 Stat. 179, are as follows:
Ҥ 23. Deductions from Gross Income.
“In computing net income there shall be allowed as deductions:
«(sjc sis * * * *
“(r) Limitation on Stock Losses. (1) Losses from sales or exchanges of stocks and bonds (as defined in subsection (t) of this section) which are not capital assets (as defined in section 101) shall be allowed only to the extent of the gains from such sales or exchanges (including gains which may be derived by a taxpayer from the retirement of his own obligations).
* * * * * *
“(s) Same — Short Sales. — For the purposes of this title, gains or losses (A) from short sales of stocks and bonds, or ■¡B) attributable to privileges 'or options to buy or sell such stocks and bonds, or (G) from sales or exchanges of such privileges or options, shall be considered as gains or losses from sales or exchanges of stocks or bonds which are not capital assets.” 26 U.S.C.A. § 23 note.
Ҥ 101. Capital Gains and Losses.
“(a) Tax in Case of Capital Net Gain. In the case of any taxpayer, other than a corporation, who for any taxable year derives a capital net gain (as hereinafter defined in this section), there shall, at the election of the taxpayer, be levied, collected, and paid, in lieu of all other taxes imposed by this title, a tax determined as follows: A partial tax shall first be computed upon the basis of the ordinary net income at the rates and in the manner as if this section had not been enacted and the total tax shall be this amount plus 12% per centum of the capital net gain.
“* * < * * * * ‡
“(c) Definitions. For the purposes of this title—
“(1) ‘Capital gain’ means taxable gain from the sale or exchange of capital assets consummated after December 31, 1921.
it# si * * * * *
“(8) ‘Capital assets’ means property held by the taxpayer for more than two years * * * 26 U.S.C.A. § 101 note.
Harper and Brothers, 1932.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_search
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
EUREKA CASUALTY COMPANY, Appellant, v. Willie B. CORNETT, Charles Scrivner, James Lyons, Estil Moore, Smith Coal Company, and O. H. Black, W. D. Black, and Raymond E. Black, Partners, Doing Business Under the Firm Name and Style of Black Brothers Lines, Appellees.
Nos. 11049, 11050.
United States Court of Appeals Sixth Circuit.
Oct. 6, 1950.
Craft & Stanfill, Hazard, Ky., W. A. Stanfill, Hazard, Ky., for appellant.
Cornett & Dixon, Hyden, Ky., Smith & Leary, Frankfort, Ky. and Dennis B. Wooten and W. W. Reeves, Hazard, Ky., A. E. Cornett, Hyden, Ky., for appellees.
Before HICKS, Chief Judge, and SI-MONS and McALLISTER, Circuit Judges.
PER CURIAM.
The above, causes coming on, to be heard on transcript of the record, the briefs of the parties, and the argument of counsel, and the court being duly advised,
Now, therefore, it is ordered, adjudged, and decreed that the judgments are hereby affirmed, in accordance with the reasons set forth in the opinion of the District Court.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
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
COX et al. v. GOVERNMENT EMPLOYEES INS. CO.
No. 8916.
Circuit Court of Appeals, Sixth Circuit.
March 10, 1942.
James E. Fahey, of Louisville, Ky. (Woodward, Dawson & Hobson, of Louisville, Ky., on the brief), for appellants.
Charles W. Morris, of Louisville, Ky. (Morris, Garlove & Goldsmith, of Louisville, Ky., on the brief), for appellee.
Before ALLEN, MARTIN, and McALLISTER, Circuit Judges.
MARTIN, Circuit Judge.
The appellants, James P. Cox and Wav-erly Stader, obtained judgments in a Kentucky state court against William G. Hare, a private in the United States Army, for damages for personal injuries caused by the negligence of the soldier in operating an automobile.
The appellee, Government Employees Insurance Company, filed a declaratory judgment suit in the United States District Court for the Western District of Kentucky against appellants and the soldier, invoking the judgment of the court that the soldier was not an insured by virtue of the terms of a policy of automobile liability insurance issued by appellee to “Machine Gun Troop, 13th Cavalry,” in which Hare was an enlisted man; and that, therefore, appellee was not obligated to pay the judgments awarded against the soldier.
Appellants, by answer and counterclaim asserted that the appellant insurer is legally liable for the payment of their judgments recovered against Hare in the state court.
The District Court entered declaratory judgment that the appellee insurance company, under the terms of its policy, is not liable to> appellants or to the soldier, and dismissed the counterclaim.
At the time of the accident in which appellants were injured, the Machine Gun Troop of the 13th Cavalry was stationed at Fort Knox, Kentucky. Each enlisted man drew Army pay, was furnished clothing and sleeping quarters, and allotted a daily ration in money which, for convenience, was paid collectively to each troop. Meals for all men in the troop were provided from this ration fund.
A commissary, under supervision of the posi Commander, was maintained to sell to the soldiers, for cash, various and sundry articles not furnished by the Army. Profits from the commissary were, at the end of each month, divided equally among the troops in the regiment and paid as separate dividends to each troop, for the use and benefit of its membership. Each Troop Commander served as treasurer of both the commissary profit fund and the ration fund for his troop. The surplus in the troop fund was used for recreation and additional conveniences for the troopers.
From the surplus money in its troop fund, the Machine Gun Troop purchased a light half-ton truck, for the use and additional convenience of the troop and its members. Simultaneously, an insurance policy, covering liability and property damage caused by the operation of the truck, was procured from the appellee company; the premium for which, amounting to $38.-25, was paid from the troop fund.
The policy of insurance was issued to Machine Gun Troop, 13th Cavalry, as named insured, and provided that, within the stipulated limits of the policy, the insurer would pay on behalf of the insured all sums which the latter should become obligated to pay by reason of legal liability for damages for bodily injuries to persons, when such injuries were caused by accident and arose from the ownership, maintenance, or use of the automobile. The policy also contained a like coverage of liability for damage to property.
“Government Service” was stated in the policy as the business occupation of the named insured; and the purposes for which the automobile was to be used were termed “Commercial.” The term “commercial,” however, was defined as the transportation or delivery of goods or merchandise and other business uses in connection with the insured’s business occupation, “including occasional pleasure use for the named insured and family.” In defining the “Insured,” the policy provided that the unqualified word “Insured” should include not only the named insured but also any person while using the automobile and any person or organization legally responsible for its use, “provided that the declared and actual use of the automobile is ‘pleasure and business’ or ‘commercial,’ each as defined herein, and provided further that the actual use is with the permission of the named Insured.”
From the time of the purchase of the truck continuously to the date of the accident, Private Hare was the regular driver of the truck for the Machine Gun Troop. The Commanding Officer of the Troop had instructed him to clean, service and care for the truck and to use it on all authorized missions, but not at any other time. During drill hours, the truck was kept in the troop area, and at night in the Regimental Motor Park.
On December 3, 1938, the Captain of the Machine Gun Troop instructed Private Hare to take the truck to Pine Grove, Kentucky, for servicing. The order was obeyed and Hare returned to Troop Headquarters between the hours of 3:30 and 4 P. M. He retained the keys; and, around dusk, after eating his evening meal, took the truck without permission and, accompanied by a Corporal and another private of the same troop, drove first to one roadhouse and then to another in Elizabethtown, Kentucky. His voyage was for entirely personal purposes, wholly unrelated to any official business or general entertainment of the troop. Hare had not received permission from his Captain, Lieutenant, First Sergeant, Supply Sergeant, Mess Sergeant, or any other superior officer, to use the truck for the purposes to which he put it. He had never had permission to use the truck for his own personal benefit on any occasion.
While driving the truck back to the Army post on the highway from Elizabethtown, Private Hare was responsible for the accident which resulted in the judgments rendered against him in the Kentucky state court.
The Machine Gun Troop was not incorporated, nor was there any written contract or agreement among its members. It purchased the truck in strict' compliance with Army regulations; and paid, out of the troop fund, for the repairs and general upkeep of the truck, and for the gas used by it. Army regulations required that when an enlisted man should be transferred to another troop, the amount of surplus money iii the troop fund should be computed and his proportionate share transferred, with him, to the troop fund of his new troop.
The Machine Gun Troop of the 13th Cavalry was composed of 175 men. The truck which it purchased was used to transport the property and the members of the troop for troop purposes, and 'occasionally to transport troop members to and from entertainments and athletic events.
In rendering judgment for the appellee, the district court held that Private Hare was not a “named insured” in or under the policy issued to “Machine Gun Troop, 13th Cavalry”; that his right as a member of the troop to the joint use and enjoyment of the truck was subject to the binding rules and regulations of the troop; and that, at the time of the accident, he was not a party covered by the policy, inasmuch as he was not operating the truck with the knowledge, permission, or consent of the named insured. In our opinion, the judgment of the district court was correct.
It is true, as contended by appellants, that where there is room for more than one interpretation, that most favorable to the insured will be adopted. Cheek v. Commonwealth Life Ins. Co., 277 Ky. 677, 686, 126 S.W.2d 1084.
However, in Equitable Life Assurance Society v. Hall, 253 Ky. 450, page 455, 69 S.W.2d 977, page 979, where it was held that one who sues on a contract made for his benefit must accept the contract as made, the Kentucky Court said: “It is a well-settled rule that, in case of ambiguity or uncertainty, that rule more favorable to the insured will be adopted. But it is also true that a policy is interpreted according to its plain meaning giving effect to all provisions. Haselden v. Home Ins. Co. of N. Y., 247 Ky. 530, 57 S.W.2d 459. The rule of liberal construction does not authorize a perversion of language or the exercise of invented powers, for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties, by adding to, or striking from, the conditions of the policy.” See to the same effect Sun Indemnity Co. v. Dulaney, 264 Ky. 112, 120, 89 S.W.2d 307; Fidelity & Casualty Co. v. Bynum, 221 Ky. 450, 298 S.W. 1080; Brotherhood of Railroad Trainmen v. Wilkins, 257 Ky. 331, 78 S.W.2d 6. Compare Williams v. Union Central Life Ins. Co., 291 U.S. 170, 180, 54 S.Ct. 348, 78 L.Ed. 711, 92 A.L.R. 693.
The insured, Machine Gun Troop, 13th Cavalry, was an unincorporated association. As such, it had no legal entity distinct from that of the persons comprising it. Each member of the associated group did possess legal entity. The legal entity of the group was comprised of the collective legal entities of its members. An action at law was probably not maintainable in the association name, but could be brought through the collective legal entities 'of the persons comprising the association. Moffat Tunnel League v. United States, 289 U.S. 113, 53 S.Ct. 543, 77 L.Ed. 1069; Nichols v. Bardwell Lodge No. 179 I. O. O. F., 105 Ky. 168, 48 S.W. 426.
A person who' enters into a contract with an unincorporated association is, of course, legally liable for the fulfillment of his undertakings under the contract.
Generally, individual members of unincorporated associations are liable for the contracts and undertakings of the association; but an individual member of a mutual benefit association, not organized for gain or profit, is not liable for the debts and obligations of the association, unless he authorizes or ratifies the transactions out of which the obligations or contracts arose. Brady v. Mutual Benefit Department of the Order of Railway Conductors of America, 215 Ky. 177, 178, 179, 284 S.W. 1045.
It is the settled law of Kentucky that voluntary associations may adopt reasonable rules for the government of their membership and may enforce compliance therewith. Louisville Board of Fire Underwriters v. Johnson, 133 Ky. 797, 810, 119 S.W. 153, 24 L.R.A.,N.S., 153; Booker & Kinnaird v. Louisville Board of Fire Underwriters, 188 Ky. 771, 780, 224 S.W. 451, 21 A.L.R. 531.
Each member of the insured Machine Gun Troop was limited to use and enjoy-, ment of the truck for the common purpose for which it was purchased, and was subject to restrictions imposed by Army regulations and the orders of officers within the scope of their military jurisdiction.
The members of the troop were not legally accountable for unlawful use of the truck by one of their number. A voluntary association is not liable for the tort of a member when perpetrated beyond the scope of its control over his acts. Compare Guy v. Donald, 203 U.S. 399, 27 S.Ct. 63, 51 L.Ed. 245.
The policy under interpretation provided distinctly that the actual use of the truck should be with the permission of the named insured. The judgments awarded against Private Hare were resultant from his use of the truck without permission of the named insured. It is manifest that Private Hare caused the personal injuries of appellants from his use of the truck .for his own personal purposes, in violation of troop regulations and contrary to the command of his superior officers. He is, therefore, not entitled to indemnity under the insurance policy issued to the Machine Gun Troop. The liability of the appellee insurer to appellants does not reach beyond its liability to Hare.
The judgment of the district court is 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:
|
sc_petitioner
|
080
|
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.
ROWAN COS., INC. v. UNITED STATES
No. 80-780.
Argued April 21, 1981
Decided June 8, 1981
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 263.
K. Martin Worthy argued the cause for petitioner. With him on the briefs were Michael C. Durney and Elmer H. Theis.
Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Murray, Leonard J. Henzke, Jr., and Stanley S. Shaw, Jr
Briefs of amici curiae urging reversal were filed by Roger J. Marzulla and Maxwell A. Miller for Kim Aspatore et al.; by Thomas W. Power and Robert D. McDonald for the Foodservice and Lodging Institute; and by Lawrence Gerber for the Young Men’s Christian Association of Metropolitan Hartford, Inc.
Justice Powell
delivered the opinion of the Court.
This case concerns the federal taxes imposed upon employers by the Federal Insurance Contributions Act (FICA), 26 U. S. C. § 3101 et seq., and the Federal Unemployment Tax Act (FUTA), 26 U. S. C. § 3301 et seq. The question is whether petitioner should have included in the computation of “wages,” which is the base for taxation under FICA and FUTA, the value of meals and lodging provided for its own convenience to employees working on offshore oil rigs.
I
During the tax years in question, 1967-1969, petitioner Rowan Companies, Inc., owned and operated rigs for drilling oil and gas wells, both on land and offshore. Some of petitioner’s offshore rigs were located as many as 60 miles from land. It cost petitioner less and was more convenient to provide meals and lodging to employees at these rigs than to transport the employees to and from the rigs for each work shift. Employees worked at these rigs for 10-day tours of duty, and petitioner then transported them back to land for 5-day periods of leave. All employees at a rig received the same meals and lodging facilities, regardless of employment status or pay. Employees did not receive any cash allowance if they chose not to eat a meal. Petitioner did not provide meals or lodging to employees during their leave; nor did it provide meals or lodging to employees working on land-based rigs.
Petitioner did not include the value of the meals and lodging in computing its employees’ “wages” for the purpose of paying taxes under FICA or FUTA. Nor did petitioner include this value in computing “wages” for the purpose of withholding its employees’ federal income tax under 26 U. S. C. § 3402 (a), Its uniform practice appeared to be consistent with the statutory language, as Congress defined “wages” in substantially identical language for each of these three obligations upon employers. Upon audit, however, the Internal Revenue Service included the fair value of the meals and lodging in the employees’ “wages” for the purpose of FICA and FUTA, but not for the purpose of income-tax withholding under §3402 (a). The Service acted consistently with the present Treasury Regulations that interpret the definition of “wages” in FICA and FUTA to include the value of these meals and lodging, whereas the substantially identical definition of “wages” in § 3401 (a) is interpreted by Treasury Regulations to exclude this value. Compare Treas. Reg. §§ 31.3121 (a)-l (e), (f) (FICA), 26 CFR §§ 31.3121 (a)-1(e), (f) (1980); Treas. Reg. §§ 31.3306 (b)-l (e), (f) (FUTA), 26 CFR §§ 31.3306 (b)-l (e), (f) (1980); with Treas. Reg. §§31.3401 (a)-l (b)(9), (10) (income-tax withholding), 26 CFR §§31.3401 (a)-l (b)(9), (10) (1980). Petitioner paid the additional assessment and brought this suit for a refund under 28 U. S. C. § 1346 (a)(1).
The District Court for the Southern District of Texas granted the Government’s motion for summary judgment. The Court of Appeals for the Fifth Circuit affirmed, expressing the view that the different interpretations of the definition of “wages” are justified by the different purposes of FICA and FUTA, on the one hand, and income-tax withholding, on the other. 624 F. 2d 701, 707 (1980). We granted a writ of certiorari, 449 U. S. 1109 (1981), because the Court of Appeals’ decision conflicts with the decisions of other Courts of Appeals. We now reverse.
II
The Government acknowledges that petitioner properly excluded the value of the meals and lodging in computing the “wages” from which it withheld employees’ income tax under § 3402 (a). Under the Treasury Regulation interpreting the definition of “wages” for income-tax withholding, the employer excludes the value of meals or lodging from “wages” if the employee excludes the value from his gross income. Treas. Reg. § 31.3401 (a) — 1 (b)(9), 26 CFR § 31.3401 (a)-1 (b)(9) (1980). Under the convenience-of-the-employer rule, an employee may exclude from gross income the value of meals and lodging furnished to him by his employer if the employer furnished both the meals and lodging for its own convenience, furnished the meals on its business premises, and required the employee to accept the lodging on the business premises as a condition of employment. 26 U. S. C. § 119 (1976 ed., Supp. III). Petitioner’s provision of meals and lodging to employees on its offshore rigs satisfied each of these § 119 requirements. The value of the meals and lodging therefore was excludable by the employer from “wages” under Treas. Reg. § 31.3401 (a)-l (b)(9), 26 CFR § 31.3401 (a)-l (b) (9) (1980). See generally Commissioner v. Kowalski, 434 U. S. 77 (1977).
Notwithstanding this acknowledgment, the Government contends that petitioner should have included the value of the meals and lodging in “wages” for purposes of FICA and FUTA. It relies on Treas. Reg. §§ 31.3121 (a)-l (f) (FICA) and 31.3306 (b)-l (f) (FUTA), 26 CFR §§31.3121 (a)-l (f) and 31.3306 (b)-l (f) (1980), that provide:
“Ordinarily, facilities or privileges (such as entertainment, medical services, or so-called ‘courtesy’ discounts on purchases), furnished or offered by an employer to his employees generally, are not considered as remuneration for employment if such facilities or privileges are of relatively small value and are offered or furnished by the employer merely as a means of promoting the health, good will, contentment, or efficiency of his employees. The term ‘facilities or privileges,’ however, does not ordinarily include the value of meals or lodging furnished, for example, to restaurant or hotel employees, or to seamen or other employees aboard vessels, since generally these items constitute an appreciable part of the total remuneration of such employees.”
If valid, these regulations dictate that the value of the meals and lodging provided by petitioner to its employees on offshore rigs was includable in “wages” as defined in FICA and FUTA, even though excludable from “wages” under the substantially identical definition in § 3401 (a) for income-tax withholding.
We consider Treasury Regulations valid if they “implement the congressional mandate in some reasonable manner.” United States v. Correll, 389 U. S. 299, 307 (1967); accord, Commissioner v. Portland Cement Co. of Utah, 450 U. S. 156, 169 (1981). In National Muffler Dealers Assn. v. United States, 440 U. S. 472, 477 (1979), we stated: “In determining whether a particular regulation carries out the congressional mandate in a proper manner, we look to see whether the regulation harmonizes with the plain language of the statute, its origin, and its purpose.” Harmony between statutory language and regulation is particularly significant in this case. Congress itself defined the word at issue — “wages”—and the Commissioner interpreted Congress’ definition only under his general authority to “prescribe all needful rules.” 26 U. S. C. § 7805 (a). Because we therefore can measure the Commissioner’s interpretation against a specific provision in the Code, we owe the interpretation less deference than a regulation issued under a specific grant of authority to define a statutory term or prescribe a method of executing a statutory provision. Compare Commissioner v. Portland Cement Co. of Utah, supra, at 165; Fulman v. United States, 434 U. S. 528, 533 (1978); Batterton v. Francis, 432 U. S. 416, 424-425, and nn. 8-9 (1977). Where the Commissioner acts under specific authority, our primary inquiry is whether the interpretation or method is within the delegation of authority.
Among other considerations relevant to the validity of Treasury Regulations, we inquire whether the regulation “is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent,” National Muffler Dealers Assn. v. United States, 440 U. S., at 477; and “[i]f the regulation dates from a later period, the manner in which it evolved merits inquiry.” Ibid. We also consider, if pertinent, “the consistency of the Commissioner’s interpretation, and the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute.” Ibid. In this case, we hold that Treas. Reg. §§ 31.3121 (a)-l (f) and 31.3306 (b)-l (f) are invalid, for they fail to implement the congressional mandate in a consistent and reasonable manner.
A
Congress chose “wages” as the base for measuring employers’ obligations under FICA, FUTA, and income-tax withholding. In Central Illinois Public Service Co. v. United States, 435 U. S. 21 (1978), we considered Congress’ use of the concepts of “income” and “wages” for the purpose of income-tax withholding. The question was whether an employer should have included in “wages” for income-tax withholding the reimbursements it had given employees for lunch expenses on company travel that had. not required overnight stays. We held that the employer was not required to include the reimbursements in “wages,” even though the reimbursements constituted “income” to the employees. This holding relied on the recognition that “[t]he two concepts — income and wages — obviously are not necessarily the same. Wages usually are income, but many items qualify as income and yet clearly are not wages.” Id., at 25 (footnote omitted). In short, “wages” is a narrower concept than “income,” see ibid., and the fact that the reimbursements were “income” to the employees did not necessarily mean that the employer had to include them in “wages” for income-tax withholding.
Petitioner contends that its position in this case follows from our reasoning in Central Illinois. Because “wages” is a narrower concept than “income” for the purposes of income-tax withholding, it is argued that the value of the meals and lodging in this case — which the Government acknowledges is not “income” — therefore cannot be “wages” under FICA and FUTA. Petitioner’s argument rests on the assumption that Congress intended the term “wages” to have the same meaning for purposes of FICA, FUTA, and income-tax withholding. We now consider whether petitioner’s assumption is correct.
B
Congress enacted the predecessor provisions of FICA and FUTA as Titles VIII and IX of the Social Security Act of 1935, ch. 531, 49 Stat. 636, 639. It chose “wages” as the base for taxation of employers, § 804, 49 Stat. 637; § 901, 49 Stat. 639, and it defined “wages.” §811 (a), 49 Stat. 639; §907 (b), 49 Stat. 642. Congress originated the present income-tax withholding system in § 172 of the Revenue Act of 1942, 56 Stat. 884. See Central Illinois Public Service Co. v. United States, supra, at 26-27. It again chose “wages” as the base, 56 Stat. 888, and defined “wages” in substantially the same language that it used in FICA and FUTA, id., at 887. When Congress revised the withholding system by replacing § 172 with the Current Tax Payment Act of 1943, 57 Stat. 126, it retained the definition of “wages.” Ibid. In view of this sequence of consistency, the plain language of the statutes is strong evidence that Congress intended “wages” to mean the same thing under FICA, FUTA, and income-tax withholding.
The legislative histories of the Acts establishing income-tax withholding support the conclusion to be drawn from the plain language. These histories reveal a congressional concern for “the interest of simplicity and ease of administration.” S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942) (Revenue Act of 1942). See Central Illinois Public Service Co. v. United States, supra, at 31. They also reveal that one of the means Congress chose in order to promote simplicity was to base withholding upon the same measure— “wages” — as taxation under FICA and FUTA. Thus, whereas the withholding system proposed by the House provided for withholding upon dividends and bond interest in addition to wages, H. R. Rep. No. 2333, 77th Cong., 2d Sess., 125 (1942), the system proposed by the Senate and enacted in § 172 limited withholding to wages. S. Rep. No. 1631, supra, at 165. “This was a standard that was intentionally narrow and precise.” Central Illinois Public Service Co. v. United States, supra, at 31. Section 172 also specified that remuneration for certain services was excepted from “wages.” According to the Senate Report, “[t]hese exceptions [for income-tax withholding] are identical with the exceptions extended to such services for Social Security tax purposes and are intended to receive the same construction and have the same scope.” S. Rep. No. 1631, supra, at 166.
When Congress replaced § 172, the House devoted much attention to the specified exceptions from “wages,” H. R. Rep. No. 268, 78th Cong., 1st Sess., pt. 1, p. 14 (1943); H. R. Rep. No. 401, 78th Cong., 1st Sess., pt. 1, pp. 22-23 (1943), but it left the essential definition of “wages” unchanged. H. R. Rep. No. 268, supra, at 14. The Senate modified the bill proposed by the House, and reported: “[T]he methods of collection, payment, and administration of the withholding tax have been coordinated generally with those applicable to the Social Security tax imposed on employees under section 1400 of the code. This proposal has been made in order to facilitate the work of both the Government and the employer in administering the withholding system.” S. Rep. No. 221, 78th Cong., 1st Sess., 17 (1943); see also H. R. Conf. Rep. No. 510, 78th Cong., 1st Sess., 28 (1943).
In sum, Congress intended in both the Revenue Act of 1942 and the Current Tax Payment Act of 1943 to coordinate the income-tax withholding system with FICA and FUTA. In both instances, Congress did so to promote simplicity and ease of administration. Contradictory interpretations of substantially identical definitions do not serve that interest. It would be extraordinary for a Congress pursuing this interest to intend, without ever saying so, for identical definitions to be interpreted differently.
Despite the plain language of Congress’ definition of “wages” and this legislative history, the Government contends that FICA and FUTA compose a distinct system of taxation to which the rules of income taxation, such as the exclusion of the value of meals and lodging from “income” under the convenience-of-the-employer rule in § 119, do not apply. In support, the Government recites congressional Committee Reports indicating that Congress enacted the Social Security Act to “relieve the existing distress and... to reduce destitution and dependency in the future,” H. R. Rep. No. 615, 74th Cong., 1st Sess., 3 (1935). See also S. Rep. No. 628, 74th Cong., 1st Sess., 2 (1935). These Reports also state that “[w]ages include not only the cash payments made to the employee for work done, but also compensation for services in any other form, such as room, board, etc.” H. R. Rep. No. 615, supra, at 32 (Title VIII (FICA)); accord, id., at 36 (Title IX (FUTA)); S. Rep. No. 628, supra, at 44 (FICA), 49 (FUTA). The Government concludes that Congress intended to impose the taxes under FICA and FUTA upon a broad range of remuneration in order to accomplish the Act’s purposes.
We are not persuaded by this contention. The reference by Congress to “room, board, etc.” as examples of “wages” under Titles VIII and IX is ambiguous. It does not n'eces-sarily mean that Congress intended to tax remuneration in kind without regard to principles developed under income taxation, such as the convenience-of-the-employer rule. This rule first appeared in 1919, O. D. 265, 1 Cum. Bull. 71, and was well established by 1935. See Commissioner v. Kowalski, 434 U. S., at 8A-87. There is no evidence in the Committee Reports cited by the Government that Congress intended to exclude this established rule from determinations under Titles VIII and IX or to create a different rule to govern “room, board, etc.” We therefore think that the reference in the Committee Reports to “room, board, etc.” lends no support to the validity of the Treasury Regulations on which the Government relies.
The Government further contends, however, that a line of Treasury Regulations and rulings unbroken since 1940 refutes petitioner’s view that Congress intended a consistent interpretation of the term “wages.” It also contends that we may infer congressional endorsement of these Treasury Regulations and rulings from Congress’ re-enactment of FICA, FUTA, and the income-tax withholding provisions in the Internal Revenue Code of 1954. We now address these contentions.
C
The history of the Treasury Regulations and rulings interpreting Congress’ definition of “wages” in FICA and FUTA is far from consistent. The Commissioner’s contemporaneous construction of Titles VIII (FICA) and IX (FUTA) of the Social Security Act of 1935 was that the convenience-of-the-employer rule applied to the computation of “wages.” Treas. Regs. 90, Art. 207 (1936) (Title IX); Treas. Regs. 91, Art. 14 (1936) (Title VIII)/ Pursuant to Treas. Regs. 90, Art. 207, the Service ruled in 1937 that “supper money” paid to employees working overtime for the convenience of the employer was excludable from “wages” under both Titles. S. S. T. 110, 1937-1 Cum. Bull. 441. Again in 1938, the Service ruled in S. S. T. 302, 1938-1 Cum. Bull. 457, that free lunches provided by an employer for its own convenience were excludable from “wages” under Title IX. See also S. S. T. 383, 1940-1 Cum. Bull. 210-211.
The position taken in the Treasury Regulations and rulings subsequently changed, but without explanation. In 1939, Congress passed the Social Security Act Amendments of 1939, ch. 666, 53 Stat. 1360, that amended some of the specified exclusions from “wages” under FICA and FUTA but left unchanged the definition of “wages.” Compare §§ 603, 614, 53 Stat. 1382, 1392, with §§ 1426 (a), 1607 (b), Internal Revenue Code of 1939, 26 U. S. C. §§ 1426 (a), 1607 (b) (1952 ed.). In 1940, however, the Commissioner issued Treas. Regs. 106, §402.227 (FICA), and Treas. Regs. 107, § 403.227 (FUTA). These Regulations, which were virtually identical to the present Treasury Regulations at issue in this case, excluded the convenience-of-the-employer rule from the computation of “wages” under FICA and FUTA. No reasons were stated for this change. Pursuant to the new Regulations, the Service ruled in 1940 that the value of meals and lodging furnished to the crew operating a steamship was includable in “wages” under FICA and FUTA. S. S. T. 386, 1940-1 Cum. Bull. 211-212. In 1944, the Commissioner stated in Mim. 5657, 1944 Cum. Bull. 551, that the value of meals and lodging furnished by an employer was includable in “wages,” and the Commissioner added without explanation that “ [i]t is immaterial, for the purposes of such taxes, whether the quarters or meals are furnished for the convenience of the employer.”
The Government contends that the 1940 Regulations and the rulings issued pursuant to them acquired “the effect of law” when Congress re-enacted FICA and FUTA without substantial change in the Internal Revenue Code of 1954. United States v. Correll, 389 U. S., at 305; Cammarano v. United States, 358 U. S. 498, 510-511 (1959
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_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).
Michael Anthony DAVIS, Appellant, v. UNITED STATES of America, Appellee.
No. 24894.
United States Court of Appeals, Ninth Circuit.
April 21, 1970.
David M. Rothman, Los Angeles, Cal., for appellant.
Wm. J. Tomlinson, Darrell W. MacIntyre, Robert L. Brosio, Asst. U. S. Attys., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.
Before HAMLEY, KOELSCH and KILKENNY, Circuit Judges.
PER CURIAM.
Appellant was indicted, tried and convicted in a jury trial of violating 18 U. S.C. § 914 and 18 U.S.C. § 1708. He appeals from his judgment of conviction on each count. We affirm.
Appellant assigns two errors:
I.
MIRANDA WARNING
Appellant received and signed a warning card, patterned to conform to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He complains of the language: “* * * anything you say can be used against you in court.”, and argues that the language should be: “* * * anything you say can and will be used against you in court.” This contention is patently without merit. Craft v. United States, 403 F.2d 360 (9th Cir. 1968).
II.
EYE-WITNESS IDENTIFICATION
While we do not condone the practice, followed in this case, of attempting to influence a witness’s recollection by displaying to her a photograph. of appellant immediately prior to testifying, we hold that the admission of the identification testimony on the record before us, did not, in any way, affect the substantial rights of the appellant.
The witness had an excellent chance to closely observe the person who committed the crimes and there is nothing in the record which even remotely suggests that her in court identification was in any way influenced by her view of the photograph. Additionally, appellant was identified by another witness whose testimony is wholly untainted. It is only when the photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification, that the verdict should be set aside. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Viewing the record as a whole, it cannot be said that such was here the case or that appellant was denied due process. Borchert v. United States, 405 F.2d 735, 737 (9th Cir. 1968).
An additional obstacle stands in appellant’s path to relief on this issue. No objection was made in the lower court. Consequently, the contention is not properly before us unless we find plain error under F.R.Crim.P., Rule 52(b). The plain error rule should be invoked only in exceptional cases, that is, situations where it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. Marshall v. United States, 409 F.2d 925 (9th Cir. 1969). We find nothing in this ease which would justify the employment of Rule 52(b).
. False impersonation of a holder of an obligation of the United States.
. Possession of stolen mail,
. Rule 52, F.R.Crim.P.
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_genstand
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Andrew LITTLE, Jr., and Myrn Little, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 17185.
United States Court of Appeals Ninth Circuit.
July 7, 1961.
Bellwood & Goodman, Sherman J. Bell-wood, Rupert, Idaho, for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Melva M. Graney and Carolyn R. Just, Attys., Dept, of Justice, Washington, D. C., for respondent.
Stephen H. Hart, Claude M. Maer, Jr., Denver, Colo., for Nat’l Livestock Tax Com., as amicus curiae.
Before BARNES, HAMLIN and MERRILL, Circuit Judges.
MERRILL, Circuit Judge.
This petition for review of a tax court decision presents a problem of concern to the livestock industry: the proper income tax treatment of the proceeds of sale of breeding stock raised by the taxpayers where the taxpayers are on the accrual system of accounting and following the “unit-livestock-price method” of livestock inventory valuation.
Taxpayers contend that they are entitled to change their breeding herd from an accrual to a cost system of accounting, which would place taxpayers in a more favorable position in reporting the proceeds of sale of breeding animals. Further, taxpayers contend, they should be permitted to make this change retroactively and recover the tax benefits of the change as though it had applied throughout the life of these animals.
The petition for review involves a deficiency in federal income tax for 1951 in the amount of $10,866.62. On petition of the taxpayers for redetermination the tax court upheld the commissioner. 34 T.C. 156. The court ruled that the taxpayers were not entitled to change their breeding herd to a cost accounting system from an accrual system; further, in any event, that such change could not be made retroactively. We have concluded that the tax court must be affirmed.
Upon this review, the National Livestock Tax Committee appears as amicus curiae in support of taxpayers’ position.
Taxpayers were engaged in the livestock business in Idaho. Their business operations consisted principally of the raising and sale of sheep and cattle. In 1951 and 1952, their breeding herds consisted of approximately 15,000 head of sheep and 150 head of cattle. Each year a certain number of ewes and buck lambs and heifer calves were selected in accordance with taxpayers’ judgment to be raised as additions to the breeding herd. Also, each year, due to old age, disease or other circumstances, certain of the breeding animals were culled and sold. In 1951, taxpayers received for sale of breeding stock so culled the sum of $23,-060.09. It is income tax treatment of this item with which we are concerned.
Taxpayers have been on the accrual system of accounting and have followed the “unit-livestock-price method” of livestock inventory valuation as allowed by the commissioner in 1945. T.D. 5423, 1945, Cum.Bull. 70; Min. 5790, 1945, Cum.Bull. 72. This method is based wholly upon estimated costs and is allowed by the commissioner because of the difficulty of ascertaining the actual cost of raising livestock. Tr.Reg. 111, § 29.-22(c)-6, in this respect provides in part:
“The ‘unit-livestock-price method’ provides for the valuation of the different classes of animals in the inventory at a standard unit price for each animal within a class. A livestock raiser electing this method of valuing his animals must adopt a reasonable classification of the animals in his inventory with respect to the age and kind included so that the unit prices assigned to the several classes will reasonably account for the normal costs incurred in producing the animals within such classes. Thus, if a cattle raiser determines that it costs approximately $15 to produce a calf, and $7.50 each year to raise the calf to maturity, his classifications and unit prices would be as follows: calves, $15; yearlings, $22.50; two-year old, $30,000; mature animals, $37.50. The classification selected by the livestock raiser, and the unit prices assigned to the several classes, are subject to approval by the Comissioner upon examination of the taxpayer’s return.”
The commissioner concedes that the breeding herd is entitled to capital gain treatment under § 117(j) of the Internal Revenue Code of 1939, 26 U.S.C. § 117 (1952 Ed.). The problem presented is as to the method of computing it.
The breeding stock sold in 1951 had been carried on inventory pursuant to the requirements of Treasury Regulation 111, § 29.22(c)-6, which provides:
“A taxpayer who elects to use the ‘unit-livestock-price method’ must apply it to all livestock raised, whether for sale or for breeding, draft, or dairy purposes. Once established, the unit prices and classifications selected by the taxpayer must be consistently applied in all subsequent years in the valuation of livestock inventories. No changes in the classification of animals or unit prices will be made without the approval of the Commissioner.”
The inventory value of these animals in 1951 was $7,280.62. This figure was treated by the commissioner as the cost basis of the animals from which the capital gain produced by their sale was computed.
The taxpayers challenge this method of computing capital gain. Their contention is that the breeding herd never should have been included in inventory and that the commissioner’s regulation improperly required such inclusion. Their method of correcting this asserted error was to deduct the sum of $7,280.62 (representing costs which, taxpayers claim, would have been deducted had the breeding herd not been included in inventory) from closing inventory and to report the sold animals at zero basis for capital gain purposes. This method the commissioner disallowed.
In considering the propriety of the commissioner’s ruling, we start with the proposition that irrespective of whether one is on a cost or an accrual method of accounting, costs attributable to items receiving capital gains treatment are customarily capitalized throughout their life and are reflected in the ultimate adjusted cost basis of the goods at the time of their sale or disposition.
Because of the difficulty of ascertaining the true cost of raising a breeding herd, the commissioner in his regulations has in effect provided that such costs need not be separately capitalized, but that the breeding herd is to be treated in the same manner as the income herd. The result, whether the taxpayer is on the cost or on the unit-livestock-price inventory method of accrual accounting, is a single unified accounting system applying both to the income herd and to the breeding herd and making for ease of accounting both to the taxpayer and to the commissioner.
To the cost method taxpayer this means that costs of raising the breeding herd are annually reported as a part of the over-all costs of operation. On sale of the breeding animals, they are given a zero basis. Reg. 111, § 29.22(a)-7. Thus the entire proceeds of sale are reportable as capital gain. This fact is noted by Mertens, Vol. 3B, Law of Federal Income Taxation, page 569, § 22.130, in the following language:
“A taxpayer who can qualify for capital gain treatment under Section 1231 obtains an advantage if he uses the cash basis of accounting rather than the accrual basis, for under the cash basis the costs of raising animals are currently deducted, leaving a reduced basis which on disposition of the animals results in greater capital gain than if the costs had been capitalized. Consequently, an ordinary deduction is obtained at the cost of a capital gain.”
As to the unit-livestock-price inventory taxpayer, instead of capitalizing the true costs of the breeding animals, the approved estimate of costs is used and establishes the cost basis of the animals for purposes of capital gain determination.
Taxpayers complain that it is improper and prejudicial to require them to treat what are essentially capital goods as inventory goods. They assert that to do so presupposes that the sale proceeds are income and that that income is to be spread over the life of the breeding herd and taxed in that fashion.
We do not so view the situation. The inventory method serves two separate purposes: as to the income herd, it makes the accrual system of accounting available to the taxpayer with the benefit to him of spreading over the life of the animals the income ultimately derived from their sale; as to the breeding herd, it provides a simple means of capitalizing costs.
Taxpayers protest that to require costs to be capitalized in their case and not to-require it in the case of a cost method' taxpayer is disctiminatory. They rely on Scofield v. Lewis, 5 Cir., 1958, 251 F.2d 128. We must respectfully disagree.
What the commissioner is .seeking through his regulations is a single unified system of accounting for each taxpayer, whether he be under a cost or an accrual-inventory system. Each method has its advantages over the other. The taxpayer is given his choice. What the commissioner refuses to permit is a hybrid system incorporating elements of both methods by which the taxpayer takes to himself selected advantages of each.
The advantages to which these taxpayers claim a right are not theirs as a. matter of right. They are conferred not by the code but by the commissioner’s, regulations. They are conferred for a. purpose and the fact that the conferral is limited in accordance with such purpose does not render it arbitrary or discriminatory. The conferral must be so-limited or the purpose is lost. It would, appear to be an anomaly if the benefit bestowed by the commissioner upon the-cost system taxpayer for the purpose of' achieving a unified accounting system were thereby to become available to an accrual system taxpayer, with the result, that a unified accounting system was. lost.
We conclude that the tax court was not in error in its ruling upholding the requirement of Treasury Regulation 111, § 29.22(c)-6, that a taxpayer electing to use the unit-livestock-price method •of inventory valuation must apply it to the breeding herd. We find, in this respect, that the recent decision in United State v. Ekberg, 8 Cir., 291 F.2d 913, provides support for our conclusion.
Our decision upon this issue makes it unnecessary for us to reach taxpayers’ second contention: that they are retroactively entitled to the benefits which a •change of the breeding herd to the cost •system would provide.
A second problem presented by this •case relates to the amount of the net ■operating loss deduction for the taxable year 1951.
Taxpayers had an allowable loss carry-back from 1952 to 1951 (computed under § 122(c) of the Internal Revenue Code •of 1939, 26 U.S.C.A. § 122(c) ) in the sum of $11,962.92. In computing the net operating loss deduction the commissioner reduced this amount by $10,363.37, representing one-half of the taxpayers’ 1951 long-term capital gains of $20,726.-'74. A net operating lo.ss deduction in the sum of $1,599.55 was approved. Such reduction was pursuant to the provisions ■of § 122(d) (4) .
With reference to this section and its general purpose, the tax court in Kaecker v. Commissioner, 1958, 30 T.C. •897, 899, stated:
“That general purpose is to allow a taxpayer to set off against income for one year the net operating losses for later years. It is a tax relief measure but it is designed to prevent combining with it certain designated relief allowances previously taken by the taxpayer. It reintroduces that income which had escaped taxation by reason of section 117 (b). Having enjoyed the benefit of section 117(b) in their computation of net income in 1952, petitioners must now have their net operating loss carry-backs reduced by the amount of said benefit if they desire the benefit of section 122(c).”
Taxpayers assert that since they computed their 1951 tax under the alternative tax provisions of § 117(c) the exception specified in § 122(d) (4) should not apply. This proposition the tax court rejected upon the authority of Appleby v. United States, Court of Claims, 1953, 116 F.Supp. 418. We agree. The court of claims there stated at page 421:
“In both computations the capital loss is utilized to afford a tax benefit. * * * Having thus enjoyed the benefit in the initial computation, it must now be offset according to the statute before the allowable carry-back can properly become a net operating loss deduction for the taxable year 1941.”
Affirmed.
. “(c) Amount of net operating loss deduction. — The amount of the net operating loss deduction shall be the aggregate of the net operating loss carry-overs and of the net operating loss carry-backs to the taxable year reduced by the amount, if any, by which the net income (computed with the exceptions and limitations provided in subsection (d) (1), (2), [3] , and (4)) exceeds, in the ease of a taxpayer other than- a corporation, the net income (computed without such deduction), or, in the case of a corporation, the normal-tax net income (computed without such deduction and without tbe credit provided in section 26(b) and (i)).”
“(d) Exceptions, additions and limitations. The exceptions, additions, and limitations referred to in subsections (a), (b), and (c) shall be as follows:
* :Jc is & sf:
“(4) Gains and losses from sales or exchanges of capital assets shall be taken into account without regard to the provisions of section 117 (b). As so computed the amount deductible on account of such losses shall not exceed the amount includible on account of such gains.”
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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.
BALDERSON v. UNITED STATES. LEUPOLD v. SAME.
Circuit Court of Appeals, Eighth Circuit.
March 19, 1928.
Nos. 7825, 7826.
Conspiracy <@=>47 — Evidence held to warrant conviction for conspiracy to possess and transport intoxicating liquor (Cr. Code, § 37 [18 USCA § 88]; National Prohibition Act, tit. 2 [27 USCA § 4 et seq.]).
In prosecution under Criminal Code, § 37 (18 USCA § 88), for conspiracy to violate National Prohibition Act tit. 2 (27 USCA § 4 et seq.), by unlawfully transporting and possessing intoxicating liquor, evidence helé sufficient to warrant conviction.
In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.
Eric Balderson and Ira Leupold were separately tried and convicted of conspiracy to violate the National Prohibition Act, and they separately bring error.
Affirmed.
Daniel Horrigan, of Omaha, Neb., for plaintiffs in error.
James C. Kinsler, U. S. Atty., of Omaha, Neb. (Ambrose C. Epperson and George A. Keyser, Asst. U. S. Attys., both of Omaha, Neb., William J. Froelich, Asst. U. S. Atty., of O’Neill, Neb., and Philip M. Aitken, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States.
Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.
PHILLIPS, District Judge.
Erie Balder-son and Ira Leupold were charged by indictment, and separately tried, convicted, and1 sentenced, for a violation of section 37 of the Criminal Code (USCA, tit. 18, § 88).
The assignments of error present one question: Did the court err in overruling the motions at the close of the evidence in each case for a directed verdict upon the ground that such evidence was insufficient to support a verdict of guilty ?
The indictment charged that the defendants on the 6th day of January, 1926, unlawfully conspired together to commit an offense against the United States of America, to wit, to violate title 2 of the National Prohibition Act (27 USCA § 4 et seq.). It further charged that the defendants, on the 7th day of January, in the city of Lincoln, Lancaster county, Nebraska, in pursuance of such unlawful conspiracy, and to effect the object thereof, did unlawfully possess certain intoxicating liquor, to wit, 13 quarts of alcohol;, did unlawfully transport intoxicating liquor, to wit, 13 quarts of alcohol; did unlawfully possess intoxicating liquor, to wit about one-quart of alcohol; and did unlawfully transport intoxicating liquor, to wit, about one quart of alcohol.
The evidence on the part of the government showed that on a number of occasions prior to January 7, 1926, the government’s witness, Henry Knippel, who was a tinner, at the request of one or the other of the defendants, had removed the flat top of certain 5-gallon tin containers, soldered an ordinary quart tin can immediately underneath the screw top opening in the top of such containers, filled the containers with water to within-about one quart of their capacity, and then soldered the tops with the quart tin cans attached thereto back on the containers; that prior to January 7, 1926, the defendant. Leupold brought 13 of such 5-gallon tin containers to Knippel’s shop in Lincoln and requested him to make like changes in such containers; that on the morning of January 7, 1926, both defendants came to the shop’, that Enippel had theretofore changed 8 of such containers, but, due to the freezing weather, had opened them np and removed the water; that defendants told him they would have to have the containers at once or they would lose a sale; that he worked through the noon hour and until about 1 o’clock fixing the containers, and that defendants then took them away. The evidence on the part of the government further showed that certain state officers were watching the tin shop; that they observed the defendants carry the containers from the tin shop and place them in an automobile; that the defendants then left in such automobile; that the officers followed them to an alley near Eighteenth and L streets, in Lincoln; that when the defendants reached the alley they got out of the automobile and walked over to a garage on such alley; that later they returned to the automobile and drove away; that the officers observed them about 2 o’clock in the afternoon return in such automobile to the garage; that the defendants drove into the garage and remained therein about 20 or 25 minutes; that they then backed the automobile out of the garage; that the defendant Balderson locked the garage door with a padlock; that the defendants then left in the automobile; that the officers followed them a short distance, arrested them, and found in the automobile a glass jug and funnel; that the glass jug contained a quantity of alcohol; that the officers then returned to the garage, broke into the same, and found 13 5-gallon tin containers with a small tin can soldered underneath the screw top opening in each of them; that they closely resembled in appearance the containers that the defendants had taken from the tin shop; that the small quart cans contained alcohol; that the balance of the 5-gallon containers contained water; that the officers also found a 1-gallon tin can containing a small amount of alcohol; that the odor of alcohol, was very perceptible in and around the garage. Enippel examined the containers found in the garage and testified that he had soldered the small cans underneath the opening in the tops thereof.
The government also introduced the evidence of a chemist who testified that he had analyzed the contents of 4 of the quart cans soldered underneath the top of the 5-gallon containers and of the 1-gallon tin container found in the garage, and of the glass jug taken from the automobile, and testified that each contained ethyl or grain alcohol.
We are of the opinion that the jury was warranted in finding from this evidence beyond a reasonable doubt that the defendants had entered into a conspiracy to possess, transport, and sell intoxicating liquor, to wit, alcohol, contrary to the provisions of the National Prohibition Act, and that on the 7th day of January, in-pursuance of such conspiracy and to further the objects thereof, they committed the overt aets charged in the indictment. We find no error in the records.
The judgments are therefore 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:
|
songer_habeas
|
A
|
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.
UNITED STATES v. BAKER et al.
No. 3414.
Circuit Court of Appeals, First Circuit.
Oct. 28, 1940.
George H. Zeutzius, Sp. Asst, to Atty. Gen., for appellant.
Ropes, Gray, Boyden & Perkins and Charles C. Cabot, all of Boston, Mass., for appellees.
Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge.
MAGRUDER, Circuit Judge.
This action at law was brought against the United States by the trustees of Massachusetts Utilities Associates, a voluntary trust or association, for the recovery back of documentary internal revenue stamp taxes imposed by the provisions of title 8, Section 800 and Schedule A-3 of the Revenue Act of 1926, 44 Stat. 99, 101-102, 26 U.S.C.A. Int.Rev.Acts, page 289. The district judge, who heard the case without a-jury upon stipulation of facts, gave judgment for the plaintiffs, considering himself bound by the decision of this court in White v. Consolidated Equities, 1 Cir., 78 F.2d 435. Appeal by the Government was argued before Bingham, Wilson and Sweeney, JJ., and on March 25, 1939, the court announced its decision (Sweeney, J., dissenting) that the judgment below must be reversed and judgment entered for the United States. A petition for rehearing was granted and reargument was had before the same court. No decision having been reached, due to the illness of Judge Wilson, a second reargument was ordered before the court as now constituted.
Shortly after its organization, in 1927, the Massachusetts Utilities Associates, hereinafter called the Investment Trust, issued 1,875,000 of its common shares to the Massachusetts Utilities Associates Common Voting Trust, hereinafter called the Voting Trust, in exchange for an equal number of Voting Trust certificates. Stamp taxes on this transaction were paid as required by law, and no question is now presented with respect thereto.
During the period from 1927 to 1930 the Investment Trust disposed of 1,779,972 of these Voting Trust certificates, by public sale. Upon making sales, the Investment Trust would instruct the Old Colony Trust Company (common depository and transfer agent of the Investment Trust and the Voting Trust) that the number of Voting Trust certificates sold were to be transferred out of the name of the Investment Trust and into the names of the purchasers, and that new certificates were to be delivered to such purchasers upon receipt of the purchase price. The Investment Trust paid the stamp tax of 2 cents per share upon these sales, the aggregate payment amounting to $35,599.44. It is this sum that is now in question.
The applicable portion of the Revenue Act of 1926 is as follows:
“Schedule A. — Stamp Taxes * * *
“3. Capital stock, sales or transfers: On all sales, or agreements to sell, or memoranda of sales or deliveries of, or transfers of legal title to shares or certificates of. stock or of profits or of interest in property or accumulations in any corporation, or to rights to subscribe for or to receive such shares or certificates, whether made upon or shown by the books of the corporation, or by any assignment in blank, or by any delivery, or by any paper or agreement or memorandum or other evidence of transfer or sale, whether entitling the holder in any manner to the benefit of such stock, interest, or rights, or not, on each $100 of face value or fraction thereof, 2 cents, and where such shares are without par or face value, the tax shall be 2 cents on the transfer or sale or agreement to sell on each share * *
We assume, without deciding, that the Voting Trust is not such an “association” as comes within the definition of “corporation” in the Revenue Act. White v. Hornblower, 1 Cir., 27 F.2d 777. Therefore we do not hold that the transfers in question were taxable as “sales * * * of legal title to * * * certificates of stock * * * in any corporation.”
It is conceded, however, that the Investment Trust is such an “association” as comes within the definition of “corporation”. The property of the Investment Trust is held in trust for the benefit of the holders of its transferable shares of stock. Such Investment Trust shares, in turn, are held by the trustees of the Voting Trust in trust for the holders of the Voting Trust certificates. Thus, the latter certificates represent a beneficial interest in the property of the Investment Trust, a “corporation” within the meaning of the Act. When the Investment Trust made sales of legal title to Voting Trust certificates, we think the transfers were taxable under Schedule A-3 as “sales * * * or transfers of legal title to * * * certificates * * * of interest in property or accumulations in any corporation * * *.” This is the substance of the transaction. In form the Investment Trust did not transfer to purchasers the legal title to the actual pieces of paper constituting the Voting Trust certificates theretofore held by the Investment Trust. But it did sell to the purchasers the “rights * * * to receive” a corresponding number of new Voting Trust certificates — which also comes within the language of Schedule A-3.
The construction we have adopted puts no strain upon the words “interest in property” and comports with the general purpose of the Act. As the Supreme Court said in Raybestos-Manhattan, Inc. v. United States, 296 U.S. 60, 62, 63, 56 S.Ct. 63, 64, 80 L.Ed. 44, 102 A.L.R. 111: “The stock transfer tax is a revenue measure exclusively. Its language discloses the general purpose to tax every transaction whereby the right to be or become a shareholder of a corporation or to receive any certificate of any interest in its property is surrendered by one and vested in another. * * * The reach of a taxing act whose purpose is as obvious as the present is not to be restricted by technical refinements.”
Voting Trust certificates, representing in a practical sense an interest in the profits and property of a corporation, have no peculiar attributes which would render it inappropriate to include them within the sweep of the language of the stock transfer tax. If the narrow interpretation contended for by the taxpayer should prevail, it would be a simple thing to avoid the stamp tax by pooling corporate shares in a voting trust and distributing voting trust certificates to the public. Such certificates, though the only marketable security controlling an interest in the corporation, would thereafter pass from hand to hand free of the transfer tax.
The Act is clear enough to reach the transactions now in question, without reference to the Regulations. .But if the language were considered doubtful, the Regulations clinch the matter. The original stock transfer tax was enacted in 1914 in less specific form (38 Stat. 759) and was amended somewhat in 1917, becoming Section 800 and Schedule A-4 (Title VIII) of the Revenue Act of October 3, 1917, 40 Stat. 322. Section 1107, Schedule A-4 of the Revenue Act of 1918, 40 Stat. 1135, was substantially the same. Since then (except for differences in rate) provisions practically identical with the 1918 Act have been re-enacted in every subsequent revenue act. The first Regulations issued by the Commissioner in pursuance of the 1918 Act were Regulations 40 (1919). Article 12(d) provided specifically that “the transfer of voting trust certificates is subject to tax.” The same provision has been contained in every subsequent Regulation. Reg. 40 (1922), art. 12(d); Reg. 71 (1926), art. 34(c); Reg. 71 (1932) art. 34(c). Here we have a reasonable interpretation of the statute, consistently adhered to by the Commissioner, and successive re-enactments of the statute by Congress without change in phraseology. In the face of this, even if we were at liberty to hold the Commissioner’s Regulation invalid, we should certainly have no inclination to do so.
Corporation of America V. McLaughlin, 9 Cir., 100 F.2d 72, 78, is squarely in point and reaches the same conclusion. In that case certificates of stock in the Bank of Italy evidenced also, by endorsement thereon, a corresponding interest in a voting trust which held the shares of stock of a companion corporation known as the Corporation of America. The stockholders of the Bank of Italy transferred 2,000,000 shares of its capital stock to a third corporation called Transamerica Corporation. It was held that these transfers involved a double stamp tax, one for the transfer of the shares in the Bank of Italy and another for the transfer of the interest in the voting trust holding the shares of Corporation of America. The court said: “A ‘legal title’ to a certificate of profit or of interest in accumulations in any corporation, arising from a beneficial interest in a trust, is transferable though the trust res consisting of the shares to which the corporate profits are distributed is not transferred.” The taxpayer relies strongly on Maloney v. Portland Associates, 9 Cir., 109 F.2d 124, a later decision of the same court. In that case the common stock of a corporation was held by a voting trust. When the corporation decided to issue further shares of common stock it went through the form of issuing simultaneously one voting trust certificate and one share of stock in the corporation; the certificate went to the subscriber and the stock went to the voting trust. The court reasoned in effect that there was but a single transaction; that the corporation merely issued one share of stock which, however, at the moment of transfer was split into a legal and an equitable fragment. Hence, the court concluded, only one transfer tax was collectible. This case, whether rightly or wrongly decided, was considered by the court to be distinguishable from its earlier opinion in Corporation of America v. McLaughlin, supra, which it cited. The facts of the Maloney case are different from those in the case at bar because in the latter there were undoubtedly two distinct transactions; first, a completed transfer of all the shares of the Investment Trust in exchange for all the certificates of the Voting Trust, and, second, a subsequent transfer of the Voting Trust certificates to the public.
' The taxpayer also relies upon the opinion of this court in White v. Consolidated Equities, 1 Cir., 78 F.2d 435. We shall not stop to make a minute examination of the facts of this case. Judge Wilson and Judge Bingham who participated in its decision considered that it was distinguishable, as is apparent from the earlier opinion in the case at bar filed by Judge Wilson on March 25, 1939, but subsequently withdrawn. If White v. Consolidated Equities may fairly be taken as contrary to the conclusion we have' reached, it must to that extent be considered overruled.
The judgment of the District Court is reversed and the case is remanded to that court with directions to enter judgment for the United States.
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_district
|
B
|
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".
James Earl BUIE, Appellant, v. Otis JONES, Sheriff; Frank Armstrong, Chief Jailer; Robert L. Hubbard, Jailer; Cumberland County of N.C., Appellees.
Nos. 82-6201, 82-6522.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 11, 1983.
Decided Sept. 15, 1983.
Kenneth A. Zick, II, Associate Professor of Law, Wake Forest University School of Law, Winston-Salem, N.C., Michele C. Bar-toli, Third Year Law Student (Alexis C. Pearce, Third Year Law Student on brief) for appellant.
Larry J. McGlothlin and Garris Neil Yar-borough, Fayetteville, N.C., for appellees.
Before RUSSELL and MURNAGHAN, Circuit Judges, and ROBERT R. MERHIGE, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
DONALD RUSSELL, Circuit Judge:
James E. Buie, a State prisoner, appeals the grant of summary judgment in favor of the defendants in his civil rights actions under Section 1983, 42 U.S.C. against the sheriff, the deputy sheriff of Cumberland County (North Carolina) and the chief jailer of the Cumberland County Jail.
The action was first filed by the plaintiff pro se and an order was issued by the district court permitting the plaintiff to proceed pro forma, pauperis. The actions were thereafter duly referred to the Magistrate. After a hearing the Magistrate dismissed the actions and granted summary judgment to the defendants on all the claims. This appeal by the plaintiff followed. We affirm.
Though the plaintiff asserted in his complaint some ten alleged constitutional violations, he has on this appeal confined his claims of error to three alleged deprivations. These are (1) a violation of his visitation rights with his minor children, (2) his subjection to a strip and body-cavity search in violation of his right to be free from unreasonable searches, and (3) an infringement of his right of free speech by reason of the opening of his mail by jail personnel, all while confined at the Cumberland County Jail. In pressing these claims, he sought both damages and injunctive and declaratory relief. The Magistrate dismissed his claim arising out of the strip search under the authority of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). We affirm such dismissal. The plaintiff’s claim that his mail was opened without his presence in violation of his First and Fourteenth Amendment rights involves a few isolated instances of plaintiff’s mail being opened out of his presence. These isolated instances, however, did appear to have been contrary to the policy of the Jail and to have been either accidental or the result of unauthorized subordinate conduct and were not of constitutional magnitude. A pretrial detainee’s visitation rights were not definitely established as a constitutional right during the time the plaintiff was incarcerated as a pretrial detainee at the Cumberland County Jail. For this reason damages are not recoverable. Accordingly declaratory and injunctive relief represented the only relief that would have been available to the plaintiff under his claim of a denial of visitation rights. Whether the plaintiff was entitled to such relief is the single issue for determination on this appeal.
To understand this issue of the plaintiff’s right to visitation privileges, it is necessary to sketch the facts in this case. The plaintiff Buie is a convicted prisoner serving not a short sentence but a sentence of life imprisonment plus ten years imposed following his conviction of first degree burglary and felonious larceny. For purposes of service of his sentences, he has been committed by the North Carolina Department of Corrections to a State prison facility, the Odom Prison Unit, where, except for a short period in early 1980, he has been continuously confined since his conviction on October 7, 1977. His confinement in the Cumberland County Jail, about which he complains, is limited to two brief periods. Between his arrest in April, 1977 and his conviction on October 7, 1977, Buie had been confined as a pretrial detainee in the Cumberland County Jail for a period of about forty-odd days. In late March, 1980, Buie as a convicted prisoner was returned from Odom Prison Unit to the Cumberland County Jail for two temporary periods, one of about twenty-eight days and the other for about eight days, to enable him to participate in other litigation apparently in Cumberland County. It was on the last day of his presence at the Cumberland County Jail that Buie filed this § 1983 action.
The plaintiff as a convicted prisoner under a life sentence plus a ten year additional sentence, is permanently assigned to a regular State prison installation under the control and supervision of the North Carolina Department of Corrections, the Odom Prison Unit. He has not been confined to the Cumberland County Jail since May, 1980 and, as a convicted prisoner under a life sentence plus, cannot reasonably be expected within the foreseeable future to be transferred back to the Cumberland County Jail which is primarily a place of confinement for pretrial detainees. Under those circumstances, any claim of Buie for injunctive or declaratory relief against the officials of the Cumberland County Jail would appear to be moot under the authorities of this Circuit. Inmates v. Owens, 561 F.2d 560 (4th Cir.1977), it would appear, is conclusive on this point.
In that case, the plaintiffs, like Buie, sought injunctive and declaratory relief with reference to conditions in the Portsmouth county jail while they were confined as pretrial detainees in such installation. The District Court dismissed “the suit because the complainants had not alleged that they, themselves, suffered from any of” the conditions of confinement complained of. An appeal followed. While that appeal was pending “all nine inmates who originally signed the complaint [were] released from the Portsmouth jail.” In the interim between that release and the hearing on appeal, one of the original plaintiffs was rearrested and presumably was placed in the Portsmouth jail. We nonetheless dismissed the appeal as moot. In so doing, we were not deterred by the fact that one of the original plaintiffs had been rearrested from holding that, in the absence of proof that the rearrested plaintiff was “again being subjected to the alleged constitutional deprivations specified in the complaint since his rearrest,” at the jail, the claim of “capable of repetition” was insufficient to provide a “safeharbor” against a finding of mootness. 501 F.2d at 562, n. 2. That ease is accordingly direct authority for the dismissal of this action for mootness.
There is, however, a more compelling reason for the dismissal of Buie’s claim to declaratory and injunctive relief than mootness. It is a reason grounded in constitutional principles as declared in City of Los Angeles v. Lyons, — U.S. —, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). In that case, the plaintiff sought damages and in-junctive and declaratory relief because the city officers, stopping the plaintiff for a traffic violation, had allegedly, without provocation or justification subjected him to an excessive “chokehold” which rendered him unconscious and inflicted damage to his larynx. It was the plaintiff’s contention that a “chokehold,” administered under such circumstances, was a violation of his constitutional rights. While the case was pending on appeal in the Supreme Court, the Board of Police Commissioners “imposed a six-month moratorium on the use of the carotid-artery chokehold except under circumstances where deadly force is authorized.” At that point, the defendant City filed a Memorandum Suggesting a Question of Mootness, and attached a motion to dismiss the writ of certiorari as improvidently granted. The Supreme Court denied the motion “but reserved the question of mootness for later consideration.” After hearing, the Court ruled that the case was “not moot, since the moratorium, by its terms is not permanent.” However, the Supreme Court proceeded to hold, on constitutional grounds, that “the federal courts are without jurisdiction to entertain Lyons’ claim for injunctive relief” on another ground.
In explication of this other ground, the Court in that case declared that “those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” It then defined “an actual case or controversy” to be one in which the plaintiff “must demonstrate a ‘personal stake in the outcome’ in order to ‘assure that concrete adverseness which sharpens the presentation of issues’ necessary for the proper resolution of constitutional questions.” It is not enough, the Court added, that the plaintiff “ ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct,” rather, “the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” Moreover, as it further explained, “ ‘[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding in-junctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” It then addressed the possible contention that the constitutional infringement was within the “capable of repetition yet evading review” exception. The establishment of such exception in the standing context, the Court said “depended on whether [the plaintiff] was likely to suffer future injury from the use of the chokeholds by police officers,” adding by way of further explanation:
“If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October, 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.”
It went on to state that, while Lyons alleged that it was “routine” for the Los Angeles Police to subject any person stopped for a traffic violation to the challenged chokehold, that fact “does nothing to establish a real and immediate threat that [the plaintiff] would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.” Finding in the case no “real and immediate threat” of repetition, the Supreme Court ordered dismissal of the claim for injunctive and declaratory relief.
It follows from Lyons that, in order to invoke the defense of “capable of repetition” to a claim of mootness, it is necessary that there be a “realistic threat,” a “real and immediate threat,” of repetition and the burden of establishing or demonstrating that fact rests with him who asserts that defense. If that be the true rule, it cannot reasonably be said in this case that there is any reasonable probability that within the foreseeable “immediate” future Buie, who is confined under a life plus sentence, is going again to be arrested in Cumberland County and confined as a pretrial detainee in the Cumberland County Jail. He is not like the plaintiffs in Owens who were quickly released or the plaintiff in Lyons, who similarly was released. There is no suggestion that Buie has any “immediate” prospects of release. In short, Buie is without any “ ‘personal stake in the outcome’ ” of this attack on the visitation rules at the Cumberland County Jail and there is no “realistic” basis for assuming that he will be harmed or benefited by a decision on such visitation rights. He manifestly lacks standing both under Lyons and under Valley Forge College v. American United, 454 U.S. 464, 473, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982) (in this case the Supreme Court said that for a plaintiff to have standing, the right he asserts must be one that “ ‘is likely to be redressed by a favorable decision’ ”).
Accordingly the plaintiff has no standing to assert a claim for injunctive and declaratory relief in connection with any denial of an alleged privilege of visitation rights as a pretrial detainee; in addition, such claim is moot.
For the foregoing reasons the judgment of the district court is
AFFIRMED.
. The Cumberland County Jail is under the custody of the County Sheriff and is not “a permanent housing facility for prisoners who have been convicted of crime” under the control of the North Carolina Department of Corrections, but is “a ‘hold-over’ facility in which prisoners are held for a relatively short period of time prior to trial and then, following trial and sentencing, are transported immediately to a more permanent facility where increased facilities are available.”
. The period of Buie’s confinement as a pretrial detainee at the Cumberland County Jail began on April 12, 1977, was interrupted by Buie’s transfer to the Dorothea Dix Hospital from April 22, resumed on May 12 and continued until June 13 when he was released on bond, and finally resumed on October 4, 1977, with the commencement of his trial and ended on October 7 with his conviction and transfer to Odom Prison Unit.
Question: 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_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. Richard ATKINS, Appellant in 76-2374. UNITED STATES of America, Appellee, v. Arthur Donald MORELLO, Jr., Appellant in 76-2375. UNITED STATES of America, Appellee, v. Samuel Rochelle MASON, Appellant in 76-2376.
No. 76-2374-76.
United States Court of Appeals, Third Circuit.
Argued May 2, 1977
Decided June 8, 1977.
Jonathan L. Goldstein, U. S. Atty., Frank C. Razzano, Asst. U. S. Atty., Newark, N. J., for appellee.
Jack Nowell Frost, Plainfield, N. J., for Richard Atkins.
Alfred C. DeCotiis, Newark, N. J., for Arthur Donald Morello, Jr.
Hubert Johnson, Martin & Johnson, East Orange, N. J., for Samuel Rochelle Mason.
Before GIBBONS and HUNTER, Circuit Judges, and LAYTON, District Judge.
Caleb R. Layton, III, United States District Judge for the District of Delaware, sitting by designation.
JAMES HUNTER, III, Circuit Judge:
Richard Atkins, Samuel Mason, and Donald Morello, Jr., were convicted of conspiracy and of robbing four New Jersey banks in violation of 18 U.S.C. § 2113. After jury trial in the United States District Court for the District of New Jersey, sentence was imposed. This appeal, alleging numerous trial errors, followed. Because we find reversible error in the exclusion of a hearsay third-party confession to one of the robberies, we order a new trial limited to Counts I, VI, VII, and VIII. In addition, we direct the district court to correct the sentences, in accordance with this opinion.
I.
The ten-count indictment charges Atkins, Mason and Morello with an overall conspiracy (Count I) to violate 18 U.S.C. § 2113 by robbing certain New Jersey banks. The remaining counts concern a robbery of the Trust Company of New Jersey in Jersey City, on December 24, 1974 (Counts II and III); a robbery of the Garden State National Bank in North Bergen, on February 21, 1975 (Counts IV and V); a robbery — which included a murder — of the First National Bank in Paterson, on April 10, 1975 (Counts VI, VII, and VIII); and a robbery of the Provident Savings Bank in Jersey City, on May 2, 1975 (Counts IX and X).
During the trial, a member of the group, one Mastria, was a chief Government witness. Another crucial witness was an undercover agent, Murrow, who wore a tape recorder to one meeting with Atkins where details of the various robberies were discussed. There was clearly sufficient evidence to support the jury’s verdict, which was guilty on all counts except that Atkins, not a participant in the Garden State National Bank robbery, was found not guilty on Counts IV and V.
We are concerned, though, about proffered testimony that the trial judge excluded. We will discuss that first, and then the sentences.
II.
During the robbery of the First National Bank, on April 10,1975, a bank guard, John White, was shot and killed by the robbers. Testimony was that while the robbery was in progress, the guard reached for his gun. The robber stationed in the doorway shot him with a sawed-off shotgun, and the other two shot him on their way out. In the taped conversation with Murrow, Atkins claimed it was he who shot White.
During trial, the attorney for Atkins produced a witness, one Gail Cotton, who was prepared to testify that on the evening of the robbery, she overheard one Kenny Jackson say that he and Larry had robbed a bank that day and had shot John White. The court excluded the proffered testimony as hearsay not within exceptions 803(24) or 804(b)(3) of the Federal Rules of Evidence.
A statement is admissible under Rule 804(b)(3) of the Federal Rules of Evidence if the defendant is unavailable as a witness and it is a
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissa-ble [sic] unless corroborating circumstances clearly indicate the trustworthiness of the statement.
During the offer of Cotton’s testimony, out of hearing of the jury, the court said the last sentence of that section was intended to prevent just that kind of testimony:
. Once again, all I can do is repeat. A minor, standing on the street corner in front of a bar, [in] the presence, apparently, of a group of other minors, proclaims that he is the one that shot and killed the bank guard. That’s hardly the kind of statement against interest contemplated by the rule. Indeed, there are those more adult who would find that those kind of statements made by minors in the presence of other minors sometimes are in the interest of minors to make.
Tr. at 3085-86.
Earlier, in discussing Rule 803(24), the court had said:
If under the circumstances in a criminal case defendants are going to be permitted to offer the kind of testimony that I have heard in this courtroom of an eighteen year old girl overhearing a conversation between a sixteen year old boy and somebody else in which he proclaims that he committed a crime, and then hear that the sixteen year old has disappeared when we have no way of knowing who he spoke to, and that this conversation took place outside of a bar in the middle of what appears to be a crowded street corner, I fear me [sic] that I don’t know where we will be going next. This has nothing of reliability about it. If anything, I can think of nothing more unreliable.
If this is going to be the hallmark of admissibility under the new Federal Rules, I can conceive of no other direction in all these trials we will see youths, infants, people who are easily suggestible, coming into court proclaiming that they have heard unknown persons who have since vanished confess to nondescript and nonidentifiable people that they have committed a crime.
Tr. at 3083.
We are concerned that the trial court may have been considering the credibility of the witness as a factor in its decision to exclude the evidence. Rule 804(b)(3) directs the court to the trustworthiness of the declarant, not of the witness. The record reveals substantial corroborating circumstances which indicate the trustworthiness of the declarant’s statement.
When Gail Cotton was called in for an offer of proof she testified, out of the presence of the jury, that on the evening of the First National Bank robbery, she was standing with a friend outside Williams Lounge, in Paterson, along with some ten to fifteen other people, and saw Jackson approach an unidentified male. She was standing about a car-length away, and overheard them talking. At the time she had not known there was a bank robbery that day. She heard Jackson say “Man, we just robbed this bank, Man, we killed this guard.” Tr. at 3055. The other asked what bank. Jackson answered and told him the guard they killed was “Mr. White.” Tr. at 3056. Cotton knew Mr. White, having gone to school with his children. Jackson then, according to Cotton, opened the back of his trunk, and she saw parts of a rifle or shotgun in it. Tr. at 3057. She heard Jackson tell the other to take the gun somewhere, to get rid of it. Tr. at 3058. Cotton then left the bar area with her friend. After parting with her friend she went to Mr. White’s house and called his son outside, and told him.” Tr. at 3059. The son then told one Frances Darling what had happened; the Darling family went to see Cotton, then they went to the Paterson police station. Cotton told the police. Tr. at 3062. Jackson was picked up and questioned, but denied having any knowledge of the robbery. That police report was apparently not admitted into evidence, but it was allegedly read in part: “Kenny Jackson was questioned about this matter and he steadfastly denied any knowledge of the attempted bank robbery and/or ever having a conversation with anyone about this matter. . Kenny Jackson was asked if he would take a lie detector test and he agreed. . . . ” Tr. at 3034.
Instead of focusing on these circumstances, the trial court asked repeatedly about the age, at the time, of Cotton (19), Jackson (19, Tr. 3036; 18 or 17, Tr. 3069; or 16, Tr. 3039, 3069), and the unidentified conversant (“in his 20’s,” Tr. 3056). At one point the judge exclaimed “This is bizarre. Suppose you had two eight year olds proclaiming how they had — oh, this is ridiculous.” Tr. at 3039. In ruling on the applicability of Rule 804(b)(3) the court stressed that the witness was a minor, the declarant was a minor, and the others present were minors. Tr. at 3085. The trial judge also asked Cotton when she last went to school (1974), what grade she had completed (11th), what her occupation was (none), and how she supported herself (Welfare). Tr. at 3060.
In our view the court erred in not considering the corroborating circumstances we have specified. It appears from the record that Gail Cotton’s testimony met the requirements of Rule 804(b)(3), assuming that Jackson is in fact unavailable. See Tr. at 3068-70, 3081. The exclusion of the third-party confession undermines the integrity of the trial as to the First National Bank robbery. Thus we must order a new trial on Count I as it relates to that robbery only, and on Counts VI, VII, and VIII.
III.
The second area in which we find error is in the imposition of sentences. On Count I, each defendant received five years, to run concurrently to the other sentences. For the Trust Company of New Jersey robbery, each defendant received twenty years for violating 18 U.S.C. § 2113(a) (Count II) and twenty-five for 18 U.S.C. § 2113(d) (Count III), the sentences to run concurrently with each other. For the Garden State National Bank robbery (Counts IV and V) and the Provident Savings Bank robbery (Counts IX and X), the sentences followed the same pattern and were to run consecutively by robbery. The sentence for the third robbery, of the First National Bank, had in addition a term of life imprisonment, for violation of 18 U.S.C. § 2113(e), which was to run consecutively to all the others. Thus, Atkins received life plus seventy-five years, Mason and Morello life plus one hundred years.
Two errors were made in sentencing. First, subsections (a) and (d) of 18 U.S.C. § 2113 cannot support separate sentences for the same offense, even if they are to run concurrently. See United States v. Corson, 449 F.2d 544, 551 n.15 (3d Cir. 1971). Thus, the trial court should vacate the multiple sentences for subsections (a) and (d) so that each robbery has one sentence. Cor-son, supra, requires that a general sentence be imposed on each bank robbery as if it had been the subject of a single separate indictment. Therefore, a general sentence, in conformity with Corson, will be imposed on Counts II and III as a group, IV and V as a group, and IX and X as a group.
Second, we hold today that subsection (e) of 18 U.S.C. § 2113 does not constitute a separate offense. Thus, the maximum sentence for the third robbery, the one for which we must order a new trial, is a single sentence under subsection (e). In this holding we join the Fifth, Eighth, and Ninth Circuits. See Sullivan v. United States, 485 F.2d 1352 (5th Cir. 1973); Jones v. United States, 396 F.2d 66 (8th Cir. 1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 695, 21 L.Ed.2d 697 (1969); United States v. Faleafine, 492 F.2d 18, 24-25 (9th Cir. 1974).
We have carefully considered the appellants’ other contentions and find them to be without merit.
IV.
For the foregoing reasons, we will order a new trial on Count I as it relates to the First National Bank robbery, and on Counts VI, VII, and VIII, so that the trial court can apply Fed.R.Evid. 804(b)(3) to Cotton’s proffered testimony, in accordance with our opinion. Last, we will vacate the sentences on the remaining counts and remand to the district court to impose sentences consistent with this opinion. An order to that effect will be entered.
. Subsections (a) and (d) provide
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
18 U.S.C. § 2113(a), (d).
. Subsection (e) provides
(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.
18 U.S.C. § 2113(e).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Bernard HIATT, Appellant, v. Emil A. SCHLECHT, E. B. Weber, Norman L. Buckner, Robert J. Caley, Carl M. Halvorson, Eric Hoffman, J. M. Steinmuller, Jr., and Ralph Pierson, as Trustees for the Oregon-Washington Carpenters-Employers Health and Welfare Trust Fund and as Trustees for the Oregon-Washington Carpenters-Employers Pension Trust Fund, Appellees.
No. 21825.
United States Court of Appeals Ninth Circuit.
Aug. 13, 1968.
Henry Camarot (argued), Sanders, Lively, Camarot & Wiswall, Springfield, Or., for appellant.
Paul T. Bailey (argued), Bailey, Swink & Haas, Portland, Or., for ap-pellees.
Before HAMLEY and ELY, Circuit Judges, and VON DER HEYDT, District Judge.
Hon. James A. von der Heydt, United States District Judge, Anchorage, Alaska, sitting by designation.
OPINION
VON DER HEYDT, District Judge:
This is an appeal from a judgment entered by the District Court for plaintiffs. Plaintiffs, appellees herein, are trustees of the Oregon-Washington Carpenters-Employers Pension, and Health and Welfare, Funds. They filed a complaint seeking specific performance of certain trust agreements which they alleged were incorporated by reference into a labor agreement signed by defendant. Defendant, appellant herein, is a small building contractor. He contends, inter alia, that the District Court did not have jurisdiction because he is neither “in commerce” nor engaged in an “industry affecting commerce” as required by Section 301 of the Labor Management Relations Act. We consider here only the issue of the District Court’s jurisdiction.
In support of his contention that the District Court lacked jurisdiction, appellant urges that he purchased all of his supplies and performed all of his contracts during the period in question in Oregon, and did no work for any company engaged in interstate commerce.
The record notably lacks adequate evidence on behalf of appellees in support of the District Court’s jurisdictional requirement. We find this evidence to be insufficient. We glean from the record in this regard only that the plumbing fixtures which appellant used in 1963, 1964, and 1965 were manufactured outside Oregon, that cost of these items totalled, for both labor and materials, some $5,600 to $8,000 for the years in question, and that appellant’s annual gross income averaged about $150,000.
The District Court determined that it had jurisdiction.
The terms “in commerce” or “industry affecting commerce” are broadly defined. Many authorities require a direct purchase of materials from another state, usually in comparatively substantial quantities, to find jurisdiction. The size of a particular business or the actual dollar value of commerce conducted alone is not determinative of the question.
The record establishes the following with regard to appellant’s activities: He did not
1) construct outside Oregon;
2) subcontract with contractors engaged in business outside Oregon;
3) purchase materials or supplies from persons outside Oregon;
4) contract with subcontractors outside Oregon;
5) do any business with any firm or company in any other states;
6) work on any federal, state, or political subdivision projects;
7) ever work on any defense projects;
8) perform work on a facility directly utilized for the purpose of interstate commerce.
This manifest lack of interstate contact, considered with the significant insufficiency of appellees’ affirmative evidence upon the jurisdictional question, distinguishes this case from those relied upon by appellees.
Clearly, the evidence is insufficient to establish that appellant engaged in interstate commerce or in industry affecting commerce. We find the District Court lacked jurisdiction. . Because of this conclusion, it is unnecessary to reach the remaining issues raised by this appeal.
Reversed and remanded with instructions to the District Court to vacate judgment and dismiss appellees’ complaint for want of jurisdiction.
. 29 U.S.C. § 185(a) (1964).
. There was actually no evidence as to this, but the District Court took judicial notice of the ‘fact.’ In the light of our conclusion, we need not discuss the propriety of its having done so.
. The record suggests that the electric fixtures which appellant used may also be included in this computation.
. See, e.g., Liner v. Jafco, 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964); NLRB v. Inglewood Park Cemetery Ass’n, 355 F.2d 448 (9th Cir.), cert, denied, First Congregational Church of Los Angeles v. NLRB, 384 U.S. 951, 86 S.Ct. 1572, 16 L.Ed.2d 548 (1966).
. Plumbers and Steamfitters Union, Local No. 598 v. Dillion, 255 F.2d 820 (9th Cir. 1958).
. NLRB v. Fainblatt, 306 U.S. 601, 307 U.S. 609, 59 S.Ct. 668, 83 L.Ed. 1014 (1939).
. NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L.Ed. 1284 (1951) (over $55,-000 worth of raw materials purchased outside state; products shipped out of state); Plumbers & Steamfitters Union, Local 598 v. Dillion, note 5 supra (subcontractor on Atomic Energy Commission project site; pipe unloaded from interstate railroad car); NLRB v. Reed, 206 F.2d 184 (9th Cir. 1953) (over $50,000 worth of business for public utilities and related establishments). See also, NLRB v. Inglewood Park Cemetery Ass’n, note 4 supra, where materials were purchased directly from out of state; Safeway Stores, Inc. v. FTC, 366 F.2d 795 (9th Cir. 1966), cert, denied, 386 U.S. 932, 87 S.Ct. 954, 17 L.Ed.2d 805 (1967), where direct interstate sales were involved, and Wirtz v. Intravaia, 375 F.2d 62 (9th Cir. 1967), where there was construction work done on highways and airport runways used by interstate transporters.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Thomas J. MUNDY, Jr., et al., Plaintiffs, Appellants, v. LUMBERMAN’S MUTUAL CASUALTY CO., Defendant, Appellee.
No. 85-1588.
United States Court of Appeals, First Circuit.
Argued Dec. 3, 1985.
Decided Feb. 13, 1986.
Wendy P. Solovay, Boston, with whom Marshall F. Newman and Newman & Newman, P.C., Boston, were on brief for appellants.
Brian R. Merrick with whom Burke, Wieners, Moran, Hurley & Merrick, Boston, was on brief for appellee.
Before COFFIN, BREYER and TORRUELLA, Circuit Judges.
BREYER, Circuit Judge.
Thomas Mundy, an assistant district attorney of Suffolk County, Massachusetts, and his wife, Madelon, have sued their insurer in an effort to recover the actual value of some silver that was stolen from their home. Since the policy in effect at the time of the burglary limited recovery for loss of silverware to $1000, the company refused to pay them anymore. The Mundys noted, however, that an earlier policy had not contained such a limit. They argued that the company did not give them adequate notice of the change when it sent them the policy renewal. And, this failure, in their view, entitles them to recovery under state law theories of contract, tort or unfair trade practice.
The district court granted the company’s motion for summary judgment, for the court believed that the record showed — beyond genuine dispute — that the company’s notice was adequate. The Mundys now appeal that decision.
The Mundys say in their brief that the “declarations page” of the policy (which they received) said nothing about the change, though “apparently ... there was buried in the fine print of the policy a limitation of $1,000.00 with respect to a loss of silverware.” The policy itself, however, tells a rather different story.
Mundy testified that Exhibit 4 was the very policy he received “in the form in which [he] ... received it.” On the jacket (apparently the inside cover) is a table of contents. The page also contains five short sentences in capital letters at its bottom. Four of those sentences read as follows:
THIS IS A NEW EASY TO READ POLICY. PLEASE READ YOUR POLICY. THERE ARE SOME COVERAGE CHANGES. IF THERE ARE ANY QUESTIONS, CALL YOUR AGENT OR THE COMPANY RIGHT AWAY.
There follows a declarations page containing the cost of premiums for coverages in effect. The declarations page is followed by two slips of paper (about half the ordinary page size) each with one or two sentences (about inflation protection and nonresidential theft). Then, there is a one-page summary of the changes made. Each change noted in the summary is in a separate paragraph, set off from the others by added space and black dots. The relevant paragraph says:
Theft of silverware and guns is now limited to $1,000. Should you wish more coverage for such items, contact your agent.
The remainder of the booklet consists of the twelve-page policy itself. On page 2, the policy says:
Special Limits of Liability ...
7. $1000 for loss by theft of silverware, silverplated ware, goldware, gold-plated ware and pewterware.
The whole policy is written in readable English in good-sized print with certain words, such as “Special Limits of Liability,” set off in boldface type.
We find nothing in the record that fairly can be read as disputing these facts. Mundy at one point said that the summary of changes was stapled “somewhere” in the policy; but the word “somewhere” is consistent with his concession that Exhibit 4. presents the pages in the proper order. As the district court noted, these facts bring this case well within the scope of Epstein v. Northwestern National Insurance Co., 267 Mass. 571, 166 N.E. 749 (1929), which binds an insured by the terms of a renewal insurance policy as long as he receives it.
The Mundys argue that Epstein is now out of date and a minority position. As Mundy recognized, these are not adequate reasons for disregarding Massachusetts case law. Nor do we believe the question should be certified to the Massachusetts Supreme Judicial Court, Mass.S.J.C. Rule 1:03, for, in any event, the Mundys cannot prevail. The facts here make this case very similar to GEICO v. United States, 400 F.2d 172, 175 (10th Cir.1968), where even “a casual reading of the mailed material” would have given the plaintiffs adequate notice. And, we find nothing in the cases they cite from other jurisdictions that would require a different result. Compare Noyes Supervision, Inc. v. Canadian Indemnity Co., 487 F.Supp. 433, 436 (D.Colo. 1980) (endorsement not added until after loss); Giles v. St. Paul Fire & Marine Ins. Co., 405 F.Supp. 719, 725-26 (N.D.Ala.1975) (coverage change not included in summary of changes, therefore insurer bound by original policy as modified according to summary); Pennsylvania Millers Mutual Ins. Co. v. Dunlap, 153 Ga.App. 116, 264 S.E.2d 483 (1980) (endorsement limiting liability for silverware not received); Industro Motive Corp. v. Morris Agency, Inc., 76 Mich.App. 390, 256 N.W.2d 607 (1977) (insurer estopped from relying on 20 percent coverage limitation in policy because of affirmative representations that insured was 50 percent covered); Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570, 574 (Minn.1979) (undisputed that no notice given); Bauman v. Royal Indemnity Co., 36 N.J. 12, 174 A.2d 585, 591-92 (1961) (insured not bound by terms of renewal policy unless notice that there are changes in coverage is given); Aetna Ins. Co. v. Lythgoe, 618 P.2d 1057 (Wyo. 1980) (no dispute that insured’s attention was not specifically directed to coverage change).
The judgment of the district court is
Affirmed. Double costs to Appellee.
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_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
Mary Anne SAUSE
v.
Timothy J. BAUER, et al.
No. 17-742.
Supreme Court of the United States
June 28, 2018.
PER CURIAM.
Petitioner Mary Ann Sause, proceeding pro se, filed this action under Rev. Stat. 1979, 42 U.S.C. § 1983, and named as defendants past and present members of the Louisburg, Kansas, police department, as well as the current mayor and a former mayor of the town. The centerpiece of her complaint was the allegation that two of the town's police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement. Among other things, she alleged that at one point she knelt and began to pray but one of the officers ordered her to stop. She claimed that a third officer refused to investigate her complaint that she had been assaulted by residents of her apartment complex and had threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers' conduct and that the present and former mayors were aware of unlawful conduct by the town's police officers.
Petitioner's complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. Petitioner then moved to amend her complaint, but the District Court denied that motion and granted the motion to dismiss.
On appeal, petitioner, now represented by counsel, argued only that her free exercise rights were violated by the two officers who entered her home. The Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity. 859 F.3d 1270 (2017). Chief Judge Tymkovich filed a concurring opinion. While agreeing with the majority regarding petitioner's First Amendment claim, he noted that petitioner's "allegations fit more neatly in the Fourth Amendment context." Id., at 1279. He also observed that if the allegations in the complaint are true, the conduct of the officers "should be condemned," and that if the allegations are untrue, petitioner had "done the officers a grave injustice." Ibid.
The petition filed in this Court contends that the Court of Appeals erred in holding that the officers who visited petitioner's home are entitled to qualified immunity. The petition argues that it was clearly established that law enforcement agents violate a person's right to the free exercise of religion if they interfere, without any legitimate law enforcement justification, when a person is at prayer. The petition further maintains that the absence of a prior case involving the unusual situation alleged to have occurred here does not justify qualified immunity.
There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the "exercise" of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer's order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.
That is the situation here. As the case comes before us, it is unclear whether the police officers were in petitioner's apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. Petitioner's complaint contains no express allegations on these matters. Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner's free exercise claim.
In considering the defendants' motion to dismiss, the District Court was required to interpret the pro se complaint liberally, and when the complaint is read that way, it may be understood to state Fourth Amendment claims that could not properly be dismissed for failure to state a claim. We appreciate that petitioner elected on appeal to raise only a First Amendment argument and not to pursue an independent Fourth Amendment claim, but under the circumstances, the First Amendment claim demanded consideration of the ground on which the officers were present in the apartment and the nature of any legitimate law enforcement interests that might have justified an order to stop praying at the specific time in question. Without considering these matters, neither the free exercise issue nor the officers' entitlement to qualified immunity can be resolved. Thus, petitioner's choice to abandon her Fourth Amendment claim on appeal did not obviate the need to address these matters.
For these reasons, we grant the petition for a writ of certiorari; we reverse the judgment of the Tenth Circuit; and we remand the case for further proceedings consistent with this opinion.
It is so ordered.
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_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Dudley WIDEMAN, Administrator of the Estate of Claude Wideman, Deceased, Plaintiff-Appellant, v. MISSISSIPPI VALLEY GAS COMPANY, Defendant-Appellee.
No. 73-3574.
United States Court of Appeals, Fifth Circuit.
Jan. 30, 1975.
William S. Lawson, John L. Long, Tu-pelo, Miss., for plaintiff-appellant.
John M. Kuykendall, Jr., Minor C. Summers, Jr., Jackson, Miss., Ralph L. Holland, Tupelo, Miss., for defendant-ap-pellee.
Before COLEMAN, CLARK and RO-NEY, Circuit Judges.
RONEY, Circuit Judge:
Claude Wideman was killed in an explosion and fire resulting when a small road grader he was operating on a private residential lot hit an underground gas line. The outcome of this appeal turns on a determination of the standard of care owed to Wideman by the defendant gas company under Mississippi law. The jury, instructed that the gas company owed a duty of ordinary care, apparently decided that the gas line easement was not adequately marked and the line itself was not a sufficient depth below the ground. Wideman’s estate was awarded the sum of $100,000. Notwithstanding this jury verdict, the trial court entered a judgment for defendant on the ground that the jury had been incorrectly instructed as to the standard of care. The court held that the gas company owed no higher duty under the circumstances than to refrain from wanton or willful injury to decedent, and that the evidence was not sufficient for jury consideration under such correct standard. We affirm.
Essentially, we decide two points: first, a gas company with gas lines buried within the boundaries of a legal easement owes to a person making an unforeseeable extraordinary use of the surface no duty higher than to refrain from willful and wanton injury, unless and until it has notice of that proposed use; and second, on the record before us, the trial court was correct in the determination that the evidence was such that reasonable men could not differ on the facts that the gas company had received no notice of the extraordinary use, and that it had not breached its duty to refrain from willful or wanton conduct.
In 1930 Mississippi Valley Gas Company’s predecessor-in-interest acquired a valid gas line right-of-way across some property in northern Mississippi which is presently owned by Tommy D. Beasley. The recorded easement conveyed a “right of way to lay, construct, maintain and operate a pipeline” across lands containing seventeen acres described in quarter section terms. The exact path of the easement was not described. The owner reserved the “use and enjoyment of said premises except for the purposes herein conveyed to purchaser.” The document further provided that the pipeline was to be laid below plow depth (agreed by the parties to this litigation to be below six inches), with the following paragraph:
It is understood and agreed that purchaser (the gas company) shall bury said pipe line below plow depth wherever it crosses any land that may be cleared and in cultivation, and shall also bury said pipe line below plow depth across any land that may be in future cleared and put in cultivation.
In compliance with the depth requirement, the gas line was originally laid about 36 inches below the surface. It has continued in use from its installation until the time of the occurrence of the accident involved in this case. During that period the character of the land changed from wilderness to residential, and a house was constructed thereon in 1946. The evidence was such that the jury could have inferred that the surface of the land had changed to the point that the pipe line may have been only five or six inches deep at the time of the accident. The area was grown over and had been undisturbed for some time. Mississippi Valley made periodic foot patrols along the gas line to determine potential problems from erosion, construction, and the like, but there were no signs marking the path of the line except where it crossed a public highway some distance from the point of the accident.
On April 17, 1971, Claude Wideman was operating a road grader on the Beasley property in response to Beasley’s request for county assistance in alleviating a drainage problem created by water running off the city-maintained road immediately in front of his property. While Beasley was aware of the general location of the pipe line on his property, neither he nor decedent contacted Mississippi Valley to ascertain the exact location of the line. Mississippi Valley was not otherwise made aware of the fact that decedent intended to operate the road grader over the gas line. After making a few passes with the grader, decedent struck the gas line with the grader blade and the line ruptured, causing an explosion and fire which resulted in decedent’s unfortunate death a short time later.
We agree with District Judge William C. Keady that under the circumstances of the above accident, the defendant was entitled to judgment as a matter of law. Absent willful or wanton misconduct, the defendant could not be charged with fault of inaction until it had notice of the “hazard about to be experienced.” Although there is little Mississippi law on the subject, the Supreme Court of Mississippi appears to recognize that in the operation of a gas line, some accidents and injuries are too remote and unforeseeable for a defendant to be held legally liable therefor. As said in a recent case involving a pipe line accident:
“The rule is firmly established in this state, as in nearly all the common law states, that in order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom, D’Antoni v. Albritton, 156 Miss. 758, 766, 126 So. 836; Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842; but that the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities. Illinois Cent. R. Co. v. Bloodworth, 166 Miss. 602, 617, 145 So. 333; ...”
Larco Drilling & Exploration Corp. v. Brown, 267 So.2d 308, 310 (Miss.1972), quoting Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942) (emphasis added).
In Larco Drilling, the Supreme Court held that a county employee operating a bulldozer which struck the defendant’s gas line thus causing the operator’s injuries was a mere licensee and reversed a verdict in his favor and rendered judgment for the owner of the gas line. The county employee was attempting to fight a forest fire at the time but his presence was unknown to the gas line owner.
Unless the likelihood of some accident or injury of the type which occurred in this case was reasonably foreseeable by Mississippi Valley, it was under no duty to take action to avoid such an accident. Mississippi Valley had duly recorded its easement on the county land records, thus giving full legal notice of the presence of the pipe line on the Beasley property. It could reasonably be expected that anyone planning use of the property would be aware of the pipe line’s existence, if not its location. It could not be foreseeable by defendant that one • knowing of the pipe line would excavate the property without inquiring of Mississippi Valley of the exact pipe line location.
There can be little doubt that had Beasley or decedent inquired about the location of the gas line or in any other way conveyed to Mississippi Valley any information from which it could have concluded that the easement was to be graded, Mississippi Valley would have been under a duty to take some action— for example, warning of the danger involved, marking the location of the line, or relocating it at a greater depth — to prevent an accident such as the one which did occur. See Young v. Herrington, 312 S.W.2d 685, 687 (Tex.Civ.App. 1958). But the record is clear that no one did anything to place Mississippi Valley on actual or constructive notice of the possibility of this particular road grader activity. Without such notice, a duty for defendant to take action could arise only if this type of accident and injury could have been reasonably anticipated. No duty would arise as to any “unusual, improbable, extraordinary and freakish accident” that, even though possible, a reasonable man would not have considered probable. Larco Drilling, supra, 267 So.2d at 310.
Other than Larco Drilling, there is little authority from the Mississippi courts from which to evaluate what they would consider as meeting this threshold test of foreseeability in a case of this type. The courts of Texas, which have handled a large number of oil and gas transmission line cases, have had greater opportunity to develop the scope of foreseeability in this unique area.
Texas views the issue of reasonable .foreseeability in pipe line cases as centering on whether the use being made of the surface of the right-of-way is one that is ordinary, or one that is extraordinary, considering the character and location of the land. The operator has a duty to maintain the pipe line so that it will be safe for those making an ordinary use of the land, but anyone making an extraordinary use of the surface has the initial burden of either avoiding the pipe line or notifying the operator, who must then take steps to prevent contact. Phillips Pipe Line Co. v. Razo, 420 S.W.2d 691 (Tex.1967); Pioneer Natural Gas Co. v. K & M Paving Co., 374 S.W.2d 214 (Tex.1963). The language used by the Texas Supreme Court is very similar to that used by the Supreme Court of Mississippi in Larco Drilling, suggesting the two courts substantively view the issue in identical terms. The initial question becomes, then, whether the explosion in the instant case was caused by an ordinary use of the surface.
We are not here confronted with a road grader performing routine maintenance along a public thoroughfare, compare Concho Construction Co. Inc. v. Oklahoma Natural Gas Co., 201 F.2d 673 (10th Cir. 1953), but with a scraper operating some distance from and not parallel to the road. Bee generally, Annot., 30 A.L.R.3d 685 (1970). Plaintiff asserts that the use of county graders to alleviate drainage problems on private property is not uncommon in northeast Mississippi, but this does not make the use of construction equipment “ordinary” in the sense that it should be anticipated by the defendant without special notice. Cf. Phillips Pipe Line, supra.
“Ordinary” connotes a use that is “usual,” “regular,” and “normal,” something of a continuing nature so that a person should be familiar with it. A basement may be dug when a house is built, but a house is not built on any particular lot with sufficient frequency to say that the digging of the basement is an “ordinary use” of that lot. Since Mississippi Valley’s liability must be defined by its conduct with respect to the Beasley property, the issue is what might be an ordinary use of the property-
What could ordinarily be expected in a semi-rural area might be the operation of automobiles on a dirt driveway over the pipe line, or someone planting a garden. We do not consider the excavation made of the surface here, however, as such that the defendant should be charged with protecting against it in the operation and maintenance of its pipe line. To- hold it accountable in this circumstance would impose too heavy a responsibility for an occurrence that was only remotely and slightly probable under Larco Drilling.
Additional support for this view is found in that line of cases involving the operation and maintenance of uninsulated electric transmission lines. In these cases the courts appear to focus on the location of the accident and the foreseeability, in that location, of the conduct of the injured party from which the injury arises. See generally Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973).
Affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_appel1_1_3
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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 appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
MONMOUTH MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hospital Professional and Allied Employees of New Jersey, Intervenor.
No. 78-1832.
United States Court of Appeals, Third Circuit.
Argued March 22, 1979.
Decided Aug. 20, 1979.
Francis X. Dee (argued), Edward F. Ryan, Laurence Reich, Carpenter, Bennett & Morrissey, Newark, N. J., for petitioner.
Vivian A. Miller (argued), Kenneth B. Hipp, John S. Irving, John E. Higgins, Jr., Robert E. Allen, Elliott Moore, Washington, D. C., for respondent.
Alfred G. Osterweil (argued), Osterweil, Wind & Loccke, Edgewater, N. J., for inter-venor.
Before GIBBONS and HUNTER, Circuit Judges, and MEANOR, District Judge.
Honorable H. Curtis Meanor, United States District Judge for the District of New Jersey, sitting by designation.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:
I.
This case is before the Court on a petition by Monmouth Medical Center (the Hospital) to review, and a cross-application of the National Labor Relations Board (the Board) to enforce, an order issued by the Board against the Hospital. The order directs the Hospital to bargain collectively with the Hospital Professionals and Allied Employees of New Jersey (the Union). It is predicated on the Board’s decision that the Hospital’s refusal to bargain with the Union constituted an unfair labor practice in violation of section 8(a)(1) and (5) of the National Labor Relations Act.
Whether the Hospital’s refusal to bargain was an unfair labor practice depends on whether the Union was properly certified by the Board as the collective bargaining representative of the Hospital’s employees. The Hospital alleged that the representation election which the Union won was flawed by improper pre-election conduct and that certification of the Union following such an election was therefore invalid. The Board rejected the Hospital’s objection at the initial representation proceeding and declined to reconsider it at the unfair labor practice hearing. We conclude that the Board’s certification decision was inconsistent with case law and with previous decisions of the Board itself and amounted to an abuse of discretion. Since the Union was not properly certified as the bargaining representative, the Hospital committed no unfair practice when it refused to bargain. The Hospital’s petition will be granted, the order will be denied enforcement, and the disputed election will be set aside.
II.
On June 16, 1977, the Board conducted a secret ballot election in a unit consisting of the Hospital’s full-time and regular part-time registered nurses and graduate nurses. Of approximately 320 eligible voters, 284 cast valid ballots. The Union won the election by a vote of 148 for the Union to 136 against the Union — an effective difference of six votes. The Hospital filed objections to the election, alleging inter alia, that the election should be set aside because the Union “misused and abused the National Labor Relations Board’s processes to secure a partisan advantage in that it represented to unit employees, directly and indirectly, that the... Board endorsed [the Union] in the election”. To support this objection, the Hospital submitted six pieces of literature which had been distributed by the Union during the pre-election campaign.
The first piece of literature, “Exhibit A”, is an official Board-published election pamphlet, entitled “Your Government Conducts an Election”, to which the message “Vote Yes June 16 MMC Auditorium” has been added by hand. At least ten of these altered documents were distributed to voters in May, 1977, by the co-chairperson of the Union’s local steering committee.
The second piece of literature, “Exhibit B”, was mailed to unit employees on or about June 9, 1977. It states, in part:
. On June 13th, there will be a hearing at the National Labor Relations Board regarding the Unfair Labor Practices charged against the Hospital by members of your Steering Committee. The NLRB conducts such hearings only after investigation and rendering merit to such charges. [Emphasis added.] The [Union] has not nor could we be, charged with violating any standard of conduct or representation set to preserve the rights of employees. This hearing proves the Hospital cannot make such a claim. If Mr. Pilla attempted to file such a charge he would realize that he does not stand a chance in a formal hearing as the daily mutilation of the facts would not stand' up as credible evidence at the Labor Board.
Prior to the distribution of Exhibit B, on March 22, 1977, the Union had mailed a letter, “Exhibit C”, which reads in pertinent part:
. If any misguided friend of the administration, probably unaware that they are putting themselves in criminal jeopardy, threaten to take any negative action against you whatsoever for joining or showing interest in a union, that person has violated a federal law. (Emphasis added)
******
WHAT CAN HAPPEN TO THOSE WHO COMMIT AN UNFAIR LABOR PRACTICE?
The law provides that those who commit such violations of the Labor Act can be fined up to $5,000.00 and possibly imprisoned up to one year, or both.
At about the same time that Exhibit B was mailed, the Union mailed another leaflet, “Exhibit D”, which states in part:
Something to think about: The attorneys and agent of the National Labor Relations Board, to whom the hospital and the employees are subject to regarding collective bargaining, ARE UNIONIZED themselves. These people, who are privy to more information than anyone else regarding unions have chosen to unionize years ago. (emphasis in original).
When the experts have chosen this particular method, can it really be the wrong one?
Vote “Yes”
June 16th.
In early and mid-May, the Union mailed two additional leaflets. The first leaflet, “Exhibit E” states in pertinent part:
It is easier for the administrations anti-union campaign, financed with tax deductible hospital funds, to start rumors and spread half-truths than it is for us to send out letters correcting the intentional misinformation many people are being given. WE have nothing to gain by lying to you. When something you hear from the anti-union people contradicts what union organizers have told you, there is any easy way to find out who is telling the truth. Just call the Officer of the Day at the National Labor Relations Board at 645 — 2100. WE have nothing to hide.
The second leaflet, “Exhibit F”, which was mailed within the same time period and context as Exhibit E, but to employees voting in an election unit not at issue here, states in pertinent part:
If you doubt in any way information given you by the administration or by a representative of the union, we urge you to call the National Labor Relations Board at 645-2100 to verify what you’ve been told.
The Regional Director of the NLRB conducted an administrative investigation into the Hospital’s objections. In his Report on Objections, he concluded that Exhibits A and B were not objectionable, but that Exhibits C, D, E, and F were. Accordingly, he recommended that the election be set aside and that a new election be directed. Both the Hospital and the Union filed exceptions to the Regional Director’s report. The Board delegated its authority to hear the exceptions to a three member panel. The panel, in a 2 — 1 decision, overruled the Hospital’s objections, effectively reversing the Regional Director, and certified the Union as the exclusive bargaining representative of the Hospital’s registered and graduate nurses.
The Hospital refused to bargain with the Union, and an unfair labor practice hearing was commenced. The proceeding was conducted by the same panel which had overruled the Hospital’s objections to certification. At the hearing the Hospital defended its refusal to bargain by arguing that the Board had improperly overruled the Hospital’s objections to the election and that, therefore, the Board’s certification of the Union was invalid and could not provide the basis for finding an unlawful refusal to bargain. The panel rejected this argument, again by a 2-1 vote, and granted summary judgment in favor of the NLRB.
Since the Board’s Decision and Order is premised upon its certification of the June 16,1977 election, we must consider the validity of the Board’s certification of the representation election. We are mindful that the Board has “wide discretion” in establishing the procedure and safeguards for conducting representation elections, NLRB v. A. J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). Nevertheless, the Board’s decision must be reasonably consistent with its previous decisions. In Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976) we observed:
In articulating the “basis for its order”, the Board is free to refer “to other decisions or its general policies laid down in its rules and its annual reports.” [NLRv. Metropolitan Life Ins. Co., 380 U.S. 438, 443 n.6, [85 S.Ct. 1061, 13 L.Ed.2d 951] (1965)]. However, where the Board has reached different conclusions in prior cases, it is essential that the “reasons for the decisions in and distinctions among these cases” be set forth to dispel any appearance of arbitrariness. [Id. at 442, [95 S.Ct. 1061].
Id. at 357. Accord, NLRB v. Saint Francis College, 562 F.2d 246, 252 (3d Cir. 1977); St. Vincent’s Hospital v. NLRB, 567 F.2d 588, 590 (3d Cir. 1977); NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979) (“In exercising the discretion entrusted it in representation matters, the Board must faithfully adhere to the policies and procedures previously announced in its rules and decisions”). In reviewing a Board decision, we may not “abdicate” our responsibility to assure “that the Board keeps within reasonable grounds”. Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).
III.
The gravamen of the Hospital’s complaint is that the literature mailed, distributed, and posted by the Union misrepresented the role of the Board in conducting representation elections and created the impression that the Board favored the Union in the June 16 election. The Hospital’s position is that in thus misleading unit employees the Union compromised the statutory neutrality of the Board.
The Board assumes a supervisory role in representation elections. “It is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible to determine the uninhibited desires of the employees.” General Shoe Corp., 77 NLRB 124, 127 (1948). An important aspect of conducting a “fair and free election” has been to prevent the misrepresentation of material facts. In Hollywood Ceramics Company, Inc., 140 NLRB 221, 224 (1962), the Board announced its general policy against misrepresentations which might reasonably be expected to have an impact on the election. Numerous types of misrepresentations can have the impact, under Hollywood Ceramics, to warrant the setting aside of an election. But an area of particular sensitivity, which has given rise to a body of specialized and rigorous rules, is misrepresentation which creates the impression that the Board favors unions and unionization. Misrepresentation of this sort strikes at the heart of the election process, for the Board’s perceived neutrality is essential to the guarantee of a “fair and free” choice by employees.
The Board actively guards its neutral status and will intervene to prevent the improper involvement of the Board and its processes in representation elections. The Board “will not countenance the use of its name in a manner which gives the impression that the Agency has granted a party to an election its imprimatur or support.” GAF Corp., 234 NLRB No. 182, slip op. at 4 (1978). “Especially does [the Board] believe that no participant in a Board election should be permitted to suggest either directly or indirectly to the voters that [the Board] endorses a particular choice.” Allied Electric Products, Inc., 109 NLRB 1270, 1272 (1954). If the successful party to an election has misused Board processes to its partisan advantage, the election will be set aside. Id.
The full Board’s most recent decision in the area of Board neutrality is GAF Corp., 234 NLRB No. 182 (1978), which was decided after the representation decision in this case but before the unfair labor practice hearing. In GAF the Board held that the union had interfered with the election when it mailed a leaflet which contained language similar to that on the Board’s election notice, even though the leaflet was entirely different from that used by the Board. “National Labor Relations Board an agency of the United States Government” appeared on the top right-hand corner of the leaflet. The top left-hand corner contained a rendering of the United Statés Capitol over which the words, “It’s the law” had been superimposed. The union had clearly identified itself as the author of the leaflet by placing its name, address and logogram on the bottom. The context of the leaflet revealed that it was election campaign propaganda. Yet, a majority of the Board held that the election should be set aside:
As composed, the leaflet at the very least creates an ambiguity in the mind of its reader as to the document’s originator. We have repeatedly held that the Board will not countenance the use of its name in a manner which gives the impression that the Agency has granted a party to an election its imprimatur or support. E. g., J. Ray McDermott & Co.,...; Rebmar, Inc....; Allied Electrical Products, Inc.... As we stated in Rebmar, our concern is not with the substance of the material added to a portion of a Board document, but with the possible impact such propaganda may have on the freedom of choice of the voter. The Board cannot lend its name and prestige to a use which has the tendency to mislead. (emphasis added)
Id., slip op. at 3 — 4.
GAF and the cases cited therein thus establish the test which is to be applied by the Board when deciding whether the Board’s neutrality has been compromised. We turn to a discussion of whether the Board abused its discretion in applying these principles to the facts of the instant case.
IV.
Exhibit A is a sample of an official Board document which has been altered by the addition of a hand-printed partisan message. The Board concluded that the partisan message was readily identifiable as emanating from the Union, and that, in any event, a subsequent mailing of identical unmarked documents cured whatever damage the altered document might have caused. This conclusion does not appear to be consistent with previous decisions of the Board. In United States Gypsum Company, 124 NLRB 1026 (1959) the Board set aside an election in which the sole objection was that the union had affixed a union button in the “yes” box of a reproduction of an official ballot. The ballots, which were mailed to employees, were clearly stamped “sample”, and were not in any other manner altered. In Silco, Inc., Atlas Division, 231 NLRB 110 (1977) the Board set aside an election where the employer distributed a hand-printed sample ballot with an arrow pointing to the “no” box. That the partisan message and the ballot itself were hand-printed did not “neutralize” or “justify” the document.
In Allied Electric Products, 109 NLRB 1270 (1954), the union distributed what purported to be a sample of the Board’s official ballot, but which had a partisan message appended. The Board concluded that:
The reproduction of a document that purports to be a copy of the Board’s official secret ballot, but which in fact is altered for campaign purposes, necessarily, at the very least, must tend to suggest that the material appearing thereon bears [the Board’s] approval. As there are many legitimate methods available to parties for disseminating campaign propaganda which clearly do not entail an apparent involvement of the Board or its processes, we believe it is unnecessary to permit unlimited freedom to partisans in election cases to reproduce official Board documents for campaign propaganda purposes. (emphasis added).
Id. at 1272. In Rebmar, Inc., 173 NLRB 1434 (1968), the Board applied the Allied Products rule to a Board document which was not a sample ballot. The union had distributed a handbill which in part consisted of a portion of the Board’s election notice, but with a campaign message superimposed thereon. The Board set aside the election, stating:
Our concern is not with the substance of the material added to the Board’s official notice of election, but with the possible impact such a partisan message added to an official Board document, or copy thereof, might have on the freedom of choice of the voter.
* * * * * *
To duplicate a part of the Board’s official notice and then to add to it a personal partisan message that may be interpreted by the employee as an endorsement by the Board of one of the parties to the election, and thus have an impact on the employees’ freedom of choice, is, we think, an undesirable use of Board documents designed for another purpose. That the Union’s message in this case may be arguably innocuous and that there may have been at most a narrow or technical violation of the Allied Electric Products rule, is clearly irrelevant. Whether deliberate or unintentional, such action has a tendency to mislead, and we are of the opinion that the Board should guard against having its prestige put to such possible abuse. 173 NLRB at 1434. (emphasis added; citation omitted).
In GAF, which did not involve a sample ballot, the Board found that mere ambiguity was enough to make a document objectionable, even though the document was clearly identified as emanating from the union, and contained only some language similar to that used by the Board in its election notices.
Exhibit A is an actual Board document and the union source of the appended partisan message is nowhere admitted. It would seem that, as in Rebmar and GAF, application of the Allied Electric rule is warranted.
The Board, in its brief, attempts to distinguish Silco and Ünited States Gypsum as “merely” being cases in which alteration was found objectionable. In reliance on A. Brandt & Co., Inc., 199 NLRB 459 (1972), the Board concludes that, in Exhibit A, the “comments could not reasonably be construed by the employees as part of the [Board’s publication] but were readily identifiable by them as partisan comments emanating from the [Union] in relation to the election campaign”. We are not necessarily persuaded that this conclusion is consistent with the cases discussed above or represents a reasonable application of the principles those cases represent. Silco itself said that alterations have been found permissible only in “a few cases”. 231 NLRB at 110. The Board’s conclusion is especially questionable in light of the fact that the election was close, and considering the emphasis in GAF on mere “ambiguity” and “tendency to mislead”. However, speaking now only to Exhibit A, we need not decide if the Board abused its discretion in approving this particular campaign material, as the remaining exhibits by themselves are sufficient to make out reversible error.
