task
stringclasses 260
values | output
stringlengths 2
5
| instruction
stringlengths 576
44.2k
|
|---|---|---|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Arthur MOYNES and Oscar Ginsberg, d/b/a M & G Provision Co., & Emerald Meat Co. & Chico Chile, Inc., Plaintiffs-Appellants, v. NATIONAL SURETY CORPORATION, Defendant-Appellee.
No. 12673.
United States Court of Appeals Seventh Circuit
Dec. 23, 1959.
Jerome L. Fels, Harry L. Rudnick, Sydney Wolfe, Chicago, Ill. (Rudnick & Wolfe, Jason N. Gesmer, Chicago, Ill., of counsel), for plaintiffs-appellants.
Roger D. Doten, Chicago, Ill. (John P. Hampton, Dent, Hampton & Doten, Chicago, Ill., on the brief), for defendant-appellee.
Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and PLATT, District Judge.
HASTINGS, Chief Judge.
Plaintiffs-appellants, Arthur Moynes & Oscar Ginsberg, d/b/a M & G Provision Co., & Emerald Meat Co. & Chico Chile, Inc., (insured) filed an action in the Municipal Court of Chicago, Illinois, against defendant-appellee, National Surety Corporation, (company). Subsequently, the case was properly removed to the district court below. Insured sought to recover on a mercantile robbery insurance policy issued to them by the company. The alleged loss was sustained in an interior robbery occurring at about 6 P.M. on March 10, 1958.
The company answered the complaint and asserted as an affirmative defense that the policy was canceled pursuant to its terms, effective March 10, 1958, at twelve o’clock noon, and that insured’s alleged loss did not occur until later that day, at which time such policy was not in force or effect. The company then filed a motion for summary judgment, supported by affidavits, predicated solely on its affirmative defense of cancellation. The trial court granted the company’s motion for summary judgment, dismissed the action and entered judgment against insured for costs, from which judgment this appeal is taken.
The parties agree that this case is governed by the law of Illinois and that there is no case directly in point. They also concede that there is no issue of fact.
The contested issue is a legal one— whether under undisputed facts, the notice mailed by the company on March 3, 1958 canceled the policy effective twelve o’clock noon on March 10, 1958, prior to insured’s alleged loss at about 6 P.M. on the same date.
The pertinent provisions of the policy are:
“The Policy Period shall be from April 5, 1957 to: April 5, 1958 at 12 o’clock noon, standard time, at the location of the premises.” (Declarations, Item 4, on the face of the policy)
“13. Cancelation. This policy may be canceled by the named insured by mailing to the company written notice stating when thereafter such cancelation shall be effective. This policy may be canceled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancelation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date of can-celation stated in the notice shall be the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing. * * * ” (Condition 13, in the body of this policy)
Thus, in unambiguous language, the policy provides for cancellation by either party after specified notice by mailing and that “the effective date of cancelation stated in the notice shall be the end of the policy period.” There is no reference in the policy fixing the end of the policy period following cancellation except the words “the effective date” to be stated in the notice.
It is undisputed that on March 3, 1958 the company mailed to insured a notice of cancellation of this policy. This notice is a printed form with several open spaces and “boxes” to be filled in by the company giving appropriate information about the policy to be canceled. At the top of the notice, printed in bold type, appears the following statement:
“Notice Is Hereby Given That The Policy Or Bond Designated Herein Is Canceled In Accordance With Its Terms, Such Cancellation To Be Effective On The Date Set Forth Herein. At The Hour On Which Such Policy Or Bond Became Effective, Or At Such Other Hour, If Any, Specified In The Cancellation Provisions Of Such Policy Or Bond. * * # »
In the box captioned “Cancellation Effective” there was typewritten, “March 10, 1958.”
There is some dispute between the parties concerning the punctuation in the middle of the above printed statement. The trial court thought it was a comma. It appears to us to be a period. In any event, we think it is unimportant in determining the issue before us. Where the effective date of cancellation was typed in the appropriate box, no specific hour on that date was indicated.