Exhibit B contains a Union reference to an unfair labor practice hearing and the Union’s declaration that the Board had “render[ed] merit” to the charges. We read it in light of Exhibit C, which was sent out prior to the mailing of B and which incorrectly states that criminal penalties attach to those who have been found guilty of unfair practices. The Board excused Exhibit B as being only “inartfully drafted” and not a “substantial” or “patent” mis-characterization of a Board proceeding. Further, to the extent that there was a misleading inference that the Board had already found merit in the unfair practice charges the Board concluded that the harm was mitigated by the references in the letter to “hearings” and “charges”. The Board found Exhibit C permissible because it did not implicate the Board’s documents or proceedings and could not “reasonably have had an impact on the election.”
The exhibits do implicate a Board proceeding — the unfair labor practice hearing. Exhibit B refers directly to such proceedings and Exhibit C misrepresents the penalties which attach to being found guilty in such proceedings. Misrepresentation of the import of being charged in an unfair labor practice hearing was condemned in Formco, Inc., 233 NLRB No. 5 (1977). There the Board held that the Union interfered with an election when it distributed a letter stating that the employer was guilty of unfair labor practices. The Board reasoned that since only the Board could find an employer “guilty” the Union’s statement drew the Board into the election. In ONA Corp., 235 NLRB No. 85 (1978), the Union distributed excerpted copies of a complaint and notice, and added the disclaimer that a hearing had been set and the employer had denied all of the allegations. The Board ruled that the disclaimer did not cure the violation of Board neutrality, since the excerpted document still “gave the appearance” that the Board had already concluded that the employer was guilty. Citing Mallory Capacitor Co., 161 NLRB (1510 (1966), the Board held that the practice constituted “a misuse of [the Board’s] processes in that such reproduction was reasonably calculated to mislead employees into believing that the Board had judged the Employer to have violated Federal law, whereas such was not the case.” ONA Corp., 235 NLRB No. 85, slip op. at 3 (1978).
The Board’s second justification, that the exhibits could not reasonably have had an impact on the outcome of the election, is based in part on an inappropriate test. It is the “tendency” to mislead and the creation of “ambiguity” which GAF and Allied Products identify as the critical issues to be weighed. Doubts on the question of whether the misconduct actually had an impact should have been resolved against certification. As the court observed in NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 461 (1st Cir. 1962), |t is enough for the election to be set aside because of misrepresentation if the employer shows that “it is sufficiently likely that it cannot be told whether [the employees] were or were not [misled].” To the extent that the Board was concluding that no reasonable person could find the references misleading, the Boárd was directly contradicting its Regional Director without either an apparent or explained reason. The Director had concluded that, “The investigation revealed that [the Union] made numerous references to the National Labor Relations Board and/or the Act not only in Exhibit C but also throughout many of its campaign leaflets including Exhibits B, D and E.. The unavoidable impact of such repeated references to the Board and the Act had to be the creation of the impression in the minds of the voters that [the Union] had a certain expertise regarding Board processes and the Act and knew what it was saying. Therefore, by misstating the law as discussed above, [the Union], whether unintentional or deliberate, misled the voters to believe that their Employer was possibly guilty of criminal conduct.” (Emphasis added)
The Board’s reliance on the reference to “hearings” are “charges” as mitigating the tendency to mislead is misplaced. In ONA, 235 NLRB No. 85 (1979), reference in the document to a “hearing” and to the employer’s denial of the allegations was insufficient to cure the misleading statements. It is not at all clear that mere reference to “hearings” and “charges” in the text of Exhibit B is sufficient to serve as an effective disclaimer, even were disclaimers to be allowed.
Exhibit D appears to strike at the heart of the Board’s neutrality by suggesting that the attorneys and agents of the Board favor unions. It goes so far as to say that the Board favors the “particular method” of unionization upon which the employees were voting. The Board held, however, that an organization could not be presumed to favor unions simply because its employees were represented by a union and that therefore, there could have been no effect on the Board’s neutrality. This completely misses the point. The question is not whether the unionization of its employees proves that the Board actually favors unions. Rather, the question is whether reference by the campaigning Union to unionization of the Board’s employees would create the impression in the minds of the voters that the Board favors unionization.
The Board also concluded that if anything, this exhibit was “campaign propaganda” that employees would recognize and evaluate. We see no reason, and the Board advances none, to conclude that the employees would recognize this particular literature as propaganda, or would look behind it and recognize that it misrepresented the Board’s role in conducting elections. This is especially so since the Board’s finding ignores the conclusion of the Regional Director that “[the Union] cloaked itself throughout the election campaign with the appearance of certain expertise as to the purposes and procedures of the National Labor Relations Act and the Board.” We do not see how the Board could hurdle from this finding, and the Director’s finding quoted at paragraph 21 supra, to the conclusion that the misrepresentations were readily identifiable as propaganda.
Exhibits E and F are letters which referred voters to the Board should they have any questions about the Union. The Regional Director found that these items a lone warranted the setting aside of the election. He concluded that the Union had impermis-sibly injected the Board into the campaign, and had suggested that the Board would respond to the employees’ questions in a manner favorable to the Union.
The conclusion that these letters constituted impermissible interference in the election appears to be compelled by GAF and by Formco, Inc. in which the Board held: “Our concern is with the protection of- our own processes, lest any voter be left with the impression that [the] Board is in favor of any party in an election. We are unwilling to condone any campaign statement which even implies such bias.” 233 NLRB No. 5, slip op. at 5-6 (emphasis added). In this case, the Board held that no document or proceeding was involved, and noted that referring employees’ questions to the Board was allowed. The Board went on to say that anyone calling the Officer of the Day would have been told that he doesn’t answer specific questions. Whether this is in fact the case is sheer speculation. In any event, the dissenting opinion from the Board’s decision in this case effectively questioned the reasonableness of the Board’s conclusion, observing that it was unlikely that employees would actually call the Board, so that the impermissible impression which had been created would remain. Moreover, the dissent noted that even if employees were to call and discover the Union’s misstatement, this would not “render innocuous or justify” the Union’s action. We agree. As the court noted in NLRB v. Trancoa Chemical Corp., 303 F.2d 456, 460 (1962), “We do not think the Union made a half-page statement that it expected would affect no one.”
Y.
For the foregoing reasons the Hospital’s petition for review will be granted and the Board’s cross-application for enforcement will be denied.^ The case will be remanded to the Board so that the disputed election may be set aside.
. The Board Decision and Order (Case No. 22-CA — 8222, reported at 236 NLRB No. 104), was issued pursuant to Section 10(c) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(c) (1976). Because the Board Decision and Order is based in part on findings made in a representation proceeding (Case No. 22-RC-7125, found at 234 NLRB No. 50), the record of that proceeding is also properly before us pursuant to § 9(d) of the Act, 29 U.S.C. § 159(d) (1976).
This Court has jurisdiction of the petitions for enforcement and review under Sections 10(e) and (f) of the Act, Id. §§ 160(e)-(f) (1976).
. Section 8(a)(1) and (5) of the Act provides that: “(a) It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title.” 29 U.S.C. § 158(a)(1) & (5) (1976).
. A certification decision is not a final order within the meaning of Sections 10(e) and (f) of the Act, and hence is not reviewable by this Court. AFL v. NLRB, 308 U.S. 401, 60 S.Ct. 300, 84 L.Ed. 347 (1940). Accordingly, the Hospital must “follow [the] circuitous route” of refusing to bargain with the Union in order to precipitate an unfair labor practice proceeding. Aircraft Radio Corporation v. NLRB, 519 F.2d 590, 591 n.2 (3d Cir. 1975). The unfair labor practice decision is final, so the petition for review is properly before us.
. A factor here is the closeness of the election. In such cases, closer scrutiny of objections may be required of the Board. We bear in mind the admonition, nowhere adverted to in the Board’s Decision, that where “an election is extremely close, even minor misconduct cannot be summarily excused on the ground that it could not have influenced the election.” Henderson Trumbull Supply Corp. v. NLRB, 501 F.2d 1224, 1230 (2d Cir. 1974). NLRB v. Skelly Oil Co., 473 F.2d 1079, 1085 (8th Cir. 1973); NLRB v. Gooch Packing Co., 457 F.2d 361, 362 (5th Cir. 1972). See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 594 (3d Cir. 1975). Cf. NLRB v. Savair Manufacturing Company, 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973).
. We note further that in Metropolitan Life Insurance Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965) the Supreme Court held that the substitution of appellate counsel’s “rationale or discretion” for that of the administrative agency would be “incompatible with the orderly function of the process of judicial review.'’ Id. at 444, 85 S.Ct. at 1064. Accordingly, “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” Id. Some of the Board’s argument on appeal has been arguably impermissible under this standard. We have felt no need, however, to draw distinctions as the argument has been in any event unpersuasive. *
. See Aircraft Radio Corp. v. NLRB, 519 F.2d 590, 593 (3rd Cir. 1975) (“... [I]t is clear that the Board is committed to an active supervisory role over the pre-election conduct of the contestants.”) In NLRB v. Savair Manufacturing Co., 414 U.S. 270, 94 S.Ct. 495, 38 L.Ed.2d 495 (1973), the Supreme Court recognized the Board’s responsibility for insuring “fair and free choice of bargaining representatives by employees”. It emphasized that:
The Board in its supervision of union elections may not sanction procedures that cast their weight for the choice of a union and against a nonunion shop or for a nonunion shop and against a union.
Id. at 280, 94 S.Ct. at 500, quoting NLRB v. Tower Company, 329 U.S. 324, 67 S.Ct. 324, 91 L.Ed. 322 (1946).
. The Board departed from Hollywood Ceramics in Shopping Kart Food Market, Inc., 228 NLRB 1311 (1977) when it announced that it would no longer set aside elections on the basis of misleading campaign statements. Id. at 1313. However, the Board has since returned to the stricter Hollywood Ceramics rule, in General Knit of California, Inc., 239 NLRB No. 101 (1978).
. Even under Shopping Kart, which reflects the Board’s most relaxed attitude toward misrepresentation generally, the Board promised that:
. Board intervention will continue to occur in instances where a party has engaged in such deceptive campaign practices as improperly involving the Board and its processes, or the use of forged document's which render the voters unable to recognize the propaganda for what it is. 228 NLRB at 1313 (emphasis added).
The Board’s concern with protecting its neutrality was emphasized in Formco, Inc., 233 NLRB No. 5 (1977). There, the Board held, “Shopping Kart did not change Board law with regard to improper use of the Board and its processes for election campaign purposes.” Id., slip op. at 3.
. GAF was decided by a 3-2 vote of the entire Board. The two dissenters in GAF constituted the majority in our case, it having been decided by a three-member panel. The opinion in the instant case relies on the same cases and the same analysis as did the dissent in GAF. In reference to that dissent, the GAF majority observed that the dissenters were “defin[ing] the words ‘Board document’ too narrowly and construpng] the principles of the cited cases too strictly.” GAF, slip op. at 4. Thus, it appears that the Board has already rejected the analysis upon which the case we are reviewing is based.
. The message was described by the Board as follows:
One side of the handbill was a reproduction of that portion of the election notice entitled, “Rights of Employees” complete with the Board’s seal and name. The only addition to this side of the handbill was a statement superimposed at the top to the effect that “The government protects your right to organize yourself in a union.” The reverse side of the handbill contains an explanation, couched in broad generalized language, of what a union is, how a union functions, and what a collective-bargaining contract contains. Nowhere does the handbill refer to or mention the [Union] by name. (173 NLRB at 1434).
. Even where the altered documents have not been official Board publications, the Board has relied on Rebmar to invalidate elections if the campaign literature appeared to compromise Board neutrality. In J. Ray McDermott & Co., Inc., 215 NLRB 570 (1974) (where the statement “A great day for the I.A.P.D. Keep the faith and vote ‘yes’ when you receive your ballot!!!” had been added at the bottom of. a Regional Director’s telegram) the Board concluded that “the employees could reasonably have believed that some or all of the partisan statements in the insert constituted an endorsement of the [Union] by the Regional Director.” (Id.)
. The facts of Allied Products are similar to ours. There, the union distributed a document which purported to be a sample copy of the Board’s official ballot, which had been altered to include a printed “X” in the yes box. At the bottom was printed, “Do not mark it any other way — mark ‘Yes’ box only.” 199 NLRB at 1271. The Board announced that it would “not permit the reproduction of any document purporting to be a copy of the Board’s official ballot, other than one completely unaltered in form and content,... and upon objection..., will set aside the results of any election in which the successful party has violated the rule.” Id. at 1272 (emphasis added).
. The Regional Director, although finding that Exhibits C, D, E and F were objectionable, excused Exhibits A and B. He too relied on Brandt. However, Brandt was explicitly distinguished from Rebmar when it was decided. We think that especially after GAF, which was decided after the Regional Director made his findings, and which rejected a dissent grounded partly on Brandt, Rebmar is the more appropriate rule. Further, we recall that in a close election, “even minor misconduct cannot be summarily excused
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Leonardo Q. HERNANDEZ, Petitioner-Appellant, v. Gary RAYL; Attorney General for the State of Kansas, Respondents-Appellees.
No. 90-3378.
United States Court of Appeals, Tenth Circuit.
Sept. 16, 1991.
Leonardo Q. Hernandez, pro se.
JaLynn Copp, Asst. Atty. Gen., Topeka, Kan., for respondents-appellees.
Before SEYMOUR and EBEL, Circuit Judges, and BABCOCK, District Judge.
Honorable Lewis T. Babcock, District Judge, United States District Court for the District of Colorado, sitting by designation.
EBEL, Circuit Judge.
Petitioner, Leonardo Q. Hernandez, appeals from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Hernandez has also moved to proceed in forma pauperis on appeal and for a certificate of probable cause.
In 1978, Hernandez was convicted of first degree murder and sentenced to life imprisonment. That judgment was affirmed on direct appeal. See State v. Hernandez, 227 Kan. 322, 607 P.2d 452 (1980). Hernandez first raised the issue addressed here in a post-conviction motion for relief. Relief was denied on the grounds of procedural default and on the merits. Because the state court denied Hernandez’s motion on the alternative ground that Hernandez’s failure to raise his post-conviction relief issue on direct appeal could not be excused as an exceptional circumstance thus permitting him to raise the issue for the first time in a post-conviction relief proceeding, the issue of procedural default may be available to respondents as a defense. Respondents did not raise this defense either below or on appeal. “Therefore, we will deem the defense waived and will proceed to consider the petition on the merits.” Bailey v. Cowley, 914 F.2d 1438, 1439 (10th Cir.1990).
In his petition in federal district court, Hernandez alleged that the trial court gave the jury an unconstitutional instruction which shifted the burden of proving the element of intent to the defense. The district court agreed, but found the error harmless. Upon review, while we agree the instruction, as given, was unconstitutional, we do not find the error harmless and we reverse.
The instruction Hernandez challenged read:
There is a presumption that a person intends all the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by evidence that the contrary is true.
Rec. I, Doc. 57.
In Myrick v. Maschner, 799 F.2d 642 (10th Cir.1986), we held that this instruction “unconstitutionally shifted the burden of proving intent to the accused, resulting in a denial of due process.” Id. at 645 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). Therefore, we agree with the district court that the trial court erred in giving this instruction.
Having found error in the tendering of the ... instruction, we must determine whether the error was harmless under the circumstances of this case. The standard by which we undertake this last step in our review is very strict. Because we deal with an error of constitutional dimensions, we may only allow the conviction to stand if we find beyond a reasonable doubt that the error was harmless. “If the ‘record accommodates a construction of events that supports a guilty verdict, but it does not compel such a construction,’ then reversal is necessary.” Thus at this stage of the analysis we must determine de novo whether the evidence before the jury that the defendant [intended to commit murder] was so compelling the jury would necessarily find [defendant] guilty beyond a reasonable doubt, even without the [erroneous] instruction.
United States v. de Francisco-Lopez, 939 F.2d 1405, 1412 (10th Cir.1991) (citations omitted) (emphasis added).
The district court held the error harmless because (1) Hernandez asserted a defense of self-defense “thus minimizing the importance of the intent instruction,” District Court Memorandum and Order at 2-3 (citing to Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977-78, 74 L.Ed.2d 823 (1983)); (2) the evidence against Hernandez was significant; and (3) the jury was properly instructed that the burden was upon the state to prove guilt, not upon Hernandez to prove his innocence and, therefore, “the improper instruction did not have meaningful effect on the deliberations of the jury.” District Court Memorandum and Order at 2-3. We examine these holdings seriatim.
A defendant’s assertion of self-defense does not necessarily admit intent to commit murder. In Johnson, the Court held that in presenting such a defense, “a defendant may in some cases admit that the act” was intentional. 460 U.S. at 87, 103 S.Ct. at 977-78 (emphasis added). We find no such admission here. Indeed, the defense argued Hernandez did not intend to kill the victim.
The district court also held that significant evidence of intent was presented at trial. In examining this holding, we must “make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.” Yates v. Evatt, — U.S. -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991). We first look at what evidence presented to the jury tended to prove or disprove the presumption of intent. Id. Next, we weigh the probative force of that evidence against the probative force of the presumption standing alone. Id.
The evidence showed Hernandez shot and killed a fellow patron of a club in Wichita, Kansas. The two had had prior altercations including one two years previously when Hernandez had been beaten severely enough to require medical attention. The two men argued at the club the night of the murder.
Less than an hour after the argument, Hernandez went to the table where the victim was sitting and fired four shots at him. Two shots to the victim’s head and chest were fatal, the other two, one of which struck the victim in the arm and one of which grazed the victim’s arm, were not. Hernandez was restrained by another patron, Perez. The evidence was unclear whether Hernandez was restrained after only two shots had been fired or after all four shots had been fired. The bartender/eo-owner testified he thought only one shot had been fired prior to the one which hit him in the ankle, apparently after grazing the victim’s arm.
Testimony was presented that after the shooting Hernandez stated: “I did it. I shot him.” Tr. at 397. He also stated two or three times “I been waiting for a long time to do this.” Id. at 465. Hernandez responded to questions from another patron as to why he had shot the victim by saying: “Because he broke my teeth.” Id. at 332.
The defense attempted to discredit this testimony by eliciting the information that one witness was currently on probation following her conviction for forgery. The defense also pointed out in closing argument that the victim’s wife and Mr. Perez did not corroborate any of the statements attributed to Hernandez after the shooting.
The defense presented testimony from an investigating detective that the two nonlethal shots appeared to have been aimed shots because they were close together. This testimony supported the defense’s theory that “the two nonlethal shots were the first shots fired; further, that the two lethal shots were fired while Perez was struggling with defendant, and that the fatal shots were fired when defendant did not have complete control of the gun.” Hernandez, 607 P.2d at 457. Therefore, the defense concluded, Hernandez did not intend to kill the victim.
Another defense witness who overheard the altercation between Hernandez and the victim in the bar that night, testified that the victim had been “bothering” Hernandez. The victim hit Hernandez twice in the face with his hand and kicked him once in the stomach. He also testified that the victim told Hernandez to “go out right now. If you no go now, I’ll wait for you outside and I’ll kill you.” Tr. at 655. The defense thus contended that Hernandez acted in self-defense because he was afraid the victim would again beat him or kill him.
After weighing the probative force of this evidence against the probative force of the presumption standing alone, we cannot say the jury “actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” Yates, 111 S.Ct. at 1893. If the defense’s theory of the events is correct, Hernandez may have intended only to wound the victim. Obviously, he may have intended murder. The evidence is not so strong, however, that we can say Hernandez’s intent to kill was established beyond a reasonable doubt independently of the unconstitutional instruction.
Finally, the district court held that the jury instructions, as a whole, cured any error because the jury was instructed that the state bore the burden of proving guilt. In reviewing this factor, we look at the instructions and apply “that customary presumption that jurors follow instructions.” Id. The jury was properly instructed regarding the state’s burden of guilt. The government, however, appears to have attempted to meet its burden, at least in part, by means of the unconstitutional instruction. Further, “[bjecause a mandatory re-buttable presumption no doubt eases the jury’s task, ‘ “there is no reason to believe the jury would have deliberately undertaken the more difficult task” of evaluating the evidence of intent.’ ” Wiley, 767 F.2d at 683 (quoting Johnson, 460 U.S. at 85, 103 S.Ct. at 976 (quoting Sandstrom, 442 U.S. at 526 n. 13, 99 S.Ct. at 2460 n. 13)). Although some evidence was presented rebutting the presumption, we cannot confidently say the jury’s verdict did not rest on the presumption as well as the evidence. Yates 111 S.Ct. at 1195. Therefore, we cannot say the jury instructions as a whole cured the problem.
The record, while it may support the jury’s guilty verdict, does not compel such a result absent consideration of the unconstitutional jury instruction. “The burden-shifting jury instruction[ ] found to have been erroneous in this case may not be excused as harmless error.” Id., at 1197.
Hernandez’s motion to proceed in forma pauperis on appeal and for a certificate of probable cause is GRANTED. The judgment of the United States District Court for the District of Kansas is REVERSED, and the case is REMANDED with directions to grant the writ if the state court does not retry Hernandez within a reasonable period of time.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
. Whether Sandstrom applies retroactively is not an issue here because Sandstrom was decided before the Kansas Supreme Court decided Hernandez’s direct appeal. See Wiley v. Rayl, 767 F.2d 679, 681 n. 1 (10th Cir.1985).
Question: 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_crossapp
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
Frances P. PONS, Appellant, v. LORILLARD, a Division of Loew’s Theatres, Inc., Appellee.
No. 76-1369.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 9, 1976.
Decided Feb. 2, 1977.
Norman B. Smith, Greensboro, N. C. (Smith, Patterson, Follin, Curtis & James, Greensboro, N. C., on brief), for appellant.
Thornton H. Brooks, Greensboro, N. C. (M. Daniel McGinn, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, N. C., on brief), for appellee.
Before BRYAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
ALBERT V. BRYAN, Senior Circuit Judge.
Alleging violation of her rights under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1970), appellant Frances P. Pons sued her employer, Lorillard, a Division of Loew’s Theatres, Inc., for injunctive reinstatement, lost wages, liquidated and punitive damages, costs and attorney’s fees. Lorillard’s motion to strike Pons’ demand for a jury trial on the issue of lost wages was sustained by the District Court and an interlocutory appeal of the order was allowed. 28 U.S.C. § 1292(b); FRAP 5.
Our task is to determine whether the Seventh Amendment provision for trial by jury “[i]n suits at common law, where the value in controversy shall exceed twenty dollars” applies to a claim under the Age Act for lost wages. Analysis of the problem begins with the language of the Congress. In relevant part, sections 7(b) and 7(c) of the Act, 29 U.S.C. § 626(b), (c) state:
“(b) ... In any action brought to enforce this [Act] the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this [Act], including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.
“(c) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter: . . (Emphasis added).
Our holding is that the inclusion of the phrase “legal . . . relief” empowers a Federal court to grant complainants the Constitutional right to a jury.
I.
At the outset, we are urged to hold that Age Act complaints should follow the pattern of denial thus far adopted in enforcing the provisions against employment discrimination contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. We decline.
Design for decision on this issue is to be found in Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), declaring the availability of a jury in a civil action under Title VIII, section 812(c) of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601, 3612(c), relating to fair housing. This section, as relevant, defines the powers of the court:.
“(c) The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: . . . ”
In Curtis the Court contrasts Title VII— fair employment — and Title VIII — -fair housing — enforcement clauses, concluding that the decisions rejecting a jury trial in Title VII are not construing remedial provisions like those in VIII. 415 U.S. at 196, 94 S.Ct. 1005. To repeat, the Court quite cautiously disavows any interpretation of VII, saying only that its language is not the same as that of VIII. Its distinguishment of the phrasing warrants a lengthy quotation:
“In Title VII cases the courts of appeals have characterized backpay as an integral part of an equitable remedy, a form of restitution. But the statutory language on which this characterization is based—
‘[T]he court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . , or any other equitable relief as the court deems appropriate,’
contrasts sharply with § 812’s simple authorization of an action for actual and punitive damages. In Title VII cases, also, the courts have relied on the fact that the decision whether to award back-pay is committed to the discretion of the trial judge. There is no comparable discretion here: if a plaintiff proves unlawful discrimination and actual damages, he is entitled to judgment for that amount.” (Citation omitted.)
Id. at 197, 94 S.Ct. at 1010.
Equivalent differentiation is apparent between the Title VII remedies and those of the Age Act. Comparing the two as they have just now been set forth, it is seen at once that the Age Act includes the terminology of a law action, traditionally calling for a jury verdict, rather than only a suit in equity to be decided and decreed by a chancellor. Thus it comprises the power to grant legal relief, that is relief at law— obviously a suit “at common law” embodied in the Seventh Amendment.
II.
The Age Act by its very terms excludes the non-jury concept and commands the impanelment of a jury, if requested, in claims for lost wages. Forthright to prove this view is the incorporation of related provisions of the Fair Labor Standards Act into the enforcement section of the Age Act, 29 U.S.C. § 626(b), as follows:
“The provisions of this [Act] shall be enforced in accordance with the powers, remedies, and procedures provided in sections . . . 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) [supra] of this section. . Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title:
The Fair Labor Standards Act provision, 29 U.S.C. § 216 (except subsection (a)), supra, stipulates:
“(b) Any employer who violates the provisions of section 206 [minimum wages] or section 207 [maximum hours] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages.”
Thus the Age Act clearly equates lost wages as “unpaid minimum wages or unpaid overtime compensation” under the FLSA. It is settled that section 216(b) claims are legal in nature and uniformly accorded a jury trial. McClanahan v. Mathews, 440 F.2d 320 (6 Cir. 1971); Chilton v. National Cash Register Co., 370 F.Supp. at 664 and cases cited.
The ultimate analysis to determine whether a suit is one “at common law” within the Amendment seems to be the three-pronged classical test: (1) Is the issue legal rather than equitable under the custom of the courts of law; (2) Is the remedy legal; and (3) Is the issue triable to a jury given the jurors’ practical abilities and limitations? Ross v. Bernhard, 396 U.S. 531, 538 fn. 10, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); see 5 Moore’s Federal Practice § 38.16[4] pp. 162.6-8. Where issues of law and equity are intertwined in one suit, those meeting the three-pronged test merit a trial by jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962).
It has been helpfully observed that claims of employment discrimination, coupled with prayers for lost wages, are analogous to the common law action for breach of contract by wrongful discharge or an action in tort, With the Age Act creating the legal duty. Cleverly v. Western Electric Co., 69 F.R.D. at 350-51. To interpret this cause of action as one “incidental” or “integral” to the equitable issue of reinstatement would be to violate the rule of Dairy Queen, Inc. v. Wood, 369 U.S. at 470, 82 S.Ct. 894, as just mentioned.
As to the second and third phases of the Ross test, we believe that a monetary award for back wages is a traditional legal remedy and that the computation of such an award would not be beyond the practical capabilities of a jury. Cleverly v. Western Electric Co., 69 F.R.D. at 351. Consequently, all of the prerequisites to a trial by jury under the Age Act are satisfied.
Hence we hold the jury demand should not have been denied. That order is now vacated and the claim for back pay is remanded for trial by a jury.
Vacated and remanded.
. Plaintiff at the age of 48 years was discharged on January 31, 1975; she alleges it was pursuant to a policy of employing younger persons. Lorillard is a foreign corporation doing business in North Carolina.
. On October 18, 1976 Pons moved this court to allow amendment of her complaint to include a prayer for punitive damages.
. This appeal involves only the right to a jury trial on the claim of lost wages. The District Judge’s opinion notes that the plaintiff “conceded that the liquidated damages issue would not be triable to a jury”. Nor are costs, attorney’s fees nor, as explained infra, punitive damages before the court. Of course no injunctive relief is now considered.
. The question has been discussed and resolved in favor of trial by a jury: Chilton v. National Cash Register Co., 370 F.Supp. 660 (S.D.Ohio 1974); Cleverly v. Western Electric Co., 69 F.R.D. 348 (W.D.Mo.1975), and Murphy v. American Motors Sales Corp., 410 F.Supp. 1403 (N.D.Ga.1976). A list of cases implicitly settling the point is to be found in Murphy v. American Motors Sales Corp., supra, at 1402.
. See Curtis v. Loether, 415 U.S. at 196-97 n. 13, 94 S.Ct. 1005, citing Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5 Cir. 1969); Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4 Cir.), cert. dismissed under Rule 60, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); cf. McFerren v. County Board of Education, 455 F.2d 199, 202-04 (6 Cir. 1972); Harkiess v. Sweeny Independent School District, 427 F.2d 319, 324 (5 Cir. 1970), cert. denied, 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971); Smith v. Hampton Training School, 360 F.2d 577, 581 n. 8 (4 Cir. 1966) (en banc); see generally Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1265-66 (1971). To this list of the Court may be added Cox v. Babcock & Wilcox Co., 471 F.2d 13 (4 Cir. 1972).
. At once, we recognize that the Seventh Amendment extends its guarantee not only to common law forms of action recognized at its date of enactment — 1791 — but also to actions under modern statutes that create legal rights and remedies. Curtis v. Loether, 415 U.S. at 194, 94 S.Ct. 1005; see F.R.Civ.P. 38(a).
. In this court plaintiff for the first time moved to amend her complaint to include a claim for punitive damages. This motion must be remanded for presentation to the trial court. F.R.Civ.P. 15(a). Likewise items of costs and attorney’s fees are matters for decision by that court.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
|
songer_search
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
UNITED STATES of America, Appellee, v. Roosevelt LUNSFORD and William James Thomas, Appellants.
No. 8715.
United States Court of Appeals Fourth Circuit.
Argued March 25, 1963.
Decided March 29, 1963.
L. S. Parsons, Jr., Norfolk, Va. (Parsons, Stant & Parsons, Norfolk, Va., on brief), for appellant William James Thomas.
Roger T. Williams, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and PREYER, District Judge.
PER CURIAM.
Both Lunsford and Thomas were convicted and they appealed, but Lunsford has not pressed his appeal and the hearing was on Thomas’ appeal only.
As to Thomas, the only question at the trial was one of fact as to the identity of this defendant as the person who sold the government agent a quantity of whisky. The agent’s testimony was sufficient to send the issue to the jury, and the jury resolved it against the defendant, Thomas.
The appellant argues that the agent might have been mistaken, but as to this it was the province of the jury, not ours, to judge, and its finding is not reviewable on appeal.
Affirmed.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_appfed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD v. INTER-CITY ADVERTISING CO. OF CHARLOTTE, N. C., Inc. et al.
No. 6226.
United States Court of Appeals Fourth Circuit.
Argued June 11, 1951.
Decided July 16, 1951.
Frederick U. Reel, Atty., National Labor Relations Board, Washington, D. C. (George J. Bott, General Counsel; David P. Findling, Associate General Counsel; A. Norman Somers, Assistant General Counsel, and Melvin Pollack, Attorney, National Labor Relations Board, Washington, D. C., on brief), for petitioner.
Whiteford S. Blakeney, Charlotte, N. C. (Pierce & Blakeney, Charlotte, N. C., on brief), for respondents.
Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges.
PER CURIAM.
This is a petition to enforce an order of the National Labor Relations Board finding that respondent had restrained and coerced its employees with respect to union activities, had discriminatorily discharged certain of them and had refused to bargain with the union which they had chosen as bargaining representative. It requires respondent to recognize the union as bargaining agent of the employees, to cease and desist from anti-union activities and to restore with back pay employees discrimin-atorily discharged or shifted to less desirable positions. The order is attacked on the ground that it is not supported by substantial evidence.
The evidence is set forth and analyzed in the Board’s order and the Intermediate Report of the Trial Examiner and need not be repeated here. It fully sustains the findings of the Board as to the anti-union activities of respondent, the discriminatory discharge of nonsupervisory employees and the refusal to bargain. It is argued that the refusal to bargain was justified because respondent did not know that the bargaining units were proper or that the union had achieved a majority status; but the propriety of the bargaining units was a matter for the Board and the union unquestionably had a majority status in each of the units involved. Respondent, moreover, made no attempt to ascertain whether or not the union represented a majority of employees in an appropriate unit but declined to bargain when request was made by the union and engaged in unfair labor practices in an attempt to get rid of it as a bargaining representative. In dealing with this matter the Board said:
“In justification of its conduct, the Respondent contends, in part, that it reasonably believed it could await certification of the Union before bargaining. We find no merit in this contention. As we have previously held, an employer may insist on a Board election as proof of a union’s majority if it is motivated by a bona fide doubt of that majority. In this case, however, the Respondent, after learning that the Union had filed a representation petition, engaged in unfair labor practices, including the discriminatory discharge of union adherents, clearly designed to make a free election impossible. We are convinced, therefore, that the Respondent’s failure to reply to the Union’s requests for bargaining was not motivated by any bona fide doubt as to its majority, but by a desire to gain further time in which to undermine its support. Under these circumstances, the fact that petition had been filed furnishes no defense to the refusal to bargain.”
A similar defense to refusal to bargain was rejected by this court in N. L. R. B. v. Clarksburg Pub. Co., 4 Cir., 120 F.2d 976, 980, where we said:
“The company contends that its action in this respect should be excused on the grounds (1) that the Guild offered no ‘reasonable proof’ that it represented a majority of the editorial employees, and (2) that the unit represented by the Guild was inappropriate for the purposes of collective bargaining in view of the peculiar character of the company’s business. Neither of these defenses is tenable. The evidence indicates and the Board found that the Guild represented a majority of the editorial employees; and it is obvious that the refusal of the company, acting through Highland, to bargain with the Guild was not due to any doubt as to the number of employees in the union, but was due to a positive rejection by the company of the principle of collective bargaining. Where the real attitude of an employer is that he will not bargain collectively with his employees under any conditions, he cannot excuse himself on the ground that sufficient proof of a majority status was not furnished him. [National] Labor [Relations] Board v. Remington Rand, Inc., 2 Cir., 94 F.2d 862, certiorari denied 304 U.S. 576, 58 S.Ct. 1046, 85 L.Ed. 1540; [National] Labor [Relations] Board v. Biles Coleman Lumber Co., 9 Cir., 98 F.2d 18, 22. This holding applies with equal force to the second excuse of the company that the Guild constituted an inappropriate unit for bargaining purposes.”
With respect to the finding as to the discharge of the supervisory employee Peeler, however, and the order of reinstatement thereon, we do not think that the Board’s action is sustained by the record. On the contrary, we think it perfectly clear that Peeler was discharged because of his connection with the organization of the union and we agree with the dissenting opinion of Member Reynolds that there is no substantial evidence to support the finding that he was discharged because he would not engage in the unfair labor practice of spying upon other employees. As he was a supervisory employee, he was not protected from discharge because of union membership or activities. 29 U.S.C.A. § 152(3).
The order of the Board will accordingly be modified by eliminating therefrom section 2(b) which directs the reinstatement of Peeler with back pay; and, as so modified, it will be enforced.
Modified and Enforced.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_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.
RODRIGUEZ v. CAMPBELL et al.
(Circuit Court of Appeals, Fifth Circuit.
November 25, 1925.)
No. 4500.
Aliens <@=53 — Statute providing that alien convicted of crime involving moral turpitude shall not be deported when court so recommends held not applicable to alien unlawfully re-entering after deportation.
Provision of Immigration Act 1917, § 19 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289/4jj), that alien convicted of crime involving moral turpitude shall not be deported when court so recommends, does not apply to alien convicted of misdemeanor in re-entering United States after deportation, which is not crime involving moral turpitude.
Appeal from the District Court of the United States for the Northern District of Texas; James Clifton Wilson, Judge.
Petition for habeas eorpus by Emma Rodriguez against C. C. Campbell, United States Immigration Official at San Antonio, Tex., and others. Petition dismissed, and petitioner appeals.
Affirmed.
R. L. Sullivan, of Dallas, Tex., for appellant.
Henry Zweifel, U. S. Atty., of Fort Worth, Tex. (N. A. Dodge, Sp. Asst. U. S. Atty., of Fort Worth, Tex., Randolph Caldwell, Asst. U. S. Atty., of Dallas, Tex., and M'owow H. Boynton, Asst. U. S. Atty., of Ballinger, Tex., on the brief), for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
WALKER, Circuit Judge.
By habeas corpus proceedings the validity of appellant’s detention under a warrant and order for her deportation to Mexico was unsuccessfully challenged. It was shown that nothing alleged as a ground of exclusion and deportation was supported by evidence in the deportation proceedings in which the challenged order was made, except the appellant’s guilt of an offense for which she was indieted after the deportation order was made. That indictment charged:
“That heretofore, to wit, on or about the 14th day of July, A. D. 1922, one Emma Rodriguez, alias Emma Espinosa, was a citizen of the republic of Mexico, and was not entitled to enter the United States of America under the provisions and by the terms o £' the Act of Congress of February 5, 1917, and the amendments thereto, the said Emma Rodriguez, alias Emma Espinosa, being an alien, who had been excluded and deported in pursuance of the provisions of the aforesaid Act of Congress relating to prostitutes, the said Emma Rodriguez, alias Emma Espinosa, having been deported under the aforesaid provisions of the aforesaid act on the 24th day of February, A. D. 1918, and that thereafter and heretofore, to wit, on or about the 14th day of July, A. D. 1922, the said Emma Rodriguez, alias Emma Espinosa, did unlawfully, knowingly, willfully, and fraudulently enter the United States of America from the republic of Mexico without having been duly admitted and inspected, as provided for by the aforesaid act of Congress and the amendments thereto, with full knowledge on her part of the aforesaid deportation.”
By the judgment of conviction under that indictment the appellant was sentenced to confinement in a named jail “for a term or period of 90 days, said term of confinement to be dated back 83 days, with recommendation to the Secretary of Labor that order of deportation not be carried out and that defendant be allowed to remain with her husband.”
, Following the enumeration in section 19 of the Immigration Act of 1917 (39 Stat. 889 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289^jj.]), of sundry grounds on which an alien “shall, upon the warrant of the Secretary of Labor, be taken into custody and deported,” some of which grounds do not involve moral turpitude on the part of the alien, is the following: “Provided further, that the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of. imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the state, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this act.” The offense which was the ground for appellant’s deportation, and of which she was convicted as above stated, was created by the following provision of section 4 of the above-mentioned act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289bb): “That any alien who shall, after he has been excluded and deported or arrested and deported in pursuance of the provisions of this act which relate to prostitutes, procurers, or other like immoral persons, attempt thereafter to return to or to enter the United States shall be deemed guilty of a misdemeanor,” etc.
By its express terms the above quoted provision as to a recommendation to'the Secretary of Labor by a court, or judge thereof, applies only in eases “of aliens convicted of a crime involving moral turpitude.” The statute does not purport to give to a reeom- . mendation of a court or judge to the Secretary of Labor that an alien convicted of a crime which does not involve moral turpitude be not deported the effect of forbidding or preventing the deportation of such alien. The appellant did not, within the meaning of the statute, commit a crime involving moral turpitude by re-entering or attempting to re-enter the United States from Mexico after she had been deported, and without having been duly admitted and inspected. The offense for which the appellant was convicted not being one involving moral turpitude, the above-mentioned recommendation did not have the effect of depriving the Secretary of Labor of the right or power to have her deported on proof of the existence of that ground, which made her subject to be taken into custody and deported.
It appearing that the challenged warrant and order for appellant’s deportation were based on proof of the existence of a ground authorizing her to be taken into custody and deported, and that that order remained in effect and was legally enforceable, it was not error to dismiss the petition for the-writ of habeas corpus.
The order to that effect is affirmed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_usc2
|
29
|
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 29. 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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LAVERDIERE’S ENTERPRISES, Respondent. Teamsters Union Local 340, Intervenor. LAVERDIERE’S ENTERPRISES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 90-2035, 90-2129.
United States Court of Appeals, First Circuit.
Heard March 4, 1991.
Decided May 22, 1991.
Frederick C. Havard, Atty., N.L.R.B., with whom Jerry M. Hunter, Gen. Counsel, D. Randall Frye, Acting Deputy Gen. Counsel, and Aileen A. Armstrong, Deputy Associate Gen. Counsel, N.L.R.B. were on brief, Washington, D.C., for petitioner.
Catherine R. Connors with whom Pierce, Atwood, Scribner, Allen, Smith & Lancaster was on brief, Portland, Me., for respondent/ cross-petitioner.
Gabriel 0. Dumont, Jr. with whom Law Office of Gabriel Dumont was on brief, Boston, Mass., for intervenor.
Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.
COFFIN, Senior Circuit Judge.
The National Labor Relations Board (NLRB) found that LaVerdiere’s Enterprises improperly withdrew recognition from the union that had been representing its warehouse employees for nine years and, among other remedies, ordered that the Company resume bargaining with the union. The Board applied to this court for enforcement of its order, and LaVerdiere’s cross-petitioned for review of the order. Although we uphold the Board’s determination that LaVerdiere’s violated federal labor law, we conclude that the remedy of a bargaining order is inappropriate in this case.
I. Factual Background
Teamsters Union Local 340 (“the Union”) was certified to represent LaVerdiere’s warehouse employees in 1976, and it subsequently entered into a series of collective-bargaining agreements with the Company, the last of which was scheduled to expire on April 30, 1985. The record indicates that the history of relationships between the Company and the Teamsters was uneventful, with no evidence of Company interference with the Union.
In February 1985, two employees, Francis Richards and Marie Grandmaison, began to circulate a decertification petition. They collected 20 signatures by February 28, which they erroneously believed were enough to meet the necessary 30 percent showing of interest for an election. The unit, however, contained 70 employees— rather than the 59 the employees had thought — and on March 18 the NLRB gave the employees 72 hours to collect additional signatures. Although only one more name was necessary to reach 30 percent, 13 employees signed the petition within the next two days; seven more employees signed by April 5, bringing the total on various petition sheets to 40.
The record indicates that LaVerdiere’s played no role in initiating the petition drive. Several incidents occurred during the campaign, however, that involved management. First, on February 28, one of the two petition organizers, Grandmai-son, asked the Company’s vice president, Michael LaVerdiere, to meet with two employees who had questions about the decer-tification petition. In his conversation with the two employees, LaVerdiere stated:
As far as I know, [the petition] is just for a revote. You can sign this petition now, there will be an election in two or three weeks. At that point you can decide to vote for or against the union — change your mind. I’m not trying to sway you. It’s totally up to you.
Both employees signed the petition that same day. A similar discussion took place, apparently also on February 28, with a third employee, Daniel York. When asked whether the Union could have York fired for signing the petition, LaVerdiere said it could not, and that “like I said to everybody else — it was for a revote.” York originally had signed the petition but removed his name before speaking with LaVerdiere.
The second incident began on March 11, when five employees completing their 60-day probationary periods asked a LaVerdi-ere’s vice president, Robert Bishop, whether they were required to pay the Union’s $50 initiation fee. Although Bishop had told the employees when they were hired in January that, under the union security provision in the collective bargaining agreement, they would be required to join the Union and pay its fees at the end of their probation, he answered at this time that he would check on the requirement. He contacted LaVerdiere’s lawyer, who prepared a statement for Bishop to read to the employees as an interim response. Bishop read the following statement on March 13.
When you were hired I advised you that this Union contract requires you to join and our practice has been to reduce your hours to 30 hours per week. Our legal counsel questions this practice, so until we get clarification, sit tight.
If you choose not to join the Union by not signing the check-off card and not paying the $50.00 enrollment fee, we will not terminate your employment. We will advise you once we get clarification from our legal counsel. Don’t worry about being fired because the Union can’t do it and must give you notice about your legal obligations.
One week later, Bishop read another statement prepared by counsel advising the five employees that they were, in fact, required to pay dues and the initiation fee, but were not required to join the Union or make payment by checkoff. The statement also noted that the contract was scheduled to expire on April 30, and that employees need not continue paying dues after that date unless the agreement was renewed. Bishop concluded by advising the employees to take no action “until such time that you receive proper notification from the Union office.”
Meanwhile, as employee uncertainty about the union was surfacing, the Teamsters and LaVerdiere’s were communicating about negotiations for a new contract. On March 7, in response to a Union inquiry, LaVerdiere’s proposed deferring the talks until there was some indication of the outcome of the employees’ decertification petition. The Union rejected such a delay, and urged a quick start to negotiations. The Company responded on March 13 with a number of possible meeting dates, beginning on April 10.
At this point, however, additional events occurred that reflected anti-union sentiment. On April 3, the Union notified LaV-erdiere’s that approximately 12 employees had refused to pay initiation fees. On April 9, LaVerdiere’s received a letter from attorney David Butler, who represented the employees seeking decertification. Butler stated that Local 340 no longer was supported by a majority of employees, and he therefore requested that the Company refrain from entering bargaining negotiations with the Union. Enclosed with his letter were a typewritten list of 70 names titled “Employees List,” another typewritten list of 37 names titled “Anti-Union List,” and the petition sheets for which 40 signatures had been solicited earlier. The petitions contained the names of all five probationary employees to whom Bishop had spoken about the initiation fee, as well as the names of the two employees to whom Michael LaVerdiere had stated, upon request by Grandmaison, that the petitions were simply to trigger an election. Butler’s “Anti-Union List” contained all of these names with the exception of one of the five probationary employees.
The Company’s legal counsel notified the Union about Butler’s letter that same day, and on April 10, he sent a letter stating that LaVerdiere’s had a “good faith doubt” that a majority of the bargaining unit continued to support the Union. The lawyer, Robert Lewis, further told the Union that he had filed a petition for an election with the NLRB and he proposed that negotiations for a new contract be deferred. The letter stated, however, that the Company would continue to recognize the right of Local 340 to administer the existing bargaining agreement for the remainder of its term.
From this point on, the relationship between the Company and Union was entirely adversarial. No negotiation sessions ever were held. The Teamsters filed a series of unfair labor practice charges against LaV-erdiere’s, accusing the Company, inter alia, of interfering with the union security clause and improperly withdrawing recognition as of April 9, the day Lewis told the Union of the employees’ request that the Company refrain from bargaining. On May 10, the Teamsters sent the Company a document, dated May 2, that contained the names of 50 employees who ostensibly supported the union and that called for the firing of attorney Lewis and bargaining with the Teamsters. Lewis drafted a letter in response suggesting that the signatures were coerced. He repeated LaVerdiere’s doubts about the union’s majority status and the Company’s desire for an NLRB-conducted election. Because the filing of unfair labor charges normally blocks any election until the charges are resolved by the Board, however, an election never was held.
On May 27, the NLRB informed Lewis by telephone that it was dismissing the Teamster’s charge complaining of unlawful withdrawal of recognition. Lewis immediately called Michael LaVerdiere to tell him that it would be legal to withdraw recognition, and the Company formally did so on that day. The Company subsequently rejected a Union demand for bargaining and refused to allow a Union business representative to enter its facility to investigate grievances, both on the ground that it no longer recognized the Union as its employees’ representative.
Nearly ten months later, on March 17, 1986, without explanation, the NLRB’s regional director informed the parties that he was revoking his earlier refusal to issue a complaint on the Union’s charge of unlawful withdrawal of recognition. Shortly thereafter, the Board’s general counsel issued an order consolidating all pending charges against LaVerdiere’s, and a two-day evidentiary hearing took place on June 23 and 24, 1986. The Administrative Law Judge (AU), whose opinion issued on October 31, 1986, found that LaVerdiere’s had committed four related violations of the National Labor Relations Act (NLRA):
(1) Michael LaVerdiere’s statement to three employees that the petitions were just for a “revote” violated § 8(a)(1) of the Act by misleading them concerning the effect of their signatures on the petition. According to the AU, the statement was deceptively incomplete because LaVerdiere failed to explain that the signatures also could be used as a basis for a good-faith doubt of continued majority status, thereby allowing the Company to withdraw recognition without an election.
(2) Bishop’s statements to the five probationary employees regarding the mandatory initiation fee and related matters violated § 8(a)(1) by interfering with the Union’s enforcement of its security clause.
(3) These statements tainted the decerti-fication petitions, precluding reliance on them as a basis for a “good faith doubt” of majority status, making withdrawal of recognition improper under § 8(a)(5).
(4) Finally, because withdrawal of recognition was improper, refusal to permit Union representatives access to Company facilities also violated § 8(a)(5).
The AU entered an order requiring that LaVerdiere’s cease and desist its violations, post certain notices and, upon request, bargain with the Teamsters. LaVerdiere’s appealed. In a brief opinion issued on February 28, 1990 — nearly three-and-one-half years after the AU’s decision — the Board largely adopted the AU’s findings and conclusions. It found, however, that the “re-vote statement” did not constitute a violation of § 8(a)(1) because it contained “no threat to interfere with the employees’ rights nor promises of benefits and, therefore, is not coercive within the meaning of the Act.” Opinion at 3. Because the Board found that LaVerdiere’s statements were nevertheless misleading, it upheld the AU’s determination that- the Company could not rely on the petitions as a basis for a good-faith doubt of majority status. LaVerdiere’s filed an unsuccessful motion for reconsideration, and both parties then sought review in this court.
The primary issue before us is whether LaVerdiere’s should be compelled to bargain with the Teamsters. LaVerdiere’s claims that the bargaining order is entirely unsupportable because the Company developed a reasonable good faith doubt that the Union had lost majority status, permitting it to withdraw recognition and thus end its relationship with Local 340. Alternatively, LaVerdiere’s contends that, even if we uphold the Board’s finding that it lacked a sufficient basis for withdrawing recognition, the circumstances of this case are such that an election, rather than a bargaining order, is the appropriate remedy. In sorting out LaVerdiere’s contentions, we shall address three questions: (1) did the Board properly find that Bishop’s comments concerning the mandatory initiation fee — the “security statement” — constituted an unfair labor practice, precluding the Company from relying on the petition signatures of the probationary employees; (2) does the evidence, even excluding any “tainted” petition signatures, support a reasonable good faith doubt that the Union had lost majority status, and (3) even if the Board properly found that the Company lacked a good faith doubt, should it have ordered an election rather than impose a bargaining order on the Company.
II. Discussion
A. Standard of review
The law requires us to review the Board’s order with considerable deference. As to matters of fact, the Board’s findings must be upheld if supported by substantial evidence on the record as a whole. See 29 U.S.C. § 160(e); NLRB v. Horizon Air Services, Inc., 761 F.2d 22, 25 (1st Cir. 1985); Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981). We must sustain inferences that the Board draws from the facts and its application of statutory standards to those facts and inferences as long as they are reasonable. Soule Glass, 652 F.2d at 1073. We may not substitute our judgment for the Board’s when the choice is “ ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo,’ ” id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)). And we must defer to the Board’s inferences in its areas of specialized experience and expertise. Id.
The deference to which the Board is entitled is not, however, unlimited. The courts of appeals are charged with “responsibility for the reasonableness and fairness of Labor Board decisions,” Universal Camera, 340 U.S. at 490, 71 S.Ct. at 466, and a court must set aside Board action when it “ ‘cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light the record in its entirety furnishes, including the body of evidence opposed to the Board’s view,’ ” id. at 488, 71 S.Ct. at 465, quoted in Soule Glass, 652 F.2d at 1073.
With these principles in mind, we turn to our review of the Board’s order.
B. The “Security Statement”
The Board adopted without discussion the ALJ’s determination that Bishop’s communications with the probationary employees about their obligation to pay Union fees violated § 8(a)(1) of the NLRA. In the ALJ’s view, Bishop’s statements were designed “to convince the employees not to join the Union” and had the effect of encouraging them to sign the decertification petitions. He therefore found that the signatures of the five probationary employees were tainted, precluding reliance upon them as objective evidence of the Union’s loss of majority support.
We have minimal difficulty in upholding the finding that Bishop’s conduct violated § 8(a)(1) by interfering with the operation of the union security clause. As the AU noted, “when the employees asked Bishop whether they had to pay initiation fees, the appropriate answer was ‘Yes.’ That is what the contract, still in effect, required.” AU Opinion at 7. Bishop was aware of the contract requirement, and, indeed, had informed the employees when they were hired of the obligation to pay the fee. Although his decision to check with counsel in March may have reflected simply a naive hope that the decertification drive had weakened the enforceability of the contract, we cannot dismiss as unreasonable the AU’s inference that Bishop was attempting to discourage Union support. In any event, no matter what the motivation, substantial evidence clearly supported the finding that Bishop interfered with enforcement of the security clause.
A closer call, however, is whether Bishop’s conduct tainted the petition signatures of the five employees. Several factors weigh against a finding of taint. First, the employees initiated the contact with Bishop by asking whether they were required to pay the fees, demonstrating a pre-existing disaffection with the Union. Second, Bishop’s comments about the fees requirement were largely factual and did not mislead the employees into thinking they could avoid the obligation by not joining the Union. He initially told them only to hold off paying until he found out the extent of their obligation, and later explicitly told them when and how they were required to pay. We see no impropriety in his telling them, in response to their inquiry, that the obligation would expire at the end of April, unless the contract were renewed. It was part of a complete answer to the question asked, particularly in the context of an ongoing decertification drive. See Texaco, Inc. v. NLRB, 722 F.2d 1226, 1231, 1234 (5th Cir.1984) (employer may furnish information upon request when employees ask about revoking dues checkoff or resigning from union); Landmark International Trucks, Inc. v. NLRB, 699 F.2d 815, 820-21 (6th Cir.1983) (in response to inquiry, employer lawfully sent letters to employees explaining how to resign from union). Even if this information influenced the employees’ decisions to sign the petitions, their action resulted from their own investigation and not from Bishop’s intervention.
Third, we see no basis for the inference of coercive impact apparently drawn by the AU from the timing of the five employees’ signatures on the decertification petitions. See Opinion at 12. Three signed on March 19, after Bishop had read the first statement advising the employees to “sit tight” until the Company’s legal counsel determined their obligations. The other two employees signed on March 20, the day Bishop explained their duty to pay fees. But it was on March 18 that the decertification proponents were given 72 hours to collect additional signatures. Thus, in light of the simultaneous effort to obtain more signatures on the decertification petitions, there is little basis for inferring that the five employees’ signatures were coerced by Bishop’s statements.
Despite these factors undercutting the AU’s finding of taint, we feel constrained to uphold his conclusion based on one portion of the March 13 conversation. The opening of the prepared statement that Bishop read on that day linked, albeit loosely, the Company’s practice of reducing post-probationary employee hours with the union security clause. The AU concluded that an employee listening to this statement could have interpreted Bishop’s message to be, “if there were no union, your hours would not be reduced.” See AU Opinion at 8. Whether or not we would draw such an inference, we do not consider it unreasonable for the AU to have done so. See NLRB v. Amber Delivery Service, Inc., 651 F.2d 57, 67 (1st Cir.1981) (“[E]ven a single oblique remark can be considered unduly coercive in appropriate circumstances.”). The employees had not questioned the Company’s practice of reducing hours, and there was no apparent connection between that practice and the fee obligation about which they did ask. We therefore must uphold the AU’s finding that this statement was improper and may have influenced the employees’ attitude toward the decertification drive, tainting their petition signatures.
C. Withdrawal of recognition based on “good faith doubt”
A union that is certified by the NLRB as the exclusive bargaining agent for a unit of employees enjoys an irrebuttable presumption of majority support for one year. NLRB v. Curtin Matheson Scientific, Inc., — U.S. -, 110 S.Ct. 1542, 1544, 108 L.Ed.2d 801 (1990). The presumption continues after the first year, but becomes rebuttable. Id. 110 S.Ct. at 1545. To overcome this presumption, an employer must show that, at the time of the refusal to bargain, either (1) the union in fact no longer enjoyed majority support, or (2) the employer had a reasonable “good faith” doubt, based on objective considerations, of the union’s majority support. Id.; Bolton-Emerson, Inc. v. NLRB, 899 F.2d 104, 106 (1st Cir.1990).
The parties in this case have stipulated that the relevant bargaining unit contains 70 employees, and LaVerdiere’s therefore must present support for its asserted belief that at least 35 members opposed the Union on May 27, 1985, the day the Company formally withdrew recognition. LaVerdiere’s relies on a number of factors, the most significant of which are the employees’ decertification petitions and the Anti-Union list compiled by the employees’ attorney, the former containing 40 names and the latter 37. Our decision upholding the AU’s finding of taint from the security statement, however, requires us to disregard the signatures of the five probationary employees. Similarly, we see no basis on which to disturb the Board’s finding that the Company may not rely on the signatures of the two employees to whom Michael LaVerdiere described the petition as “just for a revote.” Favoring a new representation election does not necessarily reflect union opposition, and those two employees were told that that was the only purpose of the petition drive.
Making the appropriate reductions, leaves 33 names on the petition and 31 on the attorney’s list — neither of which is sufficient on its own to indicate a lack of majority support for Local 340. LaVerdiere’s, however, argues that numerous other factors, taken together with the petitions and attorney list, combined to create an adequate objective basis for a good faith doubt of majority support. See Bolton-Emerson, 899 F.2d at 106 (combination of factors may be basis for good faith doubt). The Company points to the following evidence:
—substantial turnover had occurred since the Union had been certified and the trend was that newer employees did not support the Teamsters;
—the Teamsters were adamantly resisting an election, suggesting that they doubted their strength;
—five employees told the Company directly that they did not want to pay their initiation fees;
—the Teamsters had informed the Company that twelve employees had not paid initiation fees;
—even discounting the presumedly tainted signatures, a substantial number of employees had signed the decertification petitions.
In addition, a factor of some significance emphasized by LaVerdiere’s is that the NLRB regional director informed the Company that the Teamsters’ withdrawal of recognition charge, filed in April, was being rejected because the Company had a sufficient basis for a good faith doubt of continued Union support. At that point, the Company argues, it could have committed an unfair labor practice had it not withdrawn recognition. See International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 732-33, 81 S.Ct. 1603, 1604-05, 6 L.Ed.2d 762 (1961) (recognizing union supported by minority of employees is an unfair labor practice).
We have sympathy for LaVerdiere’s position. The record makes it clear that substantial employee opposition to the Union existed, and the Company’s burden is to demonstrate only a doubt, not actual loss, of majority Union support. The employees initiated the decertification drive as well as both conversations that were deemed to taint petition signatures. Nevertheless, to rebut the presumption of continued majority support, the Company must come forward with objective evidence not only of substantial opposition to the Union but of at least 50 percent opposition. It failed to do so.
In fact, even had we not discounted the seven signatures found tainted by the Board, we in all likelihood still would have been required to uphold the finding of an improper withdrawal of recognition. The Regional Director’s conclusion that LaVer-diere’s in April had sufficient support for a good faith doubt of majority status does not necessarily guide the appropriate outcome for that issue at the end of May. In the interim, the Company received from the Union’s business agent a counter-petition signed by 50 employees at a May 2 meeting. The petition affirmed the employees’ desire for continued representation by Local 340 and demanded good-faith bargaining with the Union. Whatever the circumstances surrounding the signing of this petition, it at least should have caused LaV-erdiere’s to move cautiously before withdrawing recognition. There is, however, no evidence of any effort undertaken by the Company to unravel the conflicting messages it had received from its employees in order to determine the extent of true opposition to the Union.
It may be that LaVerdiere’s did not wish to investigate because the less it discovered to undercut the Regional Director’s conclusion, the more appropriate it would seem to withdraw recognition. And frustrated by its inability to obtain an election, LaVerdi-ere’s undoubtedly felt that the only chance for a speedy resolution of the matter would be for it to take such a step. While the desire to put the matter to rest is understandable, the Company took a risk when it withdrew recognition in the midst of mixed signals. In contrast, because of the contradictory petitions, we have no doubt that, had LaVerdiere’s not withdrawn recognition at this point, it would not have faced a significant risk of an unfair labor charge based on recognition of a union that lacked majority support.
We therefore uphold the Board’s finding that LaVerdiere’s lacked an objectively based good faith doubt of majority union support when it withdrew recognition and that, in doing so, it violated § 8(a)(5) of the NLRA.
D. Election or Bargaining Order
It is a well-established principle that the Board’s choice of remedy for a violation of the NLRA must be given “special respect.” NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n. 32, 89 S.Ct. 1918, 1939 n. 32 (1969); Amber Delivery Service, 651 F.2d at 70.
Nevertheless, this court is a reviewing court and does not function simply as the Board’s enforcement arm. It is our responsibility to examine carefully both the Board’s findings and its reasoning, to assure that the Board has considered the factors which are relevant to its choice of remedy, selected a course which is remedial rather than punitive, and chosen a remedy which can fairly be said to effectuate the purposes of the Act.
Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 42 (D.C.Cir.1980).
Neither the AU nor the Board discussed the alternative of ordering an election in this case, and therefore did not articulate why they believed a bargaining order was the appropriate remedy. See Peoples Gas, 629 F.2d at 46 and n. 22 (discussing the Board’s “perfunctory conclusions” to impose bargaining orders). Although we understand the logic of ordering the parties back to the positions in which they stood before the Company unlawfully withdrew recognition from the Union, we are unpersuaded that that remedy is, in these circumstances, the one “best suited to the purposes of the Act, which include both deterrence of employer misconduct and protection of employee free choice,” Peoples Gas, 629 F.2d at 46 n. 18.
We reach this conclusion based on a number of specific factors, to which we now turn.
(1)Employee Choice. The most compelling factor in favor of an election is that this case arose in the context of an employee effort to bring about a decertification vote. Had Francis Richards and Marie Grandmaison been correctly informed about the size of the bargaining unit, it appears virtually beyond doubt that they would have gathered enough untainted signatures to trigger an election before the subsequent events blocking an election occurred. Unlike the employer’s need to show a good faith doubt of majority support, the employees needed only a 30 percent showing of interest, or 21 employees. When they submitted their initial petition sheets to the Board, they were short only one name. The employees’ later solicitation of additional signatures was to no avail, apparently because the Union by then had filed an unfair labor charge blocking an election. Thus, a Board-certified election would be most responsive to the wishes of the employees, whose free choice is a primary concern of the NLRA. See, e.g., Texas Petrochemicals Corp. v. NLRB, 923 F.2d 398, 406 (5th Cir.1991) (the NLRA “was enacted not to further union membership or to deter it but to further employee choice and to provide an effective mechanism for realizing that choice”).
(2) Insubstantial nature of the violations. This is not a case involving egregious anti-union conduct by the Company. As discussed above, LaVerdiere’s did not instigate the decertification drive and its problematic conversations with employees could be said to have had only a minimal impact on their attitudes toward Local 340. Cf. NLRB v. Horizon Air Services, Inc., 761 F.2d 22, 29 n. 5 (1st Cir.1985) (employer “manifested a Stalingrad defense of sorts to the threat of unionization, fighting the Union, by any means at hand, from rock to rock and from tree to tree”); Eastern Maine Medical Center v. NLRB, 658 F.2d 1, 3-13 (1st Cir.1981) (company failed to bargain in good faith, manipulated wage and benefit increases to discourage union support, questioned job applicants about union sentiments and improperly imposed solicitation restrictions); Texaco, Inc. v. NLRB, 722 F.2d 1226, 1228-29 (5th Cir. 1984) (management assisted in circulation of decertification petition and initiated idea to cancel collective bargaining agreement). Moreover, the history of LaVerdiere’s relationship with the Union suggests a generally cooperative coexistence during the period in which the Union enjoyed substantial employee support. Accordingly, there appears to be no need to impose a bargaining order for the purpose of deterring the Company from efforts to undermine Local 340, or any other union chosen by its employees to represent them. Cf. Horizon Air Services, 761 F.2d at 32 (affirming bargaining order because the egregious actions of the employer “constitute a more than ample basis for a sound inference of future interference and/or enduring aftereffects”); Eastern Maine Medical Center, 658 F.2d at 13 (affirming bargaining order “in view of the serious and pervasive violations disclosed in the record”).
(3) Passage of time. It has been roughly six years since LaVerdiere’s withdrew recognition from Local 340, nearly three- and-one-half of which passed while the AU’s decision was on appeal to the Board. We share the view of other courts that inordinate delay attributable to the Board “cannot be ignored in developing a remedy that protects employee rights,” Texas Petrochemicals, 923 F.2d at 404. See also Peoples Gas, 629 F.2d at 48; J.J. Newberry Co. v. NLRB, 645 F.2d 148, 154 (2d Cir. 1981). With the passage of time, the adverse effects of any improper conduct by the employer likely will be dissipated, particularly when that conduct amounted to insubstantial violations in the first place. In addition, significant turnover can be expected to occur when a case is pending for years; here, for example, only five of the 70 employees currently in the bargaining unit voted in a representation election.
We recognize the other side of the argument — that taking into account the passage of time rewards employer recalcitrance, see Peoples Gas, 629 F.2d at 48—and do not mean to suggest that a lengthy delay should result automatically in an election rather than a bargaining order. See Texas Petrochemicals, 923 F.2d at 404 (“If delays are occasioned by an obstinate employer, he may not benefit from his own wrongs....”) But in circumstances such as these — where there existed a clear showing of substantial employee dissatisfaction unprovoked by the employer before the employer’s less-than-egregious misconduct — we think the Board’s inordinate delay strongly weighs against a bargaining order, which would impose a relationship on the parties for a substantial period into the future even in the face of strong employee opposition to the union.
Thus, each of these three factors weighs heavily in favor of an election. In arguing that the bargaining order should be upheld, the Union and Board focus in their briefs on the Union’s presumption of continuing support, the principle that new hires also are presumed to support the union, and the Company’s failure to show lack of majority support for the Union. Conspicuously absent from their discussions, however, is any recognition that the conflict in this case arose from an employee-initiated drive to obtain a decertification election — a drive that generated substantial, if not proven majority, support. We think this factor is decisive in light of the other circumstances. We therefore conclude that the Board’s choice of remedy clearly was unreasonable, constituting an abuse of its discretion, and that the bargaining order may not be enforced.
III. Conclusion
Limited in our review, we discern no reversible error in the Board’s findings that LaVerdiere’s committed several unfair labor practices in violation of the NLRA— with the security statement, the withdrawal of recognition and the refusal to permit union access to its facility. The equities presented in the record, however, cause us to conclude that the Board’s choice of remedy may not be upheld. In these circumstances, we think the holding of a fair election — the “preferred” method for determining whether a union has majority support, see Gissel, 395 U.S. at 602, 89 S.Ct. at 1934—is the only appropriate option.
Accordingly, the Board’s order is enforced in part, denied in part and remanded to the Board for further action consistent with this opinion.
. The Company reduced the hours of new employees from 40 per week to 30 per week upon completion of the probation period.
. Section 8(a)(1) provides: "It shall be an unfair labor practice for an employer — (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7]....” 29 U.S.C. § 158(a)(1). Section 7 provides in pertinent part: "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining_” Id. at § 157.
. "When you were hired I advised you that this Union contract requires you to join and our practice has been to reduce your hours to 30 hours per week.”
. Our reading of the record suggests that, in drafting this statement, LaVerdiere’s counsel actually may have been attempting to avoid directly criticizing the Union. According to Bishop’s testimony, the lawyer told him in their first conversation that it not only might be improper for the Company to reduce hours when employees joined the Union but also that “it might be discriminatory for [the employees] to have to pay the initiation fee” because of their part-time status. The statement read to the employees, although somewhat ambiguous, see supra at p. 5, seems to address only the Company's possible impropriety — perhaps because it seemed inappropriate to challenge the Union directly during an ongoing decertification drive. Telling half the story, however, made Bishop’s statement more susceptible to misinterpretation; if the only concern was the Company's possible improper discrimination based on union membership, there was no reason to advise the employees to hold off paying initiation fees.
We note this point not because it affects our decision with respect to taint, but because it reveals a possibly benign explanation for the Company’s conduct. See infra at subsection D.
. Although the petitions stated on their face that the signatories no longer wished to be represented by the Teamsters, the Board held that Laverdiere’s direct statement that the petitions were in fact "just for a revote” preempted the written language. In so holding, the Board analogized to its rule on counting authorization cards, which was approved by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 606, 89 S.Ct. 1918, 1936, 23 L.Ed.2d 547 (1969). This rule provides that a card is invalid if its "language is deliberately and clearly can-celled... with words calculated to direct the signer to disregard and forget the language above his signature." The analogy is imprecise here because there is no evidence that LaVerdi-ere was aware of the language on the petition or
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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songer_district
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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 identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Adeline M. BRUNO v. W.B. SAUNDERS COMPANY and CBS Educational and Professional Publishing, a division of CBS, Inc., Appellants.
No. 88-1895.
United States Court of Appeals, Third Circuit.
Argued April 17, 1989.
Decided Aug. 14, 1989.
Rehearing and Rehearing In Banc Denied Sept. 8, 1989.
John J. McAleese, Jr. (argued), John H. Widman, McAleese, McGoldrick & Susanin, P.C., King of Prussia, Pa., for appellants.
Geoffrey P. Gompers (argued), Philadelphia, Pa., for appellee.
Before SEITZ, SLOVITER and GREENBERG, Circuit Judges.
Since the date of the argument in this case, Judge Seitz has taken senior status.
OPINION OF THE COURT
SEITZ, Circuit Judge.
The appeal in this Age Discrimination in Employment (ADEA) action, 29 U.S.C. § 621, et seq., follows a jury verdict against the defendants W.B. Saunders Company (Saunders) and CBS Educational and Professional Publishing (CEPP) in the amount of $850,000. After the verdict, the district court, which had jurisdiction under 28 U.S.C. § 1331, denied the defendants’ motion for judgment n.o.v. or in the alternative for a new trial. This court has appellate jurisdiction under 28 U.S.C. § 1291.
I.
In relating the background of this case, we rely on uncontradicted testimony, except where noted. Adeline Bruno, the plaintiff in this case, was employed by W.B. Saunders Company from 1974 until May 1986. Saunders is a publisher of medical textbooks and medical periodicals, or “clinics.” During the entire time relevant to this case, W.B. Saunders was a wholly owned subsidiary of CEPP.
Prior to the events out of which this litigation arose, Bruno was Director of Saunders’ Central Order Processing Department. This position was described in Saunders’ internal nomenclature as a “level 9” position. As Director of Central Order Processing, Bruno earned $44,350 annually as of December 1984.
In early 1984, Saunders announced plans to eliminate the Central Order Processing Department. One consequence of this would ultimately be the elimination of Bruno’s job. Bruno was at the time forty-six years old.
Later that year, while Bruno was still working in her Central Order Processing job, the Manager of the Clinics Fulfillment Department at Saunders was transferred, and his job became open. Anthony Degu-tis, then Director of Budgets and Planning at Saunders, was given responsibility for finding a replacement. Within the Saunders hierarchy, the title “Manager” was a step below that of “Director,” the title then held by Bruno. The newly open position was classified by Saunders as a “level 8” position. Bruno applied for the job.
The Clinics Fulfillment Department processes (“fulfills”) orders for Saunders’ clinics. From 1977 until it was computerized in 1980, the Clinics Fulfillment Department had been under the direction of Bruno in her capacity as Director of Central Order Processing. Degutis testified that his original belief was that Bruno “would best fill this position.” Indeed, Degutis was informed by two CEPP executives in New York to whom Bruno had indirectly reported, Richard Bates and William Wright, that Bruno was the obvious successor to. the Clinics Fulfillment position.
At the interviews conducted by Degutis, Beverly Dietrich, one of the ten candidates for the position, was treated differently from the others. Dietrich, who was then 36, was taken out by Degutis for a ninety minute lunch at an upscale restaurant near Saunders’ office in Philadelphia. None of the other candidates was taken to a restaurant. Bruno was interviewed for approximately twenty minutes in a vacant office in the Saunders building.
Degutis testified that Dietrich “was not at the time we started the interview process[,] in my mind[,] qualified” for the Clinics Fulfillment position. At the time of the interviews for the job of Manager of Clinics Fulfillment, Dietrich was a Supervisor of Systems Analysis in the Clinics Fulfillment Department. Within the Saunders hierarchy, “Supervisors” are below “Managers.” Dietrich’s particular job was classified as a “level 3” position. Dietrich had been with Saunders three years, and had worked on the computerization of the Clinics Fulfillment Department. At the time of her interview, Dietrich was earning an annual salary of $19,773.
Dietrich’s previous work experience — beginning several years before she began working at Saunders — had been as Assistant Manager and then Manager of the Arena Stage, a theater in Washington, D.C. In that position she was responsible for a staff of 15 to 20 people. She was paid on an hourly basis. Her more recent work experience prior to joining Saunders had been as a sales clerk at Bamberger’s Department Store and as a front office manager at a grocery store.
Two months before formally filling the position, Degutis made Dietrich temporary head of the Clinics Fulfillment Department. While Dietrich was at the time the senior of the three Supervisors in the Department, Bruno testified that Degutis told her that Dietrich had been given this job because “I know how everybody felt about Beverly so I wanted to give her a chance to prove herself.” Degutis testified that this interim appointment was not intended to be a testing period for Dietrich.
Ultimately, Degutis chose Dietrich to fill the post permanently. Although the job had been posted as a “level 8” position, it was given initially to Dietrich as a “level 7.” Dietrich was raised from a level 3 to a level 8 in two steps primarily because Saunders management felt that her salary increase would otherwise have been too great for one person to receive at one time. Six months after her installment as Manager of Clinics Fulfillment, Dietrich's annual salary was $29,000. Following Dietrich’s selection, Bruno filed an Equal Employment Opportunity Commission (EEOC) charge alleging discrimination on the basis of age.
Several months after she was passed over for the Clinics Fulfillment position, and while she was still working at Saunders, Bruno was offered a job as Manager of Inventory Planning and Control in the Bellmawr, New Jersey warehouse facility Saunders shared with other CEPP subsidiaries. Bruno first accepted the job, but changed her mind four weeks later, before the job commenced. Bruno testified that she was told by a CEPP executive that a condition of her employment in that position was that she not proceed with her age discrimination claim.
Bruno was laid off by Saunders in May 1986. After her termination, Bruno continued to receive pay for four months. Seven months after her severance pay ended, Bruno accepted a job at the Provident National Bank for an annual salary of $18,000 plus benefits.
Bruno brought this action in the district court under the ADEA. After trial, the jury found the defendants liable for “willful” age discrimination in their failure to give Bruno the Manager of Clinics Fulfillment job, and awarded liquidated damages as provided for by the statute. See 29 U.S.C. § 626(b). The jury verdict in favor of Bruno included $160,000 denominated “lost wages and benefits” and $700,000 denominated “front pay.” The parties agree that half of each of these amounts represents liquidated damages.
On appeal, the defendants present a litany of alleged errors.
II.
The defendants’ first challenge to the judgment in the district court is that the evidence was insufficient to support the verdict. To win on such a challenge, the defendants must show that the record “is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief.” Simone v. Golden Nugget Hotel, 844 F.2d 1031, 1038 (3d Cir.1988) (citation omitted).
Under the now familiar analytical framework that has been established for analyzing ADEA claims, the plaintiff first bears the burden of establishing a prima facie case. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). If the plaintiff meets this burden, it raises an inference of unlawful discrimination. The burden of production then shifts to the defendant, who can dispel the inference of discrimination by articulating a “legitimate, non-discriminatory reason” for its employment action. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. If the defendant succeeds in this, the burden then returns to the plaintiff, who retains the ultimate burden of persuasion. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. To win his case, the plaintiff must “prove by a preponderance of the evidence that the proffered reasons were not the employer’s true reasons.” Sorba v. Pennsylvania Drilling Company, 821 F.2d 200, 202 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).
Saunders and CEPP argue that the evidence was insufficient to support the verdict because it was not adequate to raise an inference of age discrimination at the pri-ma facie case stage. They also argue that the evidence is insufficient to support a jury finding that their articulated, non-discriminatory reason for the employment decision in this case is mere pretext.
A.
The defendants first challenge the sufficiency of the evidence to raise an inference of age discrimination at the prima facie case stage. Of course, after a case has been tried to a jury on the merits, “it is unnecessary for the appellate court to decide whether a prima facie case had, in fact, been established.” Blum v. Witco, 829 F.2d 367, 372 n. 2 (3d Cir.1987). “Where the defendant has done everything that would be required of him if the plaintiff had made out a prima facie case, whether the plaintiff really did so is no longer relevant.” United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). Rather, the appellate court must consider the ultimate issue: whether the plaintiff proved by a preponderance of the evidence that age was a determinative factor in the employer’s hiring decision. Blum, 829 F.2d at 372 n. 2. “The issue of whether plaintiff established a prima facie case is subsumed on appeal into whether the plaintiff has sustained his or her ultimate burden,” Dreyer v. Arco Chem. Co., 801 F.2d 651, 654 (3d Cir.1986), cert. denied, 480 U.S. 906, 107 S.Ct. 1348, 94 L.Ed.2d 519 (1987).
We will therefore treat the defendants’ first contention as an argument that the evidence is insufficient to support the verdict. The defendants’ contention in essence is that the evidence of a ten-year difference in age between Bruno, who was 46 at the time she applied for the Clinics Fulfillment job, and Dietrich, who was then 36, is insufficient to support an inference of age discrimination essential to plaintiff’s case. Put another way, the defendants argue that the evidence could not support an ultimate conclusion that their employment action was discriminatory because it is insufficient to allow any inference that Bruno’s age was a determining factor.
We disagree. Congress has defined the protected class to include only those people between forty and seventy years of age. 29 U.S.C. § 631(a). Where the plaintiff is a member of the protected class and the successful candidate is not, the precise difference in age between the plaintiff and the successful candidate is not decisive, at least in a case such as this where the difference is not so small as to make an inference of discrimination absurd.
Contrary to the defendants’ suggestion, this conclusion is not inconsistent with Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). In Maxfield we held that the difference in age between a 65-year old and a 42-year old was “sufficient” to make out one of the elements of a prima facie case necessary to raise an inference of age discrimination at that stage of the litigation. Maxfield, however, presented a situation where the plaintiff and the successful job applicant were both within the protected class. In that context we found it necessary to examine the magnitude of the age difference in order to determine whether it would support an inference of discrimination.
This case presents the more common type of discrimination case where the plaintiff is within the protected class and the person ultimately chosen for the job is not. In title VII cases of race or sex discrimination, from which our method of analyzing age discrimination claims has been transplanted, this would be enough to support an inference of discrimination. See, e.g., Jackson v. University of Pittsburgh, 826 F.2d 230, 233 (3d Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988) (title VII race discrimination case) (where plaintiff is within protected class, one element of prima facie case made out simply by showing that persons treated more favorably were not within the protected class). So it is in actions under the ADEA. Maxfield did not disturb the settled rule that more favorable treatment for those not within the protected class will support an inference of age discrimination. See, e.g., Massarsky v. General Motors, 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983) (to make out prima facie case, plaintiff “need only show that he is a member of the protected class and that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably”). We conclude therefore that the evidence here was sufficient to support an inference of age discrimination.
B.
“[Ojnce the defendant has produced admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus... plaintiffs ultimate burden of persuasion includes the requirement to show that the defendant’s proffered reason is a pretext for discrimination.” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). In their second, more narrow, challenge to the sufficiency of the evidence to support the verdict, the defendants argue that even if the evidence of the difference in age between Bruno and Dietrich was sufficient to support an inference of discrimination, there was insufficient evidence to support a conclusion that the defendants’ proffered reason was a pretext.
The defendants here did articulate a legitimate, non-discriminatory motive for failing to hire Bruno for the Clinics Fulfillment job. The defendants state that Bruno was not selected because it was Degutis’s perception that her interest in the job was half-hearted. They also contend that Dietrich was selected over Bruno based on her performance as acting head of the Clinics Fulfillment Department during the two months that preceded her actual hire to fill the Manager of Clinics Fulfillment position. Before the district court, Degutis testified additionally that among the reasons he selected Dietrich were her “enthusiasm” and the fact that she was the “most qualified” candidate. The defendants do not rely on these explanations in this appeal.
There is a variety of evidence that tends to rebut the defendants’ articulated reasons for their employment action. As to Bruno’s interest in the job, Bruno testified that she spoke to Degutis often about the job during the time between her interview and the time the position was ultimately filled, and that, indeed, at one point he said to her “Addie, quit pushing.” Both Degu-tis himself and Richard Bates, then CEPP’s Vice-President for Fulfillment Services, testified that, subsequent to Bruno’s interview with Degutis, Bates told Degutis that Bruno wanted the job. Degutis also testified that Bruno mentioned the job to him— albeit offhandedly — more than once during the period when he was selecting among the candidates for the position.
As to Dietrich’s performance during the interim period when she was acting head of Clinics Fulfillment, there was testimony in the district court by others employed by Saunders during that time — the Director of Management Information Systems, and the Manager of Computer Operations — that Dietrich did not show ability, at least in some aspects of the job. The evidence in its totality meets the minimum threshold necessary to support a conclusion that the defendants’ proffered reasons were a pretext.
The law is clear that a plaintiff can win an age discrimination action without direct evidence specifically relating to age by proving that the reason for the unfavorable treatment put forward by the employer is a pretext. Chipollini, 814 F.2d at 898. The message of Chipollini is not, however, that anyone who suffers an adverse employment decision can win a discrimination suit. The message is that Justice Rehnquist’s words for the Supreme Court will be taken seriously: “when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s action, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). This framework places a premium on truthfulness by the defendant. If a “legitimate, non-discriminatory” reason articulated by a defendant faced with a prima facie case of discrimination is not the true reason for a failure to hire, the court may infer that the actual reason was impermissible.
III.
The defendants next argue that the district court erred in the admission of evidence and they ask for a new trial. In this Circuit, review of rulings on relevance is plenary. See Brobst v. Columbus Services, 824 F.2d 271, 274 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 777, 98 L.Ed.2d 863 (1988). Other evidentiary questions are reviewed for abuse of discretion.
A.
The defendants challenge the statistical evidence Bruno presented. In particular, they attack studies done by plaintiff’s expert that compare whether Saunders employees over forty years of age received transfers or promotions in proportion to the percentage of all Saunders employees over forty. The defendants argue that these studies are irrelevant because they did not account for the minimum objective qualifications of the jobs into which transfer or promotion was possible. The Supreme Court has held that “[njormally, failure to include variables will affect the analysis’ probativeness, not its admissibility.” Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 3008, 92 L.Ed.2d 315 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part). It has also noted that “[tjhere may, of course, be some regressions so incomplete as to be inadmissible as irrelevant.” Id. at 400 n. 10, 106 S.Ct. at 3009 n. 10.
Unlike the main cases cited by the defendants, this is not a class action disparate impact or disparate treatment case. See Segar v. Smith, 738 F.2d 1249 (D.C.Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985) (disparate impact); Valentino v. United States Postal Service, 674 F.2d 56 (D.C.Cir.1982) (disparate treatment). In such cases, statistical evidence that does not account for minimum objective qualifications may not “measure disparities among comparably qualified workers, rather than disparities in qualifications.” Segar, 738 F.2d at 1274. Of course, even in such cases, the requirement that statistical evidence account for minimum qualifications is not a “hard and fast rule.” Id. Still, as a general matter, in class actions — “where liability depends on a challenge to systemic employment practices[,] courts have required finely tuned statistical evidence.” Krodel v. Young, 748 F.2d 701, 709 (D.C.Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 51 (1985).
By contrast, in individual disparate treatment cases such as this, statistical evidence, which “may be helpful, though ordinarily not dispositive,” id. at 710, need not be so finely tuned. In individual disparate treatment cases such as this, a general rule requiring that all statistical evidence account for minimum objective qualifications would not be broadly useful. Rather, “the usefulness of statistics will depend primarily upon their relevance to the specific decision affecting the individual plaintiff.” B. Schlei and P. Grossman, Employment Discrimination Law 1316 (2d ed. 1983). See International Bhd. of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 1856-57, 52 L.Ed.2d 396 (1977) (the usefulness of statistics “depends on all the surrounding facts and circumstances”).
The statistical evidence in this case is being used to bolster the plaintiff’s case that the defendants’ articulated reason for an individual employment decision is a pretext. Even though it does not account for the minimum objective qualifications of the positions into which transfer or promotion was possible, we conclude that the studies are “relevant.” That is, as evidence they meet the requirement of Federal Rule of Evidence 401 that they “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. Compare McDonnell-Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825 (defendant’s policy and practice with respect to employment of protected class relevant to showing of pretext).
The studies are significantly less probative than they would be if they took account of the minimum qualifications of the jobs into which promotion or transfer occurred. However, the district court’s conclusion that they are more probative than prejudicial was within the limits of the permissible exercise of that court’s sound discretion.
B.
The defendants also challenge the plaintiff’s statistical studies because they compare new hires to the age of existing employees — without taking account of the correlation between age and normal corporate advancement — and because along with “individual termination decisions” they consider terminations resulting from Saunders’ decision to close its printing plant. The plaintiff contends that these objections were waived because they were not specifically made in the district court. While the defendants did not object to this evidence at the time of introduction, they did challenge it in their motion in limine.
While normally an objection to the admission of evidence must be raised at trial to be preserved, this court will sometimes permit evidentiary question to be preserved by a motion in limine. See American Home Assurance Co. v. Sunshine Supermarket, 753 F.2d 321 (3d Cir.1985). A determination that the objections were preserved by a motion in limine requires an evaluation of the extent of the briefing on the motion in limine, and the definitiveness of the district court’s ruling on the motion. The pretrial motion will suffice only if we con-elude that requiring an objection at trial “would have been in the nature of a formal exception.” Id. at 324-25.
In this case, the defendants’ brief in support of its motion in limine specifically raised the evidentiary issues the defendants now wish to present before this court. However, the defendants have not pointed to any place in the record where their motion was ruled on by the district court. Without a definitive ruling against the defendants, there could be no reliance factor in this case. Consequently, the defendants, in failing to object to these studies at trial, have failed to preserve this issue for appellate review.
C.
The defendants also challenge the admission of evidence that Degutis and Dietrich, the woman he finally chose for the Clinics Fulfillment position, were seen together frequently. They argue that no reasonable inference of age discrimination can be drawn from this evidence. After an examination of the record, we conclude that, even if this evidence was not admissible, there was no reversible error.
IV.
A.
The defendants also seek a new trial on the basis of alleged error in the district court’s instruction to the jury that “[wjhere economic savings are directly related to an employee’s age, however, it is a violation of the [ADEA] not to hire an older employee for those reasons.... [I]f you believe that the economic savings to the company were an age related factor which induced the defendants to hire Beverly Dietrich for economic reasons rather than an older employee such as Adeline Bruno, then Adeline Bruno is still entitled to prevail on her claim.”
In the district court, at the end of the jury charge, the defendants challenged this instruction only on the ground that there was insufficient evidence to support it. The defendants renew this contention before this court.
We find the defendants’ challenge without merit. While there may not be any evidence that there was a correlation between age and salary across the board at Saunders, there certainly was evidence that there was a financial saving involved in hiring the younger Dietrich over the older Bruno. In addition, there was testimony of another employee who was not chosen for the Clinics Fulfillment job, Ann Marie Mar-tino, that CBS (of which CEPP is a division) was trying to reduce its number of longer-term employees in order to reduce its costs. Because the defendants’ contention is without merit, the district court’s refusal to grant a new trial on this ground was not an abuse of discretion.
B.
We also find without merit the defendants’ contention that a new trial is required because the district judge instructed the jury on the circumstantial order of proof developed in the McDonnell-Douglas line of cases. Even assuming that submission to the jury of the question whether the plaintiff made out a prima facie case is error, we do not believe the instructions here could have confused and misled the jury such that the defendants would be prejudiced. At worst, the jury instructions — which, taken as a whole, fairly and adequately described the shifting burdens of production and persuasion— presented the plaintiff with an additional obstacle, the possibility that the jury would find for the defendants on the basis that the plaintiff failed to make out a prima facie case. Therefore there again was no abuse of discretion when the district court declined to grant a new trial on this ground.
C.
The defendants’ most confusing allegation involves a so-called missing witness, CEPP executive William Wright. Bruno testified at trial that Wright told her “off the record” that if he had been her, he would have pursued an age discrimination claim. She testified that he also told her “if you ever repeat that, I’ll deny it.” While defendants’ counsel said in his opening statement that he would call Wright to testify, Wright was not called. Although there was no evidence concerning Wright’s availability, the district judge gave the jury a standard “missing witness” instruction charging them to decide whether Wright was reasonably available only to the defendant or equally available to both parties in ascertaining whether to draw an adverse inference from the defendants’ failure to call him.
While the jury deliberated, the judge — at the suggestion of defendants’ counsel — took the highly unusual step of taking Wright’s testimony by telephone from New York. The purpose of this call was apparently to get testimony concerning Wright’s availability. Wright testified that Bruno saw him and spoke to him during one morning of the trial when he was in the courtroom. Wright also testified — in response to a question from the judge— that he had not made the statement attributed to him by Bruno. The judge granted the defendants’ motion to admit this testimony. However, by this time, the jury had reached a verdict for Bruno.
Nonetheless, the district judge permitted the jury to hear the testimony of Bruno and her counsel that neither one of them had knowledge that Wright was in the courtroom during the trial. The judge then had a tape recording of Wright’s telephone testimony played to the jury. The judge permitted an additional summation by each side, then sent the jury back to deliberate further with an interrogatory asking whether this evidence would cause them to change their verdict. Eight minutes later, the jury returned with the answer “No.”
The defendants challenge the propriety of giving a missing witness instruction, and argue that the instruction given by the district judge was in error. The plaintiff contends that there was evidence sufficient to permit a conclusion that Wright wás peculiarly within the defendants’ power to produce. She also argues that any error was cured by the post-verdict proceedings in the district court which presented evidence to the jury on the question of Wright’s availability to the parties.
The parties miss the significance of the introduction of Wright’s testimony. Wright testified not merely on his availability, but on the issue on which the inference adverse to the defendant was permitted to be drawn. Thus, the judge’s post-verdict interrogatory to the jury did not merely ask them to reconsider Wright’s availability to the parties, it asked them to reconsider their verdict in light of Wright’s testimony favorable to the defendants that he had not told Bruno that she was right to pursue her age discrimination charge. Thus, the “missing witness” is no longer missing and any taint that might have been caused by the allegedly improper charge was cured by his testimony and the district judge’s post-verdict interrogatory.
V.
The defendants next argue that there was insufficient evidence to permit the jury to find that Bruno satisfied her duty to minimize her damages. They, assert that Bruno’s rejection of the job she was eventually offered as Manager, Inventory Planning and Control at the Bellmawr, New Jersey warehouse facility constituted a rejection of an unconditional offer of a “substantially equivalent” job. The defendants contend that this forfeits her right to monetary relief for any period subsequent to that rejection.
In Ford Motor Co. v. EEOC, 458 U.S. 219, 232, 102 S.Ct. 3057, 3066, 73 L.Ed.2d 721 (1982), the Supreme Court held that an employment discrimination plaintiffs duty to minimize his damages includes a requirement that he accept a “substantially equivalent” job offered by the defendant. If the plaintiff fails to accept such a job, the accrual of back pay liability by the defendant employer will be tolled. The Supreme Court, however, also recognized in Ford Motor Co. that the plaintiffs obligation in this regard was not absolute. “The claimant’s obligation to minimize damages in order to retain his right to compensation does not require him to settle his claim against the employer, in whole or in part. Thus an applicant or discharged employee is not required to accept a job offered by the employer on the condition that his claims against the employer be compromised.” Ford Motor Co., 458 U.S. at 232 n. 18, 102 S.Ct. at 3066 n. 18.
The jury here found by special interrogatory that the job Bruno was eventually offered as Manager, Inventory Planning and Control at the Bellmawr, New Jersey warehouse facility was “superior or substantially equivalent” to the Clinics Fulfillment position that Bruno was denied. A second interrogatory asked whether “the plaintiff act[ed] as a reasonable person under the circumstances would have acted when she rejected the offer of the Bell-mawr job.” We understand this interrogatory to address the question whether the offer of the Bellmawr job was conditioned on Bruno dropping her age discrimination claim. The jury answered in the affirmative. The defendants now argue that the evidence was insufficient to support the jury’s conclusion.
Even assuming this contention was not waived, an examination of the record reveals that the defendants’ position is without merit. Bruno testified that Richard Bates, then Vice-President of Fulfillment Services at CEPP in New York, told her “that it would be expected of me to drop my [EEOC] claim if I accepted [the Bell-mawr job]... and I took that to mean that — that you better do it or they’re gonna find a way to get rid of you.” She also testified that this conversation made her feel that “They’re gonna get you over in a job that you can’t do and they’re gonna find an excuse to get rid of you.”
Bruno testified that she felt her fear was supported by her discussion with Bates: “I even said to Rick, ‘Suppose I try it. Will you put in writing that if it doesn’t work out and I can still be let go and have my same severance that I would have had in February?’ And he said, ‘Well, I don’t think we can do that.’ And then I thought right then and there: Well... they really are not offering this to me as a way to help me; they’re just trying to help themselves. They want me to drop my claim.”
This evidence is sufficient to permit the jury’s award notwithstanding the substantial equivalence of the Bellmawr job with the Clinics Fulfillment position for which Bruno originally applied.
The defendants rely on the fact that Bates’s superior, William Wright, subsequently wrote Bruno a note, at a time when she could still have taken the job, saying “[t]he Bellmawr job offer is not, and never was, conditional on dropping your claim. If it was, the condition would necessarily have been stated in writing... I do not understand how your perception of this matter evolved.”
The defendants argue that this memo renders irrational any inference that the Bellmawr job was conditioned on Bruno dropping her EEOC charge. This evidence, however, merely presents a question of credibility. Notwithstanding the memo, the record contains sufficient evidence to support the jury’s conclusion.
The defendants also point out that Bruno testified in a deposition that after receiving Wright’s memo, “I understood that I could accept the job and still pursue the claim if I wanted to.” In context, the jury was entitled to read this simply as a statement of Bruno’s belief that any such condition was contrary to law. Bruno’s testimony does not alter the fact that there is sufficient evidence to support a conclusion by the jury that the Bellmawr job was conditioned on Bruno’s claim being compromised.
VI.
The defendants finally challenge the district court’s award of liquidated damages. The ADEA provides that “liquidated damages shall be payable only in cases of willful violations.” 29 U.S.C. § 626(b). A finding of willfulness in an individual disparate treatment case requires not merely that the employer knew or should have known that its conduct violated the ADEA, but “some additional evidence of outrageous conduct.” Dreyer v. Arco Chem. Co., 801 F.2d at 658. “The Restatement suggests that in assessing punitive damages, the trier of fact can properly consider inter alia the character of the defendant’s act, and the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause.” Id. (quoting Restatement (Second) of Torts § 908(2)) (brackets and internal quotation marks omitted). “[T]he appropriateness of the award [of liquidated damages is] dependent upon an ad hoc inquiry into the particular circumstances.” Id. The jury in the present case awarded Bruno $150,000 in back pay, of which the parties agree $75,-000 represents liquidated damages and $700,000 in front pay of which the parties agree $350,000 represents liquidated damages.
A.
To begin with, the defendants argue that the evidence is not sufficient to support a finding of willfulness. We disagree. Again assuming this objection was not waived, after examining the record we conclude that there is sufficient evidence of willfulness to support an award of liquidated damages.
As to the character of the defendants’ action, both Bruno and Ann Marie Martino, another applicant who was not chosen for the Clinics Fulfillment post, testified that a job description prepared for the opening in that position was unusual in that it did not include a requirement of “management experience.” A jury could infer that the job description was intended to provide a justification for the selection of Dietrich over Bruno. We also observe that the evidence surrounding the offer to Bruno of the Bell-mawr job could support a conclusion that the position was offered her in bad faith.
Additionally, there is evidence that the discriminatory action here was taken against an employee who was being laid off after eleven years of service, in favor of an employee whose then-current job at Saunders was not being eliminated. It is also relevant that there is evidence that during her tenure at Saunders, Bruno received the CBS Employee Achievement Award and an “outstanding employee”
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_state
|
39
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Jose E. BAERGA, Appellant, v. Elliot RICHARDSON, Individually and as Secretary of Health, Education and Welfare, Appellee.
No. 73-1681.
United States Court of Appeals, Third Circuit.
Argued Feb. 14, 1974.
Decided June 19, 1974.
Theodore Clattenburg, Jr., Bruce E. Endy, Jonathan M. Stein, Joseph R. Wenk, Community Legal Services, Inc., Philadelphia, Pa., for appellant.
Robert E. J. Curran, U. S. A tty., Gary Tilles, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before VAN DUSEN and ADAMS, Circuit Judges, and NEALON, District Judge.
OPINION OF THE COURT
NEALON, District Judge.
This action was brought in the dis-tx’iet court under 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) to review a decision of the Secretary of Health, Education and Welfare denying plaintiff-appellant’s application for the establishment of a period of disability and disability insurance benefits pursuant to Sections 216(i) and 223(a) of the Act, 42 U.S.C.A. §§ 416(i) and 423(a). The district court concluded, “(a)fter a thorough and independent review of the entire 369-page record of .this case”, that the decision of the Secretary was supported by substantial evidence. We affirm the summary judgment entered for defendant with some observations as will be expressed hereinafter.
Plaintiff was born December 30, 1916, in Puerto Rico and came to this country in 1955. While in Puerto Rico, he worked in a cigar factory, where he made cigars by hand, and also in a sugar refinery “conditioning” sugar cane. Upon arriving in the United States, he was employed briefly in the agricultural field and then worked for about eight years, until 1964, as a busboy in a Philadelphia hotel. The record discloses that, at the age of seven, plaintiff sustained a fracture of the right leg and dislocation of his right hip, resulting in a shortening of his leg. In February, 1964, plaintiff underwent a segmental sigmoid resection for diverticuloma of the sigmoid and has not worked since. Subsequently, after frequent hospital treatments for back and leg complaints, he was confined to Hahnemann Hospital from April 18, 1966, to July 29, 1966, and on May 9, 1966, underwent surgery described as a right hip fusion. He presently walks with a limp and wears a four-inch lift in his right shoe. Degenerative changes of the lumbar spine and pelvis are established in the record without contradiction. The plaintiff last met the earnings requirement of the Act on March 31, 1969, and, therefore, the hearing examiner viewed his alleged “back, leg and stomach” impairments in light of their severity as of that date.
In denying plaintiff’s application, the examiner made the following “evaluation” of the evidence:
“The Hearing Examiner is of the opinion that the medical evidence fails to disclose any impairment, of the claimant’s back or stomach, as alleged on his application, of a level of severity which would have prevented him from engaging in any substantial gainful activity on or before March 31, 1969, when he was last insured for Disability Insurance Benefits.
“It may be observed in passing that there is no medical evidence at all which shows a significant impairment of the claimant’s stomach, of any long duration, so there is no evidentiary basis whatever to show the claimant to have been disabled on that account, on or before March 31, 1969.
“With respect to the claimant’s alleged back impairment, it appears that the chief problem in this regard was secondary to the injury to the applicant’s right hip, which occurred in early childhood and this was an impairment which did not prevent him from engaging in any substantial gainful activity at any time, prior to 1964. Thereafter, the applicant underwent surgery, which from all accounts was rather beneficial. The clinical records of most recent date in this respect, namely those referring to treatments received in April 1968 and December 1969, show the claimant to have been ‘in good orthopedic condition, presently’ and ‘doing nicely’ (Exhibit 26). In light of the foregoing medical findings at the clinic where the claimant was treated the Hearing Examiner can perceive no adequate basis in the evidence for regarding the claimant to have been disabled because of a back impairment, or any other physical impairment of an orthopedic nature, on or before March 31, 1969.”
* * * *■ -x- *
“The Hearing Examiner finds nothing in this aspect [educational, vocational and non medical evidence] of the evidence which would, in any appreciable measure, compensate for the deficiencies in the medical evidence discussed hereinabove. There is, for example, no basis in either aspect of the evidence which would warrant a conclusion that the claimant was not physically able to perform some appropriate form of work which would have been performed while in a seated position such as employment in the cigar making industry, a type of employment in which he had actual experience prior to the surgery on his right hip, with its reported beneficial effect, on or before March 31, 1969 when he was last insured for disability insurance benefits.”
The examiner then proceeds to make but three “specific findings” as follows :
“FACT
“1. The claimant in this case filed an application for disability insurance benefits on February 11, 1970.
“2. The claimant last met the earnings requirement for disability insurance benefit purposes on March 31, 1969.
“3. The medical evidence fails to show that the claimant was unable to engage in any substantial gainful activity by reason of a back or stomach impairment, as alleged on his application, or any other type of impairment, on or before March 31,1969.”
While affirming the district court, we express concern over the brief treatment given by the examiner in evaluating the evidence. In his decision, the examiner submitted a four-page summary of the evidence preceding the “evaluation” hereinabove set forth but did not express any judgment as to what portions of the evidence he accepted or rejected. Furthermore, he did not address himself to the testimony of plaintiff and his wife concerning plaintiff’s pain, his alleged inability to dress himself or bathe, his limitations on sitting, standing, and walking, as well as other restrictions caused by his extensive hip and leg deformities. As fact finder he has the right to reject their testimony entirely, but failure to indicate rejection could lead to a conclusion that he neglected to consider it at all. “In addition to objective medical facts and expert medical opinions, the Hearing Examiner must consider the claimant’s subjective evidence of pain and disability, as corroborated by family and neighbors; and all of these factors must be viewed against the applicant’s age, educational background and work experience.” Mode v. Celebrezze, 359 F.2d 135, 136 (4th Cir. 1966). Pain, in itself, may be a disabling condition, Ma-runich v. Richardson, 335 F.Supp. 870 (W.D.Pa.1971), and the present record includes medical data which would not contradict, indeed, would support plaintiff’s complaints of pain.
Furthermore, in his “evaluation”, the examiner gives no clue as to why he chose to accept certain medical evidence and reject contradictory evidence. See Kennedy v. Richardson, 454 F.2d 376 (3rd Cir. 1972). In our view an examiner’s findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary’s decision is supported by substantial evidence. It is incumbent upon the examiner to make specific findings — the court may not speculate as to his findings. Williams v. Celebrezze, 359 F.2d 950 (4th Cir. 1966). “We think it is not too much to require that an administrative decision that a claimant is not eligible ... be supported by explicit findings of all facts that are essential to the conclusion of ineligibility.” Choratch v. Finch, 438 F.2d 342, 343 (3d Cir. 1971). Recognizing the heavy work burden on hearing examiners acting under the Social Security Act, we emphasize that the above comments are designed to be helpful in the joint work of the administrative agency and the courts in this field.
While the findings in this case could be improved upon, nevertheless, after careful consideration of the record and relating it to the examiner’s findings, we conclude that such findings are sufficient to satisfy the substantial evidence test. See United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 437, 89 L.Ed. 650 (1944).
The judgment of the district court will be affirmed.
. However, any inference to be drawn from a clinical notation that plaintiff is “in good orthopedic condition”, should be made in the light of what the record shows to be extensive injury to, and functional limitations on, his musculoskeletal system. The term “doing nicely” is a relative térm that may indicate merely that plaintiff’s condition was as good as could be expected under the circumstances. But, in any event, the extraction of these few conclusory comments without further elaboration is of questionable significance.
. The Social Security Regulations provide that the Hearing Examiner’s decision shall he in writing “and contain findings of fact and a statement of reasons”. 20 C.F.R. § 404.939. A directive to make findings of fact normally means clear and explicit findings of all facts necessary to support the conclusions reached. Dowdy v. Procter & Gamble Mfg., 267 F.2d 827, 828 (5th Cir. 1959). There is no reason why this customary and accepted procedure should not be followed in Social Security cases. Indeed, the judiciary must hold administrative officers to high standards in the discharge of the fact-finding functions. United States v. Forness, 125 F.2d 928, 942 (2nd Cir. 1942). See also, 20 C.F.R. §§ 404.926 and 404.927.
. The examiner merely extracted portions of the medical reports which he stated “ . . . are of interest”. Consequently, the summary serves no purpose except for identifying portions of the evidence; there is absolutely no attempt to analyze or evaluate those items referred to in the summary.
. For example, there is no reference in the “evaluation” to
(a) X-ray studies in February, 1963, and August, 1964, indicating a “loss of the normal lordotic curve in the lumbar area” and a “loss of the right acetabulum and displacement of the right femoral head upward”. In addition, there was considerable angulation at an old fracture site of the proximal right femoral shaft, osseous loose body in the hip joint and degenerative joint disease most marked in the distal thoracic spine;
(b) Report of Dr. Elliott Goodman dated December 4, 1965, reciting plaintiff’s orthopedic problems and noting an inability to bend the right knee as well as marked atrophy of the right thigh;
(e) Report of confinement in Hahnemann Hospital, Philadelphia, from April 18, 1966, to July 29, 1966, during which confinement a hip fusion was effected which involved the taking of a three by one and one-half inch bone graft from the anterior and superior il-iac spine and a subtrochanteric osteotomy. The wound became infected and plaintiff testified that only a thin skin cover grew over the wound site which causes a burning sensation when he walks;
(d) X-ray studies on April 14, 1969, revealing progressive degenerative changes in the lumbar spine in comparison with a previous study;
(e) Report of Dr. Stephan Ohristides dated April 30, 1970, indicating a functional loss of 50% in the thoracolumbar spine, a 100% functional loss of the right hip, a decrease in plaintiff’s ability to stoop, bend and lift, although ambulation was considered fairly good by using the four-inch lift on the right shoe, and degenerative changes of the lumbar spine and pelvis.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_fedlaw
|
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 statute, and if so, whether the resolution of the issue by the court favored the appellant.
TELEPHONE ANSWERING SERVICE, INC., Defendant, Appellant, v. Arthur J. GOLDBERG, Secretary of the United States Department of Labor, Plaintiff, Appellee.
No. 5677.
United States Court of Appeals First Circuit.
May 9, 1961.
Robert E. Schneider, Jr., San Juan, P. R., for appellant.
Bessie Margolin, Asst. Sol., Washington, D. C., with whom Harold C. Ny-strom, Acting Sol., Robert E. Nagle, Atty., Washington, D. C., and Kenneth P. Montgomery, Regional Atty., United States Department of Labor, San Juan, P. R., were on the brief, for appellee.
Before MARIS, HARTIGAN and ALDRICH, Circuit Judges.
MARIS, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the District of Puerto Rico, entered upon the suit of the Secretary of Labor of the United States as plaintiff, enjoining the defendant, Telephone Answering Service, Inc., from violating section 15 (a) (2) of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A. § 215(a) (2). The following stipulated facts were found by the district court:
The defendant is engaged in a telephone answering service in Santurce, Puerto Rico. It employs five switchboard operators who answer telephone calls to its various subscribers during the times specified by each subscriber, take messages left by callers, give callers whatever information the subscriber has instructed be given and later report all calls and messages to the subscriber. This service is accomplished by means of extensions from the subscribers’ telephones, which by arrangement with the Porto Rico Telephone Company are connected with the two switchboards operated by the defendant.
Among the defendant’s 104 subscribers are three airlines, Delta, Caribbean Atlantic, and Iberia, each of which provides flights between Puerto Rico and overseas points. After the close of the airlines’ normal work day, the defendant’s switchboard operators answer all their calls giving information to individual inquirers and to travel bureaus on such matters as flight schedules, flight numbers, destinations of flights, times of departure and arrival and the number of seats available on the next day’s flights. All information received by the operators is later reported to the airlines. The defendant’s switchboard operators thus enable the three airlines to provide continuous tele- • phone answering service to the public •outside the normal work day.
The defendant’s subscribers also include commission merchahts, manufacturers’ representatives, wholesalers, insurance companies and law and accounting firms. Its services for them include the receiving of overseas cables, which are read to the defendant's operators over the telephone by the cable companies, as well as calls from airlines, steamship and trucking companies regarding incoming and outgoing shipments of merchandise. The defendant’s operators also receive overseas calls for its subscribers, and in the case of station-to-station calls the operators may talk with the exchange operator at the point of origin, although they do not communicate directly with the person originating the call.
In the representative month of August 1957, the defendant’s operators answered a total of 14 calls originating from outside Puerto Rico, which number represented 0.32% of all calls answered by them during that month. Of the total of 4,437 calls answered during that month by the defendant’s operators for its subscribers, 136 were calls to the airlines, 1,081 to commission merchants, manufacturers’ representatives and wholesalers; 117 to insurance companies, agents and adjusters; 239 to certified public accountants and the remaining calls were to miscellaneous subscribers, including lawyers, doctors, dentists, government agencies, engineers and publicity agencies.
The defendant conceded that the wages paid its switchboard operators were less than those required under section 6 of the Act, 29 U.S.C.A. § 206, but contended that the operators do not come within the scope of the Act in that they are not engaged in commerce within the meaning of the Act. The defendant further contended that, even if its operators are held to be engaged in commerce its services nonetheless come within the exemption provided for a retail 'or service establishment under section 13(a) (2) of the Act, 29 U.S.C.A. § 213(a) (2).
After a trial the district court found that the defendant’s switchboard operators are engaged in commerce within the meaning of the Act and that the retail or service establishment exemption does not apply to the defendant’s business. Accordingly, a judgment was entered enjoining violation of the wage and hour provisions of the Act. 183 F. Supp. 607. This appeal followed.
On appeal the defendant contends that the district court erred in finding (1) that its switchboard operators are engaged in commerce within the meaning of the Act and (2) that its business is not a retail or service establishment within the exception provision.
We consider first whether the district court erred in its conclusion that the defendant’s switchboard operators are employees engaged in commerce as that term is used in the Act. The Supreme Court has on many occasions observed that in considering this question there are no exact lines drawn nor precise formulas for the courts to follow and that in determining whether an employee is engaged in commerce within the meaning of the Act the activities of the individual employee and not the business of the employer is the controlling factor. Thus, in considering its scope in relation to a particular phase of industrial activity, the Act puts upon the courts the independent responsibility of applying the general terms of the statute to an infinite variety of complicated industrial situations. The test in determining whether an employee is engaged in commerce is not whether the employee’s activities affect or indirectly relate to interstate commerce but whether they are so directly and vitally related to the functioning of an instrumentality or facility of interstate commerce as to be, in practical effect, a part of it rather than an isolated local activity. An employee is entitled to the protection of the Act even though his duties are partly intrastate and, therefore, only partly interstate for Congress has made no distinction on the basis of volume of business.
The defendant argues that in finding that its switchboard operators were engaged in commerce in answering the calls for the three airlines the district court was wrong because the duties of the operators did not include other services rendered by the airlines. The defendant conceded, however, that its switchboard operators enabled the airlines to provide continuous telephone answering service to the public outside the normal work day. The fact that these duties were limited does not change their character. Surely no one could question that telephone operators working directly for these airlines are engaged in commerce In this regard the defendant’s operators perform a duty which is directly and vitally related to the functioning of these interstate carriers.
The defendant also urges that the district court erred in concluding that the work of the operators, in handling cables and overseas calls for commission merchants, manufacturers’ representatives, wholesalers and insurance firms, was of such a character that it also was directly concerned in the practical operation of interstate commerce. We think that the court was right in so holding. It is settled that a telephone operator, in performing duties involving calls to steamship companies relating to goods ordered in the interstate business of the employer is engaged in commerce. The few courts which have had occasion to deal with the classification of employees of telephone answering services have held that these employees are engaged in commerce within the purview of the Act. The fact that the amount of work performed by the operators which was within the purview of the Act was small in relation to the total amount of their work does not mean that it may be disregarded as de minimis. For the operators performed in full in the regular course of business all the work of this nature which the defendant had undertaken to perform for its subscribers. The fact that the services thus rendered formed only a small part of the defendant’s total business is not determinative. Nor is there substance to the defendant’s argument that the operators’ activities in taking the overseas calls and cables for subscribers other than the airlines are not in commerce because the operators do not answer the calls but merely relay them to the subscribers who themselves make the calls or answer the cables. We think that the situation is somewhat analagous to that of a warehouse in which the movement of goods in interstate commerce pauses when the goods are on their way to the recipients. So here, while the delivery of the message is temporarily interrupted by the defendant’s operator, her activity assures its ultimate delivery to the desired recipient. Thus commerce is directly facilitated.
We conclude that the district court did not err in finding the switchboard operators were engaged in commerce within the meaning of the Act.
We come, then, to the defendant’s second contention, namely, that even if the Act does apply to its switchboard operators as employees engaged in commerce, nonetheless, section 13(a) (2) of the Act as amended, 29 U.S.C.A. § 213(a) (2), which exempts certain retail or service establishments, is applicable to its business operations. Section 13 (a) (2), which is referred to by the Supreme Court in Arnold v. Ben Kanowsky, Inc., 1960, 361 U.S. 388, 391, 80 S.Ct. 453, 4 L.Ed.2d 393, as a “three-part definition” provides in effect that any employee employed by a “retail or service establishment” is to be exempt (1) if more than 50% of the establishment’s annual dollar volume of sales of goods or services is made within the State, (2) if 75% of its annual volume of sale of goods or services is not for resale and (3) if 75% of its annual volume of sales of goods or services is recognized in the particular industry as retail sales or services. In the Arnold case the Supreme Court cautioned that:
“We have held that these exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit. The three conditions of § 13(a) (2) are explicit prerequisites to exemption, not merely suggested guidelines for judicial determination of the employer’s status.” 361 U.S. 388, 392, 80 S.Ct. 453, 456.
With respect to the type of service establishment contemplated by section 13(a) (2) it was said in Fleming v. A. B. Kirschbaum Co., 3 Cir., 1941, 124 F.2d 567, 572-573, affirmed Kirschbaum v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638:
“ * * * it is fair to infer that the type of establishment meant is that which has the ordinary characteristics of a retail establishment except that it sells services instead of goods. In other words it is an establishment the principal activity of which is to furnish service to the consuming public. Typical retail establishments are grocery stores, drug stores, hardware stores and clothing shops. In Wood v. Central Sand & Gravel Co., D.C.W.D. Tenn.1940, 33 F.Supp. 40, 47, the court suggested as illustrations of what Congress meant by service establishments ‘barber shops, beauty parlors, shoe-shining parlors, clothes pressing clubs, laundries, automobile repair shops.’ We think these illustrations apt.”