It is undisputed that the robbery occurred at about 6 P.M. on March 10, 1958. If the policy was canceled effective at twelve o’clock noon on that date, there was no coverage; otherwise, the policy was in force until midnight on that date, and insured will recover. Without giving any reasons (other than to italicize the words “at the hour on which such policy or bond became effective” in the foregoing statement printed at the top of the cancellation notice) or citing any authority, the trial court in a short memorandum stated that “the matter becomes one of the interpretation of the contract and the cancellation notice. The court finds that the effective date of the policy was from 12 o’clock noon as the effective time of cancellation. The policy was accordingly not in effect at the time the loss occurred.” We find ourselves in disagreement with the conclusion reached by the trial court.
The company argues that Condition 13 in the policy authorizes cancellation at a particular hour of the day on which the cancellation is to become effective and that the notice of cancellation fixes that time as twelve o’clock noon. We do not read that meaning into the words used. The cancellation clause in Condition 13 provides for an effective date and makes no reference to an effective hour. The notice of cancellation does not make cancellation effective at twelve o’clock noon, since the only mention of the effective time of cancellation is that inserted by the company itself in the appropriate place as “March 10, 1958.” We do not agree that resort can be had to the printed statement at the top of the notice of cancellation as controlling the policy provisions.
The notice of cancellation must conform to the provisions in the insurance policy, and cancellation can only be effected through strict compliance with the terms of the policy. 45 C.J.S. Insurance § 446, p. 79 and § 449, p. 86; 29 Am.Jur., Insurance, § 275, p. 257. See, Columbia Casualty Co. v. Wright, 4 Cir., 1956, 235 F.2d 462, 464, 63 A.L.R.2d 564, affirming D.C., 137 F.Supp. 775, 778.
The policy provision governing the conditions of cancellation makes specific reference to the “effective date” and as such comes within the general rule which disregards fractions of a day. For a statement of the general rule, see 86 C.J.S. Time § 12, p. 846, and § 16, p. 900. We find nothing in the policy itself indicating that the parties have contracted in any other manner or have otherwise expressly limited themselves.
The fact that the policy provides on its face that it shall extend from April 5, 1957 to April 5, 1958 at twelve o’clock noon cannot be inferentially incorporated into other policy provisions, including the cancellation clause. See, Garelick v. Rosen, 1937, 274 N.Y. 64, 66-67, 8 N.E.2d 279, 280; Penn Plate-Glass Co. v. Spring Garden Ins. Co., 1899, 189 Pa. 255, 259-260, 42 A. 138; Malin v. Netherlands Ins. Co., 1920, 203 Mo.App. 153, 156-157, 219 S.W. 143, 144; Gordon v. Home Indemnity Co., 1936, 121 Pa.Super. 241, 248-250, 183 A. 427, 430-431.
Since the parties did not expressly contract in the policy to provide for cancellation effective at any time other than on an effective date, we think the general rule is applicable as expressed in 29 Am. Jur, Insurance, § 284, p. 264:
“[PJolicy provisions for cancelation generally require that such can-celation be made upon notice to the insured for a prescribed period, which is usually five days. It is lawful for the parties to a contract of insurance to stipulate in the policy that the insurance shall begin at noon and expire at noon of the days named, and such an agreement becomes the special rule for the fixing of dates so referred to, for its object is to avoid possible dispute on the fundamental basis of any liability for loss; but such rule should not be applied to the five days’ notice of cancelation in the policy, since the better rule to apply to these computations is the general one of excluding the first day and counting the days as legal days, beginning and ending at midnight.”
We hold that the district court erred in finding that the policy was not in effect at the time insured's loss occurred and in ordering summary judgment. The judgment of the district court is reversed, and this cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_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.
Paul Robert PASQUIER, Plaintiff-Appellant, v. Curtis W. TARR et al., Defendants-Appellees.
No. 30934.
United States Court of Appeals, Fifth Circuit.
June 4, 1971.
John W. Reed, New Orleans, La., for plaintiff-appellant.
Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Morton Hollander, Robert E. Kopp, Dept, of Justice, Washington, D. C., L. Patrick Gray, III, Asst. Atty. Gen., for defendants-appellees.
Before JOHN R. BROWN, Chief Judge, and COLEMAN and CLARK, Circuit Judges.
PER CURIAM:
Paul Robert Pasquier, eligible for the draft and previously the beneficiary of a Class II-S student deferment, sought pre-induction judicial review of his local board’s denial of a Class III-A fatherhood deferment under applicable Selective Service Regulations. The District Court, 318 F.Supp. 1350, dismissed his claim for injunctive and declaratory relief after holding that the denial was lawful and that the Military Selective Service Act of 1967 precluded judicial review. We affirm.