Considering this problem in a different factual situation this court in Aetna Finance Company v. Mitchell, 1 Cir., 1957, 247 F.2d 190, 192, stated that “in a broad sense, every business might be said to perform a ‘service’, yet * * no one would seriously urge that all types of businesses were eligible to be exempt as ‘service establishments’ under § 13(a) (2).” We reviewed the restrictive interpretation given section 13 (a) (2) by the Administrator of the Wage and Hour Division and his observation that “one should be cautious in attempting to stretch the exemptions of section 13(a) (2) so as to cover cases which were not patently intended to be included or which could have been designated easily and accurately in a specific exemption.” The conclusions reached in the Aetna case were upheld by the Supreme Court in Mitchell v. Kentucky Finance Co., 1959, 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815.
In the present case the district court found that the evidence, while not clear, tended to support the defendant’s contentions in respect to the first two conditions and that finding is not controverted here. The court found, however, that the preponderance of the evidence did not support the defendant’s contention that it also qualified under the third requirement, namely, industry recognition of its services as retail services. The defendant argues that the district court erred in this regard because, as the defendant contends, it had established by a preponderance of un-contradicted expert testimony that it is recognized in the telephone answering industry as rendering a retail service, and that its classification by the municipality as a local business which is subject to municipal license tax, 21 L.P. R.A. § 622, is further evidence of its character.
To prove that its services are recognized as retail the defendant called three witnesses who testified that on the basis of their experience and opinion they would classify the defendant’s service business as retail. The plaintiff called one witness who testified that, on the basis of his opinion and the use of the term “retail” in an industrial classification, telephone answering services are within the category of services traditionally considered to be lacking in any retail concept. As we have said, the district court found that the preponderance of this evidence did not support the defendant’s contention. The court had the witnesses before it, observed their demeanor and evaluated their testimony. We cannot say that the conclusion to which it came was clearly erroneous. The case of Mahoney v. Mahoney, D.C. Tenn.1960, 186 F.Supp. 636, which was decided subsequently to the decision of the district court in the case before us, and which also involved a telephone answering service, is distinguishable on its facts. For in that case the only witness produced testified that a telephone answering service is recognized in the industry as being comparable to retail sales. Largely on the basis of that evidence the court felt compelled to conclude that the defendant’s business was an exempt service establishment. The evidence in the present case does not compel that conclusion.
The defendant further contends that the classification by the municipality of its business as local for license tax purposes is persuasive evidence that it should be considered one of the class of establishments which renders a retail service. The district court took this fact into consideration but did not find it so. We agree with the district court. It is well settled that an enterprise is not free from federal regulation simply because it may be subject to taxation by a State or its subdivisions. But a classification made by a State or its subdivisions for such purposes is not binding upon Congress and, indeed, in this instance cannot affect the classification which that body has itself made for wholly different purposes.
We are satisfied that the court did not err in holding that the defendant’s business is not entitled to exemption from the Act as a service establishment.
The judgment of the district court will be affirmed.
. The pertinent provisions of § 3 of the Fair Labor Standards Act are:
“(b) ‘Commerce’ means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof.” 29 U.S.C.A. § 203(b).
. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 524, 62 S.Ct. 1116, 86 L.Ed. 1638; Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 571-572, 63 S.Ct. 332, 87 L.Ed. 460; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. Lublin, McGaughy & Ass’n, 1959, 358 U.S. 207, 211-212, 79 S.Ct. 260, 3 L.Ed. 2d 243.
. Kirschbaum Co. v. Walling, 1942, 316 U.S. 517, 523, 62 S.Ct. 1116, 86 L.Ed. 1638.
. Compare McLeod v. Threlkeld, 1943, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538; 10 East 40th St. Co. v. Callus, 1945, 325 U.S. 578, 65 S.Ct. 1227, 89 L.Ed. 1806; Borden Co. v. Borella, 1945, 325 U.S. 679, 65 S.Ct. 1223, 89 L.Ed. 1865; Mitchell v. C. W. Vollmer & Co., 1955, 349 U.S. 427, 429, 75 S.Ct. 860, 99 L.Ed. 1196; Mitchell v. H. B. Zachry Co., 1960, 362 U.S. 310, 80 S.Ct. 739, 4 L.Ed.2d 753.
. Mabee v. White Plains Pub. Co., 1946, 327 U.S. 178, 181, 66 S.Ct. 511, 90 L.Ed. 607.
. Compare Airlines Transp. v. Tobin, 4 Cir., 1952, 198 F.2d 249.
. Durkin v. Joyce Agency, D.C.Ill.1953, 110 F.Supp. 918, 923, affirmed Mitchell v. Joyce Agency, 1955, 348 U.S. 945, 75 S.Ct. 436, 99 L.Ed. 740; Sucrs. de A. Mayol & Co. v. Mitchell, 1 Cir., 1960, 280 F.2d 477, 481, certiorari denied 364 U.S. 902, 81 S.Ct. 235, 5 L.Ed.2d 195.
. Schmidt v. Peoples Telephone Union of Maryville, Mo., 8 Cir., 1943, 138 F.2d 13; Tobin v. Lambert, D.C.Utah 1952, 22 Labor Cases par. 67, 129; Bloemer v. Ezell, D.C.Ky.1953, 112 F.Supp. 814; Mitchell v. Bearden, D.C.Tenn.1957, 32 Labor Cases par. 70, 538; Elsis v. Evans, 1958, 157 Cal.App.2d 399, 417, 321 P.2d 514, 526; Mahoney v. Mahoney, D.C.Tenn.1960, 186 F.Supp. 636, 637.
. Mabee v. White Plains Pub. Co., 1946, 327 U.S. 178, 181, 66 S.Ct. 436, 99 L.Ed. 740; Skidmore v. John J. Casale, Inc., 2 Cir., 1947, 160 F.2d 527, certiorari denied 331 U.S. 812, 67 S.Ct. 1205, 91 L.Ed. 1832; Crook v. Bryant, 4 Cir., 1959, 265 F.2d 541.
. Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 567-568, 63 S.Ct. 332, 87 L.Ed. 460; Sucrs. de A. Mayol & Co. v. Mitchell, 1 Cir., 1960, 280 F.2d 477, 480, certiorari denied 364 U.S. 902, 81 S.Ct. 235, 5 L.Ed.2d 195.
. “Exemptions
“Sec. 13. (a) The provisions of sections 6 and 7 shall not apply with respect to * * * (2) any employee employed by any retail or service establishment, more than 50 per centum of which establishment’s annual dollar volume of sales of goods or services is made within the State in which the establishment is located. A retail or service establishment shall mean an establishment 75 per centum of whose annual dollar volume of sale of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry; * * 29 U.S. O.A. § 213(a) (2).
. The Kirschbaum case involved section 13(a) (2) as it stood before its amendment by the Act of October 26, 1949, sec. 11, 63 Stat. 917. We think it is equally applicable to the meaning of “service establishment” in the section as amended, however.
. Kirschbaum v. Walling, 1942, 316 U.S. 517, 521, 62 S.Ct. 1116, 86 L.Ed. 1638; Overstreet v. North Shore Corp., 1943, 318 U.S. 125, 132, 63 S.Ct. 494, 87 L.Ed. 656.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_dueproc
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of the requirements of due process 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".
Anastasios KATRIS a/k/a Stash Katres, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 1356, Docket 77-4072.
United States Court of Appeals, Second Circuit.
Argued June 20, 1977.
Decided Sept. 7, 1977.
David E. Oltarsh, New York City, for petitioner.
Thomas H. Belote, Sp. Asst. U. S. Atty., Southern District of New York (Robert B. Fiske, Jr., U. S. Atty., Robert S. Groban, Jr., Sp. Asst. U. S. Atty., and Patrick H. Barth, Asst. U. S. Atty., Southern District of New York, New York City, of counsel), for respondent.
Before MULLIGAN, GURFEIN and VAN GRAAFEILAND, Circuit Judges.
PER CURIAM:
Petitioner Anastasios Katris seeks review pursuant to § 106(a) of the Immigration and Nationality Act (“the Act”), 8 U.S.C. § 1105a(a), of a final order of deportation entered by the Board of Immigration Appeals on January 28, 1977. The order dismissed petitioner’s appeal from an order and decision of the Immigration Judge which found Katris deportable under § 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1). The basis for the Immigration Judge’s decision was his finding that when Katris entered the United States in September, 1971, he did not have a valid entry document.
The main contention of Katris in this petition is that his arrest was illegal and that evidence thereafter obtained, including his statements at the deportation hearing, should be suppressed as “fruit of the poisonous tree.” Because we find this argument and petitioner’s other arguments to be without merit, we deny the petition.
I
The facts are not in dispute. Katris is a native and citizen of Greece. He entered the United States in September, 1971 at or near Buffalo, New York. He was brought across the border by an unidentified Greek in the company of two other Greeks who were also illegal aliens. Katris did not possess a valid immigrant visa or other entry document. After working near the border for a week, he moved to Illinois where he worked in a restaurant for his cousin. While in Illinois, he obtained a social security card and a driver’s license. Sometime during the summer of 1975, he traveled to New York City and again secured employment as a restaurant worker.
In October, 1975, Katris was arrested in the restaurant where he worked by officers of the Immigration and Naturalization Service. He was released from custody on a $1,000 bond. At this time he was served with an Order to Show Cause why he should not be deported, together with a notice of hearing on the charges. On the day of the hearing, Katris served the government with notice that he would seek to suppress all evidence obtained after his arrest concerning his status as an illegal alien. At the hearing, Katris’ counsel conceded the facts alleged in the Order to Show Cause but moved to suppress all the evidence, contending that the arrest of Katris was illegal because it was made without probable cause.
In support of the motion, Katris’ counsel offered to prove that INS officers came into the restaurant and asked the owner for his “green card.” After the owner showed his card, which identifies an alien as legally present in this country, they secured his permission to question his employees. The people “in the back” all had proper papers. Katris, who was in the front of the restaurant, did not. Although he was then employed at the restaurant, he stated that he was on vacation in New York and showed them his driver’s license from Illinois. According to the offer of proof, officers then seized petitioner by the arms, and said, “Come with us. You are under arrest. Down to immigration.”
The Immigration Judge denied the motion to suppress without taking any evidence. He found that Katris was a deport-able alien on the basis of his counsel’s concession that the factual allegations in the government’s Order to Show Cause were true. Counsel then requested that Katris be granted the privilege of voluntary departure under § 244(e) of the Act, 8 U.S.C. § 1254(e). After appellant, in response to inquiry by the Judge, substantiated the facts alleged in the Order to Show Cause, the Judge denied the request and ordered petitioner deported.
On November 14, 1975, Katris appealed this decision to the Board of Immigration Appeals contending that the Immigration Judge had based his determination upon legally inadmissible evidence and had erred in refusing to allow Katris to testify about the circumstances surrounding his arrest and in refusing to subpoena witnesses at the hearing. On January 28, 1977, the Board dismissed the appeal, and on February 14, 1977, the District Director of the New York Service District Office issued a Warrant of Deportation. On March 21, 1977, Katris filed this petition for review.
II
The petition centers on Katris’ claim that his apprehension was illegal and that the government should be prohibited from proceeding against him unless it can establish a new and independent basis for proving that he is an illegal alien. Appellant recognizes that this means he could melt into the general populace with a “guarantee of anonymity,” in the words of the government. Although the government does not concede that petitioner’s arrest was illegal, it argues that whether or not the arrest was lawful is irrelevant to the validity of the deportation proceeding.
During the hearing, Katris conceded the vital elements supporting deportation, that he was not a citizen of the United States, that he had entered illegally with the intention to remain indefinitely and that he did not possess the necessary entry documents. He was, moreover, without an alien registration card — a criminal offense for a lawfully admitted alien — when he was arrested. 8 U.S.C. § 1304(e).
Assuming arguendo that the arrest was unlawful, it is established in this circuit that the illegal arrest of an alien unlawfully in the United States does not void a subsequent deportation order based on the alien’s admission of his status at the hearing. Avila-Gallegos v. Immigration and Naturalization Service, 525 F.2d 666 (2d Cir. 1975), relying upon Justice Brandéis’ opinion in United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 44 S.Ct. 54, 68 L.Ed. 221 (1923). See La Franca v. Immigration and Naturalization Service, 413 F.2d 686, 689 (2d Cir. 1969); Vlissidis v. Anadell, 262 F.2d 398, 400 (7th Cir. 1959); Medeiros v. Brownell, 99 U.S.App.D.C. 396, 397, 240 F.2d 634, 635 (D.C.Cir. 1957); Guzman-Flores v. Immigration and Naturalization Service, 496 F.2d 1245, 1247-48 (7th Cir. 1974). This court has recently followed Avila-Gallegos in Alvarado-Santos v. Immigration and Naturalization Service, 556 F.2d 554 (2d Cir. 1977) (petition denied from the bench pursuant to § 0.23 of the Rules of the United States Court of Appeals for the Second Circuit).
Although Katris seeks “suppression,” there is no evidence to suppress. No statements were made, and no evidence was seized at or after the time of arrest. None was introduced at the deportation hearing. The issue before us is the narrower question whether an illegal arrest would bar any further proceedings against Katris which follow from that arrest. The rule set out in the precedents cited above clearly rejects this contention.
Ill
There is one other matter to consider. Counsel for Katris failed to cite Avila-Gallegos or to address the line of authority which it followed, although counsel’s law firm represented the alien in Avila-Gallegos and counsel personally represented the alien in Alvarado-Santos. In both cases the aliens challenged their initial apprehensions as Katris did here and sought to terminate the deportation proceedings after conceding illegal entry and deportability. In both cases, the petitions for review were denied. The only reasons advanced by counsel for his omissions were that these decisions were adverse to his position here and that he did not agree with them.
An attorney “never ceases to be an officer of the court when serving as a lawyer for a litigant.” United States v. Rodriguez, 556 F.2d 638, 642 (2d Cir. 1977). He may not file petitions for the sole purpose of delaying the deportation of his client. Acevedo v. Immigration and Naturalization Service, 538 F.2d 918, 921 (2d Cir. 1976). Nor may he mislead the court by deliberately failing to cite a controlling adverse decision in a case in which he, himself, participated.
Though we recognize that counsel has a duty to “represent his client zealously”, Canon EC 7-1, Code of Professional Responsibility, his conduct here was not within the proper bounds of zealous representation. We agree with the government therefore, that sanctions against the attorney are called for, as in Acevedo, supra. 28 U.S.C. § 1912; Fed.R.App.P. 38 (made applicable to this petition for review by Fed.R.App.P. 20).
The petition for review is denied. Costs are taxed against counsel for petitioner.
. Katris was arrested pursuant to Section 287(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a)(2), which provides in part:
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant— ... to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States.
. The order to Show Cause and Notice of Hearing charged that Katris was not a citizen of the United States but a citizen of Greece who had entered the United States without the necessary entry documents as required by Section 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20). It charged that Katris was therefore subject to deportation under Section 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1).
. Although his counsel intimated at the deportation hearing that Katris might have appeared to be a restaurant customer, counsel conceded at oral argument and in his brief that Katris “was at work” (p. 6) and “going about his business when the agents came into the restaurant” (p. 11).
. The Immigration Judge found that the offer of proof did not establish “an unlawful stop or unlawful interrogation” but only that “respondent was one of a number of aliens who were subjected to a voluntary interrogation in a restaurant after having spoken to several persons, all of whom proved to be aliens.” He concluded that it was not unreasonable for the investigators thereupon to inquire of Katris about his status. He concluded that, in any event, Katris’ admissions during the course of the deportation hearing were sufficient to support the finding of deportability as an “act of free will to purge the primary taint even if it had existed.”
. The Immigration Judge denied the request for voluntary departure because he found Katris’ testimony concerning his surreptitious entry into this country, especially his inability to identify those persons who assisted him, to be contrived and false. He found petitioner’s manner of entry and his immediate employment by a relative to be a “willful and deliberate” violation of the immigration laws. He concluded that to allow Katris voluntarily to depart and to give him three months to remain in this country in order “to get some money to take along” would be to condone his previous improper conduct.
. The “notice” served on the government and presented at the hearing requested the issuance of subpoenas on behalf of Katris.
. At the “conclusion” of his brief, Katris requests that he be granted the privilege of voluntary departure. He gives no reason why the decision of the Attorney General, who has wide discretion in these matters, see, e. g., Strantzalis v. Immigration and Naturalization Service, 465 F.2d 1016, 1017 (3d Cir. 1972), should be disturbed. We find no merit in the request and no abuse of discretion by the Attorney General.
. Avila-Gallegos, supra, was decided November 7, 1975. Thereafter, counsel’s firm continued to file motions in deportation proceedings alleging that allegedly unlawful arrests voided the proceedings. See, e. g., In the Matter of Juan Urla-Mayen, No. [ AXXXXXXXX ], Jan. 23, 1976; In the Matter of Tsai Fu Chen, No. [ AXXXXXXXX ], Dec. 15, 1975. The filing of petitions such as these delay deportation of the petitioners because of the automatic stay of deportation pending review granted by 8 U.S.C. § 1105a(a)(3).
Question: Did the interpretation of the requirements of due process by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_stpolicy
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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".
POLAR STEAMSHIP CORPORATION v. INLAND OVERSEAS STEAMSHIP CORPORATION et al.
No. 5052.
Circuit Court of Appeals, Fourth Circuit.
June 7, 1943.
Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.
Lewis F. Glaser, of New York City, (R. M. Hughes, Jr., of Norfolk, Va., and Aaron Frank and Edgar F. Sachs, both of New York City, on brief), for appellant and cross-appellee.
George M. Lanning, of Norfolk, Va., and Joseph K. Inness, of New York City, (Baird, White & Lanning, of Norfolk, Va., on brief), for appellee and cross-appellant.
Dudley C. Smith (John W. Oast, Jr., of Norfolk, Va., on the brief), for appellee Swiss Industries, Inc.
PARKER, Circuit Judge;
These are cross appeals in a suit in admiralty brought by the Inland Overseas Steamship Corporation against the Polar Steamship Corporation to recover damages for breach of a bareboat charter under which the steamship “Hampton Roads” was leased by Polar to Inland. Swiss Industries, Inc., intervened claiming damages for breach of a contract which it had made with Inland for transportation of toluol on the vessel. The District Judge found that the charter party had been breached by Polar and referred the cause to J. Hume Taylor, Esq., as Special Commissioner to ascertain the damages. The Special Commissioner assessed the damages of Inland, apart from the liability to Swiss Industries, at $34,267.50 and the damages of Swiss Industries at $17,869.-39. The District Court entered a decree against Polar for these amounts, and Polar has appealed. Inland has appealed on the ground that the damages awarded it are inadequate. Three questions are raised by the appeals: (1) whether Polar was guilty of breaching the charter party; (2) whether the damages awarded Inland were assessed on the proper basis; and (3) whether damages in favor of Swiss Industries were assessed on the proper basis and were properly awarded against Polar. We think that all of these questions should be answered in the affirmative.
The Question of Breach.
The Hampton Roads was a “Lake Type” steamer, constructed during the last World War. She had a capacity of 4,165 dead weight tons and was valued at $175,000. She was owned by Polar and prior to February 24, 1940, was at Baltimore, Md., having been chartered to the Brownsville-New York Line and by it subchartered to Inland for the purpose of carrying a load of scrap iron from Norfolk, Va. to Italy for Ente Distribuzione Rottami, represented in the United States by Shipping Enterprises Corporation. Libels had been filed against her at Baltimore for repair bills, Shipping Enterprises had libelled her for breach of contract and Inland also was threatening to file a libel against her for breach. Under these circumstances an agreement was worked out by which Polar was to release the vessel from existing liens and charters and was to recharter her to Inland; and Inland was to use her to transport the scrap iron for Shipping Enterprises. Inland was without funds but was owned by B. L. Stafford, Sr. and B. L. Stafford, Jr., who were also without means but had had experience in operating vessels and had procured for shipment the cargo of scrap iron from Shiping Industries.
The charter party, which ran for one year, provided for a monthly hire of $5,000 to be paid semi-monthly in advance and for an equal division between the owner and the charterer of the proceeds of the operation of the vessel, after the expenses of operation had been paid. It also provided for the deposit of freight moneys in a joint account and for their use in operating the vessel, the provision with regard thereto being as follows:
“32. The Charterer hereby assigns to the Owner all freight to be paid on or payable under any and all contracts which the Charterer may make during the term hereof; all such charter moneys shall be paid to the Owner and placed by the Owner in a special account subject to withdrawal by two persons, one to be designated from time to time by the Owner and the other by the Charterer; all moneys paid into such special account shall be disbursed only for the following purposes:
“(a) To the payment to the Owner charter hire at the rate herein prescribed in advance for three months, it being intended that the Owner shall at all times while this agreement is in effect be prepaid the amount of said charter hire for three months.
“(b) To the payment of the crew’s wages, port charges, stevedoring, fuel expenses and all other expenses of the Charterer incidental to the operation of the vessel.
“(c) To the payment of all moneys payable by the Charterer hereunder, including insurance, which at all times shall be prepaid at least three months in advance.
“(d) To the payment of the salaries of officers of the Charterer for persons other than officers or members of the crew, which salaries shall not exceed Six Hundred (600.) Dollars a month.
“(e) Any balance remaining in said special account shall be divided equally between the Owner and the Charterer and the moneys payable to the Owner pursuant hereto shall constitute additional charter hire hereunder.
There shall at all times be maintained in said special account a minimum balance of Fifteen Thousand (15,000) Dollars to cover crew wages, port charges and the expenses of operating the vessel.”
The charter party was executed by Inland on February 26, 1940, and was delivered to one Bernstein, an attorney, in escrow, to be held by him until the liens against the vessel should be lifted and the instrument signed by Polar. An agreement was signed in behalf of Polar at the same time that, upon execution of the charter party, it would agree to waive the requirement of crew wages and charter hire for one round trip to Europe. On March 1, the charter party was executed by Polar and at the same time a letter was signed and delivered to Inland containing the following provision:
“We hand you herewith Counterpart No. 2 of the Charter Party between you and the undersigned dated February 24, 1940 respecting the steamship Hampton Roads, and we hereby tender such steamship to you pursuant to said Charter Party.
“The Steamship is in Baltimore and your Mr. Scott is presently engaged in making an inventory thereof. We are prepared to deliver said steamship to you at once at Baltimore, and' we await your advice as to the time that you will accept delivery, which must be before March 5, 1940.
“As heretofore agreed with you, in the event that you exhibit to us signed contracts satisfactory to us for freight or cargoes to be carried on this steamship, made between you and persons satisfactory to us, which will insure to us the deposit in the special account referred to in paragraph 32 of the Charter Party of at least $30,000. prior to the departure of the steamship upon a voyage, we will for the period of such voyage waive the payment of three months’ charter hire in advance, and the maintenance at all times in the special account of the sum of $15,000. as required by paragraphs 8 and 32 of the Charter Party, such waiver by us, of course, to be conditioned upon the performance by you of each and every other provision of the Charter Party.”
The evidence leaves no doubt but that Inland procured and exhibited to Polar’s officers contracts which would have insured the deposit of exceeding $30,000 in the special account as provided for in this letter. A letter was obtained from Shipping Enterprises agreeing to have cargo ready for shipment at Norfolk, to limit the cargo to 2,400 tons and to pay freight in advance to the amount of $23,000 to $24,000. A contract was obtained from Swiss Industries for the transportation to Italy of 400 tons of toluol and for the payment of $14,000 freight thereon in advance. There is some conflict in the testimony as to the notice given Polar with regard to this toluol contract, but we agree with the court below that ample notice was given. The evidence is clear that the contract was or should have been entirely satisfactory to Polar and that express approval was not given merely because Polar was attempting to rid itself of the obligations of its contract.
No contention was made as to the sufficiency of the Shipping Enterprises contract covering the scrap iron. The toluol contract on March 4th was shown to Polar’s representative, who stated that he wished a letter from Swiss Industries giving the particulars of the shipment, showing that the cargo would be ready and when the freight money would be paid and stating that the latter was to be assigned to the special account. Inland promptly obtained such a letter and furnished copy thereof to Polar. When the agent of Inland called the agent of Polar over the telephone on March 5th to tell him that the letter had been obtained, the latter waved the matter aside and, as a condition of the delivery of the vessel, made additional demands, which were not authorized by the agreement of the parties and with which everyone understood that Inland would not be able to comply, demanding that Inland pay $2,500 charter hire in advance and put up around $15,000 to pay insurance premiums. At 2:30 on that day he dispatched a letter to Inland stating that, unless the demands were complied with by 5 o’clock, he would declare the charter party breached. Inland replied to this by insisting upon delivery of the vessel under the charter party and the terms of the waiver agreement, but Polar refused to deliver it and proceeded to load the cargo of scrap iron at Norfolk under a contract which it had made with Shipping Enterprises on February 29th.
Polar contends that it was within its rights in demanding that a half month’s charter hire and the premiums for insurance be paid in advance of the delivery of the vessel; but we think, as did the court below, that both matters were covered by the waiver agreement. Paragraph 32 of the charter party required that from the special fund charter hire for three months and insurance for at least three months be paid in advance; but the letter of March 1st waived for the first voyage the payment in advance of the three months’ charter hire. It waived also the maintenance of $15,000 minimum in the special fund, and this made possible the payment of insurance premiums therefrom if as much as $30,000 was deposited. After the conditions of the letter were complied with, Polar certainly, could not insist upon prepayment of charter hire for a part of the three months’ period. So far as insurance is concerned, paragraph 32 authorized the payment of this from the special fund; and the special fund was ample to meet this charge when the freights which the waiver agreement contemplated were paid into it. Nothing in the charter or elsewhere required that insurance be paid for in advance of the delivery of the vessel. The parties understood perfectly well that Inland was not able to make these payments except from freights, and the purpose of the waiver agreement was that the first voyage should be financed from freights received in connection with that voyage. Inland complied with the agreement when it procured contracts from which freights in excess of $30,000 would be paid into the special fund; and Polar may not escape the obligations assumed by it in an effort to rid itself of the embarrassing litigation with which it was confronted, by placing upon its agreement a strained construction which could have occurred to no one at the time, and which, we think, is violative of the letter as well as the spirit of that agreement.
Other contentions of Polar, to the effect that Inland had not complied with the obligation to man, fuel and supply the vessel, had not submitted to Polar the form of a bill of lading and had not accepted and paid for the stores on the vessel, are sufficiently answered in the memorandum of the court below and are so manifestly frivolous as not to justify further discussion here. In connection with the acceptance of stores, it is significant that Polar refused to allow the agent of Inland to take an inventory thereof and ordered him off the vessel. This occurred some two or three days prior to the action taken by Polar on March 5th, and the attending circumstances which it is unnecessary to elaborate, show very clearly that even at that time the officers of Polar had no intention of delivering the vessel to Inland under the charter.
Inland’s Damages.
Apart from the damages arising from the breach of the contract of transportation with Swiss Industries, which we shall deal with hereafter, the court below awarded Inland $34,267.50 damages against Polar for breach of the charter party. Of this amount, $7,719.14 represented one-half the profit which the vessel would have earned on her first voyage by transporting the cargo of scrap iron and toluol for which Inland had arranged and by bringing a cargo of iron ore from Spain as she returned, and $26,546.36 represented one-half of what the vessel would have earned for the remainder of the year of the charter period if she had been placed on time charter in the West Indian trade. Inland claims that the award is too low; that the vessel could have earned $999,421.80 during the year in carrying cargo to European ports; and that it is entitled to an award of $499,710.-90, or one-half of the foregoing amount. Polar claims that no damages at all other than nominal damages should have been awarded; that the proper measure of damages was the difference between the charter hire provided in the charter party and the hire necessary to secure another vessel; and that damages based upon expected profits of the vessel were too uncertain, remote and speculative to constitute the basis of an award.
The evidence shows that the vessel made one voyage to Italy, carrying the cargo of scrap iron of Shipping Enterprises which Inland had secured, and returned in ballast; that she was then leased under time charter in the West Indian trade from May to September at a monthly hire of $5.00 per deadweight ton; that she was later used by Polar in the coastwise trade; and that the profits which she earned during the year amounted to only $47,260.79. There was evidence, however, which amply justified the finding that, if the vessel had carried the cargo of scrap iron and toluol for which Inland had arranged, and had brought back a cargo of ore, which she could easily have secured, she would have realized a profit on the first voyage of $15, 438.28. There was likewise ample evidence that the vessel could have been placed on time charter in the West Indian trade for the remainder of the charter period; that the average time charter rate for the period in this trade was $3.70 per deadweight ton; and that on this basis the vessel, after the voyage to Italy, would have earned profits of $63,961.40. Inland produced evidence to the effect that it had an offer from Swiss of a second cargo of toluol for Italy; but no binding contract was entered into other than Swiss Industries agreed to pay $1,000 down. It appears, however, that the price of toluol advanced rapidly and that on account of this advance Swiss Industries did not even ship all of the 400 tons which it had contracted to ship in the first cargo. Whether that company would have shipped a cargo in May on the return of the Hampton Roads from her first voyage is, as the Special Commissioner found, entirely speculative.
Italy entered the war on June 10, 1940, and the only European countries with which it was practical for an American vessel to trade alter that date were Spain and Portugal. There was much evidence pro and con as to whether the Hampton Roads could profitably have engaged in that trade. There was evidence of an abundance of cargo at American ports for export at high rates to European ports; but American vessels were forbidden by law to go to ports of belligerent countries, and there was evidence that, by reason of the favored nation clause of Portugese treaties, American vessels were at a disadvantage in trading with that country. The Hampton Roads was a small vessel unsuited for European trade and not in position to compete, for certain types of cargoes carried by the regular lines. More convincing than the opinion evidence offered is the fact that a firm of brokers of high standing decided that the best that could be done with her after her first voyage was to place her on time charter in the West Indian trade and that her owner consented to this arrangement. If profits running into astronomical figures were readily available in the European trade, as Inland contends, it is hardly probable that reputable brokers would have counseled the West Indian charter or that her owner would have consented to it. At all events, the evidence on the point was highly conflicting and the finding of the Special Commissioner that profits which might have been earned in European' trade should not be considered was supported by the testimony of men of high standing and wide experience. That finding was approved by the District Court; and we certainly cannot say that it was clearly wrong. We think, too, as did the Special Commissioner and the Judge below, that future profits to be derived from engaging in the European trade, where there was no established business and no contracts upon which such profits could be based, were too uncertain, remote and speculative to furnish the basis of an award. The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937; Ellerson v. Grove, 4 Cir., 44 F.2d 493; De Ford v. Maryland Steel Co., 4 Cir., 113 F. 72; Blanchard v. Ely, 21 Wend.,.N.Y., 342, 34 Am.Dec. 250; The Tribune, 24 Fed.Cas. page 191, No. 14,171, 3 Sumn 144.
This does not apply, however, to the profits which Inland would have derived from the first voyage. Here Inland had contracts covering the cargo for the outbound voyage, of which Polar was advised. The breach of contract resulted in the frustration of the venture and the loss of profits capable of ready and accurate ad-measurement. The rule applies that net profits or earnings which would have been made but for the breach are allowable where they are susceptible of accurate estimation and the evidence is conclusive. 24 R.C.L. 1123; note 53 L.R.A. 105. The same is true of profits which could have been realized from placing the vessel on time charter in the West Indian trade. The damages here were not uncertain, remote or speculative. Such contracts were available, the rate of return was readily ascertainable and this profit could have been realized by Inland with comparative certainty if the charter had not been breached.
The distinction between the allowance as damages for breach of contract of profits which are reasonably certain and those which are uncertain and speculative is well settled. It is thus stated by the Supreme Court in Howard v. Stillwell & Bierce Mfg. Co., 139 U.S. 199, 205, 206, 11 S.Ct. 500, 503, 35 L.Ed. 147:
“The authorities both in the United States and England are agreed that, as a general rule, subject to certain well-established qualifications, the anticipated profits prevented by the breach of a contract are not recoverable in the' way of damages for such breach; but in the application of this principle the same uniformity in the decisions does not exist. In some cases of almost exact analogy in the facts, the adjudications of the courts in the different states are directly opposite. The grounds upon which the general rule of excluding profits, in estimating damages, rests, are (1) that in the greater number of cases such expected profits are too dependent upon numerous, uncertain, and changing contingencies to constitute a definite and trustworthy measure of actual damages; (2) because such loss of profits is ordinarily remote, and not, as a matter of course, the direct and immediate result of the non-fulfillment of the contract; (3) and because most frequently the engagement to pay such loss of profits, in case of default in the performance, is not a part of the contract itself, nor can it be implied from its nature and terms. Sedgwick on Damages, 7th Ed. [vol. 1], p. 108; The Schooner Lively, [15 Fed.Cas. page 631, No. 8,-403], 1 Gall. 315, 325, per Mr. Justice Story; The Anne Maria, 2 Wheat. 327 [4 L.Ed. 252] ; The Amiable Nancy, 3 Wheat. 546 [4 L.Ed. 456] ; La Amistad de Rues, 5 Wheat. 385 [5 L.Ed. 115]; Smith v. Condry, 1 How. 28 [11 L.Ed. 35]; Parish v. United States, 100 U.S. 500, 507 [25 L.Ed. 763] ; Bulkley v. United States, 19 Wall. 37 [22 L.Ed. 62], But it is equally well settled that the profits which would have been realized had the contract been performed, and which have been prevented by its breach, are included in the damages to be recovered in every case where such profits are not open to the objection of uncertainty or of remoteness, or where from the express or implied terms of the contract itself, or the special circumstances under which it was made, it may be reasonably presumed that they were within the intent and mutual understanding of both parties at the time it was entered into. United States v. Behan, 110 U.S. 338, 345, 346, 347, 4 S.Ct. 81 [28 L.Ed. 168]; Western Union Tel. Co. v. Hall, 124 U.S. 444, 454, 456, 8 S.Ct. 577 [31 L.Ed. 479], Philadelphia, W. & B. R. Co. v. Howard, 13 How. 307 [14 L.Ed. 157].”
See, also, Story Parchment Co. v. Patterson, 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; H. Koehler & Co. v. York Mfg. Co., 2 Cir., 193 F. 981; Carroll-Porter Boiler & Tank Co. v. Columbus Mach. Co., 3 Cir., 55 F. 451; White v. Miller, 71 N.Y. 118, 133, 27 Am.Rep. 13. In the case last cited the distinction is stated as follows : “Gains prevented, as well as losses sustained, may be recovered as damages for a breach of contract, where they can be rendered reasonably certain by evidence, and have naturally resulted from the breach. * * * But mere contingent or speculative gains or losses, with respect to which no means exist of ascertaining with any certainty whether they would have resulted or not, are rejected, and the jury will not be allowed to consider them.” And in Story Parchment Co. v. Patterson, supra, 282 U, S. 555, 51 S.Ct. 250, 75 L.Ed. 544], a tort case arising under the Sherman Act, language is used which is applicable, we think, to damages arising from such a breach of contract as is here involved. The court said: “Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result' be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise.”
The rule is well stated in the American Law Institute’s Restatement of the Law of Contracts, sec. 331, as follows:
“(1) Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.
“(2) Where the evidence does not afford a sufficient basis for a direct estimation of profits, but the breach is one that prevents the use and operation of property from which profits would have been made, damages may be measured by the rental value of the property or by interest on the value of the property.”
With respect to the inclusion in the award of the amount that might have been earned by placing the vessel on time charter after the first voyage, the rule is thus well stated by Dean McCormick in his work on Damages at p. 106: “When a claim for loss of profits is disapproved as too uncertain, the court will nevertheless allow, as an alternative basis of recovery, one of these ‘standardized’ measures of recovery. This is illustrated in cases where the defendant has contracted to furnish or repair machinery necessary for the operation of the plaintiff’s mill or plant, when the plaintiff may recover the value of the use of the machine during a period of delay, or where to' the defendant’s knowledge the machine was not replaceable elsewhere, in which case the plaintiff may even recover the loss of rental value of the plant itself, or interest on the investment during the ‘shutdown’ ”.
Directly in point with respect to the inclusion of what might have been earned on time charter is Gans S. S. Line v. Wilhelmsen, 2 Cir., 275 F. 254, 265, where Judge Hough, speaking for the court, said: “The measure of damages under the abnormal condition of affairs during the great war is very perplexing. All parties concede that the Gans Line could not secure a steamer like the Themis. We do not think that it was its duty to secure two steamers aggregating her dead weight tonnage. To estimate the profits it would have earned had it received and used the steamer involves speculation to a degree, which as the Commissioner and the court below found, makes such a measure entirely unsatisfactory. It seems to us that the fair measure of damages is what the Gans Line could have got for the steamer in the market had she been delivered to it in time.”
We have considered Inland’s contention that European time charter rates rather than those prevailing in the West Indian trade should have been taken as the basis of the award. The evidence, however, is to the effect that the vessel was suitable for the West Indian and not for the European trade; and there is no evidence that she could have been placed on time charter in the latter. Furthermore, the expenses of operation in the European trade, due to the necessity of paying war bonuses to the crew and higher insurance rates, were greater than in the West Indian trade, and it is not certain that the profits from such a chartering would have been greater. The evidence shows that some European charters were at rates as low as $5.00 per deadweight ton; and, when expenses are allowed at the rate shown by Inland’s figures for operation in the European trade, the profits on a charter yielding $5.00 would not exceed the profits allowed by the Special Commissioner. We have considered, 'also, the contention that $5.00 per deadweight ton should have been taken as the West Indian rate in view of the fact that the vessel was placed on time charter from May to September at this rate. The answer, as the Special Commissioner pointed out, is that charter rates in that trade declined after September and that only the average rate over the entire period covered by the charter properly measures the damages.
Polar contends that, not profits which might have been earned, but only the difference between the charter hire and the hire necessary to secure another vessel are recoverable. The rule contended for does not apply, however, where another vessel is not obtainable. Gans S. S. Line v. Wilhelmsen, supra, 2 Cir., 275 F. 254; The Ada D. C., 239 F. 363, 364, reversed on other grounds, 2 Cir., 250 F. 194. Here no other vessel was obtainable by Inland. The evidence is that efforts were made to obtain one but without success. And the fact that Inland’s inability to obtain one may have been due to its financial condition does not affect the matter. Polar knew of this condition and drew the charter and the waiver agreement to make provision for it. The breach of the charter thus resulted in special damages because of the peculiar circumstances of the case of which Polar had full knowledge; and Polar may not escape responsibility for the damage which it must have known would result from the breach. The case is not unlike that of breach of contract to lend money, where, in ordinary cases, the measure of damages is the additional cost of obtaining a loan from another. If, however, the lender knows of circumstances which will render it impossible for the borrower to obtain such loan and knows that he will suffer special damage as a result of the breach of the contract, such special damage is recoverable. 15 Am.Jur. 466.
Damages of Swiss Industries.
The court below awarded damages against Polar in the sum of %17,&69.29 in favor of Swiss Industries on account of breach of the contract between Swiss Industries and Inland to transport the 400 tons of toluol. The facts are that Swiss Industries had a firm contract with the Swiss government for the sale of the toluol and held an irrevocable letter of credit covering the purchase price. It entered into a binding contract with Inland to transport it on the Hampton Roads, and had arranged with the producers to deliver it aboard the vessel. The damages awarded represented the difference between the price it would have been required to pay for the tuluol and the price it would have received from the Swiss government, less freight, diminished by the profit realized from a delivery subsequently made under the contract. The evidence shows that Swiss Industries endeavored to obtain another vessel on which to make the shipment, but without success until the price of toluol had advanced to such an extent as almost to wipe out its profit. Upon failure to make the shipment on the Hampton Roads the offers held by Swiss Industries were cancelled, and the shipment subsequently made was procured by purchases made at a higher price.
Polar contends that Swiss Industries is not entitled to recover damages because it did not have title to the toluol which it had contracted to ship. The evidence shows, however, that it had a firm contract for the sale of the toluol and firm offers which it would have accepted and which would have resulted in the purchase and delivery of the toluol aboard the vessel if the contract of carriage had not been breached. The damage arising from the breach of the contract of carriage therefore, was not a mere matter of speculation. The contract for the sale of the toluol was made in the regular course of trade and in accordance with accepted business practice. It was frustrated when the contract of carriage was breached, for no other vessel was then obtainable by which shipment could be made. Its frustration resulted in the loss of definite profits; and we see no reason why these should not be awarded as damages.
The handling of toluol presents a situation the reverse of that involved in the handling of ordinary commodities. The contract of sale is made in advance of purchase, for the reason that toluol is not a commodity that can be stored and held for shipment. In an ordinary case, damages for failure to transport are fixed with sufficient certainty when commodities have been purchased, although not sold, where the evidence shows their market value at the time and place they should have been delivered ; and we think they are fixed with sufficient certainty where there is a firm contract for sale at destination and the evidence shows that the commodity to be shipped is obtainable at a certain market price at the point of origin. Of course, if there were no contract at either end, the damages would be speculative. Cf. Grim-wood v. Munson S. S. Line, 2 Cir., 273 F. 166.
The profits here involved were recoverable because both Inland and Polar were advised of the terms of the contract between Swiss Industries and the Swiss government and must have known that special damages would necessarily result from breach of the contract of carriage. There is no evidence, moreover, that the offer of the Swiss government did not correctly mirror the market price of the toluol at the time and place of delivery; and we think that the offers held by Swiss Industries were shown to accord with the market price at the time and place of shipment. Lost profits, therefore, correspond to the rule ordinarily applicable for breach of a contract of carriage, i.e. damages are assessed at the difference between market value at points of shipment and destination, less freight. The Oregon, 6 Cir., 55 F. 666; 13 C.J.S., Carriers, § 38, p. 82.
It is argued that Swiss Industries could have reduced its damages by buying and storing the toluol until transportation was obtainable; but toluol is not a substance that can be thus stored. For this reason, Swiss Industries was compelled to make immediate sale of 100 tons which were delivered to it for transportation on the Hampton Roads and purchase at a higher price when a vessel was obtained sometime later. The court below gave credit on the award of damages for the profits realized on this subsequent transaction. There can be no question, as the Special Commissioner and the Court below held, but that Swiss Industries did everything in its power to minimize its damages.
We are not impressed with the argument that there is no liability on the part of Polar for the damages suffered by Swiss Industries because there was no privity of contract between the two. The contract was between Swiss Industries and Inland, and Polar was fully advised of it. Polar’s wrongful breach of the charter party caused the breach by Inland; and a question arises as to whether Polar would not be directly liable in tort to Swiss Industries for wrongfully causing this breach.. See A. L. I. Restatement of Torts, § 766; note 84 A.L.R. 44. We need not go into this, however, since Inland is liable to Swiss Industries for the breach and Polar is liable to Inland for any damages which Inland may be required to pay on account thereof. It avoids circuity of action and accords with the modern concept of orderly procedure to allow the whole matter to be determined in one suit and decree to be entered directly against Polar for the damages suffered by Swiss Industries for which Polar is ultimately responsible. See Rule 14(a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. We think that what was done here is expressly authorized by Admiralty Rule 56, 28 U.S. C.A. following section 723. Loma Fruit Co. v. International Nav. Co., Ltd., 2 Cir. 11 F.2d 124.
There was no error and the decree appealed from will be affirmed.
Affirmed.
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_appfiduc
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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 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.
Marion BELL, as Administratrix of the Estate of Thomas L. Bell, and Marion Bell, Plaintiff-Appellee, Cross-Appellant, v. A-LEET LEASING CORPORATION, Citibank, N.A., Mercedes-Benz Manhattan, Inc., and Avery Agency, Inc., Defendants, A-Leet Leasing Corporation and Citibank, N.A., Defendants-Appellants, A-Leet Leasing Corporation, Defendant-Appellant, Cross-Appellee, Mercedes-Benz Manhattan, Inc., Defendant-Appellee.
Nos. 33, 265, Dockets 88-7284, 88-7296.
United States Court of Appeals, Second Circuit.
Argued Sept. 16, 1988.
Decided Dec. 15, 1988.
Bradley B. Davis, New York City, for plaintiff-appellee, cross-appellant.
Wendy E. Wells, New York City, for defendants-appellants.
Cushing 0. Condon, New York City (William P. Ford, John F. Boland, Ford Marrin Esposito Witmeyer, New York City, of counsel), for defendant-appellee.
Before KAUFMAN and MAHONEY, Circuit Judges, and McAYOY, District Judge.
The Honorable Thomas J. McAvoy of the United States District Court for the Northern District of New York, sitting by designation.
PER CURIAM:
Defendant-appellant and cross-appellee A-Leet Leasing Corporation (“A-Leet”), defendant-appellant Citibank, N.A. (“Citibank”), and plaintiff-appellee, cross-appellant Marion Bell (“Bell”) appeal from a judgment entered upon a jury verdict in the United States District Court for the Southern District of New York, Gerard L. Goet-tel, Judge, for Bell against A-Leet and Citibank in the amount of $17,229, as remitted, plus interest and costs. On appeal, A-Leet and Citibank seek reversal of the judgment, or in the alternative a new trial. Bell seeks additer to the judgment and remand for trial on additional liability against A-Leet and Mercedes-Benz Manhattan, Inc. (“Mercedes-Benz”). We affirm the judgment of the district court.
In the spring of 1981, the late Dr. Thomas L. Bell desired to purchase a Mercedes-Benz automobile from Mercedes-Benz, a dealership in New York City. Because of a poor credit rating and a number of outstanding judgments against him, Dr. Bell could only lease the car. The financial transaction was as follows: Mercedes-Benz sold the car to A-Leet for $42,900. A-Leet paid Mercedes-Benz with a $15,000 down payment received from Dr. Bell and a $27,900 loan borrowed from Citibank. Dr. Bell’s obligation, in addition to the $15,000 down payment, was to make an initial monthly payment of $3,027.15 to A-Leet and forty-five monthly payments of $1,009.05 to Citibank until Citibank’s loan to A-Leet was retired, after which A-Leet was to receive the monthly payments.
After a number of monthly payments were received late and some were paid with checks that were later returned, A-Leet repossessed the car on January 3, 1983. Dr. Bell promptly commenced this action for damages. As finally amended, the complaint named as defendants A-Leet, Citibank, Mercedes-Benz and Avery Agency, Inc. (“Avery”) (a defendant below, the re-possessor of the vehicle). In October, 1983, Dr. Bell died and his wife Marion Bell was substituted as plaintiff (both as admin-istratrix and individually, since she was a cosigner of the lease). Bell alleged inadequate credit disclosure in violation of 15 U.S.C. § 1601 et seq. (1982), wrongful repossession in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (1982), overcharge for the car, usurious interest in violation of state law, failure to account for cash payments, and violation of N.Y.Gen.Oblig.Law § 5-702 (McKinney 1978 & Supp.1988) by failure to use plain language in the lease documents.
At the close of plaintiff’s case, the district court dismissed all claims against Mercedes-Benz except a claim that Mercedes-Benz received, but did not account for, a $2,000 cash payment from Dr. Bell. This claim was decided in favor of Mercedes-Benz by the jury. Thereafter, the district court dismissed all claims against Avery and directed judgment in favor of Mercedes-Benz on all claims. The district court refused to dismiss plaintiff’s claims against A-Leet or Citibank at the conclusion of plaintiff’s direct case, and also denied these defendants’ motion for a directed verdict at the close of trial. The jury found A-Leet and Citibank liable for breach of contract, and rendered a verdict of $25,000 in damages.
Defendants A-Leet and Citibank moved for a new trial on the breach of contract claim, or alternatively, solely on the issue of damages. The district court denied the motion for a new trial, subject to plaintiffs’ acceptance of a remittitur reducing the verdict to $17,229. The district court reasoned that measuring plaintiffs damages as the fair market value of the car at the time of repossession, as the jury was instructed to do, damages could only amount to $16,229. This figure was computed by subtracting the present value of Bell’s future obligations for payments on the car (including the purchase option price), $26,671, from its retail value, $42,900, and adding to the resulting figure, $16,229, $1,000 representing the Bells’ loss of use of the car. The jury’s verdict of $25,000 in damages was almost fifty percent greater than the proper measure of damages, and was thus deemed excessive.
The only significant issue on appeal, out of the myriad raised by the parties, is whether the jury’s finding is supported by the evidence presented at trial. Early in the litigation, the attorney for A-Leet and Citibank submitted answers to interrogatories that erroneously stated the number of monthly lease payments paid by Dr. Bell. The interrogatory answers mistakenly reflected checks sent by Dr. Bell that were dishonored by the bank on which they were drawn. Although successor counsel for A-Leet and Citibank detected the errors prior to trial, no steps were taken to correct them. The district court disagreed with the jury verdict, but concluded that the verdict was not “so contrary to the weight of the evidence as to require a new trial.”
We conclude that the district court did not err in denying A-Leet and Citibank’s motions for a new trial. It is clear that answers to interrogatories may be utilized as admissions. Gadaleta v. Nederlandsch-Amerekaansche Stoomvart, 291 F.2d 212, 213 (2d Cir.1961). “ ‘When there is conflict between answers in response to interrogatories and answers obtained through other questioning, either in deposition or trial, the finder of fact must weigh all of the answers and resolve the conflict.’ ” Freed v. Erie Lackawanna Ry. Co., 445 F.2d 619, 621 (6th Cir.1971) (quoting Victory Carriers, Inc. v. Stockton Stevedoring Co., 388 F.2d 955, 959 (9th Cir.1968)). This, we may infer, the jury did.
Our main purpose in publishing this opinion is to remind the counsel in this case, as well as all counsel appearing before this court, of the importance we place upon resolving appeals whenever possible through this circuit’s Civil Appeals Management Plan (“CAMP”). CAMP was instituted by this circuit, pursuant to Fed. R.App.P. 33:
(1) to encourage the resolution of appeals without participation by judges, thus preserving their scarcest and most precious asset, time; (2) to expedite the consideration of appeals that will be briefed and argued; (3) to have Staff Counsel help the parties clarify the issues on appeal; and (4) to dispose of minor procedural motions without expenditure of judicial resources.
Kaufman, Must Every Appeal Run the Gamut? — The Civil Appeals Management Plan, 95 Yale L.J. 755, 756 (1986); see also Kaufman, The Pre-Argument Conference: An Appellate Procedural Reform, 74 Colum.L.Rev. 1094, 1094 (1974).
CAMP does not deprive the parties of their right to appeal — this court fully recognizes that every party has a right to appeal a district court ruling. Moreover, the purpose of CAMP is not to pressure parties to settle or withdraw an appeal. Further, we recognize that, in the words of the hallowed jurisprudential maxim, “it takes two (in this case more) to tango,” and one obdurate party or counsel can thus frustrate an otherwise available settlement without any blame legitimately attaching to the remaining dramatis personae.
Having said all this, we question whether a more meaningful effort at settlement, or at least at limiting the issues, might not have been made in this case, and remind the bar of its obligation to participate in the CAMP process, where applicable, seriously and in good faith.
The judgment of the district court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_typeiss
|
B
|
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.
Anna M. JOHNSON, Appellant, v. Arthur S. FLEMMING, Secretary of the Department of Health, Education and Welfare, Appellee.
No. 5949.
United States Court of Appeals Tenth Circuit.
Feb. 24, 1959.
Carl Johnson, for appellant.
William G. Walton, Asst. U. S. Atty., for Dist. of Wyoming, Cheyenne, Wyo. (John F. Raper, Jr., U. S. Atty., for Dist. of Wyoming, Cheyenne, Wyo., was with him on the brief), for appellee.
Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.
This is an appeal from a judgment of the District Court for the District of Wyoming denying to appellant, upon review under 42 U.S.C.A. § 405(g), a claim for old age insurance benefits sought under the Social Security Act, 42 U.S.C. A. § 301 et seq. The court below reviewed the merits of appellant’s claims and by its judgment affirmed the decision of the Secretary of Health, Education and Welfare, finding that “the decision of the Board (Secretary) is supported by substantial evidence and such decision is conclusive upon this (trial) Court.” The trial court also entered an order dismissing appellant’s complaint because the claimant “failed to bring this action within sixty (60) days from the date of the mailing of the Administrator’s decision.” Since the latter ruling, if correct, would be dispositive of the case upon jurisdictional grounds we first consider its basis.
The present claim of appellant for old age insurance benefits was filed January 26, 1955, and subsequently heard by a referee. From an adverse decision at that level appellant then sought review by the Appeals Council. The review was denied and appellant was so notified by letter dated February 27, 1957. Appellant filed the instant suit in the District Court on Monday, April 29, 1957, sixty-one days after the mailing of the notice of the final decision of the Secretary. The sixtieth day having fallen on a Sunday, the question is thus presented as to whether or not the filing was timely under the applicable statute, 42 U.S.C.A. § 405(g), supra. The general problem is a recurring one of many aspects both under Rule 6(a) Federal Rules of Civil Procedure, 28 U.S.C.A. and various statutes. However, it seems clear that the considerations of liberality and leniency which find expression in Rule 6(a), Prudential Oil & Minerals Co. v. Hamlin, 10 Cir., 261 F.2d 626, are applicable to statutory interpretation, Union Nat. Bank of Wichita, Kan. v. Lamb, 337 U.S. 38, 69 S.Ct. 911, 93 L.Ed. 1190, and as we stated in United States v. Peters, 220 F.2d 544, 546 “ * * * while there is clear divergence of authority on the question, we share the view that in the absence of a controlling statute providing otherwise, when the last day of the period fixed for the doing of an act falls on Sunday, it may be done on the succeeding Monday.” We conclude that the action filed pursuant to 42 U.S.C.A. § 405(g) was timely under the circumstances of this case; that the District Court had jurisdiction to review the decisions of the Secretary upon the merits; and that the instant appeal similarly encompasses a consideration of the merits of appellant’s claim.
Appellant is a woman now eighty-two years of age. She first filed application for benefits from Social Security in October 1952, alleging entitlement by reason of self-employment earnings for 1951 and 1952 derived from a partnership, Arith-Matie Commercial Enterprise, formed with her two sons in 1951. Her claim was denied by the Secretary upon the ground that Arith-Matic was in fact the sole proprietorship of one of the sons, Carl, and that monies received by the claimant did not constitute net earnings from self-employment. The decision of the Secretary was affirmed as being supported by substantial evidence by the United States District Court (Wyoming), No. 3778 (not reported.) No appeal was taken to this Court and appellant’s claims for Social Security benefits based upon alleged earnings in 1951 and 1952 have been determined adversely to her contentions and with finality. Hobby v. Hodges, 10 Cir., 215 F.2d 754. She now asserts that rights to coverage for six quarters within the years 1953 and 1954 have been obtained by her through employment as a domestic, as a bookkeeper’s assistant, and through self-employment income received from Arith-Matic for these years. Her first two claims were denied by the Secretary as being sham upon determination that her alleged services as a domestic were rendered to a non-paying guest residing in her home and that her asserted employment as a bookkeeper’s assistant was but a pretense of participation in services rendered in actuality by her sons. The record reveals that these findings are not only supported by substantial evidence but are so manifestly correct that it would be superfluous to recite such evidence. Upon appellant’s third claim, that she had self-employment income from Arith-Matic during 1953 and 1954, the referee refused to hear evidence, ruling that the lack of bona fides of this enterprise was res judicata by virtue of the final determination of her earlier claims for the years 1951 and 1952. This ruling we deem to have been error. The referee held:
“The referee has given careful consideration to the contentions advanced by Carl Johnson, and adopted by the claimant, concerning alleged self-employment income in the form of claimant’s alleged distributive share of alleged partnership income from Arith-Matic Commercial Enterprise. The basic contention that the District Court’s decision was not determinative as to the claimant’s alleged distributive share for 1953 and 1954 must rest upon the determination whether this is the same alleged partnership which was the subject of that decision or whether any new or different partnership is involved. If this was the same partnership then the final decision of the Court determined its lack of bona fides for all time and the passage of years will not change that. Nor will alleged income for subsequent years be free of that taint. * * * ”
The agreement considered in the prior case was merely an oral agreement about which the claimant knew little or nothing. The referee there recognized that Mrs. Johnson had made a capital contribution and performed some services for the company, but found that the “Company was operated in 1951 and 1952 as the sole proprietorship of Carl Johnson.” The decision might well have been based upon the view that there actually was no partnership agreement, that Mrs. Johnson did not intend to enforce her rights under the agreement, or that Carl Johnson did not intend to and did not alienate any of the interest of his business. Each of these elements is subject to change and, according to the contentions of the appellant, has changed since the prior decision. In the present case, the claimant entered into evidence written articles of agreement and letters which would indicate at least a power in her to act to bind the partnership.
The Company belonged originally to Carl Johnson and the decision of the referee in the first case was, in effect, that despite the alleged partnership agreement, he had not relinquished any of his rights as a sole owner to his mother and brother prior to 1952. It is claimant’s contention that she now has a valid interest in the partnership; whether her right arose out of the enforcement of the original agreement or by reason of a new subsidiary agreement, the bona fides of the transfer of interest, if it occurred subsequent to the first hearing, could not have been determined in that proceeding.
The doctrine of res judicata generally extends only to facts and conditions as they existed at the time the judgment was rendered and does not apply where there are new facts which did not exist at the time of the prior judgment, Third Nat. Bank v. Stone, 174 U.S. 432, 19 S.Ct. 759, 43 L.Ed. 1035; People v. Ocean Shore Railroad Inc., 32 Cal.2d 406, 196 P.2d 570, 6 A.L.R.2d 1179. Appellant should be heard upon this aspect of her claim. -
The case is remanded to the District Court for further proceedings in accord with the views expressed herein.
. 42 U.S.G.A. § 405(g) provides:
“Any individual, after any final decision of the Secretary made after a hearing to which ho was a party, irrespective of the amount in controversy, may obtain a review of sucb decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.”
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
sc_declarationuncon
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
FIRST NATIONAL BANK OF CHICAGO, EXECUTOR, v. UNITED AIR LINES, INC.
No. 349.
Argued January 8, 1952.
Decided March 3, 1952.
Robert J. Burdett argued the cause for petitioner. With. hiin on the brief were John H. Bishop and John M. Falasz.
David J acker argued the cause for respondent. With him on the brief were Howard Ellis and John M. O’Connor, Jr.
Mr. Justice Black
delivered the opinion of the Court.
John Louis Nelson was killed when one of respondent’s airliners crashed in Utah. Claiming $200,000 under the Utah wrongful death statute, petitioner brought. this action in a United States district court in Illinois. Decedent prior to his death was a resident and citizen of Illinois; petitioner, his executor, is an Illinois bank; and respondent, United Air Lines, Inc., is a Delaware corporation doing business in Illinois. Since the jurisdictional amount and diversity of citizenship requirements have been met, the case is properly triable under 28 U. S. C. § 1332 unless ch. 70, § 2 of the Illinois Revised Statutes bars the action. This Illinois law provides:
“no action shall be brought or prosecuted in this ■ State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place.”
TKifDistrict Court and Court of Appeals, relying on the doctrine declared in Erie R. Co. v. Tompkins, 304 U. S. 64, as discussed and applied in later cases, held that in a diversity case such as this the state statute was binding on the federal as well as state courts in Illinois and constituted a bar to maintenance of this action. In so doing, they rejected two constitutional contentions made by petitioner: (1). Congress having granted diversity jurisdiction to , federal district courts pursuant to power granted by Article III of the Constitution, that jurisdiction cannot be abridged or destroyed by the Illinois statute; (2) the Illinois statute violates the Full Faith and Credit Clause of the United States Constitution (Art. IV, § 1) in providing that claims for Utah deaths shall not be enforcéd in Illinois state courts where service on defendants could be had in Utah. We need not discuss this first constitutional contention or the Erie R. Co. v. Tompkins problems presented by it, for we recently held in Hughes v. Fetter, 341 U. S. 609, that a Wisconsin statute, much like that of Illinois, did violate the Full Faith and Credit Clause. It was to consider this full faith and credit question with reference to the Illinois statute that we granted certiorari. 342 U. S. 875.
The Wisconsin statute invalidated in Hughes v. Fetter, supra, barred suit in the Wisconsin courts for any wrongful death caused outside the state. The Illinois statute before us today is the exact duplicate of the Wisconsin statute with the single exception that suit is permitted in Illinois under another state’á wrongful death statute if service of process cannot be .liad on the defendant in the state where the death was brought about. That Illinois is willing for its courts to try some out-of-state death actions is no reason for its refusal to grant full faith and credit as to others. The reasons supporting our invalidation of Wisconsin’s statute apply with equal force to that of Illinois. This is true although Illinois agrees to try cases- where service cannot be obtained in another state. While we said in Hughes v. Fetter that it was relevant that Wisconsin might be the only state in which service could be had on one of the defendants, we were careful to point out that this fact was not crucial. Nor is it crucial here that Illinois only excludes cases that can be tried in other states. We hold again that the Full Faith and Credit Clause forbids such exclusion. The District Court should not have dismissed, this case.
Reversed.
E. g., Angel v. Bullington, 330 U. S. 183; Woods v. Interstate Realty Co., 337 U. S. 535.
190 F. 2d 493. The Court of Appeals cited and relied on two of its former holdings, Trust Co. of Chicago v. Pennsylvania R. Co., 183 F. 2d 640, and Munch v. United Air Lines, 184 F. 2d 630.
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer:
|
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).
GENERAL CASUALTY COMPANY OF WISCONSIN, a corporation, Plaintiff and Counter-Defendant-Appellee, v. Walter WHIPPLE, d/b/a Whipple Sales and Service, and Thomas Bickett, Defendants and Counter-Claimants-Appellants.
No. 14327.
United States Court of Appeals Seventh Circuit.
Feb. 24, 1964.
Glen L. Borden, Peoria, 111., Brian & Wilson, Toulon, 111., Harry C. Heyl, Black, Black & Borden, Peoria, III., for appellants.
Donald G. Beste, Eugene R. Johnson, Robert D. Jackson, Miller, Westervelt & Johnson, Peoria, 111., for appellee.
Before HASTINGS, Chief Judge, and CASTLE and KILEY, Circuit Judges.
HASTINGS, Chief Judge.
On or about January 21, 1955, a motor truck owned by Walter Whipple, d/b/a Whipple Sales and Service, and operated by Thomas Bickett was involved in a collision with an automobile driven by one Robert Boley. Riding with Boley in his car were eight other occupants. As a result of the collision, one of such occupants was killed and the others were seriously injured.
General Casualty Company of Wisconsin was the liability insurer for Whipple. Its insurance policy limited its liability to $50,000 for any one occurrence. The policy contained the usual provisions requiring the company to defend the insured and reserving to itself the right to make such investigation, negotiation and settlement as it deemed expedient.
John Boley and three other occupants of the Robert Boley automobile filed a diversity action in the district court against Whipple and Bickett. The aggregate recovery sought was far in excess of General Casualty’s policy limits.
General Casualty wrote to Whipple and Bickett, after receipt of the summons served on them, advising that it had engaged a law firm to defend them at the company’s expense. In this letter, the company further advised them that the amount of recovery sought exceeded the policy limits and that they could engage other counsel at their own expense, if they so desired. Whipple and Bickett expressed written satisfaction with the company’s choice of defense counsel.
General Casualty investigated the accident and defended the Boley suit. The facts relating to the collision in question show that Bickett, while driving the truck, had slowed the truck to a speed of ten to fifteen miles per hour and signaled by hand for a left turn, when the rear of the truck was struck squarely by the Boley automobile in which nine persons were riding.
A jury returned a verdict for the four plaintiffs aggregating $76,500 and judgment for that amount was entered against Whipple and Bickett. No appeal was taken from this judgment.
After first advising Whipple and Bickett that it had elected not to appeal the judgment, General Casualty paid to the clerk of the district court, in partial satisfaction of the judgment, the sum of $51,203.41. This payment covered $50,-000 on principal of the judgment (the amount of its policy limit), interest on the judgment to date of payment and court costs.
Thereafter, General Casualty (hereinafter called plaintiff) filed the instant suit in the district court against Whipple and Bickett (hereinafter called defendants). It sought a declaratory judgment that it had fully discharged its contractual duties to defendants under its insurance policy and that it would not be obligated to defend pending or future suits or pay future expenses resulting from the collision on January 21, 1955.
Defendants filed a counterclaim in this action alleging that plaintiff was negligent and guilty of bad faith in its defense of the personal injury suit against them and in failing to appeal the judgment against them. They demanded judgment against plaintiff for the amount of the excess of the verdict over the policy limits, with interest and costs.
The case was submitted to a trial by jury on the issues joined on the complaint and counterclaim. At the close of plaintiff’s case and again at the end of all the evidence, plaintiff moved for a directed verdict. The trial court reserved its ruling on both motions.
The jury returned a verdict finding the issues for defendants and awarding them damages in the sum of $35,048.64. Judgment was rendered on the verdict.
Plaintiff then moved to set aside the verdict and judgment against it and for judgment in its favor on its pending motions for a directed verdict, or in the alternative for a new trial. The trial court granted plaintiff’s motion, vacated and set aside the verdict and judgment for defendants on their counterclaim and entered judgment for plaintiff on its motions for directed verdict. Defendants now appeal from such judgment.
On appeal, defendants contend that, viewing the evidence in the light most favorable to them (as we must do), plaintiff was negligent and acted in bad faith in failing to attempt to settle the case before conclusion of the trial and in not appealing the judgment against them. As a consequence, they urge that the district court erred in setting aside the jury verdict and judgment for them and in granting judgment for plaintiff.
Defendants do not contend there was negligence in the accident investigation, choice of defense counsel or the manner in which the defense was conducted.
It is well settled that an insurance company, which has issued a policy containing limits on its liability, may so conduct itself as to be liable for the entire judgment recovered against the insured, regardless of the policy limits. Ballard v. Citizens Cas. Co. of New York, 7 Cir., 196 F.2d 96, 99 (1952). While it is conceded that Illinois law governs here, the parties disagree as to the standard of conduct which plaintiff must engage in to be liable beyond the policy limits.
Plaintiff contends defendants must prove conduct with intent to deceive, in the nature of fraud, and cites, inter alia, Bentley v. Farmers’ Insurance Exchange, 6 Cir., 289 F.2d 59, 60-61 (1961) (applying Michigan law); Slater v. Motorists Mutual Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45, 48 (1962) (applying Ohio law). No cases applying Illinois law are cited in support of this contention.
Defendants state that “[t]he law in Illinois * * * is that the insurer must exercise good faith in all respects to the insured, and if in any respect it is negligent, then it has not acted in good faith toward its insured.”
Our court had this issue before it in Ballard v. Citizens Cas. Co. of New York, supra. In an opinion by Judge Duffy, we said that “[t]he only applicable decision of an Illinois court that has been cited to us or that we have been able to find is Olympia Fields Country Club v. Bankers Indemnity Insurance Co., 1945, 325 Ill.App. 649, 60 N.E.2d 896.” Id. 196 F.2d at 100. The same is true in the instant case.
The Olympia Fields ease was carefully analyzed in Ballard, in which it appears that Olympia Fields expressly rejected cases applying the fraud standard. Id., 196 F.2d at 100. It quoted with apparent approval from cases applying the negligence or bad faith standard of conduct. Id., 196 F.2d at 100-102. At page 102 of 196 F.2d of the opinion, we stated:
“In the Olympia Fields opinion the court said, 60 N.E.2d at page 906: ‘In our judgment, the weight of authority supports the rule that the insurer cannot be held liable for refusing to settle a case before or during trial for an amount within the limits of its liability under the policy although such refusal may result in a judgment against the assured for an amount in excess of the liability of the insurer, in the absence of fraud, negligence or bad faith.’ (Emphasis supplied)”
Thus, we conclude that negligence or bad faith is the Illinois standard of conduct to be applied to the facts in determining whether plaintiff is liable beyond the policy limits for failing to settle the case. The district court so instructed the jury.
The test for negligence in this case is that conduct which an ordinary reasonable man would engage in, not when solely considering the interests of the insurer, but upon giving equal consideration to the interests of the insurer and the insured. Fidelity and Casualty Company of New York v. Robb, 5 Cir., 267 F.2d 473 (1959); Ballard v. Citizens Cas. Co. of New York, supra, 196 F.2d at 102. The burden of proving negligence or bad faith as alleged in their counterclaim is on defendants. Frank B. Connet Lumber Co. v. New Amsterdam Cas. Co., 8 Cir., 236 F.2d 117, 127 (1956); Maryland Casualty Co. v. Cook-O’Brien Const. Co., 8 Cir., 69 F.2d 462, 466 (1934), cert. denied, 293 U.S. 569, 55 S.Ct. 81, 79 L.Ed. 668.
The attorneys engaged by plaintiff and approved by defendants were cognizant of the seriousness of the injuries to the occupants of the automobile and the likelihood that a verdict in favor of the occupants would exceed the policy limit of $50,000. However, they had obtained eye witnesses who estimated the speed of the Boley automobile at between seventy and ninety miles per hour and who had seen Bickett signal by hand for a left turn. After the accident, the automobile was in the right hand lane of the highway. These and other facts disclosed by investigation led plaintiff’s attorneys to believe they had a strong defense.
The evidence relating to settlement shows that attorneys who represented the injured occupants offered to settle the case for approximately $190,000. Plaintiff’s attorneys never offered to settle for the maximum limits of the policy. Just prior to trial, they were informed by attorneys for one of the occupants that the occupants would not settle for the policy limits.
During the trial, an attorney for the occupants informed plaintiff’s attorney that no settlement was possible unless there was an offer from Montavon’s insurance carrier in addition to the limits of plaintiff’s policy.
Thus, it is undisputed that plaintiff never received or made an offer to settle within the policy limits. Defendants contend that plaintiff had a duty to make such an offer and its failure to do so constituted negligence. Cases cited by defendants in support of this contention are distinguishable from the present case.
In Ballard v. Citizens Cas. Co. of New York, supra, the insured was sued for $50,000 by Farwell for the death of her husband, under the Illinois Dram Shop Act, Ill.Rev.Stat.1951, c. 43, § 94 et seq. The insurance company employed attorneys to defend the suit and the insured engaged a personal attorney. Prior to trial, the company attorney refused an offer to settle the case for the policy limit of $2,500, stating that they could probably settle for less at the trial. At the trial, Farwell’s attorney offered to settle for $2,000. The company attorney refused this offer, despite insistence by the insured’s attorney that the offer be accepted and that successful defense of the suit appeared difficult. No attempt was made to communicate the offer to the company. A judgment for $6,500 was entered in favor of Farwell. The insured brought suit against the company and the court held, on appeal, that substantial evidence supported the jury verdict and judgment finding lack of good faith by the company and its attorneys in refusing to settle within the policy limits.
In Fidelity and Casualty Company of New York v. Robb, supra, the insurer rejected an offer of settlement for less than the policy limits. The court reversed a jury verdict for the insured due to failure of the trial court to instruct the jury that the insurer could consider its own interests as well as the interests of the insured.
Bell v. Commercial Insurance Co. of Newark, N. J., 3 Cir., 280 F.2d 514 (1960), held that a jury question existed as to whether the insurer acted in bad faith in failing to attempt to settle the case after conceding liability at pre-trial.
The determination in this class of eases is one of fact and the result in each case depends upon its own peculiar facts. Unlike the above cases, in the instant case the occupants’ attorneys made no offer to settle within the policy limits or for any amount reasonably close thereto. ■Plaintiff’s attorneys reasonably believed there was no probability of affecting such a settlement and that they had a strong defense. The matter was further influenced by other pending suits arising out of the same collision.
We hold that under the facts of this case, no reasonable person, after equal consideration of the interests of the insurer and the insured, would decide that the insurer had an affirmative duty to attempt to settle the case within the policy limits.
Defendants’ second contention is that plaintiff was negligent in failing to appeal the jury verdict and judgment in the personal injury suit.
r Plaintiff’s duty to defend the suit in the trial court existed by reason of the insurance contract, and if it had a duty to appeal, this duty flowed from the contract.
The applicable provisions of the insurance contract provide:
“II Defense, Settlement, Supplementary Payments
“As respects the insurance afforded by the other terms of this policy the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof * * (Emphasis added.)
In Denham v. La Salle-Madison Hotel Co., 7 Cir., 168 F.2d 576 (1948), cert. denied, 335 U.S. 871, 69 S.Ct. 167, 93 L.Ed. 415, we considered the following similar insurance contract provision:
“It is further agreed that as respects insurance afforded by this policy? Underwriters shall—
“(1) Defend the Assured in his name and behalf [in] any suit against the Assured alleging such loss and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * * (Emphasis added.) Id., 168 F.2d at 584.
Speaking for the court, Judge Major stated:
“[P]aragraph (1) gives some color to the defendant’s argument, [that plaintiff, insurer, had an obligation to defend the insured even though insurer had tendered the policy limit of $10,000] but that paragraph is limited to the phrase which proceeds it, ‘as respects insurance afforded by this policy.’ Upon plaintiff’s tender of $10,000, its liability for the payment of losses was extinguished. It was only obligated to defendant ‘as respects insurance afforded by this policy,’ and there being no further insurance afforded, we are of the view that its obligation to defend was likewise terminated. Defendant’s theory would produce the incongruous situation that plaintiff would have a continuing obligation to defend, notwithstanding its obligation to pay has been exhausted. We are of the view that no such liability was intended by the provision in question and that it cannot reasonably be so construed.” Id., 168 F.2d at 584. Accord, Moore v. Columbia Casualty Company, S.D.Ill., 174 F.Supp. 566, 573 (1959).
We hold, in accord with Denham, that since the plaintiff paid into court the full policy limits, plus all costs and interest, its duty to further defend defendants ceased under the terms of its contract.
In view of all the circumstances present in this case, it is our conclusion after considering the evidence in the light most favorable to defendants, that as a matter of law, there is no support for a finding that plaintiff failed to exercise good faith toward defendants in any respect.
The district court did not err in vacating the jury verdict and resulting judgment for defendants, and in entering judgment for plaintiff.
The judgment appealed from is affirmed.
Affirmed.
. Merle Whipple, brother of Walter Whipple, and Ralph Montavon were also named as defendants. At the trial, Merle Whipple was dismissed on a directed verdict. Montavon was later dismissed on Ms motion for judgment notwithstanding the verdict against Mm.
. The attorney representing Montavon, one of the original four defendants, testified that the only offer to settle by the occupants’ attorneys was for $192,500. One attorney for the occupants stated, by deposition, that he made an offer to settle for $180,000 to $190,000. The other attorney for tbe occupants testified that the offer to settle was approximately $192,000.
. Montavon was one of four original defendants. See n. 1 supra.
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_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Robert F. ZEDDIES, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE Respondent.
No. 12433.
United States Court of Appeals Seventh Circuit.
Feb. 20, 1959.
Rehearing Denied March 30, 1959.
G. Kent Yowell, John J. Yowell, Chicago, 111., for petitioner.
Charles K. Rice, Asst. Atty. Gen., James P. Turner, Atty., Tax Division, U. S. Dept, of Justice, Washington, D. C., Lee A. Jackson, Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before DUFFY, Chief Judge, and MAJOR and HASTINGS, Circuit Judges.
HASTINGS, Circuit Judge.
Petitioner, Robert F. Zeddies (taxpayer), sought, in this action, to set aside deficiencies in federal income tax and fraud penalties determined by respondent, Commissioner of Internal Revenue (Commissioner), for the tax years 1942 through 1947, as follows;
Year Deficiency Addition to Tax § 293(b)
1942 .........$ 1,358.65 674.33
1943 ......... 7,120.66 4,537.48
1944 ......... 13,696.59 7,798.77
1945 ......... 71,006.44 35,724.67
1946 ......... 137,212.93 68,606.47
1947 ......... 41,301.98 20,650.99
Total ......$271,697.25 $137,992.71 $409,689.96
At the hearing before the Tax Court of the United States, it was conceded by the Commissioner that the deficiencies for 1942 and 1943 were not due to fraud and that such assessments were accordingly barred by the statute of limitations. As to the other years the Tax Court made specific findings based upon the evidence submitted at the trial and redetermined the deficiencies and penalties as follows:
Addition to Tax
Year Deficiency § 293(b)
1944 .........$ 10,762.41 $ 6,331.68
1945 ......... 50,983.70 25,713.30
1946 ......... 99,982.40 49,991.20
1947 ......... 32,679.83 16,339.92
Total......$194,408.34 $98,376.10 $292,784.44
The Tax Court found that at least part of the deficiency for each of the taxable years, 1944 through 1947, was due to fraud with intent to evade payment of tax. Taxpayer’s motion for reconsideration was denied and this petition for review followed. Taxpayer contends that the determination of the deficiencies and the findings of fraud are not supported by substantial evidence and are clearly erroneous and that the decision is contrary to law. Since the findings of fact resulting in the Tax Court’s determination of the deficiencies and fraud penalties are under direct attack, we shall first summarize them as follows:
Taxpayer’s Business
For many years taxpayer was a food broker and salesman in the Chicago area. Most of the time he represented a number of candy manufacturers who sold their products to retail grocery stores, paying his own expenses and receiving commissions for his services. This representation of candy manufacturers continued throughout the taxable period.
During World War II, candy and the ingredients used to manufacture it, primarily sugar and corn syrup, were in short supply. The Office of Price Administration placed ceiling prices on the sale of candy, and sugar and corn syrup were rationed. The maximum ceiling on candy sold by manufacturers was based on the manufacturer’s pre-war price. Retailer’s ceiling prices were based on the cost of the candy to the retailer plus a certain percentage of mark-up over cost. Because of these restrictions, some manufacturers of candy established quotas for their customers under which they sold candy to former customers on a percentage of purchases made before the war.
By 1942, Kroger Grocery & Baking Company (Kroger), a retail grocery chain, was one of taxpayer’s customers. Kroger had formerly manufactured its own candy for sale in its stores, but the rationing of sugar sharply curtailed this activity; and it was unable to adequately supply its stores. Because it had done little business with candy manufacturers before the war, Kroger had few sources of supply. Kroger employed taxpayer to procure candy for its stores, paying him a commission of five percent on all candy he purchased for them. Kroger furnished him a desk and stenographer in its Chicago office. Otherwise, taxpayer bore his own expenses in procuring candy.
After discussing his sources of supply with Kroger, taxpayer then bought the candy and arranged to have it sold to Kroger in retail units. The price to Kroger included packaging costs and a profit to the packaging company. When taxpayer bought in bulk lots he frequently sold it to East India Nut Company (East India), a packaging concern, which would then pack it in retail units, resell it to Kroger, and pay taxpayer a five percent commission on such sales.
Commissions
The Tax Court’s findings with respect to commissions received by taxpayer during the taxable period were as follows :
Year Commissions Received Commissions Reported Commissions Unreported
1944 .........$41,061.17 ,422.70 $ 638.47
1945 ......... 45,856.36 43,792.08 2,064.28
1946 ......... 79,811.97 57,161.89 22,650.08
1947 ......... 48,431.44 38,960.22 9,471.22
Included in the above were commissions from East India of $331.80 in 1944; $1,196.25 in 1945; $10,393.01 in 1946; and $323.23 in 1947. A part of the commissions received in 1946 was the sum of $5,479.82 which had been billed to East India by taxpayer on invoices of Zerna Products Company as sales of chocolate peanuts.
Taxpayer also did business with Kroger through Carol Lynn Products Company (Carol Lynn), a candy packaging partnership in which he owned a one-half interest. Carol Lynn received candy obtained by taxpayer, packaged it, sold it and paid taxpayer commissions of $17,-591.76 in 1946 and $9,167.51 in 1947, which are included in the foregoing summary.
Petitioner did not report the commissions received from East India and Carol Lynn on his tax returns, and neither East India nor Carol Lynn reported them by filing Form 1099 with the Commissioner.
Profits from Sales
During the taxable period taxpayer bought bulk candy at wholesale prices from various manufacturers in his own name and as Zerna Products Company, storing it either at East India or in a Chicago warehouse. Taxpayer used his own funds for this purpose and received the proceeds from the sales. He received the invoices from such supplies and issued invoices covering the sales. In conducting this part of the business, taxpayer used an office furnished him free of charge by East India.
Taxpayer kept no formal books and records of the kinds, quantities or costs of candy. He had no bookkeeper to record his business transactions and did not maintain a journal or ledger to record purchases and sales during the taxable years. Part of this candy was spoiled or unsaleable candy, including some he repurchased from Kroger under agreement. Whenever possible, he sold or traded the spoiled and inferior candy, principally to a William Schmeckebier, and sometimes at a profit.
The Tax Court’s findings with respect to taxpayer’s purchases of candy from suppliers at ceiling prices and his sales of candy to customers during the taxable period (omitting the names of the suppliers and customers) were as follows:
1944 1945 1946 1947
Purchases......$ 7,731.73 $ 97,955.81 $244,905.54 $224,973.94
Sales.......... 13,654.20 155,843.73 363,959.95 265,015.80
In addition to paying the invoice price of candy he purchased, taxpayer made “overceiling” payments to manufacturers and brokers. These payments were “bonuses” in excess of the ceiling price and were made in cash or in ingredients for use in candy manufacturing. The invoices of candy purchased in this manner did not reflect the “bonus” payment but included only the manufacturer’s ceiling price. Taxpayer included the “bonus” payment in the price he quoted to his customers for the candy. Kroger, his principal customer, knew that the cost of certain candy to them included overceiling payments but paid the cost without objection in order to get this merchandise.
The Tax Court found that taxpayer made overeeiling payments of $2,000 in 1944; $20,000 in 1945; $40,000 in 1946; and $10,000 in 1947, and properly allowed these as part of the cost of goods sold. It then found and determined taxpayer’s unreported income from profits from sales of candy during the taxable period to be as follows:
1944 $ 3,992.47
1945 37,887.92
1946 79,054.41
1947 30,041.86
Partnership Income
On November 1, 1944, taxpayer and Frank W. Brinkman formed a partnership to conduct a candy brokerage business in Chicago which operated under both the names of Frank W. Brinkman & Associates and Carol Lynn Products Company. Taxpayer advanced initial capital of $5,000, and Brinkman devoted full time to the business. The two partners agreed to share the partnership profits equally.
The partnership tax returns for the taxable years 1945 and 1946 showed taxpayer’s share of the net income to be $1,096.30 and $1,433.79, respectively, and in 1947 reflected a loss to taxpayer of $1,945.87. Taxpayer did not report any of this partnership income or loss for any of the years 1945, 1946 or 1947. The Tax Court sustained the Commissioner’s redetermination of taxpayer’s distributive share of partnership income to be $12,936.08 in 1945 and $6,644.91 in 1946, and his share of partnership loss in 1947 to be $173.97.
Business Expenses
In conducting his business of buying and selling candy, taxpayer incurred losses during the taxable years. These resulted from “slow-moving” and spoiled candy, pilferage and shrinkage reflected in inventory loss, prizes for sales promotions to induce sales by Kroger employees, sales promotions, entertainment of buyers and purchasing agents, traveling expense, and auto expenses. The Tax Court detailed as to each of these items the deductions claimed by taxpayer, the amounts allowed and disallowed by the Commissioner, and the determination it made of the correct amount of each of these expenses for each of the taxable years. Without setting out the various items, the following summary will reflect the totals as determined by the parties and as redetermined by the Tax Court:
Expenses 1944 1945 1946 1947
Claimed by taxpayer $29,650 $31,980 $37,850 $23,745
Allowed by Commissioner 10,450 9,550 9,150 6,025
Allowed by Tax Court 10,550 10,650 10,250 7,125
Fraud
Taxpayer’s income tax returns for the years 1944, 1945 and 1946 were prepared by Lampert, taxpayer’s lawyer, on the basis of information furnished by taxpayer. Taxpayer did not furnish Lam-pert with complete documentary evidence to support the claimed business deductions, did not inform him of the amounts of his distributive share of net income of Frank W. Brinkman & Associates for 1945 and 1946, or of the amount of commissions he received in 1946 from the Carol Lynn partnership. Lampert did not sign the returns he prepared because he did not believe there was sufficient substantiating evidence to support the information contained in them.
Taxpayer’s income tax return for 1947 was prepared by Weber, an accountant, on the basis of information supplied by taxpayer. Taxpayer did not furnish Weber any records to support the claimed business deductions, nor did taxpayer inform him of any income from the Carol Lynn partnership in the form of commissions, profits from sales or partnership income.
In 1947, a revenue agent conducted an examination of taxpayer’s income tax returns for the years 1944 and 1945. Taxpayer and Lampert were asked to produce petitioner’s books and records including bank statements, canceled checks and other documents relating to the years under examination. Taxpayer and Lampert produced no records other than a list of companies that paid taxpayer commissions during the years under investigation. The total commissions listed were the same as the totals listed on the tax returns for 1944 and 1945. Taxpayer informed the agent that he had no income in addition to the commissions reported and that he was not engaged in any business other than as a candy broker.
In 1948, revenue agents made a reexamination of taxpayer’s income tax returns for 1944 and 1945 and an original examination of his returns for the years 1946 and 1947. This examination began after leads were obtained during an investigation of Schmeckebier. Taxpayer was again asked to produce the books and records for the years under examination. The only records produced were records and canceled checks of the partnership, Frank W. Brinkman & Associates, and some of taxpayer’s own canceled cheeks. Taxpayer produced no substantiating evidence to show the purpose for which the checks were issued. Taxpayer did not produce the names of any of his candy suppliers or customers nor did he produce any purchase and sales invoices showing procurement and disposition of candy. Taxpayer did not maintain complete records of all of his sales of candy and did not furnish the agents with documentary evidence substantiating the deductions claimed on his returns. The agents obtained their information as to taxpayer’s purchases and sales of candy from the books and records of suppliers and customers of taxpayer, trucking companies and warehouses. From these records, the agents traced shipments of candy from the supplier to taxpayer and then to the ultimate customer. Taxpayer did not furnish the agents with a “workbook” showing all of his purchases and sales of candy during the taxable years.
The Tax Court then found that at least part of the deficiency for each of the taxable years involved here was due to fraud with intent to evade tax.
Taxpayer testified that his initial capital investment of $5,000 to the Brinkman partnership (Carol Lynn) represented money that belonged to his children and thereby sought to establish that they were the owners of the one-half interest, attributed to him, claiming in his petition that he held such interest as trustee for their benefit. There is nothing in the record to substantiate this claim except his own unexplained bare assertion. He admitted that his children did not report any gain or loss from the partnership. Brinkman referred only to taxpayer in his testimony. The Tax Court properly sustained the Commissioner on this point.
Taxpayer contends that the Tax Court erroneously determined the nature of his business in finding that he was in the business of buying and selling candy for his own account. He claims the evidence shows that his buying and selling activities were in connection with the procurement of candy for Kroger, and that he was a candy “broker.” There is substantial evidence in the record to support the Tax Court on this issue and such findings are not clearly erroneous.
Taxpayer challenges many of the other findings as not being supported by substantial evidence, as clearly erroneous, and made in disregard of the evidence and absent proof of fraud by clear and convincing evidence. We have carefully examined all of these contentions and have considered the record as a whole, and have concluded that taxpayer’s contentions are not well founded. It would serve no good purpose to burden this opinion with a detailed statement of these charges. The Tax Court has treated this matter rather fully in its Memorandum filed January 31, 1958, Docket No. 57280, its final decision being entered March 27, 1958.
As was stated by the late Judge Lindley of this court in Pleason v. Commissioner of Internal Revenue, 7 Cir., 1955, 226 F.2d 732, 733, it is for the trial court “to weigh the evidence, draw inferences and declare the result * * [and] our only function is to determine whether the findings are clearly erroneous, that is whether upon the whole record, there is substantial evidence to support them and whether the court erred as to the law.” See also, Wisconsin Memorial Park Co. v. Commissioner of Internal Revenue, 7 Cir., 1958, 255 F.2d 751, 753, and Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.
We reject taxpayer’s contention that he has established that the Commissioner’s determination of deficiencies in his taxes were arbitrary and excessive or based on a formula which could not produce the correct amount of tax due so as to bring this case within the rule laid down in Helvering v. Taylor, 1934, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623. Absent such showing, the Commissioner’s determination “has the support of a presumption of correctness, and the petitioner [taxpayer] has the burden of proving it to be wrong.” Welch v. Helvering, 1953, 290 U.S. Ill, 115, 54 S.Ct. 8, 78 L.Ed. 212; Wisconsin Memorial Park Co. v. Commissioner of Internal Revenue, supra, 255 F.2d at page 753. This does not mean that the Tax Court must agree with the Commissioner in all respects, and, in the instant case the Tax Court, under the evidence presented, did not feel bound to accept completely the Commissioner’s determination and was not precluded from reducing the deficiencies as it did in a substantial amount. Rogers v. Commissioner of Internal Revenue, 7 Cir., 1957, 248 F.2d 452, 453. The rule in Helvering v. Taylor, supra, does not prevent the Tax Court from exercising its function, in a proper case, of redetermining the deficiencies assessed by the Commissioner.
The Tax Court properly held that whatever overceiling payments had been made should be included in cost of goods sold in computing taxpayer’s profits from sales, and credit was given accordingly. See Sullenger v. Commissioner, 11 T.C. 1076, 1077.
In determining the several categories of taxpayer’s expenses or costs of sales, the Tax Court found that taxpayer failed to substantiate his claims beyond the point of proving their existence in part; and, consequently it properly made the best estimate it could from the evidence at hand in reliance upon the rule in Cohan v. Commissioner, 2 Cir., 1930, 39 F.2d 540, as approved by us in Pleason v. Commissioner of Internal Revenue, 7 Cir., 1955, 226 F.2d 732, 734. Deductions are a matter of legislative grace and “the burden is upon the taxpayer to establish the amount of a deduction claimed,” Helvering v. Taylor, 1934, 293 U.S. 507, 514, 55 S.Ct. 287, 290, 79 L.Ed. 623. This he failed to do.
There is no presumption of fraud and the Commissioner has the burden of proof with clear and convincing evidence. We have set out in some detail the Tax Court’s findings on this issue. “Fraud is a question of fact, and the Tax Court finding is binding if it is supported by substantial evidence.” Bender v. Commissioner of Internal Revenue, 7 Cir., 1958, 256 F.2d 771, 774-775, and cases cited therein. We think there is substantial evidence in this record to support these findings of fraud by the Tax Court.
Finding no error in the disposition of this case by the Tax Court, the decision is
Affirmed.
. 26U.S.C.A. § 293(b) (19391.R.C.). Additions for fraud.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_adminaction_is
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
SERVICE STORAGE & TRANSFER CO., INC., v. VIRGINIA.
No. 92.
Argued February 26, 1959.
Decided March 30, 1959.
.Francis W.McInerny argued the cause and filed a brief for petitioner.
Robert D. Mcllwaine, III, argued the cause for respondent. On the brief were A. S. Harrison, Jr., Attorney General of Virginia, and Reno S. Harp, III, Assistant Attorney General.
Austin L. Roberts, Jr. and R. Ev'erette Kreeger filed a brief for the National Association of Railroad and Utilities Commissioners, as amicus curiae, urging affirmance.
Mr. Justice Clark
delivered the opinion of the Court.
Petitioner, an interstate motor carrier certificated by the Interstate Commerce Commission, but without a permit from Virginia allowing intrastate operations, was fined $5,000 by the State Corporation Commission for carrying 10 shipments of freight alleged to have been of an intrastate character and, therefore, in violation of Chapter 12, Title 56, of the Code of Virginia. The shipments in question originated at Virginia points and were destined to Virginia points but were routed through Bluefield, West Virginia, where petitioner maintains its main, terminal. They were transported in a vehicle with freight destined to points outside of Virginia. Upon arrival at Bluefield the freight destined to Virginia was removed and consolidated with freight coming to the terminal from non-Virginia origins. It then moved back into Virginia to its destinations. • The Corporation Commission found that the routes thus employed through Bluefield were a subterfuge to evade state law. The Virginia Court of Appeals agreed but directed that the fine be reduced to $3,500 because of . a failure of the Commonwealth’s case on three of the shipments. 199 Va. 797, 102 S. E. 2d 339. Petitioner pleads that Virginia’s interpretation of its operations conflicts with its interstate certificate as well as an interpretation thereof by the Interstate Commerce Commission. It claims that respondent was without power thus to impose criminal sanctions on its certificated interstate operations. We granted certiorari, 358 U. S. 810, to.test out the conflicting contentions. We agree with the petitioner that under the facts here the interpretation of petitioner’s interstate commerce certificate should first be litigated before the Interstate Commerce Commission under the provision of § 204 (c) of the Interstate Commerce Act, 49 U. S. C. §'304 (c).
Petitioner operates its truck lines in parts of Virginia and West Virginia. Its activity is carried on under a certificate of convenience and necessity issued by the Interstate Commerce Commission. The petitioner’s present I. C. C. certificate is a combination of its original 1941 certificate and a second certificate issued in 1943 upon its purchase of the operating . rights of another carrier. Neither it nor its predecessor held a certificate from the State Corporation Commission authorizing any intrastate carriage. It is authorized under the relevant parts of its interstate certificate to transport general commodities as a motor common carrier in interstate commerce:
“Between Bluefield, Va., Bluefield, W. Va., and points and places within five miles of Bluefield, W. Va. “Between Bluefield, Va., and points and places within five miles of Bluefield, Va., and those within five miles of Bluefield, W. Va., respectively, on the one hand, and, on the other, points and places in that-part of Virginia and West Virginia within 75 miles of that territory. Between Bluefield, W. Va., on the one hand, and, on the other, points and places in West Virginia, that part of Virginia west of U. S. Highway 29 and south of U.-S. Highway 60 including points and places on the indicated portions of the highways specified, and that part of Virginia north of U. S. Highway 60 which is within 80 miles of Bluefield, W. Va.”
Petitioner’s method of operation is uncontradicted, in the record. It maintains its headquarters in Bluefield, West Virginia, and terminal points in Virginia at Bristol and Roanoke. Its main activity is the movement of freight of less-than-truckload shipments. In order to gather the shipments and, by combining them, make up a full truck load it operates “peddler runs” from its Virginia terminals which serve as pick ups for freight in the vicinity. All of the traffic is directed through the Bluefield, West Virginia, terminal. About three percent of the traffic consists of shipments destined from one Virginia point to another while the remainder is -directed from points within to those outside that State. The freight gathered by the “peddler runs” is combined at a terminal and placed in an “over the road” tractor trailer unit and carried to Bluefield, West Virginia. There it is broken down and combined with other shipments received from all of the other runs of petitioner. That part destined to points in and around Bluefield is delivered locally through “peddler runs” operated from that terminal. The remainder is sorted out for forwarding to the terminal nearest its destination and is “filed out” by “over the road” operation: Upon arrival at the. latter terminal it is delivered by “peddler runs” to its local destination.
■ The Commonwealth’s criminal case is bottomed on shipments the origin and final destination of which are in Virginia. While it stipulated that all of these shipments were routed through Bluefield, West Virginia, and were, therefore, on their face interstate shipments, Virginia takes the position that they were clearly intrastate in character because had they been moved over direct routes none would ever have left the Commonwealth. It contends that petitioner’s circuitous and unnecessarily long routes were a mere subterfuge to escape intrastate regulation and evade its jurisdiction. Aside from the testimony of highway officers as to the actual shipments, none of which is disputed, the Commonwealth’s evidence consisted solely of maps substantiating its position that petitioner’s routes were circuitous and often long, sometimes exceeding twice the shortest possible route. However, it offered no direct evidence of bad faith on the part of petitioner in moving its traffic through Bluefield, West Virginia.
On the other hand, petitioner offered .the testimony of its manager and others as to the bona fides of . its operation. It proved that it and its predecessor-operator had been carrying on its business in Virginia in a similar manner for many years and that it enjoyed certificates from the Interstate Commerce Commission authorizing its operations. Petitioner admits that some of its routes are circuitous but claims this is because of its method of gathering less-than-truckload shipments regardless of final destination and routing them through its “gateway” terminal at Bluefield where they are assorted according to final destination. It stands uncontradicted that , its operation is not only practical, efficient and profitable, but also that the creation of this “flow of traffic” is a time-saver to the shipper since there is less time lost waiting for the making up of a full truck load. It also claims a unique service for less-than-truckload shipments of central Virginians who ship commodities to southwest Virginia and Kentucky and who otherwise would suffer long delays on deliveries or would be obliged to ship by special truck at higher rates. While these considerations are. not controlling, they throw light on petitioner’s claim of bona fides.
In Castle v. Hayes Freight Lines, 348 U. S. 61, 63-64 (1954), we observed that “Congress in the Motor Carrier Act adopted „a comprehensive plan for regulating the carriage of goods by motor truck in interstate commerce.” We pointed out that 49 U. S. C. § 312 provides “that all certificates, permits or licenses issued by the Commission ‘shall remain in effect until suspended of terminated as herein provided’.... Under these circumstances, it would be odd if a state-could take action amounting to a suspension or revocation of an interstate carrier’s commission-granted right to operate.” To uphold' the criminal fines here assessed would be tantamount to a partial suspension of petitioner’s federally granted certificate. .Even though the questioned operations constitute only a minor, i. e., three percent, portion of the petitioner’s business, that portion is nevertheless entitled to the same protection as are the other operations which are conducted under the certificate. In fact, the method of handling is identical and the freight is often transported in the same vehicle. The certificate on its face covers the whole operation. In -fact, in 1953, in approving the acquisition of petitioner by another carrier, the I. C. C. expressly approved the very type of operation now being carried on. In its unpublished report, the Commission noted:
“Under its existing authority, Service Storage may lawfully perform a cross-haul service under a combination of its radial rights by operating, for example, between points in West Virginia within 75 miles of the base area, on the one hand, and, on the other, points in Virginia on and west of U. S. Highway 29 and on the south of U. S. Highway 60, and points in the three Kentucky counties provided such operations under a combination of the various rights are routed through Bluefield as a. gateway.” MC-F-5361, Smith’s Transfer Corporation of Staunton, Va. — Control— Service ■ Storage and Transfer Company, Inc., 59 M. C. C. 803 (report not published.)
It appears clear that interpretations of federal certificates of this character should be made in the first instance by the authority issuing the certificate and upon whom the Congress has placed the responsibility of action.. The Commission has long taken this position. Compare Atlantic Freight Lines, Inc., v. Pennsylvania Public Utility Comm’n, 163 Pa. Super. 215, 60 A. 2d 589, with Atlantic Freight Lines, Inc. — Petition for Declaratory Order, 51 M. C. C. 175. The wisdom of such a practice is highlighted by the facts of this case. Between the close of the hearing, and the announcement of, the Virginia Commission’s decision, Service petitioned the I. C. C. for a declaratory order interpreting its certificate. The Commonwealth, although it had notice of the I. C. C. proceeding, elected not to participate. After the Virginia Commission had found petitioner to be operating in intrastate commerce and fined it for such operation, the I. C. C. issued an opinion, 71 M. C. C. 304, in which it construed petitioner’s certificate as authorizing Virginia-to-Virginia traffic routed through Bluefield, West Virginia. This was but a reaffirmation of its prior interpretation of the certificate. 59 M. C. C. 803, supra. Such conflicts can best be avoided if the interpretation of I. C. C. certificates is left to the Interstate Commerce Commission.
Nor is Eichholz v. Public Service Comm’n, 306 U. S. 268 (1939) to the contrary. There Missouri revoked a carrier’s interstate permit because it-crossed state lines into Kansas City, Kansas, for the sole purpose of creating an interstate operation. Eichholz, however, had no certificate from the Interstate Commerce Commission, and this Court’s opinion was premised on this fact rather than that the interstate operations were merely a subterfuge and hence not bona fide. The words of Chief Justice Hughes there clearly distinguish that case from the present:
“When the [Missouri] Commission revoked the permit, the Interstate Commerce Commission had not acted upon appellant’s application under the Federal Motor Carrier Act and meanwhile the authority of the state body to take appropriate action under the state law to enforce reasonable regulations of traffic upon the state highways had not been superseded.” 306 U. S., at 273.
Eichholz followed naturally from the holding of the Court in Welch Co. v. New Hampshire, 306 U. S. 79 (1939), that the enactment of the Motor Carrier Act did not, without more, supersede all reasonable state regulation, the latter continuing in effect until the Interstate Commerce Commission acted on the same subject matter. That, it has admittedly done here.
Finally, the Commonwealth is not helpless to act. If it believes that petitioner’s operation is not bona fide interstate but is merely a subterfuge to escape its jurisdiction, it can avail itself of the remedy Congress has provided in the Act. Section 204 (c), supra, note 2, authorizes the filing of a “complaint in writing to the Commission by any . . . State board . . . [that] any . . . carrier . . .” has abused its certificate. See also Castle v. Hayes Freight Lines, supra. Thus the possibility of a multitude of interpretations of the same federal certificate by several States will be avoided and a uniform administration of the Act achieved.
The judgment is
Reversed.
ya. Code, 1950, § 56-278, provides:
“No common carrier by motor vehicle or restricted common carrier by motor vehicle not herein exempted shall engage in intrastate operation on any highway within the State without first having obtained from the Commission a certificate of public' convenience and necessity authorizing such operation, and a statement of the State Highway Commission that the law applicable to the proposed route or routes has been complied with as to size, weight, and type of vehicles to be used, and a like statement as to any increase in size, weight, and type of vehicles proposed to be operated by the applicant after such application is granted.”
That section provides:
(c) “Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or .with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint.” 49 U. S. C. § 304 (c).
49 U. S..C. §303 (10) defines “interstate commerce” as including “commerce . . . between places in the same State through another State, 49 Stat. 544.
In its declaratory opinion the Commission noted:
“In the absence of any showing that petitioner’s use of its authorized route is a subterfuge to avoid State regulation, or other than a logical and normal, operation through the carrier’s headquarters, we are of the opinion that petitioner’s operations, in the manner described, constitute bona fide transportation in interstáte commerce.
“We find that the operations described between points in Virginia through Bluefield, W. Va., are bona fide operations in interstate .commerce within the authority granted to petitioner in certificate No.' MC — 30471.” Service Storage & Transfer Co., Inc. — Petition for Declaratory Order, 71 M. C. C. 304, 306.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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. Abraham Frank ZIMMERMAN and Sylvia Zimmerman, Defendants-Appellants.
No. 72-1148.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 26, 1973.
Decided April 30, 1973.
Anna R. Lavin, Joseph M. Solon, Chicago, III., for defendants-appellants.
Scott P. Crampton, Asst. Atty. Gen., Murray S. Horwitz, Atty., Tax Division, Department of Justice, Washington, D. C., James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.
CASTLE, Senior Circuit Judge.
■On October 29, 1971, the district court entered its decision reducing to judgment certain assessments for unpaid income taxes against Abraham Zimmerman for the' years 1923 to 1931, and holding Abraham and Sylvia Zimmerman jointly and severally liable for income tax liabilities for the years 1959 through 1962. On this appeal Sylvia Zimmerman seeks relief from the joint liability imposed upon her for 1959-1962 taxes because of the amendment of the internal revenue statute upon which her liability was originally based.
Apparently the Zimmermans filed suits in the Tax Court of the United States during 1966 for a determination of their tax liabilities. (Cases Nos. 1374-66 and 1375-66.) While these suits were still pending, the United States filed an action in district court pursuant to 26 U.S.C. § 7402(a) (1964) which sought to reduce certain tax assessments against the Zimmermans to judgment. Count I of the government’s complaint alleged deficiencies for the years 1923 through 1931, and Count II alleged unpaid liabilities for the years 1959 and 1961. The Zimmermans filed their answer denying the allegations of these two counts, and they asserted the statute of limitations and the alleged failure of Counts I and II to state a cause of action. The district court litigation then became drawn out due to a series of postponed pretrial meetings, continuances, and motions for partial summary judgment. In the meantime, the Tax Court rendered a decision in cases Nos. 1374-66 and 1375-66 on July 8, 1970 “pursuant to agreement of the parties.” The decision in 1374-66 determined that the deficiencies in the income tax payments of Abraham Zimmerman for 1959, 1960, 1961 and 1962 amounted to $26,441.98, $54,096.48, $62,216.32 and $5,073.80 respectively, and that he also owed the government various additional sums for the years in question pursuant to 26 U.S.C. § 6653(b). The decision in 1375-66 found Sylvia Zimmerman liable for the same deficiencies and penalties owed by her husband for the years 1959-1962.
On August 12, 1970 the government moved to amend its complaint in the district court action “to permit all issues between the interested parties to be litigated in one action thus saving unnecces-sary litigation.” Its motion granted, the government struck Count II and alleged that the July 8 Tax Court decision had determined the assessments against the Zimmermans for 1959-62 and that the Zimmermans had refused to pay these assessments. The prayer of relief for the amended Count II sought an adjudication that:
. the defendants, Abraham F. and Sylvia Zimmerman, are jointly and severally liable and indebted to the plaintiff, United States of America, for unpaid taxes, penalties and interest assessed against them in the amount of $304,233.56, plus interest according to law.
The Zimmermans then filed their answer to the amended Count II and admitted that they owed $304,233.56 to the government. Their answer also admitted “that the United States of America is entitled to the relief prayed under Count II of the Complaint.”
After a trial on only the first count of the complaint (the liability for taxes for 1923 to 1931), the district court adjudged that the government was entitled to the relief it asked for in both Count I and Count II. Regarding Count II of the complaint, the Trial Court found:
13. The taxpayers, Abraham F. Zimmerman and Sylvia Zimmerman, cannot relitigate the taxes assessed against them on July 13, 1970 for the years 1959, 1960, 1961, 1962. These liabilities are the result of decisions of the Tax Court of the United States, which are res judicata as to the question of the liability of the defendants. On this appeal Sylvia Zimmerman
asserts that her tax liability as determined by the Tax Court and confirmed in the district court was based on a statute which subsequently has been significantly modified. Prior to January 12, 1971, a husband and wife filing a joint return were automatically jointly and severally liable for income tax deficiencies and fraud penalties incurred even though the deficiencies and penalties were due to misstatements by one spouse and the other spouse was innocent. 26 U.S.C. §§ 6013 and 6653 (1964). Public Law 91-679 amended §§ 6013 and 6653 to allow an innocent spouse to escape joint liability under certain specified circumstances. These amended statutes became effective on January 12, 1971, six months after the Tax Court decision against Sylvia Zimmerman was rendered, and at least three months before the trial of the district court action. Appellant submits that the judgment of the district court on Count II should be reversed and remanded because of this intervening change of law between the dates of the Tax Court and district court decisions. She has also attacked the finding by the district court that the prior Tax Court decision is res judicata and prevents a relitigation of her tax liabilities for 1959 through 1962.
We find that the two arguments advanced by appellant are interrelated, for she cannot avail herself of the protection of the amended statutes if the 1970 Tax Court decision is res judicata as to her tax liability for 1959 through 1962. In enacting the amendments to §§ 6013 and 6653, Congress provided:
This bill, of course, does not open a year which has been closed by the statute of limitations, res judicata or otherwise.
S.Rep.No.91-1537, 91st Cong., 2d Sess. 4 (1970), U.S.Code Cong. & Admin.News, p. 6093. If the Tax Court decision is res judicata as to her tax liabilities, the amended statutes are inapplicable to her liability.
Appellant argues that the determination of her tax liability for 1959 through 1962 cannot be res judicata because the doctrine applies only to points or questions actually litigated and determined in a prior action. United States v. International Building Co., 345 U.S. 502, 504-505, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). She extends this argument to contend that, since the amended statutes allowing an innocent spouse relief from the misstatements on a joint return did not exist at the time of the Tax Court decision against her, she should now be given an opportunity to litigate the rights made available to her by the amendments which she could not litigate in the prior action.
We believe her attempt to avoid the consequences of the doctrine of res judicata is unacceptable for two reasons. First, appellant has based her argument on the assumption that the amended statutes have given her a “right” to litigate which she did not possess prior to the amendments. Her assumption, of course, would be erroneous if Congress did not give her a “right” to seek a relitigation of tax liabilities which have already been conclusively determined. We conclude, for reasons set forth below, that no new litigable right was given to the appellant by the amendments which she can now assert. Secondly, her argument claims too much. Pushed to its limits, it would reduce the above-quoted language from the Senate Report to a nullity, for this argument would allow the reopening of any determination of tax liability, no matter whether a final determination of this liability had been reached or not. We believe that the correct interpretation of congressional intent — in line with the principle of statutory construction that congressional intent should not be read in a way that will reduce it to a nullity, First National Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966) — is that the amendments to §§ 6013 and 6653 do not give any “rights” to taxpayers to relitigate their tax liabilities if these taxes have been determined through a conclusive final judgment rendered against the taxpayer. Thus, the key issue in light of this interpretation of congressional intent is whether the Tax Court decision rendered in 1970 was a conclusive determination of appellant’s tax liability.
Our interpretation of congressional intent is supported by case law. In United States v. Maxwell, 459 F.2d 22 (5th Cir. 1972), the government sued in district court to reduce assessments against a taxpayer set by a decision of the Tax Court to judgment. The taxpayer claimed in defense that the amendment to § 6013 relieved her from joint liability with her husband. The fifth circuit rejected this argument, finding that the decision of the Tax Court, which became final when the taxpayers failed to take an appeal, was res judicata of the wife’s tax liability and precluded relitigation of this liability. Similarly, in Sylk v. United States, 331 F.Supp. 661 (E.D.Pa.1971), the taxpayers sought to enjoin the government from exposing the wife’s property to sale on the theory that the amendment to § 6013 after the Tax Court decision setting her liability relieved her of liability. The court rejected this argument, finding that the Tax Court decision was res judicata. The court also found that res judicata was applicable despite the claim by the taxpayer that the amendment to the statute gave her rights which she did not have at the time of the Tax Court adjudication. The court noted that Congress could properly grant only partial retroactive relief, and that the taxpayer in effect did not possess any rights at the time of her appeal different from those which she had at the time of the Tax Court decision.
The appellant seeks to distinguish the present case from the two above-cited decisions on the ground that the district court in the present case assumed the position of an “appellate court” by accepting the government’s amendment to its complaint (which asserted the Tax Court judgments) before the expiration of the time to appeal from the Tax Court decision. We cannot accept the argument that the district court became an appellate court which assumed the power to review the correctness of the Tax Court decision, and that consequently the Tax Court decision was not res judicata. Congress has plainly provided that all appeals from Tax Court decisions are to be determined directly by the circuit courts of appeal. 26 U.S.C. § 7483 (1970). Clearly the district court did not have jurisdiction to pass upon the merits of the Tax Court decision. The record also indicates that appellant consented to entry of judgment against her by the Tax Court by signing a stipulation that the court could enter the decision against her. It has been repeatedly held that consent to entry of judgment against oneself waives one’s right to challenge the judgment through any sort of appeal. Thonen v. Jenkins, 455 F.2d 977 (4th Cir. 1972), Stanford v. Utley, 341 F.2d 265, 271 (8th Cir. 1965), Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379, 381 (7th Cir. 1953), 9 Moore’s Federal Practice 23.06 at 719 (2d Ed. 1972). Thus, the judgment of the Tax Court became final when appellant consented to the entry of judgment against her, and the district court could assume no appellate jurisdiction over this judgment.
The appellant also attempts to distinguish the Maxwell and Sylk decisions on the ground that both cases involved a “break” in time between the Tax Court decision and the pendency of the district court proceedings. She notes that no “break” was involved in the instant case because the district court action was commenced prior to the time the Tax Court rendered its decision, and because the government promptly amended its complaint to seek to reduce the assessments determined by the Tax Court to judgment. We fail to see the implications of this attempted distinction for avoiding the effect of res judicata.
The judgment of the district court is affirmed.
Affirmed.
. Despite the fact that both Abraham and Sylvia Zimmerman have appealed, it appears that the only real appellant here is Sylvia Zimmerman, for this appeal seeks only to reverse the judgment that she is jointly and severally liable for the tax deficiencies and penalties incurred by her husband. If Sylvia were to prevail here and ultimately to prove sufficient facts to enable her to escape liability under the amended versions of 26 U.S.C. §§ 6013 and 6653, Abraham Zimmerman would then be liable for the full amount of $304,233.56.
. We recognize that this principle of law may exist as an alternative ground for our decision affirming the judgment of the district court. Since appellant filed an answer which admitted her liability under Count II and which Consented to entry of judgment against her for the amount requested by the government, she in effect waived all rights to appeal the decision on Count II.
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_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
Alfred DELMONT, Plaintiff-Appellant, v. AMERICAN KENNEL CLUB and The Westminster Kennel Club, Defendants-Ap-pellees.
No. 167, Docket 21893.
United States Court of Appeals Second Circuit.
Argued Jan. 11, 1951.
Decided Jan. 31, 1951.
Moritt, Eisenstein & Johnson, New York City, (Frederic A. Johnson, New York City, of counsel), for plaintiff-appellant.
Regan & Barrett and Edward G. Bathon,, all of New York City, for defendant-ap-pellee American Kennel Club.
Winthrop, Stimson, Putnam & Roberts, and Peter H. Kaminer, all of New York City (John N. Regan, Edward G. Bathon,. Peter H. Kaminer and James S. Rosenman, all of New York City, of counsel), for defendant-appellee Westminster Kennel dub;.
Before CHASE, CLARK and FRANK, Circuit Judges.
PER CURIAM.
Order affirmed on the authority of Martin v. National League Baseball Club, 2 Cir., 174 F.2d 917.
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_appel1_7_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
CORRIVEAU v. UNITED STATES. POWELL v. SAME.
Nos. 2547, 2548.
Circuit Court of Appeals, First Circuit.
Nov. 28, 1931.
Mortimer W. Newton, of Providence, R. I. (Joseph E. Fitzpatrick, of Providence, R. I., on the brief), for appellants.
Charles H. Eden, Asst. U. S. Atty., of Providence, R. I. (Henry M. Boss, Jr., U. S. Atty., of Providence, R. I., on the brief), for the United States.
Before BINGHAM and WILSON, Circuit Judges, and MORRIS, District Judge.
BINGHAM, Circuit Judge.
These cases are appeals from decrees of the District Court for Rhode Island ordering condemned as forfeited to the United States the American gas screw Overland and the American gas screw Alibi II, their engines, tackle, apparel, furniture, and equipment, “for violation of Section 4377 of the Revised Statutes, in that * * * [they were] employed in a trade other than that for which * * * [they were] licensed, and for violation of Seetion 453 of the Tariff Act of 1930, in that * * * [they] unlawfully unladed merchandise without a special license or permit therefor.”
The sole objection raised to either of these decrees is that the government could not enforce ' a forfeiture of the Overland or Alibi II under Revised Statutes, § 4377 (46 USCA § 325), or section 453 of the Tariff Act of 1930 (19 USCA § 1453), but must proceed, if at all, under section 26 of title 2 of the National Prohibition Act (U. S. C., tit. 27, tit. 2, § 40 [27 USCA § 40]); and Richbourg Motor Co. v. United States, 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, 73 A. L. R. 1081; Colon v. Hanlon (C. C. A.) 50 F.(2d) 353, and United States v. One La Salle Sedan (C. C. A.) 42 F.(2d) 446, are cited in support of the contention.
There is no dispute as to the facts. Coast Guardsman Mackin and Chief Boatswain’s Mate Latham were patrolling Newport Beach in Rhode Island at 3 a. m. September 30, 1930, and saw two speed boats coming towards the shore stop about two hundred yards off shore and unload sacks into dories, the sacks being then carried to the beach and loaded on to trucks, where the sacks were found to contain intoxicating liquor, and the liquors, the trucks, and the dories were seized. The speed boats, which were identified as the Overland and the Alibi II, escaped. The next day they were seized while tied up to a dock at Newport and were turned over to the collector of customs. No liquor was found on board either boat at that time. At the time of the seizure of the Overland and the Alibi II, the unidentified men who had been in charge of the boats the previous day, and who probably had tied them up at the dock, had departed. There is no evidence that since then they have been identified and arrested.
As we construe the decision in Riehbourg Motor Co. v. United States, 281 U. S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, 73 A. L. R. 1081, it is based on the mandatory terms of section 26 itself, not upon the terms, subject-matter, or character of any other statute whatever, nor upon the title or character of the officer initiating the proceedings (provided he is an officer of the law), and-the only question left open is at what stage of the proceeding’s, pri- or to arrest, if any, the mandates of seetion 26 attach and exclude a forfeiture of the boats under the provisions of law here invoked. In that case it was held that they clearly attach and become mandatory upon the discovery of the illegal transportation and the arrest of the person in charge of the vehicle; the liquor and the vehicle used in its transportation having been seized by the officer making the arrest.
The question here is whether they attach and become mandatory in the absence of an arrest, so that the vehicle must be forfeited under seetion 26, transportation having ceased, and no liquor and person being found on board to seize and to arrest.
From a careful reading of the section, it would seem that the language is as mandatory in regard to the steps to be taken from the time the officer discovers “any person in the act of transporting in violation of law, intoxicating liquors” in the vehicles mentioned as it is with reference to what shall be done at any later stage. But there can be no reasonable' contention that section 26 is applicable before discovery. That section provides that, when the officer “shall discover any person in the act of transporting in violation of the’ law, intoxicating liquors' in any * * * . vehicle, it shall be his duty to seize any and. all intoxicating liquors found there-. in being transported contrary to law,” take possession of tbo vehicle, and arrest tho “person in charge thereof.”
Discovery under this section does not take place when the officer has probable causo to believe intoxicating liquor is being transported in violation of law (in which case ho is authorized to stop and search, Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790); but it takes place, if: a search is necessary to discovery, when ho has searched the vehicle and found therein liquors that can be seized. For however good a "reason he may have had for instituting a search, if on searching the vehicle he finds no liquor therein, he can neither take the vehicle nor arrest the person in charge. In other words, his discovery of tho person in the act of transporting is not complete until he finds liquors in the vehicle that can be seized; and, if ho finds liquors in the vehicle that may be seized, his discovery is not complete, if no person is present engaged in transporting them.
In these eases then the undisclosed persons, who were in charge of the Overland and Alibi II, on the day prior to the seizure, were not discovered, within the meaning of section 26, in an act of transporting intoxicating liquors in violation of law, and the government could not proceed thereunder to forfeit the vessels.
"We are therefore of the opinion and hold that, as the search failed to disclose (1) any liquors on board, or (2) any person in the act of transporting liquors on these vessels, section 26 is not applicable, and that the government was authorized in proceeding under the provisions of law that it did.
The decrees of the District Court are affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_usc1sect
|
687
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
LAGOW et al. v. UNITED STATES.
No. 118, Docket No. 20397.
Circuit Court of Appeals, Second Circuit.
Dec. 26, 1946.
Herbert Zelenko, of New York City, for appellants.
Keith Brown and John F. X. McGahey, U. S. Atty., both of New York City, for appellee.
Before L. HAND, CHASE and FRANK, Circuit Judges.
PER CURIAM.
Both petitioners appeal from an order which directed the return of business records of the corporation, unlawfully seized, and forbade the use of the evidence against the corporation upon the trial of any indictment which might be filed against it; but which denied that relief to Lagow, the sole shareholder and officer of the corporation. Since at the time the petition was filed no indictment had been found, the appeal lies under Cogen v. United States, 278 U. S. 221, 49 S.Ct. 118, 73 L.Ed. 275.
We cannot understand what the corporation wishes more than it has obtained; and, as no point is made of the inadequacy of its relief, we shall treat as the only question involved, whether, the judge having declared the search illegal, Lagow may prevent the use against him of any information so acquired. When a man chooses to avail himself of the privilege of doing business as a corporation, even though he is its sole shareholder, he may not vicariously take on the privilege of the corporation under the Fourth Amendment; documents which he could have protected from seizure, if they had been his own, may be' used against him, no matter how they were obtained from the corporation. Its wrongs are not his wrongs; its immunity is not his immunity. This we have four times decided. In re Dooley, 2 Cir., 48 F.2d 121; United States v. De Vasto, 2 Cir., 52 F.2d 26, 78 A.L.R. 336; Connolly v. Medalie, 2 Cir., 58 F.2d 629; United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631, 636. Nor, with deference can we accept the ruling in United States v. Janitz, D.C., 6 F.R.D. 1, that Rule 41(e) of the Rules of Criminal Procedure, 18 U.S.C.A. following section 687, has changed the law. The committee expressly declared that they had no intention of doing so; nor is there anything in the text to force us to defeat that intention. We readily read the phrase, “A person aggrieved,” in the rule to cover only those persons who had been deemed “aggrieved” before.
Order affirmed.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
|
songer_casetyp2_geniss
|
H
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - bankruptcy, antitrust, securities - securities - conflicts between private parties (including corporations). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Dietrich MEYERHOFER and Herbert Federman, Appellants-Appellees, Bernson, Hoeniger, Freitag & Abbey, Appellants, Stuart Charles Goldberg, Intervenor-Appellant, v. EMPIRE FIRE AND MARINE INSURANCE COMPANY et al., Appellees-Appellants, Faulkner, Dawkins & Sullivan Securities Corp., Defendant.
Nos. 512-514, Dockets 73-2340, 73-2443, 73-2501.
United States Court of Appeals, Second Circuit.
Argued Jan. 16, 1974.
Decided June 10, 1974.
Rogers M. Doering, New York City (Simpson, Thacher & Bartlett, and Cynthia M. Cohen, New York City, of counsel), for appellants and cross-appellees Dietrich Meyerhofer, Herbert Federman and Bernson, Hoeniger, Freitag & Abbey.
Lawrence M. McKenna, New York City (Wormser, Kiely, Allesandroni, Ma-honey & McCann, New York City, of counsel), for intervenor-appellant Stuart Charles Goldberg.
Anthony L. Tersigni, New York City (Aranow, Brodsky, Bohlinger, Benetar, Einhorn & Dann, George Berlstein and Kathryn E. Zenoff, New York City, of counsel), for appellees and cross-appellants Empire Fire and Marine Ins. Co., Gary O. Gross, Yale J. Kaplan, Robert A. Phillips, Francis J. Kratky, Nick Lalich, L. C. Swick and M. M. Jennings, Jr.
Robert E. Meshel, New York City (D’Amato, Costello & Shea, George G. D’Amato, New York City, of counsel), for appellees and cross-appellants Sitomer, Sitomer & Porges, Alvin L. Sitomer, Stephen J. Sitomer and Robert E. Porges.
The Securities and Exchange Commission, Lawrence E. Nerheim, Gen. Counsel, Theodore Sonde, Asst. Gen. Counsel and Theodore L. Freedman, Atty., Washington, D. C., as amicus curiae.
Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
MOORE, Circuit Judge:
This is an appeal by Dietrich Meyerhofer and Herbert F'ederman, plaintiffs, and their counsel, Bernson, Hoeniger, Freitag & Abbey, from an order of the United States District Court for the Southern District of New York, dated August 23, 1973, (a) dismissing without prejudice plaintiffs’ action against defendants, (b) enjoining and disqualifying plaintiffs’ counsel, Bernson, Hoeniger, Freitag & Abbey, and Stuart Charles Goldberg from acting as attorneys for plaintiffs in this action or in any future action against defendant Empire Fire and Marine Insurance Company (Empire) involving the same transactions, occurrences, events, allegations, facts or issues, and (c) enjoining Bern-son, Hoeniger, Freitag & Abbey and Stuart Charles Goldberg from disclosing confidential information regarding Empire to others. Intervenor Stuart Charles Goldberg also appeals from said order.
Defendants Empire, Gross, Kaplan, Phillips, Kratky, Lalich, Swick, Jennings, Jr., Sitomer, Sitomer & Porges, A. L. Sitomer, S. J. Sitomer and Robert E. Porges cross-appeal from the order insofar as that order failed to disqualify plaintiffs, Meyerhofer and Federman, from acting as class representatives of those who purchased the common stock of Empire, or to enjoin them from disclosing confidential information learned either from Bernson, Hoeniger, Freitag & Abbey or from Stuart Charles Goldberg.
The full import of the problems and issues presented on this appeal cannot be appreciated and analyzed without an initial statement of the facts out of which they arise.
Empire Fire and Marine Insurance Company on May 31, 1972, made a public offering of 500,000 shares of its stock, pursuant to a registration statement filed with the Securities and Exchange Commission (SEC) on March 28, 1972. The stock was offered at $16 a share. Empire’s attorney on the issue was the firm of Sitomer, Sitomer & Porges. Stuart Charles Goldberg was an attorney in the firm and had done some work on the issue.
Plaintiff Meyerhofer, on or about January 11, 1973, purchased 100 shares of Empire stock at $17 a share. He alleges that as of June 5, 1973, the market price of his stock was only $7 a share— hence, he has sustained an unrealized loss of $1,000. Am’d Compl. if 9a. Plaintiff Federman, on or about May 31, 1972, purchased 200 shares at $16 a share, 100 of which he sold for $1,363, sustaining a loss of some $237 on the stock sold and an unrealized loss of $900 on the stock retained.
On May 2, 1973, plaintiffs, represented by the firm of Bernson, Hoeniger, Freitag & Abbey (the Bernson firm), on behalf of themselves and all other purchasers of Empire common stock, brought this action alleging that the registration statement and the prospectus under which the Empire stock had been issued were materially false and misleading. Thereafter, an amended complaint, dated June 5, 1973, was served. The legal theories in both were identical, namely, violations of various sections of the Securities Act of 1933, the Securities Exchange Act of 1934, Rule 10b-5, and common law negligence, fraud and deceit. Damages for all members of the class or rescission were alternatively sought.
The lawsuit was apparently inspired by a Form 10-K which Empire filed with the SEC on or about April 12, 1973. This Form revealed that “The Registration Statement under the Securities Act of 1933 with respect to the public offering of the 500,000 shares of Common Stock did not disclose the proposed $200,000 payment to the law firm as well as certain other features of the compensation arrangements between the Company [Empire] and such law firm [defendant Sitomer, Sitomer and Porges].” Later that month Empire disseminated to its shareholders a proxy statement and annual report making similar disclosures.
The defendants named were Empire, officers and directors of Empire, the Sitomer firm and its three partners, A. L. Sitomer, S. J. Sitomer and R. E. Porges, Faulkner, Dawkins & Sullivan Securities Corp., the managing underwriter, Stuart Charles Goldberg, originally alleged to have been a partner of the Sitomer firm, and certain selling stockholders of Empire shares.
On May 2, 1973, the complaint was served on the Sitomer defendants and Faulkner. No service was made on Goldberg who was then no longer associated with the Sitomer firm. However, he was advised by telephone that he had been made a defendant. Goldberg inquired of the Bernson firm as to the nature of the charges against him and was informed generally as to the substance of the complaint and in particular the lack of disclosure of the finder’s fee arrangement. Thus informed, Goldberg requested an opportunity to prove his non-involvement in any such arrangement and his lack of knowledge thereof. At this stage there was unfolded the series of events which ultimately resulted in the motion and order thereon now before us on appeal.
Goldberg, after his graduation from Law School in 1966, had rather specialized experience in the securities field and had published various books and treatises on related subjects. He became associated with the Sitomer firm in November 1971. While there Goldberg worked on phases of various registration statements including Empire, although another associate was responsible for the Empire registration statement and prospectus. However, Goldberg expressed concern over what he regarded as excessive fees, the nondisclosure or inadequate disclosure thereof, and the extent to which they might include a “finder’s fee,” both as to Empire and other issues.
The Empire registration became effective on May 31, 1972. The excessive fee question had not been put to rest in Goldberg’s mind because in middle January 1973 it arose in connection with another registration (referred to as “Glacier”). Goldberg had worked on Glacier. Little purpose will be served by detailing the events during the critical period January 18 to 22, 1973, in which Goldberg and the Sitomer partners were debating the fee disclosure problem. In summary Goldberg insisted on a full and complete disclosure of fees in the Empire and Glacier offerings. The Sitomer partners apparently disagreed and Goldberg resigned from the firm on January 22, 1973.
On January 22, 1973, Goldberg appeared before the SEC and placed before it information subsequently embodied in his affidavit dated January 26,' 1973, which becomes crucial to the issues now to be considered.
Some three months later, upon being informed that he was to be included as a defendant in the impending action, Goldberg asked the Bernson firm for an opportunity to demonstrate that he had been unaware of the finder’s fee arrangement which, he said, Empire and the Sitomer firm had concealed from him all along. Goldberg met with members of the Bernson firm on at least two occasions. After consulting his own attorney, as well as William P. Sullivan, Special Counsel with the Securities and Exchange Commission, Division of Enforcement, Goldberg gave plaintiffs’ counsel a copy of the January 26th affidavit which he had authored more than three months earlier. He hoped that it would verify his nonparticipation in the finder’s fee omission and convince the Bernson firm that he should not be a defendant. The • Bernson firm was satisfied with Goldberg’s explanations and, upon their motion, granted by the court, he was dropped as a defendant. After receiving Goldberg’s affidavit, the Bern-son firm amended plaintiffs’ complaint. The amendments added more specific facts but did not change the theory or substance of the original complaint.
By motion dated June 7, 1973, the remaining defendants moved “pursuant to Canons 4 and 9 of the Code of Professional Responsibility, the Disciplinary Rules and Ethical Considerations applicable thereto, and the supervisory power of this Court” for the order of disqualification now on appeal.
By memorandum decision and order, the District Court ordered that the Bernson firm and Goldberg be barred from acting as counsel or participating with counsel for plaintiffs in this or any future action against Empire involving the transactions placed in issue in this lawsuit and from disclosing confidential information to others.
The complaint was dismissed without prejudice. The basis for the Court’s decision is the premise that Goldberg had obtained confidential information from his client Empire which, in breach of relevant ethical canons, he revealed to plaintiffs’ attorneys in their suit against Empire. The Court said its decision was compelled by “the broader obligations of Canons 4 and 9.”
There is no proof — not even a suggestion — that Goldberg had revealed any information, confidential or otherwise, that might have caused the instigation of the suit. To the contrary, it was not until after the suit was commenced that Goldberg learned that he was in jeopardy. The District Court recognized that the complaint had been based on Empire’s — not Goldberg’s — disclosures, but concluded because of this that Goldberg was under no further obligation “to reveal the information or to discuss the matter with plaintiffs’ counsel.”
Despite the breadth of paragraphs EC 4-4 and DR 4-101 (B), DR 4-101(C) recognizes that a lawyer may reveal confidences or secrets necessary to defend himself against “an accusation of wrongful conduct.” This is exactly what Goldberg had to face when, in their original complaint, plaintiffs named him as a defendant who wilfully violated the securities laws.
The charge, of knowing participation in the filing of a false and misleading registration statement, was a serious one. The complaint alleged violation of criminal statutes and civil liability computable at over four million dollars. The cost in money of simply defending such an action might be very substantial. The damage to his professional reputation which might be occasioned by the mere pendency of such a charge was an even greater cause for concern.
Under these circumstances Goldberg had the right to make an appropriate disclosure with respect to his role in the public offering. Concomitantly, he had the right to support his version of the facts with suitable evidence.
The problem arises from the fact that the method Goldberg used to accomplish this was to deliver to Mr. Abbey, a member of the Bernson firm, the thirty page affidavit, accompanied by sixteen exhibits, which he had submitted to the SEC. This document not only went into extensive detail concerning Goldberg’s efforts to cause the Sitomer firm to rectify the nondisclosure with respect to Empire but even more extensive detail concerning how these efforts had been precipitated by counsel for the underwriters having come upon evidence showing that a similar nondisclosure was contemplated with respect to Glacier and their insistence that full corrective measures should be taken. Although Goldberg’s description reflected seriously on his employer, the Sitomer firm and, also, in at least some degree, on Glacier, he was clearly in a situation of some urgency. Moreover, before he turned over the affidavit, he consulted both his own attorney and a distinguished practitioner of securities law, and he and Abbey made a joint telephone call to Mr. Sullivan of the SEC. Moreover, it is not clear that, in the context of this case, Canon 4 applies to anything except information gained from Empire. Finally, because of Goldberg’s apparent intimacy with the offering, the most effective way for him to substantiate his story was for him to disclose the SEC affidavit. It was the fact that he had written such an affidavit at an earlier date which demonstrated that his story was not simply fabricated in response to plaintiffs’ complaint.
The District Court held: “All that need be shown ... is that during the attorney-client relationship Goldberg had access to his client’s information relevant to the issues here.” See Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). However, the irrebutable presumption of Emle Industries has no application to the instant circumstances because Goldberg never sought to “prosecute litigation,” either as a party, compare Richardson v. Hamilton International Corp., 62 F.R.D. 413 (E.D.Pa.1974), or as counsel for a plaintiff party. Compare T. C. Theatre Corporation v. Warner Brothers Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). At most the record discloses that Goldberg might be called as a witness for the plaintiffs but that role does not invest him with the intimacy with the prosecution of the litigation which must exist for the Emle presumption to attach.
In addition to finding that Goldberg had violated Canon 4, the District Court found that the relationship between Goldberg and the Bernson firm violated Canon 9 of the Code of Professional Responsibility which provides that:
EC 9-6 Every lawyer [must] strive to avoid not only professional impropriety but also the appearance of impropriety.
The District Court reasoned that even though there was no evidence of bad faith on the part of either Goldberg or the Bernson firm, a shallow reading of the facts might lead a casual observer to conclude that there was an aura of complicity about their relationship. However, this provision should not be read so broadly as to eviscerate the right of self-defense conferred by DR4101(C)(4).
Nevertheless, Emle Industries, Inc. v. Patentex, Inc., supra, requires that a strict prophylactic rule be applied in these cases to ensure that a lawyer avoids representation of a party in a suit against a former client where there may be the appearance of a possible violation of confidence. To the extent that the District Court’s order prohibits Goldberg from representing the interests of these or any other plaintiffs in this or similar actions, we affirm that order. We also affirm so much of the District Court’s order as enjoins Goldberg from disclosing material information except on discovery or at trial.
The burden of the District Court’s order did not fall most harshly on Goldberg; rather its greatest impact has been felt by Bernson, Hoeniger, Freitag & Abbey, plaintiffs’ counsel, which was disqualified from participation in the case. The District Court based its holding, not on the fact that the Bernson firm showed bad faith when it received Goldberg’s affidavit, but rather on the fact that it was involved in a tainted association with Goldberg because his disclosures to them inadvertently violated Canons 4 and 9 of the Code of Professional Responsibility. Because there are no violations of either of these Canons in this case, we can find no basis to hold that the relationship between Goldberg and the Bernson firm was tainted. The District Court was apparently unpersuaded by appellees’ salvo of innuendo to the effect that Goldberg “struck a deal” with the Bernson firm or tried to do more than prove his innocence to them. Since its relationship with Goldberg was not tainted by violations of the Code of Professional Responsibility, there appears to be no warrant for its disqualification from participation in either this or similar actions. A fortiori there was no sound basis for disqualifying plaintiffs or dismissing the complaint.
Order dismissing action without prejudice and enjoining Bernson, Hoeniger, Freitag & Abbey from acting as counsel for plaintiffs herein reversed. Upon cross-appeal by Empire, Gross, Kaplan, Phillips, Kratky, Lalich, Swick and Jennings, Jr., and cross-appeal by Sitomer, Sitomer and Porges, A. L. Sitomer, S. J. Sitomer and R. E. Porges insofar as said orders failed to enjoin plaintiffs from disclosing confidential information regarding Empire and to disqualify plaintiffs from representing themselves or a similar class of Empire stockholders, appeals dismissed. To the extent that the orders appealed from prohibit Goldberg from acting as a party or as an attorney for a party in any action arising out of the facts herein alleged, or from disclosing material information except on discovery or at trial, they are affirmed.
. Code of Professional Responsibility
Canon 4
A lawyer Should Preserve the Confidence and Secrets of a Client Ethical Considerations
EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him.
EC 4-4 The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. The ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge. A lawyer should endeavor to act in a manner which preserves the evidentiary privilege ....
EC 4^5 A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes ....
EC 4-6 The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment ....
Disciplinary Rules
DR 4-101 Preservation of Confidences and Secrets of a Client.
(A) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101(0), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his clienl to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
(C) A lawyer may reveal:
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.
Canon 9
A Lawyer Should Avoid Even the Appearance of Professional Impropriety Ethical Considerations
EC 9-1 Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession.
EC 9-6 Every lawyer owes a solemn duty to uphold the integrity and honor of his profession: to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.
Question: What is the second general issue in the case, other than economic activity and regulation - bankruptcy, antitrust, securities - securities - conflicts between private parties (including corporations)?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_district
|
D
|
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".
R.J. DISTRIBUTING COMPANY, an Illinois corporation, Plaintiff-Appellee, v. TEAMSTERS, CHAUFFEURS & HELPERS LOCAL UNION NO. 627, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Defendant-Appellant.
No. 84-2014.
United States Court of Appeals, Seventh Circuit.
Argued May 23, 1985.
Decided Aug. 16, 1985.
Gerry M. Miller, Goldberg, Previant, Uelman, Gratz & Miller, Milwaukee, Wis., for defendant-appellant.
Thomas E. Leiter, Leiter, Leiter & Sahn, Peoria, 111., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and WYATT, Senior District Judge .
The Honorable Inzer Bass Wyatt, Senior District Judge for the Southern District of New York, is sitting by designation.
HARLINGTON WOOD, Jr., Circuit Judge.
In this appeal, we are asked to determine whether the district court correctly concluded that a grievance filed by the Teamsters, Chauffeurs, and Helpers Local Union No. 627 (the “Union”) is not subject to arbitration under the collective bargaining agreement between R.J. Distributing Company (“R.J.”) and the Union.
I.
On May 1,1983, the Union executed, as it had for the preceding twenty years, a collective bargaining agreement with a number of companies, collectively, the Beer and Liquor Distributors of the Peoria, Illinois area. R.J. is a member of this multiemployer bargaining group. The Union represents the employees of the signatory companies. Pabst Brewing Company, which had been a member of this multiemployer bargaining group since at least 1971, withdrew in 1977. Since 1977, Pabst has negotiated and executed separate agreements with the Union.
In 1971, the Union and the Beer and Liquor Distributors negotiated “Sale of Assets” provisions which have been included in substantially the same form in all subsequent agreements between the parties. The “Sale of Assets” provisions of the 1983 agreement between the Union and the Beer and Liquor Distributors read as follows: Section 21.1:
In the event the Company, party to this Agreement, acquires work or performs services previously performed by a company not party to this Agreement, then in that event, the employees of such company not party to this Agreement shall have no rights under this Agreement, including, specifically, the right to go with the work and acquire seniority under the terms and provisions of this Agreement, except as new employees. Section 21.2:
In the event that this Company, party to this Agreement, acquires work or performs services previously performed by another company who is also a party to this Agreement, then in that event, the employee so affected shall have the right to follow the work, and shall retain benefits and rights previously in effect with their former Company.
The corresponding sections of the 1983 agreement between the Union and Pabst are identical.
On August 9, 1983, Pabst and R.J. entered into an agreement whereby R.J. agreed to purchase Pabst’s distribution operation in the Peoria area. On August 25, 1983, the Union filed a grievance against R.J., claiming that under section 21.2 of the 1983 agreement between the Union and the Beer and Liquor Distributors, the Pabst employees were entitled to employment with R.J. and to retain the benefits and seniority they had acquired during their employment with Pabst. On August 26, 1983, Pabst terminated the employment of employees represented by the Union under the Pabst agreement.
When R.J. denied the grievance, the Union sought to invoke the arbitration provisions of the agreement.
Section 13.1 provides that:
Should any controversy arise over the interpretation, application, or working conditions covered by this agreement, which cannot be settled verbally by the employee and the Company, it shall be reduced to writing no later than fourteen (14) days after such impasse is reached.
Within five-days of receiving the Union’s grievance, the Company must schedule a meeting with the Union’s business agent. Within five days of the meeting, the Company must provide the agent a written answer. Section 13.2 of the Agreement. If the dispute has not been satisfactorily resolved, the Union may request arbitration within ten days of the Company’s answer. Section 13.3 of the Agreement. Under section 13.5, “the arbitrator shall be bound by the terms and provisions of this Agreement and shall have authority to consider only grievances presenting an arbitrable issue under this Agreement.”
R.J. refused to arbitrate, and filed an action pursuant to section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, seeking a declaration that it was not required to arbitrate the dispute and that section 21.1 of the agreement applied to the controversy. The Union counterclaimed to compel R.J. to arbitrate the grievance. Both parties moved for summary judgment. Following an evidentiary hearing, R.J.’s motion was granted, the Union s motion was denied, and the case was dismissed.
The district court reasoned that the dispute was not arbitrable because the Union was asserting the interests of employees who were not covered by the agreement between the Union and the Beer and Liquor Distributors. The court held that its finding that the dispute was not arbitrable because Pabst was not a signatory to the agreement between the Union and the Beer and Liquor Distributors mandated the conclusion that Pabst employees have no rights under section 21.2 of the agreement. The Union appeals.
II.
The Union phrases the underlying disputed issue as follows: whether section 21.1 or section 21.2 governs the fate of Pabst employees following the acquisition of the Pabst Peoria area distribution operation by R.J. The resolution of this issue is dependent upon the proper interpretation of the phrase “party to this Agreement,” which is contained in both sections. The resolution of these issues, the Union claims, is resolution of the merits of the dispute. Under well-established principles of labor law, which limit a court’s authority to determining “whether the party seeking arbitration is making a claim which on its face is governed by the contract,” United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 567-68, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960), consideration of these issues was beyond the district court’s power. The district court, the Union contends, was limited to deciding whether these issues were subject to arbitration under the arbitration provisions of the agreement as “controversies ... over the interpretation” of the agreement. The Union argues that the court erred in basing its arbitrability determination on its interpretation of sections 21.1 and 21.2, the substantive provisions of the agreement that are the focus of the dispute.
Although suggesting in its brief that the issues of arbitrability and the appropriate resolution of the merits of the underlying dispute were sufficiently distinct to permit the district court to rule on the former without becoming entangled in the latter, at oral argument, the Union, relying on this court’s recent decision in Communication Workers of America v. Western Electric Co., 751 F.2d 203 (7th Cir.1984), argued that we should compel arbitration of the arbitrability issue as well as the underlying dispute because a decision on arbitrability in this case necessarily involves interpretation of the substantive provisions of the agreement, i.e., the merits of the dispute.
Citing section 13.5 of the agreement, R.J. retorts that an arbitrator has the authority to consider only grievances arising “under this Agreement.” Because the Union filed the grievance on behalf of former Pabst employees who never worked under the R. J.-Union agreement, the grievance cannot be deemed to arise under that agreement. R.J. urges us to reject the Union’s contention that an arbitrability determination that concomitantly effects a resolution of the underlying dispute is always an impermissible decision on the merits.
It is axiomatic that arbitration is a matter of contract. A party cannot be forced to submit to arbitration a dispute that it has not consented to submit. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). The federal court’s task is to ascertain from the contract whether the reluctant party agreed to arbitrate the grievance. As a general rule, if the contract is susceptible of an interpretation that the dispute is arbitrable, arbitration should be ordered. But if the court is positively assured that the contract is not susceptible of such an interpretation, arbitration cannot be ordered.
Under the agreement between the Union and R.J., a grievance is implicitly defined in section 13.1 as “any controversy ... over the interpretation, application, or working conditions covered by [the] agreement, which cannot be settled verbally by the employee and the Company.” The arbitrator has the authority “to consider only grievances presenting an arbitrable issue under [the] agreement.” Arbitrable issues, then, are controversies over the interpretation, application, or working conditions covered by the agreement which cannot be settled either verbally by the company and the employee or in a meeting between the Union’s business agent and a company representative.
We think it beyond peradventure that only disputes between parties to the agreement, that is, the signatory companies and the Union in its capacity as representative of their employees, are arbitrable under the agreement. The collective bargaining agreement at issue governs the employment relationship between “the undersigned Beer and Liquor Distributors,” including R.J., and their employees. Pabst admittedly was not a signatory to this agreement; rather it negotiated and executed a separate agreement with the Union. The Pabst-Union agreement alone covered Pabst employees. Pabst employees acquired no rights under the R.J.-Union agreement that they could seek to enforce through its grievance-arbitration mechanism.
True, the Union represents Pabst employees as well as R.J. employees but under separate agreements, separately negotiated. Commonality of representation is an insufficient basis for finding this dispute arbitrable under the R.J.-Union agreement. The Union is a party to that agreement, but only in its capacity as representative of the employees of the signatory companies. This representative capacity gives the Union standing under the agreement to assert the grievances of those employees. At the time the grievance was filed in this case, the employees on whose behalf the Union was pursuing the grievance were Pabst employees. The Union, in its capacity as representative of the Pabst employees, was not a party to the agreement it had negotiated and signed on behalf of the employees of those companies comprising the multiemployer bargaining unit of the Beer and Liquor Distributors.
The Union informs us that this court’s decision in Local 703, International Brotherhood of Teamsters v. Kennicott Bros. Co., 725 F.2d 1088 (7th Cir.1982), makes clear that the Union’s attempt to represent the interests of Pabst employees under the agreement between it and R.J. is not an appropriate basis for exempting the grievance from arbitration. We disagree that Kennicott is dispositive. Under the collective bargaining agreement between Kennicott Brothers and Local 703, Local 703 represented the “flower packers, wrappers, and stockmen.” The underlying dispute was whether the “bouquet makers” could be deemed to be either flower packers, wrappers or stockmen. True, the issue was representational in the sense that if bouquet makers were not found to be within one of these job categories, they would not be represented by the union. But there is a clear difference between the union’s attempt to represent the interests of production workers concededly employed by Kennicott and therefore arguably covered by the agreement between the parties and this Union’s attempt to represent the interests of Pabst workers concededly not then employed by R.J. and therefore not covered by the agreement between the Union and R.J. Kennicott essentially involved merely an in-house squabble over the proper classification of certain production workers, a dispute that clearly arose under the collective bargaining agreement. The instant case, in stark contrast, involves an attempt to pursue a grievance on behalf of persons not employed by the company with whom the Union had contracted.
Nor is our holding in conflict with our recent decision in Western Electric. In that case, we sent the arbitrability issue to the arbitrator because there were colorable arguments both for and against exclusion of the issue from arbitration, the resolution of which would require interpretation of less than clear substantive provisions. 751 F.2d at 207. Here, there is no colorable argument against exclusion of the issue from arbitration. Nor do we need to interpret any substantive provision of the agreement to decide whether this dispute is arbitrable. We need only look to the introductory paragraph of the agreement which makes clear that the agreement was entered into by the Union and the undersigned companies. Pabst was not a signatory to the agreement. It follows that Pabst employees were not covered by the agreement and have no standing to enforce its arbitration provisions.
We see no reasoned basis for distinguishing between a signatory to the agreement and a party to the agreement; they are one and the same, and Pabst is neither. Pabst employees therefore have no right to follow the work or retain the seniority acquired with Pabst. The Union’s argument that the sale of assets provisions are meaningless if not enforceable against the successor company is unavailing. Had the Union wanted to protect successfully the interests of Pabst employees following a sale by Pabst of its distribution operation, it should have bargained for such protection in its agreement with Pabst. It did not. Neither this court nor an arbitrator can now remedy that failure.
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_genapel1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellant, v. William B. DONNELL, Appellee.
No. 18638.
United States Court of Appeals Eighth Circuit.
Aug. 8, 1967.
Howard L. McFadden, Asst. Atty. Gen., Jefferson City, Mo., for appellant; Norman H. Anderson, Atty. Gen., Jefferson City, Mo., was with him on the brief.
P. Pierre Dominique, Jefferson City, Mo., for appellee.
Before VOGEL, Chief Judge, and VAN OOSTERHOUT, MATTHES, BLACK-MUN, MEHAFFY, LAY and HEANEY, Circuit Judges, Sitting En Banc.
MATTHES, Circuit Judge.
The crucial question presented in this habeas corpus proceeding is whether Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, (1963), is to be applied retrospectively to the ease of William B. Donnell, an indigent Missouri prisoner, whose conviction in 1960 was affirmed by the Supreme Court of that state in November, 1961. State v. Donnell, 351 S.W.2d 775 (Mo.1961). The district court, Judge Oliver, decided the retroactivity issue in favor of Donnell and entered an order which determined that he was entitled to the relief sought in his application for writ of habeas corpus, but which suspended issuance of the writ for a period of ninety days in order to afford the State of Missouri an opportunity to reprocess Donnell’s appeal. Donnell v. Swenson, 258 F.Supp. 317, 335-36 (W.D. Mo.1966). Swenson, as warden of the Missouri State Penitentiary, has appealed from that order.
Judge Oliver demonstrated in an exhaustive and fully documented opinion that the rule promulgated in Douglas has been given retrospective application by the Supreme Court and other federal and state courts. Donnell v. Swenson, supra at 329-332. In view of Judge Oliver’s full discussion of all the relevant authorities it would be a needless exercise here to survey the law he so thoroughly explored.
At the outset we observe that no question is presented as to the exhaustion of Donnell’s state remedies. He filed a motion to vacate the sentence pursuant to Missouri Rule 27.26. Mo.Sup.Ct. (Crim.) R. 27.26. From the denial of this motion Donnell perfected an appeal through appointed counsel. The Supreme Court of Missouri, after due consideration of all constitutional allegations attacking the validity of the sentence, affirmed. State v. Donnell, 387 S.W.2d 508 (Mo. 1965).
The validity of Donnell’s attack upon his conviction turned in the first instance upon the resolution of the paramount question whether the long-standing Missouri practice of disposing of appeals of nonrepresented indigent defendants comported with the constitutional standards enunciated in Douglas. That issue was squarely presented in Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), where we held, after full consideration of the Missouri system, that “[d] espite Missouri’s forward treatment of indigents under the former practice, * * * [that] procedure failed to conform to the concept formulated by the Supreme Court in Douglas.” 363 F.2d at 157. In deciding Bosler we were not required to, and did not decide, the applicability of the Douglas rule to convictions in Missouri which had become final prior to the decision in Douglas (March 18, 1963). We did demonstrate, however, that Douglas applied to Bosler for the reason that his appeal was pending at the time Douglas was decided. 363 F.2d 157-158.
On application of the State of Missouri the Supreme Court summarily granted certiorari and affirmed per curiam. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (March 13, 1967). The Supreme Court in its opinion rejected without discussion the contention that the Missouri practice, unlike the California appellate review proceedings, afforded an adequate means of fully protecting the rights of indigent defendants.
Although the Supreme Court in Bosler did not intimate that Douglas would be given retroactive effect to preDouglas Missouri convictions, that question was, in our view, settled by Hester v. Swenson, 386 U.S. 261, 87 S.Ct. 1039, 18 L.Ed.2d 49 (March 13, 1967) and Deckard v. Warden, Missouri State Penitentiary, 386 U.S. 284, 87 S.Ct. 1041, 18 L.Ed.2d 50 (March 13, 1967), decided contemporaneously with Swenson v. Bosler, supra. The convictions of Hester and Deckard, Missouri prisoners, had been affirmed by the Missouri Supreme Court prior to the advent of Douglas. State v. Hester, 331 S.W.2d 535 (Mo. February 8, 1960); State v. Deckard, 354 S.W.2d 886 (Mo. February 12, 1962). Subsequently Hester and Deckard sought habeas corpus relief from the Supreme Court of Missouri on the ground that they had been deprived of the services of counsel on appeal from the judgment of conviction. Following denial of such relief, they applied to the Supreme Court of the United States for certiorari. The Attorney General of Missouri opposed the granting of certiorari on the same premise advanced in Swenson v. Bosler, supra, i. e., that the Missouri appellate process was sufficient to protect the rights of indigent defendants. The Supreme Court, however, in each case summarily granted the petition for writ of certiorari, vacated the judgment, and remanded to the Supreme Court of Missouri for further consideration in light of Swenson v. Bosler, supra; Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); and Tehan v. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966).
In view of the course charted by the Supreme Court we have no alternative but to retroactively apply the principles of Douglas to the case before us. We are mindful, of course, that our decision may have profound consequences on the orderly processes of criminal law administration. The Attorney General of Missouri has estimated that seventy-five pre-Douglas appeals will require reprocessing. The Supreme Court has given due weight to the effect on the administration of justice of a retroactive application of new constitutional standards. See, e. g., Stovall v. Denno, supra, 87 S.Ct. at 1969; Johnson v. State of New Jersey, 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. Shott, supra, 382 U.S. at 418-419, 86 S. Ct. 459; Linkletter v. Walker, 381 U.S. 618, 637-638, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Although this circumstance deserves careful consideration, the Supreme Court manifestly viewed the deprivation of the constitutional right to counsel on appeal as paramount to the difficulties inherent in reprocessing appeals of convictions.
The order appealed from is affirmed.
FLOYD R. GIBSON, Circuit Judge, did not participate in the disposition of this appeal.
. In addition to those authorities cited by Judge Oliver, the Supreme Court on several other occasions has summarily reversed pre-Douglas convictions in light of Douglas. See, e. g., Head v. State of California, 374 U.S. 509, 83 S.Ct. 1883, 10 L.Ed.2d 1047 (1963) ; Jones v. State of California, 374 U.S. 501, 83 S.Ct. 1S78, 10 L.Ed.2d 1045 (1963) ; Harris v. California, 374 U.S. 499, 83 S.Ct. 1870, 10 L.Ed.2d 1044 (1963) ; Tiller v. California, 372 U.S. 771, 83 S.Ct. 1107, 10 L.Ed.2a 140 (1963).
. See also Tettamble v. Missouri, 386 U.S. 265, 87 S.Ct. 1034, 18 L.Ed.2d 42 (March 13, 1967), reversing per curiam, State v. Tettamble, 394 S.W.2d 375 (Mo.1965), a post-Douglas decision.
. Recent opinions of the Supreme Court, moreover, firmly reiterate its holding that an indigent defendant is entitled to the appointment of counsel to assist him in his first appeal and that appointed counsel must function in the effective role of an advocate. Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1896, 18 L.Ed.2d 493 (May 8, 1967) ; Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (May 8, 1967). More recently in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (June 12, 1967), the Supreme Court, in giving prospective application only to the exclusionary rule promulgated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), reflected at length upon some of the criteria governing retroactive operation of constitutional rules:
“It is true that the right to the assistance of counsel has been applied retroactively at stages of the prosecution where denial of the right must al-
most invariably deny a fair trial, for example, at the trial itself, Gideon v. Wainwriglit, 372 U.S. 335, or at some forms of arraignment, Hamilton v. [State of] Alabama, 368 U.S. 52, [83 S.Ct. 792, 9 L.Ed.2d 799] or on appeal Douglas v. [People of State of] California, 372 U.S. 353, [83 S.Ct. S14, 9 L.Ed.2d 811.] ‘The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent.’ ” 388 U.S. at 297, 87 S.Ct. at 1970.
. This information appears in an article entitled “Criminal Briefs; Rules Changed” by Howard L. McEadden, head of the Criminal Division in the Missouri Attorney General’s Office, appearing in the June, 1967 issue of the Journal of the Missouri Bar.
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_usc1sect
|
270
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 40. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
A. B. COOLEY, d/b/a, etc., Plaintiff, Appellant, v. BARTEN & WOOD, Inc., et al., Defendants, Appellees.
No. 5284.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1957.
Decided Dec. 5, 1957.
Malcolm S. Stevenson, Bangor, Me., with whom Gerald E. Rudman, Bangor, Me., was on brief, for appellant.
John W. Ballou, Bangor, Me., for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal by the plaintiff from a summary judgment for the defendants granted by the United States District Court for the District of Maine.
The plaintiff brought action under the Miller Act, 49 Stat. 794 (1935), 40 U.S. C.A. § 270b, against the principal contractor, Albert A. Lutz Company, Inc., and its sureties, for materials supplied to Lutz’s subcontractor, Barten & Wood, Inc., to be used in the erection of a hangar at a United States Air Force Base in Limestone, Maine.
Plaintiff and Barten & Wood, Inc. entered into a contract on April 16, 1954 for the supplying of cinder block and other masonry materials, and shipments were made under this contract from time to time until December 17, 1954 when Barten & Wood, Inc. requested an interruption in the delivery of the materials until the following spring “owing to the progress of the work.” Barten & Wood, Inc., hereafter referred to as the subcontractor, continued to make payments on account of the materials already supplied until April 9, 1955, at which time it promised that payment in full for all past materials would be made on May 1, 1955. This promise was not kept and thereafter the subcontractor was adjudicated bankrupt. On May 9, 1955 plaintiff notified Lutz, the principal contractor, in writing of the default in payment by the subcontractor.
The main issue here is whether this notice of May 9, 1955 meets the requirements of § 270b(a) of the Miller Act which provides in part:
“* * * That any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. * * *”
We shall first deal with plaintiff’s contention that there was no necessity for a ninety day notice by him as there was an implied contract between himself and Lutz and, therefore, the plaintiff’s right of action was derived from the part of § 270b(a) providing for materialmen who deal' directly with principal contractors and not from the proviso quoted above relating to materialmen who deal with subcontractors. This contractual relationship is said to rise out of Lutz’s knowledge of the aforesaid contract between plaintiff and the subcontractor and also because Lutz sent directly to the plaintiff a copy of a letter from Lutz to the subcontractor concerning the date of delivery and the quality of the materials. These facts alone do not create a contractual relationship between Lutz and the plaintiff. The district court was correct in holding that there was no genuine issue of fact as to the existence of an implied contract directly between Lutz and plaintiff.
The plaintiff’s rights must be based on his contract with the subcontractor. The first question presented is whether the notice given to Lutz on May 9, 1955 was given within ninety days “* * * from the date on which such person * * * supplied the last of the material for which such claim is made.” It is undisputed that no material was delivered after December 17, 1954, and after that date nothing further was done by the plaintiff in connection with the material delivered prior to December 17, 1954. Cf. United States for Use and Benefit of P. A. Bourquin & Co. v. Chester Const. Co., 2 Cir., 1939, 104 F.2d 648. We must conclude, therefore, that the ninety day notice period began on December 17, 1954.
In essence the plaintiff argues that in the instant case the Miller Act should not be so construed as to hold that the giving of notice within the ninety day period is a condition precedent to its right of recovery. However, in Fleisher Engineering & Construction Co. v. United States, 1940, 311 U.S. 15, 18, 19,. 61 S.Ct. 81, 83, 85 L.Ed. 12, which held that when the principal contractor admitted receipt of the notice, there was no necessity of registered mail, Chief Justice Hughes said:
“In giving the statute a reasonable construction in order to effect its remedial purpose, we think that a distinction should be drawn between the provision explicitly stating the condition precedent to the right to sue and the provision as to the manner of serving notice. The structure of the statute indicates the distinction. The proviso, which defines the condition precedent to suit, states that the material-man or laborer ‘shall have a right of action upon the said payment bond upon giving written notice to said contractor’ within ninety days from the date of final performance. The condition as thus expressed was fully met. * * * We think that the purpose of this provision as to manner of service was to assure receipt of the notice, not to make the described method mandatory so as to deny right of suit when the required written notice within the specified time had actually been given and received. * * *”
It is essential for the purpose of the notice that it be given within a certain period. Therefore the giving of the notice within the ninety day period is a condition precedent of the plaintiff’s right of action under the Miller Act. The reason for setting a time limit, such as this ninety day period, on the sending of notice to the principal contractor was made clear in Bowden v. United States, 9 Cir., 1956, 239 F.2d 572, 577, 578, certiorari denied United States ex rel. Malloy v. Bowden, 1957, 353 U.S. 957, 77 S.Ct. 864, 1 L.Ed.2d 909, where it was stated:
“* * * it was the intent of Congress to fix a time limit after which the prime contractor could make payment to the subcontractor with certainty that he would not thereafter be faced by claims of those who had supplied labor and materials to the subcontractor. * * * A brief letter from the supplier to the prime contractor will make certain and unambiguous the rights and liabilities of all concerned — the supplier, the prime contractor, and the surety. We do not believe that Congress intended to have it held that such little expenditure of effort is too much diligence to require of a supplier in order that he may secure his right of action on the payment bond.”
A judgment will be entered affirming the judgment of the district court.
. “Every person who has furnished labor or material in the prosecution of the -work provided for in such contract, in respect of which a payment bond is furnished under section 270a of this title and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which such claim is made, shall have the right to sue on such payment bond for the amount» or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him: *
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 40? Answer with a number.
Answer:
|
songer_treat
|
I
|
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.
GAS RIDGE, Inc., v. SUBURBAN AGRICULTURAL PROPERTIES, Inc.
No. 11232.
Circuit Court of Appeals, Fifth Circuit.
Sept. 13, 1945.
For former opinion, see 150 F.2d 363.
Arthur H. Bartelt, of Austin, Tex., for appellant.
Knox Miller, of San Antonio, Tex., for appellee.
Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.
PER CURIAM.
It is ordered that the petition for rehearing in the above entitled and numbered cause be, and it is hereby, denied.
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_1-3-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Johnny HONEYCUTT, Petitioner-Appellee, v. Benjamin WARD, Commissioner of Corrections for the State of New York, Respondent-Appellant.
No. 1149, Docket 79-2050.
United States Court of Appeals, Second Circuit.
Argued May 31, 1979.
Decided Nov. 5, 1979.
Michael G. Berger, New York City (Pryor, Cashman, Sherman & Flynn, New York City, of counsel), for petitioner-appel-lee.
Paul E. Dahlman, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of N. Y., George D. Zuckerman, Asst. Sol. Gen., Arlene R. Silverman, Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.
Before MOORE, FRIENDLY and FEIN-BERG, Circuit Judges.
. The parties have stipulated that the 1971 and 1976 convictions are not at issue in this appeal.
MOORE, Circuit Judge:
This is an appeal by the Commissioner of Corrections for the State of New York (hereinafter the “State”), from a judgment of the United States District Court for the Southern District of New York, granting appellee Johnny Honeycutt’s petition for a writ of habeas corpus, 28 U.S.C. § 2254. The petition was granted on the theory that a sentence imposed after a 1954 conviction in New York County, upon a plea of guilty to armed robbery in the second degree, was unlawfully enhanced to fifteen years to life imprisonment as a result of a fourth felony information filed pürsuant to former New York Penal Law § 1942 and § 1943. The petitioner admitted that he was the same person who had been convicted of the three felonies specified in the information. All three of the prior felony convictions were out-of-state convictions. The basis of Hon-eycutt’s habeas corpus petition, made on May 16, 1978, is, according to his court-appointed attorney, that a 1949 Oklahoma conviction, a necessary predicate to Honey-cutt’s fourth offender sentence, was obtained in alleged violation of Honeycutt’s constitutional right to counsel.
In 1926 the Legislature of the State of New York enacted New York Penal Law § 1942, reading in pertinent part as follows:
Ҥ 1942. Punishment for fourth conviction of felony. A person who, after having been three times convicted within this state of felonies or attempts to commit felonies,, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony, within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for the term of his natural life. If
The purposes of the statute were to deter potential recidivists by making the risks too great and to protect the citizens of New York State from persons whose records had shown them to be frequently addicted to crime. Since the State-Federal judicial relationship often presents delicate issues and Federal courts should be reluctant to use their power to override the decisions of State courts rendered after affording due process, the record before us as the basis for any decision assumes more than ordinary importance.
The record discloses that the petitioner at the age of 13 was imprisoned for some offense the nature of which is not revealed. In 1949, petitioner pleaded guilty in Oklahoma to robbing a grocery store “because I [petitioner] was guilty”. A two-year sentence resulted. In 1951, in Oklahoma, petitioner was convicted and sentenced to eighteen months imprisonment for passing a government obligation with a forged endorsement. In 1952, in California, petitioner was convicted upon a jury verdict of forgery and sentenced to one year. In the New York County Court of General Sessions on March 15, 1954, petitioner pleaded guilty to the charge of armed robbery in the second degree, after admitting to the sentencing judge that he had possessed the gun used in the robbery and that one shot had been fired. On August 11, 1954, petitioner was sentenced for this crime as a fourth felony offender to 15 years to life, pursuant to then effective New York Penal Law § 1942. Petitioner was represented by counsel both on plea and on sentence.
However, only some 13 years of this sentence were served because in 1967 petitioner was released on parole. In 1971, while on parole from his 1954 conviction, petitioner was indicted for murder and pleaded guilty to manslaughter, first degree, for which he served a five-year sentence. In 1976 petitioner was again paroled on his 1954 sentence. However, in the same year, he was convicted of attempted possession of a forged instrument, the sentence being IV2 to 3 years. That sentence has been fully served, and Honeycutt remains incarcerated solely by virtue of the 1954 sentence.
After bringing several pro se petitions in the New York courts, Honeycutt challenged the use of the Oklahoma conviction as a predicate felony in a coram nobis application, which was denied by the Supreme Court, New York County, on March 3, 1976. On August 5, 1976, leave to appeal was denied by the Appellate Division, First Department, as was leave to appeal from the Appellate Division’s ruling on September 23, 1976, by the New York Court of Appeals. Subsequently, Honeycutt commenced the instant habeas corpus proceeding, claiming that the most ancient of his convictions — the 1949 Oklahoma conviction — was obtained in violation of his Sixth Amendment right to counsel and that, therefore, he should not have been sentenced as a fourth felony offender in 1954.
THE HEARING BEFORE THE TRIAL COURT
The trial court held evidentiary hearings on January 17, February 16 and March 9, 1979, on petitioner’s § 2254 petition. Petitioner testified in his own behalf as to the events of thirty years ago. He said that the Oklahoma judge in 1949 never said anything about his right to have a lawyer and “never mentioned a lawyer to me”. Petitioner, however, did admit on cross-examination that he had said in an affidavit that “Although I may have been advised of my right to counsel, I do not recall waiving my rights”.
For the hearings, both counsel tried to obtain such records, if any, as might be in Oklahoma. A court record from Oklahoma was secured and introduced which reveals certain facts with respect to the 1949 conviction under attack. In refutation of petitioner’s 1979 memory of the 1949 courtroom scene a court order appointing counsel shows that:
“Now on this 10th day of June, 1949, it appearing to the undersigned Judge of the District Court of Oklahoma County, that: The above named defendant appeared for arraignment without aid of counsel and was informed by the Judge that said defendant was and is entitled to counsel as a matter of right; that said defendant has advised the Court that defendant desires counsel but was and is unable to employ such aid.
It is therefore ordered that Chas. W. Moss, Public Defender of Oklahoma County, represent said defendant in the above styled cause until further order of the Court.”
It is significant that the order is signed in long hand by A. P. Van Meter, District Judge, and there is no claim that the signature is a forgery. The order states facts which could only have resulted from the personal appearance of petitioner before the judge. The judge noted that petitioner appeared “without aid of counsel”. Petitioner was “informed by the Judge that said defendant [petitioner] was and is entitled to counsel as a matter of right”; and that “defendant [petitioner] has advised the Court that defendant desires counsel but was and is unable to employ such aid”. Thereupon the judge appointed the Public Defender of Oklahoma County to represent petitioner until further order. Petitioner pleaded guilty on June 10, 1949 because, as he said, he “was guilty” and on the same day a judgment of conviction and sentence was signed by the judge.
THE OPINION BELOW
The trial court, without making specific findings, merely said “On all the papers now before me and on all the evidence presented at the hearings I have held, I find that petitioner was not represented by counsel when he pleaded guilty and was sentenced in Oklahoma County, Oklahoma on June 10,1949”. He, therefore, concluded that the use of that conviction as a predicate for sentencing petitioner as a fourth felony offender in New York, was “constitutionally impermissible” citing Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
In brief, the trial judge based his finding of non-representation upon the denial of representation by the petitioner, whose credibility was seriously affected by his earlier violations of his parole commitments and by his immediate return to his criminal activities. In contrast the district judge must have impliedly concluded that the Oklahoma judge put his name to a series of events which he stated had occurred in his presence but which were wholly false. The fact that the Public Defender’s name had been pre-printed in the Oklahoma order appointing counsel is not of any moment. The name of the Public Defender would not change from case to case and the appointment of a Public Defender probably would have been not an infrequent occurrence. Nor is the fact that judgment and sentence were the same day of any significance. Petitioner knew he was guilty and said so. Further time for investigation of the law and facts was not required. Additional time for conferences would not have changed petitioner’s confessed guilt.
Although Rule 52(a) of the Rules of Civil Procedure provides, in part, that in actions tried without a jury: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” [derived from equity practice], the Supreme Court in United States v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948) held:
“The findings were never conclusive, however. A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 395, 68 S.Ct. at 542. (footnote omitted).
A most detailed and helpful explication of Rule 52(a) in this Circuit is that of the late Judge Frank:
“Where a trial judge sits without a jury, the rule varies with the character of the evidence: (a) If he decides a fact issue on written evidence alone, we are as able as he to determine credibility, and so we may disregard his finding, (b) Where the evidence is partly oral and the balance is written or deals with undisputed facts, then we ignore the trial judge’s finding and substitute our own, (1) if the written evidence or some undisputed fact renders the credibility of the oral testimony extremely doubtful, or (2) if the trial judge’s finding must rest exclusively on the written evidence or the undisputed facts, so that his evaluation of credibility has no significance, (c) But where the evidence supporting his finding as to any fact issue is entirely oral testimony, we may disturb that finding only in the most unusual circumstances.” Orvis v. Higgins, 180 F.2d 537, 539-40 (2d Cir.) cert. denied, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595 (1950).
Section (b)(1) of this quotation directly applies to the Honeycutt situation: Judge Van Meter’s 1949 signed court order appointing counsel is a piece of undisputed written evidence that renders Honeycutt’s belated and self-serving oral testimony extremely doubtful.
In Webster v. Estelle, 505 F.2d 926 (5th Cir. 1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d 785 (1975), the Fifth Circuit had before it a situation factually very similar to that presented here — uncorroborated testimony of a petitioner in contrast to documentary records. The court reversed the granting of the writ as a matter of law, saying:
“[T]he District Court gave insufficient weight to the State’s documentary evidence. Official records are entitled to a presumption of regularity.” 505 F.2d at 929-30.
Similarly, in United States ex rel. Barnes v. Fay, 219 F.Supp. 152, 155 (S.D.N.Y.1963), the court said:
“[T]he relator’s bare allegations as to the events of thirty-five years ago, are insufficient, standing alone, to overcome the presumptive validity of the court records
We cannot accept the proposition that a judge in Oklahoma signed his name to a state of facts which never occurred and that he was not mindful of the Constitution of his own state requiring appointment of counsel. The very form of the order indicates compliance with these constitutional requirements. In contrast, the acceptance of petitioner’s uncorroborated, self-serving claim, belatedly made some fifteen years after he claims his fellow prisoners had made him aware of his rights, leads inescapably to the conclusion that the trial court’s conclusions on the law and the facts are clearly erroneous.
Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), relied upon by the trial court and appellee to support the conclusion that petitioner’s 1949 conviction was “constitutionally impermissible”, is not dispositive here. In Burgett the judgment specifically stated that the defendant appeared “without Counsel”. 389 U.S. at 112, 88 S.Ct. 258. Similarly, in United States ex rel. Lasky v. LaVallee, 472 F.2d 960 (2d Cir. 1973), the words “by his attorney” were excised, indicating that the defendant was without counsel.
Furthermore, the burden of proof is on Honeycutt to overcome the strong presumption of regularity in state judicial proceedings. His own self-serving declarations do not meet this burden.
The State also claims that it was irrevocably prejudiced by Honeycutt’s undue delay in bringing this petition. Under the circumstances of this case, Honeycutt’s at least fifteen-year delay has substantially deprived the State of the opportunity to rebut Honeycutt’s allegations. Since Honeycutt has advanced no substantial explanations for his long and prejudicial delay on this additional ground, his petition may be dismissed.
Rule 9(a) of the Rules Governing § 2254 Cases provides:
“Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition-by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.”
The Advisory Committee Note explaining Rule 9(a) indicates that it was designed to deal with the type of situation presented here. The Advisory Committee Note states:
“This rufe is intended to minimize abuse of the writ of habeas corpus by limiting the right to assert stale claims .
. * * * * * *
The grounds most often troublesome to the court are ineffective counsel, denial of right of appeal, plea of guilty unlawfully induced, use of a coerced confession, and illegally constituted jury. When they are asserted after the passage of many years, both the attorney for the defendant and the state have difficulty in ascertaining what the facts are. It often develops that the defense attorney has little or no recollection as to what took place and that many of the participants in the trial are dead or their whereabouts unknown. The court reporter’s notes may have been lost or destroyed, thus eliminating any exact record of what transpired.
* * * # * *
Subdivision (a) is not a statute of limitations. Rather, the limitation is based on the equitable doctrine of laches. ‘Laches is such delay in enforcing one’s rights as works disadvantage to another’. 30A C.J.S. Equity § 112, p. 19.
* * * * * *
The standard used for determining if the petitioner shall be barred from asserting his claim is consistent with that used in laches provisions generally. The petitioner is held to a standard of reasonable diligence. Any inference or presumption arising by reason of the failure to attack collaterally a conviction may be disregarded where (1) there has been a change of law or fact (new evidence) or (2) where the court, in the interest of justice, feels that the collateral attack should be entertained and the prisoner makes a proper showing as to why he has not asserted a particular ground for relief.”
The instant case exemplifies the situation which Rule 9(a) seeks to avoid. Honeycutt filed his petition almost thirty years after the challenged trial. His claim that he was not represented by counsel falls within the ambit of those in which “both the attorney for the defendant and the state have difficulty in ascertaining what the facts are”. No transcript of the Oklahoma proceeding is available. Further, counsels’ efforts to locate judge or counsel who could refute or substantiate Honeycutt’s testimony have been unavailing. Thus, the long delay has prejudiced the State in its ability to respond to the petition.
Honeycutt claims that he delayed in filing his petition because there was no procedural device in New York to challenge the constitutionality of his Oklahoma conviction until the mid-1960’s. This argument must be rejected. It is true that under N.Y. Penal Law § 1942, in effect in 1954, a defendant could not challenge in a State court the propriety of a predicate felony. See, e. g., People v. Wilkins, 28 N.Y.2d 213, 219, 321 N.Y.S.2d 87, 91, 269 N.E.2d 803, 806 (1971) (“Prior to [the statutory amendment of] 1964, a challenge to the constitutionality of a previous New York conviction had to be made by a writ of error coram nobis in the court where the defendant had been convicted, and no procedure was available in New York to challenge out-of-state convictions.”) However, in 1964, the New York statute under which sentence was imposed was amended by § 470-a, of the N.Y. Code of Criminal Procedure, to permit a defendant, as a matter of state law, to attack the constitutionality of his prior convictions. That amendment was subsequently held to be retroactive. People v. Broderick, 24 App.Div.2d 638, 262 N.Y.S.2d 188, 190 (2d Dept. 1965); accord, People v. Rainey, 25 App.Div.2d 657, 267 N.Y.S.2d 973, 975 (2d Dept. 1966). Thus, Honeycutt had a remedy available in the New York courts by 1965.
Honeycutt further attempts to explain his delay by claiming that he only learned of the existence of a right to counsel when serving his 1954 New York sentence. The Supreme Court did not explicitly recognize a defendant’s constitutional right to counsel until 1963, the year of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). At the hearing on January 17 before the trial court, Honeycutt testified:
“The only time I found out that a person should have an attorney, I was in a state prison in New York on a ’54 conviction about three years after I got that conviction in ’54.”
Thus Honeycutt knew of the existence of a right to counsel more than fifteen years prior to institution of this suit. He should not be heard to claim that his delay was justified.
Under the facts of this case, we also find that the equitable doctrine of laches should apply under Rule 9(a). Honeycutt has waited more than fifteen years to raise his claim, in circumstances where the detailed factual reconstruction necessary to test the validity of the claim would be most difficult, if not impossible. See Johnson v. Riddle, 562 F.2d 312 (4th Cir. 1977). While it is important that one convicted of crime in violation of constitutional principles should be accorded relief, it is also important that reasonable diligence be required in order that litigation may one day be at an end. Rule 9(a) guards the state’s legitimate expectation that it will not be called upon, without due cause, to defend the integrity of convictions that occurred many years ago, where records and witnesses are no longer available. See Cavett v. Ellis, 578 F.2d 567, 570 (5th Cir. 1978).
In summary, it is impossible to compare Honeycutt’s delayed claim as to 1949 events which he does not buttress with supporting testimony to give credence to his self-serving assertions against a written court order, required by the Oklahoma Constitution and having every appearance of regularity and not have a “definite and firm conviction that a mistake has been committed”. United States v. Gypsum, supra, 338 U.S. at 395, 68 S.Ct. at 542.
The judgment of the district court granting the writ of habeas corpus is reversed.
. Since at least 1931, the Oklahoma Constitution has required the appointment of counsel to represent indigents:
“[U]nder the Constitution of Oklahoma the defendant is entitled to have counsel appointed by the court, provided he is unable to pay for the same. Section 2929, O.S.1931 (22 Okl.St.Ann. § 464), reads as follows:
‘If the defendant appear for arraignment, without counsel, he must be informed by the court that it is his right to have counsel before being arraigned, and must be asked if he desire the aid of counsel. If he desires, and is unable to employ counsel, the court must assign counsel to defend him’.” Richardson v. State, 61 Okl.Cr. 278, 67 P.2d 804, 805 (1937).
Moreover, before Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) was decided, Oklahoma state courts construed Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), as requiring appointment of counsel under the federal constitution. See, e. g., Ex parte Cornell, 87 Okl.Cr. 2, 193 P.2d 904 (1948); Ex parte Barnett, 67 Okl.Cr. 300, 94 P.2d 18 (1939).
. The amendment was carried forward in substance by § 400.20 of the current N.Y. Criminal Procedure Law. (McKinney 1971).
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer:
|
songer_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HIGGINS et al. v. WHITE.
No. 3272.
Circuit Court of Appeals, First Circuit.
Dec. 8, 1937.
Charles M. Rogerson, of Boston, Mass. (Roger W. Hardy, of Boston, Mass., on the brief), for appellants.
Joseph M. Jones, Sp. Asst, to the Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key and Norman D. Keller, Sp. Assts. to the Atty. Gen., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
These two income tax cases, in which Clara C. Higgins and'John W. Higgins are the respective plaintiffs, involve the same question and are consolidated in one record on appeal to this court. The actions were separately brought in the District Court for the district of Massachusetts to recover taxes claimed to be erroneously assessed. The government demurred to the plaintiff’s declaration in each case, which was sustained. Exceptions were allowed. The following assignment of error is sufficient to raise the sole issue in the cases: That the District Court erred in ruling that the income of the trusts described in the plaintiff’s declaration was taxable to the grantor of the trusts under section 219 (g) of the Revenue Act of 1924, 43 Stat. 275, which was reenacted without change in the Revenue Act of 1926, 44 Stat. 32.
The plaintiff Clara C. Higgins, on June 24, 1924, created certain trusts, naming herself and the Boston Safe Deposit & Trust Company as trustees, and her husband, John W. Higgins, at the same time created similar trusts, each trust providing mutatis mutandis- that certain policies of life insurance payable to the creator of the trust should be payable to the trustees named, and also assigning to said trustees certain other property, with the right in said trustees- to pay the premiums of said policies out of the property so transferred; also, to use any dividends on said policies to reduce premiums thereon, or to allow said dividends to remain with the insurance company at interest, or to have them added to the policies as paid-up insurance, or to surrender such policies and receive the cash surrender value thereof, or to convert such policies into paid-up policies of life insurance.
The provisions of the declarations of trust in which Clara C. Higgins was the grantor, and also in those in which John W. Higgins was the grantor, that give rise to the questions raised on appeal, are contained in paragraph third of the trust indentures, which reads as follows: “Third: Any funds in the hands of the Trustees which the Trustees shall deem not to be needed to pay premiums, together with any other property which may from time to time be received by them, shall, except as hereinafter provided, be held during the lifetime of John W. Higgins, in trust, to add the net income thereof to the principal and accumulate said net income, provided that if at any time during the continuance of this trust and during the lifetime of said John W. Higgins the Trustees shall deem it wise so to do, they may use any of the funds in their hands specifically including the cash surrender value of said policy for the benefit of Clara C. Higgins and the issue of said John W. Higgins and Clara C. Higgins by paying out to her and them, or any one or more of them, such sums or sum out of the principal as they shall deem necessary or advisable for the comfort, maintenance, support, advancement, education or welfare of said Clara C. Higgins and said issue or any one or more of them, or they may surrender and assign said policy and the trust property held hereunder to said Clara C. Higgins, in which case this trust shall cease and determine.”
The decision of this case rests in the proper interpretation of the provisions of this paragraph.
If, as the government contends, the last clause is separate and independent of what has gone before, and the grantor and the other trustee under each trust has the absolute and unconditional power to surrender the trust res at any time to the grantor and terminate the trust, then under subdivisions (g) and (h) of section 219 of the Revenue Acts of 1924 and 1926, the income of the trust is taxable to the grantor; but if, as the plaintiffs contend, before the trust property may be surrendered to the grantor it must be determined first by the trustees as such, whether they deem it advisable to use a part of the principal of the trusts for the comfort, maintenance, and support of Clara C. Higgins, and mutatis mutandis of John W. Higgins, or the education and welfare of the issue of Clara C. Higgins and John W. Higgins, or to surrender the entire trust property to the grantor of the trusts and thus terminate the trusts, then the trusts do not fall within section 219 (g) or (h) of the 1924 and 1926 acts, which read as follows:
“(g) Where the grantor of a trust has, at any time during the taxable year, either alone or in conjunction with any person not a beneficiary of the trust, the power to re-vest in himself title to any part of the corpus of the trust, then the income of such part of the trust for such taxable year shall be included in computing the net income of the grantor.
“(h) Where any part of the income of a trust may, in the discretion of the grantor of the trust, either alone or in conjunction with any person not a beneficiary of the trust, be distributed to the grantor or be held or accumulated for future distribution to him, or where any part of the income of a trust is or may be applied to the payment of premiums upon policies of insurance on the life of the grantor (except policies of insurance irrevocably payable for the purposes and in the manner specified in paragraph (10) of subdivision (a) of section 214), such part of the income of the trust shall be included in computing the pet income of the grantor.”
In a trust inter vivos, a power reserved to a grantor must be by express words of reservation. Thorp, Trustee v. Lund et al., 227 Mass. 474, 476, 116 N.E. 946, Ann.Cas.1918B, 1204; Coolidge et al. v. Loring, Trustee et al., 235 Mass. 220, 223, 126 N.E. 276.
The intent of the creators of the trusts controls in the interpretation of a trust instrument. An examination of the third clause of the trust instruments in each case we think discloses that the power to dispose of the principal of the trust fund or to terminate the trust is not a broad power unconditionally given to the grantor in conjunction with any person not a beneficiary under the trust, but is a power which can only be exercised by the trustees as such. White v. Poor et al., 1 Cir., 75 F.2d 35; Id., 296 U.S. 98, 56 S.Ct. 66, 80 L.Ed. 80; Lovett, Trustee v. Farnham et al., 169 Mass. 1, 47 N.E. 246; Sands v. Old Colony Trust Company, 195 Mass. 575, 577, 81 N.E. 300, 12 Ann.Cas. 837; Gardiner v. Rogers, 267 Mass. 274, 166 N.E. 763; Boyden v. Stevens, 285 Mass. 176, 188 N.E. 741. In other words, the trustees must make a determination as trustees that they deem it necessary or advisable to use the principal of the trust funds for the comfort, maintenance, and support of Clara C. Higgins or the education or welfare of any issue of said John W. Higgins and said Clara C. Higgins, or to surrender and assign said policies and the trust property to Clara C. Higgins, or mutatis mutandis to John W. Higgins, in which •case the trusts shall cease and determine.
There is nothing contrary to this conclusion in the case of Kaplan et al. v. Commissioner, 1 Cir., 66 F.2d 401. In fact, it supports the plaintiffs’ contention in this case to the extent that only in so far as Kaplan had absolute control over the income was it held to be taxable to him; but since he was limited as trustee to the provisions in favor of his wife as cestui que trust, to determine the extent of which the case was sent back, was he exempt from the payment of taxes.
The case of White v. Poor et al., supra, though a different section of the statute is involved, in principle, also sustains the plaintiffs’ conténtion in this case. Any action by Mrs. Sargent in that case when appointed as trustee was not that of a grantor, but as one of the trustees who, together with the other trustees, performed a fiduciary duty in case of a termination of the trust.-
In this case neither the income of the trust property nor the trust res was within the absolute and unconditional control of the grantor, either alone or in conjunction with the other trustee. Certain conditions were imposed upon them which they must find existed before they could pay out any part of the principal for the purposes specified therein, or surrender the trust property to the grantor. Their power was a trust power, not an absolute one. Kaplan et al. v. Commissioner, supra; Daisy C. Patterson v. Commissioner, 36 B.T.A. 407, decided August 4, 1937. The provisions of section 219 (g) or (h), therefore, are not complied with here.
We think the District Court erred in the interpretation'of the trust instrument in holding that the power to terminate the trust and revest the title to the trust property in the settlors was not dependent upon the conditions, the existence of which the trustees were under a fiduciary duty to ascertain. The power to revest the title in the settlors was not one which the creator of the. trust could have intended might be exercised at any time the trust company could be persuaded by the donor trustee to exercise it without consulting the interests of the beneficiaries, including the issue of Clara C. Higgins and John W. Higgins, especially since the trust did not ipso facto terminate with the death of the grantor. To hold that it was the intent of the creator of these trusts that, under the third paragraph, they might be terminated at any time by the surrender of the trust' property to the grantor without a finding by the trustees that it was necessary or advisable so to do, is contrary to the spirit and purposes expressed in the remainder of the instrument.
It does not follow that a grantor, who is also a trustee, may not be taxed under section 219 (g) or (h) if his right to accumulate income payable to himself in the future, or to revoke a trust, is an absolute power reserved in him in conjunction with a trustee who is not a beneficiary, and does not involve on the part of the grantor the exercise of a fiduciary duty as trustee.
The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs of this court.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_state
|
47
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
Fernando DAVILA, Appellant, v. S.S. VERCHARMIAN, her engines, etc., in rem, and Vergottis Ltd., as owner, in personam, Appellees.
No. 10717.
United States Court of Appeals Fourth Circuit.
Argued Jan. 13, 1967.
Decided Feb. 2, 1967.
James L. Sanderlin, Norfolk, Va. (Kelsey & Rabinowitz, Norfolk, Va., on brief), for appellant.
Charles F. Tucker, Norfolk, Va. (Van-deventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellees.
Before BOREMAN and BRYAN, Circuit Judges, and RUSSELL, District Judge.
PER CURIAM:
By libel in the District Court, crewman Fernando Davila sought damages of his ship, the SS Vercharmian, her owner and agent to recover damages for injuries suffered on July 26, 1960 when he inadvertently stepped into a forecastle hatch while at sea en route Hampton Roads, Virginia. Recovery is predicated on charges of unseaworthiness of the Ver-charmian and, particularly, of her boatswain’s negligence in not warning Davila that the hatch was open. Also included were claims for maintenance and statutory penalties for “waiting time” — delay in payment of wages. 46 U.S.C. §§ 596, 597.
The admiralty judge denied all the claims and dismissed the libel. From his determination of no unseaworthiness or negligence, with refusal of damages, Davila appeals. We affirm on the findings and conclusions stated and filed by the District Judge. Davila v. SS Ver-charmian, 247 F.Supp. 617 (1965).
Affirmed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_genresp1
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G
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
William A. PEARSON, Appellant, v. Robert W. HEISER and Sandra Stamper, Appellees.
Nos. 22399, 22399A.
United States Court of Appeals Ninth Circuit.
May 21, 1969.
John C. McHose (argued) and David Brice Toy, of Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for appellant.
Winchester Cooley, III, (argued) of McCutchen, Black, Verleger & Shea, Los Angeles, Cal., for Heiser.
Newton Kalman (argued) of Caidin, Bloomgarden & Kalman, Beverly Hills, Cal., for Stamper.
Before BROWNING, ELY and CARTER, Circuit Judges.
PER CURIAM:
The trial court had before it petitions for exoneration or limitation of liability by Pearson and Heiser, owners of motor boats, pursuant to 46 U.S.C. § 185. On conflicting evidence the court found Pearson and Heiser were each negligent and that the collision leading to this action was proximately caused by the mutual fault of the two owners.
The court also found on conflicting evidence that Pearson’s fault was not a minor one and the court refused to apply the major-minor fault admiralty rule.
We cannot say the district court was clearly wrong in its factual determinations; and if they are valid there are no legal questions presented. We affirm.
We have been invited to view two short motion pictures, one made by a naval architect, an expert witness for Pearson, and the other made by a marine surveyor, an expert witness for Heiser. Each depicts a speed boat run made under generally similar but not identical conditions. Each expert identified his picture and testified at length as to what he claims was depicted and as to his conclusions. Each was cross examined. There was testimony of supporting experts on both sides.
It is conceded that the testimony is in conflict, particularly on the question of the degree of inclination achieved by the Heiser motor boat and the effect of the inclination on the visability of Heiser’s running lights. Testimony on behalf of Pearson was that the degree of inclination received by the Heiser boat was as much as 8.5° from the horizontal, and thus screened Heiser’s running lights. Testimony on behalf of Heiser was that the maximum inclination of Heiser’s lights were not obscured.
Obviously viewing the films would only add to our view of the conflict in the evidence.
The judgment is 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:
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sc_issuearea
|
C
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
Fane LOZMAN, Petitioner
v.
CITY OF RIVIERA BEACH, FLORIDA.
No. 17-21.
Supreme Court of the United States
Argued Feb. 27, 2018.
Decided June 18, 2018.
Pamela S. Karlan, Stanford, CA, for Petitioner.
Shay Dvoretzky, Washington, D.C., for Respondent.
Jeffrey B. Wall, Washington, D.C., for the United States as amicus curiae, by special leave of the Court, supporting the respondent.
Kerri L. Barsh, Greenberg Traurig, Miami, FL, Pamela S. Karlan, Jeffrey L. Fisher, David T. Goldberg, Stanford Law School, Supreme Court Litigation Clinic, Stanford, CA, for Petitioner.
Benjamin M. Flowers, Jones Day, Columbus, OH, Shay Dvoretzky, Jeffrey R. Johnson, Vivek Suri, Jones Day, Washington, D.C., Benjamin L. Bedard, Stephanie W. Kaufer, Roberts, Reynolds, Bedard & Tuzzio, PLLC, Andrew DeGraffenreidt III, City Attorney, Lina Busby, Assistant City Attorney, City of Riviera Beach, Riviera Beach, FL, for Respondent.
Justice KENNEDY delivered the opinion of the Court.
This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U.S. 574, 592, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998).
The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner's retaliatory arrest claim under these circumstances.
I
The city of Riviera Beach is on the Atlantic coast of Florida, about 75 miles north of Miami. The petitioner here is Fane Lozman. In 2006 Lozman towed his floating home into a slip in the City-owned marina, where he became a resident. Thus began his contentious relationship with the City's elected officials.
Soon after his arrival Lozman became an outspoken critic of the City's plan to use its eminent domain power to seize homes along the waterfront for private development. Lozman often spoke during the public-comment period at city council meetings and criticized councilmembers, the mayor, and other public employees. He also filed a lawsuit alleging that the Council's approval of an agreement with developers violated Florida's open-meetings laws.
In June 2006 the Council held a closed-door session, in part to discuss the open-meetings lawsuit that Lozman recently had filed. According to the transcript of the meeting, Councilmember Elizabeth Wade suggested that the City use its resources to "intimidate" Lozman and others who had filed lawsuits against the City. App. 176. Later in the meeting a different councilmember asked whether there was "a consensus of what Ms. Wade is saying," and others responded in the affirmative. Id ., at 181-182. Lozman alleges that these remarks formed an official plan to intimidate him. The City, on the other hand, maintains that the only consensus reached during the meeting was to invest the money and resources necessary to prevail in the litigation against it.
In all events, Lozman became embroiled in a number of disputes with city officials and employees over the ensuing years, many of which Lozman says were part of the City's plan of retaliation. The dispute that led to this litigation took place in 2006. In November of that year, five months after the closed-door meeting where the "intimidate" comment was made, the City Council held a public meeting. The agenda included a public-comment session in which citizens could address the Council for a few minutes. As he had done on earlier occasions and would do more than 200 times over the coming years, see Tr. in No. 9:08-cv-80134 (SD Fla.), Doc. 785, p. 61, Lozman stepped up to the podium to give remarks. He began to discuss the recent arrest of a former county official. Councilmember Wade interrupted Lozman, directing him to stop making those remarks. Lozman continued speaking, this time about the arrest of a former official from the city of West Palm Beach. Wade then called for the assistance of the police officer in attendance. The officer approached Lozman and asked him to leave the podium. Lozman refused. So Wade told the officer to "carry him out." The officer handcuffed Lozman and ushered him out of the meeting. The incident was recorded on video. See Record, Def. Exh. 505, Doc. 687, available at https://www.supremecourt.gov/media/video/mp4files/Lozman_v_RivieraBeach.mp4. According to the City, Lozman was arrested because he violated the City Council's rules of procedure by discussing issues unrelated to the City and then refused to leave the podium. According to Lozman, the arrest was to retaliate for his open-meetings lawsuit against the City and his prior public criticisms of city officials.
Under arrest, Lozman was escorted to police headquarters. He was charged with disorderly conduct and resisting arrest without violence and then released. Later, the State's attorney determined there was probable cause to arrest Lozman for those offenses but decided to dismiss the charges.
Lozman filed this lawsuit under Rev. Stat. § 1979, 42 U.S.C. § 1983. The complaint described a number of alleged incidents that, under Lozman's theory, showed the City's purpose to harass him in different ways. These ranged from a city employee telling Lozman that his dog needed a muzzle to the City's initiation of an admiralty lawsuit against Lozman's floating home-the latter resulting in an earlier decision by this Court. See Lozman v. Riviera Beach, 568 U.S. 115, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013). The evidence and arguments presented by both parties with respect to all the matters alleged in Lozman's suit consumed 19 days of trial before a jury. The jury returned a verdict for the City on all of the claims.
Before this Court, Lozman seeks a reversal only as to the City's alleged retaliatory arrest at the November 2006 city council meeting. The District Court instructed the jury that, for Lozman to prevail on this claim, he had to prove that the arresting officer was himself motivated by impermissible animus against Lozman's protected speech and that the officer lacked probable cause to make the arrest. The District Court determined that the evidence was insufficient as a matter of law to support probable cause for the offenses charged at the time of the arrest (disorderly conduct and resisting arrest without violence). But the District Court concluded that there may have been probable cause to arrest Lozman for violating a Florida statute that prohibits interruptions or disturbances in schools, churches, or other public assemblies. Fla. Stat. § 871.01 (2017). (The City had brought this statute to the District Court's attention during the course of the litigation.) The District Court allowed the jury to decide whether there was probable cause to arrest for the public-disturbance offense.
Judgment having been entered for the City after the jury's verdict, Lozman appealed. The Court of Appeals for the Eleventh Circuit affirmed. 681 Fed.Appx. 746 (2017). As relevant here, the Court of Appeals assumed that the District Court erred when it instructed the jury that the officer, rather than the City, must have harbored the retaliatory animus. But the Court of Appeals held that any error was harmless because the jury necessarily determined that the arrest was supported by probable cause when it found for the City on some of Lozman's other claims-specifically, his claims that the arrest violated the Fourth Amendment and state law. Id., at 751-752. And, under precedents which the Court of Appeals deemed controlling, the existence of probable cause defeated a First Amendment claim for retaliatory arrest. See id., at 752 (citing Dahl v. Holley, 312 F.3d 1228, 1236 (C.A.11 2002) ).
This Court granted certiorari, 538 U.S. ----, 138 S.Ct. 447, 199 L.Ed.2d 328 (2017), on the issue whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under § 1983. The Court considered this issue once before, see Reichle v. Howards, 566 U.S. 658, 663, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012), but resolved the case on different grounds.
II
The issue before the Court is a narrow one. In this Court Lozman does not challenge the constitutionality of Florida's statute criminalizing disturbances at public assemblies. He does not argue that the statute is overly broad, e.g., Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ; Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002) ; or that it impermissibly targets speech based on its content or viewpoint, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ; Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) ; or that it was enforced in a way that curtailed Lozman's right to peaceful assembly, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). Lozman, furthermore, does not challenge the validity of the City Council's asserted limitations on the subjects speakers may discuss during the public-comment portion of city council meetings (although he continues to dispute whether those limitations in fact existed).
Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one. There is no contention that the City ordered Lozman's arrest to discriminate against him based on protected classifications, or that the City denied Lozman his equal protection rights by placing him in a "class of one." See Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam ). Lozman, moreover, now concedes that there was probable cause for the arrest. Although Lozman does not indicate what facts he believes support this concession, it appears that the existence of probable cause must be based on the assumption that Lozman failed to depart the podium after receiving a lawful order to leave.
Lozman's claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The question this Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim.
III
It is well established that in a § 1983 case a city or other local governmental entity cannot be subject to liability at all unless the harm was caused in the implementation of "official municipal policy." Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; see Los Angeles County v. Humphries, 562 U.S. 29, 36, 131 S.Ct. 447, 178 L.Ed.2d 460 (2010). Lozman's § 1983 damages claim is against only the City itself, based on the acts of its officers and employees-here, the members of the City Council. Lozman says that the City, through its city councilmembers, formed an official policy to retaliate against him and ordered his arrest. The Court assumes in the discussion to follow that the arrest was taken pursuant to an official city policy, but whether there was such a policy and what its content may have been are issues not decided here.
This brings the discussion to the issue the parties deem central to the case: whether the conceded existence of probable cause for the arrest bars recovery regardless of any intent or purpose to retaliate for past speech. Two major precedents could bear on this point, and the parties disagree on which should be applicable here. The first is this Court's decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). See also Board of Comm'rs, Wabaunsee Cty. v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). Lozman urges that the rule of Mt. Healthy should control and that under it he is entitled to recover. The second is this Court's decision in Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), which the City cites for the proposition that once there is probable cause there can be no further claim that the arrest was retaliation for protected speech.
Mt. Healthy arose in a civil, not criminal, context. A city board of education decided not to rehire an untenured school teacher after a series of incidents indicating unprofessional demeanor. 429 U.S., at 281-283, 97 S.Ct. 568. One of the incidents was a telephone call the teacher made to a local radio station to report on a new school policy. Id., at 282, 97 S.Ct. 568. Because the board of education did not suggest that the teacher violated any established policy in making the call, this Court accepted a finding by the District Court that the call was protected speech. Id., at 284, 97 S.Ct. 568. The Court went on to hold, however, that since the other incidents, standing alone, would have justified the dismissal, relief could not be granted if the board could show that the discharge would have been ordered even without reference to the protected speech. Id., at 285-287, 97 S.Ct. 568. In terms of precepts in the law of torts, the Court held that even if retaliation might have been a substantial motive for the board's action, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination. Ibid. ; see also Umbehr, supra, at 675, 116 S.Ct. 2342.
The City resists the applicability of the Mt. Healthy test as the sole determinant here. It contends that, where there was probable cause for the arrest, the applicable precedent is Hartman -a case that was in the criminal sphere and that turned on the existence of probable cause.
The background in Hartman was that a company and its chief executive, William Moore, had engaged in an extensive lobbying and governmental relations campaign opposing a particular postal service policy. 547 U.S., at 252-253, 126 S.Ct. 1695. Moore and the company were later prosecuted for violating federal statutes in the course of that lobbying. Id., at 253-254, 126 S.Ct. 1695. After being acquitted, Moore filed suit against five postal inspectors, alleging that they had violated his First Amendment rights when they instigated his prosecution in retaliation for his criticisms of the Postal Service. Id., at 254, 126 S.Ct. 1695. This Court held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. Id., at 265-266, 126 S.Ct. 1695. If there was probable cause, the case ends. If the plaintiff proves the absence of probable cause, then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the prosecution, and, if that showing is made, the defendant can prevail only by showing that the prosecution would have been initiated without respect to retaliation. See 547 U.S., at 265-266, 126 S.Ct. 1695.
The Court in Hartman deemed it necessary to inquire as to the existence of probable cause because proving the link between the defendant's retaliatory animus and the plaintiff's injury in retaliatory prosecution cases "is usually more complex than it is in other retaliation cases." Id., at 261, 126 S.Ct. 1695. An action for retaliatory prosecution "will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute." Id., at 261-262, 126 S.Ct. 1695. Instead, the plaintiff must sue some other government official and prove that the official "induced the prosecutor to bring charges that would not have been initiated without his urging." Id., at 262, 126 S.Ct. 1695. Noting that inquiries with respect to probable cause are commonplace in criminal cases, the Court determined that requiring plaintiffs in retaliatory prosecution cases to prove the lack of probable cause would help "bridge the gap between the nonprosecuting government agent's motive and the prosecutor's action." Id., at 263, 126 S.Ct. 1695.
The City's argument here is that, just as probable cause is a bar in retaliatory prosecution cases, so too should it be a bar in this case, involving a retaliatory arrest. There is undoubted force in the City's position. Reichle, 566 U.S., at 667-668, 132 S.Ct. 2088. There are on average about 29,000 arrests per day in this country. Dept. of Justice-FBI, Uniform Crime Report, Crime in the United States, 2016 (Fall 2017). In deciding whether to arrest, police officers often make split-second judgments. The content of the suspect's speech might be a consideration in circumstances where the officer must decide whether the suspect is ready to cooperate, or, on the other hand, whether he may present a continuing threat to interests that the law must protect. See, e.g., District of Columbia v. Wesby, 583 U.S. ----, ----, 138 S.Ct. 577, 587, 199 L.Ed.2d 453 (2018) ("suspect's untruthful and evasive answers to police questioning could support probable cause" (internal quotation marks omitted)).
For these reasons retaliatory arrest claims, much like retaliatory prosecution claims, can "present a tenuous causal connection between the defendant's alleged animus and the plaintiff's injury." Reichle, 566 U.S., at 668, 132 S.Ct. 2088. That means it can be difficult to discern whether an arrest was caused by the officer's legitimate or illegitimate consideration of speech. Ibid. And the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits. See Brief for District of Columbia et al. as Amici Curiae 5-11.
At the same time, there are substantial arguments that Hartman 's framework is inapt in retaliatory arrest cases, and that Mt. Healthy should apply without a threshold inquiry into probable cause. For one thing, the causation problem in retaliatory arrest cases is not the same as the problem identified in Hartman . Hartman relied in part on the fact that, in retaliatory prosecution cases, the causal connection between the defendant's animus and the prosecutor's decision to prosecute is weakened by the "presumption of regularity accorded to prosecutorial decisionmaking." 547 U.S., at 263, 126 S.Ct. 1695. That presumption does not apply in this context. See Reichle, supra, at 669, 132 S.Ct. 2088. In addition, there is a risk that some police officers may exploit the arrest power as a means of suppressing speech. See Brief for Institute for Free Speech as Amicus Curiae .
IV
The parties' arguments raise difficult questions about the scope of First Amendment protections when speech is made in connection with, or contemporaneously to, criminal activity. But whether in a retaliatory arrest case the Hartman approach should apply, thus barring a suit where probable cause exists, or, on the other hand, the inquiry should be governed only by Mt. Healthy is a determination that must await a different case. For Lozman's claim is far afield from the typical retaliatory arrest claim, and the difficulties that might arise if Mt. Healthy is applied to the mine run of arrests made by police officers are not present here.
Here Lozman does not sue the officer who made the arrest. Indeed, Lozman likely could not have maintained a retaliation claim against the arresting officer in these circumstances, because the officer appears to have acted in good faith, and there is no showing that the officer had any knowledge of Lozman's prior speech or any motive to arrest him for his earlier expressive activities.
Instead Lozman alleges more governmental action than simply an arrest. His claim is that the City itself retaliated against him pursuant to an "official municipal policy" of intimidation. Monell, 436 U.S., at 691, 98 S.Ct. 2018. In particular, he alleges that the City, through its legislators, formed a premeditated plan to intimidate him in retaliation for his criticisms of city officials and his open-meetings lawsuit. And he asserts that the City itself, through the same high officers, executed that plan by ordering his arrest at the November 2006 city council meeting.
The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman's claim from the typical retaliatory arrest claim. An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress.
In addition, Lozman's allegations, if proved, alleviate the problems that the City says will result from applying Mt. Healthy in retaliatory arrest cases. The causation problem in arrest cases is not of the same difficulty where, as is alleged here, the official policy is retaliation for prior, protected speech bearing little relation to the criminal offense for which the arrest is made. In determining whether there was probable cause to arrest Lozman for disrupting a public assembly, it is difficult to see why a city official could have legitimately considered that Lozman had, months earlier, criticized city officials or filed a lawsuit against the City. So in a case like this one it is unlikely that the connection between the alleged animus and injury will be "weakened ... by [an official's] legitimate consideration of speech." Reichle, 566 U.S., at 668, 132 S.Ct. 2088. This unique class of retaliatory arrest claims, moreover, will require objective evidence of a policy motivated by retaliation to survive summary judgment. Lozman, for instance, cites a transcript of a closed-door city council meeting and a video recording of his arrest. There is thus little risk of a flood of retaliatory arrest suits against high-level policymakers.
As a final matter, it must be underscored that this Court has recognized the "right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights." BE & K Constr. Co. v.
NLRB, 536 U.S. 516, 524, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002) (internal quotation marks omitted). Lozman alleges the City deprived him of this liberty by retaliating against him for his lawsuit against the City and his criticisms of public officials. Thus, Lozman's speech is high in the hierarchy of First Amendment values. See Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
For these reasons, Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City. On facts like these, Mt. Healthy provides the correct standard for assessing a retaliatory arrest claim. The Court need not, and does not, address the elements required to prove a retaliatory arrest claim in other contexts.
This is not to say, of course, that Lozman is ultimately entitled to relief or even a new trial. On remand, the Court of Appeals, applying Mt. Healthy and other relevant precedents, may consider any arguments in support of the District Court's judgment that have been preserved by the City. Among other matters, the Court of Appeals may wish to consider (1) whether any reasonable juror could find that the City actually formed a retaliatory policy to intimidate Lozman during its June 2006 closed-door session; (2) whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City; and (3) whether, under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus-for example, if Lozman's conduct during prior city council meetings had also violated valid rules as to proper subjects of discussion, thus explaining his arrest here.
For these reasons, 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.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_respond1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
Donald J. DEVINE, Director, Office of Personnel Management, Petitioner, v. Harold C. WHITE, Arbitrator, American Federation of Government Employees, National Border Patrol Council, and Noe Lopez, Respondents.
No. 81-1893.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 18, 1982.
Opinion for the Court Issued Jan. 7, 1983.
Decided July 12, 1983.
Howard S. Scher, Atty., Dept, of Justice, with whom Stanley S. Harris, U.S. Atty., and William Kanter, Atty., Dept, of Justice, Washington, D.C., were on brief, for petitioner.
William Stone, and James R. Rosa and Jane P. Danowitz, Washington, D.C., on brief, for respondents.
Before LUMBARD, Senior Circuit Judge, United States Court of Appeals for the Second Circuit, EDWARDS and BORK, Circuit Judges.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (Supp. V 1981).
Opinion for the Court PER CURIAM.
PER CURIAM:
This appeal involves an arbitrator’s decision in an “adverse action” case arising under the Civil Service Reform Act of 1978. The case is before the court for a second time, and we are again required to review an arbitral judgment — issued pursuant to a contractually established grievance procedure — setting aside a disciplinary sanction imposed by the Immigration and Naturalization Service (“INS”) on one of its agents. The relevant background facts were set forth fully in our first opinion and need not be repeated here.
That first opinion left to the arbitrator the task of determining whether the procedural error he had previously identified was “harmful” within the meaning of 5 U.S.C. § 7701(c)(2)(A) (Supp. V 1981). The INS’s error could be so characterized, we stated, if it either “affected the outcome of the disciplinary proceeding,” or vitiated a substantial right accorded the affected employee by a “clear provision of [the] collective bargaining agreement.” 697 F.2d at 443-44.
On remand, the arbitrator reconsidered and reaffirmed his initial decision setting aside the disciplinary sanction imposed by the INS. Although the arbitrator’s judgment appears not inconsistent with our first decision in this case, it is difficult to fathom any coherent line of reasoning in his long and rambling opinion, which consists almost entirely of random quotes from other sources. In reading his opinion, we are hard-pressed to identify either a glimmer of reasoned consideration, to which we might defer, or a hint that his observations bear any significant relation to the real world.
If government agencies and unions in the federal sector are to bind themselves through collective bargaining agreements to arbitrate disciplinary matters, one would hope that the arbitrators selected — who are given broad authority to construe and enforce labor contracts — have the time, talent and experience to write intelligible opinions. An opinion such as that submitted here forces the court to choose between placing its stamp of approval on utter gibberish or conducting what would amount to de novo review on a hopelessly inadequate record. Both options, of course, are undesirable.
Notwithstanding our dismay over the quality of the arbitral opinion in this case, consistency of the result reached in the arbitrator’s decision with the test established in our original opinion leads us to conclude that approving that result is the lesser of two evils. We therefore affirm the judgment, but not the rationale or opinion, of the arbitrator.
So ordered.
. Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.).
. The first opinion of the court was issued on January 7, 1983. Devine v. White, 697 F.2d 421 (D.C.Cir.1983).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer:
|
songer_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. Francis Michael EVANS et al., Defendants-Appellants.
Nos. 20650, 20690.
United States Court of Appeals, Eighth Circuit.
Sept. 1, 1971.
Paul H. Kinion, Cedar Rapids, Iowa, for defendant-appellant, Allen Knudtson.
C. Carleton Frederiei, Des Moines, Iowa, for defendant-appellant Francis Michael Evans.
Frank A. Comito, Des Moines, Iowa, for defendant-appellant Donald Lee Kness.
John B. Grier, Asst. U. S. Atty., Alien L. Donielson, U. S. Atty., Des Moines, Iowa, for plaintiff-appellee.
Before JOHNSEN and ROSS, Circuit Judges, and HARPER, District Judge.
HARPER, District Judge.
These appeals stem from judgments of conviction entered in the United States District Court for the Southern District of Iowa. Appellants were found guilty on two counts submitted to the jury, in one count for forcibly breaking into a building used in part as a post office with the intent to commit larceny in violation of 18 U.S.C.A. § 2115, and in one count for causing damage to government property in excess of $100.00 in violation of 18 U.S.C.A. § 1361.
The defendants-appellants filed motions to suppress the evidence. An evi-dentiary hearing was held on these motions, which were denied by the court. Thereafter, the defendants were convicted after a jury trial on both counts and each was sentenced to five years imprisonment on each count to run concurrently-
Appellants claim error in the admission of certain evidence taken by the police from a motor vehicle operated by defendant, Donald Lee Kness, prejudice by the joint trial, and insufficient evidence to convict defendants Knudtson and Evans.
The facts leading to the seizure of the vehicle and evidence are as follows: On the night of June 4, 1970, the Craw-fordsville, Iowa Post Office was burglarized. Three residents of Crawfordsville, Earl Lowe, Kenneth Stodgill and Richard Griffin, were in the vicinity of the post office at that time. Two of these citizens testified that they heard a pounding noise while at a house catty-corner to the burglarized building. From a distance of one-half block all three witnesses saw four men running down an alley adjacent to the post office. Thereafter, a man walked past them whom Griffin testified resembled defendant, Donald Lee Kness, and Stodgill testified looked like either defendant Kness or Knudtson. A few moments latter these citizens observed a light green 1968 Ford Fastback with one occupant drive up the same alley. Thereafter, they saw the same car parked a half block from the post office, where it remained some fifteen to twenty minutes before it pulled away. A short time later Stodgill, Lowe and Griffin found the door to the building housing the post office pried open and notified the local deputy sheriff.
A description of the car in question was broadcast over area police radio and intercepted by the police at Iowa City, Iowa, which is located on the highway between Crawfordsville and Cedar Rapids. The Iowa City authorities had earlier stopped a car matching the description and had issued a traffic violation summons to Donald Lee Kness of Cedar Rapids. The car containing four occupants then departed from Iowa City. Subsequent to the reception of the radio transmission from Crawfordsville, the Iowa City police notified authorities at Cedar Rapids as to the expected route and time of arrival in Cedar Rapids of the automobile in question.
The police in Cedar Rapids located the described vehicle and followed it to a parking lot adjacent to some taverns. Identification was procured from Donald Lee Kness and Gene Allen Knudtson, but not from defendant Evans. The three defendants, the only occupants of the car, then left the automobile and proceeded toward the taverns. The Cedar Rapids authorities kept the car under surveillance. Two hours later defendant Kness returned with Marjorie Mae Johnson, the owner of the car, and sought to regain its possession. At this time Kness was arrested for intoxication.
The three witnesses who had seen the vehicle near the Crawfordsville Post Office were taken to the car in Cedar Rapids. They positively identified the car as the two-door light green 1968 Ford Fastback which they had earlier seen. They also noted other identifying characteristics such as snow tires, which matched the only tread marks they had seen in the alley next to the Crawfords-ville Post Office, and a pulled rear bumper.
Elmo Carleton, the postal inspector, ordered the car removed to a public garage. Inspector Carleton testified that at this time he knew that defendants Kness and Knudtson had a very high reputation in the Cedar Rapids area for committing breaking and entering.
Early that morning following the burglary, Inspector Carleton sought from the Commissioner a search warrant on the basis of “a positive identification being made of the above described vehicle by three Crawfordsville, Iowa residents, namely Kennneth Stogell, Dick Griffin and Wayne Lowe, each stating that it is the same vehicle which they witnessed at the United States Post Office at Crawfordsville, Iowa, during the burglary of the said post office on the night of June 4, 1970.” The search warrant was issued, resulting in the location of a large quantity of items in the trunk of the vehicle which had been taken from the Crawfordsville Post Office.
Appellants contend that the car was seized prior to the identification of the vehicle by the Crawfordsville residents, and, therefore, without probable cause. The record indicates that there was no seizure of the vehicle prior to the identification by the Crawfordsville residents. The Officers who surveyed the vehicle from the time the appellants left it until its identification, testified that only one attempt was made to retrieve the automobile by Kness, who was arrested for intoxication and, therefore, incapable of driving the car. Marjorie Mae Johnson, who accompanied Kness, made no request to drive the automobile, and left in a cab. The car was impounded only after the Crawfordsville residents identified it, at which time probable cause to seize the car existed.
The court in Carroll v. United States, 267 U.S. 132, pages 155-156, 45 S.Ct. 280, page 286, 69 L.Ed. 543 (1925) sets forth the standard for determining the reasonableness of a seizure of a vehicle:
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband * * * which is being illegally transported.”
In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the court applied the Carroll test in approving a seizure of an automobile primarily on information similar to that known by the authorities here. The police in Chambers, supra, stopped a car on the basis of a description from two teenagers of an automobile seen circling the block in the vicinity of a robbery and speeding from a nearby parking lot. One of the occupants of that car was found to have on a green sweater, and a trench coat was also in the ear, which articles of clothing were said to have been worn by the robbers. The police seized the car, took it to the police station, and searched it. The court found that probable cause existed for the search and seizure.
On the facts before this court, Inspector Carleton knew when he ordered the seizure of the vehicle that the Post Office in Crawfordsville had been burglarized; that a car matching the description of the one in question had been seen being driven in an alley next to the Post Office and had been parked nearby; that the vehicle driven by the defendants had been stopped in Iowa City, a town on the highway between the scene of the burglary and Cedar Rapids, a short time after the burglary was discovered ; and that two of the defendants had a reputation for breaking and entering. Inspector Carleton was also present when the three residents of Crawfordsville identified the car on the basis of certain general and specific features. This meets the test of probable cause under Carroll.
Applying Chambers v. Maroney, supra, the authorities had probable cause not only to seize the automobile, but to search it after the identification by the Crawfordsville residents. However, the vehicle was not searched until the appellants had been given that extra privacy afforded by a warrant.
Appellants contend that the affidavit is insufficient on its face to support a finding of probable cause for the issuance of a valid search warrant. In Whiteley v. Warden, 401 U.S. 560, page 564, 91 S.Ct. 1031, page 1035, 28 L.Ed. 2d 306 (1971) the Supreme Court reiterated the standard for finding probable cause and stated:
“The decisions of this Court concerning Fourth Amendment probable cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.”
The affidavit here in question gives a detailed description of the car to be searched and the stolen property expected to be discovered. It also contains statements showing that the Post Office in Crawfordsville had been burglarized the night before. Three residents of Crawfordsville had personally seen the vehicle at the scene of the crime at the time of its commission. This information provides the nexus between the burglary in Crawfordsville and the car, which was a critical element absent in Whitely v. Warden, supra, note 8, at 565, 91 S.Ct. 1031.
The presence of these witnesses at the scene of the crime illustrates the reliable manner in which the witnesses obtained the information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); McCreary v. Sigler, 406 F.2d 1264 (8th Cir. 1969). In addition, the three witnesses were actually named. The positive identification of the car related in the affidavit was an underlying fact adding reliability and credibility to the witnesses’ observations of the vehicle at the scene of the burglary. United States v. Harris, supra; Aguilar v. Texas, supra. The affidavit meets the requirements of probable cause set down by the Supreme Court.
Appellants Knudtson and Evans contend that they are entitled to a judgment of acquittal since reasonable doubt existed as a matter of law. We cannot agree. Proof beyond a reasonable doubt has long been the standard for determining guilt of a criminal charge. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In United States v. Francisco, 410 F.2d 1283 (8th Cir. 1969), the court in determining whether the prosecution had met this burden, held, 1. c. 1285-1286:
“In a criminal case where there has been a conviction resulting from a jury verdict of guilty, the appellate court must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence are resolved in favor of the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); La-tham v. United States, 407 F.2d 1, 2 (8th Cir. 1969); * * *. In determining the sufficiency of the evidence, we must view it most favorably to sustain a jury verdict. Teel v. United States, 407 F.2d 604 (8th Cir. 1969); Moodyes v. United States, 400 F.2d 360, 363 (8th Cir. 1968); Meyer v. United States, 396 F.2d 279, 283 (8th Cir. 1968).”
Applying the above standard to the evidence in this case, the jury could properly infer that the defendants Knudtson and Evans participated in the burglary of the Post Office in Craw-fordsville on June 4, 1970. Among the facts established by the government from which the jury could make such an inference were the following: That four people were seen running in an alley near the burglarized post office in Crawfordsville at approximately the time the burglary took place; that defendant Knudtson along with defendant Kness was identified as resembling the man seen in Crawfordsville by the three residents, as testified to by the witness Stodgill; that three other people were in the car at the time defendant Kness was issued a ticket in Iowa City, at about the time it would take the car to travel from Crawfordsville to Iowa City after the burglary; that the car was spotted in Cedar Rapids at approximately the time it would take the car to travel from Iowa City to Cedar Rapids, and when the car eventually stopped in Cedar Rapids, defendants Knudtson, Evans and Kness emerged therefrom; that the fruits of the crime were found in the trunk of the car in which Knudtson and Evans were riding, and nothing had been put in or removed from the trunk after the defendants left it; and that burglary tools, one of which an expert identified as positively having made marks found on the handle and combination of the post office safe, were found in the trunk.
The above facts provide ample evidence to support the connection of the defendants Evans and Knudtson to the burglary of the United States Post Office in Crawfordsville.
There is no merit to appellants’ contention that the defendants were prejudiced by the joint trial. Rules 8(b) and 13, Federal Rules Criminal Procedure, clearly permit the joinder of defendants.
In Golliher v. United States, 362 F.2d 594 (8th Cir. 1966), the court at page 603 said:
“Since the trial court is affirmatively empowered to order a joint trial, to be entitled to relief the appellants must affirmatively demonstrate that the joint trial has prejudiced their right to a fair trial. Fisher v. United States, 324 F.2d 775 (8 Cir. 1963).”
Appellants have not demonstrated that-any evidence introduced in the trial would have been inadmissible in separate trials of each of the defendants. There is no showing that these two appellants did not receive a fair trial. The lower court did not abuse its discretion in ordering the joint trial of the appellants.
Judgment affirmed.
. The crimes of which the defendants presently stand convicted were committed while all three were enjoying release on bond pending appeal from convictions for similar charges in the state courts.
. Rule 8(b) : “Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
Rule 13: “The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indict- . ment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES, Appellee, v. Franklyn Milton BROWNE, Defendant, Appellant. UNITED STATES, Appellee, v. Darrin TAYLOR, Defendant, Appellant.
Nos. 88-2171, 88-2172.
United States Court of Appeals, First Circuit.
Heard Oct. 6, 1989.
Decided Dec. 12, 1989.
Jeffrey M. Williams, Santurce, P.R., by appointment of the Court, for defendant, appellant Franklyn Milton Browne.
Victor Amador, San Juan, P.R., by appointment of the Court, for defendant, appellant Darrin Taylor.
Jose R. Gaztambide, Asst. U.S. Atty., Rio Piedras, P.R., with whom Daniel F. Lopez Romo, United States Attorney, Hato Rey, P.R., Charles E. Fitzwilliam, Acting U.S. Atty., and Jorge L. Arroyo, Asst. U.S. Atty., Old San Juan, P.R., were on briefs, for appellee.
Before CAMPBELL, Chief Judge, TIMBERS, Senior Circuit Judge, and BREYER, Circuit Judge.
Of the Second Circuit, sitting by designation.
TIMBERS, Circuit Judge:
Appellants Franklyn Milton Browne and Darrin Taylor (collectively “appellants”) appeal from judgments of conviction entered on October 6, 1988 and November 3, 1988, respectively, in the District of Puerto Rico, Raymond L. Acosta, District Judge, upon jury verdicts of guilty on charges of aiding and abetting in the unlawful importation of cocaine into the United States in violation of 21 U.S.C. § 952(a) (1988), aiding and abetting in the unlawful possession of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1988), and aiding and abetting in the unlawful possession of cocaine on board an aircraft in violation of 21 U.S.C. § 955 (1988). A pretrial motion to suppress incriminating statements made by appellants during their interrogations was denied by the district court upon findings that Browne and Taylor made their statements freely and voluntarily.
On appeal, both appellants contend that, in light of the chain of custody defects, the district court erred in admitting in evidence drugs seized during a customs search. They also contend that the district court erred in denying their motions to suppress incriminating statements obtained during custodial interrogation. They claim that these statements were obtained illegally as a result of coercion and intimidation by federal agents in violation of the Fifth Amendment privilege against self-incrimination.
Each appellant also raises separate claims of error.
Taylor contends that the district court erred in denying his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29.
Browne contends that his incriminating statements were obtained in violation of his Fifth Amendment right to have counsel present during custodial interrogation. Browne also contends that the district court erred in allowing his oral statements in evidence since the government had assured his counsel that it would not use the statements. He further contends that the district court erred in admitting in evidence tape recordings of the conversation between co-defendant Billy McDowell and himself.
For the reasons set forth below, we affirm the judgment of conviction with respect to Taylor; but we reverse the judgment of conviction with respect to Browne and remand for a new trial as to him.
I.
We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Appellants arrived at Roosevelt Roads Naval Base in Puerto Rico from Howard Air Force Base in Panama on January 30, 1988. They were on board Military Air Command flight number 480.
U.S. Customs Inspector Angel Luis Ville-gas was the inspector on duty at the terminal. Villegas conducted a customs search of the passengers’ baggage on that flight. He initially discovered a substance in two duffel bags which he suspected was cocaine. These bags belonged to individuals not involved in this case. A third duffel bag was searched in which cocaine and a military garment bearing the name “Taylor” were found. The boarding manifest indicated the presence of only one person named “Taylor”, namely Darrin Taylor. A fourth duffel bag was opened in which cocaine and a military garment bearing the name “Browne” were found. There was only one passenger with the name “Browne” on the flight.
Appellants were arrested and advised of their constitutional rights. They signed waiver of rights forms. During interrogation, both gave incriminating statements. Two notes with similar names and telephone numbers were found in the possession of appellants. The edges of the notes matched and appeared to have been written on one piece of paper. Browne agreed to call Billy McDowell, whose telephone number appeared on one note. The conversation was monitored and recorded. A sham narcotics transaction was arranged. This took place in Texas and led to the arrest of McDowell.
Appellants were charged in a three count indictment returned February 10, 1988 with the three offenses set forth in paragraph one of this opinion.
At a hearing held on June 21, 1988, Judge Acosta denied appellants’ motions to suppress incriminating statements made during custodial interrogation. He stated that “[a]fter careful consideration of the demeanor and credibility of the witnesses, as well as the evidence submitted, together with the arguments of counsel, I find that from the totality of the circumstances that the statements made by Mr. Browne and Mr. Taylor were freely and voluntarily given.”
Following a jury trial, each appellant was convicted on each of the three counts. This appeal followed.
II. TAYLOR’S CLAIMS OF ERROR
A. Chain of Custody Claim
Taylor contends that the packages of cocaine seized during the customs inspection were improperly admitted at trial because the government failed to identify the initial link in the chain of custody. Taylor therefore contends that the cocaine was not properly authenticated and the government failed to establish with reasonable probability that the evidence had not been altered in any material respect subsequent to the crime.
In support of this claim of error, Taylor points to the testimony of Base Security Officer Hamilton, who was present when Taylor's duffel bag was opened and searched. Her testimony indicated that she was confused as to the name of the customs officer who opened and searched Taylor’s duffel bag.
The testimony of U.S. Customs Inspector Villegas, the person who in fact searched Taylor’s duffel bag, however, provides the initial link in the chain of custody. He recognized the packages of cocaine introduced at trial because they bore his identification markings which he had written after he found the packages in Taylor’s bag. He testified that, after he discovered the packages of cocaine, he marked each package with his initials, the time and the abbreviation “HOW” for Howard Base, Panama, the place from which the cocaine had come. He further testified that he separated the cocaine found in Taylor’s bag away from other cocaine which had been found, and that he retained custody of the cocaine until he gave the cocaine to a second customs officer.
We recently stated that “[i]n order to decide whether to admit the exhibits as evidence, the trial court must determine whether there is a reasonable probability that the evidence has not been altered in any material respect since the time of the crime.” United States v. Franchi-Forlando, 838 F.2d 585, 588 (1st Cir.1988). We review the trial court’s determination for an abuse of discretion. United States v. Williams, 809 F.2d 75, 89-90 (1st Cir.), cert. denied, 481 U.S. 1030 (1987), cert. denied, 481 U.S. 1072 (1987), cert. denied, 482 U.S. 906 (1987).
In view of Villegas’ testimony, we hold that there was no abuse of discretion on the part of the district court in admitting the cocaine in evidence.
B. Suppression Claim
Taylor also contends that his incriminating statements were inadmissible because they were not voluntarily given. He asserts that, as a result of alcohol consumption and medication, as well as intimidation by federal agents, he was coerced into signing an inculpatory statement prepared by a federal agent. He says that he was shaking and crying during the interrogation. He also asserts that he was hit on the head during the interrogation.