One of appellant’s principal claims on this appeal asserted that he was entitled to the res judicata effects of a judgment in the earlier class action of Gregory v. Hershey, E.D.Mich., 1969, 311 F.Supp. 1. There the District Court found invalid the withholding of the fatherhood deferment to those registrants, otherwise qualified, whose induction had previously been deferred for graduate — as opposed to undergraduate — study. However, that judgment collapsed, both for the parties and the members of the class, following its reversal by the United States Court of Appeals for the Sixth Circuit in Gregory v. Tarr, 6 Cir., 1971, 436 F.2d 513.
We follow Gregory and hold that pre-induction relief was properly denied.
Affirmed.
. 32 C.F.R. 1622.30(a) provides:
(a) In Class III-A shall be placed any registrant who has a child or children with whom he maintains a bona fide family relationship in their home and who is not a physician, dentist or veterinarian, or who is not in an allied specialist category which may be announced by the Director of Selective Service after being advised by the Secretary of Defense that a special requisition under authority of section 1631.4 of these regulations will be issued by the delivery of registrants in such category, except that a registrant who is classified in Class II-S after the date of enactment of the Military Selective Service Act of 1967 shall not be eligible for classification in Class III-A under the provisions of this paragraph.
. Section 10(b) (3) of the Act, 50 U.S. C.A.App. 460(b) (3) provides in part:
No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.
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_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.
George S. JONAS, et al., Plaintiffs-Appellants, v. Edward J. STACK, etc., et al., Defendants-Appellees.
No. 83-5390.
United States Court of Appeals, Eleventh Circuit.
April 19, 1985.
Green, Eisenberg & Cohen, James K. Green, West Palm Beach, Fla., David M. Lipman, Miami, Fla., for plaintiff’s attorney Andrew Mavrides.
Price & Bryne, Alexander Cocalis, Chief Trial Counsel, Fort Lauderdale, Fla., for defendants-appellees.
Before TJOFLAT and VANCE, Circuit Judges, and ATKINS , District Judge.
Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of Florida, sitting by designation.
VANCE, Circuit Judge:
This appeal requires us to determine whether an attorney who successfully prosecutes another attorney’s application for fees under the Civil Rights Attorneys’ Fees Awards Act (Act), 42 U.S.C. § 1988, may thereupon request compensation for his own services under the same statute. Although we conclude that such representation constitutes a service which may be compensable within the meaning of the Act, we also conclude that the award may be made only to counsel who actually represented the prevailing party. Accordingly, we dismiss this appeal because it and the fee request in the lower court were brought by fee counsel rather than counsel to the prevailing parties.
In April 1976, a Florida district court appointed Mr. Andrew Mavrides to represent the inmates of the Broward County Jail in their civil rights suit concerning confinement conditions. After six years of litigation, Mavrides filed a motion for $252,255.35 in attorney’s fees and costs pursuant to 42 U.S.C. § 1988. The motion was accompanied by the required supporting memorandum and a detailed breakdown of Mavrides’ costs, expenses and time. The defendants filed a motion in response, acknowledging that Mavrides was entitled to some compensation but contending that the amount should be only $29,430 in fees and $90.80 in costs. The defendants also requested that the court hold an evidentiary hearing on the fee issue. Mavrides apparently concluded that he was unable to represent himself adequately in the face of this opposition, and without consulting the court hired Mr. James Green to prosecute his fee application. As a result of Green’s representation, Mavrides was awarded $89,850 in fees and $2,936.80 in costs. Later, Green filed a § 1988 fee application, purportedly in Mavrides’ name, seeking compensation for his services in representing Mavrides. The district court denied Green’s application with the following order:
THIS CAUSE having come before the Court on the motion of James K. Green for Attorney’s fees, and the Court having considered the record in this cause and being otherwise advised in the premises, ' it is
ORDERED AND ADJUDGED that said motion be, and it is hereby, DENIED. Mr. Green did not represent the plaintiff class but rather represented Mr. Mavrides.
Green, who now has hired a third lawyer to prosecute his claim, then filed an appeal in his own name asking us to reverse the district court’s order and to remand for appropriate proceedings to determine his reasonable fees and expenses.
This court has held that a prevailing party’s counsel is entitled to reasonable compensation when he litigates his own claim for entitlement to § 1988 fees. E.g., Johnson v. University College of the University of Alabama in Birmingham, 706 F.2d 1205, 1207 (11th Cir.1983); Johnson v. Mississippi, 606 F.2d 635, 637-39 (5th Cir. 1979). Mavrides, would, therefore, be entitled to reasonable compensation for all time reasonably spent had he litigated his own fee application. He chose, however, to hire Green to press his claim after it became clear that the defendants intended to oppose his application. The threshold issue is whether such representation constitutes a compensable service within the meaning of the Act. We join a number of other courts in concluding that it does. See Shadis v. Beal, 703 F.2d 71, 72-73 (3d Cir.1983); Grendel’s Den, Inc. v. Larkin, 582 F.Supp. 1220, 1231 (D.Mass.1984); Institutionalized Juveniles v. Secretary of Pub. Welfare, 568 F.Supp. 1020, 1034 (E.D. Pa.1983),
We are guided to this conclusion by an examination of the policy considerations underlying the Act. The Act’s primary function is to shift the costs of civil rights litigation from civil rights victims to civil rights violators. Dowdell v. City of Apopka, Florida, 698 F.2d 1181, 1189 (11th Cir. 1983). Its legislative history articulates two justifications for the cost-shifting mechanism. First, the mechanism affords civil rights victims effective access to the courts by making it financially feasible for them to challenge civil rights violations. Second, it provides an incentive for both citizens and members of the bar to act as “private attorneys general” to ensure effective enforcement of the civil rights laws. Id. (citing H.R.Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976) and S.Rep. No. 1011, 94th Cong., 2d Sess. 1, 3 reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910).
We have recognized that the Act’s success in achieving its purposes depends on whether the cost-shifting mechanism reimburses costs and fees on a par with what the attorney would otherwise receive from fee-paying clients. Dowdell, 698 F.2d at 1190. Were we to institute an absolute ban on recovery for expenses incurred by a lawyer who finds it necessary to hire counsel to prosecute his fee application, the profitability of handling civil rights cases would be reduced, since he would then have to absorb an expense not generally associated with other types of litigation. If Green’s services were not compensable in this case, for example, Mavrides would have to pay Green’s fee out of his own pocket and his real income for handling the case would be reduced significantly. Such reduced profitability would in turn channel lawyers away from civil rights suits towards more remunerative types of litigation, thereby diminishing the enforcement of the civil rights laws and decreasing victims’ opportunity to gain redress. Id. Given this result, we find it more consistent with the goals of the Act to permit an attorney to be compensated for the costs reasonably incurred in hiring another to prosecute his fee application.
In reaching this conclusion we do not mean to imply that it is appropriate in every case for an attorney to hire counsel to prosecute his § 1988 fee application. On the contrary, we envision these cases to be the exception and not the rule. The propriety of passing any litigation costs on to the defendant under § 1988 remains subject to this circuit’s requirement that the costs be justified by the necessities of the case. Dowdell, 698 F.2d at 1191. Whether fee counsel’s services are justified in a particular instance remains within the sound discretion of the trial court.
We now turn our consideration to the issue of whether Green had standing to file the petition for attorney’s fees. He and his counsel are strangers to the litigation in the sense that they are neither parties nor attorneys of record for any party. The Act calls for awards to be made to a “prevailing party.” We can find nothing in the Act or its legislative history which suggests that Congress contemplated that an attorney who did not actually represent the prevailing party would be able to file a fee application on his own motion. We do not believe, therefore, that the meaning of the term “prevailing party” as it is used in the Act can be expanded to encompass an attorney who has no connection with the principal case aside from his prosecution of the fee issue. The proper procedure is for the attorney who benefits from the representation to supplement his own fee application to include the costs and expenses that he has incurred by retaining fee counsel. In this case, then, Mavrides is the proper individual to request compensation for Green’s expenses. We dismiss this appeal in light of Mr. Green’s lack of standing to file the motion for fees in the district court or to file an appeal to this court.
DISMISSED.
. The case had not reached final judgment at the time Mavrides filed his motion, but the court had entered numerous orders in the plaintiffs’ favor and had ruled for them on the basic issue of whether conditions in the jail met constitutional standards at the time of filing and during the pendency of the lawsuit.
. The accompanying memorandum dealt with the twelve factors of Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), which must be considered in all fee cases in this circuit.