We have stated that the test of voluntariness is determined by “ ‘whether the will of the defendant had been overborne so that the statement was not his free and voluntary act, and that question [is] to be resolved in light of the totality of circumstances.’ ” Bryant v. Vose, 785 F.2d 364, 367-68 (1st Cir.) (quoting Procunier v. Atchley, 400 U.S. 446, 453 (1971)), cert. denied, 477 U.S. 907 (1986). Some of the factors to be considered include “ ‘the type and length of questioning, the defendant’s physical and mental capabilities, and the government’s method of interrogation.’ ” United States v. Alvarado, 882 F.2d 645, 649 (2d Cir.1989) (quoting United States v. Mast, 735 F.2d 745, 749 (2d Cir.1984)); see also Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (enumerating factors).
In view of the evidence adduced at the suppression hearing, we are not persuaded by Taylor’s claim of involuntariness. There is ample evidence in the record to support the district court’s finding of vol-untariness with respect to Taylor’s statements. The testimony of U.S. Customs Agent Hector Luis Marte and Drug Enforcement Administration Special Agent Thomas Kusen established that Taylor was advised of his Miranda rights; that he read and signed a waiver of rights form; that he read and signed a statement prepared by Marte which incriminated him; and that he made incriminating oral statements. Both Marte and Kusen testified that, during the two sessions of interrogation, Taylor appeared responsive and showed no signs of fatigue or alcohol consumption. Marte testified that at no time during his interrogation of Taylor did he tap Taylor’s head to wake him up. Kusen testified that when Taylor started to cry and shake during the second session of interrogation, he gave Taylor time to compose himself. It is undisputed that at no time during the interrogations did Taylor request to see an attorney.
In short, we agree with the district court that Taylor’s statements were freely and voluntarily given. We hold that the district court properly denied Taylor’s motion to suppress his incriminating statements.
C. Claim Regarding Denial of Motion for Judgment of Acquittal
This brings us to Taylor’s final contention that the district court erred in denying his motion for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. In determining whether a trial court properly denied a motion for judgment of acquittal, we must review the facts in the light most favorable to the government, drawing all reasonable inferences supporting the government’s position. United States v. McMahon, 861 F.2d 8, 11 (1st Cir.1988). "We must resolve any issue of credibility in favor of the jury’s verdict ... and we must defer to the jury’s verdict if the evidence can support varying interpretations.... ” United States v. McNatt, 813 F.2d 499, 502 (1st Cir.1987) (citations omitted). The government “need only produce that quantum of evidence by which a reasonable trier of fact could find guilt beyond a reasonable doubt; there is no requirement to produce evidence that would compel a finding of guilt beyond a reasonable doubt.” Id. (emphasis in original). Moreover, the government may prove its case entirely by circumstantial evidence and need not exclude every reasonable hypothesis inconsistent with guilt, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt. United States v. Rivera Rodriguez, 808 F.2d 886, 890 (1st Cir.1986).
Based on the evidence adduced at trial, including the cocaine found in Taylor’s bag and Taylor’s incriminating statements, all viewed as a whole in the light most favorable to the government, together with all proper inferences to be drawn from the evidence, we conclude that there was sufficient evidence for a rational trier of fact to find Taylor guilty beyond a reasonable doubt on all three counts:
We hold that the district court properly denied Taylor's motion for judgment of acquittal.
III. BROWNE’S SUPPRESSION CLAIM OF ERROR
Browne contends that his incriminating statements were obtained in violation of his Fifth Amendment right to have counsel present during custodial interrogation. He claims that during his interrogation and before giving any incriminating statements, he invoked his right to counsel, a request disregarded by his interrogators. Inexplicably, the government failed in its brief to address Browne’s claim in this respect. Furthermore, although the district court found that Browne’s statements were freely and voluntarily given, it did not address the question whether Browne in fact had invoked his right to counsel.
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” These procedural safeguards require that the police inform the defendant that “he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. “Beyond this duty to inform, Miranda requires that the police respect the accused’s decision to exercise the rights outlined in the warnings.” Moran v. Burbine, 475 U.S. 412, 420 (1986).
Once an accused has invoked his right to counsel, he cannot be subjected to further interrogation until counsel has been provided, unless the accused himself initiates further communication with his interrogator. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Furthermore, “a valid waiver of that right cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484. Under the Edwards “bright-line rule”, all questioning must cease after an accused requests counsel, regardless of any question of waiver, unless the accused himself initiates the conversation. Moran v. Burbine, supra, at 423 n. 1; Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam). We have held that any statements made after an accused has invoked his right to counsel and the police have initiated further investigation “cannot be the result of waiver but must be presumed a product of compulsion, subtle or otherwise.” United States v. Porter, 764 F.2d 1, 7 (1st Cir.1985), cert. denied, 481 U.S. 1048 (1987).
After carefully reviewing the record before us, we hold that Browne’s statements were obtained in violation of the prophylactic Edwards rule. Our analysis is simplified by the government’s inexplicable failure to address in its brief Browne’s claim which involves a basic principle of constitutional law. Further, the government does not challenge Browne’s assertion that he invoked his right to counsel during interrogation. Consequently, we are left with the following unchallenged allegations: Browne asserted his right to counsel during interrogation; his request was disregarded; and his interrogators continued their questioning until Browne gave his incriminating statements.
We hold that Browne’s incriminating statements were erroneously admitted in evidence in violation of the prophylactic Edwards rule. Although there was other evidence against Browne, we decline to hold that the admission of his incriminating statements was harmless beyond a reasonable doubt. See United States v. Porter, supra, at 7 (“When trial error infringes on constitutional rights we have previously held that we must reverse unless we find that the error was harmless beyond a reasonable doubt.”) (citing United States v. Christian, 571 F.2d 64, 69-70 (1st Cir.1978)).
We reverse Browne’s judgment of conviction and remand the case for a new trial as to him.
IV.
To summarize:
As to Taylor, after carefully considering his claims of error, we conclude that his judgment of conviction must be affirmed. We hold that the district court did not abuse its discretion in admitting at trial the cocaine found in Taylor’s duffel bag. We also hold that the district court properly denied Taylor’s motion to suppress his incriminating statements. We further hold that the district court properly denied Taylor’s motion for judgment of acquittal.
As to Browne, we hold that the admission of his incriminating statements violated the prophylactic Edwards rule. His judgment of conviction is reversed and the case is remanded for a new trial as to him.
AFFIRMED in part; REVERSED and REMANDED in part.
. Hamilton testified that, in her presence, a customs agent unlocked and opened a duffel bag which contained five packages of a substance suspected to be cocaine and a military garment bearing the name "Taylor". At first, she testified that the name of that customs agent was Melendez. Later, she testified that the person who opened Taylor’s bag was customs inspector Villegas.
. The testimony at trial established that the second customs officer turned over the evidence to a Drug Enforcement Administration special agent who later placed the evidence in bags which he sealed and signed and later identified at trial. The bags were then transported to a laboratory, where a forensic chemist analyzed the contents of the packages, signed and initialed them, and resealed them in envelopes which he identified at trial.
. We further note that, once the proponent of the evidence meets the threshold requirement of showing with "reasonable probability" that the evidence has not been altered in any material respect from its original condition, any doubts concerning the possibility of alteration goes to the weight of the evidence and not to its admissibility. United States v. Williams, supra, at 89-90.
. Taylor testified at the suppression hearing that during the first session of interrogation, he "put [his] head down on one of the desks and [the first agent] came by and started hitting — tapping me to wake up.” It was determined at the suppression hearing that the agent who conducted the first interrogation was U.S. Customs Agent Hector Luis Marte.
. At the suppression hearing, Browne gave the following testimony:
"Browne: Then at the time I asked to see an attorney. When I saw that I was getting nowhere [sic], I asked to see an attorney but they told me that I would have plenty of time to see an attorney and all I had to do now was to worry about answering these questions.
Q: Did they stop the interrogation at that moment?
Browne: No, they did not.
Q: They continued interrogating?
Browne: They kept on interrogating me.
Q: They ignored your request?
Browne: They ignored my request."
. We note that this glaring omission in the government’s brief reflects the government’s inept preparation of this case. At oral argument, we asked the assistant U.S. Attorney for a response to Browne’s claim with respect to right to counsel. The assistant U.S. Attorney was unable to respond, stating only that he was not the prosecutor in the case. Such an answer is utterly unacceptable.
The prosecution’s error in this case, taken together with other prosecutorial errors that we have recently found in cases tried in the District of Puerto Rico, gives us particular cause for concern. This case involves a violation of the well-known, clear rule, set forth by the Supreme Court in Edwards v. Arizona, supra, 451 U.S. 477, that once a suspect requests a lawyer, the police must discontinue their questioning until the lawyer is obtained. See Moran v. Burbine, supra, 475 U.S. at 423 n. 1; Smith v. Illinois, supra, 469 U.S. at 98; United States v. Porter, 764 F.2d 1, 7 (1st Cir.1985), cert. denied, 481 U.S. 1048 (1987). If the prosecution believed that the defendant in this case lied in saying he requested a lawyer, the prosecution was negligent in failing to produce evidence to the contrary; if the prosecution believed the defendant told the truth (or if the prosecution failed to look into the matter), it is open to yet more criticism. In one other recent case, United States v. Pacheco-Ortiz, 889 F.2d 301, 302-03 (1st Cir.1989) (per curiam), the same United States Attorney’s Office failed to warn a grand jury witness that he was a target of the investigation — a clear violation of well-known Department of Justice Guidelines. In yet another recent case, United States v. Doe, 878 F.2d 1546, 1549 (1st Cir.1989), the same United States Attorney’s Office brought a case under the wrong statute.
We understand that in a hard-working United States Attorney's Office, with many cases to prosecute, and too few prosecutors, some mistakes are inevitable. Nonetheless, the mistakes here are sufficiently more serious than ordinary, and have followed so closely one upon the other, that we ask the United States Attorney to take steps to prevent a repetition.
. Indeed, the assistant U.S. Attorney conceded at oral argument that he did not have a response to Browne’s claim nor did he think that there was evidence in the record which contradicted such claim. Our own search of the record revealed only one government witness, U.S. Customs Agent Juan Daniel Pineda, who testified that Browne did not request to see an attorney. However, Pineda, who was one of Browne’s interrogators, also admitted that he was not present each time Browne was interrogated and did not know what happened in other interrogations. The relevant testimony is as follows;
Direct Examination:
"Q: I ask you if at any time during your questioning of Mr. Browne, he requested to see an attorney?
A: No, he didn’t, sir.”
Cross Examination:
“Q: Were you present every time Mr. Browne was interrogated?
A: No, sir.
Q: So, you cannot testify as to the fact, what happened during other interrogations; isn’t that a fact?
A: Right, sir."
Thus, we cannot conclude — based solely on Pineda’s testimony — that Browne did not assert his right to counsel during his interrogations.
. Since we reverse Browne’s conviction based on the violation of the Edwards rule, we find it neither necessary nor appropriate to reach his other claims of error.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_appel1_7_4
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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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the citizenship of this litigant as indicated in the opinion.
UNITED STATES of America v. Wendell McINTOSH, Appellant.
No. 22538.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 11, 1969.
Decided March 11, 1970.
Mr. Worth Rowley, Washington, D. C. (appointed by this court), for appellant.
Mr. Edwin K. Hall, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., John A. Terry and Daniel Harris, Asst. U. S. Attys., were on the brief, for appellee. Mr. David G. Bress, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.
MacKINNON, Circuit Judge:
Appellant was convicted of mail theft of a cardboard box at the Union Station. Evidence at his trial showed that Post Office personnel saw him leaving a mail area near the passenger gates at Union Station carrying a mailed cardboard box. When a postal supervisor asked him about the box he was carrying, appellant said that it was his, but later when it became apparent from examination that it was not, the appellant claimed that he had had a parcel of the same size and shape but that he must have picked up the wrong parcel. At trial appellant also claimed that he had a similar cardboard box that he had set down at the Union Station; but such box was never produced nor was there any corroborative evidence that such box ever existed. Appellant’s attempted explanation as to his reason for being at the station revolved around the claim that he was there to meet friends he expected to arrive on an incoming train. These “friends” were never otherwise identified or produced.
Before trial there was a motion to suppress hearing after which the trial judge conducted a Luck type hearing at which it was brought out that appellant had been convicted of larceny after trust in 1955 and three violations of the Harrison Narcotics Act in 1961. Because of the natural objections to these convictions (remoteness and propensity to crime), the trial judge then considered conducting a hearing to determine whether the appellant had led a legally blameless life since 1955 but appellant’s' counsel refused this offer saying, “I can’t say that.” The judge then said:
“I don’t believe in weighing down the record with evidence of prior criminal convictions because that too much leads a jury to the possible conclusion that the man has a propensity for crime rather than simply having the opportunity of considering it in connection with their evaluation of his credibility. I will permit you to introduce or to question him about one of these convictions. Now, which one would you prefer to use, the recent one in the narcotics area? Or larceny after trust?”
The prosecution chose and used the narcotics conviction because it was the most recent conviction.
At trial there was no objection to use of the prior conviction but now on appeal appellant argues that a Harrison Narcotics Act conviction is a hideous crime which does not bear directly on credibility and, therefore, it was reversible error for the court to allow the Government to use it for impeachment purposes in a case where he is the only defense witness. We disagree.
This court has held that narcotics convictions do bear weight on the issue of credibility. Consequently, in a Luck situation, if the judge determines that one of a number of a defendant’s prior convictions is to be introduced for impeachment purposes, it is not error per se to allow impeachment by a narcotics conviction pursuant to D.C.Code § 14-305 (1967). We disagree with the appellant’s contention that a narcotics conviction is such a hideous crime that its introduction at trial automatically becomes so prejudicial that a defendant is thereby denied his right to a fair trial. Indeed, one might argue that a narcotics conviction is not near so damaging in a mail theft trial as a larceny after trust conviction would be. This may very well have been the reason the defense did not object at trial. In any event it would not be in the interest of justice to allow one with prior convictions to assume the role of pure integrity on the stand simply because he is his only witness or because his prior crimes were serious crimes. We should not forget in our reading of Luck that D.C. Code § 14-305 does specifically authorize the use of a prior conviction to affect one's credibility as a witness.
The trial judge did err when he allowed the prosecution to select the conviction he was going to use. The question of which conviction to allow for impeachment purposes is under Luck, supra, a matter for the trial judge’s discretion and a failure to exercise that discretion constitutes an abuse thereof. A reading of the record as a whole however indicates that the trial judge weighed the relevant factors (i. e., remoteness, relative bearing on credibility, propensity to crime, etc.) and decided that the two forms of convictions weighed equally. Nevertheless, it was error for the trial judge not to make the decision himself but we do not find that this error constitutes reversible error in this instance. “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed.R.Crim.P. 52(a). In this case, the use of a more recent narcotics conviction, as opposed to the more remote larceny after trust conviction that carried the inference of propensity to commit the charged crime, did not affect any substantial rights of the appellant.
The appellant also argues that the prosecutor, in his closing statement to the jury, and the trial judge, in his instructions to the jury, made reference to the narcotics conviction and that these references inflamed the jury to the prejudice of the defendant. We do not agree. The prosecutor’s interrogation, his argument to the jury and the court’s instruction on the prior conviction were carefully stated so that it was quite clear that the jury was to consider the prior offense solely on the issue of the credibility of the witness.
Appellant’s brief also takes exception to the prosecutor’s statement that narcotics addicts are notorious liars. Suffice it to say that this statement was not made within the hearing of the jury, and the reference thereto did not reflect the opinion of the prosecutor. He was merely calling the court’s attention out of the hearing of the jury to an argument made in Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748 (1964), that dealt with addicts.
Affirmed.
. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).
. Brooke v. United States, 128 U.S.App.D.C. 19, 385 F.2d 279 (1967); Evans v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675 (1968). Brooke was a narcotics case and hence the court’s decision permitting use of a prior narcotics conviction for impeachment purposes, over the objection that it would prejudice the defendant by showing a propensity for the particular crime with which he was charged, must be viewed as a strong holding by this court that narcotics convictions go to credibility.
. “A person is not incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime. The fact of conviction may be given in evidence to affect his credibility as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him is not bound by his answers as to such matters. To prove the conviction of crime the certificate, under seal, of the clerk of the court wherein proceedings containing the conviction were had, stating the fact of the. conviction and for what cause, is sufficient.” D.C.Code § 14-305.
. The prosecutor interrogated the witness as follows:
“Q Hr. McIntosh, weren’t you convicted on May 25, 1961, of a Harrison Narcotics Act violation?
“A I have, sir.”
The prosecutor argued to the jury:
“I might mention something, I asked him if he had been convicted of a narcotics violation in 1961. There is only one reason I asked him that. It has a bearing on his credibility. It is not to be considered by you as to whether or not he is guilty of this offense. That comes from the evidence the Government permitted — the Court has permitted the Government to introduce. That narcotic conviction only had to do [with] whether or not he is telling the truth, and that is all. I am sure the Court will instruct you that which you are to consider.”
The court charged the jury as follows:
“The defendant’s prior criminal record is admitted into evidence solely for your consideration in evaluating the credibility of the defendant as a witness. It is not evidence of the defendant’s guilt of the offense with which he is on trial. You must not draw any inference of guilt against the defendant from his prior conviction. You may consider it only in connection with your evaluation of the credence to be given his testimony in this case.”
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the citizenship of this litigant as indicated in the opinion?
A. not ascertained
B. US citizen
C. alien
Answer:
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songer_circuit
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J
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Gayle CAPSTICK, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
No. 91-7088.
United States Court of Appeals, Tenth Circuit.
July 7, 1993.
Stephen R. McAllister (Larry L. Simms with him, on the Briefs), Gibson, Dunn & Crutcher, Washington, DC, for appellant Allstate Ins. Co.
Richard D. Gibbon, Richard D. Gibbon & Associates, Tulsa, OK (Aaron C. Peterson, Law Offices of Aaron C. Peterson, with him on the Brief), for appellee Gayle Capstick.
Before LOGAN and SEYMOUR, Circuit Judges, and BROWN, Senior District Judge.
Hon. Wesley E. Brown, Senior District Judge, District of Kansas, sitting by designation.
' WESLEY E. BROWN, Senior District Judge.
The Plaintiff-Appellee Gayle Capstick filed this case against his automobile insurer, Defendant-Appellant Allstate Insurance Company, for damages for breach of contract, and bad faith refusal to pay an insurance claim after his auto was totally destroyed in a fire on January 11,1990. By letter dated February 16, 1990, Allstate refused to pay the claim, telling Capstick that the “fire appears to be of incendiary origin for which you are responsible.”
A jury awarded Capstick compensatory damages of $1,500 on his contract claim, and $3,000 consequential damages and $2 million in punitive damages on the bad faith claim. The district court denied Allstate’s post-trial motions for relief from the judgment and amended the judgment to allow prejudgment interest.
Capstick has moved to dismiss this appeal for lack of jurisdiction because defendant Allstate failed to file its notice of appeal within thirty days of the entry of the original judgment in this matter dated February 8, 1991.
The record discloses that separate judgments on the jury verdicts were filed on February 8 without any reference to prejudgment interest. On February 19, Allstate filed its substantive post-trial motions and sought a stay of judgment and approval of a supersedeas bond. On February 20, Cap-stick filed an application under Fed.R.Civ.P. 59 claiming a right to such interest. Since an award of prejudgment interest was mandatory under state law, Allstate did not oppose that aspect of Capstick’s post-trial motion. On March 26, a stay was granted; but the district court denied all of Allstate’s post-trial motions. On May 9, Capstick filed a “Motion to Require Surety to Satisfy Judgment,” claiming that the judgment should be satisfied because Allstate had not filed a notice of appeal within thirty days after its post-trial motions had been denied. On June 11, the district court entered an order granting prejudgment interest, but denying the motion to require surety since the motion for interest delayed the time for filing a notice of appeal..
The district court correctly construed the motion for prejudgment interest as a Rule 59(e) motion to amend the judgment, a motion which postponed the commencement of the time for filing a notice of appeal. Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). Citing Osterneck, this circuit has ruled that “(t)he award of prejudgment interest, whether discretionary or mandatory, by a federal court, is an act which serves to remedy the injury giving rise to the underlying action and in that sense is part of the merits of the court’s decision.” The motion should be brought under Rule 59(e), and not Rule 60(a), since a Rule 60 motion “may not be used to alter the rate of prejudgment interest because that would call into question the substantive correctness of the judgment rather than remedy a clerical error or omission.” McNickle v. Bankers Life and Cas. Co., 888 F.2d 678 at 682 (10th Cir.1989). See also Adams-Arapahoe School D. 28-J v. Continental Ins., 891 F.2d 772, 780 (10th Cir.1989).
Because the notice of appeal was timely, Capstiek’s motion to dismiss this appeal will be denied. Allstate’s motion for sanctions in connection with the motion to dismiss will be denied.
We now turn to the merits of the appeal. Allstate claims that under Oklahoma law, the district court erred in denying its motions for partial summary judgment and for directed verdict and for judgment not withstanding the verdicVremittitur, or for new trial, on the issues of bad faith and punitive damages.
Allstate also contends that the court erred as a matter of law in. permitting the jury to impose punitive damages in excess of the actual damages awarded, that the punitive damages awarded are excessive and unsupported by the evidence, and that the punitive damage award in this case was imposed in violation of federal constitutional due process.
Following our review of the record and the law, we find that the judgment should be affirmed.
The conflicting evidence which was presented by the parties presented a classic case for jury determination. Viewing the evidence in the light most favorable to the plaintiff, it appears that the jury could find that Capstick was a sixty-eight-year-old retired dean of a junior college in Pensacola, Florida, with a doctorate, who had held this position for twelve years before retiring. On January 11, 1990, he owned a 1982 Chevrolet Celebrity, purchased about two years before, which was insured by Allstate. Prior to this time, Capstick had been insured by Allstate for over 28 years, paying his premiums and making only a few claims for windshield and hail damage during all of those years. At the time of the fire, Capstick’s vehicle was worth about $1,500; he did not owe any money on it or any other vehicle; there were no judgments against him; and he did not owe any debts to.any one of any kind.
Capstick maintained his own car, and on January 11, 1990, he drove the Chevrolet to his son’s home where it was more convenient to make repairs. The vehicle was parked next to a metal storage building, which contained a race ear engine and other parts, valued at $20,000. Neither the building nor the contents were insured. Capstick and his son put the car upon ramps and began to remove the head in order to change the head gasket. They disconnected the air conditioner, loosened the intake manifold from the head and the exhaust manifold in front of the head, disconnected the water hose, loosened the bolts, removed the solenoid and disconnected the gas line. Capstick then got in the car and “bumped” the ignition in order to raise the pistons to the top so his son could inspect them. When the two decided to stop work for the day, they noticed gas flowing under the vehicle and, when Capstick tried to stop the gas flow, it spewed out of the gas line all over the engine and firewall of the vehicle. Capstick tried to disconnect the battery in order to prevent a fire; but a fire exploded in the engine compartment, and additional gas flowed out of the fuel line fueling the fire.
With chains and another car, Capstick and his son did succeed in dragging the Chevrolet away from the building and its uninsured contents, but by that time the interior of the car was burning, and the car was entirely consumed. Capstick had four quarts of transmission fluid and five quarts-of oil in the back of the car and these added fuel for the fire. A grass fire was started under the building, but this fire was put out without any damage to the contents of the metal building. Capstick’s neighbors helped plaintiff and his son put out the fire, and these neighbors were of eourse available to Allstate as witnesses to the occurrence.
Capstick reported the loss to Allstate the next day and, from the very beginning without any investigation, Allstate treated the claim as a “suspicious loss.” The initial entry in plaintiffs claim file was made at 11:31 а.m. upon receipt of plaintiffs telephoned report:
Insured vehicle burned up as he was doing repair work on the vehicle it is a total loss Pete... Possible suspicious loss-
Allstate presented evidence that this was merely a clerical entry into its computer system because Capstick’s policy number could not immediately be found, and it was mistakenly assumed that his was a “new” policy. By noon on that date, it had been determined that Capstick had active coverage and had been Allstate insured since 1972.
The jury was entitled to consider the significance of this entry in the light of other evidence tending to show that Allstate continued to pursue Capstick’s' claim on the assumption that it was a “suspicious loss.” Both before and after his claim was rejected, Capstick requested that an Allstate agent come out to the scene of the fire, which he had preserved by covering the area with plastic. Instead of doing so, Allstate had the vehicle removed to a salvage yard in Sapulpa, Oklahoma. Allstate’s adjuster, Peter'D’Ales-sandro, who had previously handled six to ten fire loss claims for the company, visited the salvage yard and determined that the auto “looked burned up.” He reported “I have only seen them this burned up when they were stolen and had gas poured all over them.”
D’Alessandro called in Jack Yates to perform a “cause-and-origin” examination of the car. Yates asked if there was an explanation for a heavy petroleum product that would be in the front floor pan areh of the vehicle, but he was told only that the car caught fire while Capstick was working on it; and Yates was never informed of Capstick’s explanation that the vehicle burned when gasoline sprayed all over the engine firewall and below the vehicle. Yates verbally reported that he had smelled diesel fuel in the vehicle, and a lab analysis found a heavy petroleum product on the floor of the vehicle. At this point, Capstick was called into the Allstate office and voluntarily gave an affidavit concerning the origin of the file. D’Alessandro filled out the affidavit, leaving out much of the detailed information which was furnished by Capstick at this time. Particularly, the agent failed to note that there were witnesses to the fire who would have confirmed Capstick’s statement of the events. D’Alessandro and his supervisor both decided not even to interview plaintiffs son, who was present at the fire, because he would only “back up his father as to what had happened.”
The jury heard evidence from Michael Bruun, a mechanic retained by Allstate to evaluate Capstick’s description of events. While Bruun believed that a faulty computer and fuel pump relay were possible sources of the fire, D’Alessandro chose to record that while a “messed up fuel pump relay” could have caused the fire, “Everything is possible. But not likely.”
Capstick was again called in to give a deposition under oath before Mark Hanson, in-house counsel for Allstate. Capstick was required to bring in his tax returns for the past several years, his decree of divorce, copies of all other insurance policies covering the loss, including dwelling and contents insurance, copies of his monthly bank statements, canceled cheeks and financial records for 1985-1989; account books and statements for all of his business interests, copies of all promissory notes, leases, mortgages and liens on any real or personal property he owned, and “any and all other documentation of whatever kind or nature including any receipts which you have in your possession... in order to buttress and verify the claim” which he filed. When Capstick came in with all of his documents, Allstate agents spent only two to three minutes looking them over, and none were kept by Allstate for review. While Allstate argued that there were material discrepancies between the sworn statement and Capstick’s earlier account of the loss, the jury was entitled to find that these differences did not exist.
. In the first instance, Allstate contends that it was entitled to summary judgment and/or directed verdict upon the bad faith claim because its denial of the claim was based upon a good faith arson defense which “demonstrated the existence of a legitimate dispute over coverage, precluding a finding of bad faith or an award of punitive damages under Oklahoma law.” In support of this argument, Allstate cites Manis v. Hartford Fire Ins. Co., 681 P.2d 760 (Okla.1984), and Conti v. Republic Underwriters Ins. Co., 782 P.2d 1357 (Okla.1989). In Manis the court found that the insurer reasonably contested coverage because there was evidence that the fire was incendiary in origin; a state fire marshal testified that the fire was deliberately set, the plaintiff had operated his bar at a loss for four years, that he had increased his mortgage debt on the building after he purchased it, and that he had a questionable alibi at the time of the fire. In Conti, the court found that there was a legitimate dispute and that the insurer acted in good faith since there was physical evidence of arson, and plaintiff failed to pass three polygraph tests which he himself requested.
While Allstate contends that there was “undisputed scientific evidence” of arson present in this case and that it had legitimately disputed coverage, the trial court in overruling the motion for directed verdict specifically found, under the evidence described above, that the company had simply picked an “expert” who was not given any information concerning the true circumstances of the fire, and that Allstate had denied coverage without making any other bona fide investigation of plaintiffs claim. Appellee Appendix pp. 858-359. After the Capstick trial, the Supreme Court of Oklahoma in McCoy v. Okla. Farm Bur. Mut. Ins. Co., 841 P.2d 568 (Okla.1992), determined on similar facts that a jury was entitled to evaluate a bad faith claim, when the legitimacy of the insurer’s “good faith” claim was suspect. After the McCoy decision, Mí-state filed a motion to certify questions of law to the Oklahoma Supreme Court as to whether or not it was entitled to a judgment as a matter of law on the bad faith claim since, in its view, McCoy “potentially unsettles the applicable state law...” In making its argument, Allstate erroneously contends that its arson evidence was based upon “undisputed scientific evidence,” thereby overlooking all other evidence tending to prove that it failed entirely to conduct any legitimate investigation of plaintiffs claim. We find the McCoy case to be entirely clear on its face, and the motion to certify any issue to the state court will be denied.
Under the evidence discussed above, we find that the issue of bad faith was properly submitted to the jury. The instruction which was given on bad faith was appropriate under Oklahoma law and clearly set out for jury evaluation Allstate’s position regarding the presence of a legitimate dispute over coverage. The jury was instructed that:
The law provides that persons who contract with each other have an implied covenant or promise to deal with each other in good faith.
One of those implied covenants in an insurance contract ig that the insurer will not act in bad faith with- an intent to wrongfully and unreasonably withhold payment of an insured’s valid claim. The term “in bad faith with a wrongful intent” means “without good cause or without a legitimate business purpose.”
Upon receipt of a valid claim, an insurance company has an obligation and a duty to pay such claim immediately or promptly without any unreasonable delay. However, an insurance company has the right to make a reasonable investigation of claims and to withhold payment of claims when such an investigation shows that a claim is not valid.
In that regard, the defendant Insurance Company does not breach its duty to deal in good faith with an insured such as plaintiff Capstick, if you find from all the evidence there is a legitimate dispute as to whether or not there is coverage under the insurance policy, and the defendant Insurance Company’s acts and position are reasonable and legitimate.” (Appellee Appendix pp. 105-106).
The jury’s verdict on the bad faith claim is supported by the evidence and will not be disturbed.
Allstate next contends that other than some slight “mental anguish,” Capstick failed to prove any consequential damages which resulted from the refusal to pay his claim, therefore he was not entitled to an award of punitive damages.
Under the law of Oklahoma, recovery of damages for mental suffering “does not require either ‘severe’ mental distress or ‘outrageous’ conduct to be actionable...” Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 916 (Okl.1982). But under the evidence in this case, the jury was entitled to find that Capstick, who cooperated fully with Allstate in the investigation of his claim, sustained considerable mental distress, inconvenience, annoyance, and expense while producing all of the information required to support his claim. He testified that the investigation “bore greatly” on his life, and he spent much time “thinking about how I could convince Allstate that I was not an arsonist,” that “(e)very night I would go to sleep thinking about this situation, what could I do, and would run over in my mind, well, I could do this; I could do that. And it did put a turmoil in my life for this period of time.” He was also concerned that Allstate was inquiring about his divorce, and worried that, at his age, denial of his claim would affect his insurability in the future. (Applt. Appendix pp. 178-179).
Under these circumstances, it is clear that Capstick did sustain consequential damages as a result of Allstate’s tortious conduct.
Under Oklahoma law, Capstick was entitled to recover punitive damages in addition to consequential damages. Timmons v. Royal Globe Ins. Co., supra, 653 P.2d 907; Spaeth v. Union Oil Co. of California, 762 F.2d 865 (10th Cir.1985), cert. den. 476 U.S. 1104, 106 S.Ct. 1946, 90 L.Ed.2d 356 and he was entitled to an award in excess of his actual damages if the trial court determined that there was evidence that defendant acted with wanton or reckless disregard of plaintiffs rights.
The Oklahoma punitive damage statute, effective November 1, 1986, limits the amount of punitive damages to the amount of actual damages, in the absence of certain evidence which would raise the cap on damages. Thus Section 9, Okla.Stat.Tit. 23 (1986), as amended, provides that:
A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and ‘prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury may give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply. (Emphasis supplied)
In a case of first impression, this circuit reviewed the amended statute in Marshall v. El Paso Natural Gas, 874 F.2d 1373 (10th Cir.1989), where the trial judge made a finding that there was clear and convincing evidence of the prohibited conduct and submitted the case to the jury without requiring the jury to make a finding of “clear and convincing evidence” prior to its award of punitive damages. Prior to the amendment, punitive damages were submitted to the jury upon a “preponderance of the evidence” standard; and the Marshall panel, in applying the amended statute, found that the state legislature did not modify the burden of proof from a preponderance of the evidence to “clear and convincing evidence.” In this respect, the panel construed the amendment in this manner:
The amended statute also added a new second sentence requiring the court to make a finding, before the case is submitted to the jury, whether there is clear and convincing evidence to allow an award of punitive damages in excess of the actual damages awarded. Our reading of this change does not support the conclusion that the issue of “enhanced” punitive damages may only be submitted to the jury under the standard of clear and convincing evidence.
* * * * * *
A plain reading of the statute creates a threshold test for the plaintiff to meet in order for the issue of punitive damages to be submitted to the jury without limitation to the amount of actual damages. Once the threshold is met, the punitive damages issue is submitted to the jury under the standard of preponderance of the evidence to determine the amount of punitive damages regardless of whether it equals or exceeds the’actual damages awarded. (874 F.2d at 1383-1384)
In the instant ease, the trial court made the required finding under Title 23, Section 9:
I find that there is clear and convincing evidence that the defendant is guilty of conduct evidencing a wanton or reckless disregard for the rights of the plaintiff, oppression, malice could be actual or presumed, and I’m going to leave it open for the jury to determine the punitive damages. (Appellee Appendix, p. 357)
The issue of whether there was sufficient evidence to support such a finding is a question of law, and, on review, the question is whether the plaintiff “presented evidence sufficient that a reasonable person might conclude the (defendant) acted in a punitive manner.” We find such conclusion to- be supported by the record. Marshall v. El Paso Natural Gas Co., supra, at p. 1384. The trial court did not err in presenting the issue of punitive damages to the jury, under appropriate instructions, without restriction of the amount to the sum of actual damages.
Allstate next contends that Oklahojna law, “which permits juries to impose punitive damages without meaningful guidance” violates Fourteenth Amendment due process under the standards recently set forth by the Supreme Court in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), and that the amount of the award is excessive. These issues present questions of federal law.
In the Haslip case the jury, finding under Aabáma law that an insurance agent fraudulently failed to remit health insurance premiums to his company, returned a verdict awarding plaintiffs approximately $200,000 in compensatory damages, $4,000 in out-of-pocket expenses, and $840,000 in punitive damages. The Supreme Court found Aa-bama’s procedures for assessing and reviewing the award of punitive damages imposed sufficient restraints on the jury’s discretion in terms of constitutional due process and further found that, under the circumstances of the case, the amount of the punitive damage award was reasonable.
Here, the district court was required to instruct the jury under the substantive Oklahoma law which governs punitive damage awards. As noted, the Oklahoma legislature has addressed the problem of punitive awards and has by statute set a “cap” on awards, to be removed only upon a specific finding by the trial court that there is “clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed.” In this instance, the district court made such a finding, and that finding of fact and law is supported by the evidence.
The district court thereafter instructed the jury according to the provisions of Title 23, Section 9, Okla.Stat., that it might give damages “for the sake of example, and by way of punishing the defendant,” “if, and only if’ it found that Capstick was entitled to recover actual damages on account of Alstate’s bad faith. The jury was also instructed that the jury must further find that the conduct of the defendant “amounted to oppression, gross negligence, malice, or reckless and wanton disregard of plaintiffs rights.” The jury was additionally told that these terms meant “such willful acts or conduct that would cause harm or injury to another, committed either intentionally or by indifference to, or conscious disregard of, the rights of others.”
In all respects the Capstick jury was given specific guidelines to follow in determining whether or not punitive damages were appropriate in the circumstances of this case. It was not allowed to “run wild,” and its discretion to impose punitive damages was confined to deterrence and retribution, the' specific policies to be advanced under the state statute. The procedures followed by the trial court in removing the punitive damage cap are identical to that approved by this circuit in Marshall v. El Paso Natural Gas Co., supra, 874 F.2d 1373, and in full accord with the guidelines provided by the Supreme Court in Haslip, supra. See Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.1991), cert. den. - U.S. -, 112 S.Ct. 1778, 118 L.Ed.2d 435; and Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir.1991). In Harrell v. Old American Ins. Co., 829 P.2d 75 (Okl.App.1991), a medical insurer failed to seek medical advice on a claim, failed to consult counsel about relevant law, and failed to ask the insured about additional facts pertaining to her hospitalization. In affirming an award of $1,800 compensatory damages oh a breach of contract claim, $40,000 on a bad faith claim, and $250,-000 in punitive damages, the court found the insurer had shown a wanton or reckless disregard for the rights of its insured, and that the trial court had properly removed the restriction on the amount of punitive damages which the jury could award. 829 P.2d at 79.
In post-trial motions, Allstate alleged that the amount of the punitive award was unsupported by evidence and was excessive, and sought a remittitur or new trial. These motions were denied by the trial court. In the federal court system, the trial judge has broad discretion in deciding whether to grant a new trial, and the court’s ruling on such a motion will not be disturbed on appeal unless there is “a gross abuse of discretion.” Whiteley v. OKC Corp., 719 F.2d 1051, 1058 (10th Cir.1983). The court there described the scope of review in this manner:
“When reviewing the district court’s use of its discretion regarding excessive verdict claims, we must determine whether the award was “so excessive... as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial_” Although we can reverse the verdict if it is too far out of line, there must be a strong showing of an abuse of discretion....
Under Oklahoma law, each case with an excessive verdict issue must be reviewed upon its own facts and circumstances... In (Hitchcock v. Weddle, 304 F.2d 735 (10th Cir.1962)),... we noted that this Circuit and Oklahoma courts have held that the jury’s verdict need be supported only by any evidence tending to sustain it... As the reviewing court, we must view the evidence in the light most favorable to the prevailing party_
In reviewing the record on appeal, we observe that the determination of damages is traditionally a jury function... This is so because the jury has heard the evidence. first hand and hás observed the demeanor of the witnesses. The jury must have much discretion to fix the damages deemed proper to fairly compensate the plaintiff-” (Citations omitted). (719 F.2d at 1058)
In August, 1990, a panel of this court rendered a decision in The Post Office v. Portec, Inc., 913 F.2d 802 (10th Cir.1990), cert. granted, vacated and remanded, 499 U.S. -, 111 S.Ct. 1299, 113 L.Ed.2d 235, for reconsideration in light of Pacific Mutual Life Ins. Co. v. Haslip, supra, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1. In The Post Office case, a trademark owner alleged infringement, violation of the Lanham Act, fraud, and other violations of the state law. The jury returned verdicts in favor of plaintiff for damages of $79,519.40 on the misappropriation of trade secrets and breach of fiduciary duty claims, plus $1,500,000 in punitive damages. While the jury returned a verdict in favor of plaintiff on fraud claims, it awarded zero damages on those claims. This court found that the instructions and answers to interrogatories provided a basis for the punitive damage award even though there was no specific finding of willful or intentional conduct on certain of the claims, and concluded that the Colorado punitive damage statute did not violate the due process clause under the Federal or State Constitution. The court noted that the determination of whether a jury award of punitive damages was excessive was a matter of federal law, even though the justification for punitive damages was a matter of state law and determined that the punitive damage award was excessive, ordering a remittitur to $500,000 in punitive damages. In so doing, the panel applied the following standards for reviewing claims of excessive verdicts:
In this circuit, remittitur of a jury verdict awarding punitive damages is allowed only when “an award (is) so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial...” In (Malandris v. Merrill Lynch, et al. at 703 F.2d 1177) we announced the factors to be considered in determining whether an award of punitive damages is excessive.
The proper factors to be considered include: (a) the nature of the act which caused the injury; (2) the economic status of the defendant; and (3) the deterrent effect of the award on others. In addition, Colorado requires that the punitive damages bear some relation to the compensatory award. The Post Office, 913 F.2d at pp. 809, 810.
In concluding that a remittitur should be-ordered, the panel noted that while the acts were found to be willful and intentional, they did not involve violence or outrageous conduct and that, since defendant’s net worth was only $6,942,000, the award of $1,500,000 amounted to 21.6% of that worth and was in excess of the $795,194 in gross sales realized by defendant from its wrongdoing. Under Colorado law, the ratio of punitive damages to actual damages is a factor, but the panel considered the 19:1 ratio of punitive to actual damages “as only one factor” in its analysis. The panel also found it significant that the trial court had entered a broad injunction preventing the manufacture or sale' of defendant’s product for a period of four years. In lowering the award, the panel found that “the defendant’s net worth of only $6,942,000.00 and its total gross sales of $795,194.00 for this.product to be dominant factors.”' 913 F.2d at 811.
After remand by the Supreme Court, the opinion of August, 1990 was vacated and, by stipulation of the parties, the appeal was dismissed with prejudice. The Post Office v. Portec, Inc., 935 F.2d 1105 (10th Cir.1991).
Following the Haslip and The Post Office decisions, a panel of this court determined that a punitive damage award of $25 million was excessive-in a personal injury/wrongful death action brought under Kansas law. Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir.1991), cert. den. — U.S. -, 112 S.Ct. 1941, 118 L.Ed.2d 547. The case involved a benzene-related leukemia death, in which a verdict was returned for $9,025,000 in actual damage and $25 million in punitive damage. In a pre-Haslip review of the evidence, the trial court found that the punitive award was not excessive since the jury could infer that the defendant’s failure to warn of danger was designed to conceal the danger; the award exceeded actual damages by less than 3 to 1; and the award represented only 0.31% of defendant’s net worth and 1.92% of its annual net earnings. Mason v. Texaco, Inc., 741 F.Supp. 1472 (D.C.Kan.1990). On the appeal, this circuit agreed that an award of punitive damages was justified, and that the award was not motivated by passion, prejudice or bias, but found the “staggering sum” of $25 million in punitive damage to be “so excessive as to shock our judicial conscience,” and “excessive and beyond a reasonable punitive award under the law of Kansas.” 948 F.2d at 1560, 1561. In this case, it was significant to the panel that- in the first trial of the action, which was “substantially similar” to the second trial, the plaintiff sought punitive damages of only $8,000,000, and the first jury did not award any punitive damages.
In Broadcort Capital Corp. v. Summa Medical Corp., 972 F.2d 1183 (10th Cir.1992), which involved the conversion of a stock certificate, the jury returned a verdict under New Mexico law of $1,600,000 in compensatory damages and $400,000 in punitive damages. On appeal the defendant claimed that the punitive damage award was excessive because the jury instructions did not contain adequate safeguards; but the verdict was upheld under Haslip with a note that the award was only one-quarter of the amount of compensatory damages and that “the jury instructions satisfied (the defendant’s) interest in rational decision making and.ensured that the jury’s discretion would be exercised within reasonable constraints.” Under these circumstances, this circuit found “that this award does not ‘jar one’s constitutional sensibilities’ and was not entered in violation of due process principles.” 972 F.2d at 1193, 1194.
In determining whether or not the trial judge abused his discretion by failing to order a remittitur or to grant a new trial in this case, under Haslip, we must determine whether or not the amount of punitive damages awarded to Capstick is “excessive”— whether there was an extreme result which would “jar one’s constitutional sensibilities,” or whether the damages “are reasonable in light of their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Haslip, supra, 499 U.S. at pp. -,-, 111 S.Ct. at pp. 1043, 1045, 113 L.Ed.2d at pp. 20, 22.
In Haslip, the Supreme Court recognized that it could not “draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case.” 499 U.S. at -, 111 S.Ct. at 1043, 113 L.Ed.2d at 20, and thus our review of such issues must be upon a case-to-case basis.
Under Oklahoma law, punitive damages need not bear a specific relation to the actual damages awarded, but they must have some relation to the injuries inflicted. Garland Coal & Mining Co. v. Few, 267 F.2d 785, 791 (10th Cir.1959).
Under the evidence here, the jury could find that Allstate’s conduct was particularly egregious and wrongheaded, clearly oppressive and “evidencing a wanton or reckless disregard” for Capstick, its insured. It is significant that Allstate specifically and repeatedly labelled Capstick as an arsonist and one who intended to pursue an insurance fraud. These are significant factors which support the punitive award in this ease.
The ratio of actual damages to punitive damages is only one factor in determining the question of excessive punitive damages. See Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1366 (10th Cir.1987); Malandris v. Merrill Lynch, Pierce, Fenner & Smith, supra, 703 F.2d 1152 (10th Cir.1981).
In many eases involving bad faith conduct by insurance companies or others, the actual amount in controversy may be relatively insignificant, as was Capstick’s contract claim for $1,500, the consequential damages may be only nominal, but the outrage may be significant. Under Oklahoma law, the net worth of a defendant may be considered in assessing punitive damages. In the recent Oklahoma case of Harrell v. Old American Ins. Co., supra, 829 P.2d 75, the insurer denied plaintiffs hospitalization claim without any legitimate investigation of her medical status and without any attempt to communicate with the her doctors. The jury returned a verdict of $1,800 in compensatory damages on the breach of contract claim, $40,000 on the bad faith claim, and awarded plaintiff $250,000 in punitive damages. The Oklahoma court approved the punitive award, noting that it was not excessive in view of stipulated evidence that the insurer had net assets of $32,420,182.
The case of Eichenseer v. Reserve Life Ins. Co., supra, 934 F.2d 1377, involved a health insurance claim for $6,658.35 which was not paid by defendant until there was pretrial discovery, in the case more than three years after the first demand for payment. The insurer Reserve Life Insurance Company denied coverage-without any medical
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_discover
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A
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence 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".
LAL, Amrit, Appellant, v. CBS, INC.
No. 83-1103.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Jan. 12, 1984.
Decided Jan. 19, 1984.
Rehearing and Rehearing En Banc Feb. 17, 1984.
Eugene A. Steger, Jr., Steger & Howell, Ltd., Kennett Square, Pa., for appellant.
James D. Crawford, Kenneth A. Jacob-sen, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
Before ALDISERT, HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This is an appeal in a diversity action for defamation (Count I) and trespass (Count II), arising out of the production and publication of a news report aired by the defendant, CBS, Inc. (CBS), through WCAU-TV, a station operated by CBS in Philadelphia. The district court granted CBS’ motion for summary judgment as to Count II and, at the close of all the evidence, directed a verdict for CBS as to Count I. Plaintiff appeals from both orders of the district court, as well as from the court’s denial of plaintiff’s motion to compel production of the notes and tapes of the reporter who prepared the broadcast. '
I.
Plaintiff, Amrit Lai, a professor of political science at Cheyney State College, owns several houses in West Chester, Pennsylvania. The house located at 217 East Nield Street (Nield Street house) was leased in March 1980 to five students attending West Chester State College. About March 9, 1980 Lai learned that Ellen Sands, editor of the Quad, the student newspaper at West Chester State College, was preparing to publish a story in the March 18 issue about conditions at properties Lai owned in West Chester. On March 17, 1980 Lai filed suit in the Court of Common Pleas of Chester County against Sands, West Chester State College, and others, seeking, among other things, to enjoin publication of the article until he had an opportunity to review and respond to it. At a hearing on March 21, 1980, which lasted only a few minutes, the court granted Lai’s request to withdraw his petition for an injunction as moot because the Quad article had been published as scheduled on March 18, three days earlier.
Roseanne Cerra, a news reporter for WCAU-TV,-and a WCAU-TV sound technician and photographer were present at the hearing. At its conclusion, they conducted videotaped interviews of Lai, Sands, and the president of West Chester State College concerning the Quad article and Lai’s suit seeking prior restraint of its publication. In preparing the story, Cerra also visited the Nield Street house. After receiving permission from tenant Amy Wertz to inspect and film the interior of the house, Cerra and her crew filmed certain areas. Finally, Cerra and her two colleagues visited the offices of the: Quad at West Chester State College and filmed the staff at work there. That evening, Cerra’s report was aired during the 5:30 p.m. edition of WCAU-TV’s news telecast. The report included a statement, attributed to the tenants, that “their many complaints of leaking roofs, faulty wiring and other eyesores were never answered.” The video portion of the report shown simultaneously with this statement contained views of the house, in particular, a water-stained first-floor ceiling, an unshaded electric light bulb suspended from the ceiling, and exposed insulation on the back porch of the house.
In Count I of his complaint Lai contends that the broadcast was false and known by CBS to be false, and that the purpose and effect of the broadcast was to portray him as a slumlord. In particular, Lai maintains that the house had neither a leaking roof nor faulty wiring on the date of the broadcast. CBS replies that its broadcast came within the “fair report” privilege, a recognized common law privilege, accepted as well by the Pennsylvania courts, for reports on judicial proceedings and other official action. Under this privilege, the news media may publish accounts of judicial proceedings even when the report contains defamatory matter. CBS concedes that the fair report privilege is not absolute, however, and may be lost if the story is not fair and accurate or the defamatory material is published solely to cause harm to the person defamed. CBS argues it was entitled to the privilege because the news report fairly and accurately summarized the proceedings held on Lai’s petition for preliminary injunction. Lai, on the other hand, argues that CBS exceeded the scope of the privilege by including in the news report matter that was extraneous to the judicial proceedings, especially the videotapes of the house. Lai maintains that the privilege is lost because the juxtaposition of the videotapes with Cerra’s oral summary of the judicial proceeding destroyed the objectivity of the broadcast.
In Count II Lai contends that the entry by Cerra and the two other WCAU-TV employees into the Nield Street house was unauthorized and constitutes a trespass. CBS does not dispute that Lai’s permission to enter the property was never obtained. However, the district court found that Cer-ra and her crew entered with the permission of the tenant in possession of the property, and granted CBS’ motion for summary judgment on the trespass count. Lal v. CBS, Inc., 551 F.Supp. 356 (E.D.Pa.1982).
Finally, Lai contests the district court’s denial of his motion to compel discovery pursuant to Fed.R.Civ.P. 37 of Cerra’s notes and tapes related to the March 21, H)80 news report on the ground that the material sought was privileged under Pennsylvania’s shield statute, 42 Pa.Cons.Stat.Ann. § 5942 (Purdon 1982). Lal v. CBS, Inc., 551 F.Supp. 364 (E.D.Pa.1982).
II.
A.
We look to Pennsylvania law to determine if CBS’ broadcast fell within the scope of the common law “fair report” privilege as a report of a judicial proceeding. The Pennsylvania Supreme Court has recognized that “[i]f the ... account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate.” Sciandra v. Lynett, 409 Pa. 595, 600, 187 A.2d 586, 588-89 (1963); see also Binder v. Triangle Publications, Inc., 442 Pa. 319, 324, 275 A.2d 53, 56 (1971).
Lai argues that the use of the videotape rendered the news story unfair or inaccurate. However, television is a visual medium and the mere fact that the report of a judicial proceeding is accompanied by videotape to illustrate that report does not constitute abuse of the privilege. There are circumstances under which the nature of the videotape material could constitute an abuse. See, e.g., Purcell v. Westinghouse, 411 Pa. 167, 191 A.2d 662 (1963) (distortion of court proceeding and inclusion of extraneous material in “documentary” constituted abuse). For that reason the trial judge in this case denied CBS’ motion for summary judgment on the fair report privilege issue, as he later said “out of an abundance of caution”, App. at 262a, and gave plaintiff an opportunity to show that there was deliberate distortion and sensationalism connected with the videotape. At. the conclusion of plaintiff’s case, the district court directed a verdict for defendant, finding that there was no evidence on which the jury could- conclude that the video report of conditions at the house presented a distorted ficture or caused a loss of the objectivity of the telecast. App. at 262a-69a.
The burden of proving abuse of the privilege rests with the plaintiff. Sciandra v. Lynett, 409 Pa. at 601,187 A.2d at 589. The relevant inquiry, therefore, is whether the use of the videotape rendered the news story unfair or inaccurate. See Medico v. Time, Inc., 643 F.2d 134, 146 (3d Cir.), cert, denied, 454 U.S. 836, 102 S.Ct. 139, 70 L.Ed.2d 116 (1981). Williams v. WCAU-TV, 555 F.Supp. 198 (E.D.Pa.1983). Viewing all the evidence in the light most favorable to the plaintiff, we agree with the district court that a jury could not reasonably find that CBS’ account of the court proceedings was unfair or inaccurate. The inclusion of the videotape of the interi- or of the Nield Street house in the. broadcast merely provided a visual representation to accompany the verbal description of the conditions that were the underlying subject of the dispute. There is no evidence that the addition of the filmed material to the verbal description so exaggerated and sensationalized the news account as to render it neither “fair” nor “accurate.”
B.
The district court found that Lai’s trespass claim against CBS had no merit. Under Pennsylvania law the lessor of improved land who is out of possession of the property cannot maintain an action for trespass absent some injury to the lessor’s reversionary interest. See, e.g., Clark v. Smith, 25 Pa. 137, 140 (1855); Potts Run Coal Co. v. Benjamin Coal Co., 285 Pa.Super. 128, 135, 426 A.2d 1175, 1178 (1981). Moreover, the consent of the person in possession of the property to the entry onto the premises is a complete defense to a trespass action. See F.A. North & Co. v. Williams, 120 Pa. 109, 13 A. 723 (1888). It is undisputed here that the tenant in possession gave permission for Cerra and her crew to enter the premises and that there was no damage to the property as a result of the entry. It follows that no claim for trespass can be maintained by Lai.
Lai claims that in a written lease, the tenants agreed not to admit members of the news media to the Nield Street house. No such lease was submitted in opposition to the motion for summary judgment. Furthermore, even had the tenant given permission to enter in violation of an undertaking not to do so, there would still be no basis on which Lai, who was not in possession, could maintain a trespass action against CBS.
C.
Finally, Lai argues that the district court erred as a matter of law in concluding that Cerra’s notes and tapes were privileged under Pennsylvania’s shield statute, 42 Pa. Cons.Stat.Ann.- § 5942. In a diversity case we are bound to follow Pennsylvania law as construed by Pennsylvania’s highest court. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-80, 58 S.Ct. 817, 822-823, 82 L.Ed. 1188 (1938); Becker v. Interstate Properties, 569 F.2d 1203, 1205-06 (3d Cir.1977), cert, denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978). As the district court noted, although the statute on its face protects only against compelled disclosure of the “source of ... information,” the Pennsylvania Supreme Court has read an earlier version of the statute, virtually identical to the present law, to include “documents, inanimate objects and all sources of information.” In re Taylor, 412 Pa. 32, 40,193 A.2d 181, 185 (1963) (emphasis in original). Thus, in Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.1980), we applied the reasoning of Taylor and found that the statute protected secondary sources as well as primary sources of a reporter’s information. Id. at 277-79. Since this precedent provides an adequate non-constitutional basis to support the denial of the requested discovery of Cerra’s notes and tapes because of the possibility they could lead to the disclosure of a secondary source of information, we will not reach CBS’ First Amendment argument.
For the foregoing reasons, we will affirm the judgment of the district court.
Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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
DIRECTOPLATE CORPORATION v. DONALDSON LITHOGRAPHING CO.
No. 5630.
Circuit Court of Appeals, Sixth Circuit.
July 2, 1931.
Frank Parker Davis and Glen E. Smith, both of Chicago, Ill., for appellant.
Geo. I. Haight and Samuel W. Banning, both of Chicago, Ill., for appellee.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
For opinion denying rehearing and modifying opinion, see — F.(2d) —.
HICKENLOOPER, Circuit Judge.
Appellant brought its action in the court below alleging infringement of claims 1, 5, 8, and 12 of patent No-. 1,396,962, and claims 4, 5, 7, 20, 23, 25, 41, 45, 46, 47, 48, 49, 50, 67, 68, and 69 of reissue patent No. 16,567. Both patents originated in applications filed by one Alexander T. Koppe and are hereinafter-respectively referred to as Koppe’s first and second patents. The first patent was for a “vacuum-pressure frame” designed and intended (according to the specification) as appropriate for use in “a machine for making offset press plates.” The second patent was for such a “machine for making offset press plates.” The first issued November 15, 1921. The application for the original second patent was filed'June 30, 1922; the patent (No. 1,510,007) issued September 30, 1924; application for reissue was filed September 25, 1926; and the reissue was granted as of March 8, 1927. The defenses were invalidity and noninfringement. The bill was dismissed by the District Court on the ground that infringement had not been shown. Plaintiff appeals.
We are not impressed with the defendant’s contentions of inutility, inoperability, anticipation or lack of invention as regards Koppe’s first .patent. It is true that Koppe was not a pioneer in the field of photographically producing offset press plates, but he was the first to utilize atmospheric pressure in holding the negative firmly against the sensitized surface of the press plate. Prior to him mechanical pressure only had been used for this purpose, and we think that whatever had been done by Huebner (the real pioneer in the field of mechanical pressure photo-composing machines) in the direction of substituting vacuum pressure for mechanical pressure before the filing of the application for the second patent, certainly before the application for the first one, cannot be said to have passed beyond the experimental stage. It is also true that the use of vacuum pressure in connection with photographic printing was old. See patents to Cope, No. 296,391, April 8, 1884; to Saltmann, No. 654,421, July 24, 1900; to MeCaslin, No. 683,059, September 24, 1901; and to Levy, No. 1,246,620, November 13, 1917; and the German patent to Teppieh, No. 245,915, May 4,1911. But the devices of all of these patents operated to press the sensitized paper or plate against the negative by use of a flexible backing or cover, while the present device operates to press a rigid glass negative against a rigid sensitized plate, the required play being given, not by the flexibility of either, but by the organiza^ tion of frames and sealing strips. We think that invention, was displayed in the reorganization required, and that neither anticipation nor lack of utility was shown.
The underlying concept of Koppe's first patent was that atmospheric pressure should be exerted directly upon the glass negative and thus hold it firmly to the sensitized press plate. Obviously he could not obtain a machine or product patent upon this concept alone, but only upon the means disclosed for effectuating his purpose. Miller v. Eagle Mfg. Co., 151 U. S. 186, 201, 14 S. Ct. 310, 38 L. Ed. 121. Compare also: De Forest Radio Co. v. General Elec. Co., 283 U. S. 664, 51 S. Ct. 563, 75 L. Ed. 1339. A certain amount of vertical play was required to accommodate the device to negatives of different thickness, more, jKoppe evidently thought, than would be supplied by the elasticity of the sealing strips, for the method practiced by his patent involved really three elements or steps. An outer or positioning frame was first located at the desired place upon the sensitized press plate. This positioning frame carried a rubber sealing strip around its outer edge and an extension or flange on its inner edge. When the positioning frame had been located, the negative was laid loosely within the inner opening. A seal was then required as between the outer edges of the negative and the inner edge of the flange of the positioning frame. This seal was provided by a rectangular frame of inverted U-shaped cross-section, called the inner or “bearing frame,” carrying double rubber sealing strips, one of which rested upon and along the outer edge of the negative, and the other upon the flange of the positioning frame. Thus when the air was exhausted from beneath the positioning frame the pressure of the atmosphere operated, not only to hold the negative to the press plate, but also to strengthen the contact of the three sealing strips — between' press plate and outer frame, between inner and outer frames, and between the inner frame and the negative. The inventive concept lay in the means devised for effecting this three-line seal which, supposedly, would accommodate itself to any thickness of negative and to any irregularity of thickness, of a gradual sort, as along the edge of the negative. This is clearly reflected in the claims. Claim 8 is typical and is alone here quoted.
In determining the question of infringement we are concerned with the matter of claim construction as well as with the nature of the defendant’s device, the elements comprising it, the mode and manner of operation of both devices, and whether the elements of defendant’s device are to be considered merely mechanical equivalents of the elements enumerated in the claim. Upon the present record it is clear that the claim above quoted, if read literally, does not cover the defendant’s device, in which the negative is carried by clamps upon the inner and under portion of the outer frame and the inner frame is used solely for the purpose of hermetically sealing the negative within the outer frame, first by a sealing strip between the inner frame and the negative, and secondly by a flexible curtain seal between the inner and outer frames. The points of resemblance are that before assembly for use the defendant’s device is made up of two frames, and that atmospheric pressure is used to seal these two frames together. The chief point of dissimilarity is that after assembly, and when in use, the negative and the two frames of defendant’s device are practically and functionally integral, and the only vertical play of the negative (viewing the operation as upon a horizontal press plate) is afforded by and limited to the elasticity of the outer sealing strip. ,
The claim clearly calls for a frame consisting of two parts which, in use, are separate and distinct, and in which the elasticity of the sealing strips is of minor im-portaüce. The defendant’s device, in use, does not comprise these two separate and functionally independent parts, and elasticity -in the sealing strip of the outer or positioning frame is of prime importance. The question presented is whether the calls of the claim are to be treated as examples of a class only — as the preferred form — and are to -be extended to cover the defendant’s device under the doctrine of equivalents; or whether effeet must be given to the apparent limitation of the claim, and the defendant’s device be held not to infringe.
As so clearly pointed out by Judge Learned Hand in Claude Neon Lights, Inc., v. Machlett & Son (C. C. A.) 36 F.(2d) 574, there is an element of inconsistency between the doctrine of equivalents and the doctrine that it is the claim and that alone which measures the monopoly. In the ordinary ease, the extent to which the court will follow the one doctrine to the exclusion of the other is largely controlled by the state of the art, the originality of the invention, and the disclosure of the specification. Koppe was not a pioneer in the field of vacuum-pressure frames for photographic printing. Like all improvers he was, and is, entitled only to a narrow range of equivalents. He has disclosed no broad, generic invention, unless it be in the use of the .vacuum-pressure frame in a photo-composing machine, and this combination is not claimed. He has been specific in matters of number, form, structure, relationship, and function of” the elements of his claim (as the condition of the art required him to be), and we do not think that he can now be permitted to depart from the plain meaning of the language he has adopted, or to claim for such language a broad and generic construction.Compare Lektophone Corp. v. Rola Co., 282 U. S. 168, 171, 51 S. Ct. 93, 75 L. Ed. 274.
Viewed from another angle, intent and thei inventor’s own appraisal of the nature of his invention are of great importance. In D’Arcy Spring Co. v. Marshall Ventilated Mattress Co., 259 F. 236, 240, this court said: “Where the claim defines an element in terms of its form, material, location or function, thereby apparently creating an express limitation, where that limitation pertains to the inventive step rather than to its mere environment, and where, it imports a substantia), function which the patentee considered of importance to his invention, the court eannot be permitted to say that other forms, which the inventor thus declared not equivalent to what he claimed as his invention, are nevertheless to be treated as equivalent, even though the court may conclude that his actual invention was of a scope which would have permitted the broader equivalency.” This statement has peculiarly forceful application to the present ease. Even though we were to conclude that Koppe might have claimed a broad monopoly in the use of vacuum-pressure frames, of whatever structure, in a photo-composing machine, he has voluntarily limited himself 'to a specific construction of dearly defined elements all pertaining to the inventive step ás he then understood it. Such limitation is not the less effective because voluntary or inserted unnecessarily. Firestone Tire & Rubber Co. v. Seiberling (C. C. A. 6) 257 F. 74, 78, 79; Lakewood Engineering Co. v. Stein (C. C. A. 6) 8 F.(2d) 713, 715; Vanderveld v. Rollman & Sons Co. (C. C. A. 6) 28 F.(2d) 948, 951. That which is not literally within the claim does not infringe.
Further than this, the defendant’s device utilizes the forces of nature and operates in a manner substantially different from the device of the patent. The “bearing section” of the claim, as a separate unit unattached to negative or positioning frame, for so the claim must be construed in view of the specification, is wholly absent. So also are the practically unlimited play of the inner sealing strip upon the negative, the flange of the positioning section, and the function of the bearing section in horizontally bridging the gap between the negative and the positioning section. Elements of the claim are omitted, but, more than this, the manner of operation of the two devices, we are convinced, is substantially different. If this be so the defendant’s device does not infringe. Bates v. Coe, 98 U. S. 31, 42, 25 L. Ed. 68; Union Paper Bag Machine Co. v. Murphy, 97 U. S. 120, 125, 24 L. Ed. 935; Westinghouse v. Boyden Power-Brake Co., 170 U. S. 537, 568, 18 S. Ct. 707, 42 L. Ed. 1136. For these reasons the decree of the District Court, finding this first patent not infringed, must be affirmed.
The claims of the second patent in suit may be divided into three separate groups. Claims 4, 5, and 7 relate to “sealing bars” (claims 5 and 7) or “adjustable means cooperating with the ends of the press plate whereby said negative carrying frame may be positioned beyond the end of the press plate” (claim 4), in “a machine for photographically preparing press plates.” Claims 20 and 23 cover; with other essential elements of such a machine, “means for adjusting the distance between the carrier members, bearing the negative carrying frame” (claim 20), and “a negative carrying frame carriage for said machine, said carriage being provided with means for varying the dimensions thereof” (claim 23). And claims 41 and 45 to 50, inclusive, cover broadly “the combination in a machine for photographically preparing press plates, of means for supporting a press plate, negative carrying means mounted for movement to locate a negative in various positions opposite said press plate, and vaeuum pressure means movable with said negative * *‘ (claim 41). .
We do not deem it essential to deal separately with claim 25, which relates solely to the mechanical details whereby the thin zine press plate is held firmly upon the resilient blanket covering the bed plate; nor with claims 67, 68, and 69, which simply combine the “sealing means” of claims 4, 5, and 7, and the broad combinations of claims 41 and 45 to 50, inclusive, that is, the vaeuum frame in a photo-composing machine. If claim 25 is infringed, which is doubtful, we see nothing more in it than the result of the exercise of mechanical ability in the selection of more or less obvious means, all mechanically old, to accomplish an old result of positioning the press frame. As to claims 67, 68, and 69, if either group of claims 4, 5, and 7, or claims 41 and 45 to 50, inclusive, are not infringed, claims 67, 68, and 69 would not be. If claims 41, etc., are invalid, we see no way to save claims 67, 68, and 69, which would not likewise serve to validate claims 4, 5, and 7. If neither of the other groups is valid, invention would not be discernible in combining them.
We consider first, as the most important, claims 41 and 45 to 50, inclusive. These claims, as we have said, call broadly for the combination of a vaeuum frame with other essential elements óf a photo-composing machine. They were introduced by the reissue application and much is said in the briefs as to the legality of so doing. We do not deem it necessary to determine that question. In his first patent Koppe distinctly disclosed the use of vaeuum frames in “securing the negative in contact with a surface on which the negative is to be photographically reproduced, as for example, the press plate of a machine for making offset press plates.” Passing the question of whether more than the mechanical ability of one skilled in the art would be required to adapt the vaeuum frames of the prior photographic printing art to use in the photo-composing machine of to-day, these claims of the second patent must fall within the condemnation of the rule that all that is disclosed by the specification of a patent, but not claimed, is irrevocably abandoned to the public, except in so far as this may be avoided by reissue. Mahn v. Harwood, 112 U. S. 354, 361, 5 S. Ct. 174, 6 S. Ct. 451, 28 L. Ed. 665; McClain v. Ortmayer, 141 U. S. 419, 423, 12 S. Ct. 76, 35 L. Ed. 800; Royal Co. v. Tweedie, 276 F. 351 (C. C. A. 8); Rip Van Winkle Wall Bed Co. v. Murphy Wall Bed Co., 1 F.(2d) 673, 678, 679 (C. C. A. 9); Gladding-McBean Corp. v. N. Clark & Sons (C. C. A.) 16 F.(2d) 50, 51. Claim for the generic combination of vaeuum frame, press plate, and the other elements of a photo-composing machine might have been made in Koppe’s first patent, at least upon minor change in the specification. The ease is therefore not one in which the claims inserted on reissue of the second patent were so far for a different invention that they could not have been made in the first application; and we do not decide what effect a patent disclosure of such wholly independent invention might have upon the rights of the inventor under an application subsequently filed, that is, whether in such ease the disclosure must be considered a publication only, or a dedication. Had the applications been copending the rule would, of course, be otherwise, for the question is not one of anticipation or prior use, but one of dedication to the publie and abandonment; and once having been abandoned in this manner, the right to patent the invention can not be recalled. Kendall v. Winsor, 21 How. 322, 328, 16 L. Ed. 165.
Turning to claims 4, 5, and 7, we are at once confronted with the question of whether, the defendant having a free right to employ a, vacuum frame in a photo-composing machine (provided it does not infringe the first patent), more than mechanical ability would be required to devise some type of sealing means adjacent the ends and sides of the press plate, which would obviously be required to permit the vaeuum frame to overlap such ends and sides and to function in that position, and to thus enable the plate-maker to use the entire sensitized surface. Compare: Lovell Mfg. Co. v. Cary, 147 U. S. 623, 637, 13 S. Ct. 472, 37 L. Ed. 307; Reynolds Spring Co. v. Young Industries, Inc., 36 F.(2d) 150 (C. C. A. 6); Adams v. Galion Iron Works & Mfg. Co. 42 F.(2d) 395 (C. C. A. 6); Beck-Erost Corp. v. Ford Motor Co., 44 F.(2d) 519 (C. C. A. 6). This contention also lends support to the further contention that these claims are invalid as functional if the “adjustable means” of claim 4, and the “sealing bars” of claims 5 and 7, are to be given so broad a construction as to embrace every manner of accomplishing the desired end. We think, however, that the claims may be saved by construing them as calling for the specific means disclosed in the patent in suit. Merit Oil Equipment Co. v. Fry Equipment Corp., 48 F.(2d) 488 (C. C. A. 6). So construed we think the evidence fails to show that they are infringed.
Lastly, claims 20 and 23 introduce into the otherwise well-known combination of elements open to public use merely the feature of a carriage for the negative frame, which carriage is adjustable to accommodate different sizes of such frames. The adjust-ability of a part does not involve invention (Paquette v. Potter Mfg. Co., 46 F. [2d] 271 [C. C. A. 6]), but here too we prefer to eonstrue these claims as calling for the specific means disclosed by the patent, a spacing of the carriage supports. So construed the "claims are not infringed.
The decree helow simply dismissed the bill “for want of equity.” For the reasons above stated this action was proper, and we do not consider it necessary to remand the cause for revision of the decree which, in its simplified form, is affirmed.
“8. A two part negative pressure frame, comprising a positioning section within which the negative is arranged, a sealing strip carried by the positioning section to engage the support on which the negative is to be held, and sealing strips carried by the bearing section to engage the positioning section and negative.”
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_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.
LUCAS v. STERLING OIL & GAS CO.
No. 6087.
Circuit Court of Appeals, Sixth Circuit.
Jan. 17, 1933.
T. H. Lewis, Jr., of Washington, D. C. (Thomas J. Sparks and Frank A. Ropke, both of Louisville, Ky., and C. M. Charest, of Washington, D. C., on the brief), for petitioner.
Elwood Hamilton, of Louisville, Ky. (Woodward, Hamilton & Hobson, of Louisville, Ky., and E. C. O’Rear of Frankfort, Ky., on the brief), for respondent.
Before MOORMAN, HICKENLQOPER, and SIMONS, Circuit Judges.
MOORMAN, Circuit Judge.
Regulations issued by the Treasury Department, article 223 of Regulations 45, gave the taxpayer, under the Revenue Act of 1918, the option of charging certain expenditures in connection with oil and gas wells to capital or treating them as operating expenses. The manner in which the election was to be made was not specified, hut, once made, it was to control for all subsequent years. In appellee’s original return for 1919, made by an accountant in 1920, expenditures of this character' were charged to capital account. The return as thus made disclosed no taxable income. After other facts had been ascertained, appellee filed an amended return, February 10,1921, which treated the expenditures as operating expenses. This change did not affect the result; there was still no taxable income. On April 11, 1921, it filed its return for 1920; and again treated such expenditures as operating expenses. On a re-audit of its books in 1927, the Commissioner held that it had elected in its original return for 1919 to treat the expenditures as capital investments, and charged them accordingly to capital account. On this basis ho determined that for the year 1919 no tax was due, hut that for the year 1920 appellee had received a net income not disclosed in its return, and assessed an additional tax. The appellee paid the tax, filed a claim for refund, and, its claim being denied, brought this suit to recover the amount paid. Upon agreement of the parties, the case was tried to the court without a jury.- The court made findings of fact upon which it rendered judgment for the appellee.
The material facts found by the court are stated in its opinion. (D. C.) 51 F.(2d) 413. There is no statutory authority for amended returns, hut it is well known that the Treasury Department, both in practice and by regulation (articles 36 and 111 of Regulations 45) tas been liberal in authorizing and accepting such returns. The appellant does not question the authority of the department to issue a regulation giving the taxpayer the option to treat expenditures of the character of those here involved either as operating expenses or capital expenditures. Nor does the appellee question the right of the department exercising such authority to treat an election made in one year as binding upon the taxpayer for all subsequent years. Without deciding either of these questions, we consider the ease upon the assumptions presented in argument. As so presented, the question for decision is whether the original return for 1919 amounted to an election which-bound the appellee to the capital account option for 1920.
None of the cases cited in argument deals with the regulation here in question or presents a state of facts which ean.be said to be controlling. In Rose v. Grant (C. C. A.) 39 F.(2d) 340, a husband and wife had filed a joint return for 1923 on March 15, 1924, and on December 15th following attempted to file separate returns. The Commissioner refused to accept the returns, and the taxpayer sued to recover the taxes paid under the joini return. In Morris v. Commissioner (C. C. A.) 40 F.(2d) 504, the appellant and his wife, after -filing a joint return March 15,1923, for the year 1922, requested leave, on May 17, 1926, to file separate returns for the same year. The Commissioner rightly refused, as the court held, to permit the returns to be filed. In both of these cases a regulation or ruling of the. department made the filing of the return an election for the year in which it was made. See McIntosh v. Wilkinson (D. C.) 36 F.(2d) 807, 808. The regulation relied upon here does not purport to make the election binding for one year only, but for all subsequent years, nor does it state what shall constitute the election.
When the appellee file'd its original return for 1919, it had not been able to dose its books of account, and it was not able to do so until shortly before February 10, 1921. Meanwhile it developed that certain profits attributable to the sale of gas and oil leases during the year 1919 should have been reported for that year. These profits were induded in an amended return filed with and accepted by the Commissioner, in which the cost of drilling and developing producing oil wells was deducted as an operating expense. This seems to us to constitute the first instance of a mature and deliberate choice by the appellee, based upon knowledge of all the material facts-as disclosed by the closing of its books; and, in view of the effect of an election upon future returns, wé do not think that such election should be held" to be effected, unless based upon knowledge of this kind as indicative of a final and deliberate choice. Where a return is filed and the tax assessed and paid pursuant thereto, it may well be that thez-e is a deliberate choice; but, where no tax is assessed and none assessable, no matter how the expenses be treated, and where the initial return is filed upon incomplete knowledge of the material facts, and before the filing of a return for the subsequent year the taxpayer ascertains other pertinent facts and files an amended return disclosing them, it ■ seems to us that the initial return may properly be regai-ded as tentative in its nature, and as not constituting an election. In such case the taxpayer should be permitted to do what he had the right to do in the first instaq.ee.
The judgment is affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_numappel
|
3
|
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.
Michael MAGNONE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Joseph V. MAGNONE and Rose Magnone, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Nos. 1151, 1145, Dockets 90-6006, 90-6008.
United States Court of Appeals, Second Circuit.
Argued April 18, 1990.
Decided April 25, 1990.
Jed Rubenfeld, New York City, Asst. U.S. Atty. for the S.D.N.Y. (Otto G. Ober-maier, U.S. Atty. for the S.D.N.Y., Marla Alhadeff, Asst. U.S. Atty., of counsel), for defendant-appellee.
H.J. Gartlan, Jr., New York City (Finkel-stein Bruckman Wohl Most & Rothman, of counsel), for plaintiff-appellant.
Before TIMBERS, PRATT and MINER, Circuit Judges.
PER CURIAM:
Michael Magnone and Joseph V. and Rose Magnone appeal from a judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, dismissing their suits for abatement of interest on tax deficiency assessments. We affirm for the reasons given by Judge Mukasey in his thorough opinion reported at 733 F.Supp. 613. We write only to clarify the circuit law.
In 1987 the Internal Revenue Service (IRS) assessed plaintiffs for tax deficiencies in the tax years 1974-1976. In 1988 plaintiffs paid all taxes due for those years as well as the interest accrued in 1979. They did not pay the interest accrued for the other years. Relying on 26 U.S.C. § 6601(c), they filed for an abatement of the interest charges claiming IRS delay. When the IRS failed to respond, plaintiffs commenced these suits seeking refund of the interest. Judge Mukasey held that jurisdiction was lacking because plaintiffs did not satisfy either the full-payment rule or the prior-claim rule; and that no claim had been stated because under the applicable statute the suits were not authorized for the particular tax years at issue.
First, the full payment rule requires as a prerequisite for federal court jurisdiction over a tax refund suit, that the taxpayer make full payment of the assessment, including penalties and interest. Flora v. United States, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958), aff'd on rehearing, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). Since plaintiffs had paid accrued interest only for the year 1979, they did not make the required full payment of the interest accrued from the delinquencies up to the time of payment.
Nevertheless, plaintiffs contend they complied with the single-year rule which provides that the jurisdictional prerequisite is satisfied when a taxpayer makes “full payment of a tax liability for any given year.” Green v. United States, 618 F.2d 122, 220 Ct.Cl. 712, 713 (1979). We agree with Judge Mukasey’s interpretation of the rule that a payment of interest “constitute^] full payment only if it includes all interest relating to the year for which the deficiency has been assessed, but not if it is simply one year’s worth of interest on a past deficiency”, as it was here. Thus, under either rule plaintiffs have not met the jurisdictional requirement.
Second, under the prior-claim rule, a taxpayer must bring the claim for refund to the IRS as a prerequisite to jurisdiction for the suit in federal court. 26 U.S.C. § 7422(a). Consequently, in pursuing such a suit, a taxpayer may not raise different grounds than those brought to the IRS. Union Pacific RR Co. v. United States, 389 F.2d 437, 442 (Ct.Cl.1968).
In their IRS claim, plaintiffs relied on 26 U.S.C. § 6601(c) and sought suspension of all interest accrued on each of the three deficiency assessments. Their federal court complaint relied on 26 U.S.C. § 6404(e) and sought abatement only of that interest which had accrued on those deficiencies in the year 1979. As Judge Mukasey described in detail, these claims are entirely different and therefore cannot satisfy the jurisdictional requirement of the prior-claim rule.
Finally, section 6404(e), on which plaintiffs now rely, applies only to “interest accruing with respect to deficiencies or payments for taxable years beginning after December 31, 1978.” Pub.L. No. 99-514, § 1563(b)(1), 100 Stat. 2085, 2762 (1986). We agree with Judge Mukasey’s interpretation that § 6404(e) applies “only to interest accruing on deficiencies for tax years after 1978.” He correctly held that “[h]ere, the challenged interest accrued with respect to deficiencies and payments for the years 1974, 1975 and 1976, which are clearly earlier than December 31, 1978. Consequently, plaintiffs cannot sue for those years”.
Accordingly, the district court’s judgment is affirmed in all respects.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA (UE), on its own behalf and on behalf of its affiliated local unions, et al., Appellants, v. Herbert BROWNELL, Jr., Attorney General of the United States, et al., Appellees.
No. 12943.
United States Court of Appeals District of Columbia Circuit.
Argued March 5, 1956.
Decided April 5, 1956.
Mr. David Scribner, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, for appellants. Messrs. Joseph Forer and David Rein, Washington, D. C., also entered appearances for appellants.
Mr. Edward H. Hickey, Atty., Dept, of Justice, with whom Messrs. Leo A. Rover, U. S. Atty., and Paul A. Sweeney and Howard E. Shapiro, Attorneys, Dept, of Justice, were on the brief, for appellees.
Before EDGERTON, Chief Judge, and FAHY and WASHINGTON, Circuit J udges.
PER CURIAM.
Appellants’ complaint asks a declaration that Sections 5 through 11 of the Communist Control Act of 1954, 68 Stat. 775, [50 U.S.C.A. §§ 782, 784, 789, 791, 792a, 793, 844,] are invalid, and an injunction to restrain the Attorney General and the Subversive Activities Control Board from enforcing these sections against the plaintiff Union. The complaint says the Attorney General threatened to enforce them immediately, by filing a petition with the Board, and that irreparable harm to the Union and its members would result.
The plaintiffs appeal from a summary judgment for the defendants. Pending the appeal, the Attorney General petitioned the Board “for an order, after appropriate proceedings, determining that the United Electrical, Radio and Machine Workers of America is a Communist-infiltrated organization as defined by Section 3 of the Subversive Activities Control Act of 1950, as amended by the Communist Control Act of 1954.”
We see no pertinent exception to the usual rule that a court will not interfere with administrative proceedings, which are not on their face incapable of affording due process, before final administrative action adverse to the complainant has been taken. Communist Party v. McGrath, D.C., 96 F.Supp. 47.
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_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Max FINKEL et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5863.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1961.
Decided Nov. 21, 1961.
James T. Waldron, Fall River, Mass., with whom John T. Farrell, Jr., and Clarkin & Waldron, Fall River, Mass., were on brief, for petitioners.
Michael K. Cavanaugh, Atty., Dept, of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
Taxpayer, who has been in the fish business for many years, was a stockholder in a fish meal corporation, New Bedford Fish Products Corporation, hereinafter Products, and in a fish trucking concern, Meso, Inc. Fish meal processing is a potential nuisance, and Products held the required municipal license. In 1952 its plant was temporarily shut down because business became unprofitable. In 1956 it was sold. Because the license was not transferable, the purchaser could not simply buy the assets, but required the stock. Prior to the sale, taxpayer had loaned $42,874 to Products and $12,-216 to Meso, and other stockholders had made similar loans. Products was substantially indebted to Meso. The purchaser demanded that Products be free from debt after transfer, except to the extent that indebtedness might be represented by notes, in which event the notes were to be transferred to her without recourse. In response, Meso, whose stockholders and creditors were the same as Products’, cancelled its indebtedness. This obligation had been Meso’s sole asset. Products issued notes to its remaining creditors, including taxpayer, which were thereupon endorsed over to the purchaser. In return, the purchaser tendered cash and notes totalling $75,000, of which taxpayer received $21,562.
Taxpayer charged off his Products and Meso stock in his 1956 return as long-term capital losses. No question arises as to this. Next, he sought to deduct the debt owed him by Meso as a business bad debt becoming worthless during the taxable year. The government claims that it was not a business debt. This involves considerations that we need not go into. But the purchaser paid enough for Products so that a partial payment could have been made on its indebtedness to Meso. Accordingly, Meso’s total relinquishment of the indebtedness was a voluntary capital contribution by persons, including taxpayer, who were at once its stockholders, its creditors, and stockholder-creditors of Products. It was, in fact, so entered on Products’ books. In effect taxpayer got more out of Products and less, i. e., nothing, out of Meso, but this was the result of his own action and did not entitle him to claim, vis-a-vis the government, that the debt owed him by Meso was worthless. Raffold Process Corp. v. Commissioner, 1 Cir., 1946, 153 F.2d 168; Liggett’s Estate v. Commissioner, 10 Cir., 1954, 216 F.2d 548; Bratton v. Commissoner, 6 Cir., 1954, 217 F.2d 486. We are not concerned with what might have been the situation had Meso received a pro rata dividend on its indebtedness as an ordinary creditor of Products.
Similarly, taxpayer cannot assert what might have happened had he not sold the notes he received from Products against his indebtedness. Obviously, he cannot— and does not — say that he was paid for the stock and not for the notes. All he can claim is a loss. Levy v. Commissioner, 2 Cir., 1942, 131 F.2d 544, cert. den. Levy v. Helvering, 318 U.S. 780, 63 S.Ct. 858, 87 L.Ed. 1148; Graham Mill & Elevator Co. v. Thomas, 5 Cir., 1945, 152 F.2d 564; Von Hoffman Corp. v. Commissioner, 8 Cir., 1958, 253 F.2d 828; cf. Mitchell v. Commissioner, 2 Cir., 1951, 187 F.2d 706. This he has been allowed.
Judgment will be entered affirming the decision of the Tax Court.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
TSS SPORTSWEAR, LIMITED, formerly Regency Creations, Limited, a corporation, Appellant, v. The SWANK SHOP (GUAM) INC., a corporation, Appellee.
No. 21009.
United States Court of Appeals Ninth Circuit.
June 28, 1967.
David M. Shapiro, Agana, Guam, for appellant.
E. R. Crain, Richard H. Benson, Agana, Guam, for appellee.
Before BROWNING and DUNIWAY, Circuit Judges, and TAVARES, District Judge.
TAVARES, District Judge.
This action was brought by plaintiff, TSS Sportswear, Limited (hereinafter sometimes called Sportswear), formerly Regency Creations, Limited (hereinafter called Regency Creations), a Hong Kong corporation, against the defendant, The Swank Shop (Guam), Inc., a Guam corporation (hereinafter called Swank (Guam)). Inasmuch as practically all of the significant events involved herein occurred while plaintiff was known as Re-geney Creations, Limited, we will generally use the name Regency Creations to refer to plaintiff under either name.
From a judgment for the defendant after a non-jury trial, dismissing the action with costs to defendant, the plaintiff has appealed to this Court. Jurisdiction of the District Court of Guam is based on 48 U.S.C. Sec. 1424. Jurisdiction of this Court over this appeal is based on 28 U.S.C. Secs. 1291 and 1294.
By the original complaint filed on July 1, 1965, plaintiff claimed of defendant, in Count I, $13,912.20 as an alleged balance due it from the defendant by book account between January 31, 1962 and January 17, 1964; in Count II, $2,487.54 as an alleged balance due from defendant to The Swank Shop, Limited, Hong Kong, a Hong Kong Corporation (hereinafter Swank (Hong Kong)) on book account between June 15, 1960 and February 4, 1963, and assigned by Swank (Hong Kong) to plaintiff; and in Count III $9,640.12 as an alleged balance due from defendant to Regency Manufacturing Company, Ltd., a Hong Kong corporation (hereinafter Regency Manufacturing), on book account between July 31, 1961 and June 25, 1965, and assigned by Regency Manufacturing to plaintiff. The total thus sued for was $26,039.86.
After certain extensions of time to plead granted ex parte to defendant by the Court, and before Answer was filed, the plaintiff noticed several depositions to be taken in Hong Kong, including the deposition of David Weire (hereinafter called Weire). Defendant moved to quash the taking of such depositions and to stay further proceedings until the alleged “real plaintiff in interest,” Weire, a resident of Hong Kong, should be available within the jurisdiction to be examined by defendant, and for other relief. Thereafter, it was stipulated by counsel for plaintiff, Mr. David M. Shapiro, and counsel for defendant, Mr. E. R. Crain, that such depositions might be taken before the U. S. Consul in Hong Kong, with Mr. Weire’s being taken first. Defendant’s time for filing answer meanwhile was continued until after the taking of the depositions.
On November 5, 1965, while attorneys Shapiro and Crain, representing the plaintiff and defendant respectively, were on an airplane enroute to Hong Kong for the taking of the depositions, the former served upon the latter an amended complaint.
By the amended complaint, in 6 Counts, the plaintiff claimed:
(a) By Count I, $2,999.35, based on a Bill of Exchange dated December 10, 1962, drawn by plaintiff (then Regency Creations) upon defendant, requiring defendant to pay to a bank (hereinafter for convenience called the Belgian Bank) at Hong Kong, $2,880.56, accepted by the defendant January 8, 1963, and subsequently dishonored and paid by plaintiff (as Regency Creations).
(b) By Count II, plaintiff claimed $5,439.27 had upon a Bill of Exchange dated December 13,1962, drawn by plaintiff (then Regency Creations) upon defendant and requesting defendant to pay to the Belgian Bank $5,439.27, accepted by plaintiff January 8, 1963, and subsequently dishonored and paid by plaintiff (as Regency Creations).
(c) By Count III, plaintiff claimed $2,013.13, based upon Bill of Exchange drawn by plaintiff (Regency Creations) upon defendant, requesting defendant to pay to Belgian Bank $1,985.37, accepted by plaintiff on March 27, 1963, and subsequently dishonored and paid by plaintiff (as Regency Creations).
(d) By Count IV, plaintiff made the same claim for $13,912.29 as in Count I of the original complaint, based on an alleged book account between Swank (Hong Kong) and defendant, and assigned to plaintiff.
(e) By Count V, plaintiff made the same claim for $2,487.54 as in Count II of the original complaint, based on an alleged book account between Swank (Hong Kong) and the defendant, and assigned to plaintiff.
(f) By Count VI, plaintiff claimed $5,-179.25 allegedly due from defendant to Regency Manufacturing on book account between July 31, 1961 and June 25, 1963, and assigned to plaintiff by Regency Manufacturing.
It will be seen from the amended complaint that each of the items claimed in the amended complaint was allegedly owed prior to August 28, 1963, the date of the sale of stock of defendant Swank (Guam) from Weire to Mrs. Karlins, as hereinafter explained.
The grand total of amounts claimed under Counts I to VI of the amended complaint was $32,285.29. However, the abandonment of Count V for $2,487.54 by plaintiff left a total balance claimed of $29,797.75.
Following the depositions taken by plaintiff in Hong Kong, defendant filed a pleading entitled “Answer, Counterclaim and Cross Complaint or Cross Claim” — in reality a counterclaim under Rule 13(a) and (h), and 14, F.R.Civ.P. — in which, (a) defendant (as we understand his said pleading) in substance denied liability under each Count of the amended complaint; (b) defendant in its counterclaim alleged that plaintiff Sportswear (previously known as Regency Creations) and its assignor, Regency Manufacturing, at all times mentioned in the amended complaint were solely owned by Weire; that said corporations were mere “fictional creatures” of Weire and the “alter-ego” of Weire; that Swank (Guam), the defendant up to the time of its sale in September 1963 to Margarette Karlins and Elliot Karlins, was solely owned by Weire and was “operated individually and solely by Weire” as a corporate fiction in conjunction with the other above-named corporations; that by a contract entered into about September, 1963, Weire sold all of his right, title and interest in defendant Swank (Guam) to Margarette and Elliot Karlins for $22,000.00, it being explained that Margarette Karlins was at the time of filing said Answer, etc., sole owner of Swank (Guam) and divorced from Elliot Karlins; that Weire fraudulently concealed from the Karlins the fact that he intended to make demands upon the defendant for large sums of money as a result of his alleged inter-company transfers of merchandise and funds between his alter-egos, Sportswear (previously Regency Creations) and Regency Manufacturing, and Swank (Guam); that on the date of sale of The Swank (Guam) by Weire to the Karlins, no obligations were owned by Swank (Guam) to Weire or “any of his alter-egos”; that Weire sold Swank (Guam) free and clear of all indebtedness except certain current indebtedness recognized by both parties, which indebtedness was promptly paid by defendant after said sale; that at the time of such sale Weire secretly intended to make excessive, onerous and impossible demands over and above the stipulated purchase price, and caused the books of the various alter-ego corporations to be changed to purport to reflect such demands, which did not exist at the time of sale; and that by reason thereof the contract of sale of Swank (Guam) should be rescinded and the parties restored to their original position prior to sale:
That Weire, as the alter-ego of Sportswear, owed Margarette Karlins in commissions $1,045.00.
The Answer and Cross Complaint concluded with a prayer that:
(1) The plaintiff take nothing by its amended complaint;
(2) That Margarette Karlins be joined as “a necessary party plaintiff”;
(3) That Weire be joined as “a necessary party defendant”;
(4) That Margarette Karlins have judgment against Weire and plaintiff corporation for $1,045.00;
(5) That the Contract of Sale of Swank (Guam) be rescinded;
(6) That defendant and Margarette Karlins have their costs.
A Pre-trial Order was entered by the Court, evidently drawn by the Court according to its own notions as to what each party’s position was or should be, based both upon matters brought out during the pre-trial conferences, and upon the Court’s recollection of facts brought out in evidence on the then recently completed trial of a related claim involving the same parties, which the Court apparently anticipated would be brought out in this case, and which the Court frankly intimated would reflect unfavorably upon the position of plaintiff by tending to support defendant’s claim that Weire was the “alter-ego” of the various corporations hereinabove named, or vice versa. Portions of the testimony of various witnesses, including Weire and Mrs. Karlins, in the course of that previous trial were also referred to and used during the trial of the instant case for purposes of proof or impeachment by both parties.
From the lower Court’s decision and findings of fact and conclusions of law, based upon evidence fully adequate to justify the same, and from the record, the facts are substantially as follows:
In the period January 3, to August 1963, and up to the time of sale, Swank (Guam) was bankrupt in the sense that its liabilities, exclusive of capital stock, exceeded its assets by the ratio of $28,-244 to $22,175. A balance sheet in evidence, furnished by plaintiff, showed that as of January 31, 1962, Swank (Guam) had an accumulated loss in operations of $23,123.32, to which was added for February 1962 to January 31, 1963, an additional loss of $6,960.74, or an accumulated loss as of January 31, 1963, of $30,584, and this in spite of substantial reductions effected during the year preceding January 31, 1963.
It was therefore evident that Swank (Guam), as stated by the Court, “in the absence of changes in management or capitalization, was a losing proposition and as of January 31 [1963] its stock was worthless.”
Mrs. Margarette Karlins had been employed as manager since 1961 of Swank (Guam). At all times until the sale of the stock of Swank (Guam) to Mr. and Mrs. Karlins (hereinafter mentioned) Mr. Weire, personally or through one of his wholly-owned corporations (Regency Creations), owned or controlled all of the capital stock of Swank (Guam).
Up to the date of sale of Swank (Guam) to the Karlins, Weire owned all of the 1,000 shares which had originally been issued by it, except one qualifying share held by a second director, a friend of Weire, who never took any part in the operation of Swank (Guam).
From some time prior to and until April, 1963, an additional number of shares was issued (apparently between 1800 and 2500 shares) — the total number not being entirely clear, but it being reasonably inferable from the evidence that Regency Creations, in payment of debts allegedly owed by Swank (Guam) to Regency Manufacturing or other Weire-owned or controlled Hong Kong corporations, had accepted stock “script” in the amount of $25,000 in Swank (Guam) — which this Court understands to mean the equivalent of 2,500 fully paid-up additional shares.
The evidence shows that through some sort of corporate manipulations by Weire, this $25,000 worth of stock script was returned by Weire by letter of April 8, to Mr. Weire’s Guam attorney, who evidently exercised control as Weire’s agent over the stock records of Swank (Guam), with instructions apparently to cancel same and, in lieu thereof, issue to Weire personally, as of the earlier date of January 28, 1963, $18,000 worth, or 1800 additional shares of stock in Swank (Guam) in alleged payment of $18,000 worth of indebtedness allegedly owed by Swank (Guam) to Regency Creations, apparently resurrecting the original indebtedness of $25,000 supposedly “paid” by the issuance to Regency Creations of the said $25,000 of stock “script,” and transferring it or $18,000 of it, from Regency Creations to Weire personally in this strange manner.
This type of manipulation between Weire personally and his several wholly-owned or controlled corporations, Swank (Guam) and Regency Creations, and Swank (Hong Kong) shown by Weire’s own testimony, plus other evidence in the case, including admissions of Weire that the sole other director in Swank (Guam) apparently never performed any services as director at any time, and that as to Regency Creations the sole other director, Mr. Weire’s brother, likewise never took any action as such director, and in fact never lived in Hong Kong, clearly proves that Weire never bothered to go through the regular corporate processes to carry out his wishes, but simply acted as if they were all individual (non-corporate) business entities. This supports the defendant’s contentions, and the lower Court’s findings, that these corporations were mere corporate facades manipulated by Weire as his “alter-egos” rather than as bona fide corporations.
In this connection also it should be noted that an additional Hong Kong corporation was involved in the various activities of Weire in relation to Swank (Guam); this was the Swank Shop (Hong Kong), Ltd. (herein called Swank (Hong Kong)), and it likewise was a corporation wholly owned by Weire except for a qualifying share of another director, and Mr. Weire manipulated at will this corporation in the same informal and arbitrary manner as the others mentioned.
With reference to the “alter-ego” theory (claimed by the defendant and found by the lower Court to be well taken) one fact which is relied upon principally by plaintiff as supposedly rebutting such “alter-ego” theory, is that both Weire’s testimony and the excluded depositions constitute proof that Regency Manufacturing at all times material to this case was a corporation whose stock and management or operation were not controlled by Weire. The evidence shows that Weire in the beginning owned % of all the issued capital stock of Regency Manufacturing, the other % being owned equally by a Miss Lau and her brother, Mr. Lau; that some time before the sale of stock by Weire to the Karlins in August or September, 1963, Mr. Lau had sold his stock to Weire and Miss Lau, so that Weire actually owned at least % of such stock at the time of the sale of Swank (Guam); but that shortly after the sale of Swank (Guam) to the Kar-lins, the Belgian Bank in Hong Kong had insisted that a controlling number of shares of Regency Manufacturing be pledged with the Belgian Bank to secure Regency Manufacturing’s indebtedness or operations.
However, the record shows clearly that, whatever the stock ownership situation might have been, and although apparently Miss Lau was at all times the ostensible managing director of Regency Manufacturing, Weire was able at will to manipulate Regency Manufacturing to do anything he pleased. Illustrations of this are his own admissions that, through bookkeeping entries or the issuance of checks or the issuance of stock or the transfer of merchandise or assets, by or between one or more of his controlled corporations and himself, and/or between them and Regency Manufacturing, Weire was able to, so to speak, “rob Peter to pay Paul,” causing debts ostensibly owed Regency Manufacturing by his various controlled corporations to be paid off, and various debts or stocks to be transferred to him, Weire, or one of such Weire corporations, whenever he pleased. These manipulations give more than substantial support to the lower Court’s finding that even Regency Manufacturing was sufficiently subject to his control to be held an “alter-ego” of Weire and to justify piercing the corporate veil and binding Regency Manufacturing by the acts of Weire.
Further, it appears that Weire was a director of Regency Manufacturing until as late as September, 1963, after the sale of Swank (Guam) stock to the Karlins, so that, at the time of such sale he could be reasonably inferred to be in a position as a director of Regency Manufacturing, to speak for that corporation. At the very least, that relationship was sufficient to constitute notice to Regency Manufacturing of the representations and inducements made and offered by Weire to Mrs. Karlins upon which, as the lower Court held, she relied in purchasing Swank (Guam).
Apparently Weire ceased to be a director of Regency Manufacturing in September, 1963, — conveniently right after the Swank (Guam) sale — and it seems reasonable to infer that that was about the same time at which he claims to have been forced by the Belgian Bank to cause to be transferred to the Belgian Bank, as collateral, a majority of the stock of Regency Manufacturing. This, if true, would not necessarily preclude Weire and Miss Lau (over whom he apparently had great influence) from operating and voting the stock of Regency Manufacturing, there being no clear evidence to the contrary.
A further illustration of Weire’s ability to manipulate at will his various wholly-owned or substantially controlled corporations, is the manner in which, as above-mentioned, he caused the 1800 additional shares in Swank (Guam) to be issued retroactively to him in April, 1963, but as of January 28, 1963, so that the additional 1800 shares could appear in a balance sheet prepared at his instance, apparently back-dated to January 31, 1963, to make a better showing of the financial condition of Swank (Guam).
In the face of all of these and other manipulations, and other similar machinations, shown by the evidence, we cannot say that the lower Court was in error in holding that all of the above named Hong Kong corporations, as well as Swank (Guam), were the “alter-egos” of Weire through his ownership or control or management of these various corporations.
Coming now to the circumstances attending actual sale of the stock of Swank (Guam), the record indicates, and the Court found, that some time around and prior to August 21, 1963, Weire as seller negotiated with Mrs. Karlins (as he had negotiated with a number of others) trying desperately to sell the Swank (Guam) business or corporation in order to bolster up his financial situation with his other corporations. It appears that as. early as June, 1963, Weire had offered to sell control of the corporation to Mrs. Karlins on the following terms:
(a) Mrs. Karlins to invest $10,000 in the business and receive $15,000 in shares of Swank (Guam), thus giving her 1500 shares against Weire’s remaining 1300 out of 2800 (exclusive of the 1 qualifying director’s share, and inclusive of the 1800 shares ostensibly shown to have been issued as of January 28, to Weire, as above described), or
(b) She to pay in $15,000, and he to sell her 2,250 such shares, retaining 550 out of the 2800 issued shares, and he then to take out an additional 1,000 shares, or $10,000 as part payment of $17,000 in D/A’s (drafts accepted) which had been drawn on Swank (Guam) previously and dishonored and paid by one or more of Wiere’s “alter-ego” corporations, presumably Regency Creations.
In this letter (Exhibit 5) Weire states that he had just had to retire over $7,000 in D/A’s which were past due and apparently had been accepted by Swank (Guam) and dishonored, together with $17,000 of other earlier dishonored D/A’s which he had previously paid. In this letter (Exhibit 5) — further illustrating the looseness with which Weire manipulated his various corporations — Weire uses the first person to refer to what, in this ease, he now claims to be one or the other of his corporations, and he refers to the various amounts of dishonored D/A’s as if he personally had paid the entire $17,000 plus $7,000, or $24,-000, a total figure remarkably close to the $25,000 stock “script” earlier issued by Swank (Guam) to Regency Creations. The state of the record is such that the Court would be justified in inferring that this $25,000 of stock script was issued to Regency Creations, by Swank (Guam) in payment of said D/A’s. That letter (Exhibit 5) also infers that the above-mentioned total payments of $24,000 of D/A’s leaves only approximately $2,000 of current D/A’s owing by Swank (Guam) to Regency Manufacturing, plus “a small amount due to Regency Creations for Special Order suits sent to you.”
By his manipulations of April, 1963, Weire appears (a) to have purportedly resurrected this paid amount of Swank (Guam) debts (paid through issuance of such stock script) nunc pro tunc as of January 28, 1963, by having the $25,000 script returned in April, 1963 to his agent in Guam (keeper of Swank (Guam’s) stock records), and (b) paid again by the issuance to him by Swank (Guam) of 1800 shares, or $18,000 worth, of stock, leaving a retroactively resurrected balance of $7,000 purportedly owing as of January 28, 1963, from Swank (Guam) to Regency Creations. In his letter of June 18, 1963 (Exhibit 5) Weire appears to confirm that said $17,000 of D/A’s, and an additional $7,-000 of'D/A’s had been paid, leaving a balance of about $5,000. Weire’s April 8th-letter to Mr. Arriola (Exhibit B) probably explains what had actually taken place prior to June 18, 1963. The balance of $5,000 was the amount paid off under the sale agreement.
The evidence is undisputed that during a visit to Guam in July, 1963, Weire offered to sell to Mrs. Karlins for $28-000 all of the shares of stock of Swank (Guam), leaving Swank (Guam) free and clear of any indebtedness, excepting that Weire was to retain the right to any tax refunds. This proposition was turned down by Mrs. Karlins. Thereafter, according to the testimony of Mrs. Kar-lins, Weire submitted a new offer substantially that she pay $22,000 to him, $15,000 in cash, and the balance in installments of $400 per month with interest at 9%, Mrs. Karlins to pay any taxes owing and receive any refunds and to pay current indebtedness admitted to amount to about $5,000, which the evidence indicates she did pay.
This bargain was handled by oral conferences between Mrs. Karlins and Mr. Weire. The parties having agreed on these terms, the undisputed evidence is that they went to the law office of Mr. Arriola and in the absence of Mr. Arriola, spoke to his partner, Mr. Gayle, and apparently Mr. Weire did most of the talking, according to Mrs. Karlins, whose testimony was believed by the lower Court. The rough memorandum with figures on it, Defendant’s Exhibit A, together with the testimony of Mrs. Karlins and Mr. Gayle, indicates, and the lower Court found, that notwithstanding her management of Swank (Guam), Mrs. Karlins was a very naive and inexperienced person in the matter of such transfers and accepted and executed, apparently unquestioningly, the redraft of the contract returned by Weire. Since this final draft as signed (Exhibit 1) says nothing about debts of the Guam corporation being considered paid, other than the current obligations of $5,000 to which Mrs. Karlins testified, plaintiff contends that the parol evidence rule prevents any other evidence being introduced to allegedly modify or change the terms of that written agreement. We disagree.
The testimony of Mrs. Karlins, which obviously was believed by the lower Court — and which we believe was properly so accepted, rather than any contradictory statements of Weire — is that it was orally agreed between her and Mr. Weire as a part of the entire transaction that the debts of Swank (Guam) were paid or were considered paid except for the small current indebtedness of approximately $5,000, and that the stock was sold on this understanding and representation by Weire. As the lower Court indicated in its decision, the very unconscionableness of a transaction whereby Weire would sell the stock of an insolvent corporation for $22,000 plus $5,000 in current liabilities, leaving the purchasers with an alleged additional debt exceeding the total purchase price (the amended complaint claiming some $29,000 to $32,000) compels acceptance of Mrs. Karlins’ version of the transaction agreed upon.
In support of its position plaintiff cites “20 Am.Jur. 958, 962, 963, Section 1099.” However, as shown by Wigmore, and recognized by the Civil Code of Guam, the parol evidence rule does not apply in this case if Mrs. Karlins’ testimony is believed.
Section 1625 of the Civil Code of Guam provides:
“The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.”
However, Section 1639 provides:
“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible; subject, however, to the other provisions of this title.”
And the other provisions of this title include Section 1640, which provides that:
“When, through fraud, mistake, or accident, a written contract fails to express the real intention of the parties, such intention is to be regarded, and the erroneous parts of the writing disregarded.”
This is in line with what Wigmore says, namely:
“The most usual controversy arises in cases of partial integration, i. e. where a certain part of a transaction has been embodied in a single writing, but another part has been left in some other form. Here, obviously the rule against disputing the terms of the document will be applicable to so much of the transaction as is so embodied, but not to the remainder.” IX Wig-more Evidence, Third Edition, Section 2430, p. 97, and text preceding and following the above citation.
It is clearly inferable from the record in this case that there was such an omission due to Weire’s giving incomplete and inadequate instructions to Mr. Gayle (a member of the law firm which was regularly retained by him on Guam) for the drafting of the final document. Weire’s omission of the portion of the bargain he and the Karlins had agreed upon to the effect that the debts of the Guam corporation were paid or were to be considered as paid — an omission the significance of which Mrs. Karlins apparently failed to detect, or which she may have reasonably considered unimportant because of Weire’s representations and her own understanding that (as above stated) these debts had been considered by Weire as paid — removed it from the purview of the parol evidence rule.
Accordingly, the parol evidence rule does not apply to that portion of the transaction whereby it was agreed and understood between the parties that the sale of stock was made on the understanding and condition that all debts of the Guam corporation had been or were considered to be paid, except the $5,000 current obligations, which Mrs. Karlins thereafter paid.
Thus there is no inconsistency between the portion of the transaction agreed upon and the portion placed ih writing as to the sale of the stock. Neither contradicts the other, and evidence of the oral portion of the contract is admissible because no part of that portion of the transaction was put in writing, through the intentional omission thereof by Weire in his instructions to the law firm which, in that connection (and without any reflection on its honesty), represented both parties but had taken no part in and had no knowledge of the final negotiations for the sale.
The defendant’s theory of the case is supported in numerous ways, both by the Civil Code of Guam, and by the record in this case.
Thus, Section 1636 of the Civil Code of Guam states:
“A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.”
And Section 1622 states:
“All contracts may be oral, except such as are specifically required by statute to be in writing.”
And even where a contract is required by law to be in writing, but
“ * * * is prevented from being put into writing by the fraud of a party thereto, any other party who is by such fraud led to believe that it is in writing, and acts upon such belief, to his prejudice, may enforce it against the fraudulent party.” Section 1623.
Section 1642 provides:
“Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.”
Section 1643 provides:
“A contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.”
And Section 1647 provides:
“A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates.”
Section 1649 provides:
“If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.”
Among other things supporting Mrs. Karlins’ version, besides the obviously serious impeachment of Weire in the course of his testimony, is the innate un-conscionableness of the transaction, if it was in fact what Weire contends it to be.
Among these is defendant’s Exhibit A, which Mrs. Karlins testified was used by Weire in connection with persuading her to purchase the assets and stock of Swank (Guam) for $22,000 plus the liability to pay taxes and current obligations, after she had turned down an offer to purchase the business free of all obligations, for $28,000. This document (Exhibit A) has the appearance of being one of the “scraps of paper” admitted by Weire to have been scribbled upon during the negotiations, and the figures approximately support Mrs. Karlins’ version of the figures and contract terms agreed upon. To be sure, the plaintiff adduced the testimony of a so-called “ex-per witness” tending to show it was not Weire’s handwriting but that of another person named Williams who was not on Guam on the date of the negotiations, but who had corresponded and negotiated with the parties at previous times when he was in charge of the Bank of Hawaii branch on Guam, tending to prove that Mrs. Karlins’ testimony that Weire had jotted down these figures in her presence during the final negotiations was not true. And it is also true, as complained by plaintiff’s counsel, that Mrs. Karlins after having been examined and cross-examined as to whether the handwriting was Mr. Weire’s, and having stated positively that, according to her recollection, it was, and that Mr. Weire had used it in connection with the negotiations, was not allowed to be recalled by plaintiff as an adverse witness and cross-examined further on this document after the subsequent impeaching testimony of the handwriting expert.
This refusal on the part of the lower Court was error, but harmless error, for even if we take the expert testimony at its face value and hold that the top part of this document (Defendant’s Exhibit A) was not in the handwriting of Weire, this does not prove that the same and the figures appearing thereon were not used by Weire as inducements in connection with the negotiations, which is the really significant effect of the lower Court’s finding on this aspect of the case, rather than who wrote the figures in question. Thus the impeachment of Mrs. Karlins, if it was successful in this respect, was on a matter not dispositive of the actual merits of the case. Her testimony to the effect that Mr. Weire used this document, whether he wrote on it or not, would be just as effective as if he had written it, especially since Weire did not unequivocally deny having so used it.
Exhibit A is admittedly a document written before the sale, an authentic piece of paper which in fact related to Swank (Guam), and even if written at an earlier time by Williams, could have been, and if Mrs. Karlins’ testimony is believed, was used by Weire in persuading Mrs. Karlins to agree to his proposal. The slight variation of $500 one way or the other from the final figures testified to by Mrs. Karlins is not sufficient to impeach the document. Rather, the closeness of the figures to the terms testified to by Mrs. Karlins is highly persuasive, and with other circumstances justifies the lower Court’s finding of authenticity and its acceptance of the real substance of Mrs. Karlins’ story that Exhibit A was used by Weire in the final negotiations. For the foregoing reasons and because of the overwhelming showing made by the record in support of the result reached by the lower Court, we hold the lower Court’s refusal to permit Mrs. Karlins to be re-examined as to the handwriting on Exhibit A, to be harmless error.
The fact that Mrs. Karlins and Weire were not brought in as additional parties plaintiff and defendant, as sought by the counterclaim of defendant, does not cause the result reached by the lower Court to be erroneous. Plaintiff takes the position that Weire’s testimony, and other proffered deposition testimony rejected by the lower Court, prove that, at the time the sale was agreed upon between Weire and Mrs. Karlins, Weire did not have actual authority to bind Regency Manufacturing because he did not then own a majority of Regency Manufacturing’s stock and was not the managing director of that corporation; that Weire owned either a one-third or a half of the stock, but more than one-half of all the corporation’s stock was at the time pledged with the Belgian Bank. From this plaintiff contends that Regency Manufacturing could not have been and was not bound by any representation Weire may have made, with the implication, apparently, that therefore he could not have made any such representation.
Such facts, even if true, do not, per se, prove that Mr. Weire was without authority at that time to actually bind Regency Manufacturing. The proven fact that Weire manipulated Regency Manufacturing about that time, apparently pretty much as he pleased, makes it not unreasonable to infer, as the lower Court did, that he in fact had authority to bind Regency Manufacturing in respect of this contract. Even if he did not have such authority, this does not prove that he did not purport to bind Regency Manufacturing, as the lower Court held he did. Therefore, proof that he had no such authority does not prove the lower Court wrong in finding that he did in effect hold himself out as authorized to forgive the debts or to consider them paid.
Finally, even if
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_typeiss
|
C
|
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.
Samuel J. CORBIN, Appellant, v. WASHINGTON FIRE AND MARINE INSURANCE COMPANY; St. Louis Fire and Marine Insurance Company; and The Insurance Company of St. Louis, Appellees.
No. 12275.
United States Court of Appeals Fourth Circuit.
Argued June 20, 1968.
Decided July 17, 1968.
Morris D. Rosen, Charleston, S. C. (G. M. Howe, Jr., Charleston, S. C., on the brief), for appellant.
Wm. H. Grimball, Charleston, S. C. (Grimball & Cabaniss, Charleston, S. C., on the brief), for appellees.
Before SOBELOFF, WINTER and BUTZNER, Circuit Judges.
PER CURIAM:
The question presented by this appeal is whether under South Carolina law an absolute privilege protects defamatory statements uttered in the course of private arbitration proceedings. The District Court held that such statements were absolutely privileged and granted defendants’ motion for summary judgment. We affirm on the basis of the District Court’s opinion, 278 F.Supp. 393 (D.S.C.1968).
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:
|
songer_usc2sect
|
901
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 50. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
WOODS, Housing Expediter, v. DAVIS.
No. 12626.
United States Court of Appeals Ninth Circuit.
Nov. 28, 1950.
Ed Dupree, Gen-. Counsel, Leon J. Libeu, Nathan Siegel, Sp. Litigation Atty., Office of Housing Expediter, Washington, D. C., for appellant.
E. F. Bernard, Jonathan Edwards, Portland, Or., for appellee.
Before HEALY, BONE, and POPE, Circuit Judges.
HEALY, Circuit Judge.