. The validity and amount of the award to Mavrides are not challenged.
. Green also asks us to require the district court to determine an appropriate award of fees and expenses for his lawyer on this appeal.
. We express no opinion as to whether Mavrides acted properly in hiring Green to represent him on the fee application. This determination is one properly left in the first instance to the trial court.
. Those attorneys who feel the need to hire counsel would be well-advised to raise the issue with the court prior to taking such action. Otherwise they run the risk that the trial court may determine that the necessities of the case did not justify retaining special fee counsel. We are unwilling, however, to make prior consultation with and approval by the trial court a prerequisite to recovery.
. Strict conformity to the language of the statute would require that the application be made by the attorney in the name of his client, the prevailing party. We consider this to be the procedure of choice, since it ensures that awards made under the Act compensate their intended beneficiaries. We are aware that in some instances courts have awarded attorney's fees to an individual attorney rather than to the prevailing party. See, e.g., Shadis v. Beal, 692 F.2d 924 (3rd Cir.1982); cf. Dennis v. Chang, 611 F.2d 1302, 1309 (9th Cir.1980). In these cases, however, the awarded fees compensated the attorney for services rendered directly to the prevailing party.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Charles Thomas BUCHANNON, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellee.
No. 72-3590
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 9, 1973.
Charles Buehannon, pro se.
Robert L. Shevin, Atty. Gen., Nelson Bailey, Asst. Atty. Gen., Tallahassee, Fla., Fredrie J. Scott, Asst. Atty. Gen., W. Palm Beach, Fla., for respondent-ap-pellee.
Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.
Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
The district court denied the petition of Buehannon, a Florida state prisoner, for a writ of habeas corpus. We affirm.
The appellant was convicted upon trial by jury of robbery and assault with intent to commit first degree murder and was sentenced to concurrent terms of 35 and 20 years, respectively. The conviction was affirmed on direct appeal. Buchannon v. Wainwright, Fla.App. 1970, 239 So.2d 608.
In his habeas petition filed below, appellant alleged several grounds for relief. First he alleged that he was initially arrested pursuant to a justice of the peace warrant, but after a preliminary hearing it was found there was no probable cause for the arrest and he was released. Subsequently the state attorney filed an information against appellant, he was again arrested, and proceeded to trial without a preliminary hearing. Appellant contends he was illegally rearrested and was illegally denied a second preliminary hearing. The contentions are without merit. The state was obviously within its rights to file an information after appellant was initially released. There is nothing in the state law which requires a preliminary hearing after an information has been filed. Also, appellant has no constitutional right to a preliminary hearing. Jackson v. Smith, 5th Cir. 1970, 435 F.2d 1284; Scarbrough v. Dutton, 5th Cir. 1968, 393 F.2d 6.
Appellant contended that his convictions are invalid because he was prosecuted on a bill of information and not on an indictment. The states are free to proceed on an information since the indictment clause of the constitution is not applicable to the states. Gaines v. Washington, 1928, 277 U.S. 81, 48 S.Ct. 468, 72 L.Ed. 793; Hurtado v. California, 1884, 110 U.S. 516, 4 S.Ct. 111, 292, 28 L.Ed. 232; Henderson v. Cronvich, 5th Cir. 1968, 402 F.2d 763. He also contended that the trial court erred in admitting conflicting testimony and admitting evidence regarding a pistol owned by appellant. A state court’s rulings on admissibility of evidence do not present grounds for federal review. Lisenba v. California, 1941, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Pleas v. Wainwright, 5th Cir. 1971, 441 F.2d 56; Williams v. Wainwright, 5th Cir. 1970, 427 F.2d 921.
Appellant contended that his sentence is excessive because his co-defendants received lower sentences. This likewise presents no grounds for federal habeas corpus relief. United States v. Harbolt, 5th Cir. 1972, 455 F.2d 970; Rodriquez v. United States, 5th Cir. 1968, 394 F.2d 825. He also alleged that a determination of the voluntariness of his confession was not made by the trial court. The district court found that no confession or statement was introduced as evidence against him. A review of the trial transcript reveals no clear error in that finding. Finally, appellant contended that housewives and 18-20 year olds were excluded from his jury. Appellant stated only a conclusion, offering no factual allegations to support that conclusion.
There being no merit to appellant’s contentions, the judgment below is affirmed.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
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.
UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al. v. NATIONAL LABOR RELATIONS BOARD et al.
No. 89.
Argued February 19, 1964.
Decided March 23, 1964.
Jerry D. Anker argued the cause for petitioners. With him on the brief were David E. Feller, Elliot Bredhoff and Michael H. Gottesman.
Dominick L. Manoli argued the cause for the National Labor Relations Board. With him on the brief were Solicitor General Cox, Arnold Ordman and Norton J. Come.
Theophil C. Kammholz argued the cause for respondent Carrier Corporation. With him on the brief was Kenneth C. McGuiness.
Gregory S. Prince filed a brief for the Association of American Railroads, as amicus curiae, urging affirmance.
Mr. Justice White
delivered the opinion of the Court.
The question presented by this case is whether a union violates § 8 (b)(4) of the National Labor Relations Act, 49 Stat. 449, as amended, by picketing an entrance, used exclusively by railroad personnel, to a railroad spur track located on a right-of-way owned by the railroad and adjacent to the struck employer’s premises.
On March 2, 1960, after the petitioning union and the respondent company, Carrier Corporation, failed to agree upon a collective bargaining contract the union, which was the certified bargaining agent, called a strike in support of its demands. During the course of the strike the union picketed the several entrances to the plant. Along the south boundary of Carrier’s property was a 35-foot railroad right-of-way used by the railroad for deliveries to Carrier and to three other companies in the area, General Electric, Western Electric, and Brace-Mueller-Huntley. The railroad spur ran across Thompson Road, a public thoroughfare which bounded Carrier’s property on the west, and through a gate in a continuous chain-link fence which enclosed both the property of Carrier Corporation and the railroad right-of-way. The gate was locked when the spur was not in use and was accessible only to railroad employees. The picketing with which we are concerned occurred at this gate.
Between March 2 and March 10, railroad personnel made several trips through the gate for the purpose of switching out cars for General Electric, Western Electric and Brace-Mueller-Huntley, and also to supply coal to Carrier and General Electric. On March 11 a switch engine manned by a regular switching crew made one trip serving the three nonstruck corporations. It then returned, this time manned by supervisory personnel, with 14 empty boxcars. The pickets, being aware that these cars were destined for use by Carrier, milled around the engine from the time it reached the western side of Thompson Road, attempting to impede its progress. By inching its way across the road, however, the locomotive succeeded in reaching and entering the gate. After uncoupling the empties just inside the railroad right-of-way, for future use by Carrier, the engine picked up 16 more cars which Carrier wanted shipped out and made its way back toward the gate. This time resistance from the picketing strikers was more intense. Some of the men stood on the footboard of the engine, others prostrated themselves across the rails and one union official parked his car on the track. Invective and threats were directed toward the operators of the train, and only after the pickets were dispersed by deputies of the Onondaga County sheriff’s office was it able to pass.
Acting upon charges filed by Carrier, the Regional Director of the National Labor Relations Board issued a complaint against the international and local union organizations and individual officials of each, alleging violations of §§ 8 (b)(1)(A) and 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act. The Trial Examiner found the union in violation of both sections and recommended appropriate cease-and-desist orders. The National Labor Relations Board sustained the Examiner’s finding that an unfair labor practice had been committed under §8 (b)(1)(A) and entered an order accordingly. The union does not contest this determination by the Board. The Board further concluded, however, that the picketing was primary activity and therefore saved from § 8 (b)(4)(B)’s proscription by the proviso that “nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” Noting the conceded fact that the deliveries and removals by the railroad in this case were made in connection with the normal operations of the struck employer, the Board regarded as dis-positive this Court’s decision in Electrical Workers Local No. 761 v. Labor Board, 366 U. S. 667, the General Electric case. 132 N. L. R. B. 127.
The Court of Appeals for the Second Circuit reversed the Board’s decision on the ground that the picketing at the railroad gate was directed solely at the neutral railroad employees and could not be regarded as incident to what the court considered the only legitimate union objective: publicizing the labor dispute to the employees involved therein, those working for Carrier. This Court’s holding in General Electric was deemed inapposite since the gate in the present case is located on premises belonging to the neutral employer. 311 F. 2d 135. Chief Judge Lumbard dissented. Because of the asserted conflict with General Electric and the importance of the problem to the national labor policy we granted certio-rari. 373 U. S. 908. We reverse the decision of the Court of Appeals.