The Housing Expediter, in December 1948, brought suit against appellee alleging violations of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, §§ 901-946, and the Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, §§ 1881-1902. The complaint, in two counts, set out elaborately detailed schedules of rental charges in excess of the prescribed maximum occurring during the period September 2, 1943, to September 15, 1948, indicating total overcharges under the two Acts of about $2,200. The pleading asked that appellee be ordered to make restitution to tenants of the excess amounts, and injunctive relief was prayed as against the continuance of the asserted violations of the 1947 Act. Appellee by answer filed in January of 1949 admitted her exaction of rentals in the amounts shown in the schedules but claimed that the Expediter lacked capacity to sue for restitution, and alleged that the suit, except as to injunctive relief, was barred in part by the one year limitation relating to the recovery of damages.
In October 1949 the Expediter served on appellee a request for admissions or denials pursuant to Rule 36 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The requests related to the accuracy of the schedules, that is, whether they stated correctly the amounts of the various overcharges. Appellee failed to respond, and after the lapse of a month the Expediter, on a showing of the fact by affidavit, moved under Rule 56 for summary judgment. The court denied the motion and entered judgment dismissing the Expediter’s complaint. The reasons for this disposition of the suit are set out in a memorandum opinion of the court, shown on the margin.
The transcript of the record indicates that soon after appellee had filed her answer a pre-trial conference of some sort was held, but apparently no result in the way of a pre-trial order emerged from it. Consult Rule 16, F.R.C.P. Inferably, the conference was devoted to an inquiry by the court relative to the ability of the defendant to make restitution. The memorandum opinion is understandable only on that assumption.
The authority of the courts, under § 205(a) of the 1942 Act and § 206(b) of the Act of 1947, to order restitution of excess rentals is settled by Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332, and by later decisions in this and other circuits. Consult Woods v. Richman, 9 Cir., 174 F.2d 614. The object of employing this equitable remedy is to check inflationary trends and to effectuate generally the policy of Congress.
We have held that it is error to deny an order of restitution on the assumption that the granting of that remedy would constitute or might result in imprisonment for debt. Woods v. Brown (Sanford), 9 Cir., 184 F.2d 486, decided subsequent to the dismissal of the present suit. We there indicated that the ability of the landlord to respond to an order of restitution is immaterial to the question whether such an order should be entered, saying that “it will be time enough to raise the point of unconstitutional imprisonment for debt when that procedure is threatened or imminent.” It necessarily follows that a claim of inability to refund excess rentals, unlawfully exacted of tenants, may not be considered in the trial or determination of a suit by the Expediter to obtain a restitution order. If the contrary view were to obtain landlords would be encouraged in advance to disregard the law and to dissipate or secrete their illicit profits. Accordingly, the consideration of conditions which might be thought to militate against the imposition of sanctions for contempt are to be postponed until the occasion therefor arises.
The mere fact that the defendant took over the units from another person and continued to charge the same rentals as had been charged by her predecessor affords no equitable reason for declining to order restitution of the illegal gains. The law is no respecter of persons, and we think the best way to educate those contemplating evasion of it is to demonstrate that violation will in every case result in judgment against the wrongdoer. It is certain that future compliance by the landlady in question is not assured by the easy attitude of the court in respect of her equitable obligation to restore the fruits of her illegal conduct, nor is compliance promoted by ignoring, as it was here, the Expediter’s prayer for injunctive relief.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
. “This is a rent control case. The defendant is a woman without means. She ran several small rooming house units during the war years, and the Rent Administrator seeks an order for restitution against, her for $2200.00 to be distributed to various wartime tenants if they can be located; otherwise to remain in the Treasury. This amount, the Administrator claims, represents an overcharge above the legal wartime maximum. The defendant took over the units from another person and continued to charge the same rents as had been charged by her predecessor.
“The Government contends that it is the inescapable duty of the Trial Judge in every rent ease to enter an order of restitution and thereafter, if the defendant does not pay, to cite the defendant for contempt. The Government says the defendant here can purge herself of contempt if she is able to show that she is without means.
“Why should this woman be pursued further, since she has already satisfied me that she cannot pay?
“The nearest analogy is in the field of domestic relations. Surely a judge is not required to order that alimony be paid if he is satisfied that the defendant cannot pay.
“Furthermore, to make an order, known in advance to he impossible of enforcement, violates the well-known maxim of equity; and it must bo remembered that equity power is here being invoked.
“An order for restitution will be denied, the complaint dismissed, and this memorandum may stand and be treated in lieu of formal Findings of Fact.”
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 50? 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.
Anthony VOCCIO and Domenic Voccio, Plaintiffs, Appellants, v. RELIANCE INSURANCE COMPANIES, et al., Defendants, Appellees. Anthony VOCCIO and Domenic Voccio, Plaintiffs, Appellees, v. RELIANCE INSURANCE COMPANIES, et al., Defendants, Appellants.
Nos. 82-1625, 82-1719.
United States Court of Appeals, First Circuit.
Argued Feb. 4, 1983.
Decided March 24, 1983.
Joseph G. Miller, Providence, R.I., with whom William T. Murphy, and Joseph G. Miller, Ltd., Providence, R.I., was on brief, for Anthony Voccio and Domenic Voccio.
Peter Lawson Kennedy, Providence, R.I., with whom Adler Pollock & Sheehan Incorporated, Providence, R.I., was on brief, for Reliance Insurance Companies, et al.
Before ALDRICH and BREYER, Circuit Judges, and ZOBEL, District Judge.
Of the District of Massachusetts, sitting by designation.
BREYER, Circuit Judge.
This case arises out of a serious auto accident that took place more than ten years ago. William Lopes, Jr., driving his mother Anna Lopes’ car, lost control of the car and hit two pedestrians, Mary Petrarca and Anthony Voccio. Petrarca, a fifty-eight year old housewife, died about eleven minutes after being hit. Voccio, an eleven year old child, lost the lower part of both his legs. The Lopeses were nearly judgment-proof and carried liability insurance of only $25,000. The insurance company, Reliance, settled with Mrs. Petrarca’s husband for half of the policy amount, $12,500. Anthony Voccio and his father refused to accept the other half and sued the Lopeses. Although they won a verdict for several hundred thousand dollars, the Lopeses could not pay. The Voccios then promised not to try to collect the judgment. In return, the Lopeses assigned to the Voccios whatever claim they might have against Reliance for “bad faith” in carrying out the settlement negotiations.
The Voccios, standing in the Lopeses’ shoes, sued Reliance in Rhode Island state court. Reliance removed the case to federal court on grounds of diversity. The jury in the federal court found that Reliance’s “bad faith” had led to the large excess judgment against the Lopeses and would have required Reliance to pay this excess to the Voccios. The district judge, however, granted Reliance a judgment n.o.v. The judge held that no reasonable juror could have believed that Reliance’s actions demonstrated any “bad faith” that in turn led to the excess judgment. What we have before us is, in essence, the Voccios’ appeal from this district court determination.
In principle, this case might raise a number of interesting and difficult issues of Rhode Island law. .Does that law permit the Lopeses to assign their claim against Reliance to the Voccios? See, e.g., Moutsopoulos v. American Mutual Insurance Co. of Boston, 607 F.2d 1185, 1189-90 (7th Cir. 1979) (Wis. law: assignment allowed); Dillingham v. Tri-State Insurance Co., 214 Tenn. 592, 381 S.W.2d 914 (1964) (assignment prohibited); Annot., 12 A.L.R.3d 1158 (1967). Did the excess judgment against the Lopeses damage them? They were nearly judgment-proof and the Voccios promised not to execute the judgment. Were they harmed in the amount of the several hundred thousand dollars that the Voccios seek from the insurance companies? See, e.g., 7C J. Appleman, Insurance Law and Practice § 4711 at 417-19 (W. Berdal rev. 1979); Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv.L. Rev. 1136, 1173-82 (1954); Annot., 63 A.L.R.3d 627 (1975). We need not consider these questions, however, nor certify them to the Rhode Island Supreme Court, see Smith v. Cumberland School Committee, R.I., 415 A.2d 168 (1980), for even assuming answers favorable to the Voccios, we believe the district court’s award of judgment n.o.v. was proper.
In order to prevail the Voccios must at least show that: 1) the insurance company’s “bad faith’’ in settling the Petrarca and Voccio claims, 2) caused the excess judgment. See Bibeault v. Hanover Insurance Co., R.I., 417 A.2d 313, 319 (1980). As a matter of law, on the basis of this record, we doubt that the Voccios could prevail as to the first of these matters. We are certain they cannot prevail as to the second.
“Bad faith” is not easily defined. Yet we know that it involves behavior worse than simple negligence. See Brown v. United States Fidelity and Guaranty Co., 314 F.2d 675, 679-80 (2d Cir.1963). In Rhode Island it seems to require some form of “reckless” behavior, such as a “reckless indifference to facts” or “a lack of a reasonable basis” for the carrier’s decision. Bibeault v. Hanover Insurance Co., 417 A.2d at 319. As stated strongly, the duty to negotiate in good faith would require the carrier to give “the interest of the insured” consideration “equal to that consideration given its own interest,” Liberty Mutual Insurance Co. v. Davis, 412 F.2d 475, 483 (5th Cir.1969), or “to treat the claim as if it were alone liable for the entire amount.” Bell v. Commercial Insurance Co. of Newark, 280 F.2d 514, 515 (3d Cir.1960); see Brown v. United States Fidelity and Guaranty Co., 314 F.2d at 678; Keeton, supra, at 1148. Most “bad faith” cases involve an insurance company’s refusal to accept an offer of settlement within the available policy limits — a state of affairs (unlike this one) where the interests of the carrier and insured are clearly opposed. See, e.g., Luke v. American Family Mutual Insurance Co., 476 F.2d 1015 (8th Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 158, 38 L.Ed.2d 105 (1973); Peterson v. Allcity Insurance Co., 472 F.2d 71 (2d Cir.1972); Herges v. Western Casualty and Surety Co., 408 F.2d 1157 (8th Cir.1969); State Farm Mutual Automobile Insurance Co. v. Brewer, 406 F.2d 610 (9th Cir.1968). Only occasionally has liability been found where the conflict of interest has been less apparent; and in such cases the evidence of reckless behavior is strong. See Brown v. United States Fidelity and Guaranty Co., 314 F.2d at 682.
We doubt that a reasonable jury, unswayed by sympathy for the Voccios, could have found any relevant “bad faith” here. The evidence, viewed most favorably to plaintiffs, see Ramos Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir.1978), suggests that Reliance’s investigation of the Petrarca claim and its efforts to keep the Lopeses informed about settlement negotiations left something to be desired. Cf. 7C J. Appleman, supra, at §§ 4711 at 370-72, 4712 at 480; 14 G. Couch, Cyclopedia of Insurance Law § 51:145 (2d ed. 1982). But even if a jury might have found such conduct to be negligent or even “reckless” viewed alone, here the conduct is relevant only insofar as it led the carrier to pay $12,500 to the Petrarcas (and leave only $12,500 for the Voccios). At bottom, the Voccios must show that this 50-50 division of the insurance policy proceeds was highly unreasonable, reckless or in “bad faith” — an exceedingly difficult task.
For one thing, the carrier met together with counsel for both Petrarca and the Voccios and sought suggestions on how to divide the money — a course recommended in Farmers Insurance Exchange v. Schropp, 222 Kan. 612, 567 P.2d 1359, 1367 (1977). For another thing, unlike the claimant in Brown, the Voccios did not agree to participate in an equitable division of the policy proceeds. In fact, the Voccios consistently refused to make any offer of settlement below the policy limits. These facts make more reasonable the carrier’s decision to give Mr. Petrarca half of the amount. Furthermore, Mr. Petrarca’s claim was substantial. His wife had been killed; she was conscious for a time before death (and thus may have suffered); she was a housewife for the loss of whose services a husband can be compensated under Rhode Island law. See Burns v. Brightman, 44 R.I. 316, 117 A. 26 (1922). Moreover, Mr. Petrarca was willing to settle while the Voccios were not. Judicial decisions have consistently allowed insurers to settle on the basis of “first come, first served.” See, e.g., Standard Accident Insurance Co. of Detroit v. Winget, 197 F.2d 97, 104 (9th Cir.1952); Bartlett v. Travelers’ Insurance Co., 117 Conn. 147, 167 A. 180 (1933); Bennett v. Conrady, 180 Kan. 485, 305 P.2d 823 (1957); Bruyette v. Sandini, 291 Mass. 373, 197 N.E. 29 (1935); Liguori v. Allstate Insurance Co., 76 N.J.Super. 204, 184 A.2d 12 (Ch. 1962); Alford v. Textile Insurance Co., 248 N.C. 224, 103 S.E.2d 8 (1958); Keeton, Preferential Settlement of Liability-Insurance Claims, 70 Harv.L. Rev. 27, 37-38 (1956); Comment, Pro-rating Automobile Liability Insurance to Multiple Claimants, 32 U.Chi.L.Rev. 337, 337 (1965). Indeed, had the carrier refused to settle with Petrarca, the Lopeses might well have been faced with two suits rather than one, or with a suit by Petrarca instead of Voccio. Under these circumstances, it is difficult to see how splitting the insurance proceeds and settling Mr. Petrarca’s claim for $12,-500 could constitute “bad faith.”
We need not definitively hold that no “bad faith” exists, however, for we agree with the district court that whatever “bad faith” there may have been did not bring about the “excess” judgment. The crucial difference between this case and the Brown case (on which the Voccios rely) is the absence of any evidence suggesting that a “good faith” settlement with Mr. Petrarca would have led to a different outcome. There is no reason to believe that further investigations of the Petrarca claim or greater efforts to keep the Lopeses informed would have brought about a settlement with the Voccios. Indeed, the Lopes-es’ counsel initially appears to have been pleased with the settlement, and to have expressed no discontent until 1977, several years after the settlement took place.
The Voccios’ strongest argument is that a 50-50 split was unreasonable in light of Mrs. Petrarca’s age and Anthony Voceio’s youth. Yet, the reasonableness of the carrier’s belief that Mr. Petrarca’s claim was worth more than $12,500 cannot be questioned. As previously mentioned, the carrier knew Mrs. Petrarca was fifty-eight years old, that she was conscious before death, and that compensation is payable for the loss of a housewife’s services in Rhode Island. That Mr. Petrarca might have had to submit additional evidence of the value of those services in a “wrongful death” action, R.I.Gen.Laws § 10-7-1.1; see Pray v. Narragansett Improvement Co., R.I., 434 A.2d 923, 929 (1981); Taft v. Cerwonka, R.I., 433 A.2d 215, 219-20 (1981); Wiesel v. Cicerone, 106 R.I. 595, 261 A.2d 889, 891-92 (1970); Burns v. Brightman, 117 A. at 29, is beside the point, for here the issue is the carrier’s “state of mind.” And, as to that, it was reasonable for the carrier to infer from these facts that Mr. Petrarca had a claim significantly exceeding the policy limit. Indeed, the only evidence specifically valuing the Petrarcas’ claim in the court below put its value at over $75,000.
The Voccios’ argument that the 50-50 split was improper rests on the claim that the split was inequitable as between the Voccios and Petrarca, not on a claim that Reliance breached a duty to the Lopeses. Yet, even if we evaluated the settlement from the standpoint of such equities, we would affirm the district court. That is to say, we do not see how anyone could find Reliance to be in “bad faith” for paying significantly more than $5,000 — say, $10,000 to Petrarca. But even if Petrarca had been willing to settle for $10,000, there is no evidence in the record that the Voccios would have settled for $15,000. Indeed, there is considerable evidence to the contrary, for the Voccios refused to mention any settlement figure within the policy limits up to the time of the personal injury trial, and at that time they still insisted on the full $25,000. Even if William, Jr. and Anna Lopes were to have contributed their personal assets to the settlement, the Voccios do not argue that they could have contributed more than $6,000. In sum, we do not see how a jury could have concluded that an extra $2,500 or so from Reliance could have led to settlement, nor do we see how a jury could have concluded that the utmost “good faith” on the part of the carrier would have produced more than an additional $2,500.
For these reasons, the judgment of the district court is
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_caseoriginstate
|
37
|
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.
CARDONA v. POWER et al.
No. 673.
Argued April 18, 1966.
Decided June 13, 1966.
Paul O’Dwyer argued the cause for appellant. With him on the brief was W. Bernard Richland.
Samuel A. Hirshowitz, First Assistant Attorney General of New York, argued the cause for appellees. With him on the brief were Louis J. Lejkowitz, Attorney General, and George C. Mantzoros, Brenda Soloff, Barry J. Lipson and Amy Juviler, Assistant Attorneys General.
Briefs of amici curiae, urging reversal, were filed by Leo Pfeffer and Joseph B. Robison for the American Jewish Congress, and by Norman S. Fink for Nathan Straus.
Mr. Justice Brennan
delivered the opinion of the Court.
This case was argued with Katzenbach v. Morgan, ante, p. 641, also decided today. We there sustained the constitutionality of § 4 (e) of the Voting Rights Act of 1965, and held that, by force of the Supremacy Clause and as provided in § 4 (e), the State of New York’s English literacy requirement cannot be enforced against persons who had successfully completed a sixth grade education in a public school in, or a private school accredited by, the Commonwealth of Puerto Rico in which the language of instruction was other than English. In this case, which was adjudicated by the New York courts before the enactment of § 4 (e), appellant unsuccessfully sought a judicial determination that the New York English literacy requirement, as applied to deny her the right to vote in all elections, violated the Federal Constitution.
Appellant was born and educated in the Commonwealth of Puerto Rico and has lived in New York City since about 1948. On July 23, 1963, she attempted to register to vote, presenting evidence of United States citizenship, her age and residence; and she represented that although she was able to read and write Spanish, she could not satisfy New York’s English literacy requirement. The New York City Board of Elections refused to register her as a voter solely on the ground that she was not literate in English. Appellant then brought this proceeding in state court against the Board of Elections and its members. She alleged that the New York English literacy requirement as applied was invalid under the Federal Constitution and sought an order directing the Board to register her as a duly qualified voter, or, in the alternative, directing the Board to administer a literacy test in the Spanish language, and, if she passed the test, to register her as a duly qualified voter. The trial court denied the relief prayed for and the New York Court of Appeals, three judges dissenting, affirmed. 16 N. Y. 2d 639, 209 N. E. 2d 119, remittitur amended, 16 N. Y. 2d 708, 827, 209 N. E. 2d 556, 210 N. E. 2d 458. We noted probable jurisdiction. 382 U. S. 1008.
Although appellant’s complaint alleges that she attended a school in Puerto Rico, it is not alleged therein nor have we been clearly informed in any other way whether, as required by § 4 (e), she successfully completed the sixth grade of a public school in, or a private school accredited by, the Commonwealth. If she had completed the sixth grade in such a school, her failure to satisfy the New York English literacy requirement would no longer be a bar to her registration in light of our decision today in Katzenbach v. Morgan. This case might therefore be moot; appellant would not need any relief if § 4 (e) in terms accomplished the result she sought. Cf., e. g., Dinsmore v. Southern Express Co., 183 U. S. 115, 119-120. Moreover, even if appellant were not specifically covered by § 4 (e), the New York courts should in the first instance determine whether, in light of this federal enactment, those applications of the New York English literacy requirement not in terms prohibited by § 4 (e) have continuing validity. We therefore vacate the judgment, without costs to either party in this Court, and remand the cause to the Court of Appeals of New York for such further proceedings as it may deem appropriate.
u {s so ordered
[For dissenting opinion of Mr. Justice Harlan, see ante, p. 659.]
Presumably the predominant classroom language of the school she attended was other than English, and thus that element of § 4 (e) is satisfied. If the predominant classroom language had been English, and if she had successfully completed the sixth grade, then she would be entitled to vote under § 168 of the New York Election Law. See n. 2, in Katzenbach v. Morgan, ante.
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:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 06-1195.
Argued December 5, 2007
Decided June 12, 2008
Seth P. Waxman argued the cause for petitioners in both cases. With him on the briefs for petitioner Lakhdar Boumediene et al. in No. 06-1195 were Paul R. Q. Wolfson, Jonathan G. Cedarbaum, Douglas F. Curtis, Paul M. Winke, Stephen H. Oleskey, Robert C. Kirsch, Mark C. Fleming, and Pratik A. Shah. David J. Cynamon, Matthew J. MacLean, David H. Remes, and Marc D. Falkoff filed briefs for petitioner Khaled A. F. Al Odah et al. in No. 06-1196. Thomas B. Wilner, Neil H. Koslowe, George Brent Mickum IV, John J. Gibbons, Lawrence S. Lustberg, Michael Ratner, J. Wells Dixon, Shayana Kadidal, Mark S. Sullivan, Pamela Rogers Chepiga, Joseph Margulies, Erwin Chemerinsky, Baher Azmy, Kristine Huskey, Douglas J. Behr, and Clive Stafford Smith filed briefs for petitioner Jamil El-Banna et al. in No. 06-1196. William C. Kuebler, Rebecca Snyder, and Walter Dellinger filed a brief for Omar Khadr as respondent in No. 06-1196 under this Court’s Rule 12.6 in support of petitioners.
Former Solicitor General Clement argued the cause for respondents in both cases. With him on the brief were Acting Solicitor General Garre, Assistant Attorney General Keisler, Principal Deputy Associate Attorney General Katsas, Eric D. Miller, Douglas N. Letter, Robert M. Loeb, August E. Flentje, Pamela M. Stahl, and Jennifer Paisner.
Together with No. 06-1196, Al Odah, Next Friend of Al Odah, et al. v. United States et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal in both eases were filed for the American Bar Association by William H. Neukom and Sidney S. Rosdeitcher; for the American Civil Liberties Union et al. by Cecillia D. Wang, Lucas Guttentag, Steven R. Shapiro, Arthur H. Bryant, and Victoria W. Ni; for the Association of the Bar of the City of New York by Arthur F. Fergenson and David E. Nachman; for Canadian Parliamentarians and Professors of Law by William R. Stein and Scott H. Christensen; for the Cato Institute by Timothy Lynch; for the Coalition of Non-Governmental Organizations by Jonathan S. Franklin, Stephen M. McNabb, Sharon Bradford Franklin, and John W. Whitehead; for the Federal Public Defender for the Southern District of Florida by Paul M. Rashkind; for Former Federal Judges by Beth S. Brinkmann, Seth M. Galanter, Ketanji Brown Jackson, and Agnieszka M. Fryszman; for Former United States Diplomat Diego C. Asencio et al. by Douglass Cassel; for International Humanitarian Law Experts by Harrison J. Frahn IV and Beth Van Schaack; for Professors of Constitutional Law and Federal Jurisdiction by Margaret L. Sanner, Gerald L. Neuman, pro se, and Harold Hongju Koh, pro se; for Retired Military Officers by James C. Schroeder, Gary A. Isaac, and Philip Allen Lacovara; for Specialists in Israeli Military Law and Constitutional Law by Stephen J. Schulhofer, Charles T. Lester, Jr., John A. Chandler, and Avital Stadler; for the United Nations High Commissioner for Human Rights by Donald Francis Donovan, Catherine M. Amirfar, and William H. Taft V; for Salim Hamdan by Neal K. Katyal, Harry H. Schneider, Jr., Joseph M. McMillan, Laurence H. Tribe, Kevin K. Russell, and Charles Swift; and for United States Senator Arlen Specter, by Sen. Specter, pro se.
Briefs of amici curiae urging affirmance in both eases were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for Retired Generals and Admirals et al. by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae were filed in both cases for 383 United Kingdom and European Parliamentarians by Claude B. Stansbury; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, and Robert W. Ash; for Amnesty International et al. by Paul L. Hoffman and William J. Aceves; for the Commonwealth Lawyers Association by John Townsend Rich and Stephen J. Poliak; for Federal Courts and International Law Professors by David C. Vladeck; for Legal Historians by James Oldham, Michael J. Wishnie, and Jonathan Hafetz; for the National Institute of Military Justice by Jennifer S. Martinez, Ronald W. Meister, Stephen A. Saltzburg, and Arnon D. Siegel; and for Scholar Paul Finkelman et al. by David Overlock Stewart.
Andrew G. McBride filed a brief for the Foundation for Defense of Democracies et al. as amici curiae urging affirmance in No. 06-1195.
Briefs of amici curiae were filed in No. 06-1196 for International Law Scholars by Sarah H. Paoletti; and for the Juvenile Law Center et al. by Marsha L. Levick.
Justice Kennedy
delivered the opinion of the Court.
Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station at Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit.
Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, § 9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. § 2241(e), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.
I
Under the Authorization for Use of Military Force (AUMF), § 2(a), 115 Stat. 224, note following 50 U. S. C. §1541, the President is authorized “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
In Hamdi v. Rumsfeld, 542 U. S. 507 (2004), five Members of the Court recognized that detention of individuals who fought against the United States in Afghanistan “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” Id., at 518 (plurality opinion of O’Connor, J.); id., at 588-589 (Thomas, J., dissenting). After Hamdi, the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at Guantanamo were “enemy combatants,” as the Department defines that term. See App. to Pet. for Cert. in No. 06-1195, p. 81a. A later memorandum established procedures to implement the CSRTs. See App. to Pet. for Cert. in No. 06-1196, p. 147. The Government maintains these procedures were designed to comply with the due process requirements identified by the plurality in Hamdi. See Brief for Federal Respondents 10.
Interpreting the AUMF, the Department of Defense ordered the detention of these petitioners, and they were transferred to Guantanamo. Some of these individuals were apprehended on the battlefield in Afghanistan, others in places as far away from there as Bosnia and Gambia. All are foreign nationals, but none is a citizen of a nation now at war with the United States. Each denies he is a member of the al Qaeda terrorist network that carried out the September 11 attacks or of the Taliban regime that provided sanctuary for al Qaeda. Each petitioner appeared before a separate CSRT; was determined to be an enemy combatant; and has sought a writ of habeas corpus in the United States District Court for the District of Columbia.
The first actions commenced in February 2002. The District Court ordered the cases dismissed for lack of jurisdiction because the naval station is outside the sovereign territory of the United States. See Rasul v. Bush, 215 F. Supp. 2d 55 (2002). The Court of Appeals for the District of Columbia Circuit affirmed. See Al Odah v. United States, 321 F. 3d 1134, 1145 (2003). We granted certiorari and reversed, holding that 28 U. S. C. §2241 extended statutory habeas corpus jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473 (2004). The constitutional issue presented in the instant cases was not reached in Rasul. Id., at 476.
After Rasul, petitioners’ cases were consolidated and entertained in two separate proceedings. In the first set of cases, Judge Richard J. Leon granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas corpus action. In the second set of cases Judge Joyce Hens Green reached the opposite conclusion, holding the detainees had rights under the Due Process Clause of the Fifth Amendment. See Khalid v. Bush, 355 F. Supp. 2d 311,314 (DC 2005); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (DC 2005).
While appeals were pending from the District Court decisions, Congress passed the DTA. Subsection (e) of § 1005 of the DTA amended 28 U. S. C. § 2241 to provide that “no court, justice, or judge shall have jurisdiction to hear or consider..'. an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.” 119 Stat. 2742. Section 1005 further provides that the Court of Appeals for the District of Columbia Circuit shall have “exclusive” jurisdiction to review decisions of the CSRTs. Ibid.
In Hamdan v. Rumsfeld, 548 U. S. 557, 576-577 (2006), the Court held this provision did not apply to cases (like petitioners’) pending when the DTA was enacted. Congress responded by passing the MCA, 10 U. S. C. § 948a et seq., which again amended §2241. The text of the statutory amendment is discussed below. See Part II, infra. (Four Members of the Hamdan majority noted that “[n]othing prevented] the President from returning to Congress to seek the authority he believes necessary.” 548 U. S., at 636 (Breyer, J., concurring). The authority to which the concurring opinion referred was the authority to “create military commissions of the kind at issue” in the case. Ibid. Nothing in that opinion can be construed as an invitation for Congress to suspend the writ.)
Petitioners’ cases were consolidated on appeal, and the parties filed supplemental briefs in light of our decision in Hamdan. The Court of Appeals’ ruling, 476 F. 3d 981 (CADC 2007), is the subject of our present review and today’s decision.
The Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas corpus applications, id., at 987; that petitioners are not entitled to the privilege of the writ or the protections of the Suspension Clause, id., at 990-991; and, as a result, that it was unnecessary to consider whether Congress provided an adequate and effective substitute for habeas corpus in the DTA.
We granted certiorari. 551 U. S. 1160 (2007).
II
As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.
As amended by the terms of the MCA, 28 U. S. C. § 2241(e) now provides:
“(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
“(2) Except as provided in [§§ 1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”
Section 7(b) of the MCA provides the effective date for the amendment of § 2241(e). It states:
“The amendment made by [MCA §7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636.
There is little doubt that the effective date provision applies to habeas corpus actions. Those actions, by definition, are cases “which relate to... detention.” See Black’s Law Dictionary 728 (8th ed. 2004) (defining habeas corpus as “[a] writ employed to bring a person before a court, most frequently to ensure that the party’s imprisonment or detention is not illegal”). Petitioners argue, nevertheless, that MCA §7(b) is not a sufficiently clear statement of congressional intent to strip the federal courts of jurisdiction in pending cases. See Ex parte Yerger, 8 Wall. 85, 102-103 (1869). We disagree.
Their argument is as follows: Section 2241(e)(1) refers to “a writ of habeas corpus.” The next paragraph, § 2241(e)(2), refers to “any other action... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who... [has] been properly detained as an enemy combatant or is awaiting such determination.” There are two separate paragraphs, the argument continues, so there must be two distinct classes of cases. And the effective date subsection, MCA § 7(b), it is said, refers only to the second class of cases, for it largely repeats the language of § 2241(e)(2) by referring to “cases... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States.”
Petitioners’ textual argument would have more force were it not for the phrase “other action” in § 2241(e)(2). The phrase cannot be understood without referring back to the paragraph that precedes it, § 2241(e)(1), which explicitly mentions the term “writ of habeas corpus.” The structure of the two paragraphs implies that habeas actions are a type of action “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained... as an enemy combatant.” Pending habeas actions, then, are in the category of cases subject to the statute’s jurisdictional bar.
We acknowledge, moreover, the litigation history that prompted Congress to enact the MCA. In Hamdan the Court found it unnecessary to address the petitioner’s Suspension Clause arguments but noted the relevance of the clear statement rule in deciding whether Congress intended to reach pending habeas corpus cases. See 548 U. S., at 575 (Congress should “not be presumed to have effected such denial [of habeas relief] absent an unmistakably clear statement to the contrary”). This interpretive rule facilitates a dialogue between Congress and the Court. Cf. Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 206 (1991); H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1209-1210 (W. Eskridge & P. Prickey eds. 1994). If the Court invokes a clear statement rule to advise that certain statutory interpretations are favored in order to avoid constitutional difficulties, Congress can make an informed legislative choice either to amend the statute or to retain its existing text. If Congress amends, its intent must be respected even if a difficult constitutional question is presented. The usual presumption is that Members of Congress, in accord with their oath of office, considered the constitutional issue and determined the amended statute to be a lawful one; ¿nd the Judiciary, in light of that determination, proceeds to its own independent judgment on the constitutional question when required to do so in a proper case.
If this ongoing dialogue between and among the branches of Government is to be respected, we cannot ignore that the MCA was a direct response to Hamdan’s holding that the DTA’s jurisdiction-stripping provision had no application to pending cases. The Court of Appeals was correct to take note of the legislative history when construing the statute, see 476 F. 3d, at 986, n. 2 (citing relevant floor statements); and we agree with its conclusion that the MCA deprives the federal courts of jurisdiction to entertain the habeas corpus actions now before us.
Ill
In deciding the constitutional questions now presented we must determine whether petitioners are barred from seeking the writ or invoking the protections of the Suspension Clause either because of their status, i. e., petitioners’ designation by the Executive Branch as enemy combatants, or their physical location, i. e., their presence at Guantanamo Bay. The Government contends that noncitizens designated as enemy combatants and detained in territory located outside our Nation’s borders have no constitutional rights and no privilege of habeas corpus. Petitioners contend they do have cognizable constitutional rights and that Congress, in seeking to eliminate recourse to habeas corpus as a means to assert those rights, acted in violation of the Suspension Clause.
We begin with a brief account of the history and origins of the writ. Our account proceeds from two propositions. First, protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights. In the system conceived by the Framers the writ had a centrality that must inform proper interpretation of the Suspension Clause. Second, to the extent there were settled precedents or legal commentaries in 1789 regarding the extraterritorial scope of the writ or its application to enemy aliens, those authorities can be instructive for the present cases.
A
The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom. Experience taught, however, that the common-law writ all too often had been insufficient to guard against the abuse of monarchial power. That history counseled the necessity for specific language in the Constitution to secure the writ and ensure its place in our legal system.
Magna Carta decreed that no man would be imprisoned contrary to the law of the land. Art. 39, in Sources of Our Liberties 17 (R. Perry & J. Cooper eds. 1959) (“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land”). Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. Holdsworth tells us, however, that gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled. 9 W. Holds-worth, A History of English Law 112 (1926) (hereinafter Holdsworth).
The development was painstaking, even by the centuries-long measures of English constitutional history. The writ was known and used in some form at least as early as the reign of Edward I. Id., at 108-125. Yet at the outset it was used to protect not the rights of citizens but those of the King and his courts. The early courts were considered agents of the Crown, designed to assist the King in the exercise of his power. See J. Baker, An Introduction to English Legal History 38-39 (4th ed. 2002). Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 585 (2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)). Over time it became clear that by issuing the writ of habeas corpus common-law courts sought to enforce the King’s prerogative to inquire into the authority of a jailer to hold a prisoner. See M. Hale, Prerogatives of the King 229 (D. Yale ed. 1976); 2 J. Story, Commentaries on the Constitution of the United States § 1341, p. 237 (3d ed. 1858) (noting that the writ ran “into all parts of the king’s dominions; for it is said, that the king is entitled, at all times, to have an account, why the liberty of any of his subjects is restrained”).
Even so, from an early date it was understood that the King, too, was subject to the law. As the writers said of Magna Carta, “it means this, that the king is and shall be below the law.” 1 F. Pollock & F Maitland, History of English Law 173 (2d ed. 1909); see also 2 Bracton On the Laws and Customs of England 33 (S. Thorne transí. 1968) (“The king must not be under man but under God and under the law, because law makes the king”). And, by the 1600’s, the writ was deemed less an instrument of the King’s power and more a restraint upon it. See Collings, Habeas Corpus for Convicts — Constitutional Right or Legislative Grace, 40 Cal. L. Rev. 335, 336 (1952) (noting that by this point the writ was “the appropriate process for checking illegal imprisonment by public officials”).
Still, the writ proved to be an imperfect check. Even when the importance of the writ was well understood in England, habeas relief often was denied by the courts or suspended by Parliament. Denial or suspension occurred in times of political unrest, to the anguish of the imprisoned and the outrage of those in sympathy with them.
A notable example from this period was Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627). The events giving rise to the case began when, in a display of the Stuart penchant for authoritarian excess, Charles I demanded that Darnel and at least four others lend him money. Upon their refusal, they were imprisoned. The prisoners sought a writ of habeas corpus; and the King filed a return in the form of a warrant signed by the Attorney General. Ibid. The court held this was a sufficient answer and justified the subjects’ continued imprisonment. Id., at 59.
There was an immediate outcry of protest. The House of Commons promptly passed the Petition of Right, 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23, 24 (reprint 1963), which condemned executive “imprison[ment] without any cause” shown, and declared that “no freeman in any such manner as is before mencioned [shall] be imprisoned or deteined.” Yet a full legislative response was long delayed. The King soon began to abuse his authority again, and Parliament was dissolved. See W. Hall & R. Albion, A History of England and the British Empire 328 (3d ed. 1953) (hereinafter Hall & Albion). When Parliament reconvened in 1640, it sought to secure access to the writ by statute. The Act of 1640, 16 Car. 1, ch. 10, 5 Statutes of the Realm, at 110, expressly authorized use of the writ to test the legality of commitment by command or warrant of the King or the Privy Council. Civil strife and the Interregnum soon followed, and not until 1679 did Parliament try once more to secure the writ, this time through the Habeas Corpus Act of 1679, 31 Car. 2, ch. 2, id., at 935. The Act, which later would be described by Blackstone as the “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries *137 (hereinafter Blackstone), established procedures for issuing the writ; and it was the model upon which the habeas statutes of the 13 American Colonies were based, see Collings, supra, at 338-339.
This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power. The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty. See Loving v. United States, 517 U. S. 748, 756 (1996) (noting that “[e]ven before the birth of this country, separation of powers was known to be a defense against tyranny”); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (“[T]he Constitution diffuses power the better to secure liberty”); Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches seek to transgress the separation of powers”). Because the Constitution’s separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, see Yick Wo v. Hopkins, 118 U. S. 356,374 (1886), protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles, see, e. g., INS v. Chadha, 462 U. S. 919, 958-959 (1983).
That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, § 9, cl. 2; see Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425, 1509, n. 329 (1987) (“[T]he non-suspension clause is the original Constitution’s most explicit reference to remedies”). The word “privilege” was used, perhaps, to avoid mentioning some rights to the exclusion of others. (Indeed, the only mention of the term “right” in the Constitution, as ratified, is in its clause giving Congress the power to protect the rights of authors and inventors. See Art. I, § 8, cl. 8.)
Surviving accounts of the ratification debates provide additional evidence that the Framers deemed the writ to be an essential mechanism in the separation-of-powers scheme. In a critical exchange with Patrick Henry at the Virginia ratifying convention Edmund Randolph referred to the Suspension Clause as an “exception” to the “power given to Congress to regulate courts.” See 3 Debates in the Several State Conventions on the Adoption of the Federal Constitution 460-464 (J. Elliot 2d ed. 1876). A resolution passed by the New York ratifying convention made clear its understanding that the Clause not only protects against arbitrary suspensions of the writ but also guarantees an affirmative right to judicial inquiry into the causes of detention. See Resolution of the New York Ratifying Convention (July 26, 1788), in 1 id., at 328 (noting the convention’s understanding “[t]hat every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of habeas corpus”). Alexander Hamilton likewise explained that by providing the detainee a judicial forum to challenge detention, the writ preserves limited government. As he explained in The Federalist No. 84:
“[T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone... are well worthy of recital: 'To bereave a man of life... or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls 'the bulwark of the British Constitution.’ ” C. Rossiter ed., p. 512 (1961) (quoting 1 Blackstone *136, 4 id., at *438).
Post-1789 habeas developments in England, though not bearing upon the Framers’ intent, do verify their foresight. Those later events would underscore the need for structural barriers against arbitrary suspensions of the writ. Just as the writ had been vulnerable to executive and parliamentary encroachment on both sides of the Atlantic before the American Revolution, despite the Habeas Corpus Act of 1679, the writ was suspended with frequency in England during times of political unrest after 1789. Parliament suspended the writ for much of the period from 1792 to 1801, resulting in rampant arbitrary imprisonment. See Hall & Albion 550. Even as late as World War I, at least one prominent English jurist complained that the Defence of the Realm Act, 1914, 4 & 5 Geo. 5, ch. 29(l)(a), effectively had suspended the privilege of habeas corpus for any person suspected of “communicating with the enemy.” See King v. Halliday, [1917] A. C. 260, 299 (Lord Shaw, dissenting); see generally A. Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain 6-7, 24-25 (1992).
In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account. See Preiser v. Rodriguez, 411 U. S. 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody”); cf. In re Jackson, 15 Mich. 417, 439-440 (1867) (Cooley, J., concurring) (“The important fact to be observed in regard to the mode of procedure upon this [habeas] writ is, that it is directed to, and served upon, not the person confined, but his jailer”). The separation-of-powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.
B
The broad historical narrative of the writ and its function is central to our analysis, but we seek guidance as well from founding-era authorities addressing the specific question before us: whether foreign nationals, apprehended and detained in distant countries during a time of serious threats to our Nation’s security, may assert the privilege of the writ and seek its protection. The Court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ. See INS v. St. Cyr, 533 U. S. 289, 300-301 (2001). But the analysis may begin with precedents as of 1789, for the Court has said that “at the absolute minimum” the Clause protects the writ as it existed when the Constitution was drafted and ratified. Id., at 301.
To support their arguments, the parties in these cases have examined historical sources to construct a view of the common-law writ as it existed in 1789 — as have amici whose expertise in legal history the Court has relied upon in the past. See Brief for Legal Historians as Amici Curiae; see also St. Cyr, supra, at 302, n. 16. The Government argues the common-law writ ran only to those territories over which the Crown was sovereign. See Brief for Federal Respondents 27. Petitioners argue that jurisdiction followed the King’s officers. See Brief for Petitioner Boumediene et al. 11. Diligent search by all parties reveals no certain conclusions. In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control.
We know that at common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief. See, e. g., Sommersett’s Case, 20 How. St. Tr. 1, 80-82 (1772) (ordering an African slave freed upon finding the custodian’s return insufficient); see generally Khera v. Secretary of State for the Home Dept. [1984] A. C. 74, 111 (“Habeas corpus protection is often expressed as limited to ‘British subjects.’ Is it
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_othadmis
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Bobby HALLMAN, Appellant, v. UNITED STATES of America, Appellee.
No. 73-1736.
United States Court of Appeals, Eighth Circuit.
Submitted Dec. 14, 1973.
Decided Dec. 18, 1973.
Bobby Hallman, pro se.
Robert G. Renner, U. S. Atty., and Francis X. Herman, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.
The Honorable Talbot Smith, Senior Disrtict designation. Judge, Eastern District of Michigan, sitting by
PER CURIAM.
A jury found petitioner guilty of armed robbery of the First Plymouth National Bank, Minneapolis, Minnesota, in violation of 18 U.S.C. § 2113(a) and (d). The Honorable Earl R. Larson, United States District Judge, District of Minnesota, sentenced petitioner to 20 years imprisonment, and his conviction was upheld by this court. United States v. Hallman, 438 F.2d 94 (8th Cir. 1971). Petitioner filed this Section 2255 proceeding pursuant to 28 U.S.C. § 2255, seeking to vacate his sentence. Judge Larson denied relief without a hearing. This appeal followed.
Petitioner raises three arguments: (1) his conviction should be reversed since it was based on the purportedly perjured testimony of a Government witness, Mildred A. Miller, in conspiracy with a Government informer; (2) the District Court erred in admitting a photograph of defendant showing him with a prison identification number, which denied him a fair trial and forced him to testify in violation of the Fifth Amendment; and (3) the absence of blacks on the grand and petit juries constituted systematic racial discrimination in violation of the Due Process and Equal Protection Clauses. Rejecting these arguments, we affirm the District Court’s denial of habeas corpus relief.
Petitioner first claims that Mildred A. Miller, an employee of the bank and a Government witness, who identified petitioner, conspired with a Government informer, Tommy Floyd, “to frame” petitioner. Petitioner submitted a hearsay affidavit of Lolita Richardson to the District Court, which we have reviewed, stating that Miller perjured herself to revenge Floyd’s preference for Richardson’s affections. Petitioner claimed at the District Court and here that Richardson first told him on the alleged perjury while he was incarcerated pending our decision on the direct appeal, that the petitioner informed his attorney, and that his attorney informed the District Attorney of the purported perjury. The defendant does not argue that the prosecuting attorney knew of the alleged perjury at the time Miller testified.
In United States v. Holt, 303 F.2d 791, 794 (8th Cir.), cert, denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1962), we stated:
n order to vacate the judgment and sentence on such grounds, two elements must be established: first, the use of perjured testimony, and, second, knowledge by the prosecuting officials at the time the testimony was used that it was perjured, [emphasis added] [citations omitted].
Petitioner does not claim that the Government knew of the allegedly perjured testimony at the time Miller testified. Richardson, in her affidavit, does not state that she informed anyone at the time of the trial of the purported perjury by Miller. Assuming for the sake of this argument that Miller perjured herself, petitioner has not stated that the Government knew of the perjury at the time it was allegedly committed. He, therefore, is not entitled to relief on this issue.
In addition, Richardson’s affidavit should be viewed with appropriate skepticism. Richardson, fiancée of petitioner at the time of his trial, failed to come forward during trial with this information on the alleged perjury. With petitioner now found guilty, we are strained to believe the truth of Richardson’s belated, hearsay accusations concerning Miller's truthfulness. Further, we think, as did the District Court, that even if Miller’s testimony was totally discounted, there was substantial evidence from which the jury could have reached the same verdict. A bank teller, a bank bookkeeper, and a minister bank customer all identified petitioner as the bank robber. Another witness testified concerning petitioner’s possession of a large sum of money, which was proved to be the bank’s “bait” money. In this regard, Miller’s identification of petitioner was only cumulative evidence.
Second, petitioner claims that the admission of a photograph of himself showing a prison identification number denied him a fair trial, forced him to testify in violation of the Fifth Amendment, and was reversible error. The photograph had been used by the FBI for purposes of identification when interviewing witnesses immediately after the robbery. At trial, petitioner’s counsel during cross-examination asked Barbara A. Scott, a bank teller, about the photograph. On redirect examination, the Government had the photograph marked, and the District Court admitted it. No comment was made during trial concerning the prison identification number. Petitioner’s counsel at trial did not object to the admission of the photograph, and this issue was not raised on direct appeal. Defendant had not taken the stand at the time of the photograph’s admission.
Normally we would not review issues not timely raised on appeal. Glouser v. United States, 296 F.2d 853, 857-858 (8th Cir. 1961), cert, denied, 369 U.S. 825, 82 S.Ct. 840, 7 L.Ed.2d 789 (1962). However, since petitioner claims that his court-appointed attorney on direct appeal informed petitioner that this issue would be raised, since the issue was not raised, and since it merits discussion, we will consider it.
We think it would have been advisable for the photograph to have been admitted with the prison identification number blocked out. However, no objection was made, nor was this fact specifically called to the court’s attention. In fact, no one even commented on the identification number. However, the admission of the photograph was permissible to rehabilitate Scott’s testimony concerning the identification of the petitioner. Mullins v. United States, 487 F.2d 581, 589-590 (8th Cir., 1973).
Petitioner’s claims that the admission of the photograph forced him to take the stand in violation of the Fifth Amendment and that his character was improperly put in issue do not call for vacating his sentence. First, no objection was made at trial concerning the admission of the photograph and, in particular, the presence of the prison identification number. Second, we, as the District Court, are “not persuaded that [petitioner] took the stand for the purpose of offsetting the inference to be drawn from the markings on the photograph.” Third, no comment was made at trial concerning the prison identification number. We are convinced that the petitioner was not denied the substance of a fair trial, so as to demand relief on this issue. Glouser v. United States, 296 F.2d at 856.
Third, petitioner asserts that blacks were systematically excluded from the grand and petit juries in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The District Court held on this issue:
In the present case the jury was chosen pursuant to 28 U.S.C. § 1861 et seq. These Federal laws, in conjunction with the local court plan, provide for random selection of Federal jurors from the voting lists and voting cards throughout the State of Minnesota. Those chosen are anonymous to those administrators who carry out the selection process. Every four years following the national elections a new list of jurors is compiled, to keep the list current. Under this system it is not possible to say that there exists systematic exclusion of any race. On the contrary, the race of any potential juror is unknown at the time that person’s name is drawn for the master jury list. Petitioner has neither alleged nor demonstrated any statistical disparity between those minority persons qualified to be jurors and those minority persons who actually serve as jurors.
This statement fully responds to petitioner’s bare assertion that blacks were systematically excluded from the grand and petit juries.
Further, absent a showing of systematic exclusion of a class of qualified citizens, voter registration lists may be used as the only source of persons to serve on grand and petit juries. E. g., United States v. Parker, 428 F.2d 488, 489 (9th Cir.), cert, denied, 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970); United States v. Butera, 420 F.2d 564, 573 (1st Cir. 1970); Camp v. United States, 413 F.2d 419, 421 (5th Cir.), cert, denied, 396 U.S. 968, 90 S.Ct. 451, 24 L.Ed.2d 434 (1969); United States v. Kroncke, 321 F.Supp. 913, 914-916 (D.Minn.1970). The District Court’s explanation of the jury selection process in Minnesota dispels any question that any class of qualified citizens is systematically excluded from jury service.
The District Court's denial of relief is affirmed.
. Although the petitioner does not raise the issue that Richardson’s affidavit concerning Miller’s alleged perjury constitutes newly discovered evidence, we agree with the Government that such “evidence” cannot be grounds for reversal. This “evidence” would probably not produce an acquittal, and therefore a new trial should not be granted under these circumstances. United States v. McWilliams, 421 F.2d 1083, 1084-1085 (8th Cir.), cert, denied, 397 U.S. 1070, 90 S.Ct. 1515, 25 L.Ed.2d 694 (1970).
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appel1_7_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
UNITED STATES of America, Plaintiff-Appellee, v. Bruce Warren HOBSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Morton NEWMAN, Defendant-Appellant.
Nos. 74-2700, 74-2866.
United States Court of Appeals, Ninth Circuit.
June 26, 1975.
Rehearing and Rehearing En Banc Denied Sept. 10, 1975.
Certiorari Denied Nov. 3,1975.
See 96 S.Ct. 283.
Gordon D. Lapides (argued), San Francisco, Cal., for defendants-appellants.
David P. Bancroft, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., John D. O’Connor, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Before CHAMBERS and CARTER, Circuit Judges, and SCHWARTZ, District Judge.
Honorable Edward J. Schwartz, Chief Judge, United States District Court, Southern District of California, sitting by designation.
OPINION
JAMES M. CARTER, Circuit Judge.
Defendants Bruce Hobson and Morton Newman appeal from the judgments of conviction, following a jury trial, of harboring a prison escapee and fugitive from justice, being accessories after the fact, and conspiracy, in violation of 18 U.S.C. §§ 1072, 3, and 371 respectively. They allege numerous errors in their joint, six-week trial — errors pertaining to each individually and errors common to both. We affirm.
FACTS
The facts of this case concern the six-week period subsequent to the highly publicized October 6, 1972, “liberation” of Ronald W. Beaty from the California Institute for Men at Chino. Beaty had been serving federal time at the State facility pursuant to an Arizona federal district court twenty-year sentence for interstate transportation of kidnapped persons. While serving this sentence, Beaty joined a revoluntionary group called Venceremos and an escape plan was devised by Beaty and defendant Hobson’s mother (Jean Hobson), a member of the Venceremos Central Committee. Pursuant to this plan, Beaty was freed at gun point from a California State vehicle while enroute to San Ber-nardino County Superior Court for pretrial proceedings concerning his escape from Chino on another occasion.
After the escape, during which a guard was killed, Beaty fled to Northern California, to Arizona, and back to Northern California again before being apprehended while crossing the Oakland-San Francisco Bay Bridge. This case involves the efforts of Bruce Hobson and Morton Newman to aid and harbor Beaty during the month following his escape, all other defendants having been severed from the case before trial.
At trial, Beaty testified that immediately following his escape Hobson’s mother drove him to a house in Northern California (Los Altos). Shortly before daybreak the next morning, Hobson himself arrived at the house, helped load weapons into a car, and drove Beaty to a remote mountain cabin owned by Hob-son’s friends. There, Hobson and his mother guarded Beaty for about a month, furnishing him with a Colt.45 semi-automatic handgun, ammunition, civilian clothes, and false identification papers. During that period, Hobson and Beaty discussed where Beaty could be hidden in the future, problems concerning several other co-conspirators, whether or not to publicize Beaty’s membership in Venceremos, the role of Vencere-mos in the escape and flight efforts, and future plans for acts of violence.
At the end of the month, Hobson and his mother returned Beaty to a Palo Alto residence where, in answer to a phone call, defendant Newman arrived carrying a Colt.45 in a shoulder holster which he later gave to Beaty. Beaty and Newman (also a member of Venceremos) discussed plans for a “shoot out” with police in the event that the residence was taken. An arsenal of weapons was deployed at the various entrances and windows of the residence for this purpose. According to Beaty, Newman took a major part in these proceedings and stood guard over him (along with other co-conspirators) during the next four nights.
During this time, Newman and Beaty discussed the publicity generated by Beaty’s escape, the roles played by two other co-conspirators, Beaty’s prison experiences, their proposed future association as part of a direct action faction of Venceremos, recommendations by Newman of books on explosives, and the fact that the Colt.45 given to Beaty by Hob-son had belonged to Newman and was a “good piece.”
Hobson testified at trial that he had understood Beaty to be a Vietnam veteran who had a narcotics problem and wanted to get away for a while, and that he (Hobson) took a gun to the cabin just to have it there. Newman chose not to testify.
DISCUSSION
On appeal, Hobson and Newman jointly contend that: 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 3 (accessory after the fact) require the defendants’ scienter as to the distinctly federal nature of the offense committed by the person comforted and assisted; Beaty did not escape from “the custody of the Attorney General” as required by 18 U.S.C. § 1072 since Chino is a State correctional facility; and certain Vencere-mos Central Committee notes were improperly admitted into evidence against Hobson and even if properly admitted as to Hobson, necessitated Newman’s severance from the case or the giving of his proposed jury instruction.
In addition to their joint contentions, the defendants allege a number of prejudicial errors applicable only to one or the other. Hobson contends that: the admission into evidence of an entry from a suppressed diary for purposes of impeachment constituted prejudicial error; and the court’s supplemental jury instruction amended the grand jury indictment in violation of the Fifth Amendment. Newman contends that: the district court failed to adopt measures to protect him from the risk of transference of guilt, particularly in failing to instruct the jury as to the possibility that multiple conspiracies had been committed instead of the single large conspiracy charged in the indictment; and evidence seized from his house pursuant to an arrest warrant should have been suppressed. We treat these various contentions seriatim.
I.
JOINT CONTENTIONS (a)
Scienter as to the Federal Nature of the Offense Not Required Under 18 U.S.C. §§ 871 and 8
Both Hobson and Newman were convicted of being accessories after the fact, in violation of 18 U.S.C. § 3 which provides in part:
“Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact....”
They contend that in order for them to have violated the statute they must be shown to have known that Beaty’s escape (and shooting of the guard) constituted an offense against the United States. The district court rejected Hob-son’s proposed instruction to this effect and refused to grant a judgment of acquittal. The district court was correct in both rulings.
Beaty was clearly guilty of escape. He has been convicted and sentenced to life imprisonment for that escape. There is no requirement that he had to have known that he was committing a federal offense in escaping. See United States v. Fernandez, 497 F.2d 730, 736— 739 (9 Cir. 1974). It borders on the ridiculous to suggest that Hobson and Newman could be acquitted, despite knowledge that they were aiding Beaty in hiding from the authorities, because they thought he had only committed murder and escape from a State prison. In fact, the Supreme Court has recently rejected just such a contention with respect to a conspiracy prosecution. See United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The Court stated:
“The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency [here, the prison] affected.... The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.” Id. 95 S.Ct. at 1264.
In United States v. Howey, 427 F.2d 1017 (9 Cir. 1970), this court held that the language of 18 U.S.C. § 641, “Whoever... without authority, sells, conveys or disposes of any thing of value of the United States”, does not require knowledge that the property taken belongs to the United States. “The reason for including the requirement that the property, in fact, belongs to the Government was to state the foundation for federal jurisdiction. A defendant’s knowledge of the jurisdictional fact is irrelevant....” 427 F.2d at 1018.
Hobson contends, however, that How-ey is inapposite because it involved a principal rather than an accessory. This is essentially his same argument with respect to the conspiracy conviction under 18 U.S.C. § 371. But it is an argument rejected by the Supreme Court in Feola, supra: “The general conspiracy statute, 18 U.S.C. § 371, offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law.” 95 S.Ct. at 1265.
In the present case, the defendants intended to aid Beaty escape from the authorities. The fact that they may not have known the jurisdictional (federal) nature of his pursuers and his crime is irrelevant. To paraphrase the Court in Feola, “[i]n a case of this kind the [defendants take their escapee] as [they find] him.” Id. 95 S.Ct. at 1265.
(b)
An Escape from a Correctional Facility Designated by the Attorney General is an Escape from “the Custody of the Attorney General” Within the Meaning of 18 U.S.C. § 1072
The defendants next contend that no federal offense was in fact committed because Beaty escaped from Chino, a State prison, and not from “the custody of the Attorney General.” See 18 U.S.C. § 1072. They cite no cases directly supporting this contention, but rely primarily upon the fact that the language “or from any institution or facility in which he is confined by direction of the Attorney General” which appears in the escape statute itself, 18 U.S.C. § 751 has been omitted from the harboring statute, 18 U.S.C. § 1072.
However, the defendants have indicated. nothing in the legislative history or cases interpreting § 1072 which would suggest Congressional intent not to reach a situation such as that in the instant case where the escapee had been convicted of a federal offense, was specifically committed to “the custody of the Attorney General” by the order of Judgment and Commitment, and where the relevant federal statute provides that:
“A person convicted of an offense against the United States shall be committed... to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served.” 18 U.S.C. § 4082(a).
See also 18 U.S.C. § 4082(b) (“The Attorney General may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise”) (emphasis added).
In Tucker v. United States, 251 F.2d 794 (9 Cir. 1958), it was held that escape from a Los Angeles County General Hospital “Jail Unit” was an escape from the custody of the Attorney General, where United States Marshals had delivered the defendant to the Los Angeles County Sheriff’s Department in order to give testimony in a pending matter. The defendant had been serving a federal sentence at Alcatraz. And, in Frazier v. United States, 119 U.S.App.D.C. 246, 339 F.2d 745 (1964), the court held that escape from St. Elizabeth’s Hospital also constituted escape from the custody of the Attorney General. The court stated that “it is clear that the ‘custody’ intended is not limited to actual physical custody, but denotes a type of legal custody which remains in the Attorney General even though the prisoner is assigned to an institution over which the Department of Justice has no control.” Id. at 746. So also in the present case, we hold that escape from an institution designated by the Attorney General, pursuant to a commitment to his custody, under a federal sentence, is an escape from “the custody of the Attorney General” in the legal sense, even though the institution is run by the State.
(c)
The District Court Did Not Abuse Its Discretion Either in Admitting the Venceremos Central Committee Notes or in Failing to Permit Severance
Over the defendants’ objections, the district court admitted into evidence against Hobson a one-page note of the Central Committee of the Venceremos. The note approved Beaty’s escape and advocated making the escape and Beaty’s affiliation with Venceremos public to “bridge the gap between talk about revolutionary action... and actual revolutionary action. It succeeded and shows that actions can be taken.” Hobson contends that the prejudicial effect of the note far outweighed its evi-dentiary value (it was drafted by unidentified individuals after a meeting held outside of Hobson’s presence), that the evidence failed to conform to the offer of proof, and that since the notes “only” advocated publicity, their use against Hobson violated his First Amendment rights.
We conclude that the trial court did not abuse its discretion in holding that any unfair prejudice was outweighed by the probative value of the note. See Rule 403, Federal Rules of Evidence (effective July 1, 1975). A major part of the Government’s theory of the conspiracy was that all defendants, along with Beaty, were members of the Venceremos, that the Central Committee dictated the actions of the members who followed order in military fashion, and that the note indicated a Central Committee decision both to publicize and facilitate Beaty’s escape. The note was allegedly typed by Hobson’s mother, and was read and ratified by both him and Beaty in each other’s presence. Thus, the note was a reasonable link in the theory that Hobson was part of the Venceremos conspiracy, knew of the illegality of Beaty’s escape, and recognized that the authorities would be trying to recapture Beaty and that he was to help harbor and conceal Beaty on specific Venceremos Central Committee orders.
Since much of the clearly admissible testimony linked Hobson (and Newman) to the Venceremos, the prejudicial impact of the note was slight. And since Hobson ratified the content of the note, he cannot complain that it was not written by him.
Our reading of the record indicates that the note did not fail to conform to the offer of proof, but any such failure was totally insignificant and harmless.
Hobson’s First Amendment argument based upon United States v. Spock, 416 F.2d 165 (1 Cir. 1969), is misplaced. In that case, the entire conspiracy and prosecution (conspiracy to counsel, aid, and abet registrants to evade the draft) involved a mixture of protected and unprotected activity. Statements made by some third parties alleged to be co-conspirators were introduced against the defendants to show specific intent. Because of the mixture of protected and unprotected sentiments, the court stated: “The specific intent of one defendant in a case such as this is not ascertained by reference to the conduct or statements of another even though he has knowledge.” 416 F.2d at 173. The defendant’s specific intent to adhere to the illegal portions, however, may be shown “by the individual defendant’s prior or subsequent unambiguous statements; by [his] subsequent commission of the very illegal act contemplated by the agreement; or by [his] subsequent legal act if that act is ‘clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.’ ” Id.
In the present case, Hobson not only had knowledge of, but also specifically ratified the content of the note. He said on other occasions that he was aiding Beaty avoid recapture under specific Central Committee orders, and committed that on-going, specific illegal act for at least four days. Finally, the note goes beyond mere advocacy of publicizing the escape; it advocates the success of revolutionary action (Beaty’s escape), and indicates that the continued success (necessarily including avoidance of recapture) will encourage other revolutionary action. On all of the above grounds, Spock is just not on point.
Even assuming the admissibility of the note as to Hobson, however, Newman contends that since it was not admissible as to him, he should have been severed from the trial or the court should at least have instructed the jury at the end of the trial that the evidence was only admissible as to Hobson.
The issue of whether the court abused its discretion in failing to sever turns on the propriety of the court’s assessment of the jury’s ability to compartmentalize the evidence' against the defendants. See United States v. De LaRosa, 450 F.2d 1057, 1065 (3 Cir. 1971). Here, there were only two defendants on trial. There was no mention of Newman in the note, and in any event the court on two occasions, properly instructed the jury as to its limited admissibility. The relevation in the note of "Venceremos aims and thinking could not have prejudiced Newman to any great degree since he admitted (through Beaty) of being an active member, and his arsenal of weapons sufficiently demonstrated his willingness to engage in violence. In United States v. Ellsworth, 481 F.2d 864, 871 (9 Cir. 1973), the court rejected a similar contention with respect to certain admissions of co-defendants, not admissible as to the complaining defendant:
“The admissions made by the defendants pleading entrapment did not name or hint at the involvement of any other defendant. Any conceivable taint was removed when the district court carefully instructed the jury that these admissions could not be considered against any other defendant.”
See also United States v. Berlin, 472 F.2d 13, 16 (9 Cir. 1973).
The district court twice instructed the jury that the Central Committee note was admissible only as to Hobson and, at the end of the trial, that the jury should not only consider the evidence admitted with respect to each individual defendant in determining guilt or innocence. Newman’s contention that it was prejudicial error not to again instruct that the note was not to be considered with respect to Newman is without merit.
II.
HOBSON
(a)
The Entry From a Suppressed Diary Was Properly Admitted for Purposes of Impeachment
As part of the Government’s casein-chief, Beaty testified that Hobson had told him that he (Hobson) had gone to his friends’ (the Taulbees’) mountain cabin a few days before Beaty’s arrival to inspect it. This was elicited with respect to the charge that Hobson had conspired “with others” to harbor, conceal and assist Beaty. To refute this inference, Hobson took the stand and the following exchange took place between. Hobson and his counsel:
“Q. Let me ask you this. Did you ever make any prior contact or arrangements with Milton or Laura Taulbee before going to the cabin?
A. No.
Q. You did go up there and say, ‘Here we come and you be here when we arrive?
A. No.”
After receiving a negative response to his question of whether Hobson had made any prior arrangements or preparation at the cabin, the prosecutor on cross-examination introduced an entry in Hobson’s diary from the day before Beaty’s arrival, in order to impeach Hobson. Among other notations appeared the word “PREPARE”. The Government had previously stipulated that the diary would be treated as if a motion to suppress had been granted with respect to it. However, the Government contended, and the district court agreed, that it was still admissible (for purposes of impeachment) on cross-examination under Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954) and Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
Hobson contends that his answers on direct were solely defensive, merely denying the elements of the crime charged (conspiring to prepare the cabin to hide Beaty), and that in any event the diary entry was not directly contradictory evidence as required for impeachment purposes by Walder and United States v. Trejo, 501 F.2d 138 (9 Cir. 1974).
Trejo, supra, is distinguishable in that there the defendant only generally denied the crime charged. The court stated that “since the offered evidence does not focus on the truthfulness of a defendant’s direct testimony, we hold its introduction into evidence to be error.” 501 F.2d at 145. In the proceedings below, on the other hand, Hobson went beyond a mere general denial, also stating that he had made no prior preparations for Beaty’s arrival.
In any event, Hobson gave an uncontradicted account of what the word “PREPARE” meant, and it was a very minor piece of evidence in a six-week trial. The court specifically instructed the jury to consider it solely for impeachment. The error, if any, was harmless. See Trejo, supra, at 145.
(b)
The Supplemental Jury Instruction Did Not Impermissibly Amend the Grand Jury Indictment
Count III of the indictment provided that Hobson “did transport and... provide Ronald Wayne Beaty with quantities of food, men’s clothing and a Colt.45 caliber semi-automatic handgun.” (Emphasis added.) The jury evidently had a problem with respect to the gun, since the evidence at trial was that either Hobson gave Beaty a different gun, or that someone else had given Beaty the gun, although it originally came from Newman and Hob-son. After several inquiries on this matter by individual jurors, the court instructed that if all other allegations had been proved (including transporting Beaty), then proof beyond a reasonable doubt that Hobson furnished Beaty “with quantities of food or men’s clothing or a Colt.45 caliber semi-automatic handgun” would be sufficient. (Emphasis added.)
Hobson argues that the grand jury might have been willing to indict only if Hobson had furnished all of the above articles. Hence, the court’s instruction, changing the conjunctive in the indictment to the disjunctive in the instruction, requires reversal. We disagree.
Hobson’s argument is premised upon the holding of the Supreme Court in Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), that an amendment to the body of an indictment violates a defendant’s Fifth Amendment rights because there is no way of knowing whether the grand jury would have returned the indictment as amended if they had been given the opportunity. But in Salinger v. United States, 272 U.S. 542, 47 S.Ct. 173, 71 L.Ed. 398 (1926), the Court limited Bain to its facts, holding that it was proper for the trial court to withdraw from the jury all but one of a number of fraudulent schemes alleged in the indictment. Any suggestion that Bain might have continuing validity beyond its facts (actual and physical striking out of words on the face of the indictment), was recently laid to rest by the decision of this court in United States v. Dawson, 516 F.2d 796 (9 Cir. 1975).
The present case involves a slightly different problem than that in Salinger and Dawson, however. In those cases, the question was one of surplusage: the court removed all but one fraudulent scheme from jury consideration in Salinger and one of two bribery counts arising out of single bank robbery prosecution in Dawson. Therefore, conviction even on the amended indictment insured that the jury all agreed as to the remaining count. Hobson contends that in the case at bar each juror could have voted to convict With respect to a different act of furnishing, thereby precluding jury unanimity as to any one act.
Although this argument has surface appeal, its major premise is fatally undermined by Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610 (1970), where the Court stated: “The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive.. the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” The grand jury indictment in this case tracked the language of 18 U.S.C. § 1072 by charging Hobson with harboring and concealing Beaty by transporting him and by furnishing him food, clothing, and a gun. Either the transporting or any of the acts of furnishing would be sufficient to support conviction. Hobson admits that “there was little question as to the transportation, food and clothing.” Brief, at p. 39. The effect of the supplemental instruction, then was to permit the jury to convict without finding that Hobson also furnished a Colt.45 caliber handgun. Under Turner, supra, and the decisions in this Circuit, this was not improper. See, e. g., McGriff v. United States, 408 F.2d 333, 334 (9 Cir. 1969) (elements of the offense denounced dis-junctively in the statute, alleged con-junctively in the indictment; instruction to the jury in the disjunctive held proper).
III.
NEWMAN
(a)
The Court Adequately Protected Newman From the Risk of Guilt Transference
Newman alleges that the trial court did not take precautions adequate to protect him from the risk of “guilt by association,” particularly in refusing to instruct the jury as to the possibility that the Government had shown several conspiracies, rather than the one overall conspiracy charged in the indictment. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); Berger v. United States, 295 U.S. 78, 55 5. Ct. 629, 79 L.Ed. 1314 (1935).
The doctrine enunicated in Kotteakos and Berger, however, has been applied primarily in those cases where the evidence reveals the likelihood that one or more of the defendants did. not know or had not agreed to the overall goals of the other co-conspirators, e.g., where there was a conspiracy to import drugs and one defendant may not have known the drugs were imported when he later bought them. In the proceedings below, on the other hand, the evidence clearly indicated that Newman knew that Beaty was an escapee, that members of the Venceremos were responsible for the escape and subsequent concealment, that he was aiding in that concealment on orders from the Vencere-mos, and that Beaty planned to move from Los Altos with the help of other Venceremos members for the purpose of showing that revolutionary action was possible. The fact that he may not have known all of the purposes involved and all of the co-conspirators is irrelevant. Once a conspiracy is shown, only slight evidence is required to link any one defendant to the conspiracy. See United States v. Knight, 416 F.2d 1181 (9 Cir. 1969).
Under these circumstances, we conclude that the court’s instructions at the end of the trial, along with the instruction limiting the admissibility of the Central Committee note at the time it was introduced, were sufficient to protect against any risk of transference of guilt. In United States v. Ellsworth, 481 F.2d 864, 869 (9 Cir. 1978) the court stated:
“Ellsworth claims that the district court erred in not granting his motion for new trial on the ground of a fatal variance between the one general conspiracy charged in the indictment and the proof at trial of several distinct conspiracies. The defense stems from the decision in Kotteakos v. United States.
“The test here is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy; if so, there is a single conspiracy.... Although the proof of Ellsworth’s guilt was not strong, it was more than adequate to sustain a conviction, and such conviction carried with it the implied finding that, contrary to this testimony, Ellsworth knew or had reason to know of the existence of the charged conspiracy and its object. That Ells-worth may not have known the precise identities of the other principals is not relevant..
“To the extent that Ellsworth complains about ‘guilt by association,’ the district court obviated such problem through the giving of certain adequate cautionary instructions to the jury.”
The evidence of multiple conspiracies, lack of evidence of the defendant’s knowledge of the conspiracy, and opportunity for “guilt by association” in Ells-worth were all stronger than in the present case with respect to Newman. See also Blumenthal v. United States, 332 U.S. 539, 551-552 n.8 & 9, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Lane, 514 F.2d 22 (9 Cir. 1975).
(b)
The Court Properly Admitted Evidence Obtained From Newman’s Home Pursuant to an Arrest Warrant
Pursuant to an arrest warrant, Newman was arrested in his home and a search thereof was undertaken. Photographs of various weapons seized during this search were admitted against him at trial. He contends that the arrest warrant was issued without probable cause, that the arresting officer’s entry into the house was made without sufficient notice, that the ensuing search went beyond the limits imposed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and that even if legally seized, the photographs should have been stricken as evidence in the case after the court dismissed the counts to which the guns in the photographs related. We hold that the search and seizure were proper in all respects.
The existence of probable cause for the arrest was founded upon Beaty’s firsthand, eye-witness account of his escape and Newman’s help in concealing him and furnishing him with weapons and supplies, the fact that his (Beaty’s) declarations were against his penal interest, and the subsequent corroboration by the FBI affiant of the fact of the commission of the crime and details regarding the participants. This was clearly sufficient to justify the issuance of the warrant for Newman’s arrest. The narcotics cases cited by Newman involving unrevealed paid informers are not apposite. See Musgrove v. Eyman, 435 F.2d 1235, 1238 (9 Cir. 1971).
With respect to the entry, the officers banged loudly at Newman’s door and yelled, “FBI — Open the door.” They waited 10 to 30 seconds without response and then broke in the bedroom window to gain admittance. They had seen Newman and at least one other individual in the house as they approached. This observation was coupled with their knowledge that Beaty and others had shot and killed an unarmed guard during his escape, and that Newman had allegedly supplied Beaty with weapons and possessed a small arsenal himself. Furthermore, Newman had allegedly been part of a plan to use machine guns and hand grenades on the authorities if they had tried to arrest Beaty while in the Los Altos house — and Newman had himself inspected all of the various weapons.
With all of this in mind, the officers would have been foolhardy to wait any longer than they did. On virtually identical facts (but without prior knowledge that an arsenal of weapons and an expert with respect thereto was inside) the entry in United States v. Allende, 486 F.2d 1351, 1353 (9 Cir. 1973), was upheld. This is therefore an even stronger case for upholding the entry.
Once inside the house, the officers found a number of weapons in “plain view” in various rooms of the house. Newman contends that searches of a house in which an arrest has been made are limited by Chimel, supra, to the area within which the arrested person might have obtained either a weapon or something that could have been used against the officer.
Chimel was intended to prevent officers from using an arrest as a pretext for ransacking a defendant’s house in the search for evidence. Clearly, where the house is reputed to contain an arsenal of weapons and people who know how to use them and have expressed an intent to do so, some protective measures are in order. In the present case, the officers found two persons in the house in addition to Newman. Weapons were lying around in almost every room in plain view. It was entirely proper to quickly search each room for additional persons and weapons. See United States v. Mulligan, 488 F.2d 732, 734-735 (9 Cir. 1973); United States v. Sellers, 17 Cr.L. Rptr. 2085 (4 Cir. April 10, 1975); United States v. Briddle, 436 F.2d 4, 6 (8 Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971).
Finally, Newman contends that the admissibility of the photograph of the two guns seized at his house was dependent upon counts dismissed by the trial court; since no longer relevant, the evidence should have been stricken. The court did not abuse its discretion in holding that the evidence was relevant as to the remaining counts. The test of relevancy, derived from the common law but stated accurately in Rule 401, Federal Rules of Evidence (effective July 1, 1975), is “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” This test was met with respect to the remaining counts in the present case.
Having decided all of the defendants’ contentions on appeal against them, the judgments of conviction are
Affirmed.
. 18 U.S.C. § 751 provides in part:
“Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General. shall... be fined not more than $5,000 or imprisoned not more than five years, or both....”
. 18 U.S.C. § 1072 provides:
“Whoever willfully harbors or conceals any prisoner after his escape from the custody of the Attorney General or from a Federal penal or correctional institution, shall be imprisoned not more than three years.”
. We also note that the defendants’ interpretation of § 1072 would reduce the language “or from a Federal penal or correctional institution” to mere surplusage. The rule of statutory construction that Congress will not be presumed to have done a useless, ineffective, or absurd thing, see, e.g., Pennsylvania v. Nelson, 350 U.S. 497, 509-510, 76 S.Ct. 477, 100 L.Ed. 640 (1956), supports the conclusion that “the custody of the Attorney General” was intended to include correctional institutions in addition to Federal institutions.
. The note reads in part:
“CC meeting, second week of October.
1. Ronald Beaty
The general line of the organization on his escape is that the action was right on. The question arose, should we make a big public thing about his being in Venceremos.
“The arguments for far outweigh the arguments against. This was a real example of the politics we stand for, and it bridges the gap between talk about revolutionary action, especially regarding prison work, and actual revolutionary action. It succeeded and shows that actions can be taken.”
. The Fifth Amendment guarantees that in federal criminal cases “[n]o person shall be held to
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - torts - other personal injury. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
MARTIN et al. v. RUTLAND COURT OWNERS, Inc.
No. 9644.
United States Court of Appeals District of Columbia Circuit.
Argued May 14, 1948.
Decided Oct. 18, 1948.
Mr. Arthur G. Lambert, of Washington, D. C., with whom Mr. George L. Hart, Jr., of Washington, D. C., was on the brief, for appellants.
Mr. Howard Boyd, of Washington, D. C., with whom Mr. Edward B. Williams, of Washington, D. C., was on the brief, for appellee.
Before WILBUR K. MILLER, PROCTOR, and GRONER, Circuit Judges.
WILBUR K. MILLER, Circuit Judge.
Mrs. Clotilde White leased to Chester Martin her individually owned unit in a cooperative apartment building in the District of Columbia. Martin and his family moved in on Saturday, August 18, 1945. When he came home from work the following Monday afternoon, he could not open the front door of his apartment. The janitor, whom he called, succeeded in opening it after a few minutes of effort. Binding or sticking at the bottom had caused the difficulty and Martin told the janitor the condition should be corrected.
As Mrs. Martin left the apartment Tuesday morning, she twice tried unsuccessfully to close the door from the outside. When she pulled a third time, the knob came off and she fell in the outer hall and broke her hip.
The Martins sued in the District Court of the United States for the District of Columbia to recover $60,000 from Mrs. White and from Rutland Court Owners, Inc., the corporation which held legal title to the building, issued certificates of ownership and right of occupancy to purchasers of apartments, and generally managed and operated the property. Mrs. White, being out of the country, was not served with process, so the litigation proceeded against the corporation alone.
It was alleged in the complaint that the front door of the apartment “was defective in that it could not be closed or opened without applying undue pressure and that there was difficulty in locking and unlocking the door and in turning the latch.” Negligence was charged -in two forms: first, in failing to repair after notice of a defective condition; second, in undertaking to repair but doing it so negligently as to cause the injury. The court declined to submit the first issue, holding it was not the defendant’s duty to make the repair. On the second issue the jury found for the defendant.
The plaintiff is here as appellant, seeking a reversal on the sole ground that the court erred in ruling the defendant had no duty to make the repair.
Appellee was not the landlord of the appellant, Mártin, and had no contraer tual relation with him. Assuming, without deciding, that the corporation owed him, as Mrs. White’s tenant, the same, duty it owed to her, we find no obligation upon the appellee to make repairs such as that involved here. In the contract between the appellee and Mrs. White, she agreed to “properly maintain, care for and improve” her own apartment. Appellee agreed only “to maintain and operate” the building for the use and benefit of all the cooperative owners. The District Court’s ruling was correct.
Affirmed.
Question: What is the second general issue in the case, other than economic activity and regulation - torts - other personal injury?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_caseoriginstate
|
57
|
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.
BECKLEY NEWSPAPERS CORP. v. HANKS.
No. 467.
Decided November 6, 1967.
Thurman Arnold and Jack A. Mann for petitioner.
Harry O. Camper, Jr., for respondent.
Per Curiam.
The petition for certiorari is granted.
Respondent Hanks is the elected Clerk of the Criminal and Circuit Courts of Raleigh County, West Virginia. He brought this libel action in the West Virginia Circuit Court, Wyoming County, alleging that during his reelection campaign he was libeled by three editorials, highly critical of his official conduct, which appeared in petitioner’s morning newspaper. The jury returned a verdict for respondent and awarded him $5,000 damages. The State Supreme Court of Appeals denied petitioner's application for appellate review.
Although this action was tried subsequent to the decisions of this Court in New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S. 64 (1964); Henry v. Collins, 380 U. S. 356 (1965); and Rosenblatt v. Baer, 383 U. S. 75 (1966), and despite the fact that it was recognized at trial that the principles of New York Times were applicable, the case went to the jury on instructions which were clearly impermissible. The jury was instructed in part that it could find for the respondent if it were shown that petitioner had published the editorials “with bad or corrupt motive,” or “from personal spite, ill will or a desire to injure plaintiff.” Because petitioner failed to object to this erroneous interpretation of New York Times at trial, and in fact offered instructions which were themselves inadequate, the issue of these instructions is not before us. However, since it is clear that the jury verdict was rendered upon instructions which misstated the law and since petitioner has properly challenged the sufficiency of the evidence, we have undertaken an independent examination of the record as a whole “so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, supra, at 285. See Curtis Publishing Co. v. Butts, 388 U. S. 130, 156-159 (1967) (opinion of Mb. Justice Harlan); id., at 168-170 (opinion of The Chief Justice).
In New York Times we held that the Constitution forbids recovery of damages in a civil libel action by a public official, such as respondent, “for a defamatory falsehood relating to his offioial 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 TJ. S., at 279-280. Our examination of the whole record satisfies us that “the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands . . . .” 376 U. S., at 285-286.
We put aside the question whether the proofs show that the allegedly libelous statements were false. If false, respondent did not and does not contend that petitioner published the statements with knowledge of their falsity. His contention was and is that the proofs were sufficient for the jury to find that petitioner published the statements with reckless disregard of whether they were false or not. However, virtually the only evidence we find bearing on that question relates to one of the editorials critical of the opposition of respondent and another public official, Mrs. Elinor Hurt, president of the county board of health, to fluoridation of the local water supply. That editorial, captioned “The Fluoridation Situation Remains Unchanged,” was directed primarily at Mrs. Hurt’s opposition but also included the following:
“Here, again, [Mrs. Hurt] seems to want to follow in the footsteps of Hanks. For it was Hanks who ordered over the telephone once that he did not want his name to appear in the Beckley Post-Herald again. He backed up this order with an inexplicit threat — one merely intended to frighten those who are easily intimidated.
“The only conclusion to which we can come is that either Hanks and Mrs. Hurt have been in league toward the fanatic end, believing all the wild-eyed ravings against fluoridation despite decades of experience to disprove them, or that perhaps his blustering threats were able to intimidate the lady.” (Emphasis added.)
Respondent’s argument is that since both he and Mrs. Hurt testified and denied any threats or intimidation, the following testimony of petitioner’s president and general manager on cross-examination provides “convincing proof” of the absence of prior investigation which entitled the jury to find that the “offending charges” were published with reckless disregard of whether they were false or true:
“Q. But you can’t tell this jury that any specific investigation was made before this man was attacked in any of these articles, can you?
“A. We watch the activities of the public servant. You don’t have to make an investigation. His whole life is out in front of everybody.
“Q. Those editorials were not written by anybody who wanted to find out whether or not he threatened Mrs. Hurt, were they?
“A. There was cause on their part to feel there was that possibility.
“Q. That possibility?
“A. That’s right. ‘Perhaps,’ they said.
“A. It was our opinion that that was as near the facts and truth as we could get.” (Tr. 121-122.)
We reject respondent’s contention. Neither this passage nor anything else in the record reveals “the high degree of awareness of . . . probable falsity demanded by New York Times . . . .” Garrison v. Louisiana, 379 U. S. 64, 74; it cannot be said on this record that any failure of petitioner to make a prior investigation constituted proof sufficient to present a jury question whether the statements were published with reckless disregard of whether they were false or not. Cf. New York Times Co. v. Sullivan, supra, at 287-288; Time, Inc. v. Hill, 385 U. S. 374, 388-389 (1967). See also Curtis Publishing Co. v. Butts, supra, at 153-154 (opinion of Mr. Justice Harlan).
The judgment is reversed, and the case remanded to the Circuit Court of West Virginia, Wyoming County, for further proceedings not inconsistent with this opinion.
It is so ordered.
When asked whether she had ever brought suit against petitioner for these or other statements, Mrs. Hurt replied, “No, sir, I have big broad shoulders.” (Tr. 49.)
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:
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sc_casedisposition
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
UNITED STATES v. SALERNO et al.
No. 86-87.
Argued January 21, 1987
Decided May 26, 1987
Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 755. Stevens, J., filed a dissenting opinion, post, p. 767.
Solicitor General Fried argued the cause for the United States. With him on the briefs were Assistant Attorney General Weld, Deputy Solicitor General Bryson, Jeffrey P. Minear, Samuel Rosenthal, and Maury S. Epner.
Anthony M. Cardinale argued the cause for respondents. With him on the brief was Kimberly Homan
Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by Jon May and Mark King Leban; and for the Public Defender Service by Cheryl M. Long, James Klein, and David A. Reiser.
Briefs of amici curiae were filed for the American Bar Association by Eugene C. Thomas, Charles G. Cole, and David A. Schlueter; for the American Civil Liberties Union et al. by William J. Genego, Dennis E. Curtis, Mark Rosenbaum, Paul Hoffman, Richard Emery, Martin Guggenheim, Alvin Bronstein, and David Goldstein; and for Howard Perry by Allen N. Brunwasser.
Chief Justice Rehnquist
delivered the opinion of the Court.
The Bail Reform Act of 1984 (Act) allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions “will reasonably assure . . . the safety of any other person and the community.” The United States Court of Appeals for the Second Circuit struck down this provision of the Act as facially unconstitutional, because, in that court’s words, this type of pretrial detention violates “substantive due process.” We granted certiorari because of a conflict among the Courts of Appeals regarding the validity of the Act. 479 U. S. 929 (1986). We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. We therefore reverse.
r — 4
Responding to “the alarming problem of crimes committed by persons on release,” S. Rep. No. 98-225, p. 3 (1983), Congress formulated the Bail Reform Act of 1984, 18 U. S. C. §3141 et seq. (1982 ed., Supp. III), as the solution to a bail crisis in the federal courts. The Act represents the National Legislature’s considered response to numerous perceived deficiencies in the federal bail process. By providing for sweeping changes in both the way federal courts consider bail applications and the circumstances under which bail is granted, Congress hoped to “give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released.” S. Rep. No. 98-225, at 3.
To this end, § 3141(a) of the Act requires a judicial officer to determine whether an arrestee shall be detained. Section 3142(e) provides that “[i]f, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, he shall order the detention of the person prior to trial.” Section 3142(f) provides the arrestee with a number of procedural safeguards. He may request the presence of counsel at the detention hearing, he may testify and present witnesses in his behalf, as well as proffer evidence, and he may cross-examine other witnesses appearing at the hearing. If the judicial officer finds that no conditions of pretrial release can reasonably assure the safety of other persons and the community, he must state his findings of fact in writing, § 3142(i), and support his conclusion with “clear and convincing evidence,” § 3142(f).
The judicial officer is not given unbridled discretion in making the detention determination. Congress has specified the considerations relevant to that decision. These factors include the nature and seriousness of the charges, the substan-tiality of the Government’s evidence against the arrestee, the arrestee’s background and characteristics, and the nature and seriousness of the danger posed by the suspect’s release. § 3142(g). Should a judicial officer order detention, the detainee is entitled to expedited appellate review of the detention order. §§ 3145(b), (c).
Respondents Anthony Salerno and Vincent Cafaro were arrested on March 21,1986, after being charged in a 29-count indictment alleging various Racketeer Influenced and Corrupt Organizations Act (RICO) violations, mail and wire fraud offenses, extortion, and various criminal gambling violations. The RICO counts alleged 35 acts of racketeering activity, including fraud, extortion, gambling, and conspiracy to commit murder. At respondents’ arraignment, the Government moved to have Salerno and Cafaro detained pursuant to § 3142(e), on the ground that no condition of release would assure the safety of the community or any person. The District Court held a hearing at which the Government made a detailed proffer of evidence. The Government’s case showed that Salerno was the “boss” of the Genovese crime family of La Cosa Nostra and that Cafaro was a “captain” in the Genovese family. According to the Government’s proffer, based in large part on conversations intercepted by a court-ordered wiretap, the two respondents had participated in wide-ranging conspiracies to aid their illegitimate enterprises through violent means. The Government also offered the testimony of two of its trial witnesses, who would assert that Salerno personally participated in two murder conspiracies. Salerno opposed the motion for detention, challenging the credibility of the Government’s witnesses. He offered the testimony of several character witnesses as well as a letter from his doctor stating that he was suffering from a serious medical condition. Cafaro presented no evidence at the hearing, but instead characterized the wiretap conversations as merely “tough talk.”
The District Court granted the Government’s detention motion, concluding that the Government had established by clear and convincing evidence that no condition or combination of conditions of release would ensure the safety of the community or any person:
“The activities of a criminal organization such as the Genovese Family do not cease with the arrest of its principals and their release on even the most stringent of bail conditions. The illegal businesses, in place for many years, require constant attention and protection, or they will fail. Under these circumstances, this court recognizes a strong incentive on the part of its leadership to continue business as usual. When business as usual involves threats, beatings, and murder, the present danger such people pose in the community is self-evident.” 631 F. Supp. 1364, 1375 (SDNY 1986).
Respondents appealed, contending that to the extent that the Bail Reform Act permits pretrial detention on the ground that the arrestee is likely to commit future crimes, it is unconstitutional on its face. Over a dissent, the United States Court of Appeals for the Second Circuit agreed. 794 F. 2d 64 (1986). Although the court agreed that pretrial detention could be imposed if the defendants were likely to intimidate witnesses or otherwise jeopardize the trial process, it found “§ 3142(e)’s authorization of pretrial detention [on the ground of future dangerousness] repugnant to the concept of substantive due process, which we believe prohibits the total deprivation of liberty simply as a means of preventing future crimes.” Id., at 71-72. The court concluded that the Government could not, consistent with due process, detain persons who had not been accused of any crime merely because they were thought to present a danger to the community. Id., at 72, quoting United States v. Melendez-Carrion, 790 F. 2d 984, 1000-1001 (CA2 1986) (opinion of Newman, J.). It reasoned that our criminal law system holds persons accountable for past actions, not anticipated future actions. Although a court could detain an arrestee who threatened to flee before trial, such detention would be permissible because it would serve the basic objective of a criminal system— bringing the accused to trial. The court distinguished our decision in Gerstein v. Pugh, 420 U. S. 103 (1975), in which we upheld police detention pursuant to arrest. The court construed Gerstein as limiting such detention to the “ ‘administrative steps incident to arrest.’ ” 794 F. 2d, at 74, quoting Gerstein, supra, at 114. The Court of Appeals also found our decision in Schall v. Martin, 467 U. S. 253 (1984), upholding postarrest, pretrial detention of juveniles, inapposite because juveniles have a lesser interest in liberty than do adults. The dissenting judge concluded that on its face, the Bail Reform Act adequately balanced the Federal Government’s compelling interests in public safety against the detainee’s liberty interests.
II
A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment. Schall v. Martin, supra, at 269, n. 18. We think respondents have failed to shoulder their heavy burden to demonstrate that the Act is “facially” unconstitutional.
Respondents present two grounds for invalidating the Bail Reform Act’s provisions permitting pretrial detention on the basis of future dangerousness. First, they rely upon the Court of Appeals’ conclusion that the Act exceeds the limitations placed upon the Federal Government by the Due Process Clause of the Fifth Amendment. Second, they contend that the Act contravenes the Eighth Amendment’s proscription, against excessive bail. We treat these contentions in turn.
A
The Due Process Clause of the Fifth Amendment provides that “No person shall... be deprived of life, liberty, or property, without due process of law . . . .” This Court has held that the Due Process Clause protects individuals against two types of government action. So-called “substantive due process” prevents the government from engaging in conduct that “shocks the conscience,” Rochin v. California, 342 U. S. 165, 172 (1952), or interferes with rights “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U. S. 319, 325-326 (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v. Eldridge, 424 U. S. 319, 335 (1976). This requirement has traditionally been referred to as “procedural” due process.
Respondents first argue that the Act violates substantive due process because the pretrial detention it authorizes constitutes impermissible punishment before trial. See Bell v. Wolfish, 441 U. S. 520, 535, and n. 16 (1979). The Government, however, has never argued that pretrial detention could be upheld if it were “punishment.” The Court of Appeals assumed that pretrial detention under the Bail Reform Act is regulatory, not penal, and we agree that it is.
As an initial matter, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. Bell v. Wolfish, supra, at 537. To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. Schall v. Martin, 467 U. S., at 269. Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns 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].’” Ibid., quoting Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168-169 (1963).
We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. See S. Rep. No. 98-225, at 8. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. Id., at 4-7. There is no doubt that preventing danger to the community is a legitimate regulatory goal. Schall v. Martin, supra.
Nor are the incidents of pretrial detention excessive in relation to the regulatory goal Congress sought to achieve. The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes. See 18 U. S. C. § 3142(f) (detention hearings available if case involves crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders). The arrestee is entitled to a prompt detention hearing, ibid., and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act. See 18 U. S. C. §3161 et seq. (1982 ed. and Supp. III). Moreover, as in Schall v. Martin, the conditions of confinement envisioned by the Act “appear to reflect the regulatory purposes relied upon by the” Government. 467 U. S., at 270. As in Schall, the statute at issue here requires that detainees be housed in a “facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal.” 18 U. S. C. § 3142(i)(2). We conclude, therefore, that the pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.
The Court of Appeals nevertheless concluded that “the Due Process Clause prohibits pretrial detention on the ground of danger to the community as a regulatory measure, without regard to the duration of the detention.” 794 F. 2d, at 71. Respondents characterize the Due Process Clause as erecting an impenetrable “wall” in this area that “no governmental interest — rational, important, compelling or otherwise — may surmount.” Brief for Respondents 16.
We do not think the Clause lays down any such categorical imperative. We have repeatedly held that the Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest. For example, in times of war or insurrection, when society’s interest is at its peak, the Government may detain individuals whom the Government believes to be dangerous. See Ludecke v. Watkins, 335 U. S. 160 (1948) (approving un-reviewable executive power to detain enemy aliens in time of war); Moyer v. Peabody, 212 U. S. 78, 84-85 (1909) (rejecting due process claim of individual jailed without probable cause by Governor in time of insurrection). Even outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons. Thus, we have found no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings. Carlson v. Landon, 342 U. S. 524, 537-542 (1952); Wong Wing v. United States, 163 U. S. 228 (1896). We have also held that the government may detain mentally unstable individuals who present a danger to the public, Addington v. Texas, 441 U. S. 418 (1979), and dangerous defendants who become incompetent to stand trial, Jackson v. Indiana, 406 U. S. 715, 731-739 (1972); Greenwood v. United States, 350 U. S. 366 (1956). We have approved of postarrest regulatory detention of juveniles when they present a continuing danger to the community. Schall v. Martin, supra. Even competent adults may face substantial liberty restrictions as a result of the operation of our criminal justice system. If the police suspect an individual of a crime, they may arrest and hold him until a neutral magistrate determines whether probable cause exists. Gerstein v. Pugh, 420 U. S. 103 (1975). Finally, respondents concede and the Court of Appeals noted that an arrestee may be incarcerated until trial if he presents a risk of flight, see Bell v. Wolfish, 441 U. S., at 534, or a danger to witnesses.
Respondents characterize all of these cases as exceptions to the “general rule” of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial. Such a “general rule” may freely be conceded, but we think that these cases show a sufficient number of exceptions to the rule that the congressional action challenged here can hardly be characterized as totally novel. Given the well-established authority of the government, in special circumstances, to restrain individuals’ liberty prior to or even without criminal trial and conviction, we think that the present statute providing for pretrial detention on the basis of dangerousness must be evaluated in precisely the same manner that we evaluated the laws in the cases discussed above.
The government’s interest in preventing crime by arrest-ees is both legitimate and compelling. De Veau v. Braisted, 363 U. S. 144, 155 (1960). In Schall, supra, we recognized the strength of the State’s interest in preventing juvenile crime. This general concern with crime prevention is no less compelling when the suspects are adults. Indeed, “[t]he harm suffered by the victim of a crime is not dependent upon the age of the perpetrator.” Schall v. Martin, supra, at 264-265. The Bail Reform Act of 1984 responds to an even more particularized governmental interest than the interest we sustained in Schall. The statute we upheld in Schall permitted pretrial detention of any juvenile arrested on any charge after a showing that the individual might commit some undefined further crimes. The Bail Reform Act, in contrast, narrowly focuses on a particularly acute problem in which the Government interests are overwhelming. The Act operates only on individuals who have been arrested for a specific category of extremely serious offenses. 18 U. S. C. § 3142(f). Congress specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest. See S. Rep. No. 98-225, at 6-7. Nor is the Act by any means a scattershot attempt to incapacitate those who are merely suspected of these serious crimes. The Government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person. 18 U. S. C. § 3142(f). While the Government’s general interest in preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society’s interest in crime prevention is at its greatest.
On the other side of the scale, of course, is the individual’s strong interest in liberty. We do not minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society. We think that Congress’ careful delineation of the circumstances under which detention will be permitted satisfies this standard. When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat. Under these circumstances, we cannot categorically state that pretrial detention “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934).
Finally, we may dispose briefly of respondents’ facial challenge to the procedures of the Bail Reform Act. To sustain them against such a challenge, we need only find them “adequate to authorize the pretrial detention of at least some [persons] charged with crimes,” Schall, supra, at 264, whether or not they might be insufficient in some particular circumstances. We think they pass that test. As we stated in Schall, “there is nothing inherently unattainable about a prediction of future criminal conduct.” 467 U. S., at 278; see Jurek v. Texas, 428 U. S. 262, 274 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 279 (White, J., concurring in judgment).
Under the Bail Reform Act, the procedures by which a judicial officer evaluates the likelihood of future dangerousness are specifically designed to further the accuracy of that determination. Detainees have a right to counsel at the detention hearing. 18 U. S. C. § 3142(f). They may testify in their own behalf, present information by proffer or otherwise, and cross-examine witnesses who appear at the hearing. Ibid. The judicial officer charged with the responsibility of determining the appropriateness of detention is guided by statutorily enumerated factors, which include the nature and the circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender, and the danger to the community. § 3142(g). The Government must prove its case by clear and convincing evidence. § 3142(f). Finally, the judicial officer must include written findings of fact and a written statement of reasons for a decision to detain. § 3142(i). The Act’s review provisions, § 3145(c), provide for immediate appellate review of the detention decision.
We think these extensive safeguards suffice to repel a facial challenge. The protections are more exacting than those we found sufficient in the juvenile context, see Schall, supra, at 275-281, and they far exceed what we found necessary to effect limited postarrest detention in Gerstein v. Pugh, 420 U. S. 103 (1975). Given the legitimate and compelling regulatory purpose of the Act and the procedural protections it offers, we conclude that the Act is not facially invalid under the Due Process Clause of the Fifth Amendment.
B
Respondents also contend that the Bail Reform Act violates the Excessive Bail Clause of the Eighth Amendment. The Court of Appeals did not address this issue because it found that the Act violates the Due Process Clause. We think that the Act survives a challenge founded upon the Eighth Amendment.
The Eighth Amendment addresses pretrial release by providing merely that “[ejxcessive bail shall not be required.” This Clause, of course, says nothing about whether bail shall be available at all. Respondents nevertheless contend that this Clause grants them a right to bail calculated solely upon considerations of flight. They rely on Stack v. Boyle, 342 U. S. 1, 5 (1951), in which the Court stated that “[bjail set at a figure higher than an amount reasonably calculated [to ensure the defendant’s presence at trial] is ‘excessive’ under the Eighth Amendment.” In respondents’ view, since the Bail Reform Act allows a court essentially to set bail at an infinite amount for reasons not related to the risk of flight, it violates the Excessive Bail Clause. Respondents concede that the right to bail they have discovered in the Eighth Amendment is not absolute. A court may, for example, refuse bail in capital cases. And, as the Court of Appeals noted and respondents admit, a court may refuse bail when the defendant presents a threat to the judicial process by intimidating witnesses. Brief for Respondents 21-22. Respondents characterize these exceptions as consistent with what they claim to be the sole purpose of bail — to ensure the integrity of the judicial process.
While we agree that a primary function of bail is to safeguard the courts’ role in adjudicating the guilt or innocence of defendants, we reject the proposition that the Eighth Amendment categorically prohibits the government from pursuing other admittedly compelling interests through regulation of pretrial release. The above-quoted dictum in Stack v. Boyle is far too slender a reed on which to rest this argument. The Court in Stack had no occasion to consider whether the Excessive Bail Clause requires courts to admit all defendants to bail, because the statute before the Court in that case in fact allowed the defendants to be bailed. Thus, the Court had to determine only whether bail, admittedly available in that case, was excessive if set at a sum greater than that necessary to ensure the arrestees’ presence at trial.
The holding of Stack is illuminated by the Court’s holding just four months later in Carlson v. Landon, 342 U. S. 524 (1952). In that case, remarkably similar to the present action, the detainees had been arrested and held without bail pending a determination of deportability. The Attorney General refused to release the individuals, “on the ground that there was reasonable cause to believe that [their] release would be prejudicial to the public interest and would endanger the welfare and safety of the United States.” Id., at 529 (emphasis added). The detainees brought the same challenge that respondents bring to us today: the Eighth Amendment required them to be admitted to bail. The Court squarely rejected this proposition:
“The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.” Id., at 545-546 (footnotes omitted).
Carlson v. Landon was a civil case, and we need not decide today whether the Excessive Bail Clause speaks at all to Congress’ power to define the classes of criminal arrestees who shall be admitted to bail. For even if we were to conclude that the Eighth Amendment imposes some substantive limitations on the National Legislature’s powers in this area, we would still hold that the Bail Reform Act is valid. Nothing in the text of the Bail Clause limits permissible Government considerations solely to questions of flight. The only arguable substantive limitation of the Bail Clause is that the Government’s proposed conditions of release or detention not be “excessive” in light of the perceived evil. Of course, to determine whether the Government’s response is excessive, we must compare that response against the interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that its only interest is in preventing flight, bail must be set by a court at a sum designed to ensure that goal, and no more. Stack v. Boyle, supra. We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail.
I — I I — I HH
In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing. We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government — a concern for the safety and indeed the lives of its citizens — on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.
The judgment of the Court of Appeals is therefore
Reversed.
Every other Court of Appeals to have considered the validity of the Bail Reform Act of 1984 has rejected the facial constitutional challenge. United States v. Walker, 805 F. 2d 1042 (CA11 1986); United States v. Rodriguez, 803 F. 2d 1102 (CA11 1986); United States v. Simpkins, 255 U. S. App. D. C. 306, 801 F. 2d 520 (1986); United States v. Zannino, 798 F. 2d 544 (CA1 1983); United States v. Perry, 788 F. 2d 100 (CA3), cert. denied, 479 U. S. 864 (1986); United States v. Portes, 786 F. 2d 758 (CA7 1985).
Salerno was subsequently sentenced in unrelated proceedings before a different judge. To this date, however, Salerno has not been confined pursuant to that sentence. The authority for Salerno’s present incarceration remains the District Court’s pretrial detention order. The case is therefore very much alive and is properly presented for our resolution.
We intimate no view on the validity of any aspects of the Act that are not relevant to respondents’ case. Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case.
We intimate no view as to the point at which detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress’ regulatory goal.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
sc_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.
ADVOCATE HEALTH CARE NETWORK, et al., Petitioners
v.
Maria STAPLETON, et al.;
Saint Peter's Healthcare System, et al., Petitioners
v.
Laurence Kaplan ;
and
Dignity Health, et al., Petitioners
v.
Starla Rollins.
Nos. 16-74
16-86
16-258.
Supreme Court of the United States
Argued March 27, 2017.
Decided June 5, 2017.
Lisa S. Blatt, Washington, DC, for Petitioners.
Malcolm L. Stewart for the United States as amicus curiae, by special leave of the Court, supporting the Petitioners.
James A. Feldman, Washington, DC, for Respondents.
Lisa S. Blatt, Elisabeth S. Theodore, Sally L. Pei, Arnold & Porter Kaye Scholer LLP, Washington, DC, for Petitioners.
Amy L. Blaisdell, Daniel J. Schwartz, Heather M. Mehta, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Petitioners in No. 16-74.
Barry S. Landsberg, Harvey L. Rochman, Joanna S. McCallum, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, David L. Shapiro, Cambridge, MA, for Petitioners in No. 16-258.
Jeffrey J. Greenbaum, James M. Hirschhorn, Katherine M. Lieb, Sills Cummis & Gross P.C., Newark, NJ, for Petitioners in No. 16-86.
Lynn Lincoln Sarko, Matthew Gerend, Laura R. Gerber, Keller Rohrback L.L.P., Seattle, WA, Ron Kilgard, Laurie Ashton, Keller Rohrback L.L.P., Phoenix, AZ, James A. Feldman, Washington, DC, Karen L. Handorf, Michelle C. Yau, Julie G. Reiser, Mary J. Bortscheller, Cohen Milstein Sellers & Toll PLLC, Washington, DC, for Respondents.
Justice KAGAN delivered the opinion of the Court.
The Employee Retirement Income Security Act of 1974 (ERISA) exempts "church plan[s]" from its otherwise-comprehensive regulation of employee benefit plans. 88 Stat. 840, as amended, 29 U.S.C. § 1003(b)(2). Under the statute, certain plans for the employees of churches or church-affiliated nonprofits count as "church plans" even though not actually administered by a church. See § 1002(33)(C)(i). The question presented here is whether a church must have originally established such a plan for it to so qualify. ERISA, we hold, does not impose that requirement.
I
Petitioners identify themselves as three church-affiliated nonprofits that run hospitals and other healthcare facilities (collectively, hospitals). They offer defined-benefit pension plans to their employees. Those plans were established by the hospitals themselves-not by a church-and are managed by internal employee-benefits committees.
ERISA generally obligates private employers offering pension plans to adhere to an array of rules designed to ensure plan solvency and protect plan participants. See generally New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 651, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995) (cataloguing ERISA's "reporting and disclosure mandates," "participation and vesting requirements," and "funding standards"). But in enacting the statute, Congress made an important exception. "[C]hurch plan[s]" have never had to comply with ERISA's requirements. § 1003(b)(2).
The statutory definition of "church plan" came in two distinct phases. From the beginning, ERISA provided that "[t]he term 'church plan' means a plan established and maintained ... for its employees ... by a church or by a convention or association of churches." § 1002(33)(A). Then, in 1980, Congress amended the statute to expand that definition by deeming additional plans to fall within it. The amendment specified that for purposes of the church-plan definition, an "employee of a church" would include an employee of a church-affiliated organization (like the hospitals here). § 1002(33)(C)(ii)(II). And it added the provision whose effect is at issue in these cases:
"A plan established and maintained for its employees ... by a church or by a convention or association of churches includes a plan maintained by an organization ... the principal purpose or function of which is the administration or funding of a plan or program for the provision of retirement benefits or welfare benefits, or both, for the employees of a church or a convention or association of churches, if such organization is controlled by or associated with a church or a convention or association of churches." § 1002(33)(C)(i).
That is a mouthful, for lawyers and non-lawyers alike; to digest it more easily, note that everything after the word "organization" in the third line is just a (long-winded) description of a particular kind of church-associated entity-which this opinion will call a "principal-purpose organization."
The main job of such an entity, as the statute explains, is to fund or manage a benefit plan for the employees of churches or (per the 1980 amendment's other part) of church affiliates.
The three federal agencies responsible for administering ERISA have long read those provisions, when taken together, to exempt plans like the hospitals' from the statute's mandates. (The relevant agencies are the Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation.) The original definitional provision- § 1002(33)(A), or paragraph (A) for short-defines a "church plan" as one "established and maintained ... by a church"-not by a church-affiliated nonprofit. But according to the agencies, the later (block-quoted) provision- § 1002(33)(C)(i), or just subparagraph (C)(i)-expands that definition to include any plan maintained by a principal-purpose organization, regardless of whether a church initially established the plan. And, the agencies believe, the internal benefits committee of a church-affiliated nonprofit counts as such an organization. See, e.g., IRS General Counsel Memorandum No. 39007 (Nov. 2, 1982), App. 636-637. That interpretation has appeared in hundreds of private letter rulings and opinion letters issued since 1982, including several provided to the hospitals here. See App. 57-69, 379-386, 668-715.
The three cases before us are part of a recent wave of litigation challenging the agencies' view. Respondents, current and former employees of the hospitals, filed class actions alleging that their employers' pension plans do not fall within ERISA's church-plan exemption (and thus must satisfy the statute's requirements). That is so, the employees claim, because those plans were not established by a church-and ERISA, even as amended, demands that all "church plans" have such an origin. According to the employees, the addition of subparagraph (C)(i) allowed principal-purpose organizations to maintain such plans in lieu of churches; but that provision kept as-is paragraph (A)'s insistence that churches themselves establish "church plans." See id., at 265-268, 435-437, 783-785. The District Courts handling the cases agreed with the employees' position, and therefore held that the hospitals' plans must comply with ERISA.
The Courts of Appeals for the Third, Seventh, and Ninth Circuits affirmed those decisions. The Third Circuit ruled first, concluding that ERISA's "plain text" requires that a pension plan be established by a church to qualify for the church-plan exemption. Kaplan v. Saint Peter's Healthcare System, 810 F.3d 175, 177 (2015). In the court's view, paragraph (A) set out "two requirements" for the exemption-"establishment and maintenance"-and "only the latter is expanded by the use of 'includes' " in subparagraph (C)(i). Id., at 181. The Seventh and Ninth Circuits relied on similar reasoning to decide in the employees' favor. See Stapleton v. Advocate Health Care Network, 817 F.3d 517, 523 (C.A.7 2016) ; Rollins v. Dignity Health, 830 F.3d 900, 906 (C.A.9 2016).
In light of the importance of the issue, this Court granted certiorari. 579 U.S. ----, 137 S.Ct. 546, 547, 196 L.Ed.2d 442 (2016).
II
The dispute in these cases about what counts as a "church plan" hinges on the combined meaning of paragraph (A) and subparagraph (C)(i). Interpretive purists may refer back as needed to the provisions as quoted above. See supra, at 1656 - 1657. But for those who prefer their statutes in (comparatively) user-friendly form, those provisions go as follows:
Under paragraph (A), a " 'church plan' means a plan established and maintained ... by a church."
Under subparagraph (C)(i), "[a] plan established and maintained ... by a church ... includes a plan maintained by [a principal-purpose] organization."
The parties agree that under those provisions, a "church plan" need not be maintained by a church; it may instead be maintained by a principal-purpose organization. But the parties differ as to whether a plan maintained by that kind of organization must still have been established by a church to qualify for the church-plan exemption. The hospitals say no: The effect of subparagraph (C)(i) was to bring within the church-plan definition all pension plans maintained by a principal-purpose organization, regardless of who first established them. The employees say yes: Subparagraph (C)(i) altered only the requirement that a pension plan be maintained by a church, while leaving intact the church-establishment condition. We conclude that the hospitals have the better of the argument.
Start, as we always do, with the statutory language-here, a new definitional phrase piggy-backing on the one already existing. The term "church plan," as just stated, initially "mean[t]" only "a plan established and maintained ... by a church." But subparagraph (C)(i) provides that the original definitional phrase will now "include" another-"a plan maintained by [a principal-purpose] organization." That use of the word "include" is not literal-any more than when Congress says something like "a State 'includes' Puerto Rico and the District of Columbia." See, e.g., 29 U.S.C. § 1002(10). Rather, it tells readers that a different type of plan should receive the same treatment (i.e., an exemption) as the type described in the old definition. And those newly favored plans, once again, are simply those "maintained by a principal-purpose organization"-irrespective of their origins. In effect, Congress provided that the new phrase can stand in for the old one as follows: "The term 'church plan' means
a plan established and maintained by a church
[a plan maintained by a principal-purpose organization]." The church-establishment condition thus drops out of the picture.
Consider the same point in the form of a simple logic problem, with paragraph (A) and subparagraph (C)(i) as its first two steps:
Premise 1: A plan established and maintained by a church is an exempt church plan.
Premise 2: A plan established and maintained by a church includes a plan maintained by a principal-purpose organization.
Deduction: A plan maintained by a principal-purpose organization is an exempt church plan.
Or, as one court put the point without any of the ERISA terminology: "[I]f A is exempt, and A includes C, then C is exempt." Overall v. Ascension, 23 F.Supp.3d 816, 828 (E.D.Mich.2014). Just so. Because Congress deemed the category of plans "established and maintained by a church" to "include" plans "maintained by" principal-purpose organizations, those plans-and all those plans-are exempt from ERISA's requirements.
Had Congress wanted, as the employees contend, to alter only the maintenance requirement, it had an easy way to do so-differing by only two words from the language it chose, but with an altogether different meaning. Suppose Congress had provided that "a plan maintained by a church includes a plan maintained by" a principal-purpose organization, leaving out the words "established and" from the first part of the sentence. That amendment would have accomplished exactly what the employees argue Congress intended: The language, that is, would have enabled a principal-purpose organization to take on the maintenance of a "church plan," but left untouched the requirement that a church establish the plan in the first place. But Congress did not adopt that ready alternative. Instead, it added language whose most natural reading is to enable a plan "maintained" by a principal-purpose organization to substitute for a plan both "established" and "maintained" by a church. That drafting decision indicates that Congress did not in fact want what the employees claim. See, e.g., Lozano v. Montoya Alvarez, 572 U.S. 1, ---- - ----, 134 S.Ct. 1224, 1235, 188 L.Ed.2d 200 (2014) (When legislators did not adopt "obvious alternative" language, "the natural implication is that they did not intend" the alternative).
A corollary to this point is that the employees' construction runs aground on the so-called surplusage canon-the presumption that each word Congress uses is there for a reason. See generally A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 174-179 (2012). As just explained, the employees urge us to read subparagraph (C)(i) as if it were missing the two words "established and." The employees themselves do not contest that point: They offer no account of what function that language would serve on their proposed interpretation. See Brief for Respondents 34-35. In essence, the employees ask us to treat those words as stray marks on a page-notations that Congress regrettably made but did not really intend. Our practice, however, is to "give effect, if possible, to every clause and word of a statute." Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted). And here, that means construing the words "established and" in subparagraph (C)(i) as removing, for plans run by principal-purpose organizations, paragraph (A)'s church-establishment condition.
The employees' primary argument to the contrary takes the form of a supposed interpretive principle: "[I]f a definition or rule has two criteria, and a further provision expressly modifies only one of them, that provision is understood to affect only the criterion it expands or modifies." Brief for Respondents 22. Applied here, the employees explain, that principle requires us to read subparagraph (C)(i) as "modify[ing] only the criterion" in paragraph (A) that "it expressly expands ('maintained'), while leaving the other criterion ('established') unchanged."
Id., at 14. The employees cite no precedent or other authority to back up their proposed rule of construction, but they offer a thought-provoking hypothetical to demonstrate its good sense. Id., at 22. Imagine, they say, that a statute provides free insurance to a "person who is disabled and a veteran," and an amendment then states that "a person who is disabled and a veteran includes a person who served in the National Guard." Ibid. (quoting 810 F.3d, at 181 ). Would a non-disabled member of the National Guard be entitled to the insurance benefit? Surely not, the employees answer: All of us would understand the "includes" provision to expand (or clarify) only the meaning of "veteran"-leaving unchanged the requirement of a disability. And the same goes here, the employees claim.
But one good example does not a general rule make. Consider a variant of the employees' hypothetical: A statute offers free insurance to a "person who enlisted and served in the active Armed Forces," with a later amendment providing that "a person who enlisted and served in the active Armed Forces includes a person who served in the National Guard." Would a person who served in the National Guard be ineligible for benefits unless she had also enlisted in the active Armed Forces-say, the regular Army or Navy? Of course not. Two hypotheticals with similar grammatical constructions, two different results. In the employees' example, the mind rebels against reading the statute literally, in line with the logical and canonical principles described above. In the variant, by contrast, the statute's literal meaning and its most natural meaning cohere: Satisfaction of the amendment's single eligibility criterion-service in the National Guard-is indeed enough. What might account for that divergence? And what does such an explanation suggest for ERISA?
Two features of the employees' hypothetical, when taken in combination, make it effective. First, the criteria there-veteran-status and disability-are relatively distinct from one another. (Compare enlistment and service, which address similar matters and tend to travel in tandem, the one preceding the other.) The more independent the specified variables, the more likely that they were designed to have standalone relevance. Second and yet more crucial, the employees' example trades on our background understanding that a given interpretation is simply implausible-that it could not possibly have been what Congress wanted. Congress, we feel sure, would not have intended all National Guardsmen to get a benefit that is otherwise reserved for disabled veterans. (Compare that to our sense of whether Congress would have meant to hinge benefits to Guardsmen on their enlistment in a different service.) That sense of inconceivability does most of the work in the employees' example, urging readers to discard usual rules of interpreting text because they will lead to a "must be wrong" outcome.
But subparagraph (C)(i) possesses neither of those characteristics. For starters, the criteria at issue-establishment and maintenance-are not unrelated. The former serves as a necessary precondition of the latter, and both describe an aspect of an entity's involvement with a benefit plan. Indeed, for various purposes, ERISA treats the terms "establish" and "maintain" interchangeably. See, e.g., § 1002(16)(B) (defining the "sponsor" of a plan as the organization that "establishe[s] or maintain[s]" the plan). So an amendment altering the one requirement could naturally alter the other too. What's more, nothing we know about the way ERISA is designed to operate makes that an utterly untenable result. Whereas the disability condition is central to the statutory scheme in the employees' hypothetical, the church-establishment condition, taken on its own, has limited functional significance. Establishment of a plan, after all, is a one-time, historical event; it is the entity maintaining the plan that has the primary ongoing responsibility (and potential liability) to plan participants. See Brief for United States as Amicus Curiae 31; Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 920 (C.A.2 1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988) ("[T]he status of the entity which currently maintains a particular pension plan bears more relation to Congress' goals in enacting ERISA and its various exemptions[ ] than does the status of the entity which established the plan"). So removing the establishment condition for plans run by principal-purpose organizations has none of the contextual implausibility-the "Congress could not possibly have meant that" quality-on which the employees' example principally rides.
To the contrary, everything we can tell from extra-statutory sources about Congress's purpose in enacting subparagraph (C)(i) supports our reading of its text. We say "everything we can tell" because in fact we cannot tell all that much. The legislative materials in these cases consist almost wholly of excerpts from committee hearings and scattered floor statements by individual lawmakers-the sort of stuff we have called "among the least illuminating forms of legislative history." NLRB v. SW General, Inc., 580 U.S. ----, ----, 137 S.Ct. 929, 943, 197 L.Ed.2d 263 (2017). And even those lowly sources speak at best indirectly to the precise question here: None, that is, comments in so many words on whether subparagraph (C)(i) altered paragraph (A)'s church-establishment condition. Still, both the hospitals and the employees have constructed narratives from those bits and pieces about Congress's goals in amending paragraph (A). And our review of their accounts-the employees' nearly as much as the hospitals'-tends to confirm our conviction that plans maintained by principal-purpose organizations are eligible for ERISA's "church plan" exemption, whatever their origins.
According to the hospitals, Congress wanted to eliminate any distinction between churches and church-affiliated organizations under ERISA. See Brief for Petitioners 18, 33-35. The impetus behind the 1980 amendment, they claim, was an IRS decision holding that pension plans established by orders of Catholic Sisters (to benefit their hospitals' employees) did not qualify as "church plans" because the orders were not "carrying out [the Church's] religious functions." IRS
General Counsel Memorandum No. 37266, 1977 WL 46200, *5 (Sept. 22, 1977). Many religious groups protested that ruling, criticizing the IRS for "attempting to define what is and what is not [a] 'church' and how the mission of the church is to be carried out." 125 Cong. Rec. 10054 (1979) (letter to Sen. Talmadge from the Lutheran Church-Missouri Synod); see id., at 10054-10058 (similar letters). And that anger, the hospitals maintain, was what prompted ERISA's amendment: Congress, they say, designed the new provision to ensure that, however categorized, all groups associated with church activities would receive comparable treatment. See Brief for Petitioners 35.
If that is so, our construction of the text fits Congress's objective to a T. A church-establishment requirement necessarily puts the IRS in the business of deciding just what a church is and is not-for example (as in the IRS's ruling about the Sisters), whether a particular Catholic religious order should count as one. And that requirement, by definition, disfavors plans created by church affiliates, as compared to those established by (whatever the IRS has decided are) churches. It thus makes key to the "church plan" exemption the very line that, on the hospitals' account, Congress intended to erase.
The employees tell a different story about the origins of subparagraph (C)(i)-focusing on the pension boards that congregational denominations often used. See Brief for Respondents 14, 38-42; see also Brief for United States as Amicus Curiae 19-22. In line with their non-hierarchical nature, those denominations typically relied on separately incorporated local boards-rather than entities integrated into a national church structure-to administer benefits for their ministers and lay workers. According to the employees, subparagraph (C)(i)'s main goal was to bring those local pension boards within the church-plan exemption, so as to ensure that congregational and hierarchical churches would receive the same treatment. In support of their view, the employees cite several floor statements in which the amendment's sponsors addressed that objective. See Brief for Respondents 38. Senator Talmadge, for example, stated that under the amendment, a "plan or program funded or administered through a pension board ... will be considered a church plan." 124 Cong. Rec. 16523; see also 124 Cong. Rec. 12107 (remarks of Rep. Conable).
But that account of subparagraph (C)(i)'s primary purpose cuts against, not in favor of, the employees' position. See Brief for United States as Amicus Curiae 21 (accepting the employees' narrative, but arguing that it buttresses the opposite conclusion). That is because, as hearing testimony disclosed, plans run by church-affiliated pension boards came in different varieties: Some were created by church congregations, but others were established by the boards themselves. See, e.g., Hearings on S. 1090 et al. before the Subcommittee on Private Pension Plans and Employee Fringe Benefits of the Senate Committee on Finance, 96th Cong., 1st Sess., 400-401, 415-417 (1979). And still others were sufficiently old that their provenance could have become the subject of dispute. See id., at 411; 125 Cong. Rec. 10052 (remarks of Sen. Talmadge) ("The average age of a church plan is at least 40 years"). So keeping the church-establishment requirement would have prevented some plans run by pension boards-the very entities the employees say Congress most wanted to benefit-from qualifying as "church plans" under ERISA. No argument the employees have offered here supports that goal-defying (much less that text-defying) statutory construction.
III
ERISA provides (1) that a "church plan" means a "plan established and maintained ... by a church" and (2) that a "plan established and maintained ... by a church" is to "include[ ] a plan maintained by" a principal-purpose organization. Under the best reading of the statute, a plan maintained by a principal-purpose organization therefore qualifies as a "church plan," regardless of who established it. We accordingly reverse the judgments of the Courts of Appeals.
It is so ordered.
Justice GORSUCH took no part in the consideration or decision of these cases.
The parties disputed the hospitals' church ties in the courts below, see n. 2, infra, but we assume for purposes of this decision that the facts are as the hospitals describe them. On those facts: Advocate Health Care Network operates 12 hospitals and some 250 other healthcare facilities in Illinois, and is associated with the Evangelical Lutheran Church in America and the United Church of Christ. Saint Peter's Healthcare System runs a teaching hospital and several other medical facilities in New Jersey, and is both owned and controlled by a Roman Catholic diocese there. And Dignity Health runs an extensive network of community hospitals throughout the country, and maintains ties to the Catholic religious orders that initially sponsored some of its facilities.
The employees alternatively argued in the District Courts that the hospitals' pension plans are not "church plans" because the hospitals do not have the needed association with a church and because, even if they do, their internal benefits committees do not count as principal-purpose organizations. See App. 267-269, 437-438, 785-786. Those issues are not before us, and nothing we say in this opinion expresses a view of how they should be resolved.
Again, we use the term "principal-purpose organization" as shorthand for the entity described in subparagraph (C)(i): a church-associated organization whose chief purpose or function is to fund or administer a benefits plan for the employees of either a church or a church-affiliated nonprofit. See supra, at 1656 - 1657. And again, the scope of that term-and whether it comprehends the hospitals' internal benefits committees-is not at issue here. See n. 2, supra.
Or any more than when Congress, in the same 1980 amendment to ERISA, provided that an "employee of a church" was to "include[ ]" an employee of a church-affiliated organization. § 1002(33)(C)(ii) ; see supra, at 1656 - 1657.
You might ask yourself, on reading this hypothetical statute, why Congress would not have made the removal of both original conditions clearer still by stating that the original provision "includes a person who enlisted and served in the National Guard." We won't go down the rabbit hole of further expounding on a fictional statute, but we can answer a parallel question for subparagraph (C)(i). Suppose Congress had stated that "[a] plan established and maintained ... by a church ... includes a plan established and maintained by [a principal-purpose] organization." That language would have left out of the "church plan" definition pension plans originally established by churches, but subsequently maintained by principal-purpose organizations. And everyone agrees-the employees no less than the hospitals-that Congress wanted to treat those plans as "church plans." (The dispute is only as to plans that principal-purpose organizations both establish and maintain.) See supra, at 1658; Brief for Petitioners 25-26; Brief for Respondents 14, 35; Brief for United States as Amicus Curiae 24. So Congress could not have taken such a drafting tack to eliminate the necessity of church establishment.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Don Irving PORTER, Executor of the Estate of John Prather, Deceased, Appellant, v. Honorable Stanley R. RESOR, Secretary of the Department of the Army, Appellee.
No. 72-68.
United States Court of Appeals Tenth Circuit.
Aug. 13, 1969.
Thomas F. McKenna, of McKenna, Sommer & Lawler, Santa Fe, N. M., for appellant.
Frank B. Friedman, Dept. of Justice, Washington, D. C. (Glen E. Taylor, Acting Asst. Atty. Gen., John Quinn, U. S. Atty., Ruth C. Streeter, Asst. U. S. Atty., S. Billingsley Hill, and Robert S. Lynch, Attys., Dept. of Justice, with him on the brief), for appellee.
Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.
PER CURIAM.
This action was commenced in the United States District Court for the District of New Mexico following an administrative decision by the Secretary of the Department of the Army that the appellant executor was not entitled to compensation under the Taylor Grazing Act (43 U.S.C. § 315q) for a reduction in the decedent’s grazing permit caused by the Army's taking of some of the public domain covered by the permit.
The record shows that the number of permitted livestock in decedent’s Taylor Grazing Act permit was substantially reduced when a large area of public domain was turned over to the use of the Army. Thus after July 1957 the decedent, Mr. Prather, had no permit or allotment to graze his stock in the area taken.
Apparently some time theretofore condemnation proceedings had been commenced whereby some or all of the decedent’s fee land and state leases were taken together with some mineral interests. This condemnation award was determined by the United States District Court in 1959 in the amount of about $105,000.00, but the decedent refused to take down the compensation so awarded.
Other Taylor Act permittees in the area made claims under the Taylor Act for compensation for termination of their grazing permits on lands taken by the Army, and awards were made therefor. The decedent however chose not to make such a claim, and instead continued to use the withdrawn lands for grazing just as he had done before the taking. The Army did not evict decedent from the ranch nor remove his stock from the grazing land although they could have done so. This use by the decedent was not the result of any agreement with the Army or anyone else. It was an extralegal, undefined, unconsented to use of the public domain. The decedent just continued about his business as before and the Army did not prevent him from so doing. The Army also had the use of the same land by virtue of the taking. It was a standoff between them. Mr. Prather obviously intended that it continue indefinitely; he was taking no steps to secure an award for the taking of any of his interests.
This condition continued for some eight years until the death of Mr. Prather in February 1965. Upon his death his estate then discontinued use of the ranch, removed the livestock, took down the court’s condemnation award for the state leases and fee land, and then filed this claim with the Secretary of the Army under 43 U.S.C. § 315q for the reduction in the decedent’s Taylor Grazing Act permit made some eight or nine years before. The Secretary denied relief.
The Secretary of the Army in the denial of compensation stated that neither Mr. Prather nor his estate had "any claim” for the loss of the Taylor Act lands, since in the years following the taking the decedent was not deprived of the lands but “continued occupancy without payment of fees or rental.” The Secretary’s memorandum also said: "In the absence of any loss of use, hardship, equitable entitlement or damage, Mr. Prather is not entitled to compensation under the Act.”
The trial court granted the Secretary’s motion for summary judgment, and denied the appellant’s similar motion. We must affirm the trial court.
As described above, the decedent made no claim for compensation for the reduction in his permit as he could have done under 43 U.S.C. § 315q, had he given up use of the land. He was not required to make such a claim, and he chose not to do so. Instead he ignored the taking entirely and continued his ranch operations as before. As far as he was concerned this unilateral arrangement was apparently to continue indefinitely, and it did so continue until his death. This indefinite period was permanent in the sense that it was his alternative to asking for compensation for the “permanent” taking or cancellation of a portion of his permit. This was an election on his part to take that course indefinitely, and it was clear, effective, and of such duration that his estate cannot now take a different position, but is instead bound by the decedent’s decision.
The estate in the arguments and brief seeks to place itself in the position of a new entity making a new decision on the matter unrelated to what had gone on before. This they cannot do as they under these circumstances must stand in the shoes of the decedent. The estate cannot at this late date make a claim for the decedent’s permanent loss of the permitted number of stock by now concurring in the taking, removing the stock, and saying it now suffered a loss. The value of the use for the eight years by the decedent may not equal what would have been received if a claim for compensation had been made, but this was the chance the decedent took on the length of his life and his ability' to continue when he reached his decision as to what to do.
The estate, as to the lapse of time, argues that no losses were suffered until the estate vacated the land in 1965, and it was then entitled to compensation for the “permanent” loss of the permit. But again it is clear that the estate did not suffer the loss of the permit. Under the statute the decedent’s permit was reduced and he decided to pursue a course of action other than that contemplated by 43 U.S.C. § 315q. This was thus not a period of inaction on decedent’s part but one of action in another direction. Any right as his representative to relief under the statute never existed.
This Act was a remedial one to prevent hardship to ranchers whose Taylor Act lands were taken for national defense purposes. 1948 U.S.Code Cong. & Ad. News, p. 1614. See also United States v. Cox, 190 F.2d 293 (10th Cir.); Osborne v. United States, 145 F.2d 892 (9th Cir.); McDonald v. McDonald, 61 N.M. 458, 302 P.2d 726. The nature of the Taylor permits has been considered by many courts and need not be reviewed here. See Oman v. United States, 179 F.2d 738 (10th Cir.); Hinton v. Udall, 124 U.S.App.D.C. 283, 364 F.2d 676. It is sufficient to say that the compensation statute was passed in recognition of the actual losses that were being suffered through the withdrawal of public domain for defense and similar purposes. Resort to such an Act is obviously discretionary with the persons for whom it was intended to grant relief. The self-reliant Mr. Prather decided he did not need this relief; he did not seek it; and instead he had his own homemade remedy which was effective and satisfactory to him for his remaining years. The executor acquired no claim, the Secretary so decided, as did the trial court.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_respond1_5_2
|
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.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
FIRST AMERICAN BANK & TRUST COMPANY et al., Plaintiffs-Appellants, v. G. W. ELLWEIN, Commissioner, State Examiner and Chairman of the State Banking Board, Department of Banking and Financial Institutions of the State of North Dakota, et al., Defendants-Appellees.
No. 72-1596.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 12, 1973.
Decided Feb. 27, 1973.
Frederick E. Saefke, Jr., Bismarck, N. D., for plaintiffs-appellants.
Frank F. Jestrab, Bjella & Jestrab, Williston, N. D., for defendants-appel-lees.
Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.
Eastern District of Michigan, sitting by designation.
PER CURIAM.
First American Bank & Trust Co. (First American) instituted this action pursuant to 15 U.S.C. §§ 4, 15, and 26 (antitrust laws) seeking injunctive and other relief against the North Dakota State Banking Board to prevent the Board from holding a hearing and making findings concerning appellant’s solvency and banking practices. First American alleged that the Board could not afford the plaintiff a fair hearing because Board members are competitors of the plaintiff and because they had made statements indicating prejudgment of the case. The district court denied preliminary injunctive relief on the grounds that this was an appropriate case for abstention. The court then granted a motion for summary judgment for the defendant-Board and dismissed the action on the merits, apparently on grounds that: (1) the Sherman Act did not provide for an action against the state; (2) no jurisdictional basis had been stated for consideration of plaintiff’s claim of a denial of constitutional rights; (3) the question was moot because the Board had already heard the matter; and (4) a final judgment would conflict with the court’s abstention on the question of temporary injunctive relief. The court concluded:
I could leave it to the plaintiffs to amend their pleading to recite a proper jurisdictional basis, and to enunciate a relevant prayer for relief, but it appears that the business of the Court, and the best way to approach any further problems which may develop is by dismissal of this action on its merits.
On this appeal First American urges that the district court should have exercised jurisdiction under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, although plaintiff failed to rely on these statutes in its complaint. First American argues that the complaint on its face alleges facts which make out a violation of its right to due process of law.
As we construe the plaintiff’s briefs, the precise question sought to be presented and resolved on this appeal is whether or not the district court had jurisdiction to hear the case on its merits. For reasons stated below, we believe the case in its present posture presents an appropriate situation for abstention rather than dismissal on the merits and thus direct that the judgment dismissing the action on its merits be vacated.
The brief factual background, as related in the complaint and as stipulated to at oral argument, discloses that the appellant engages in trust company business under 1 N.D.Cent.Code Ch. 6-05. In a meeting held May 26, 1972, the State Banking Board authorized the State Examiner to commence a proceeding before the Board to determine the solvency of First American and to develop other matters concerning First American’s banking practices. With this authorization, the State Examiner proceeded under the North Dakota Administrative Agencies Practice Act, 5 N.D.Cent. Code Ch. 28-32.
First American asserts that due to the alleged prejudice and prejudgment of the Board, it has been denied the opportunity to present its case to a “fair and unbiased” tribunal.
At oral argument, the parties stipulated that as of December 11, 1972, the State Banking Board had already heard the matter and had made a determination of insolvency and ordered a receiver appointed. The parties also stipulated that the Board’s order had been stayed by the District Court of Burleigh County pending resolution of an appeal to that court. As indicated by the stipulation, North Dakota permits appeals from administrative agencies to the state courts of general jurisdiction and then to the state supreme court.
Assuming, arguendo, that the federal district court might have exercised jurisdiction on grounds that the Board under the circumstances alleged was incapable of affording appellant a fair hearing in conformity with the Due Process Clause of the Fourteenth Amendment, the circumstances presented to the district court and to us on appeal demonstrate a classic case in which federal courts should stay their hands under the doctrine of abstention. The matters presented to the federal court are now in the state courts, and their determination of the “fairness of the hearing” issue may well eliminate the need for any consideration of constitutional issues by the federal judiciary.
In Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), the Supreme Court said:
Although a federal equity court does have jurisdiction of a particular proceeding, it may, in its sound discretion, whether its jurisdiction is invoked on the ground of diversity of citizenship or otherwise, “refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest”; for it “is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.” [Id. at 317-318, 63 S.Ct. at 1099 (footnotes omitted).]
This holding was reaffirmed in Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951) :
As adequate state court review of an administrative order based upon predominantly local factors is available to appellee, intervention of a federal court is not necessary for the protection of federal rights. Equitable relief may be granted only when the District Court, in its sound discretion exercised with the “scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts,” is convinced that the asserted federal right cannot be preserved except by granting the “extraordinary relief of an injunction in the federal courts.” Considering that “[f]ew public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies,” the usual rule of comity must govern the exercise of equitable jurisdiction by the District Court in this case. Whatever rights appellee may have are to be pursued through the state courts. Burford v. Sun Oil Co., 319 U.S. 315, [63 S.Ct. 1098, 87 L.Ed. 1424] (1943); Railroad Commission of Texas v. Rowan & Nichols Oil Co., 311 U.S. 570, 577, [61 S.Ct 343, 346, 85 L.Ed. 358] (1941); Railroad Commission of Texas v. Rowan & Nichols Oil Co., 310 U.S. 573, [60 S.Ct. 1021, 84 L.Ed. 1368], as amended, 311 U.S. 614, 615, [61 S.Ct. 66, 85 L.Ed. 390] (1940). [Id. at 349-350, 71 S.Ct. at 768-769 (footnotes omitted).]
As already mentioned, the federal district court denied preliminary relief on grounds of abstention but the final judgment in form dismissed the action on the merits. It is obviously inappropriate to make a determination on the merits while applying the abstention doctrine. Accordingly, while approving the action of the district court, we remand this case to the district court for the purpose of modifying the judgment to reflect abstention from action rather than decision on the merits and to recite that “jurisdiction should not be exercised in this case as a matter of sound equitable discretion.” Alabama Public Service Commission, supra, at 350, 71 S.Ct. at 769.
. A dispute concerning the Examiner’s authority and the application of the state’s statutes governing administrative procedure, has been previously litigated in the state supreme court in an action related to the present controversy. First American Bank & Trust Company v. Ellwein, 198 N.W.2d 84 (N.D.1972).
. Tlie complaint also seeks to declare 1 N.D.Cent.Code § 6-01-03 unconstitutional. That section pertains to the composition of the State Banking Board. Appellant did not request that a three-judge court be' convened and does not press the issue of the constitutionality of the statute before this court.
. 5 N.D.Cent.Code §§ 28-32-15 and 28-32-21.
. At oral argument the parties conceded that the question of the competency of the Board and its right to proceed under the circumstances has been preserved in the record of the administrative hearing and can be presented to the North Dakota courts.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
Answer:
|
songer_appel1_7_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Erika OLUND, Plaintiff-Appellee, v. Russell L. SWARTHOUT, Defendant-Appellant.
No. 71-1716.
United States Court of Appeals, Sixth Circuit.
May 5, 1972.
S. Allen Early, Jr., Detroit, Mich., for defendant-appellant; William A. Bedro-sian, Detroit, Mich., on brief.
George F. Fisk, Berkley, Mich., on brief, for plaintiff-appellee.
Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and ENGEL , District Judge.
Honorable Albert J. Engel, Judge, United States District Court for the Western District of Michigan, sitting by designation.
PHILLIPS, Chief Judge.
This is an appeal from a judgment for plaintiff in a diversity tort action. We affirm.
Only a brief statement of the procedural facts is required. Erika Olund filed this action against Russell Swar-thout in December, 1964. Swarthout answered in May, 1965, denying the material allegations of the complaint. Some three years later, following the pretrial conference, Swarthout amended the answer to interpose the affirmative defense of release. One week later Olund filed a reply to the amended answer, asserting that the release was void and unenforceable by reason of procurement through fraud, duress, coercion, and undue influence.
In May, 1969, Olund filed an amended reply to the amended answer. Swar-thout filed a demand for a trial by jury as a matter of right on all issues nine days thereafter. He further moved for a jury trial on all issues as a matter of discretion. Following a hearing on the motion, Judge Thomas P. Thornton denied the motion and ordered the entire case tried without a jury.
Tidal to the Court consumed five trial days; conflicting evidence was introduced as to all material issues. Judge Thornton found for plaintiff in the amount of $15,000 compensatory damages. Swarthout appeals, contending that he was deprived of his right to trial by jury and that the verdict was unsupported by the evidence and excessive.
Only the jury trial issue requires extended consideration. The Federal Rules of Civil Procedure provide:
“Rule 38.
“Jury Trial of Right * * *
“(b) Demand. Any party may demand a trial by jury of any issue tria-ble of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.”
“Rule 39.
“Trial by Jury or by the Court
•X- -X* -X-
“(b) By the Court. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.”
Before this Court Swarthout contends that the filing of Olúnd’s amended reply gave him ten days in which to demand a jury trial on the issues presented therein and that his demand was served within that ten day period. He further asserts that a jury trial on all issues should have been ordered as a discretionary matter. We disagree with these contentions. The demand for trial by jury was first injected into the case some four and one-half years after the action was commenced, following pleading amendments, extensive discovery, and a pretrial conference. The amended reply introduced no new issues into the action. The issue of release was asserted and joined in July, 1968. Under these circumstances, the demand was untimely. See Western Geophysical Co. of America v. Bolt Assoc., Inc., 440 F.2d 765, 769 (2d Cir. 1971); Connecticut General Life Ins. Co. v. Breslin, 332 F.2d 928, 931 (5th Cir. 1964); 5 Moore, Federal Practice, ¶ 38.41 (2d ed.); 9 Wright & Miller, Federal Practice & Procedure, Civil § 2320. Further, we find no abuse of discretion under R. 39(b), Fed.R.Civ.P.
Swarthout’s contentions that there is insufficient evidence to support the findings of liability, unenforceability of the release signed by Olund, and amount of damages are wholly without merit. We have given “due regard ... to the opportunity of the trial court to judge the credibility of the witnesses” and are unable to say that his findings of fact are clearly erroneous. R. 52(a), Fed.R.Civ.P.
Swarthout also urges that the release could not be avoided by Olund without tender of the consideration given in exchange therefor, relying on the law of Florida, where the release was executed. We need not reach this issue. The judgment was offset by the consideration. This court “must disregard any error . . . which does not affect the substantial rights of the parties.” R. 61, Fed.R.Civ.P.; see 28 U.S.C. § 2111. Further, the issue was not raised below and will not be considered on appeal. See Wiper v. Great Lakes Engineering Works, 340 F.2d 727, 731 (6th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965).
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
|
songer_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.
Herschell Carl THOMAS, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 12-69.
United States Court of Appeals Tenth Circuit.
April 16, 1969.
Juan G. Burciaga, Albuquerque, N. M., for appellant.
John A. Babington, Asst. U. S. Atty., Albuquerque, N. M. (John Quinn, U. S. Atty., Albuquerque, N. M., on the brief), for appellee.
Before BREITENSTEIN, HILL and HICKEY, Circuit Judges.
HILL, Circuit Judge.
The appellant, Herschell C. Thomas, Jr., was tried to a jury and convicted of transporting a motor vehicle from Fontana, California, to Las Cruces, New Mexico, knowing it to have been stolen, in violation of 18 U.S.C. § 2312. On this direct appeal the appellant attacks the sufficiency of the evidence, certain of the jury instructions, and the failure of the trial court to grant a new trial.
In reviewing the sufficiency of the evidence to sustain the verdict, our inquiry is directed to ascertaining whether taking the view most favorable to the prosecution, there is sufficient direct or circumstantial evidence together with all reasonable inferences that can be drawn therefrom, on each element of the offense, from which the jury could find guilt beyond a reasonable doubt. Appellant argues that because the conviction rests primarily upon circumstantial evidence, the rule of Cuthbert v. United States, 278 F.2d 220 (5th Cir. 1960) is to be applied, namely, that to sustain the conviction the inferences reasonably to be drawn from the evidence must preclude every reasonable hypothesis other than guilt. Although the difference between that rule and the one that we follow may be more semantical than real, this court and many others have rejected the concept and no reason has been advanced to justify a reevaluation.
The evidence tending to support the Government reflects that appellant and a companion, Robert Kinman, obtained a ride from Los Angeles, California, to Fontana, California, where Kinman happened upon a 1967 Plymouth that had been parked on the street by its owner. Kinman stole the vehicle, picked up the appellant a few hundred feet from the scene of the theft, and the two motored to Phoenix, Arizona. From there the two men, who were apparently drinking quite heavily, journeyed to a roadside park approximately 22 miles west of Las Cruces where they fell asleep. Early the next day, May 7, 1968, Ben Moreno of the New Mexico State Police observed the vehicle in the park and upon checking with his headquarters, he learned that the New Mexico license plates on the automobile had been stolen the night before in Silver City, New Mexico. When Moreno approached the vehicle he noticed the appellant reclining in the back seat and Kinman similarly situated in the front seat. Moreno awakened the men and asked to see a driver’s license and the automobile registration slip. Neither man could produce the items sought and both protested that they were merely awaiting the return of the owner who had left to secure fuel to replenish the empty gasoline tank. The men were taken before a justice of the peace where they pleaded guilty to a charge of hitchhiking and received a two day jail sentence. When later questioned about the ownership and possession of the vehicle, appellant admitted stealing the license plates and attempting to siphon gasoline from unattended cars in Silver City. Kinman subsequently pleaded guilty to a Dyer Act charge based upon this same incident.
At the trial the Government produced Officer Moreno who testified that appellant had admitted stealing the license plates and attempting to siphon gasoline. The testimony of the F. B. I. agent who had also interrogated the appellant was substantially the same. Kinman appeared as a Government witness and admitted having stolen the car. He further testified that the appellant had not driven the vehicle at any time but he apparently could not recall who had stolen the license plates or how the gasoline had been obtained during the journey. He frankly admitted that the story told to Moreno at the roadside park concerning the supposed vehicle owner’s trip for gasoline had been a fabrication. The defense offered no evidence.
In order to obtain a conviction under the Dyer Act, it is necessary for the Government to prove that the vehicle was stolen, that it was transported in interstate commerce, and that the accused transported or materially assisted in transporting the vehicle with knowledge that it was stolen. If the Government can demonstrate “that sometime during the interstate journey, defendant had driven the automobile, provided gasoline, or in some other way actively assisted in the illegal enterprise, the evidence of participation in the offense * * * [will] have been sufficient.” Lawrence v. United States, 400 F.2d 624, 626 (9th Cir. 1968). Here it was shown by the uncontradicted testimony of two law enforcement officers that the appellant admitted having attempted to siphon gasoline. In addition, the testimony of one of the officers clearly established that the appellant stole New Mexico license plates in an apparent attempt to conceal the surreptitious sojourn. The testimony of the companion, Kinman, indicated that he could not remember whether the gasoline and license plates had been stolen, or if so, by whom. Such testimony is at best equivocal, and at worst, confirms the evidence against the appellant. The cumulative effect of the testimony was adequate evidence of the participation by the appellant in the unlawful interstate movement to allow the jury to conclude as it did.
At the trial, appellant tendered four jury instructions that were refused by the court. The first instruction sought to admonish the jury not to consider Kinman’s confessipn in determining the guilt or innocence of the appellant. As authority for the proposition that the failure to give that instruction was error, appellant cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Yet the Court in Bruton was concerned with the admission of the confession of an accomplice when the accomplice invokes his privilege against self-incrimination thereby denying the defendant’s right of cross-examination as secured by the Sixth Amendment. Here the confession of an accomplice was not placed in evidence, rather the accomplice himself testified and was subjected to a thorough cross-examination. In these circumstances Bruton is inapplicable and the trial court’s refusal to instruct was not error.
The second, third and fourth requested instructions all sought to advise the jury that circumstantial evidence must exclude every reasonable hypothesis other than guilt before a conviction can be obtained on the basis of such evidence. The trial court’s denial of these instructions and the giving of proper instructions on the standards for reasonable doubt was clearly the correct procedure. “[W]here the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).
As a final attack on the propriety of the jury instructions, the appellant cites an example of what is said to be unfair comment by the trial court upon the meaning to be given to the evidence. It is asserted that the court implicitly indicated that the appellant did attempt to siphon gasoline and did steal the license plates in question. Clearly the trial court’s statement does not carry the implication the appellant would attribute to it and did not amount to unfair comment. We have carefully examined the instructions and must conclude that they constituted an accurate and forthright presentation of the controlling legal principles.
At the conclusion of the evidence, the appellant moved for an acquittal or, in the alternative, for a new trial. He now asserts that once the jury returned a verdict of guilty and the trial court refused to grant a judgment of acquittal, the court was constrained to grant his motion for a new trial. There has been no suggestion of newly discovered evidence or any other reason offered that would require a new trial in the interest of justice. The denial of a motion for a new trial is within the sound discretion of the trial court. King v. United States, 402 F.2d 289, 292 (10th Cir. 1968). In these circumstances we cannot conclude that the discretion was abused.
Affirmed.
. McGee v. United States, 402 F.2d 434, 437 (10th Cir. 1968); Michael v. United States, 393 F.2d 22, 35 (10th Cir. 1968); Adams v. United States, 375 F.2d 635, 638 (10th Cir. 1967).
. Barton v. United States, 407 F.2d 1155, 1158 (10th Cir. 1969); Early v. United States, 394 F.2d 117, 118 (10th Cir. 1968); Golubin v. United States, 393 F.2d 590, 592 (10th Cir. 1968); Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967); Corbin v. United States, 253 F.2d 646, 649 (10th Cir. 1958).
. Dirring v. United States, 328 F.2d 512 (1st Cir. 1964) cert. den. 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052; United States v. Aadal, 368 F.2d 962, 964 (2d Cir. 1966) cert. den. 386 U.S. 970, 87 S.Ct. 1161, 18 L.Ed.2d 130; United States v. Nardiello, 303 F.2d 876, 878 (3d Cir. 1962); United States v. Hamrick, 293 F.2d 468, 472 (4th Cir. 1961); United States v. Thomas, 303 F.2d 561, 562 (6th Cir. 1962); Kaplan v. United States, 329 F.2d 561, 563 (9th Cir. 1964). But see, contra, McMillian v. United States, 399 F.2d 478 (5th Cir. 1968).
. Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967); Allison v. United States, 348 F.2d 152 (10th Cir. 1965); Evans v. United States, 240 F.2d 695 (10th Cir. 1957).
. Cf. Maguire v. United States, 358 F.2d 442 (10th Cir. 1966) cert. den. Giles v. United States, 385 U.S. 870, 87 S.Ct. 138, 17 L.Ed.2d 97; Garrison v. United States, 353 F.2d 94 (10th Cir. 1965); Reese v. United States, 341 F.2d 90 (10th Cir. 1965); Lambert v. United States, 261 F.2d 799 (5th Cir. 1958); United States v. Wiley, 289 F.Supp. 531 (D.Mass.1968).
. Defendant’s Requested Instruction No. 1: “A confession made outside of court by a defendant in another case may not be considered as evidence against the other defendant who was not present and in no way a party to the confession. Therefore, if you find that a confession was in fact voluntarily and intentionally made by Robert Charles Ivinman, you must not consider it and should disregard it in considering the evidence in the case against Defendant HERSCHELL CARL THOMAS, JR.”
. Defendant’s Requested Instruction No. 2: “It is not enough that the testimony raise a strong suspicion of guilt. The circumstantial evidence must exclude every reasonable hypothesis other than the guilt of the defendant.” Defendant’s Requested Instruction No. 3: “In order to find the accused guilty of the alleged offense, the facts to support a conviction must be incompatible with innocence and incapable of explanation upon any other reasonable theory than that of guilt, and it is not sufficient that they coincide with and render probable the guilt of the accused but must exclude every other reasonable hypothesis of innocence.” Defendant’s Requested Instruction No. 4: “You are instructed that where circumstances alone are relied upon by the prosecution for a conviction, the circumstances must be such as to apply exclusively to the Defendant and such as are reconcilable with no other hypothesis than the Defendant’s guilt, and they must satisfy the minds of the jury of the guilt of the Defendant beyond a reasonable doubt.”
. The court instructed the jury that: “Now, there has been evidence introduced here, about the defendant — attempting to show that the defendant either tried to siphon some gas, and attempting to show that he stole some license plates in Silver City. Now, the defendant is not on trial for that — for those allegations, or those matters. He’s on trial for the offense charged in the Indictment, and the only purpose of introducing or allowing that type of evidence to go in, is to — what weight, if any, you might attach to it on the question of knowledge or intent or possession or control by the defendant.”
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_lcdisposition
|
I
|
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.
NATIONAL MOTOR FREIGHT TRAFFIC ASSOCIATION, INC., et al. v. UNITED STATES et al.
No. 479.
Decided February 25, 1963.
Bryce Rea, Jr. and Frederick A. Babson, Jr. for appellants.
Solicitor General Cox, Assistant Attorney General Loevinger, Robert B. Hummel, Robert W. Ginnane and Fritz R. Kahn for the United States and the Interstate Commerce Commission.
D. Robert Thomas, Harry C. Ames, Sr., Giles Morrow, S. Sidney Eisen and James L. Givan for appellee freight forwarders.
Per Curiam.
The petition for rehearing is denied. However, we think we should make clear the basis upon which our per curiam order affirmed the judgment of the District Court. 371 U. S. 223. The District Court dismissed appellants’ action to set aside an order of the Interstate Commerce Commission on two grounds: (1) that the appellants lacked standing to challenge the Commission’s order in the District Court; (2) that the appellants’ challenge to the Commission’s order was without merit. Our per curiam order affirmed the District Court’s judgment insofar as it upheld the validity of the Commission’s order on the merits. We disagreed that appellants lacked standing to challenge the Commission’s order in the District Court. The appellants are associations of motor carriers, authorized under 49 U. S. C. § 5b, and perform significant functions in the administration of the Interstate Commerce Act, including the representation of member carriers in proceedings before the Commission. Since individual member carriers of appellants will be aggrieved by the Commission’s order, and since appellants are proper representatives of the interests of their members, appellants have standing to challenge the validity of the Commission’s order in the District Court. See Administrative Procedure Act, 5 U. S. C. § 1009 (a); FCC v. Sanders Bros. Radio Station, 309 U. S. 470; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 459.
Mr. Justice Harlan concurs in the denial of the petition for rehearing and in the affirmance of the judgment of the District Court insofar as that judgment refused to set aside the order of the Interstate Commerce Commission. He believes, however, that the question of “standing” should not be decided without plenary consideration.
Mr. Justice Stewart would grant the petition for rehearing.
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:
|
sc_lcdisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
ENGELMAN, DIRECTOR, DIVISION OF PUBLIC WELFARE, DEPT. OF INSTITUTIONS AND AGENCIES, et al. v. AMOS et al.
No. 70-33.
Decided November 9, 1971
Per Curiam.
The motion of appellee Amos for leave to proceed in forma pauperis is granted.
A three-judge District Court has enjoined New Jersey-officials from enforcing a state regulation applicable to payments under the federally financed program for Aid to Families With Dependent Children, Title IV of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U. S. C. §§ 601-610:
The regulation in question, § 615 of the New Jersey Categorical Assistance Budget Manual, would deny AFDC benefits to the extent that a family’s “total available adjusted income,” calculated without deduction for the “income disregards” specified by § 402 (a) (8) of the federal Act, 42 U. S. C. §602 (a)(8), exceeds a ceiling specified by the State. The regulation is challenged on the grounds (1) that it is in conflict with § 402 (a) (8), and (2) that it fails to provide that, in the calculation of earned family income which is to be compared with the § 615 ceiling, a stepfather’s earnings are not to be taken into account unless they are “actually available” for the current use of the dependent child, 45 CFR § 233.20 (a) (3) (ii). It was also suggested in the proceedings below that § 615.5 of the state regulation conflicts with § 406 (b) of the federal Act, 42 U. S. C. § 606 (b), when it authorizes payments directly to vendors who provide goods or services to beneficiaries.
The District Court upheld the challenge on all three grounds. Judgment was entered enjoining the enforcement of § 615 “insofar as it violates the federal statute” and ordering that New Jersey “revise the regulation to conform to the federal statute.” The state officials appeal.
The appellants and also the United States, in its amicus curiae brief, appropriately point out that there is nothing in the federal statute that prohibits a State from making vendor payments so long as they are made from state funds without federal matching. The statute, § 406, merely does not provide for reimbursement to the State for payments of that kind. We agree with these observations by the appellants and the amicus, and thus disagree with the District Court’s conclusion with respect to direct payments insofar as those payments are made entirely with state funds not reimbursable under § 406 of the federal Act. With this limitation in the application of its general language, the judgment of the District Court is affirmed.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re BRASEA, INC., Petitioning for Exoneration from or limitation of liability. Petition of Roy Lewis C. WILLIAMS.
No. 78-1516
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 8, 1978.
Olney G. Wallis, Craig A. Washington, Houston, Tex., for petitioner.
Jack G. Carinhas, Jr., P. T. Moore, Jr., Brownsville, Tex., for Brasea, Inc.
Before THORNBERRY, GEE and FAY, Circuit Judges.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
We are once again visited with an appeal concerning the rights and liabilities of the parties to this unfortunate mishap. The claimant Williams was the master of the shrimp trawler Ciapesc I on December 10, 1969. Ho was seriously injured at sea when a winch was activated while his hands were entangled in the line. Suit was instituted against various parties, and, after a bench trial, damages in the amount of $527,500 wore assessed against three defendants. The award was reduced by 40% due to contributory negligence attributed to the plaintiff Williams. All parties appealed and this Court determined that two parties were not liable as a matter of law, and that remand for an additional factual finding was necessary to resolve the negligence issue. On remand, the trial court made the requisite factual determination, but incorrectly reduced the judgment to the extent of the contributory negligence attributed to Williams. On appeal, we remanded for entry of a final judgment in favor of Williams against Brasea, Inc., the owner of the vessel and the employer of the crew, in the full amount of $527,500. The final judgment was entered forthwith and no appeal was filed.
Brasea, Inc., then pursued this action for limitation of liability pursuant to 46 U.S.C. § 183. The district court granted limitation of liability on Brasea’s motion for summary judgment. This appeal followed.
The memorandum order granting summary judgment reveals the conclusion of the district court that summary judgment was proper because “all the issues necessary to the determination of the limitation question in this cause were finally adjudicated in the Corpus Christi case.” App. 99. We cannot agree. In ascertaining whether a shipowner is entitled to limitation, the Court must first determine which act or acts of negligence or conditions of unseaworthiness caused the injury. The Court then determines whether the shipowner had knowledge or privity of these specific acts or conditions. Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976). It is equally as well settled that in the limitation proceeding below the initial burden of proving negligence or unseaworthiness rested with the injured seaman. Id. at 10. The injured seaman sought to meet this burden in two distinct ways. First, the seaman requested that the court take judicial notice of the proceedings before Judge Cox and the findings of fact and conclusions of law resulting therefrom. App. 94. The negligence of crewman Terry was established in those proceedings. Second, the seaman sought to establish that the vessel was rendered unseaworthy by the alleged failure of Brasea, the owner, to provide a competent crew. See, Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir. 1968).
We conclude that the trial court improperly granted summary judgment without first considering whatever testimony or evidence the injured seaman may have on the issue of the competency of crewman Terry. The doctrine of collateral estoppel or issue preclusion does not operate as a roadblock under the facts of this case. The proceedings before Judge Cox only established that Terry was negligent and that equipment aboard the vessel did not render it unseaworthy. Of course, these issues may not be relitigated in the limitation proceeding. However, the issue of whether crewman Terry was incompetent at the time the vessel departed was not actually litigated in the prior proceedings. We therefore conclude that at this stage of the limitation proceedings there is a genuine issue of material fact which precludes the granting of summary judgment. Because this case must be remanded in any event, we deem it judicially efficient to direct the district court to likewise hear and consider such testimony and evidence which the injured seaman may wish to present on the issue of knowledge and privity. The court must consider this issue as to the negligence of Terry, and, additionally, will necessarily be required to consider this issue as to the failure of the owner to provide a competent crew in the event that Terry is found to have been incompetent at the time the vessel departed. We express no opinion as to the merits of the contentions of the injured seaman but note that the prior finding that Terry was negligent on the occasion in question does not establish as a matter of law that he was an incompetent seaman. This is because a competent seaman can on occasion engage in negligent conduct.
REVERSED AND REMANDED.
. We held that under the facts of this case the defendants Bender Welding & Machine Co., Inc., and Construction Machinery Company could not be found liable under a products liability theory for the supply of equipment alleged to be defective. We also affirmed the ruling of the district court that these two defendants were not negligent. Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974), opinion amended, 513 F.2d 301 (5th Cir. 1975), cert. denied, 423 U.S. 906, 96 S.Ct. 207, 46 L.Ed.2d 136 (1975).
. We instructed the trial court to determine whether crewman Terry acted pursuant to instructions from Williams in starting the winch, and directed that if this question was answered in the negative, the negligence of Terry would constitute the sole proximate cause of the plaintiffs injuries. 497 F.2d at 74.
. Williams v. Brasea, Inc., 549 F.2d 977 (5th Cir. 1977).
. The liability and damages issues were heard by the Honorable Owen Cox, Corpus Christi Division, whereas the limitation proceeding was held before the Honorable Reynaldo Garza, Brownsville Division.
. The court further concluded that because “the sole proximate cause of Williams’ injuries were the negligent acts of crewman Terry in operating the winch, it then follows that there is no basis upon which to charge petitioner Brasea, Inc., with any privity or knowledge with regard to Williams’ accident or injuries.” App. 99-100.
. See, Kaspar Wire Works, Inc. v. Leco Engineering and Machine, Inc., 575 F.2d 530 (5th Cir. 1978) for a thorough discussion of res judicata or “claim preclusion”, and collateral estoppel or “issue preclusion.”
. The burden of proof on the knowledge or privity issue, however, rests with the petitioner in limitation, Brasea, Inc. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976).
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
|
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).
John D. GILES a/k/a Johnny Cosack, Appellant, v. UNITED STATES of America, Appellee.
No. 25461.
United States Court of Appeals Fifth Circuit.
Oct. 9, 1968.
Michael J. Salmon, Mobile, Ala., for appellant.
Don Conway, Asst. U. S. Atty., Mobile, Ala., Vernol R. Jansen, Jr., U. S. Atty., for appellee.
Before COLEMAN and MORGAN, Circuit Judges, and HUNTER, District Judge.
PER CURIAM:
Giles appeals from a conviction, by a jury, on five counts of (1) Possession of a letter containing a United States check for $190.50 stolen from the United States Mail, knowing the same to be stolen, in violation of Title 18, § 1708, U.S.C.; (2) Forging and endorsing the United States check in the amount of $190.50 to receive the proceeds, in volation of Title 18, § 495, U.S.C.; (3) Possession of a letter containing a United States check for $81.60 stolen from the United States Mail, knowing the same to be stolen, in violation of Title 18, § 1708, U.S.C.; (4) Forging and endorsing the United States check in the amount of $81.60 to receive the proceeds, in violation of Title 18, § 495, U.S.C.; (5) Uttering, passing and publishing a forged check in the amount of $81.60, in violation of Title 18, § 495, U.S.C.
He was sentenced to imprisonment for a period of two years on each count, to run concurrently.
The evidence for the prosecution, accepted by the jury, fully established the corpus delicti of the offenses charged and no error is to be found in the denial of defense motions for directed verdicts of not guilty. There was no error in the original denial of a severance, in admitting the testimony of those who cashed the checks, or in the instructions to the jury.
Before the government completed the presentation of its case in chief Giles’ co-defendant, his half brother, McArthur, withdrew his plea of not guilty and entered a plea of guilty. The jury was not informed of this plea but was clearly advised that the co-defendant’s case would be disposed of at another time and place. At this point, counsel who had been representing both, moved for a mistrial and for the appointment of new counsel on the ground that a conflict of interest would exist as to his continued representation of Giles after McArthur had pleaded guilty. Recognizing, as we do, the principles announced in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 [see also Kaplan v. United States, 9 Cir., 1967, 375 F.2d 895] this guilty plea eliminated any conflict of interest, if any had theretofore existed. In fact, it allowed Giles to put all the blame on his former co-defendant and permitted counsel to concentrate solely on his defense, without the complication of having to carry along the additional client-defendant. The record shows that Giles was the beneficiary of most competent representation both at the trial and on appeal.
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:
|
songer_r_natpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONWIDE INSURANCE COMPANY, Appellant, v. Marian RESSEGUIE; Larry C. Resseguie, Personal Representative of the Estate of Richard Resseguie, Deceased.
No. 92-7131.
United States Court of Appeals, Third Circuit.
Argued Sept. 24, 1992.
Decided Nov. 17, 1992.
Richard B. Wickersham (argued), Brigid Q. Alford, Boswell, Snyder, Tintner & Pic-cola, Harrisburg, Pa., for appellant.
D. Peter Johnson (argued), Matson & Johnson, Lewisburg, Pa., for appellees.
Before: MANSMANN, ROTH and ROSENN, Circuit Judges.
OPINION OF THE COURT
ROTH, Circuit Judge:
This suit arises from a dispute over the meaning of § 1734 of the Pennsylvania Motor Vehicle Financial Responsibility Law. Appellant Nationwide Insurance Company (“Nationwide”) contends that the underin-sured motorist coverage of its named insured, appellee Marian Resseguie, was lowered by the verbal request of her husband. We are required to evaluate whether under Section 1734 of the Pennsylvania Motor Vehicle Financial Responsibility Law a request to lower underinsured motorist coverage must be in writing to be effective. Nationwide Insurance Company sought a declaration in the district court that the limits of underinsured motorist coverage in its policy issued to Marian Resseguie are $15,000 per person and $30,000 per accident. Marian Resseguie asserts that the policy’s underinsured motorist limits are equal to its bodily injury liability limits of $50,000 per person and $100,000 per accident.
In his memorandum opinion, the district judge stated that “[sjhort of a written request by Marian Resseguie for the lower coverage, or an admission on her part that she had actual knowledge of the lower coverage, Nationwide simply was not authorized to alter her policy.” Nationwide Insurance Co. v. Resseguie, 782 F.Supp. 292, 294 (M.D.Pa.1992) (emphasis added). The meaning of § 1734 is clear; we will therefore affirm the judgment of the district court insofar as it is based on the requirement that a request for lower coverage be in writing by a named insured. However, we do not agree with the further holding of the district court that “an admission on [Marian Resseguie’s] part that she had actual knowledge of the lower coverage” is legally significant.
I.
The parties do not dispute the material facts in this case. On July 28, 1983, Marian Resseguie signed an automobile insurance application for Nationwide automobile insurance on her 1980 Plymouth Volare four-door sedan. The application provided for bodily injury limits of $50,000 per person and $100,000 per accident (“$50,000/ $100,000”) and uninsured motorist (“UM”) coverage with limits of $15,000/$30,000. Marian Resseguie was the sole named insured on the policy; both Marian and her husband Richard were listed as drivers under the policy.
On October 1, 1984, the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.Cons.Stat.Ann. §§ 1701-99 (Supp. 1992) became effective. On November 14, 1984, approximately two and one-half months before the first policy renewal date following the MVFRL’s enactment, Nation-, wide mailed the “IMPORTANT NOTICE” required under § 1791 of the MVFRL to Marian Resseguie. The “IMPORTANT NOTICE” advised her that, pursuant to the MVFRL, Nationwide made available to her higher UM and underinsured motorist (“UIM”) coverage equal to the bodily injury liability limits of $50,000/$100,000. Nationwide also mailed her an options selection form.
On January 8, 1985, approximately twenty days before the renewal date of January 28, 1985, Nationwide mailed to Marian Res-seguie a renewal notice indicating that Nationwide had automatically provided the higher UM/UIM coverage because they had not received her option selection form. The renewal notice further advised her to contact her agent if she desired to make changes to her policy or to discuss the available options. Marian Resseguie did not contact her agent to make changes and on February 15, 1985, she personally delivered a cash payment to her Nationwide agent for the higher UIM coverage. On February 20, 1985, Nationwide issued and mailed to Marian Resseguie a policy with bodily injury liability limits of $50,000/ $100,000 and UM/UIM coverage limits of $50,000/$100,000. The message on the policy’s declaration page read: “Thank you for your renewal premium payment. This new policy replaces your former no-fault personal injury protection with your new first-party injury benefits coverages. — See premium notice enclosed.” App. at 61.
On February 20,1985, Richard Resseguie orally requested from Nationwide a reduction in UIM coverage limits from $50,000/ $100,000 to $15,000/$30,000. Following Richard Resseguie’s verbal request, a Nationwide agent’s secretary, in her own handwriting, issued a customer service request (“CSR”) providing for a reduction in UIM coverage from $50,000/$100,000 to $15,000/$30,000. Based upon this CSR, on March 5, 1985, Nationwide issued and mailed to Marian Resseguie a declaration setting forth the lower UM/UIM coverage limits on her policy. The message on the policy’s declaration page read: “Your policy has been changed effective 1/28/85 resulting in a premium reduction of $11.60 which has been applied to your premium balance. We have, on your 80 Plymouth Volare changed uninsured motorists coverage —See premium notice enclosed.” App. at 67.
Marian Resseguie, the named insured, never personally requested, either in writing or orally, that Nationwide lower her UM/UIM coverage limit from $50,000/ $100,000 to $15,000/$30,000, nor did she specifically authorize or direct her husband to do so. Furthermore, Nationwide never obtained a written request for the lower limits from Marian Resseguie. However, from 1985 up until 1989 Marian Resseguie received premium notices and paid premiums based on the $15,000/$30,000 UM/ UIM coverage.
Richard Resseguie was killed in an automobile accident on January 2, 1989, when a drunk driver hit his car head on. Richard Resseguie was an insured person under Marian Resseguie’s policy from Nationwide because he was a listed driver and because he was driving one of two vehicles insured under the policy at the time of his death. Marian Resseguie recovered the limits of the tortfeasor’s liability policy; yet, the recovery was insufficient to cover her losses or the estate’s loss.
Marian Resseguie notified Nationwide of her intent to request the higher UIM coverage limits on the policy. After learning of Marian Resseguie’s intention, Nationwide initiated this action in the district court for a declaratory judgment determining the UIM coverage limits of her policy.
On February 7, 1992, the United States District Court for the Middle District of Pennsylvania entered an Order and Memorandum Opinion, 782 F.Supp. 292, in favor of the Resseguies and against Nationwide. The district court judge accepted and adopted the parties’ Joint Statement of Stipulated Facts as the Findings of Fact and declared that, at the time of Richard Resseguie’s death, Marian Resseguie’s car insurance policy had underinsured motorist coverage equal to the bodily injury liability coverage of $50,000 per person and $100,-000 per occurrence. See App. at 131-32.
II.
The United States District Court for the Middle District of Pennsylvania had jurisdiction over this action based upon 28 U.S.C. §§ 2201 and 1332(a). Nationwide is a foreign corporation organized and existing under the laws of Ohio. Marian and Larry Resseguie reside in Lewisburg, Union County, Pennsylvania. We have jurisdiction over this appeal based upon 28 U.S.C. § 1291.
The district court, as a federal court exercising diversity jurisdiction over this declaratory judgment action, was obliged to apply the substantive law of the state in which it sits. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Because there is no reported decision by the Pennsylvania Supreme Court or by any Pennsylvania court that construes § 1734, the duty of the district judge under the Eñe doctrine was to predict how the Pennsylvania Supreme Court would interpret the requirements of § 1734 if this case were before it. Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1167 (3d Cir.1981). The district judge appears to have made his prediction of Pennsylvania law based on the plain meaning doctrine of statutory interpretation.
We review the district judge’s prediction as a determination of law, over which we exercise plenary review. Compagnie des Bauxites de Guinee v. Ins. Co. of N. Am., 724 F.2d 369, 371-72 (3d Cir.1983). In attempting to forecast state law, we must “consider relevant state precedents, analogous decisions, considered dicta, scholarly works, and any other reliable data tending convincingly to show how the highest court in the state would decide the issue at hand.” McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657, 663 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). See also Safeco Ins. Co. of Am. v. Wetherill, 622 F.2d 685, 688 (3d Cir.1980); Becker v. Interstate Properties, 569 F.2d 1203, 1205 (3d Cir.1977), cert. denied, 436 U.S. 906, 98 S.Ct. 2237, 56 L.Ed.2d 404 (1978).
III.
Our central focus in this appeal is on §§ 1731(a) and 1734 of the MVFRL that (1) require an insurer to provide UIM coverage equal to the bodily injury coverage in its policies and (2) allow a named insured to request lower UIM coverage limits than the bodily injury coverage amounts.
As a result of the enactment of the MVFRL, as of October 1, 1984, every motor vehicle liability insurance policy issued or renewed in the Commonwealth of Pennsylvania had to provide underinsured motorist coverage. Section 1731 of the Act provides, inter alia:
§ 1731. Scope and amount of coverage:
(a) General rule. — No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are provided therein or supplemental thereto in amounts equal to the bodily injury liability coverage except as provided in section 1734 (relating to request for lower or higher limits of coverage).
75 Pa.Cons.Stat.Ann. § 1731(a) (1984).
Section 1734, the only exception to the mandatory provisions of underinsurance mentioned in § 1731(a), states in pertinent part:
§ 1734. Request for lower or higher limits of coverage
A named insured may request in writing the issuance of coverages under section 1731 (relating to scope and amount of coverage) in amounts less than the limits of liability for bodily injury but in no event less than the amounts required by this chapter for bodily injury.
75 Pa.Cons.Stat.Ann. § 1734 (Supp.1992) (emphasis added).
Nationwide argues that Marian Resse-guie’s signature on a request form was simply not a prerequisite to Nationwide’s lowering her UIM coverage. Nationwide contends that “the clear meaning of section 1734 of the MVFRL is that an insured’s request for lower [underinsured] benefits be recorded in writing. Nowhere does the statute require that the insured sign that writing, or that the writing itself be actually transcribed by the insured....” The Resseguies argue that, according to § 1734, Nationwide is absolutely unauthorized to lower the UIM coverage without the written request of the named insured to do so.
The district court found that the statutory scheme of the MVFRL is clear. “Section 1734 requires the named insured to request in writing that the limits of her coverage be lowered. Short of a written request by Marian Resseguie for the lower coverage, ... Nationwide simply was not authorized to alter her policy.” Nationwide, 782 F.Supp. at 294. We agree with this portion of the district court’s holding.
We must then predict whether the Pennsylvania Supreme Court, given the facts of this case, would have come to the same interpretation of § 1734. Our task is made simple by virtue of the venerable plain meaning rule of statutory construction: “If the language be clear it is conclusive. There can be no construction where there is nothing to construe.” United States v. Hartwell, 73 U.S. (6 Wallace) 385, 396, 18 L.Ed. 830 (1867). Pennsylvania’s Statutory Construction Act commands the same: “When the words of the statute are clear and free from all ambiguity, the letter of it is. not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.Cons.Stat. Ann. § 1921(b) (Supp.1992).
The Resseguies argue, and we agree, that § 1731 is a simple statement whose plain meaning is apparent from its language. It mandates that an insurance company cannot issue a policy in the Commonwealth of Pennsylvania unless it provides UM/UIM coverage equal to the bodily injury liability coverage, except as provided in § 1734. See also Wolgemuth v. Harleysville Mut. Ins. Co., 370 Pa.Super. 51, 535 A.2d 1145, 1147, appeal dismissed, 520 Pa. 590, 551 A.2d 216 (Pa.1988) (every motor vehicle liability insurance policy issued in the Commonwealth of Pennsylvania must provide underinsurance coverage). Nationwide does not quarrel with this interpretation of § 173l’s mandate.
The Resseguies also argue, and we also agree, that § 1734’s language is plain and the Pennsylvania General Assembly’s intention is clear. By its terms, a named insured may lower her statutorily provided UIM coverage limits by requesting in writing of her insurer to do so. The insurance company’s obligation to issue a policy with UIM coverage in an amount equal to the policy’s bodily injury liability coverage is not relieved unless it has received such a written request.
Moreover, a brief review of the history and purpose of UIM coverage evinces the standard by which to interpret § 1734 and supports our conclusion. Prior to the passage of the MVFRL, underinsured motorist coverage, unlike uninsured motorist coverage, was not required in Pennsylvania or regulated by statute. See Votedian v. General Acc. Fire and Life Assur. Corp., 330 Pa.Super. 13, 478 A.2d 1324, 1327 (1984). The Pennsylvania Supreme Court in Davis v. Government Employees Ins. Co., 500 Pa. 84, 454 A.2d 973 (1982), recognized the often inequitable results occasioned by the failure to require mandatory underinsured motorist coverage and noted:
the oft cited anomaly that those in the position of [claimants who had purchased uninsured motorist coverage and who were injured by a minimally insured driver] would find themselves in a better position were the tortfeasor’s vehicle totally uninsured rather than underin-sured.” Gorton v. Reliance Ins. Co., [77 N.J. 563], 391 A.2d 1219, 1223 (N.J.1978). This anomaly, however, stems from the fact that the legislature has chosen not to require insurance coverage for those instances in which a tortfeasor’s insurance is insufficient to satisfy the injured party’s claim.
Davis, 454 A.2d at 976 (footnote omitted). The Pennsylvania General Assembly responded to and resolved this anomaly with the passage of the MVFRL. See Wolgemuth, 535 A.2d at 1148.
The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000 of liability coverage to protect others from his negligence, must, by law, be offered the option of purchasing up to $100,000 of underin-sured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries. Wolgemuth, 535 A.2d at 1149.
The Pennsylvania Supreme Court decided Johnson v. Concord Mut. Ins. Co., 450 Pa. 614, 300 A.2d 61 (1973) before the General Assembly enacted the MVFRL. However, the high court supplied the statutory construction scheme which remains relevant to this case:
[o]ur determination here is in harmony with the view that the “statute evolves from public policy considerations and must be broadly and liberally construed to accomplish this purpose. Conversely, that portion of the statute permitting rejection of uninsured motorist coverage detracts from the public policy considerations and must therefore be narrowly and strictly construed.
Johnson, 300 A.2d at 64 (emphasis added).
Reduction of Marian Resseguie’s UIM coverage limits in this case detracts from the public policy considerations but is permissible; just as rejection of UM coverage in Johnson detracted from public policy considerations. Therefore, we predict that the Pennsylvania Supreme Court would narrowly and strictly construe the provision of the MVFRL that allows an insured to request lower UIM coverage limits than are mandated by § 1731.
We therefore reject Nationwide’s argument that “the writing necessary to effect Marian Resseguie’s request that her UIM benefits be reduced ... is the February 20, 1985 written Customer Service Request, generated as a result of Richard Resseguie’s verbal instructions to the Nationwide Insurance office.” We agree with the district court that to accept Nationwide’s argument on the meaning of § 1734 “would defeat the purpose of the MVFRL by creating unintended ambiguities in the law. It is a very simple, clear-cut rule for an insurance company to follow — to lower the limits it must insist on a written authorization signed by the named insured.” Nationwide, 782 F.Supp. at 294.
Furthermore, as the district court correctly pointed out, all of the cases that Nationwide cites in support of its argument are factually distinguishable. In those cases, it was undisputed that at least one of the named insureds had requested, either in writing or orally, a change in the limits. Richard Resseguie was not a named insured on Marian Resseguie’s policy. In the two cited cases involving oral requests, Nationwide Ins. Co. v. Tantorno, No. 90-4639, 1991 WL 24921, 1991 U.S. Dist. LEXIS 2169 (E.D.Pa. February 19, 1991) and Electric Insurance Co. v. Richardson, No. 91-2338, 1991 WL 259054, 1991 U.S. Dist. LEXIS 17487 (E.D.Pa. December 3, 1991), the named insureds orally requested an increase of the bodily injury rates on a policy that the court found had been lawfully issued under § 1731. This case involves an oral request for a reduction in the UM/UIM coverage limits.
IV.
For the foregoing reasons, we will affirm the judgment of the district court insofar as it is based on the requirement that a request for lower coverage be in writing by a named insured. We will, however, reject the district court’s holding that an admission on the part of the named insured that she had actual knowledge of the lower coverage is legally significant.
. A CSR, Nationwide’s abbreviation for Customer Service Request, is a document used by Nationwide agents to inform the regional Nationwide office that a customer wishes to add to, delete from, or otherwise change his or her existing policy terms. Upon receiving direction from a customer that she wishes to change a policy term (including but not limited to coverage limits, and number or type of vehicles), the Nationwide agent or, at his direction, the agent’s employee, fills out a CSR manually in the agent's office, and sends the CSR to the regional Nationwide office, where Nationwide enters the changes into the system and sends a copy of the revised declaration page to the policyholder, and a copy of the CSR showing the revised coverages to the local agent. See App. at 25.
. Despite its omission from the declaration page, underinsured motorist coverage, not uninsured motorist coverage, is the subject of this case and was similarly changed.
. The MVFRL states that "[u]nderinsurance motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.Cons.Stat.Ann. § 1731(c) (Supp. 1992). An underinsured motor vehicle is "a motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages." Id. at § 1702.
.Defendant, Larry C. Resseguie, is the son of Richard Resseguie and is the personal representative of Richard Resseguie’s estate. See App. at 22.
. The insured may not, however, purchase UIM coverage in an amount greater than the amount of her bodily injury coverage. See Pa.Cons.Stat. Ann. § 1736. The legislature has thus prevented an insured from providing greater coverage, via UM/UIM coverages, for herself and her additional insureds than the amount of coverage she provides for others injured through her negligence.
. The rationale behind this circumscription is that "limits which the insured judged adequate for the protection of others was [sic] generally considered reasonable for his own protection.” 3 No-Fault and Uninsured Motorist Coverage § 30.10(1) (B. Denkensohn ed. 1986) cited in Linda L. Rovder, “In Good Hands" or “Bad Faith"? An Insurer’s Failure to Waive Subrogation Rights in Pennsylvania Underinsured Motorist Cases, 91 Dick.L.Rev. 981, 993 (1987).
. The statutory language of sections 1731 and 1734 prior to July 1, 1990 govern this case. Act No. 1990-6 amended these sections slightly.
. Nationwide also argues that the district court erred, as a matter of law, in failing to decide whether Richard Resseguie was Marian Resse-guie’s agent and whether his verbal request to lower the UIM coverage limits on her policy were binding upon her, as principal. Because the plain meaning of § 1734 of the MVFRL resolves the legal issue in this case, we do not need to reach Nationwide’s agency claim on appeal.
. In Johnson, the court construed a predecessor statute to the MVFRL, the No-Fault Motor Vehicle Insurance Act, 40 Pa.Cons.Stat.Ann. § 2000 (1971).
. The rationale for the inclusion of mandatory underinsured motorist coverage in the MVFRL was not the subject of debate or specific discussion by the members of either the House or the Senate. However, James F. Mundy, as President of the Pennsylvania Trial Lawyers Association, testified before the Pennsylvania legislature on the MVFRL. Mr. Mundy co-authored a book which "offer[s] practitioners and the judiciary an instructional work to assist in making one’s way through the complex legal permutations and gyrations" of the MVFRL. His interpretation of §§ 1731 and 1734 is that "[t]he insurer must provide coverage in an amount equal to the insured’s liability limits unless the insured expressly requests lower limits in writing.” James F. Mundy et al., Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law at 7 (1986) (emphasis added).
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_casetyp1_2-3-3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights - other civil rights".
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 specific issue in the case within the general category of "civil rights - other civil rights"?
A. alien petitions - (includes disputes over attempts at deportation)
B. indian rights and law
C. juveniles
D. poverty law, rights of indigents (civil)
E. rights of handicapped (includes employment)
F. age discrimination (includes employment)
G. discrimination based on religion or nationality
H. discrimination based on sexual preference federal government (other than categories above)
I. other 14th amendment and civil rights act cases
J. 290 challenge to hiring, firing, promotion decision of federal government (other than categories above)
K. other civil rights
Answer:
|
songer_abusedis
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
In re Ronald KIRSH; In re Paula Kirsh, Debtors. EUGENE PARKS LAW CORPORATION DEFINED BENEFIT PENSION PLAN, Plaintiff-Appellant, v. Ronald KIRSH; Paula Kirsh, Defendants-Appellees.
No. 91-55701.
United States Court of Appeals, Ninth Circuit.
Submitted July 6, 1992.
Decided Aug. 31, 1992.
Gary Brown, Century City, Cal., for plaintiff-appellant.
James M. Leonard, Leonard & Zeitsoff, Los Angeles, Cal., for defendants-appel-lees.
Before FARRIS, WIGGINS and FERNANDEZ, Circuit Judges.
The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a).
PER CURIAM:
Ronald and Paula Kirsh (the Kirshes) filed for bankruptcy, and the Eugene Parks Deferred Benefit Pension Plan (the Plan) asked that the Kirshes’ debt to it be found nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). The bankruptcy court denied that request because it found that the Plan had not relied on the Kirshes’ false representations. The district court affirmed the bankruptcy court. We affirm.
BACKGROUND
Eugene Parks (Parks) is an attorney who established the Plan to provide for his retirement. Parks had been practicing law for twenty years and the area of his practice was business law. That included handling real estate transactions in which he represented buyers, sellers or brokers. The Plan was intended to be the basis of Parks’ retirement security, so in his capacity as its administrator he was cautious about lending the Plan’s money. He did not use it for speculative purposes.
Ronald Kirsh (Kirsh) had been a client of Parks for ten years and their relationship was not simply that of attorney and client. They socialized together and, as Kirsh said, Parks “was everything to me. He was all my advice, he was all my legal advice, all my personal advice, all my marital advice.” In a 1987 letter, Kirsh wrote, “I think of you like my own father.... Thank you, your son Ronnie.” Clearly, these men were very close personal friends.
In 1987, the Kirshes had fallen on hard times and were deeply in debt. Parks knew that the Kirshes did not always pay their legal bills on time, but he still agreed to lend them money from the Plan. In doing that, he insisted upon receiving security in the form of a deed of trust on real property owned by the Kirshes. He also obtained a little additional security by having the Kirshes give him postdated checks for the first four interest payments. This dispute revolves around that loan transaction.
The loan was in the amount of $40,000 and the Kirshes gave the Plan a deed of trust on a condominium they owned. The note which that deed of trust secured contained the following recitals:
A. Warrantee [sic]: For the purpose of inducing the Payee/Lender to make this loan, we represent that:
(a) The present value of the property securing this loan is $240,000.00; and
(b) The only encumbrance senior to this loan is a First Deed of Trust in favor of Glendale Federal S & L Association with an outstanding loan balance of approximately $140,000.00.
The terms of the loan to the Kirshes were fair, reasonable, and fully disclosed to them. There was not a breath of actual overreaching on the part of Parks. Neither the Plan nor Parks ordered a title report of any kind. They simply accepted the Kirshes’ representations about the state of the security.
Those representations were false. In fact, the property was encumbered by two deeds of trust. One secured a loan from Glendale Federal Savings and Loan with an unpaid balance of $133,200. That loan was in default. The other, which was taken out just one month before the transaction with the Plan, secured a loan with a balance of $120,000 from Mercantile National Bank. The Plan’s note was therefore secured by a third deed of trust. When the condominium was ultimately foreclosed upon, the Plan received nothing. The proceeds of the sale were just enough to pay off Glendale Federal and to leave about $17,200 for Mercantile National.
The Plan received very little return on its investment before the Kirshes filed bankruptcy. It claimed that it had been defrauded and sought to exempt the debt from discharge, but the bankruptcy court found in favor of the Kirshes. The district court affirmed, and the Plan appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 158(d) and 28 U.S.C. § 1291.
We review the bankruptcy court’s findings of fact under the clearly erroneous standard, and its conclusions of law de novo. In re Jogert, Inc., 950 F.2d 1498, 1505 (9th Cir.1991). The determination of justifiable reliance is a question of fact subject to the clearly erroneous standard of review. See id., where the phrase “reasonable reliance” was used, about which we will say more in this opinion. The issue of nondischargeability is a question of federal law and is governed by the provisions of the Bankruptcy Code. Grogan v. Garner, — U.S.-,-, 111 S.Ct. 654, 658, 112 L.Ed.2d 755 (1991).
DISCUSSION
As we have already pointed out, when the Kirshes sought the protection of the bankruptcy court, the Plan sought to prevent the discharge of their debt. It relied upon the fraud provision of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A). Section 523(a)(2) provides in pertinent part that a debtor is not entitled to be discharged from any debt to the extent that the debt was obtained by:
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B) use of a statement in writing—
(i) that is materially false;
(ii) respecting the debtor’s or an insider’s financial condition;
(iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv) that the debtor caused to be made or published with intent to deceive....
As a plain reading of the statute shows, parts (A) and (B) are mutually exclusive, the former referring to representations other than those respecting the debt- or’s financial condition and the latter referring specifically to written statements of financial condition. This difference has been recognized by other courts. See In re Ophaug, 827 F.2d 340, 342-43 (8th Cir.1987); In re Seaborne, 106 B.R. 711, 714 (Bankr.M.D.Fla.1989). Cf. In re Siriani, 967 F.2d 302, 304 (9th Cir.1992) (“the two subsections of section 523 are substantially similar”). For present purposes it is enough to point out that the statement we are considering did not purport to set forth the debtors’ net worth or overall financial condition, so our analysis must revolve around 11 U.S.C. § 523(a)(2)(A).
We have outlined the elements which a creditor must prove in order to preclude a debtor’s discharge. Those are:
(1) [that] the debtor made the representations;
(2) that at the time he knew they were false;
(3) that he made them with the intention and purpose of deceiving the creditor;
(4) that the creditor relied on such representations;
(5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.
In re Britton, 950 F.2d 602, 604 (9th Cir.1991) (quoting In re Houtman, 568 F.2d 651, 655 (9th Cir.1978) (emphasis omitted)).
In this case, there can be no doubt that the Kirshes made representations which they knew were false and that they made those representations with the intention of deceiving Parks and the Plan. Nor can it be doubted that those representations were the proximate cause of the Plan’s losses. Thus, elements (1), (2), (3) and (5) are satisfied. Our analysis will therefore focus upon the fourth element. The Kirshes contend that the Plan did not prove that element by a preponderance of the evidence. That is the Plan’s burden. See Grogan, — U.S. at -, 111 S.Ct. at 658. The Kirshes also contend that since Parks was their attorney, the Plan should not be able to prevent their discharge. We will consider each of these issues in turn.
A. Reliance.
(1) The Legal Standard.
The courts have had some difficulty with the reliance issue and that has, at least on the surface, generated a split among the circuits. That split is over what word should implicitly or explicitly precede the word “reliance.” Should we say “actual reliance” or “reasonable reliance” or “justifiable reliance”? We now decide that the latter phrase is the proper one and that it most accurately describes what the courts have actually done.
We start with the Supreme Court’s observation that we are deciding a question of federal, not state, law. Grogan, — U.S. at-, 111 S.Ct. at 658-59. That, of course, does not reveal the content of the federal law itself, but there is reason to think that it is simply the common law. The Supreme Court has pointed us in that direction. While the Court has recognized the fresh start purpose of the bankruptcy law, it has also emphasized that the real concern is for the “honest but unfortunate debtor.” Id. at-, 111 S.Ct. at 659. The Court completed that thought by stating: “We think it unlikely that Congress, in fashioning the standard of proof that governs the applicability of these provisions, would have favored the interest in giving perpetrators of fraud a fresh start over the interest in protecting victims of fraud.” Id. This suggests to us that the Court had the usual common law standard in mind, rather than some exotic standard designed to give more protection to the perpetrators of fraud. Nor is there any reason to believe that Congress itself intended to alter the common law when it adopted section 523(a)(2)(A). Rather, as the court suggested in In re Howarter, 114 B.R. 682, 685-86 (B.A.P. 9th Cir.1990), it is most likely that Congress was referring to the common law definition of fraud when it adopted that section. Perhaps Congress intended to deviate from that definition when it went out of its way to set forth a specific standard for section 523(a)(2)(B), one that referred to reasonable reliance, but we need not decide that question here. Compare Siriani, 967 F.2d at 304 (the provisions are similar) with Ophaug, 827 F.2d at 342-43 (the provisions set forth different standards).
If common law is to apply, it is important to identify the content of that law. We turn to two of the best sources of that law, the well-known Prosser and Keeton on the Law of Torts and the Restatement (Second) of Torts. They make it quite clear that at common law the justifiable reliance standard is the proper one.
Prosser and Keeton declares that reliance must be justifiable, which, as it says, seems to be for the purpose of “providing some objective corroboration to plaintiffs claim that he did rely.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 108 at 749-50 (5th ed. 1984). As that work points out, the standard is not that of the average reasonable person. It is a more subjective standard which takes into account the knowledge and relationship of the parties themselves. Thus, “a person of normal intelligence, experience and education ... may not put faith in representations which any such normal person would recognize at once as prepos-terous_” Id. at 750. At the same time, the standard does protect the ignorant, the gullible, and the dimwitted, for “ ‘no rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool.’ ” Id. at 751 (footnote and citation omitted). On the other hand, if a person does have “special knowledge, experience and competence” he may not be permitted to rely on representations that an ordinary person would properly accept. Id. In other words, while reasonableness of behavior is a factor in the mix, it is only a factor. The more precise question is whether the person who claims to have been gulled was justified in relying. The difference in approach can make a significant difference in the result of the analysis.
The Restatement is to the same effect. It declares that one can recover for a fraudulent representation if “his reliance is justifiable.” Restatement (Second) of Torts § 537(b) (1977). It goes on to state that where there is justifiable reliance on a fraudulent misrepresentation, a person’s recovery will not be barred by his contributory negligence. Id. § 545A. However, a person cannot rely upon a representation if “he knows that it is false or its falsity is obvious to him.” Id. § 541. This rule is illustrated by the following example:
[Ijf one induces another to buy a horse by representing it to be sound, the purchaser cannot recover even though the horse has but one eye, if the horse is shown to the purchaser before he buys it and the slightest inspection would have disclosed the defect. On the other hand, the rule stated in this Section applies only when the recipient of the misrepresentation is capable of appreciating its falsity at the time by the use of his senses. Thus a defect that any experienced horseman would at once recognize at first glance may not be patent to a person who has had no experience with horses.
Id. at § 541 cmt a.
On the other hand, one who receives a fraudulent misrepresentation of a fact “is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.” Id. § 540. That even applies to people who do not examine the public records in real estate transactions, for “[t]he recording acts are not intended as a protection for fraudulent liars.” Id, § 540 cmt b.
While, as we have said, we are applying federal, not state, law, it is worth noting that California, where the Kirshes’ acts took place, follows the rules we have just explicated. Its law was defined over fifty years ago when Justice Traynor wrote Seeger v. Odell, 18 Cal.2d 409, 115 P.2d 977 (1941). There, through various machinations some bounders managed to deprive an elderly couple of their property. The falsity of the representations would have been apparent to any person who looked at the public records. Moreover, the couple actually lived on the land which, the con artists said, had been sold at a sheriffs sale. The court synopsized the law as follows: A plaintiff must show that “he was justified in his reliance,” but negligence in failing to discover an intentional misrepresentation is no defense. 18 Cal.2d at 414, 115 P.2d 977. Moreover, “[t]he fact that an investigation would have revealed the falsity of the misrepresentation will not alone bar his recovery, and it is well established that he is not held to constructive notice of a public record which would reveal the true facts.” Id. at 414-15, 115 P.2d 977 (citations omitted). “Nor is the plaintiff held to the standard of precaution or of minimum knowledge of a hypothetical reasonable man.” Id. at 415, 115 P.2d 977. It is only if “the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable” that he will be denied recovery — a person cannot purport to rely on preposterous representations or close his eyes “to avoid discovery of the truth....” Id. Thus, the court said, neither public records nor the argument that a person should know the state of his own title could preclude recovery. Id. at 415-16, 115 P.2d 977.
We have recognized this reading of the California law. In Jogert we referred to the standard as being that of “reasonable reliance” but we went on to describe that standard as California does. ■ In other words, we described it in the language of justifiable reliance. 950 F.2d at 1505-07. This use of the word “reasonable” in place of “justifiable” is of no real moment unless a later reader is led away from the true content of the reliance element.
Having outlined the common law, it remains to us to consider the cases which have spoken to the reliance issue in the bankruptcy context.
This circuit has not explicitly stated what the standard should be. We have just described Jogert which arose in the context of a bankruptcy case, but it applied California law and did not purport to consider the meaning of section 523(a)(2)(A). We have also mentioned Britton, 950 F.2d at 604, where the unadorned word “reliance” was used. Our decisions in In re Houtman, 568 F.2d 651, 655 (9th Cir.1978) and In re Taylor, 514 F.2d 1370, 1373 (9th Cir.1975), are to the same effect as Britton.
We had occasion to mention the standard again in In re Rubin, 875 F.2d 755 (9th Cir.1989). However, while we said that the creditor’s reliance was reasonable, we expressly declined to decide whether reasonable reliance was required. Id. at 759 n. 2. In doing so, we set out a group of facts that described a case of justifiable reliance. Id. at 759. See also In re Ashley, 903 F.2d 599, 604 n. 6 (9th Cir.1990). Most recently, in Siriani, we suggested that “reasonable reliance” was required; however, that statement was not only dictum but also suggested that Rubin so held, which it did not. Siriani, 967 F.2d at 304.
Other circuits have been somewhat more explicit. The Eighth Circuit, in particular, has said that only actual reliance is required. In Ophaug that court considered a case where a person loaned money to a friend of his, a man he had known and socialized with for over ten years. 827 F.2d at 341. Ophaug had represented that the money was to be used to purchase some other land, and had given a security interest in machinery for the purpose of securing his note. The money was not intended for a land purchase and the machinery was already encumbered. The bankruptcy court held against the creditor because, as it said, his reliance was not reasonable. Id. at 342. The Eighth Circuit declared that it need not be reasonable but need only be actual, which it was. Id. at 343. A similar set of facts is found in In re Phillips, 804 F.2d 930 (6th Cir.1986). There the lender was a banker and an attorney. He loaned money to a friend whom he had known for twenty-five years, and took back a mortgage to secure the debt. He did not seek a title report, “due to his long personal relationship with the Phillips.”- Id. at 931. The bankruptcy court and the district court both found that the creditor’s reliance was unreasonable. The Sixth Circuit reversed. It held that considering the long friendship and the fact that the creditor had no reason to distrust Phillips, the bankruptcy and district courts had held the creditor “to an overly stringent legal standard of ‘reasonableness.’ ” Id. at 933. What is most interesting about this pair of cases is that both seem to be applying a standard of justifiable reliance, even though one court — the Eighth Circuit — said actual reliance was enough and the other court — the Sixth Circuit — applied a standard of reasonable reliance. In both cases, it is fair to say that the lender simply relied upon the honesty of an old friend, who took advantage of him. That is a typical case of justifiable reliance. It is rather doubtful that the Eighth Circuit would find actual reliance in other circumstances, for example, if a person’s claimed reliance was manifestly unreasonable, preposterous, or the result of an intentional closing of his own eyes to the facts. The same can be said of the Sixth Circuit's application of the concept of reasonable reliance.
The other cases in this area are to much the same effect. We will not unduly extend this opinion by canvassing their facts in depth, but will make a brief mention of some of them. See In re Allison, 960 F.2d 481, 485 (5th Cir.1992) (applies “actual reliance” but describes facts that would justify reliance); In re Mullet, 817 F.2d 677, 679 (10th Cir.1987) (applies “reasonable reliance” and found it did not exist where a bank rather blindly accepted the word of an unknown, unproven, twenty-three year old customer); In re Kimzey, 761 F.2d 421, 423 (7th Cir.1985) (applies “reasonable reliance” and finds bank’s reliance on the word of a regular customer to be reasonable, even though the bank knew that he was short of capital); In re White, 130 B.R. 979, 987 (Bankr.D.Mont.1991) (applies “reasonable reliance” but described the creditor’s acts as such “unreasonably reckless wishful thinking as to constitute no reliance at all”); Seaborne, 106 B.R. at 714 (applies “actual reliance” but the creditor’s acts appear to have been justified); In re Burklow, 60 B.R. 728, 732 (Bankr.S.D.Cal. 1986) (applies “reasonable reliance” and finds the creditors reliance reasonable because the test is subjective and the creditor relied upon a friend).
Finally, we return to Howarter, the decision of the Ninth Circuit Bankruptcy Appellate Panel. In that case, again, the court declared that it was adopting the common law and stated that reasonable reliance was required. 114 B.R. at 685-86. The facts, however, are instructive. The debtor had an investment business and the creditor had invested through him in the past. When asked about a particular investment, the debtor told the creditor not to make it. When asked again, the creditor was told not to borrow on his own residence for the purpose of making the investment. The creditor then independently learned that there were serious problems with the investment. He still persisted and the debtor finally accepted some money from him. Id. at 683-84. Given that set of facts, the court found no reasonable reliance. This does, however, look like the classic case of a lack of justifiable reliance — the kind of situation where the creditor “ ‘must have closed his eyes to avoid discovery of the truth....’” Seeger, 18 Cal.2d at 415, 115 P.2d 977 (citation omitted).
Thus, we conclude that a creditor must prove justifiable reliance upon the representations of the debtor. In determining that issue, the court must look to all of the circumstances surrounding the particular transaction, and must particularly consider the subjective effect of those circumstances upon the creditor.
(2) Application of Legal Standard.
When the bankruptcy court decided this case it spoke in terms of reasonableness but its findings indicate that Parks did not justifiably rely upon the Kirshes’ representations regarding the state of their title.
Parks was no ordinary person. In fact, he was not even an ordinary attorney. He had been practicing for twenty years and concentrated on business law. He was well aware of the fact that standard practice in California was for lenders to obtain title reports. Lenders do not merely rely upon the representations of borrowers. That is especially true when the lender knows that the borrower is having financial difficulties and does not always pay his bills in a timely fashion. We recognize that Parks and Kirsh were very close friends, but that does not excuse Parks’ throwing of all caution to the winds and relying on the Kirshes’ word alone. Obtaining a title report is a simple and not overly expensive proposition. A person with Parks’ knowledge, experience and competence should have ordered one. Thus, this case differs from Ophaug where the creditor was not an expert and did not know that the debtor was in any financial difficulty. 827 F.2d at 341. Nor is it like Phillips where the creditor was not a practicing attorney. 804 F.2d at 931.
In short, given the facts of this case the bankruptcy court did not err when it found that Parks did not rely upon the Kirshes’ representations within the meaning of section 523(a)(2)(A).
B. The Attorney-Client Relationship.
The Kirshes argue that Parks entered into this transaction with a client and did not fully comply with the California Rules of Professional Conduct. Thus, they assert, the Plan should be precluded from obtaining relief in this proceeding.
At the time of this transaction the Rules of Professional Conduct required an attorney to refrain from entering into business transactions with his client unless: (1) the transaction and terms were fair and reasonable to the client fully disclosed in writing, and in language the client should reasonably have understood; (2) the client consented to the transaction in writing; and (3) the client was given a reasonable opportunity to seek the advice of independent counsel. See Cal.R.Prof. Conduct, 5-101 (repealed). The bankruptcy court determined that Parks had complied with the first two of these requirements. However, it also found that Kirsh did not have an opportunity to consult with another attorney.
Taking those findings as accurate, we agree with the bankruptcy court that they do not preclude the Plan’s petition. The Rules of Professional Conduct do not establish substantive legal duties— they neither create, augment nor diminish any duties. Cal.R.Prof. Conduct 1-100. While the rules can be evidence of a breach of fiduciary duty, they do not, standing alone, prove the breach. See, Mirabito v. Liccardo, 4 Cal.App. 4th 41, 44-46, 5 Cal.Rptr.2d 571 (1992). No such breach appeared in this case.
This is not a case where a faithless attorney has taken advantage of his client. Quite the reverse. In this case, the Kirshes took advantage of a personal relationship and relieved the Plan of $40,000. The Rules of Professional Conduct were designed for particular purposes. They were not intended as a protection for clients who wrong their lawyers.
CONCLUSION
We hold that the bankruptcy court correctly determined that the Kirshes could discharge their debt to the Plan. On the facts of this case, the Plan did not justifiably rely upon the Kirshes’ representations about the state of their title.
AFFIRMED.
Question: Did the court conclude that it should defer to agency discretion? For example, if the action was committed to agency discretion.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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sc_adminaction_is
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
DOUGHERTY COUNTY, GEORGIA, BOARD OF EDUCATION et al. v. WHITE
No. 77-120.
Argued October 2-3, 1978
Decided November 28, 1978
MARSHALL, J., delivered the opinion of the Court, in which BreNNAN, White, BlacicmuN, and SteveNS, JJ., joined. SteveNS, J., filed a concurring statement, post, p. 47. Stewart, J., filed a dissenting statement, post, p. 47. Powell, J., filed a dissenting opinion, in which Burger, C. J., and RehNquist, J., joined, post, p. 47.
Jesse W. Walters argued the cause and filed a brief for appellants.
John R. Myer argued the cause for appellee. With him on the brief were Robert A. Murphy, William E. Caldwell, and Norman J. Chachkin.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General Days, and Brian K. Landsberg.
Mr. Justice Marshall
delivered the opinion of the Court.
Under § 5 of the Voting Rights Act of 1965, all States and political subdivisions covered by § 4 of the Act must submit any proposed change affecting voting, for preclearance by the Attorney General or the District Court for the District of Columbia. At issue in this appeal is whether a county board of education in a covered State must seek approval of a rule requiring its employees to take unpaid leaves of absence while they campaign for elective office. Resolution of this question necessitates two related inquiries: first, whether a rule governing leave for employee candidates is a “standard, practice, or procedure with respect to voting” within the meaning of § 5 of the Voting Rights Act; and second, whether a county school board is a “political subdivision” within the purview of the Act.
I
The facts in this case are not in dispute. Appellee, a Negro, is employed as Assistant Coordinator of Student Personnel Services by appellant Dougherty County Board of Education (Board). In May 1972, he announced his candidacy for the Georgia House of Representatives. Less than a month later, on June 12, 1972, the Board adopted Rule 58 without seeking prior federal approval. Rule 58 provides:
“POLITICAL OFFICE. Any employee of the school system who becomes a candidate for any elective political office, will be required to take a leave of absence, without pay, such leave becoming effective upon the qualifying for such elective office and continuing for the duration of such political activity, and during the period of service in such office, if elected thereto.”
Appellee qualified as a candidate for the Democratic primary in June 1972, and was compelled by Rule 58 to take a leave of absence without pay. After his defeat in the August primary, appellee was reinstated. Again in June 1974, he qualified as a candidate for the Georgia House and was forced to take leave. He was successful in both the August primary and the November general election. Accordingly, his leave continued through mid-November 1974. Appellee took a third leave of absence in June 1976, when he qualified to run for re-election. When it became clear in September that he would be unopposed in the November 1976 election, appellee was reinstated. As a consequence of those mandatory leaves, appellee lost pay in the amount of $2,810 in 1972, $4,780 in 1974, and $3,750 in 1976.
In June 1976, appellee filed this action in the Middle District of Georgia alleging that Rule 58 was a “standard, practice, or procedure with respect to voting” adopted by a covered entity and therefore subject to the preclearance requirements of § 5 of the Act. Appellee averred that he was the first Negro in recent memory, perhaps since Reconstruction, to run for the Georgia General Assembly from Dougherty County. The Board did not contest this fact, and further acknowledged that it was aware of no individual other than appellee who had run for public office while an employee of the Dougherty County Board of Education.
On cross motions for summary judgment, the three-judge District Court held that Rule 58 should have been submitted for federal approval before implementation. 431 F. Supp. 919 (1977). In so ruling, the court correctly declined to decide the ultimate question that the Attorney General or the District of Columbia court would face on submission of the Rule for preclearance under § 5 — whether the change in fact had a discriminatory purpose or effect. See Perkins v. Matthews, 400 U. S. 379, 383-385 (1971). Rather, the District Court confined its review to the preliminary issue whether Rule 58 had the “potential” for discrimination and hence was subject to § 5. Georgia v. United States, 411 U. S. 526, 534 (1973). In concluding that the Rule did have such potential, the District Court interpreted Allen v. State Board of Elections, 393 U. S. 544 (1969), and Georgia v. United States, supra, to mandate preclearance of any modification by a covered State or political subdivision “which restricts the ability of citizens to run for office.” 431 F. Supp., at 922. The court reasoned that Rule 58 was such a modification because:
“By imposing a financial loss on [Board] employees who choose to become candidates, [the Rule] makes it more difficult for them to participate in the democratic process and, consequently, restricts the field from which the voters may select their representatives.” Ibid.
The District Court therefore enjoined enforcement of Rule 58 pending compliance with the preclearance requirements of § 5. We noted probable jurisdiction. 435 U. S. 921 (1978). Since we find Allen v. State Board of Elections, supra, and United States v. Board of Comm’rs of Sheffield, 435 U. S. 110 (1978), dispositive of the issues presented in this appeal, we affirm.
II
Section 5 provides that whenever a covered State or political subdivision “shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,” it may not implement that change until it either secures a determination from the District Court for the District of Columbia that the change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color” or submits the change to the Attorney General and he interposes no objection within 60 days. 42 U. S. C. § 1973c (emphasis added). Although §14 (c)(1) expansively defines the term “voting” to “include all action necessary to make a vote effective,” 79 Stat. 445, 42 U. S. C. § 1973Í (c)(1), the Act itself nowhere amplifies the meaning of the phrase “standard, practice, or procedure with respect to voting.” Accordingly, in our previous constructions of § 5, we have sought guidance from the history and purpose of the Act.
A
This Court first considered the scope of the critical language of § 5 in Allen v. State Board of Elections, 393 U. S. 544 (1969), involving consolidated appeals in three cases from Mississippi and one from Virginia. After canvassing the legislative history of the Act, we concluded that Congress meant “to reach any state enactment which altered the election law of a covered State in even a minor way.” 393 U. S.,. at 566. Conceived after “nearly a century of systematic resistance to the Fifteenth Amendment,” South Carolina v. Katzenbach, 383 U. S. 301, 328 (1966), the Voting Rights Act was, as Allen emphasized, “aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” 393 U. S., at 565 (footnote omitted). To effectuate the “articulated purposes of the legislation,” id., at 570, the Allen Court held that the phrase “standard, practice, or procedure” must be given the “broadest possible scope,” id., at 567, and construed it to encompass candidate qualification requirements. Id., at 570 (Whitley v. Williams, companion case decided with Allen, supra). The Court concluded that any enactment which burdens an independent candidate by “increasing the difficulty for [him] to gain a position on the general election ballot” is subject to § 5 since such a measure could “undermine the effectiveness” of voters who wish to elect nonaffiliated representatives. 393 U. S., at 565.
In subsequent cases interpreting § 5, we have consistently adhered to the principles of broad construction set forth in Allen. In Hadnott v. Amos, 394 U. S. 358 (1969), this Court held that an Alabama statute requiring independent candidates to declare their intention to seek office two months earlier than under prior procedures imposed “increased barriers” on candidacy and therefore warranted § 5 scrutiny. Id., at 366. Similarly, in contexts other than candidate qualification, we have interpreted § 5 expansively to mandate preclearance for changes in the location of polling places, Perkins v. Matthews, supra; alterations of municipal boundaries, Richmond v. United States, 422 U. S. 358 (1975); Petersburg v. United States, 410 U. S. 962 (1973), summarily aff’g 354 F. Supp. 1021 (DC 1972); Perkins v. Matthews, supra; and reapportionment and redistricting plans, Georgia v. United States, supra.
Had Congress disagreed with this broad construction of § 5, it presumably would have clarified its intent when re-enacting the statute in 1970 and 1975. Yet, as this Court observed in Georgia v. United States, “[a]fter extensive deliberations in 1970 on bills to extend the Voting Rights Act, during which the Allen case was repeatedly discussed, the Act was extended for five years, without any substantive modification of § 5.” 411 U. S., at 533 (footnote omitted). Again in 1975, both the House and Senate Judiciary Committees, in recommending extension of the Act, noted with approval the “broad interpretations to the scope of Section 5” in Allen and Perkins v. Matthews. S. Rep. No. 94-295, p. 16 (1975) (hereinafter S. Rep.); H. R. Rep. No. 94-196, p. 9 (1975) (hereinafter H. R. Rep.). Confirming the view of this Court, the Committee Reports stated, without qualification, that “[s]ection 5 of the Act requires review of all voting changes prior to implementation by the covered jurisdictions.” S. Rep. 15; H. R. Rep. 8 (emphasis added).
The Attorney General’s regulations, in force since 1971, reflect an equally inclusive understanding of the reach of § 5. They provide that “[a] 11 changes affecting voting, even though the change appears to be minor or indirect,” must be submitted for prior approval. 28 CFR § 51.4 (a) (1977). More particularly, the regulations require preclearance of “[a]ny alteration affecting the eligibility of persons to become or remain candidates or obtain a position on the ballot in primary or general elections or to become or remain officeholders.” §51.4 (c)(4). Pursuant to these regulations, the Attorney General, after being apprised of Rule 58, requested its submission for § 5 clearance. Given the central role of the Attorney General in formulating and implementing § 5, this interpretation of its scope is entitled to particular deference. United States v. Board of Comm’rs of Sheffield, 435 U. S., at 131; Perkins v. Matthews, 400 U. S., at 391. See Georgia v. United States, 411 U. S., at 536-539.
B
Despite these consistently expansive constructions of § 5, appellants contend that the Attorney General and District Court erred in treating Rule 58 as a “standard, practice, or procedure with respect to voting” rather than as simply “a means of getting a full days work for a full days pay — nothing more and nothing less.” Brief for Appellants 20. In appellants’ view, Congress did not intend to subject all internal personnel measures affecting political activity to federal superintendence.
The Board mischaracterizes its policy. Rule 58 is not a neutral personnel practice governing all forms of absenteeism. Rather, it specifically addresses the electoral process, singling out candidacy for elective office as a disabling activity. Although not in form a filing fee, the Rule operates in precisely the same fashion. By imposing substantial economic disincentives on employees who wish to seek elective office, the Rule burdens entry into elective campaigns and, concomitantly, limits the choices available to Dougherty County voters. Given the potential loss of thousands of dollars by employees subject to Rule 58, the Board’s policy could operate as a more substantial inhibition on entry into the elective process than many of the filing-fee changes involving only hundreds of dollars to which the Attorney General has successfully interposed objections. That Congress was well aware of these objections is apparent from the Committee Reports supporting extension of the Act in 1975. S. Rep. 16-17; H. R. Rep. 10.
In Georgia v. United States, we observed that “[s]ection 5 is not concerned with a simple inventory of voting procedures, but rather with the reality of changed practices as they affect Negro voters.” 411 U. S., at 531. The reality here is that Rule 58’s impact on elections is no different from that of many of the candidate qualification changes for which we have previously required preclearance. See Hadnott v. Amos, 394 U. S. 358 (1969); Allen, 393 U. S., at 551. Moreover, as a practical matter, Rule 58 implicates the political process to the same extent as do other modifications that this Court and Congress have recognized § 5 to encompass, such as changes in the location of polling places, Perkins v. Matthews, and alterations in the procedures for casting a write-in vote, Allen v. State Board of Elections, supra.
We do not, of course, suggest that all constraints on employee political activity affecting voter choice violate § 5. Presumably, most regulation of political involvement by public employees would not be found to have an invidious purpose or effect. Yet the same could be said of almost all changes subject to § 5. According to the most recent figures available, the Voting Rights Section of the Civil Rights Division processes annually some 1,800 submissions involving over 3,100 changes and interposes objections to less than 2%. Attorney General Ann. Rep. 159-160 (1977). Approximately 91% of these submissions receive clearance without further exchange of correspondence. Tr. of Oral Arg. 53. Thus, in determining if an enactment triggers § 5 scrutiny, the question is not whether the provision is in fact innocuous and likely to be approved, but whether it has a potential for discrimination. See Georgia v. United States, supra, at 534; Perkins v. Matthews, supra, at 383-385; Allen v. State Board of Elections, supra, at 555-556, n. 19, 558-559, 570-571.
Without intimating any views on the substantive question of Rule 58’s legitimacy as a nonracial personnel measure, we believe that the circumstances surrounding its adoption and its effect on the political process are sufficiently suggestive of the potential for discrimination to demonstrate the need for preclearance. Appellee was the first Negro in recent years to seek election to the General Assembly from Dougherty County, an area with a long history of racial discrimination in voting. Less than a month after appellee announced his candidacy, the Board adopted Rule 58, concededly without any prior experience of absenteeism among employees seeking office. That the Board made its mandatory leave-of-absence requirement contingent on candidacy rather than on absence during working hours underscores the Rule’s potential for inhibiting participation in the electoral process.
Plainly, Rule 58 erects “increased, barriers” to candidacy as formidable as the filing date changes at issue in Hadnott v. Amos, supra, at 366 (2 months), and Allen v. State Board of Elections, supra, at 551 (20 days). To require preclearance of Rule 58 follows directly from our previous recognition that § 5 must be given “the broadest possible scope,” Allen v. State Board of Elections, supra, at 567, encompassing the “subtle, as well as the obvious,” forms of discrimination. 393 U. S., at 565. Informed by similarly expansive legislative and administrative understandings of the perimeters of § 5, we hold that obstacles to candidate qualification such as the Rule involved here are “standard [s], practice [s], or procedure's] with respect to voting.”
Ill
Section 5 applies to all changes affecting voting made by “political subdivision [s]” of States designated for coverage pursuant to § 4 of the Act. Although acknowledging that the Board is a political subdivision under state law, appellants contend that it does not meet the definition of that term as employed in the Voting Rights Act. They rely on § 14 (c) (2) of the Act, 79 Stat. 445, 42 U. S. C. § 19731 (c)(2), which defines “political subdivision” as
“any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.”
Because the Board is neither a county, parish, nor entity which conducts voter registration, appellants maintain that it does not come within the purview of § 5.
This contention is squarely foreclosed by our decision last Term in United States v. Board of Comm’rs of Sheffield, 435 U. S. 110 (1978). There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of § 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in § 14 (c) (2) of the Act. Rather, the “language, structure, history, and purposes of the Act persuade [d] us that § 5, like the constitutional provisions it is designed to implement, applies to all entities having power over any aspect of the electoral process within designated jurisdictions . . . 435 U. S., at 118. Accordingly, we held that once a State has been designated for coverage, § 14 (c)(2)'s definition of political subdivision has no “operative significance in determining the reach of § 5.” 435 U. S., at 126.
Appellants attempt to distinguish Sheffield on the ground that the Board, unlike the city of Sheffield, does not itself conduct elections. Since the Board has no direct responsibilities in conjunction with the election of public officials, appellants argue that it does not “exercise control” over the voting process, id., at 127, and is not therefore subject to §5.
Sheffield provides no support for such a cramped reading of the term “control.” Our concern there was that covered jurisdictions could obviate the necessity for preclearance of voting changes by the simple expedient of “allowing local entities that do not conduct voter registration to control critical aspects of the electoral process.” 435 U. S., at 125. We thus held that the impact of a change on the elective process, rather than the adopting entity’s registration responsibilities, was dispositive of the question of § 5. coverage. Here, as the discussion in Part II, supra, indicates, a political unit with no nominal electoral functions can nonetheless exercise power over the process by attaching a price tag to candidate participation. Appellants’ analysis would hence achieve what Sheffield sought to avert; it would enable covered jurisdictions to circumvent the Act by delegating power over candidate qualification to local entities that do not conduct elections or voter registration. A State or political subdivision, by de jacto delegation, “thereby could achieve through its instru-mentalities what it could not do itself without preclearance.” 435 U. S., at 139 (Powell, J., concurring in judgment). If only those governmental units with official electoral obligations actuate the preclearance requirements of § 5, the Act would be “nullified] ... in a large number of its potential applications.” 435 U. S., at 125 (footnote omitted).
Nothing in the language or purpose of the Act compels such an anomalous result. By its terms, § 5 requires preclearance whenever a political subdivision within a covered State adopts a change in a standard, practice, or procedure with respect to voting. No requirement that the subdivision itself conduct elections is stated in § 5 and none is fairly implied. As this Court has observed, § 5 of the Voting Rights Act reflects Congress’ firm resolve to end “the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century.” South Carolina v. Katzenbach, 383 U. S., at 308. Whether a subdivision adopting a potentially discriminatory change has some nominal electoral functions bears no relation to the purpose of § 5. That provision directs attention to the impact of a change on the electoral process, not to the duties of the political subdivision that adopted it. To make coverage under § 5 turn on whether the State has confided in the Dougherty County Board of Education some formal responsibility for the conduct of elections, when the Board clearly has the power to affect candidate participation in those elections, would serve no purpose consonant with the objectives of the federal statutory scheme.
Nor would appellants’ interpretation of § 5 comport with any ascertainable congressional intent. The legislative history of the 1975 extension, the statute which is controlling here, leaves no doubt but that Congress intended all electoral changes by political entities in covered jurisdictions to trigger federal scrutiny. Both the supporters and opponents of the proposed extension appear to have shared the common understanding that under § 5 no covered jurisdiction may enforce a change affecting voting without obtaining prior approval. See Hearings on S. 407 et al. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 75-76 (1975) (testimony of Arthur Flemming, Chairman of the U. S. Commission on Civil Rights) (e. g., § 5 applies “to changes in voting laws, practices, and procedures that affect every stage of the political process”) ; Hearings on H. R. 939 et al. before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 94th Cong., 1st Sess., 19 (1975) (testimony of Arthur Flemming); 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis) (“Any changes, so far as election officials [are] concerned, which [are] made in precincts, county districts, school districts, municipalities, or State legislatures . . . [have] to be submitted”); id., at 24114 (remarks of Sen. Allen). Moreover, both the House and Senate Committees and witnesses at the House and Senate hearings referred to § 5’s past and prospective application to school districts. See, e. g., 121 Cong. Rec. 23744 (1975) (remarks of Sen. Stennis); Hearings on S. 407, supra, at 467-470 (testimony of George Korbel, EEOC Regional Attorney); Hearings on H. R. 939, supra, at 387-390 (testimony of George Korbel); S. Rep. 27-28; H. R. Rep. 19-20. Yet none of these discussions suggests that direct supervision of elections by a school board is a prerequisite to its coverage under the Act. To the contrary, a fair reading of the legislative history compels the conclusion that Congress was determined in the 1975 extension of the Act to provide some mechanism for coping with all potentially discriminatory enactments whose source and forms it could not anticipate but whose impact on the electoral process could be significant. Rule 58 is such a change.
Because we conclude that Rule 58 is a standard, practice, or procedure with respect to voting enacted by an entity subject to § 5, the judgment of the District Court is
Affirmed.
Mr. Justice Stewart dissents for the reasons expressed in Part I of the dissenting opinion of Mr. Justice Powell.
79 Stat. 439, as amended, 42 U. S. C. § 1973c. Section 5 provides in part:
“Whenever a State or political subdivision with respect to which the prohibitions set forth in [§ 4 (a) of the Act] based upon determinations made under the first sentence of [§ 4 (b) of the Act] are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964, . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, . . . and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. . . .”
79 Stat. 438, as amended, 42 U. S. C. § 1973b. Georgia has been designated a covered jurisdiction pursuant to §4. 30 Fed. Reg. 9897 (1965).
The Solicitor General and counsel for appellants advise us that appellee was also on unpaid leave during his participation in the annual 214-month sittings of the Georgia General Assembly in 1975, 1976, 1977, and 1978. Brief for United States as Amicus Curiae 4 n. Ip Tr. of Oral Arg. 6. Appellee did not challenge this application of Rule 58 below. We therefore do not consider whether preclearance is required for a policy governing mandatory leaves during the interval in which an employee is actually absent due to legislative responsibilities.
Jurisdiction was predicated on 42 U. S. C. § 1973c, 28 U. S. C. § 2284, and 28 U. S. C. § 1343. See Allen v. State Board of Elections, 393 U. S. 544, 554-563 (1969).
For example, we noted that Attorney General Katzenbach, who played a substantial role in drafting the Act, testified that the term “practice” in § 5 “was intended to be all-inclusive . . . .” Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 192 (1965), quoted in Allen v. State Board of Elections, supra, at 566-567, and n. 31.
The protean strategies of racial discrimination that led Congress to adopt the Voting Rights Act have been often discussed by this Court, see United States v. Board of Comm’rs of Sheffield, 435 U. S. 110, 118-121 (1978); South Carolina v. Katzenbach, 383 U. S., at 308-315, and need not be reviewed here.
Shortly before the commencement of this litigation, counsel for appellee brought Rule 58 to the attention of the Civil Rights Division of the Department of Justice. Two and one-half months after appellee filed his complaint, Assistant Attorney General Pottinger informed the Superintendent of the Dougherty County School System that Rule 58 should be submitted for preclearance. Appellants made no response.
See U. S. Commission on Civil Rights, The Voting Rights Act: Ten Years After 134-137 (1975) {e. g., $360 fee for Commissioner in Mobile, Alabama, in 1973; $818 fee for Mayor in Rock Hill, South Carolina, in 1973).
In addition, the Committees relied heavily on findings by the United States Commission on Civil Rights in The Voting Rights Act: Ten Years After, supra, at 131-142, a document which reviewed at some length the barriers to qualification, including fifing fees, faced by minority candidates. See S. Rep. 21, 24; H. R. Rep. 12, 16.
As this Court has recognized in its decisions invalidating certain filing-fee schemes under the Fourteenth Amendment, “we would ignore reality” were we not to acknowledge that a financial barrier to candidacy “falls with unequal weight on voters, as well as candidates,” since it “tends to deny some voters the opportunity to vote for a candidate of their choosing.” Bullock v. Carter, 405 U. S. 134, 144 (1972) (filing fees of $1,424.60 for County Commissioner, $1,000 for Commissioner of General Land Office, and $6,300 for County Judge). See also Lubin v. Panish, 415 U. S. 709 (1974) (filing fee of $701.60 for County Supervisor).
For a review of voting rights litigation in the city of Albany, the county seat of Dougherty County containing 80% of its population, see Paige v. Gray, 399 F. Supp. 459, 461-463 (MD Ga. 1975), vacated in part, 538 F. 2d 1108 (CA5 1976), on remand, 437 F. Supp. 137, 149-158 (MD Ga. 1977).
The dissent suggests, post, at 53, that Rule 58 is directed only toward barring “the expenditure of public funds to support the candidacy of an employee whose time and energies may be devoted to campaigning, rather than counseling schoolchildren.” Insofar as the Board is concerned about its employees’ failure to discharge their contractual obligations while standing for office, it has a variety of means to vindicate its interest. The Board may, for example, prescribe regulations governing absenteeism, or may terminate or suspend the contracts of employees who willfully neglect their professional responsibilities. See Ga. Code § 32-2101c (1975); Ransum v. Chattooga County Board of Education, 144 Ga. App. 783, 242 S. E. 2d 374 (1978). What it may not do is adopt a rule that explicitly and directly burdens the electoral process without preclearance.
See Ga. Code §§32-901, 23-1716 (1975); Campbell v. Red Bud Consolidated School Dist., 186 Ga. 541, 548, 198 S. E. 225, 229 (1938); Ty Ty Consolidated School Dist. v. Colquitt Lumber Co., 153 Ga. 426, 427, 112 S. E. 561 (1922).
Section 4 (a) makes continued coverage under the Act turn on whether discriminatory tests or devices have been used “anywhere in the territory” of a State or political subdivision for a prescribed number of years. 79 Stat. 438, as amended, 42 U. S. C. § 1973b (a). In Sheffield, we concluded that the territorial reach of the substantive requirements of § 5 was meant to be coterminous with the jurisdictional provisions of §4 (a). 435 U. S., at 120-129.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_injunct
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction 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".
Ralph A. VANELLA and George William Sullivan, Appellants, v. UNITED STATES of America, Appellee.
No. 19270.
United States Court of Appeals Ninth Circuit.
Sept. 2, 1966.
Rehearing Denied Oct. 10, 1966.
Joseph L. Strabala, San Francisco, Cal. (Court-appointed), Fryer, Tjens-vold, Feix & Phillips, San Francisco, Cal. (Norman Tuttle, II, Oakland, Cal., on the brief), for appellants Vanella and Sullivan.
Manuel L. Real, U. S. Atty., John K. Van De Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Barry Tarlow, Benjamine S. Farber, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges.
HAMLIN, Circuit Judge:
A panel of this court consisting of Judges Chambers, Orr and Hamley on April 20, 1965, rendered an opinion in the above case which was written by Judge Orr and concurred in by Judge Hamley. Judge Chambers dissented. That opinion is as follows:
“IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Ralph A. Vanella and George William Sullivan, Appellants, vs. United States op America, Appellee. J No. 19,270
Appeal from the United States District Court for the Southern District of California Central Division
Before CHAMBERS, ORR and HAMLEY, Circuit Judges.
ORR, Circuit Judge:
Having been convicted on June 12, 1963, of possession of marihuana, Va-nella and Sullivan appeal. They contend that their rights under the Fourth Amendment to the United States Constitution were violated in that federal and state officers subjected them to unlawful search and seizure in securing the marihuana upon the possession ■of which their prosecution was based and which was introduced into evidence against them. We conclude that their contention is valid and that the motion made to suppress the questioned evidence should have been granted.
In presenting the picture of that which transpired, a somewhat lengthy statement of the circumstances is required. On February 14, 1963, the Federal Grand Jury sitting in Los Angeles, California, returned an indictment against appellant Vanella and others charging violation of 21 U.S.C. § 176a and 18 U.S.C. § 371. The alleged violations involved a conspiracy on or about January 1, 1962, relating to the unlawful transportation and concealment of marihuana. This was district court case No. 31,832. On the basis of this indictment the United States District Court, in the presence of the foreman of the Grand Jury and United States Customs Agent Neil Greppin, issued a warrant for the arrest of appellant Vanella. The events which followed were the subject of the indictment in district court case No. 31,936, in which the convictions of Vanella and Sullivan were obtained and upon which this appeal was taken.
At approximately 9:00 P.M. that evening Agent Greppin and Agent Bertram Falbaum arrived at the residence of appellant Vanella in Los Angeles. Both agents went to the rear of the house, stepped up on the back porch steps, and looked into the house through a window. They observed appellants Vanella and Sullivan and Va-nella’s wife in the living room. Agent Falbaum stationed himself at the corner of the building from which point he could observe the front and rear doors of the house. Agent Greppin proceeded to the front door and knocked. A female voice inquired as to who was knocking, whereupon Greppin identified himself, stated he was from United States Customs, and asked to talk to Vanella. Shortly thereafter, appellant Vanella came running out the back door and started down the steps. Agent Falbaum called to him and Va-nella turned and ran back into the house. Agent Falbaum followed Va-nella up the steps and into the house, where Vanella apparently ran into Sullivan who seemed to be heading for the back door. Before running ■ into the house Agent Falbaum called to Agent Greppin to the effect that appellants were attempting to escape out the back door. Agent Greppin forced the front door and entered to find Agent Fal-baum with appellants in the dining room. As Agent Greppin joined the men appellant Sullivan ran into the bathroom where he began washing his hands in a bathtub full of water. Agent Greppin ran after him and asked him to return to the dining room, which he did. Agent Greppin then, having observed a bulge in Sullivan’s right front pocket, removed a waxed paper bag containing 88 grains of marihuana. Appellant Sullivan was then placed under arrest for possession of marihuana. Neither Agent Grep-pin nor Agent Falbaum had seen appellant Sullivan at any time prior to their arrival at Vanella’s residence, nor had they any information concerning him.
After appellant Sullivan was returned to the dining room from the bathroom, appellant Vanella was handcuffed and advised that he had been indicted by the Federal Grand Jury for violation of the federal laws pertaining to marihuana. Then, following a call by Mrs. Vanella to an attorney, Agent Greppin called the Los Angeles Police Department for assistance. Approximately twenty minutes later two officers arrived and together with Agent Falbaum searched the Va-nella residence. The search produced two packages of marihuana — 260 grams were found in a bedroom underneath a bed and 411 grams were found in the bathroom underneath the bathtub. Subsequent to the finding of the three bags of marihuana, appellant Vanella told Agent Greppin that said three bags comprised all the marihuana in the house and that it had come up from Mexico. Vanella stated also that he had given to appellant Sullivan the marihuana that was seized from Sullivan. Appellant Sullivan told Agent Greppin that he did not deal in marihuana, but that he smoked it.
Appellants Vanella and Sullivan, together with the marihuana that had been seized, were taken to the Los Angeles police station. Vanella and Sullivan were booked. Subsequently a trial was had. At its inception a motion to suppress evidence — including the three packages of marihuana mentioned above — was made by appellants. The motion was denied and the three packages of marihuana admitted into evidence. The trial judge, sitting without a jury, found appellant Vanella guilty on three counts of violation of 21 U.S.C. § 176a and found appellant Sullivan guilty of one count of violation of 21 U.S.C. § 176a. Vanella received sentences of 10 years on each count, to run concurrently. Sullivan received a sentence of 6 years.
Appellants contend that the trial court erred in denying their motion to suppress evidence seized at Vanella’s. residence. We agree. The seizure of the marihuana from the person of appellant Sullivan and from the home of appellant Vanella was unreasonable and in violation of the Fourth Amendment to the United States Constitution.
First, the search of appellant Sullivan was illegal. The officers had obtained no search warrant. The search of Sullivan was made before he had been arrested and therefore cannot be justified as a search incident to a lawful arrest. A search not pursuant to a search warrant nor incident to a lawful arrest has been found to be proper only in certain exceptional circumstances, not present in this case. Hence, the fruit of the search of Sullivan, 88 grains of marihuana, was inadmissible. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
Likewise, the search of appellant Va-nella’s residence was illegal. The Customs Agents that came to his residence to arrest him had no apparent reason to believe that Vanella was then engaged in any narcotics violation. The indictment upon which the warrant for his arrest was based concerned an alleged conspiracy that occurred more than a year previous. In view of this a search of Vanella’s entire residence had no apparent rational connection to the alleged conspiracy for which Va-nella was indicted and arrested. Such a search therefore cannot be justified as a search incident to an arrest on the charge in the indictment. Furthermore, the discovery of marihuana on the person of Sullivan cannot be relied on to justify a search of the entire premises for further evidence of a current violation of federal laws relating to marihuana. In light of our determination that the seizure of the evidence from the person of Sullivan was illegal and the evidence inadmissible, the product of any further search, necessarily based upon this evidence, is likewise inadmissible. This involves no more than a fair application of the ‘fruit of the poisonous tree’ concept discussed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Failure to grant the motion to suppress and the allowance of the marihuana into evidence constituted reversible error. Other points are urged for reversal, but because of the view we take of the illegality of the searches, we find it unnecessary to consider them.
Judgment reversed.
. Vanella was brought to trial on these charges. At the completion of the government’s case a motion for acquittal by appellant Vanella was granted on May 10, 1903.
. Agent Greppin testified that he arrested Sullivan only after he had seized the marihuana from his pocket. Furthermore, in our view the actions of Agents Greppin and Falbaum before the seizure of the marihuana cannot be considered to be an arrest. See Davis v. People of State of California, 341 F.2d 982 (9 Cir. 1965).
. In this Circuit we have held that in certain “Exigent circumstances” a search can be made prior to an arrest of a person. A prior search may be valid as incident to a substantially contemporaneous arrest without a warrant if the arresting officers had probable cause for the arrest at the time of the search, and the circumstances suggested that immediate search was necessary to preserve material subject to seizure. See discussion and collection of cases in Cipres v. United States, 343 F.2d 95, 98, n. 9 (9 Cir. 1965). Such circumstances certainly do not exist in this case.
. See Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Ventresca, 380 U.S. 102, n. 2, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
. See Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, (1948); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Go-Bart Importing Company v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).
Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appel1_1_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
REPUBLICAN PUB. CO. v. AMERICAN NEWSPAPER GUILD et al.
No. 4383.
United States Court of Appeals First Circuit.
March 4, 1949.
Arthur T. Garvey, of Springfield, Mass. (Samuel Fein, of Springfield, Mass., on the brief), for appellant.
Sidney'S. Grant, of Boston, Mass. (Albert L. Goldman and Grant & Angoff, all of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and CON-NOR, District Judge.
PER CURIAM.
Two complaints were filed on March 6, 1946, in the court below by numerous employees of the Republican Publishing Company seeking to recover from their employer unpaid overtime compensation, liquidated damages, attorneys’ fees and costs, pursuant to § 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. § 216(b). The defendant — appellant herein — is the publisher of several newspapers in Springfield, Massachusetts. The complaints were consolidated in the district court and referred to a master. The master’s report, one of exceptional thoroughness and clarity, was in all respects confirmed by the district judge, who filed only a brief memorandum. Judgments were entered for plaintiffs on June 22, 1948, .in accordance with the master’s report. Republican Publishing Company appealed from these judgments, and this court ordered that the two appeals be docketed as a single case upon a consolidated transcript of record.
The district judge pointed out that by agreement of the parties the testimony had not been stenographically reported. “Therefore”, he said, “I am largely confined to considering whether the report is internally consistent -and whether there are errors of law. • It is not open to me to determine whether the evidence supports the findings.” On appeal, the scope of review in this court is similarly restricted. We have examined the master’s report, and have satisfied ourselves that his findings of fact fully support his conclusions of law respecting the points pressed by appellant on this appeal. In the proceedings below, reference was made to the Portal-to-Portal Act of 1947, 61 Stat. 84, 29 U.S. C.A. § 251 et seq. However, at the ora! argument before us, appellant’s counsel expressly disclaimed any reliance upon the provisions of this Act, and. we have accordingly not taken it into consideration.
We think this appeal is lacking in substance. One point, relating to plaintiff Annette Doyle, is perhaps worthy of brief comment.
Miss Doyle was originally hired as a proofreader. In September, 1941, she was promoted to the editorial staff as a reporter, covering social agencies and general assignments. Later, in April, 1942, “she took over the labor and industry beat, and on February 22, 1944 was assigned the job of theater editor in addition to her other duties.” Originally she worked a basic 45-hour week, and after October 15, 1945, she went on a six-day 40-hour week. During all this period she was paid a flat weekly salary, which was $20 at the start, and was gradually increased to a top of $50 per week beginning August 8, 1946. The master found: “There is no doubt from the testimony of the defendant that she was considered one of the ablest and most conscientious reporters on the staff and that she could always be depended on to finish her job.”
The responsibility of Miss Doyle as theater editor extended to seeing that new moving pictures and plays were covered by someone, not necessarily by her. In computing her hours worked, for the purpose of determining the amount of overtime pay due under the statute, the master included, in addition to her basic regular workweek, the hours spent by her in the theaters, seeing the pictures or plays which were personally reviewed by her for the newspaper. Appellant objects to the inclusion of these extra hours in the computation of 'hours actually worked by. Miss Doyle, because it was the policy of the paper not to pay for this work, well understood by Miss Doyle when she took the extra assignment of theater editor.
On this point the master made the following findings:
“With reference to this aspect of Miss Doyle’s overtime claim it should be added that the defendant had never compensated members of its staff for reviewing movies or legitimate stage productions. Indeed a specific proposal sometime during this period to pay $1 for each review was vetoed by the executive editor. Despite this policy the incidental benefits of free passes, parties, Christmas gifts from the theatres, etc., made the position of theatre editor so attractive that at least up until the war years there was active bidding for it among the staff. The evidence is strong that Miss Doyle’s assignment to the job in 1944 was at her own request, although she was well aware of the practice of the paper with regard to compensation for it.
“ * * * There is no doubt that the defendant considered the job as a plum to be handed out to deserving reporters rather than as an assignment to work. There is also no doubt that Miss Doyle was aware of this attitude. The defendant contends therefore that her assumption of the duties was a purely voluntary act and that there is no obligation on its part to pay her anything let alone time and a half. Section No. 203 of the Act defines ‘to employ’ as including to suffer or permit to work. Hence the crucial question is not whether the work was voluntary, but rather whether the plaintiff was in fact performing services for the benefit of the employer with the knowledge and approval of the employer. Under the circumstances here, to pose the question is to answer it. And a contract to pay nothing for work stands in no better light under the Act -than a contract to pay below the minimum wage. I conclude that the time she spent in the role of critic is working time under the Act.”
We think that the master ruled correctly in this matter. The theater editor could not very well write a review of a picture or play without seeing it; and therefore her attendance at the theater for this purpose must be deemed physical or mental exertion ^whether burdensome or not) controlled cvr required by the employer, and “pursued necessarily and primarily for the benefit of the employer and his business.” See Jewell Ridge Coal Corp. v. Local No. 6167, 1945, 325 U.S. 161, 164-165, 65 S.Ct. 1063, 1066, 89 L.Ed. 1534. Consequently, these hours must be included in the workweek, and compensated at the statutory rate, despite any custom or understanding to the contrary. Tennessee Coal, Iron & R. Co. v. Muscoda Local, 1944, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949, 152 A.L.R. 1014. See also Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515.
Walling v. Portland Terminal Co., 1947, 330 U.S. 148, 67 S.Ct. 639, 91 L.Ed. 809; and Rogers v. Schenkel, 2 Cir., 1947, 162 F.2d 596, are in no way contrary to our conclusion in the case at bar.
The Portland Terminal case involved the question whether certain “trainees” were “employees” of the railroad within the meaning of §§ 6 and 7 of the Fair Labor Standards Act, 29 U.S.C.A. §§ 206, 207, and the court held they were not. In the footnote we quote a portion of the Court’s opinion. In Rogers v. Schenkel, the plaintiff and defendant had been friends, and after the plaintiff had received a 4-F Selective Service classification he took a job as helper in defendant’s plant so as to assist in some way in the war effort. He had independent means and intended to render his services without compensation. On several occasions when the defendant asked him to turn in a weekly report of time worked, the plaintiff stated that his services were voluntary and that he would not accept wages in any 'form. Plaintiff refused to be placed upon the defendant’s payroll because he did not wish to be listed as an employee. Notwithstanding this, the plaintiff had a change of heart and eventually brought suit under the Fair Labor Standards Act for the statutory minimum wages and liquidated damages. He recovered judgment in the district court on the ground that he was an employee within th.« meaning of the Act, since the defendant had suffered or permitted him to work in defendant’s business. The court of appeals reversed upon the authority of Walling v. Portland Terminal Co.
By way of contrast with the cases just cited, Annette Doyle was undoubtedly an employee of appellant “whose employment contemplated compensation”. Under § 7(a) of the Act, she was entitled’to be compensated at one and one-half times her regular rate of pay for the hours worked in each workweek in excess of 40 hours. Miss Doyle’s attendance at the theaters for the purpose stated fulfilled “all three of the essential elements of work” as set forth in the Tennessee Coal, Iron & R. Co. and Jewell Ridge cases, supra, and the time so spent must be included in the computation of hours worked. The statute overrides any custom or ’understanding to the contrary.
Section 16(b) of the Act provides that, in addition to the recovery of unpaid minimum wages or overtime compensation, the court in such action shall “allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” The’district court in the present case awarded a counsel fee of $3000 “not including any compensation for any future work on any appeal that may be taken." This court will, allow to the appellees as a reasonable attorney’s fee for the proceedings on appeal the sum of $400.
The judgment of the District Court is affirmed, with the addition of $400 for attorney’s fee in this court.
330 U.S. at page 152, 67 S.Ct. at page 641, 91 L.Ed. 809: “Section 3(g) of the Act defines ‘employ’ as including ‘to suffer or permit to work’ and § 3(e) defines ‘employee’ as ‘any individual employed by an employer.’ The definition ‘suffer or permit to work’ was obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another. Otherwise, all students would be employees of the school or college they attended, and as such entitled to receive minimum wages. So also, such a construction would sweep under the Act each person who, without promise or ex-pectación of compensation, but solely for liis personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit. But there is no indication from the legislation now before us that Congress intended to outlaw such relationships as these. ‘File Act’s purpose as to wages was to insure that every person whose employment contemplated eomiiensation should not be compelled to sell his services for less than the prescribed minimum wage. The definitions of ‘employ’ and of ‘employee’ are broad enough to accomplish this. But, broad as they are, they cannot be interpreted so as to make a person whose work serves only his own interest an employee of another person who gives him aid and instruction.”
See footnote 1, supra.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
UNITED STATES of America, Appellee, v. John DOE, Defendant, Appellant.
No. 83-1836.
United States Court of Appeals, First Circuit.
Argued March 6, 1984.
Decided April 11, 1984.
Michael J. Dissette, with whom Thomas E. Eichman Associates, P.C., Haverford, Pa., was on brief, for defendant, appellant.
Joseph F. Savage, Jr., Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and GIERBOLINI, District Judge.
Of the District of Puerto Rico, sitting by designation.
LEVIN H. CAMPBELL, Chief Judge.
In 1978, John Doe pled guilty to two narcotics offenses, and was sentenced to the custody of the Attorney General for a term of six years pursuant to the Federal Youth Corrections Act (“FYCA”). 18 U.S.C. § 5005 et seq. Doe obtained an unconditional discharge from the United States Parole Commission in November 1982. This early, unconditional discharge had the effect of “automatically set[ting] aside” his two convictions, and the Parole Commission issued to Doe a certificate to that effect, as it was required to do under section 5021(a) of the FYCA. Doe thereafter petitioned the United States District Court for the District of Massachusetts to have all records of his arrest and conviction “expunged.” He now appeals from the district court’s refusal to grant that relief.
By “expunged” Doe indicated below that he meant “destroyed,” although his counsel has indicated to this court that, while destruction would remain preferable, Doe would rather have the arrest and conviction records sealed and segregated from general police files than have no action taken. Thus, the question before us is whether the FYCA requires the destruction of the arrest and conviction records of Doe, with a collateral question whether, assuming such destruction is not required, Doe is entitled to some more limited remedy such as segregation of these records, in addition to the conviction set-aside and the certificate which he already possesses.
I.
Turning first to the arrest record, we think the district court was clearly correct to refuse to order that it be either destroyed or sealed and segregated. Section 5021(a) says nothing about arrest records: it says that the conviction shall be “automatically set aside” and that the Commission shall issue to the offender a certificate to that effect.
To be sure, several district courts, see, e.g., United States v. Doe, 496 F.Supp. 650 (D.R.I.1980), have ordered that an arrest record, in addition to the record of conviction, be segregated from the general criminal files and sealed, to be opened only by law enforcement officials in the course of a bona fide investigation.- But we do not see how this relief can be granted without rewriting the statute, since the statute makes no reference to arrest records. Doe, moreover, does not suggest that there is authority for eradicating the arrest records of persons who are acquitted or not prosecuted: these records remain in the general police files. To destroy or segregate the present arrest records would leave a convicted person with a cleaner slate than an arrestee who was never found guilty.
We understand the argument that the rehabilitative purpose of the FYCA will be better accomplished by destroying or segregating arrest records. However, when confronted with the anomalous situation of giving the guilty a cleaner record than others merely accused, and a statute that nowhere mentions arrest records, we feel compelled to conclude that the statute grants no authority relative to arrest records. Accord Doe v. Webster, 606 F.2d 1226, 1230 (D.C.Cir.1979). It is the province of Congress, not the courts, to amend the statute.
II.
We turn next to the question of destroying or at least segregating the record of conviction. Doe would have it destroyed, arguing that nothing short of destruction can guarantee that the information will not be distributed to the detriment of his rehabilitation; he urges that this is particularly so in the computer age because information can often be retrieved with nothing more than an authorization code and the pressing of a button.
We start with the statutory language, see supra note 1, which, having declared that a discharged youth offender’s conviction be “automatically set aside,” states, by way of implementation, that a “certificate to that effect” be issued to the offender. Beyond that there is no direction that records be destroyed or, indeed, segregated. While destruction would certainly prevent detrimental dissemination, it is an extremely radical remedy which we are reluctant to infer from a silent statute. Thus, we have little difficulty ruling out destruction of Doe’s record of conviction. Not only does society have a legitimate need for maintaining accurate records of conviction to further bona fide criminal investigations, there are positions of trust to which accurate knowledge of a person’s past might be of critical importance. The statute and legislative history nowhere suggest, let alone advocate, the destruction of court files and dockets, with the attendant blotting out of the historical record. Such destruction has an Orwellian flavor which we find unpalatable in 1984 and which we are confident Congress did not enact into law in 1950.
A more palatable argument can be made that Doe is entitled to have the record of his conviction segregated and sealed as was ordered in Doe v. Webster. The question boils down to whether the phrase “set aside” should be construed to mean only elimination of all legal effects flowing from a conviction or, more broadly, to encompass the segregation and sealing of the record. The FYCA was primarily the work of the Judicial Conference and one of its committees, and some of the committee members described the set-aside provision in general terms not inconsistent with segregation and sealing. For example, Chief Judge Laws said in testimony before the Senate Judiciary Committee that “this law blots out their sentence and lets them go without any stigma on their life.” Hearings on S. 1114 and S. 2609 Before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess. 19 (1949). Another Committee member, however, Judge Phillips, gave a*' more specific evaluation of the intended effects. Judge Phillips stated,
The purpose of [the set-aside provision] is to help him get a job and keep him from having to be turned down by a prospective employer because of the fact that he has had a conviction. It does not entirely remove the difficulty but he can say to the prospective employer, “I have gone through this thing. They think I am rehabilitated and have given me this clearance and I think I am rehabilitated and can make good.”
Id. at 70. Judge Phillips thus anticipated that prospective employers would learn of the conviction and that the employee would rely on the certificate to demonstrate that, in the eyes of the law, he had been cleared. It is precisely the type of speech to employers described by Judge Phillips that Doe hopes to render unnecessary: Doe wants the privilege to conceal his prior involvement with the law from prospective employers.
In Doe v. Webster the District of Columbia Circuit recognized that Judge Phillips’s statement could be read as indicating that the Act did not contemplate segregation and sealing of conviction records, but nonetheless construed the statute as requiring segregation and sealing. Judge Phillips’s remarks were discounted as merely addressing problems created by dissemination of information from arrest records, newspaper files, and the like. 606 F.2d at 1236 n. 41.
With all respect, we disagree. Senator Kilgore responded to Judge Phillips’s comments by recounting the story of a man who had three job offers from airlines, but could not be hired until his military discharge was changed from dishonorable to honorable. It seems to us, from the comments of Judge Phillips and Senator Kilgore, that the set-aside provision was not contemplated as a method of concealing the fact of conviction from employers but rather as a way of opening up job opportunities to youth offenders in positions which, for reasons of company policy, government regulation, or otherwise, would not be available for ex-convicts. We see nothing in the history, nor in the statute itself, to indicate that the draftsmen contemplated sealing off the historical record of conviction. Chief Judge Laws’s remarks about removal of “any stigma,” and general remarks of others in the same vein, are best understood as figurative. As Judge Laws well knew, there was no way literally to guarantee the absence of “any stigma,” since knowledge of a prior brush with the law could often be obtained from secondary sources quite apart from official records. If the draftsmen had meant to direct the sealing of records, an innovative and controversial step, one would have expected them to have said so, especially as sealing suggests the need for further statutory directions concerning when, if ever, and by whom, access may be had to the sealed documents. Judge Laws himself, during another part of the hearing, said only that the Act enabled youth offenders to have “their records cleared and all their civil rights restored”. Hearings at 14 (emphasis supplied). Thus, we read the set-aside provision as eliminating any legal disabilities that might flow from a conviction, but not as helping a youth offender conceal his past or lie to prospective employers.
Our view is strengthened by a passage of Justice Marshall’s, written for a unanimous Court, in Tuten v. United States, 460 U.S. 660, —, 103 S.Ct. 1412, 1415, 75 L.Ed.2d 359 (1983):
Congress recognized that a criminal conviction often carries with it numerous civil and social disabilities. For example, a conviction may result in the loss of the rights to vote, to hold a public office, to serve on a jury, and to practice various occupations and professions. As in this case, a conviction may also make an offender subject to increased penalties for subsequent convictions. Like various state expungement statutes, § 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany criminal conviction.
In Tuten, the Court considered whether’a conviction which had been set aside could nonetheless serve as a basis for increased penalties for subsequent convictions, and held that it could not. Significantly, the facts of Tuten, as well as the examples given by Justice Marshall, present cases of a conviction being used to the legal detriment of the youth offender — cases in which a conviction prevented the offender from fully participating in society. Similarly, in Mestre Morera v. United States Immigration and Naturalization Service, 462 F.2d 1030 (1st Cir.1972), this court did not permit a conviction that had been set aside to serve as a basis for deportation of an alien, even though the Immigration and Naturalization Act provides that conviction of certain offenses can serve as a basis for deportation. The theme of Tuten, the examples contained therein, and Mestre Morera, is that the section 5021 directive setting aside the conviction prevents the fact of conviction from being used to the youth offender’s legal detriment. This consequence is, of course, greatly beneficial to the youth offender; no more need be read into the language to make it meaningful.
Whether court records showing a discharged youth offender’s conviction should also be physically segregated and sealed, so as to be shielded from public knowledge, raises a different question which section 5021 does not address. Even in a day when the distinction is becoming blurred, this is a matter for legislative, not judicial, action.
Affirmed.
. Section 5021(a) provides,
Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect.
. While Doe emphasized destruction of the records below, the lesser alternative of segregation and sealing was sufficiently raised to make it appropriate for us to deal now with both matters.
. Of the three circuit courts that have had the specific question of expungement before them, two have found that the FYCA does not require it. United States v. Doe, 556 F.2d 391 (6th Cir.1977); United States v. McMains, 540 F.2d 387 (8th Cir.1976). Only the District of Columbia Circuit has adopted such an approach. More recently, in dicta, the Tenth Circuit has indicated that it has already implicitly adopted the District of Columbia Circuit’s approach. Watts v. Hadden, 651 F.2d 1354, 1373 n. 3 (10th Cir.1981). There are numerous district court cases which go both ways.
. Our view that section 5021 does not direct "expungement” of the prior criminal record is strengthened by the Senate’s refusal to endorse that remedy for a youth offender in the Criminal Code Reform Act of 1979. In a prepared statement before the Senate Judiciary Committee, John J. Cleary of the Federal Defenders of San Diego, Inc., had urged the Senate to adopt an expungement requirement, citing the recently decided Doe v. Webster case. Hearings on S. 1722 and S. 1723 Before the Senate Committee on the Judiciary, 96th Cong., 1st Sess.1979. The Committee declined to go along with this recommendation, noting in its report that,
Section 4031 provides a more effective means of protecting both Federal and individual interests than does expungement, a solution to this problem that has sometimes been suggested. Expungement forces an offender to fabricate explanations for the “holes” in an employment record and may be ineffective in that supposedly expunged records would surface from secondary sources.
Report of the Senate Committee on the Judiciary accompanying S. 1722. The Senate bill instead provided, in sections 4031-32, that no person acting under color of federal law could impose a civil disability by reason of a conviction of certain specified offenses and on certain conditions; the bill also made it clear that such convictions could nonetheless be taken into account in certain situations such as admission to the bar of state or federal courts, applications for employment as a law enforcement officer, or federal positions that require security clearances. This Senate bill did not pass the House. The same matter was before the Senate during the first session of the 97th Congress as S. 1630, but did not come to a full floor vote. We understand that the matter is again under consideration, this time in the House, where Congressman Rodino, on November 18, 1983, introduced H.R. 4554 resolving that certain amendments to Title 18 be made, including repeal or modification of the Federal Youth Corrections Act. The matter is currently before the House Subcommittee on Criminal Justice. This subsequent legislative history suggests that Congress does not view section 5021 as an expungement statute. Further, it strongly suggests that many legislators may view "expungement" as a poor idea. Instead, Congress has been struggling to formulate alternative solutions to the problem of how best to mitigate the disabilities accompanying a conviction which has been set aside.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
AEROMOTIVE METAL PRODUCTS, INC., Appellant, v. W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Appellee.
No. 17935.
United States Court of Appeals Ninth Circuit.
Jan. 14, 1963.
George O. Bahrs and Robert J. Scol-nik, San Francisco, Cal., for appellant.
Kenneth C. Robertson, Regional Atty., U. S. Dept. of Labor, San Francisco, Cal., Charles Donahue, Solicitor of Labor, Bessie Margolin, Associate Solicitor of Labor, Jacob I. Karro, Associate Solicitor of Labor, and Isabelle R. Cappello, Attorney, United States Department of Labor, Washington, D. C., for appellee.
Before POPE, BROWNING and DUNIWAY, Circuit Judges.
PER CURIAM.
Aeromotive Metal Products, Inc. appeals from a judgment in favor of the Secretary of Labor in an action brought under the provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. The judgment was on behalf of certain employees of appellant and is for unpaid wages and overtime compensation. The question is-whether a fifteen minute mid-morning rest period must be counted as hours of employment and paid for as such.
The rest period involved was originally instituted at the request of the employees at appellant’s Seattle, Washington plant in 1952. The year here involved is 1958-59. At the time that the employees involved were hired, they were given no choice as to whether to take the fifteen-minute uncompensated mid-morning rest period. It was a company rule that no productive work would be done during this period and that no employee would receive pay for this time. The plant was located in the industrial part of Seattle and the nearest commer•cial area was not within a fifteen-minute walking distance. Occasionally, employees would do personal errands, but this was not easy to do, and their homes were not accessible to them within the •fifteen-minute period. The majority of •the employees spent the fifteen-minute period in the immediate vicinity of the plant, smoking, having refreshments, ■etc. The Court found that the employees were free to spend the fifteen-minute ■period in such activities as they might ■desire, provided they returned promptly .at the end of the period. It was also found:
“The granting of such rest periods by employers to employees is a general practice in the industry. Actual production did not increase at the Seattle plant of the defendant after initiating the midmorning rest period nor were there any fewer mistakes nor was there any less absenteeism or employee turnover. The employees felt better after the rest period, and the granting of this rest period by defendant improved defendant’s employer-employee relationships.”
Among its conclusions of law is the following :
“The rest period of 15-minute duration was not under such conditions as would permit the employees to make beneficial personal use of this time. Such rest period was predominantly for the benefit of the employer.”
Essentially, it is appellant’s position that the Court’s conclusion that the rest period was predominantly for the benefit of the employer, is not supported by the finding quoted above. It relies upon Mitchell v. Greinetz, 10 Cir., 1956, 235 F.2d 621, 61 A.L.R.2d 956 and Mitchell v. Turner, 5 Cir., 1960, 286 F.2d 104. Its position is that a Court cannot determine that such a rest period is primarily for the benefit of the employer in a case in which, as here, production did not increase after the initiation of a rest period.
We do not think that either case cited stands for the proposition that appellant asserts. On the contrary, it seems to us clear that in each case the Court felt that the trial court should consider all of the facts in determining whether the rest period was predominantly for the benefit of the employer. The record here shows that the Court did consider all of the facts, and we think its determination, whether it should be considered a conclusion of law or a finding of ultimate fact, is fully supported by the record.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
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).
NEW YORK LIFE INS. CO. v. MILLER.
No. 12680.
Circuit Court of Appeals, Eighth Circuit.
Jan. 12, 1944.
Ferdinand II. Pease, of New York City, Virgil Willis, of Harrison, Ark., and A. F. House, of Little Rock, Ark., for appellant.
No appearance for appellee.
Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.
PER CURIAM.
This action was brought in a state court of Arkansas by the appellee, Dora Miller, a resident of that State, against the appellant, to recover upon a policy of life insurance in which she was the beneficiary. The policy was issued in January, 1930, by the appellant, a life insurance company of New York, to Flora M. Maddox, later Flora M. Dillon, a citizen of California, who died in December, 1941, while the policy was in force. The appellant removed the case to the United States District Court for the Western District of Arkansas, and by answer and cross-complaint converted it into an action in interpleader, with Dora Miller (the appellee), Carl Maddox, the first husband of Flora M. Dillon, the insured, (from whom she had been divorced September 9, 1931), and Claude Dillon, her second husband, as adverse claimants. In its answer the appellant admitted its liability under the policy, but asserted its inability to determine whether all premiums were paid by the insured or whether Carl Maddox and Claude Dillon, named as cross-defendants, contributed to the payment of premiums. In its cross-complaint the appellant asserted that it had deposited the amount due upon the policy in the registry of the court; that there were two or more adverse claimments, citizens of different states, who claimed to be entitled to the money, namely, Dora Miller, a citizen of Arkansas, Carl Maddox, a citizen of Colorado, and Claude Dillon, a citizen of California; that Carl Maddox claimed that his' individual and community funds were used in the payment of premiums on the policy and that he was entitled to a community interest in the proceeds of the policy; that Claude Dillon made a similar claim; and that the appellant could not, with safety to its own interest,- recognize any of the conflicting claims. The prayer of the cross-complaint was for a determination of the rights of the appellee and the cross-defendants to the fund paid into court, for an injunction against the bringing of other suits upon the policy, and for an allowance of costs and an attorneys’ fee.
Upon the filing of the appellant’s answer and cross-complaint, the court entered an order for the service of process on the cross-defendants, Maddox and Dillon, and enjoining them from prosecuting other suits upon the policy. Maddox filed a disclaimer, and Dillon failed to answer. The appellee moved for judgment by default against Dillon and for a judgment against the appellant for the amount due under the policy, and, in addition, for the 12 per cent penalty and attorney’s fees provided by the statute of Arkansas in cases in which an insurance company has failed to pay the amount due upon a policy within the time specified in the policy. Section 7670 of the 1942 Supp. to Pope’s Digest of the Statutes of Arkansas 1937. The court entered judgment against the appellant as prayed for by the appellee, including in the judgment the statutory penalty and an attorney’s fee of $300, and required that the fund in the registry of the court be turned over to counsel for the appellee and be credited upon the judgment against the appellant. The court denied the appellant’s request for an allowance for attorneys’ fees. .This appeal is from the judgment.
The appellant contends that the court erred (1) in including the statutory penalty and attorney’s fees in the judgment, and (2) in denying an allowance of attorneys’ fees to the appellant.
The parties to the policy in suit were a citizen of California and a corporation of New York. The policy was payable in New York, was delivered in California, and matured in that State. In Business Men’s Accident Ass’n of America v. Cowden, 131 Ark. 419, 199 S.W. 108, 112, the Supreme Court of Arkansas held that the statute providing for the 12 per cent penalty and a reasonable attorney’s fee “was not intended to penalize a company for policies which were written and which matured in another state.” The Supreme Court of the United States ruled in Ætna Life Ins. Co. v. Dunken, 266 U.S. 389, 399, 45 S.Ct. 129, 69 L.Ed. 342, that such a state statute cannot constitutionally be applied to contracts made by citizens of other states. The Arkansas statute upon which the District Court relied in awarding to the appellee the statutory penalty and attorney’s fee is not applicable to the policy in suit. No such penalty or attorney’s fee should have been included in the judgment appealed from.
We think that the appellant was entitled to an allowance for attorneys’ fees out of the fund deposited in the registry of the court. The record discloses that the appellant was a disinterested stakeholder acting in good faith and on the advice of counsel, and that it had resisted payment of the appellee’s claim only for the purpose of protecting itself against the claims of Maddox and Dillon, from whom the appellee had not been able to procure disclaimers. The Interpleader Act of 1936, 49 Stat. 1096, 28 U.S.C.A. § 41(26) (e), authorizes the procedure which the appellant adopted to protect itself against the danger of multiple liability and to convert the appellee’s action upon the policy into a suit in inter-pleader. It is not conceivable to us that it makes any difference whether a disinterested stakeholder who is entitled to avail himself of the remedy of interpleader brings a separate suit and enjoins the claimants from bringing or proceeding with other actions, or whether he accomplishes exactly the 'same result by the means selected by the appellant in the instant case. If the appellant had brought an independent suit in interpleader, it would have been entitled to an allowance for attorneys’ fees to be determined by the District Court and paid out of the fund in Court. Mutual Life Ins. Co. v. Bondurant, 6 Cir., 27 F.2d 464, 466; Hunter v. Federal Life Ins. Co., 8 Cir., 111 F.2d 551, 557. There is no reason to penalize the appellant because it accomplished the same result in a different, but entirely legitimate, way. The amount to be allowed the appellant by the District Court as an attorneys’ fee should not exceed what would have been allowed had the suit been an independent suit in interpleader.
The case is remanded with directions to modify the judgment in accordance with this opinion. When so modified, the judgment will stancj affirmed. The costs of this appeal will be charged to the appellee.
See, also, Inter-Ocean Casualty Co. v. Warfield, 173 Ark. 287, 292 S.W. 129.
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_usc1
|
28
|
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.
Eugene E. LE MASTERS, Appellant, v. E. H. TUCKER, Warden, West Virginia State Penitentiary, Appellee.
No. 7512.
United States Court of Appeals Fourth Circuit.
Argued Nov. 7, 1957.
Decided Nov. 25, 1957.
Mathias J. DeVito, Baltimore, Md. (Court appointed counsel), for appellant.
Gene Hal Williams, Asst. Atty. Gen., of West Virginia (William Wallace Barron, Atty Gen., of West Virginia, on brief), for appellee.
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
PER CURIAM.
This is an appeal from an order denying a petition for a writ of habeas corpus by a prisoner serving sentences of imprisonment under judgments of state courts of West Virginia. The facts are fully set forth in the memorandum opinion and order of the District Judge and need not be repeated at length. The question raised by the petition is whether a court of one county of the state could impose a sentence to begin at the expiration of the sentence imposed by the court of another county. The point was presented in a petition for habeas corpus to the Supreme Court of Appeals of West Virginia, which refused the writ. The point is so lacking in merit that the court below would have been justified in denying the writ in the absence of the action taken by the state court; but, in the light of that action, there can be no question as to the correctness of the court’s ruling. Brown v. Allen 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Goodwin v. Smyth, 4 Cir., 181 F.2d 498. The District Judge properly denied appellant’s application for a certificate of probable cause required by 28 U.S.C. § 2253; and, in the absence of such certificate, there is nothing that we can do but dismiss the appeal.
Appeal dismissed.
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_respond1_8_3
|
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.
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 "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant.
Edwin SAWYER, Alice Frame, Lorene Hildebran and Doris Larsen, Appellants, v. Stanley L. DAVIS, Executor of the Estate of Doil S. Hunter, Deceased, Appellee.
No. 19394.
United States Court of Appeals Eighth Circuit.
March 27, 1969.
John D. Randall, Cedar Rapids, Iowa, for appellants and filed brief and reply brief.
Keith Mossman, Mossman & Grote, Vinton, Iowa, for appellee.
Before MATTHES, MEHAFFY and LAY, Circuit Judges.
PER CURIAM.
Plaintiffs brought an action to enjoin the defendant from opening a spendthrift trust under the Last Will and Testament of their deceased grandmother. Plaintiffs seek their alleged distributive share of the estate, a one-fourth interest, outside of the trust and the return of certain interest and attorney fees previously charged against their share of the estate resulting from proceedings in the state courts.
The federal district court dismissed the complaint on the grounds that the Iowa Supreme Court and the District Court of Iowa in and for Benton County had previously adjudicated the same issues raised in the complaint, relying upon Sawyer v. Sawyer, 152 N.W. 2d 605 (Iowa 1967) ; In re Estate of Hunter, Probate No. 11,231, District Court of Iowa in and for Benton County. After the dismissal of plaintiffs’ complaint (June 27, 1968), plaintiffs filed an amendment to their complaint (July 3, 1968). Upon the defendant’s failure to respond to the amended complaint, plaintiffs filed a motion for default. On July 25, 1968, Judge McManus denied the motion for default judgment on the ground that the amended complaint was a nullity since the original complaint had been dismissed. Plaintiffs have seemingly abandoned this point on appeal.
Although we are fully satisfied as to the propriety of the federal district court’s rulings, we find that the cause must be dismissed for lack of jurisdictional amount. Defendant’s motion for dismissal challenged jurisdiction of the federal court on the stated ground that the amount involved was less than $10,000 exclusive of interest and costs. Attached to said motion were the inventory and appraisal of the estate properties and the final inheritance tax return filed in the state probate proceedings. Plaintiffs did not offer any counter evidence, nor is any contained in the record before this court. It remains undisputed that the total estate appraised before taxes was $66,261.70. The net taxable estate was $61,849.14. Included in the estate was $29,043.70 of joint property not includable in the trust at issue. Additionally, the state court had ordered approximately $4,200 to be paid out of the plaintiffs’ one-fourth share. Notwithstanding this latter fact, plaintiffs’ one-fourth share amounts to only $8,200. There exists no contradiction of these facts on the record. Plaintiffs asserted in oral argument on appeal that these figures are not accurate and that they will prove at trial that not all of the property set aside as joint property was proper. These allegations appear nowhere in the complaint nor were they substantiated in any way before the trial court.
Where the amount in controversy is challenged in an appropriate manner, it has long been settled that the burden is on the plaintiff to establish the jurisdictional amount, and if the burden is not met, the complaint must be dismissed for want of jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ; 1 Moore, Federal Practice ¶ 0.92 [3.-1] at 838-839 (1964).
As eárly stated by this court:
“It is not the amount claimed in the prayer for relief which determines the jurisdiction of the court, if the unmistakable fact and legal certainty be that the plaintiff could not have had any reasonable expectation that she could recover, exclusive of interest and costs, an amount within the jurisdiction of the court. In such a case it is the duty of the court to dismiss it for want of jurisdiction, although the ad damnum clause demands judgment for a sum sufficient to confer jurisdiction on the court.” New York Life Ins. Co. v. Johnson, 255 F. 958, 959 (8 Cir. 1919).
Accordingly, the judgment is vacated and the cause is remanded to the district court with directions to dismiss the action for lack of jurisdiction.
. Plaintiffs challenge the jurisdiction of the state probate court in this proceeding. Plaintiffs filed special appearances attacking the jurisdiction of the probate court. These were overruled. Plaintiffs did not appeal. Their attempt collaterally to attack the state jurisdiction in the federal court overlooks fundamental principles of res judicata. The determination of jurisdiction by the state court was not appealed and this question is no longer subject to collateral attack. See Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) ; Baldwin v. Iowa State Traveling- Men’s Ass’n, 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244 (1931) ; Restatement, Judgments § 9 (1942).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Which of the following specific subcategories best describes the litigant?
A. trustee in bankruptcy - institution
B. trustee in bankruptcy - individual
C. executor or administrator of estate - institution
D. executor or administrator of estate - individual
E. trustees of private and charitable trusts - institution
F. trustee of private and charitable trust - individual
G. conservators, guardians and court appointed trustees for minors, mentally incompetent
H. other fiduciary or trustee
I. specific subcategory not ascertained
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.
Patricia Ann KEELER and William Joseph Keeler, Plaintiffs-Appellees, v. RICHARDS MANUFACTURING CO., INC., et al., Defendants-Appellants.
No. 86-1201.
United States Court of Appeals, Fifth Circuit.
June 1, 1987.
E. Earl Harcrow, Tim G. Sralla, Shannon, Gracey, Ratliff & Miller, Fort Worth, Tex., for defendants-appellants.
Roger Turner, T. Ray Guy, Jennifer A. Youpa, Dallas, Tex., for plaintiffs-appellees.
Before GARZA, WILLIAMS and GARWOOD, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Defendants Richards Manufacturing Company and Richards Medical Company (collectively Richards) are appealing the judgment entered in favor of plaintiffs Patricia Keeler and her husband, William Keeler. The jury found that Richards had defectively manufactured a compression hip screw which broke after being implanted in Mrs. Keeler’s hip. The Keelers were awarded over five hundred thousand dollars in damages after 32% of the total award was deducted as that part of the damages caused by the fault of Mrs. Keel-er. Richards claims that the evidence is insufficient to support the verdict.
I. Facts
Patricia Keeler broke her hip on the evening of July 18, 1982, when she accidentally slipped and fell in a friend’s kitchen. She was taken to Plano General Hospital in Plano, Texas. Dr. Neal C. Small, an orthopedic surgeon at the hospital, decided to implant a compression hip screw into Mrs. Keeler’s broken hip in order to assist in the healing process. After the operation, Mrs. Keeler’s hip appeared to be mending normally, and she did not experience any unusual complications as a result of the surgery.
On November 27, 1982, Mrs. Keeler entered Gaston Episcopal Hospital for additional surgery unrelated to her hip injury. A few days prior to her admission to the hospital, Mrs. Keeler reported experiencing a great deal of pain in her hip. Dr. William C. Head, Mrs. Keeler’s regular orthopedic surgeon, examined her and discovered that the compression hip screw had broken. The broken screw was replaced with a hip prosthesis. This surgical implant eventually proved to be unsuccessful, and a second hip prosthesis had to be installed in August 1984.
Mr. and Mrs. Keeler filed this diversity action against Richards, the manufacturer and distributor of the broken hip screw, in the United States District Court. The Keelers alleged that the break in the compression hip screw was the result of a manufacturing or design defect, while Richards claimed that Mrs. Keeler had misused the screw by putting more than the recommended amount of weight on her hip. The jury determined that the screw had been defectively manufactured and that the defect was a producing cause of appellees’ damages. The jury also found that appellants’ defective manufacture of the compression hip screw breached an express warranty and an implied warranty of merchantability.
The jury did not make a finding that the breach of warranty was committed knowingly or that the compression hip screw was defectively designed. Additionally, Mrs. Keeler was determined to have been misusing the screw at the time the screw apparently broke because she put excess pressure on it by lifting a portable television set. The jury found her thirty-two percent at fault for the damages she sustained.
The jury awarded Mrs. Keeler the following amounts of damages:
' A. Past Physical Pain and Mental Anguish $100,000.00
B. Future Physical Pain and Mental Anguish $100,000.00
C. Past Physical Impairment $100,000.00
D. Future Physical Impairment $150,000.00
E. Past Medical Expenses $ 39,400.00
F. Future Medical Expenses $150,000.00
G. Past Disfigurement $ 50,000.00
H. Future Disfigurement $100,000.00
Mr. Keeler was compensated for his losses as follows:
A. Past Lost Consortium $ 20,000.00
B. Future Lost Consortium $ 20,000.00
Appellants moved for a directed verdict before submission of the case to the jury and for judgment notwithstanding the verdict. They further requested a remittitur of the damages portion of the jury award or a new trial. The district court denied all of appellants’ motions and, on February 26, 1986, entered judgment agaiiist appellants in the amounts of $536,790 plus prejudgment interest for Mrs. Keeler, $27,200 plus prejudgment interest for Mr. Keeler, and $22,000 for attorneys’ fees. There was timely notice of appeal.
II. Defective Manufacture of the Compression Hip Screw
Appellants claim that the district court erred in denying their motion for directed verdict, motion for judgment notwithstanding the verdict, and alternatively, motion for new trial on the ground that the evidence presented at trial did not support the jury’s finding that the compression hip screw was defectively manufactured. A jury verdict, however, may be reversed and a new trial ordered only if the verdict is against the great weight of the evidence. Smith v. Transworld Drilling Co., 773 F.2d 610, 612 (5th Cir.1985). “The decision to grant or deny a motion for new trial generally is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of thát discretion or misapprehension of the law.” Dixon v. International Harvester Co., 754 F.2d 573, 586 (5th Cir.1985).
The standard for granting a motion for directed verdict or motion for judgment notwithstanding the verdict is even more stringent:
[T]he Court should consider all of the evidence ... but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting the motion is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusion's, the motions should be denied____ [I]t is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc). After reviewing the record, we find that there is ample evidence to support the jury’s verdict and that the district court did not err in refusing to grant appellants’ motions.
Two of appellees’ expert witnesses, John Harcourt and Dr. Gary Hansen, testified that the lag screw component of the compression hip screw contained at least four irregularities which they considered to be manufacturing defects. They also concluded that any one of the identified defects could have been a producing causé of Mrs. Keeler’s injuries. The first manufacturing defect they found concerned the length of the lag screw’s internal threads. Appellants’ design specifications required the lag screw's internal threads to be not more than 1.125 inches in length. John Harcourt testified that he measured the subject lag screw and found it to be 1.1875 inches in length. Dr. Hansen also examined the subject lag screw and confirmed that, in his opinion, the internal threads were “not in conformance with blueprint specifications.”
Mr. Harcourt and Dr. Hansen testified that the presence of excess internal threads would weaken the lag screw by creating an area of unintentional stress concentration. They stated that, as a result of this defect, the lag screw’s resistence to fatigue failure was decreased, which eventually caused the screw to break.
The second defect was evidenced by testimony that an unacceptable amount of metal debris was present in the lag screw at the time it was inserted into Mrs. Keel-er’s hip. John Harcourt testified that this debris would interfere with the surgeon’s ability to compress the screw properly, thereby allowing the bones greater than normal movement. In turn, this failure to tighten properly would place a higher level of stress on the screw. Mr. Harcourt considered the resultant stress to be a producing cause of the screw’s failure.
The claim of a third defect was based upon evidence that the subject screw’s radius was slightly less than that of an exemplar hip screw furnished by Richards. John Harcourt testified that the smaller radius would result in greater stress concentration and that the subject screw was not as strong as it otherwise should have been. Finally, as a fourth defect, there was also some testimony that the hip screw failed to comply with the American Society of Testing Materials’ (A.S.T.M.’s) standard of 35% ductility.
Appellants undertook to discredit the value and accuracy of the evidence concerning the alleged manufacturing defects. In effect, they are only relitigating the issues that already have been decided by the jury. They claim, for example, that appellees’ experts were incorrect in their measurements of the lag screw and that the internal threads were less than 1.125 inches in length. They also contend that any debris which may have been present in the lag screw could not have been a producing cause of Mrs. Keeler’s injuries because x-rays revealed that the hip screw had functioned properly in pulling Mrs. Keeler’s bones together and that the hip appeared to be healing satisfactorily. The jury, however, heard these contentions and chose to believe appellees’ witnesses rather than those of appellants. There is sufficient evidence to support the jury’s finding that Richards defectively manufactured the subject compression hip screw, and the district court correctly decided not to “second-guess” the jury’s verdict by granting any of appellants’ motions.
III. Damage Award
A. Disfigurement
Appellants claim that there is insufficient evidence to support the jury’s award of $150,000 to Mrs. Keeler for past and future disfigurement because there is nothing in the record to indicate that Mrs. Keeler suffered any serious scarring or other physical deformity as a result of the broken hip screw or the subsequent surgeries needed to repair the hip. They contend that, in contrast to physical impairment, disfigurement damages are awarded only in cases involving a physical blemish which visibly detracts from a person’s appearance or which otherwise injures or impairs a person’s beauty or symmetry. The Texas cases recognize as an element in establishing damages in disfigurement the subjective feelings of embarrassment or depression created by the disfigurement. See Goldston Corp. v. Hernandez, 714 S.W.2d 350, 353 (Tex.App.—Corpus Christi 1986, writ ref’d n.r.e.) (disfigurement damages awarded to a man who was depressed and embarrassed about his scarred foot and amputated toe); Northwest Mall Inc. v. Lubri-Lon International, 681 S.W.2d 797, 804 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (disfigurement damages awarded to a woman with three hip surgeries prior to trial and three more anticipated who considered herself deformed because of the resultant scarring); Armellini Express Lines v. Ansley, 605 S.W.2d 297, 312 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.) (disfigurement damages awarded to a thirty-two-year-old woman who suffered substantial injury to her body and face such that she considered herself an “ugly old hag”); Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 959 (Tex.Civ.App.—Tyler 1976) (disfigurement damages awarded to a young man with an amputated little finger and a hand with areas of exposed tissues who was embarrassed to shake hands with anyone).
Appellees claim in their brief that Mrs. Keeler sustained extensive permanent scarring as a result of the two hip replacement operations. There is, however, a total lack of evidence in the record to support that contention. The record also does not contain any testimony to the effect that Mrs. Keeler considered herself to be disfigured in any way. The mere fact that Mrs. Keeler is required to use crutches or a cane is not evidence of disfigurement; it is evidence of disability. In short, the record is devoid of any evidence of disfigurement as opposed to physical impairment.
It is well-established that “a mere scintilla of evidence is not sufficient to sustain a jury determination.” Tarlton v. Exxon, 688 F.2d 973, 976 (5th Cir.1982). In this case, there was not even a scintilla of evidence of Mrs. Keeler’s disfigurement, and the jury should not have been given the opportunity to consider the matter. We determine that the district court erred in failing to grant appellants’ motion for judgment notwithstanding the verdict on the issue of disfigurement and reverse the damage award of $150,000.
B. Future Medical Expenses
Under Texas law, “[rjecovery for future medical expenses requires a showing that there is a reasonable probability that such medical expenses will be incurred in the future.” City of Rosenberg v. Renken, 616 S.W.2d 292, 293 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). “No recovery can be allowed based upon pure speculation.” Roth v. Law, 579 S.W.2d 949, 956 (Tex.Civ.App.—Corpus Christi 1979, no writ). Appellants claim that the jury award of $150,000 to Mrs. Keeler for future medical expenses is not supported by the evidence. We agree.
The record indicates that only Dr. Vetter Frank Cody and Dr. William C. Head testified concerning Mrs. Keeler’s future medical expenses. When asked what the future would hold for Mrs. Keeler, Dr. Cody, a psychiatrist, stated that “there’s a lot of uncertainty. No one really knows just what’s going to happen in situations like is [sic].” Dr. Head testified that Mrs. Keel-er’s medical expenses could vary a great deal. He also stated that “this is one of those situations that if it were simply routine follow up checks in the office and periodic x-rays could probably be 2 or $300 a year. Whereas, if she ended up having to have more surgery you could be facing thousands of dollars____” No other evidence was presented.
“In reviewing a jury award of damages on appeal, the court is actually reviewing the district court’s denial of a motion for a new trial. The standard of review of the denial of such a motion is whether the district court abused its discretion.” Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 539, 541 (5th Cir.1985) (citations omitted). If the jury awards an unreasonable amount in light of the evidence, a new trial may be ordered, or the award may be reduced by suggesting a remittitur to the maximum amount the jury could have awarded. Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983).
Since the district court erred in allowing a damage award which included an excessive amount of future medical expenses to stand, we reverse for a new trial on the issue of damages unless appellees are willing to accept a remittitur for the amount of the excessive future medical expenses. The new trial on the issue of damages will encompass physical pain and mental anguish and physical impairment as well as medical expenses. This is so because the question of future medical expenses is not so distinct and separate from the other damage issues “that a trial of it alone may be without injustice.” Westbrook, 754 F.2d 1233, 1242 (5th Cir.1985) (quoting Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931)). It will not include retrial of the issue of disfigurement since there was a complete absence of evidence on the issue and the district court should have directed a verdict or granted judgment notwithstanding the verdict. The maximum non-speculative amount Mrs. Keeler could have received for future medical expenses was $6,000. Cf. Roth v. Law, 579 S.W.2d at 956 (jury award of $20,000 was excessive where the only testimony of future medical expenses was physician’s “conservative” estimate of $10,000). Appellants, therefore, are entitled to a new trial on damages unless appellees consent to a remittitur of $97,920.
IV. Conclusion
We determine that the evidence is more than sufficient to support the jury’s finding on the issue of Richards’ defective manufacture of the compression hip screw. We find, however, that the district court erred in failing to grant appellants’ motion for judgment notwithstanding the verdict on the issue of disfigurement. We reverse and render on this issue. Additionally, the damage award is excessive, and the district court erred in denying appellants’ motion for new trial. We, therefore, order a new trial on the issue of damages unless appellees accept a remittitur of $97,920.
The judgment of the district court is
AFFIRMED ON THE MERITS. REVERSED AND RENDERED IN PART, AND REMANDED FOR A NEW TRIAL IN PART ON DAMAGES.
. The compression hip screw is a device specially designed for fixation of broken hips. It consists of three different parts, the hip screw plate, the lag screw, and the compression screw. The hip screw plate is attached to the femur with screws. On the top end of the plate is a barrel. The lag screw is screwed into the femoral neck and head and fits into one end of the barrel of the hip screw plate. The broken pieces of bone are then drawn together by inserting the third piece, the compression screw, into the other side of the barrel. The compression screw and the lag screw have mating threads, and by turning the compression screw, the surgeon can draw together the lag screw and the plate, thereby also drawing together the fractured bones. The Richards’ compression hip screw has a key-way, which is a slot in the lag screw with a mating key in the barrel. This prevents the femoral head from rotating relative to the femur, and further assists in fixating the broken bones to assist in healing.
. The compression hip screw is designed as a partial weight bearing device. Mrs. Keeler, however, testified that she had moved a small, portable television set from the floor to a tabletop the evening before her hip began causing her pain.
. The jury also found that the alleged defective manufacture of the hip screw breached an express warranty and an implied warranty of merchantability. Because we find that the jury’s verdict on the defect claim is supported by the evidence, we need not consider appellants’ contention that there was insufficient evidence to support this allegation.
. Appellees claim that Atchison, Topeka & Santa Fe Railroad Co. v. McCartney, 549 S.W.2d 228 (Tex.Civ.App.—Beaumont 1977, writ ref'd n.r.e.) supports their contention that crutches alone Eire disfiguring. This reliance is misplaced. While the court found that McCartney was disfigured to some extent because he was required to wear a special "boot" in order to wEtlk, he also was disfigured because he had lost all of his toes and a portion of the ball of his foot. Id. at 231.
. "A new trial on the issue of damages, once liability is established, is proper." Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1242 (5th Cir.1985).
. Dr. Head testified that Mrs. Keeler had a life expectancy of twenty years. The amount of the award for future medical expenses, therefore, should be equal to $300, the maximum estimate of non-speculative yearly expenses, multiplied by the twenty year life expectancy, or $6,000.
. In determining the amount of the remittitur, we take into account Mrs. Keeler’s thirty-two percent liability. The remittitur, therefore, is equal to sixty-eight percent of the total excess future medical expenses, $97,920.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
UNITED STATES v. HALEY.
No. 148.
Decided October 15, 1962
Solicitor General Cox, Assistant Attorney General Orrick, Alan S. Rosenthal and David L. Rose for the United States.
James P. Donovan for appellee in No. 148.
Together with No. 139, Misc., United States v. United States District Court for the Northern District of Texas, on motion for leave to file petition for writ of mandamus and on petition for writ of mandamus.
Per Curiam.
The order of the District Court, dated February 26, 1962, denying the motion of the United States for judgment in this action evidently rested on a misconception of the scope and effect of this Court’s per curiam opinion on the Government’s earlier appeal, 358 U. S. 644, and of its judgment issued February 24, 1959. In light of the issues tendered in the papers filed on that appeal there can be no doubt that this Court’s judgment finally established the Government’s right to the relief sought in this action, subject only to the District Court’s resolution of Haley’s procedural defense, still unadjudicated, to the effect that the Government had failed to comply with conditions requisite to the effective establishment of a wheat acreage allotment for Haley. See Jurisdictional Statement of the United States and Appellee’s Statement Opposing Jurisdiction and Motion to Dismiss or Affirm in No. 587, October Term, 1958; Appellee’s Motion to Vacate the Court’s Judgment of February 24, 1959, denied April 27, 1959, 359 U. S. 977; and Appellee’s Motion for Rehearing, denied April 27, 1959, 359 U. S. 981.
More particularly, this Court then necessarily decided (1) that it had jurisdiction over such appeal; (2) that the relevant provisions of the Agricultural Adjustment Act of 1938, 52 Stat. 31, as amended, 7 U. S. C. § 1281 et seg., embraced the conduct of Haley complained of in this action; and (3) that the Act was constitutional as applied in the premises. Under the remand ordered by this Court’s judgment of February 24, 1959, there was thus left open to the District Court only the adjudication of Haley’s above-mentioned procedural defense. The District Court erred in believing that it was not foreclosed from inquiring into this Court’s jurisdiction over the Government’s appeal and from reinstating its own original judgment in the case, which appears to have been the effect of its denial of the Government’s motion for judgment following remand. See In re Sanford Fork & Tool Co., 160 U. S. 247, 255.
The District Court’s error should be rectified without delay, and we think that the proper means for accomplishing this is by mandamus. 28 U. S. C. § 1651; see In re Potts, 166 U. S. 263; United States v. United States District Court, 334 U. S. 258, 263, 264. Accordingly, in No. 139, Misc., the Government’s motion for leave to file a petition for a writ of mandamus, and its petition for a writ of mandamus, are granted.
We shall not, however, issue a formal writ at this time, since we are confident that the District Court, once its misconception of our judgment of February 24, 1959, has been called to its attention, will promptly take steps (1) to set aside its order of February 26, 1962, denying the motion of the United States for judgment; (2) to proceed to resolve Haley’s aforesaid procedural defense; (3) if such defense is found to be insufficient, to enter a final judgment in this action in favor of the United States; and (4) if such defense is found sufficient, to enter judgment accordingly. Cf. Ex parte Northern Pac. R. Co., 280 U. S. 142, 530.
In view of our disposition in No. 139, Misc., it becomes unnecessary to consider whether this Court has jurisdiction over the Government’s appeal in No. 148, and the motion to dismiss the appeal in that case is accordingly granted and the appeal is dismissed.
It is so ordered.
Mr. Justice Goldberg took no part in the consideration or decision of these cases.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_two_issues
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Charlotte COATS, Plaintiff-Appellant, v. Stephen WOODS; Orange County Superior Court; Jack Mandel; James Cook; Commissioner Evans; Commissioner Fassell; County of Orange; Thomas H. Schulte; Jane M. Egley; United Fathers; Henry J. Kohler; William C. Armstrong; Gail Armstrong; Costa Mesa Police Department, Newport-Mesa School District, Defendants-Appellees. Charlotte COATS, Plaintiff-Appellant, v. Stephen WOODS, Orange County Superior Court; Jack Mandel; James Cook; Commissioner Fassell; County of Orange; Thomas H. Schulte; Jane M. Egley; United Fathers; Henry J. Kohler; William C. Armstrong; Gail Armstrong; Costa Mesa Police Department; Newport-Mesa School District, Defendants-Appellees.
Nos. 86-5712, 86-6046.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 4, 1987.
Decided June 5, 1987.
Charlotte Coats, Santa Ana, Cal., plaintiff-appellant.
David N. Kauth, Santa Ana, Cal., Kevin M. Tripi, Costa Mesa, Cal., Jeanne E. Em-rich, Irvine, Cal., Bruce Führer, Los Ange-les, Cal., Brandt Caudill, Irvine, Cal., C. William Nyman, L. Thomas Krahelski, Santa Ana, Cal., for defendants-appellees.
Before PREGERSON, NELSON, and WIGGINS, Circuit Judges.
PREGERSON, Circuit Judge:
Charlotte Coats brought these actions, under 42 U.S.C. § 1983, in which she alleged that her husband and others wrongfully deprived her of the custody of her two children. The district court abstained from hearing the cases on the ground that the actions, involving child custody, implicated domestic relations issues, traditionally an area of state concern. Coats appeals from the district court’s dismissal of the actions. We affirm.
Following divorce from her husband, William Armstrong, Coats obtained sole custody of their two sons from 1971 until 1983. In 1983, Armstrong commenced custody proceedings in state court. There he gained visitation rights, then joint custody, and, finally, sole custody of the children. Coats appealed the decision awarding sole custody to Armstrong to the California Supreme Court, but was denied review. Coats now has two cases pending in state court, one involving the constitutional issues raised in this action, and another focusing on state law custody matters.
Defendants in the two similar federal court actions that form the basis for these appeals include Armstrong, his present wife, their attorney, the court-appointed attorney for the two children, a court-appointed psychologist, two court commissioners, two Superior Court judges, the Orange County Superior Court, the County of Orange Costa Mesa Police Department, the Newport-Mesa School District, and an organization called United Fathers. In her complaint, Coats alleges that these defendants wrongfully deprived her of child custody (thus depriving her of a liberty interest) in violation of 42 U.S.C. §§ 1983, 1985(2), and 1985(3).
Coats filed her first federal district court action on November 22, 1985. The district court dismissed the action on February 5, 1986, based on the doctrine of equitable abstention. Coats filed her second action in district court on February 19, 1986. In her latest complaint, she added four defendants, dropped one defendant, and made additional factual allegations. This action was dismissed on May 30, 1986, on the same legal basis as the initial action. Coats timely appeals from both dismissals, and this court has consolidated Coats’ appeals for decision.
We review a district court’s abstention decision for abuse of discretion. Peterson v. Babbitt, 708 F.2d 465, 466 (9th Cir.1983) (per curiam).
We hold that the district court’s decision to abstain was not an abuse of discretion. The district court, in dismissing the action, relied on the abstention doctrine under which federal courts traditionally decline to exercise jurisdiction in domestic relations cases when the core issue involves the status of parent and child or husband and wife. The district court’s application of the abstention doctrine was appropriate under Peterson, 708 F.2d at 465. In that case, a prisoner brought a section 1983 action alleging that various defendants wrongfully deprived him of visitation rights with his children. We affirmed the district court’s dismissal of the case on the ground that plaintiff had pending state actions in which he could bring his constitutional claims and that the case itself raised issues of traditional state concern. We stated that
[t]he strong state interest in domestic relations matters, the superior competence of state courts in settling family disputes because regulation and supervision of domestic relations within their borders is entrusted to the states, and the possibility of incompatible federal and state court decrees in cases of continuing judicial supervision by the state makes federal abstention in these cases appropriate.
Peterson, 708 F.2d at 466.
This case, while raising constitutional issues, is at its core a child custody dispute. The state courts have already considered the merits of Coats’ claims and have held that her former husband is entitled to custody. The district court was aptly reluctant to put itself in the position of having to review the state courts’ custody decision. If the constitutional claims in the case have independent merit, the state courts are competent to hear them. Given the state courts’ strong interest in domestic relations, we do not consider that the district court abused its discretion when it invoked the doctrine of abstention.
AFFIRMED.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
|
songer_genapel1
|
H
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Henry E. CROWE et al., Co-Executors Etc., Defendants, Appellants, v. Clorinda DI MANNO, Plaintiff, Appellee.
No. 4916.
United States Court of Appeals First Circuit.
Sept. 15, 1955.
Stanley M. Epstein, Boston, Mass., and Francis J. Maguire, Providence, R. I., appearing specially, Andrew B. Goodspeed and Willard, Petersen, Goodspeed & Cameron, Boston, Mass., on the brief, for appellants.
Walter R. Morris and J. Newton Es-daile, Boston, Mass., for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment for the plaintiff in an action for personal injuries resulting from a collision between an automobile operated by the plaintiff and a tractor-trailer unit owned by the defendants as co-executors which was being operated at the time of the accident by their servant in the regular course of his employment. The plaintiff is a citizen of Massachusetts and the defendants are citizens of Rhode Island who, as co-executors duly appointed by the Probate Court of the City of Paw-tucket, Rhode Island, have since 1947 been carrying on the interstate trucking business of their decedent, Robert A. Watt, formerly a citizen of that state. There is not the slightest doubt that the matter in controversy far exceeds the sum or value of $3,000, exclusive of interest and costs, for the plaintiff’s right leg was so badly mangled in the accident that within an hour or two it had to be amputated a little above the knee and a few days later it had to be amputated again just below the hip. A trial by jury lasting twelve days resulted in a verdict for the plaintiff in the amount of $150,-000 ahd this appeal is from the judgment entered on that verdict.
We are confronted at the outset with a question of the defendants-appellants’ capacity to be sued in Massachusetts which was raised in this court for the first time by a motion to vacate the judgment below and remand the cause for dismissal. The appellants’ argument is that as the executors of a Rhode Island citizen appointed by a Rhode Island probate court they lack capacity to be sued in their fiduciary capacity in Massachusetts. Wherefore they say that since the plaintiff’s action was brought against them as co-executors it ought now to be dismissed out of hand even though without objection they appeared and defended the action on the merits in the court below. We do not agree.
It is certainly true that the defendants’ authority to administer their decedent’s estate derives from their appointment as co-executors by a Rhode Island court, and it is equally true that an executor or administrator has no authority to act as such outside the state wherein he was appointed. But a decedent’s estate is not a legal entity. Rights of action against the estates of deceased persons can be asserted only against the individual or individuals administering the estate. The question here is whether this action lies against the co-executors in their .fiduciary capacity or lies against them personally.
Counsel agree that Rule 17(b), Fed.Rules Civ.Proc., 28 U.S.C.A., requires that the question of the capacity in which the defendants must be sued in the court, below be determined by the law of Massachusetts, and the settled rule in Massachusetts, as in Rhode Island, Parmenter v. Barstow, 1900, 22 R.I. 245, 47 A. 365, 63 L.R.A. 227 and generally elsewhere, is that executors and others in similar positions of trust are liable and must be sued personally, not in their fiduciary capacities, for torts committed in the course of their administration either by themselves or by their agents or servants when acting within the scope of their employment. Shepard v. Creamer, Trustee, 1894, 160 Mass. 496, 36 N.E. 475; Restatement, Trusts § 264. And the fact that defendants are named in the complaint as co-executors doing business etc., is immaterial, for the case cited last above also stands for the proposition that naming a defendant in the complaint or other papers in the case in his fiduciary capacity is merely descriptio personae and may be disregarded as surplusage. Since the plaintiff is a citizen of Massachusetts and the defendants are both citizens of Rhode Island, and since the requisite jurisdictional amount is clearly in controversy, we think, there can be no doubt on the score of federal jurisdiction.
We turn now to the merits of this appeal.
The accident occurred at a point on U. S. Route 1,- an undivided four-lane highway, near its intersection with Carroll Avenue in the town of Westwood, Massachusetts, at about 4:15 a. m. on November 25, 1952. Both vehicles involved in the accident were traveling on Route 1 in a northerly direction toward Boston. The plaintiff’s version of the accident and of the events leading up to it is that she left Pawtucket, Rhode Island, bound for Boston some time after 3:00 o’clock in the morning of the day of the accident driving a sedan with a young man sitting beside her on the front seat. As she was driving north on Route 1 in Westwood she overtook and passed the defendants’ tractor-trailer unit somewhere south of the intersection of East Street, which is a short dis- ■ tance south of the Carroll Avenue intersection. She says that she slowed down to about 20 miles per hour for the East Street intersection, passed through it safely, and had just begun to increase her speed again when the car she was driving was struck violently from behind by the front of the defendants' tractor. She says this caused her cár to spin to its left out of control and make an approximately 180° turn so that it faced back in the direction from which it had come. While in this position she says that the tractor struck her car again, this time on its left front corner, turning it back in the direction of Boston. This second impact she says threw her against the front door on her side of the car so violently that it flew open and she fell to the road where a dual wheel of the tractor-trailer unit ran over her right leg and crushed it so badly at the knee as almost to tear it from her body.
The defendants’ concede the plaintiff’s severe injury but their version of the accident is quite different. They introduced evidence tending to show that as their unit approached the intersection of East Street it was in the extreme easterly lane of Route 1 proceeding at a speed somewhat less than 40 miles per hour, and that the car driven by the plaintiff in attempting to pass at a very high rate of speed sideswiped the tractor just back of its left front wheel crumpling the running board on that side, punching a hole in the cab door, and doing other damage in that area. Their driver said that the sedan then went on up the road out of control but was not struck a second time and that as it went up the road the plaintiff fell out, and in some way, he did not profess to say exactly how, received the severe injury of which she complains.
There is evidence to support both versions of the event. Indeed, it is very difficult to say which version is more nearly correct for the damage done to the vehicles involved is not wholly consistent with either. We do not need to analyze the evidence in minute detail for the defendants do not contend that they are entitled to a directed verdict. Their primary contention is that the unfair conduct of the District Judge throughout the trial so seriously prejudiced them in presenting their case to the jury that they were deprived of their right to a fair and impartial trial. The charge is a serious one and has been carefully considered. We regret to say that we find it amply supported.
Both sides were represented at the trial by obviously able and experienced counsel. Nevertheless the District Judge participated very actively in the trial from beginning to end. Indeed, relatively few pages of the nearly 800 printed pages of testimony in the record appendix are without some question to a witness, comment on the evidence, or remark by the court. Standing alone the judge’s active participation would not be objectionable. Trial courts traditionally have the power to question witnesses to elicit facts not developed by counsel or to clarify testimony previously given. And in the federal courts a trial judge is not a mere moderator but may if he chooses comment on the weight of the evidence, and express his opinion upon the facts, provided in the first place that he does so fairly, impartially and accurately, and provided in the second place that he makes it clear to the jury that his comments are only advisory, and that all matters of fact are for their determination and theirs alone. Quercia v. United States, 1933, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321.
The prerogative of the trial judge to comment on the evidence has definite boundaries. They are clearly traced in the opinion last cited in 289 U. S. at page 470, 53 S.Ct. at page 699, where Mr. Chief Justice Hughes speaking for a unanimous Court said:
“This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. His privilege of comment in order to give appropriate assistance to the jury is too important to be left without safeguards against abuses. The influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ This court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence ‘should be so given as not to mislead, and especially that it should not be one-sided’; that ‘deductions and theories not warranted by the evidence should be studiously avoided.’ Starr v. United States, 153 U.S. 614, 626, 14 S.Ct. 919, 923, 38 L.Ed. 841; Hickory v. United States, 160 U.S. 408, 421-423, 16 S.Ct. 327, 332, 40 L.Ed. 474. * * * ”
Furthermore, in the Quercia case, 289 U.S. at page 472, 53 S.Ct. 698, it is held that an error of the trial court in overstepping the bounds of its privilege to comment on the evidence is not cured by a statement in the charge that the court’s opinion is only advisory and not binding on the jury. That admonition is always necessary. At the most it can offset only brief and minor departures from strict judicial impartiality. See United States v. Brandt, 2 Cir., 1952, 196 F.2d 653, 655, 656.
The cases cited above are both criminal. We have no doubt, however, that the principles enunciated in them apply as well to civil cases. No trial in court is ever a purely private controversy in which the public has no interest. “The state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence.” N. Y. Central R. R. Co. v. Johnson, 1929, 279 U.S. 310, 318, 49 S.Ct 300, 303, 73 L.Ed. 706.
Any attempt to catalogue every instance of prejudice to. the defendants interjected into this case by the trial judge, either in his comments -on the evidence, in his obviously hostile cross-examination of witnesses whose testimony was unfavorable to the plaintiff, but not of witnesses who testified in- the plaintiff’s favor, or . in various other ways, would expand this opinion to inordinate length. A few specific instances will have to suffice.
The speed -at which the plaintiff's car was travelling at the time of the’accident was, of course, a vitally important issue in the case. She testified that she' was driving at a rate of speed that certainly would be considered reasonable under the circumstances. But her testimony stood pretty'much aloné for it was not corroborated by her companion because he said he was asleep and woke’ up only when the vehicles collided. Nor could the driver of the defendants’ truck throw much light on the issue. All he could say was that he happened to'glance in his rear-view mirror just before the collision where he saw the lights of the overtaking car only as a flash just before the impact. Substantial evidence of excessive speed on the plaintiff’s part, however, was- elicited -from the Chief of Police of Westwood who was subpoenaed by both sides but first called to the stand by the plaintiff. Hé- testified that with the permission of one of the attending physicians he and one of his sergeants visited the plaintiff in the hospital about 5 o’clock in the afternoon of the day after the accident. He' said that when asked about hér speed the plaintiff-stated, without committing herself as to who -was' driving, that “they were travelling at'a fast'rate of speed,” that when she was asked what she meant by a “fast rate of ■ speed” she said “about 75 miles per hour,” and that when she was asked if she realized what 75 miles per hour was, she said that she did and that “they were travelling at a very fast rate of speed; going as fast as the car would go.” At that point in the interview the chief said that the plaintiff showed signs of pain and asked them to leave and they did. The chief’s testimony was corroborated by the sergeant who was put on the stand by the defendants.
Confronted with this' damaging testimony, counsel for the plaintiff resorted to the time-honored device of distracting the jury’s attention from it by trying the policemen.’ In his cross-examination of the sergeant, and also in his cross-examination by leave of court of his own witness, the chief, he sought to convey the impression to the jury that the officers had been guilty of a heartless, callous, and cruel act to visit the plaintiff in the hospital to inquire about the accident so soon after she had lost her leg. Furthermore, he implied by his questioning that their testimony could well be mistaken for the reason that neither had written down what the plaintiff said at the time of the interview but that only the chief wrote up a report of the interview and that he did so from memory some time later.
Plaintiff’s counsel was within his rights in adopting the tactic of trying the police officers. But it was not witfcn in the court’s, prerogative to do likewise by subjecting both police officers to hostile cross-examination. The following incident, which ■ occurred during direct examination of the police sergeant, is typical of many.
“Q. Can you describe her speech as to whether it was coherent or incoherent, or in any form of words? A. I would say she was coherent.
“Q. What do you mean coherent?
“Mr. Goodspeed: Me or the witness?
“The Court: Oh, no. Do you want this jury to understand you mean by coherent that this girl who had her leg taken off, who was under the influence of sedatives, as the testimony is, was apparently in a position where she knew what she was saying and could understand what you were saying ? Is that it ?
“The Witness: Yes, your Honor.
“The Court: All right.
“Q. Was there any indication to the contrary?
“The Court: " Wait a minute, it is for the jury.
“Mr. Goodspeed: Do you exclude my question?
“The Court: There was everything to indicate to the contrary and pro, let the jury pass on it,”
And not content with cross-examining the police officers themselves, the court attempted to discredit them still further as shown by the following excerpts from the direct examination of one of the two doctors who had treated the plaintiff at the hospital immediately after the accident.
“Q. Do you consider it, Doctor, from your experience, a humane thing for a chief of police under these circumstances to question a girl?
“Mr. Goodspeed: I object. It is obviously objectionable.
“Mr. Esdaile: Strike it out.
“The Court: I will allow the question.
“Mr. Esdaile: No, I don’t want any—
“The Court: She was in danger of dying, wasn’t she, that afternoon?
“The Witness: Yes, sir.
“The Court: No doubt about it?
“The Witness: Yes, sir.
“The Court: She was in grave danger of dying; isn’t that the way to put it ?
“The Witness: Yes, sir.
*****
“Q. Then, Doctor, assume that on the afternoon of the 26th Chief Morrison had asked you for permission to interview this girl, in the condition she was in, can you tell the jury, having in mind her condition, whether or not you would have allowed, that interview at that time?
“Mr. Goodspeed: My objection.
“The Court: I will,allow it. He was the doctor taking care of her. She was under narcotics,' and he described her condition.
“The Witness: I might put it this way, you could do it — •
“The Court: But it wouldn’t be good medical practice to permit that?
“The Witness: No.
“Q. Why not? A. Well, it would be — she wouldn’t be able to tell you much, and what she might say you couldn’t put too much credence in it, because she is not herself.
“The Court: Wouldn’t that excitement be sufficient to set her back, and maybe cause her death? That is right, isn’t it?
“The Witness: Yes, sir.”
Furthermore, the trial judge, not only in his charge but also repeatedly during the taking of testimony, found occasion to comment disparagingly on the police officers’ evidence of the plaintiff’s excessive speed. He even went so far as to interrupt counsel for the defendants during his argument to the jury to interject the following:
“The Court: The only evidence of 75 miles an hour, Madam Forelady and ladies and gentlemen of the jury —and I say this with no desire to interpose — is the ' testimony of the Chief of Police and the sergeant, who saw that young .lady on the afternoon of the day she was operated on, when she was- under anesthesia, and when she finally told them to. get out.
“That is the only evidence, and if there is any other, I would like to have counsel call it to my attention. The evidence of 75 miles an hour came from their lips, and they say she told that. Of course, if she did tell that, it is your duty to consider it, but that is the only'evidence.”
This remark was not only uncalled for, since plaintiff’s counsel had not objected to anything said by defendants’ counsel in his argument, but it was also preju-dicially inaccurate in two important respects. The police officers did not visit the plaintiff “on the afternoon of the day she was operated on,” they visited her about 5 o’clock in the afternoon of the next day, that is to say, about 36 hours after her first operation, and, although there is evidence that she had been given a sedative earlier that afternoon, there is no evidence at all that when the officers called “she was under anesthesia.”
The foregoing erroneous statements of fact are enough to warrant a new trial but another matter requires specific comment.
Early in the trial, when counsel for the defendants objected to a question put to a witness by counsel for the plaintiff on the ground that it was leading and counsel for the plaintiff offered to withdraw it the court said:
“No, no, I will permit it. Whether a question is leading is a matter for the Court, and I am very, very generous about that, .and the only time I ever exclude it is when I am satisfied that either counsel is trying to commit a fraud upon the Court, and I don’t consider that with either one of you two attorneys— you wouldn’t even think of it. So I am permitting it. It’s within my discretion, and I’m going to order the question answered.”
This lenient attitude toward leading questions obtained while the plaintiff’s case was going in with the result that plaintiff’s counsel-was allowed over defendants’ objection to enquire of several of his witnesses whether certain dents and scratches they observed on the vehicles involved were “fresh.” But when the defendants’ case was going in the judge’s attitude underwent a marked change, for on his own initiative he excluded like questions put by defendants’ counsel on direct examination as the following excerpt from the testimony of one of the defendants’ mechanics clearly indicates :
“Q. Did you see any fresh marks of damage to the front of the front bumper ? A. ' I did not.
“The Court: Don’t you think that is an unfair way of asking that question?
“Mr. Goodspeed: A lot of other witnesses have been asked the same question.
“The Court: I will exclude that question and answer, the jury will disregard it. That is clearly putting those words right into the mouth of that man. Let him describe it. I have no objection to that.
“Mr. Goodspeed: My objection to your Honor’s comments.
“The Court: I do not want you to ask any more of those questions.”
Projected against this background the trial judge’s frequent protestations of fairness and impartiality in his rulings, matters which should be so evident as not to require mention, to say nothing of reiteration, sound hollow indeed. Furthermore, such remarks serve to emphasize the prejudice to the defendants of the rulings against them which purport to rest on an exercise of the court’s discretion.
We could prolong this opinion to great length by the citation of many other instances of unfairness to the defendants on the part of the trial judge. To do so, however, would serve no useful purpose. It will be enough to remark in summary that it goes without saying that in all cases, and particularly in cases such as this involving the pathetic dismemberment of a young worn an of twenty, it is the trial judge’s most solemn duty to see that the defendant has a fair opportunity to present his side of the case to the jury. After all, heart moving as a plaintiff’s injuries may be, they may not have been caused by the defendant’s fault. In this case Judge McCarthy signally failed in his duty. For, in addition to the instances of unfair conduct already mentioned, he, figuratively speaking, stepped down from the bench to assume the role of advocate for the plaintiff. And in that role he repeatedly exceeded the proper bounds of advocacy by asking witnesses not merely highly argumentative questions, but questions so leading as not really to be questions at all but statements of fact, often incomplete or distorted at least in emphasis and consistently slanted in the plaintiff’s favor, which he followed by “Didn’t you ?” “Isn’t that right ?” or some similar phrase. In short, the record indicates that the judge throughout the trial openly exhibited a partisan zeal for the plaintiff wholly out of keeping with his office which deprived the defendants of their fundamental right to a fair and impartial trial. We must order a new trial before another judge.
The matter of costs on this appeal remains for disposition.
On a few occasions counsel for the plaintiff perhaps went too far in slipping prejudicial innuendoes into his questions on cross-examination by the use of the negative pregnant, and then promptly withdrawing his question when counsel for the defendants objected; a tactic, by the way, which provoked no word of criticism from the court. But we are not vacating the judgment below for any misconduct of counsel for the plaintiff. We are vacating it for repeated acts of misconduct by the trial judge and in this situation we do not think the plaintiff-appellee should be charged with costs in this court.
The judgment of the District Court is vacated and set aside and the case is remanded to that court for a new trial before another judge; no costs.
. The plaintiff admitted on the stand, that she had been the driver of the sedan but her companion testified that immediately after the accident, while the plaintiff was still lying in the roadway, she asked him to tell the police that he had been driving, that he agreed to do so, and did so, but later changed his story.
. The other doctor, 'who was the one who gave the Chief of Police permission to interview the plaintiff, had entered the military service and was not available as a witness,
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Booker T. WASHINGTON v. John J. RAFFERTY, Warden, Rahway State Prison Irwin I. Kimmelman, Attorney General of New Jersey, Appellants.
No. 86-5116.
United States Court of Appeals, Third Circuit.
Submitted Pursuant To Third Circuit Rule 12(6) June 22, 1987.
Decided Sept. 30, 1987.
Rehearing and Rehearing En Banc Denied Oct. 28,1987.
W. Cary Edwards, Atty. Gen. of N.J., Richard J. Hughes Justice Complex, Gilbert G. Miller, Deputy Atty. Gen., Div. of Criminal Justice, Appellate Section, Trenton, N.J., for appellants.
Richard Coughlin, Asst. Federal Public Defender, Dist. of N.J., Camden, N.J., for appellee.
Before WEIS, BECKER and MARIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
Finding that the state failed to abide by the terms of a plea bargain, the district court granted a writ of habeas corpus. The issue before us is whether the prosecutor had agreed that he would not make a recommendation on sentencing to the trial court. We conclude that inconsistencies between a written agreement signed by defendant and the prosecutor’s oral representation at entry of the plea were resolved by the trial judge’s explanation during the guilty plea colloquy. For that reason, we find no breach of the plea bargain and will vacate the order granting the writ.
Petitioner is a state prisoner who negotiated a plea bargain on charges arising from the stabbing death of Elbert Watson. On May 20, 1980, as a prelude to the entry of his guilty plea, defendant and his lawyer, an assistant public defender, both signed a form prepared by the Superior Court of New Jersey. The form provided spaces for listing the number of counts of the indictment, nature of the offense, maximum penalties, and terms of any plea bargain. The form contained printed instructions to “write out the specific sentence recommendation you were promised [by the prosecution].” In the space following this instruction was handwritten “prosecutor waives request for extended term (possible life sentence); maximum to be faced is 30 years with possible 15 year minimum. Prosecutor reserves right to speak at sentencing.”
The next day, May 21, 1980, defendant and his counsel appeared before a state trial judge to enter a guilty plea in accordance with the bargain. The prosecutor opened the proceedings by stating the terms of the plea agreement. In return for a plea of guilty to one count, “the State would make no recommendation as to sentencing [on that conviction], other than the State would waive its right to ask for an extended term at the time of sentencing, but the State would reserve its right to comment at the time of sentencing.” In addition, the state would seek dismissal of the second count.
The public defender replied that “the Prosecutor has accurately portrayed to the court the nature and substance of our plea agreement. I filled out the Statement by Defendant with Mr. Washington this morning and [have] gone over it with him____ I'm satisfied that he understands the nature and substance of the plea agreement.”
The trial court then engaged in a lengthy colloquy with defendant, discussing his signed statement, his understanding of the questions, his narration of the details of the crime and his relationship with the victim. The judge also reviewed a statement by an eyewitness and, finally, questioned defendant about his waiver of the right to trial. After this extensive dialogue on the record, the trial judge said:
“Your attorney advises me that she has made an agreement with the Prosecutor that in return for your guilty plea to the first count of this indictment, which charges murder, the Prosecutor is going to ask the Court to dismiss the second count____ The prosecutor is going to waive his right to move before the Court for an extended term of imprisonment for you, and is going to make no recommendation today with respect to what your sentence should be, but he has reserved the right to speak at the time of your sentence and to make a recommendation to the court at that time with respect to what your sentence should be. Do you understand all that?”
Defendant replied, “Yes, sir.”
The judge continued, “And do you understand, that under the terms of that agreement, the Court could sentence you to as much as thirty years in prison for this offense?” Defendant responded, “Yes, I do, Your Honor.”
Two weeks later, the prosecutor sent a letter to the trial judge outlining the details of the crime and the defendant’s previous criminal record. The prosecutor closed by asking the court to impose a thirty-year sentence with a parole minimum of fifteen years. A copy sent to defense counsel sparked a four-page reply on July 11, 1980, pointing out various mitigating circumstances, including provocation. The letter concluded with an assertion that a term of years substantially less than “the maximum term available” would be a just sentence.
The defense attorney’s letter to the judge made no reference to any agreement by the state to withhold a recommendation on sentence, nor did she object to the prosecutor’s letter on that basis. A copy of the letter was sent to defendant as well as to the prosecutor.
The trial judge also received a letter from defendant himself which recited that he had agreed to submit a plea of guilty in keeping with a negotiated agreement “which stipulated that the sentencing would be exclusively reserved for your discretion.
And that there would not be any arguments presented in efforts to persuade or influence your decision prior to sentencing.
However, it is my understanding that the Prosecutor has thus far violated that particular clause in our agreement by already presenting biased information endeavoring to make his recommendations for sentencing all the more appealing, which is strictly out of accordance with our previous negotiations.”
He then asked for “the fullest” consideration.
The sentencing hearing took place on July 17, 1980. The judge acknowledged that he had received the three letters, and then heard argument. The prosecutor stated that he had “at the time of the plea reserved the right to comment at this time as to what the appropriate sentence should be.” He then described the murder and discussed the defendant’s record.
Defense counsel spoke at some length, emphasizing mitigating circumstances and taking issue with several points raised by the state. She did not object to the prosecution’s action in making a recommendation at that time, nor did she suggest that the recommendation was contrary to the terms of the plea bargain. After allowing defendant an opportunity to speak, the judge imposed a sentence of thirty years with a ten-year parole minimum.
Defendant appealed to the New Jersey Superior Court Appellate Division asserting, among other grounds, that the prosecution’s letter to the court before sentencing violated the plea agreement. The appellate court observed that the trial judge had stated on entry of the plea that the prosecution could comment on the sentence. Moreover, defense counsel did not argue otherwise when the prosecutor wrote to the court or when sentence was imposed. The judgment of the trial court was affirmed. The state supreme court denied certification.
Defendant filed a petition for a writ of habeas corpus in the district court. After a careful review of the record, the district judge determined that the state prosecutor had breached the plea bargain and that petitioner was entitled to relief. The court found that the state had agreed “to ‘make no recommendation as to sentencing,’ other than to waive its right to an extended term, but reserved the ‘right to comment at the time of sentencing.’ ” As the district judge saw it, the plea agreement explicitly forbade the prosecutor to make any sentencing recommendation.
The district court also concluded that the state judge’s restatement of the plea bargain did not relieve the state of compliance with the terms as the prosecutor had represented them at the beginning of the plea colloquy. The court observed, moreover, that petitioner had objected to the prosecutor’s recommendation in his letter to the state judge before sentencing. Accordingly, the district court granted the writ and remanded the matter to the state court to strike the plea or to order specific performance of the bargain. A stay was granted pending disposition of the case by this court.
On appeal, the state contends that the district court failed to apply the presumption of correctness to the state court findings that the prosecutor had not agreed to forego a sentence recommendation. The state argues that the district court also erred in resolving an ambiguity in the agreement in the defendant’s favor rather than applying an objective standard.
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), observed that when a plea rests “in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement,” the promise must be fulfilled. Because the prosecution in that case breached its promise not to make a sentence recommendation, the Court granted habeas corpus relief.
In United States v. Crusco, 536 F.2d 21, 23 (3d Cir.1976), the prosecutor had agreed to “take no position on sentencing.” At the time of sentencing, the United States attorney responded to the defendant’s plea for leniency by commenting on the defendant’s bad character without, however, requesting a specific sentence. See id. at 25. This court construed the prosecutor’s comments “as a transparent effort to influence the severity of [the defendant’s] sentence” and granted the petition for withdrawal of the plea. See id. at 26-27.
In United States v. Miller, 565 F.2d 1273 (3d Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978), we emphasized that Crusco should not be interpreted expansively. In Miller the prosecutor had agreed to make no sentencing recommendation but reserved the right to comment on the defendant’s cooperation. At sentencing, in addition to addressing the defendant’s cooperation, the prosecutor adverted to counsel’s attempts to excuse the defendant’s criminal conduct. This court held that no breach of the agreement had occurred — “the government will be held only to what it has promised.” The prosecution had specifically agreed “only not to make recommendation as to the sentence.” It had not promised to waive any attempt to influence the sentence. See id. at 1275.
In both Crusco and Miller this court urged caution and semantic specificity in arriving at the terms of a plea bargain. In United States v. Ligori, 658 F.2d 130, 132 (3d Cir. 1981), we stressed the “clear import of the Government’s promise, objectively assessed.” There, the government’s pledge to make no recommendation on sentence did not apply to a Rule 35 proceeding adjudicating a motion to reduce the period of incarceration.
In United States v. Swinehart, 614 F.2d 853 (3d Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 90, 66 L.Ed.2d 30 (1980), we remanded so that the district court could ascertain the intent of the parties to a plea bargain. In that case, the defendant alleged that the government had changed the terms of the bargain by requiring him to “pass” a lie detector test rather than merely to “take” it as specified in the written agreement.
The prosecution in Patrick v. Camden County Prosecutor, 630 F.2d 206, 207 (3d Cir.1980), agreed to make no recommendations as to the sentence but reserved the right to “comment and make remarks appropriate ... to the magnitude of the sentence imposed.” Nevertheless, at sentencing, the prosecutor argued that the defendant “should receive the maximum penalty dictated by law,” a statement this court held violated the plea bargain.
In most of the cited cases the question was whether the prosecutor’s comments, viewed objectively, complied with the terms of the plea agreement. In the case at hand, the issue, more precisely, is: what in fact were the terms of the plea agreement? The state appellate court failed to resolve that issue, one not squarely raised in the state trial court.
Although the defendant’s communication to the state judge before sentencing objected to the prosecutor’s letter, it did not specifically deny the state’s right to submit a recommendation, but focused on “biased information.” Interestingly, though, the defendant’s letter referred to the agreement of “May 20”, the date defendant signed the statement that had been filed with the court clerk the day before the plea colloquy. Presumably defendant was alluding to the statement that he had signed, a copy of which he may have retained.
Three variations of the plea bargain can be discerned from the record. The first is the written statement of May 20 that defendant and his attorney signed in which blanks were completed. In this version the prosecutor waived the right to request a possible life sentence, agreed to a maximum term of thirty years with fifteen-year minimum before parole, and stipulated that “prosecutor reserves right to speak at sentencing.” It is crucial that this agreement — the only one reduced to writing— contains no prohibition against the state recommending a sentence. See the description of a similar proceeding in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985) (White, J., concurring).
When the prosecutor opened the plea colloquy the following day, he stated that under the agreement “the State would make no recommendation as to sentencing” other than to waive the life term, but would “reserve its right to comment at the time of sentencing.” This second version diverges somewhat from the written statement and is fairly ambiguous.
The record does not reveal whether the trial judge noticed the discrepancies between the two versions or whether he simply wished to make sure that defendant comprehended the consequences of the plea bargain. In any event, the judge explicitly stated to defendant that the prosecutor “is going to make no recommendation today with respect to what your sentence should be, but he has reserved the right to speak at the time of your sentence and to make a recommendation to the Court at that time with respect to what your sentence should be.” Defendant personally acknowledged that he understood, and his counsel did not take exception to the court’s explanation of the prosecutor’s commitment. Obviously this third version of the prosecutor’s promise is consistent with the statement defendant signed and differs to some extent with the prosecutor’s oral comments at the beginning of the colloquy.
The variations between the written statement, which did not bar the prosecutor from proposing a sentence, and the prosecutor’s representation that he would not make a recommendation, presented an ambiguity requiring clarification. That uncertainty was resolved by the trial judge’s explanation, which the defendant personally affirmed and to which his attorney did not dissent. At that point in the proceedings, the bargain was clearly set forth and left no room for doubt.
We therefore determine that the ultimate agreement permitted the prosecutor to recommend a sentence. Consequently, the record does not support the district court’s conclusion that the state had violated the plea agreement. Accordingly, the order of the district court will be vacated and the case will be remanded for the entry of an order denying the writ of habeas corpus.
. In United States v. Baylin, 696 F.2d 1030 (3d Cir.1982), this court held that the defendant's failure to object to a presentence investigation report did not waive his claim that the prosecution had violated a plea bargain. We treat the defendant’s letter to the state judge as marginally adequate to assert an objection to the prosecutor's comments.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_state
|
44
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. Frank Cardenas GUAJARDO, Defendant-Appellant.
No. 91-5508.
United States Court of Appeals, Fifth Circuit.
Dec. 19, 1991.
John R. Carter, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.
LeRoy Morgan Jahn, San Antonio, Tex. Glenn W. MacTaggart, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., for plaintiff-appellee.
Before DUHÉ, WILLIAMS and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Frank Cardenas Guajardo (“Guajardo”) pled guilty to a charge of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Since the offense occurred on August 6, 1990, the district court applied the federal sentencing guidelines in effect on that date. See United States Sentencing Commission, Guidelines Manual (1989 ed.) (“U.S.S.G.”). Guajardo appeals, alleging that the district court violated his equal protection and due process rights by application of career offender provisions, and that the district court improperly declined to grant a downward departure in his sentence. We reject Guajardo’s contentions and affirm the district court's sentence.
I.
BACKGROUND
On August 6, 1990, the San Antonio Police Department obtained a state search warrant to seize narcotics at Guajardo’s residence. During the execution of that search warrant, the police officers found heroin and drug paraphernalia. Guajardo was subsequently arrested for possession of heroin.
Later that month, a federal grand jury sitting in the San Antonio Division of the Western District of Texas returned a two-count indictment charging Guajardo with: (1) conspiracy to possess heroin with intent to distribute heroin in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) (Count One); and (2) possession of heroin with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (Count Two). Guajardo pled guilty to Count Two in exchange for dismissal of Count One.
A probation officer prepared a Presen-tence Report. The Presentence Report recommended a finding that Guajardo was a career offender. In addition to other adjustments, this finding raised his offense level from 22 to 30. The probation officer recommended the finding that defendant was a career offender because of two prior offenses: Guajardo was convicted of assault with intent to murder on May 28, 1966, and he pled guilty to burglary of habitation on May 20, 1982. The 1965 conviction resulted in a life sentence, but Gua-jardo was released on parole on June 29, 1976.
Because Guajardo was classified as a career offender, Guajardo’s range of imprisonment under the sentencing guidelines was 168 to 210 months. The district court sentenced Guajardo to 168 months imprisonment. Had Guajardo not been classified as a career offender, he asserts that his sentencing range under the sentencing guidelines would have been 77 to 96 months. Guajardo also sought a downward departure, based on his age and physical condition, pursuant to Sections 5H1.1 and 5H1.4, which the district court denied. The crux of Guajardo’s appeal is that he should not have been classified as a career offender and that a downward departure was appropriate in his case.
II.
ANALYSIS
A. Guajardo’s Classification as a Career Offender
Guajardo argues that the district court’s use of his 1965 conviction to classify him as a career offender violates his rights to due process and equal protection of laws guaranteed by the Fifth Amendment. This court’s standard of review is de novo. See United States v. Lara-Velasquez, 919 F.2d 946, 953-54 (5th Cir.1990) (citation omitted) (de novo standard applies to a defendant’s challenge to the district court’s interpretation of the requirements of the sentencing guidelines); United States v. Litteral, 910 F.2d 547, 551 (9th Cir.1990) (citation omitted) (court reviews de novo the constitutionality of a statute).
Guajardo contests the use of Section 4A1.2(e)(l), which was used to classify him as a career offender. Section 4A1.2(e)(l), dealing with the computation of criminal history, provides in pertinent part:
Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant’s commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.
U.S.S.G. § 4Al.2(e)(1) (1989). Guajardo committed this offense on August 6, 1990. Guajardo’s earlier conviction was in 1965 for an April 24,1964 charge of assault with intent to murder. He was released on parole June 29, 1976. Because the sentence for the 1965 conviction “resulted in the defendant being incarcerated during ... part of [the] fifteen-year period” prior to the August 6, 1990 offense, the district court properly used the 1965 conviction to classify Guajardo as a career offender. Id.
i. Due Process
Guajardo contends that the district court’s use of the 1965 conviction to classify him as a career offender violates his right to due process guaranteed by the Fifth Amendment. His discussion of this issue, however, centers on his equal protection argument. Guajardo does not squarely set forth a due process argument.
Guajardo appears to allege that Section 4A1.2(e)(l) violates due process because it prevents the consideration of individual mitigating factors in sentencing. We disagree. The sentencing guidelines do not violate due process because they prevent individualized sentencing by establishing mandatory sentences for offenses. See, e.g., United States v. White, 869 F.2d 822, 825 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989), cert. denied, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989) (citation omitted) (noting that the Constitution does not require individualized sentences); United States v. Brady, 895 F.2d 538, 539-44 (9th Cir.1990) (holding that sentencing guidelines do not violate substantive or procedural due process by limiting the sentencing discretion of the district court); United States v. Green, 902 F.2d 1311, 1313 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 353, 112 L.Ed.2d 316 (1990) (citation omitted) (noting that the Constitution does not guarantee individualized sentencing, except in capital cases; due process not denied by use of career offender provision); United States v. John, 936 F.2d 764, 766-67 n. 2 (3d Cir.1991) (citation omitted) (noting that defendant does not have a substantive due process right to individualized treatment at sentencing). Because the Constitution does not require individualized sentences, the district court was correct to apply Section 4A1.2(e)(l) in determining Guajardo’s sentence.
[2] Guajardo also argues that the use of the lengths of prior sentences to help determine his criminal history category violates due process. This argument has also been rejected. In United States v. Litteral, 910 F.2d 547, 552-53 (9th Cir.1990), the court stated that because the defendant did not show that the use of the lengths of prior sentences was necessarily unreliable, such use was not a violation of due process. The court also noted that the sentencing guidelines allow consideration of information other than the lengths of past sentences to minimize the likelihood of any due process violations. Id., citing United States v. White, 869 F.2d 822, 828 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172,104 L.Ed.2d 1033 (1989), cert. denied, 493 U.S. 1001, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989). We agree with this reasoning and reject Guajardo's arguments to the contrary.
ii. Equal Protection
Guajardo also argues that the application of Section 4A1.2(e)(l) violates his equal protection rights because the sentencing guidelines bear no rational relationship to policies underlying the Sentencing Reform Act. He contends that the use of convictions within this fifteen-year period to classify him as a career offender, while excluding those convictions outside this fifteen-year period, bears no rational relationship to considerations underlying the Sentencing Reform Act.
More specifically, Guajardo argues that Section 4A1.2(e)(l) violates equal protection because the fifteen-year cut-off point is arbitrary and does not truly aid in administrative convenience. By limiting offenses to those that have occurred within fifteen years of the current offense, Guajardo argues that courts employ a categorical federal standard which is arbitrary. Guajardo also contends that Section 4A1.2(e)(l) subverts the sentencing guidelines’ goals of honesty, uniformity, and proportionality because Section 4A1.2(e)(l) applies regardless of the sentence actually imposed or the length of time actually served.
The Government, citing United States v. Colon, 905 F.2d 580, 586 (2d Cir.1990), contends that any system such as the sentencing guidelines requires line-drawing and that the system will fail if those lines are not observed. The Government argues that Section 4A1.2(e)(l) serves a legitimate purpose of having more dangerous criminals serve longer sentences. See United States v. Litteral, 910 F.2d 547, 552 (9th Cir.1990). Implicit in the Government’s argument is the contention that the career offender provisions bear a rational relationship to a legitimate governmental purpose because the provisions help prevent repeat offenders from continuing to victimize society. Guajardo has not shown otherwise.
The sentencing guidelines support the Government’s position. In the sentencing guidelines, the Sentencing Commission states that a defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment. See U.S.S.G. Ch. 4, Pt. A, intro, comment., at 4.1. The Sentencing Commission notes that general deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will be punished more severely. Id. In addition, to protect the public from further crimes of a defendant, the likelihood of recidivism and future criminal behavior must be considered. Id. Repeated criminal behavior is an indicator that rehabilitation may not be successful. Id. We find that a district court’s consideration of past offenses is related to the goal of having dangerous criminals serve longer sentences; using these prior offenses to calculate another sentence is rationally related to achieving that goal and promotes respect for the law, provides deterrence, and protects the public from further crimes.
B. The District Court’s Refusal to Grant a Downward Departure
This court upholds a sentence unless it is imposed in violation of law, is imposed as a result of an incorrect application of the sentencing guidelines, or is a departure from the applicable sentencing guidelines range and is unreasonable. See United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.1989) (citation omitted). This court will not review a district court’s refusal to depart from the sentencing guidelines unless the refusal was in violation of the law. See United States v. Hatchett, 923 F.2d 369, 372 (5th Cir.1991) (citations omitted).
Guajardo argues that the district court should have departed downward from the sentencing guideline range because of his advanced age and poor health. He argues that these factors are of a kind and to a degree not adequately considered by the Sentencing Commission in promulgating the sentencing guidelines, and that a downward departure is warranted. See U.S.S.G. § 5K2.0 (1989). The Government notes that Section 5H1.1 states that age “is not ordinarily relevant in determining whether a sentence should be outside the guidelines,” and that in this case there is nothing about Guajardo’s health or age that warrants such a departure. U.S.S.G. § 5H1.1 (1989) (emphasis added). The Government also cites Section 5H1.4 to argue that physical condition “is not ordinarily relevant in determining whether a sentence should be outside the guidelines,” or where in the sentencing guidelines the sentence should fall. U.S.S.G. § 5H1.4 (1989) (emphasis added). The underscored language implies that there may be extraordinary circumstances where age and health may be relevant to the sentencing decision. Here, however, there is nothing about Guajardo’s age (approximately 55 at the time of sentencing) or health (cancer in remission, high blood pressure, a fused right ankle, an amputated left leg, and drug dependency) that justifies such a downward departure. See U.S.S.G. §§ 5H1.1 and 5H1.4 (1989).
Guajardo argues that the district court considered inappropriate factors in imposing the sentence. Guajardo questions comments the district court made during his sentencing. More specifically, the district court stated that “[i]t seems that the only way we’re going to take care of this man’s [Guajardo’s] health problems is to keep him locked up because his self cure is not very good.” Guajardo argues that this statement shows that the district court imposed a sentence upon him in violation of the law. Guajardo’s argument, however, reflects a twisted view of the district court’s reasoning. We find nothing in the record or in the district court’s reasoning to suggest that he refused to make a downward departure because Guajardo has health problems. Rather, the district court merely noted Guajardo's history of health problems and stated that one result of his confinement might be an improvement in these health problems — this consideration was clearly not a motivating reason for the sentence. In examining Guajardo’s sentence in light of the considerations the Sentencing Reform Act deems relevant in imposing a sentence, we must remember that Congress envisioned that the sentencing guidelines would leave considerable discretion in the hands of the sentencing judge. Cf. United States v. White, 893 F.2d 276, 278-79 (10th Cir.1990) (citations omitted). Thus, the issue is not whether we would have departed as such, but whether the district judge’s statements reflect a reasoned, persuasive view of statutory and sentencing guidelines considerations.
The district judge’s statements reflect such a reasoned view of the statutory considerations. On the one hand, the district court weighed Guajardo’s arguments regarding his age, health and reasons against a lengthy incarceration. The district court also weighed the seriousness of the offense, the need to protect the public, the need for just punishment, and the goal of deterrence. The result of this process was the imposition of the most lenient sentence possible under the applicable sentencing guidelines range. We are not convinced, therefore, that the district court’s refusal to depart downward constitutes a violation of the law.
III.
Accordingly, we AFFIRM.
. Approximately 64 grams of heroin, various balloons containing a powdery substance believed to be heroin and $1,507 in United States currency were found. Drug paraphernalia, including a blender, measuring spoons and packaging materials, were also seized. The substances suspected of being heroin that were seized did test positive for heroin.
. The career offender provision states:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table shall apply. A career offender’s criminal history category in every case shall be Category VI.
U.S.S.G. § 4B1.1 (1989).
. More specifically, because Guajardo was considered an organizer of the criminal activity and thus had an aggravating role in the crime, his base offense level was increased by 2 levels. See U.S.S.G. § 3B1.1(C) (1989). For his acceptance of responsibility, his offense level was reduced 2 levels for a total offense level of 22. See U.S.S.G. § 3El.l(a) (1989). Because he was a career offender within the meaning of § 4B1.1, however, the offense level was determined under § 4B 1.1(C) and was 32; by taking into account the 2 level reduction for acceptance of responsibility, Guajardo had a total offense level of 30.
In addition, the total of Guajardo’s criminal history points was 12. According to U.S.S.G. Sentencing Table, set forth at Ch. 5, Pt. A, 10 to 12 criminal history points establish a criminal history category of V. However, because Gua-jardo was a career offender as defined in U.S.S.G. § 4B1.1, his criminal history category was VI. See U.S.S.G. § 4B1.1 (1989).
. Guajardo was also ordered to pay a special assessment of $50.00, and upon his release from imprisonment, he was to serve a supervised release term of three years.
. See U.S.S.G. Ch. 5, Pt. A, sentencing table (1989).
. Guajardo alleges that his ill health and advancing age justify the imposition of a sentence other than incarceration. See U.S.S.G. §§ 5H1.1 and 5H1.4 (1989).
. Guajardo does not argue that he is a member of a suspect class or that fundamental rights are involved which would require strict scrutiny. Thus, the standard of review for his constitutional claim is the rational basis test. See Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 704, 38 L.Ed.2d 618 (1974) (citations omitted).
. See infra note 9.
. Furthermore, the Sentencing Commission notes that Section 3553(a)(2) of Title 18 sets forth considerations involved in sentencing which include: reflecting the seriousness of the offense, promoting respect for the law and providing just punishment for the offense; affording adequate deterrence to criminal conduct; protecting the public from further crimes of the defendant; and providing the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. See U.S.S.G. Ch. 4, Pt. A, intro, comment., at 4.1; see also infra note 10.
.Guajardo cites Section 994(k) of Title 28 which states:
The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.
28 U.S.C.A. § 994(k) (1968 & Supp.1991); see also supra note 9.
. See supra note 9, noting that the court, in determining the particular sentence to be imposed, "shall consider ... the need for the sentence imposed ... to provide the defendant with needed ... medical care_”
. See supra note 9.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_counsel1
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Benjamin LASSOFF and Irene Lassoff, Appellants, v. William M. GRAY, District Director, Internal Revenue Service, Appellee. Myron DECKELBAUM and Dorothy Deckelbaum, Appellants, v. William M. GRAY, District Director, Internal Revenue Service, Appellee. Robert LASSOFF, Appellant, v. William M. GRAY, District Director, Internal Revenue Service, Appellee.
Nos. 13758-13760.
United States Court oí Appeals Sixth Circuit.
May 14, 1959.
Daniel W. Davies, Newport, Ky., Davies & Hirschfeld, Newport, Ky., on the brief, for appellants.
Helen Buckley, Washington, D. C., Charles K. Rice, Lee A. Jackson, A. F. Prescott and S. Dee Hanson, Washington, D. C., J. Leonard Walker and Charles M. Allen, Louisville, Ky., on the brief, for appellee.
Before MARTIN, Chief Judge, and BOYD and CHOATE, District Judges.
CHOATE, District Judge.
Three cases are involved in this appeal. Each of the complaints are substantially identical and the several plaintiffs below —appellants here — were each seeking a temporary and permanent injunction against gambling tax assessments and relief from tax liens imposed upon their properties. Upon the Collector’s motions the complaints were dismissed and this appeal is from the orders of dismissal.
The plaintiffs below by their several complaints charged that on September 12, 1958, Benjamin Lassoff, Meyer Deckelbaum and Robert Lassoff each were assessed in the amount of $100,259.94 for the month of March 1956 and $110,004.52 for the period April 1st to April 19th, 1956, or a total assessment of $300,264.-46 for excise wagering taxes, penalties and statutory interest claimed to be due under Section 4401 et seq. Internal Revenue Code of 1954, 26 U.S.C.A. § 4401 et seq. Plaintiffs alleged that these assessments were unlawful, arbitrary, capricious and wholly void, for the reason that plaintiffs were not engaged in the business of accepting wagers on sports events or contests and that they did not conduct a wagering pool or lottery, and further alleged that they did not hold a special occupational stamp to engage in such business, and for those reasons were not liable, and could not be liable, for the impositions.
Further, each of the aforenamed individuals averred that the levy against them was made without previous discussion, and that the basis of the assessments has not been disclosed, although protest has been made and a conference requested. They each further alleged that the defendant and his subordinates, acting without any valid basis, had proceeded to file and post notice of lien against each of their properties in the sum of $300,264.46, with interest accruing at the rate of over $1,000 per month. They further asserted that they do not have and cannot acquire funds or credits sufficient to pay the assessments, or provide a bond to guarantee payment thereof, and are therefore deprived of any means of contesting the illegal taxes.
Plaintiffs also alleged that due to the enormity of the assessments it is wholly unlikely that they will ever be able to accumulate sufficient estate to pay the assessment or provide a bond as would be required in order to contest the assessments, and that their property will be sold at distress prices resulting in irreparable injury unless an injunction be issued, and that they will suffer and presently do suffer in their businesses by reason of the liens and the eventual sale of their properties which they are unable to protect unless equity intervenes.
The court below based its orders of dismissal upon Section 7421(a) Internal Revenue Code of 1954, 26 U.S.C.A. § 7421 (a), which provides, “(a) * * * No-suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court”.
The question then before this court is whether or not the dismissals of the complaints, by reason of this section, were proper. We do not agree that it was.
It is well settled that, despite the provisions of Section 7421(a) Internal Revenue Code of 1954 a suit may be maintained to enjoin the collection of an illegal tax, where exceptional circumstances exist. Hill v. Wallace, 259 U.S. 44, 62, 42 S.Ct. 453, 66 L.Ed. 822; Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 52 S.Ct. 260, 76 L.Ed. 422; Midwest Haulers v. Brady, 6 Cir., 128 F.2d 496; John M. Hirst & Co. v. Gentsch, 6 Cir., 133 F.2d 247; Shelton v. Gill, 4 Cir., 202 F.2d 503.
For the purpose of testing the complaints it must be conceded by reason of the Collector’s motions to dismiss, that the taxes which he seeks to collect are not obligations of the plaintiffs, since the allegations of illegality and the reasons therefor by plaintiffs must be taken as true. Further, the allegations made in each case that plaintiffs do not have, and will not have the money or assets to protect themselves, either now or in the foreseeable future, by the only method permitted by law, namely, to make bond or to pay and discharge the taxes, must be taken as true. The same is true as respects the allegations that plaintiffs will be greatly injured in their properties and businesses by the liens and eventual sales, and by the presence of the ever-impending assessment for large sums of money that could and would be enforced against any future earnings or property acquired by the plaintiffs. , .
The cited authorities agree that injunctive relief may be granted where there has been an illegal or unconstitutional levy, coupled with other special and extraordinary circumstances which would require equity to intervene. Here the taxpayers allege illegality and explain their allegations by saying that they were not engaged in any of the businesses made subject to the tax. They further say that because of their financial situation the remedies for testing the levies are not now, nor will they be, open to them, and that the liens and threatened sales will be disastrous to them in that their properties will be sacrificed and their businesses so handicapped as to be made worthless.
When we consider that the legality of the assessments of these taxes cannot be tested as can income taxes, but must be bonded or paid before they can be contested, it is easy to see that in many instances where very large assessments are imposed many individuals would not have any available remedy to resist the sale of their properties or to test the legality of the tax, unless they have resort to a court of equity.
Here we have three cases in which the parties will be denied a remedy unless and except they be afforded a hearing upon their complaints for injunction. It is true that if upon such hearing the alleged illegality and special and extraordinary circumstances do not in fact both exist then the restraint imposed by Section 7421(a) Internal Revenue Code of 1954 would apply, and the complaints would be dismissed, but we do not think they should be dismissed without a hearing.
The orders of the District Court dismissing the complaints are each reversed and the causes remanded for further proceedings consistent with this opinion.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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