The activities of the union in this case clearly fall within clauses (i) and (ii) of §8 (b)(4); likewise the objective, to induce the railroad to cease providing freight service to Carrier for the duration of the strike, is covered by the language of subsection (B), exclusive of the proviso. The question we have is whether the activities of the union, although literally within the definition of secondary activities contained in clauses (i) and (ii) of § 8 (b)(4), are nevertheless within the protected area of primary picketing carved out by Congress in the proviso to subsection (B).
The dividing line between forbidden secondary activity and protected primary activity has been the subject of intense litigation both before and after the 1959 amendments to § 8 (b) (4), which broadened the coverage of the section but also added the express exceptions for the primary strike and primary picketing. We need not detail the course of this sometimes confusing litigation; for in the General Electric case, supra, the Court undertook to survey the cases dealing with picketing at both primary and secondary sites and the result reached in that case largely governs this one. In the General Electric case, because the union’s object was to enmesh “employees of the neutral employers in its dispute” with the primary employer, the Board ordered the union to cease picketing a separate gate used exclusively by employees of certain independent contractors who had been doing work on the primary premises on a regular and continuous basis for a considerable period of time. 123 N. L. R. B. 1547. In this Court, the Board conceded that when the struck premises are occupied by the primary employer alone, the right of the union to engage in primary activity at or in connection with the primary premises may be given unlimited effect — “all union attempts, by picketing and allied means, to cut off deliveries, pickups, and employment at the primary employer’s plant will be regarded as primary and outside the purview of Section 8 (b)(4)(A).” But the Board insisted that the facts presented a common situs problem since the regular work of the contractors was continuously done on the primary premises and hence the rules of the Moore Dry Dock case should be applied. The union, on the other hand, argued that no picketing at the primary premises should be considered as secondary activity.
The Court accepted the approach neither of the Board nor of the Union. The location of the picketing, though important, was not deemed of decisive significance; picketing was not to be protected simply because it occurred at the site of the primary employer’s plant. Neither, however, was all picketing forbidden where occurring at gates not used by primary employees. The legality of separate gate picketing depended upon the type of work being done by the employees who used that gate; if the duties of those employees were connected with the normal operations of the employer, picketing directed at them was protected primary activity, but if their work was unrelated to the day-to-day operation of the employer’s plant, the picketing was an unfair labor practice. The order of the NLRB was vacated to permit determination of the case in accordance with the proper test.
It seems clear that the rejection of the Board’s position in General Electric leaves no room for the even narrower approach of the Court of Appeals in this case, which is that the picketing at the site of a strike could be directed at secondary employees only where incidental to appeals to primary employees. Under this test, no picketing at gates used only by employees of delivery men would be permitted, a result expressly disapproved by the Court in General Electric: “On the other hand, if a separate gate were devised for regular plant deliveries, the barring of picketing at that location would make a clear invasion on traditional primary activity of appealing to neutral employees whose tasks aid the employer’s everyday operations.” 366 U. S., at 680-681.
Although the picketing in the General Electric case occurred-prior to the 1959 amendments to § 8 (b) (4), the decision was rendered in 1961 and the Court bottomed its decision upon the amended law and its legislative history. We think General Electric’s construction of the proviso to § 8 (b) (4) (B) is sound and we will not disturb it. The primary strike, which is protected by the proviso, is aimed at applying economic pressure by halting the day-to-day operations of the struck employer. But Congress not only preserved the right to strike; it also saved “primary picketing” from the secondary ban. Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neutral delivery men furnishing day-to-day service essential to the plant’s regular operations.
Nor may the General Electric case be put aside for the reason that the picketed gate in the present case was located on property owned by New York Central Railroad and not upon property owned by the primary employer. The location of the picketing is an important but not decisive factor, and in this case we agree with Judge Lumbard that the location of the picketed gate upon New York Central property has little, if any, significance:
“In this case, it is undisputed that the railroad’s operations for Carrier were in furtherance of Carrier’s normal business. It is equally clear from the record that the picketing employees made no attempt to interfere with any of the railroad’s operations for plants other than Carrier. The railroad employees were not encouraged to, nor did they, refuse to serve the other plants. The picketing was designed to accomplish no more than picketing outside one of Carrier’s own delivery entrances might have accomplished. Because the fence surrounding the railroad’s right of way was a continuation of the fence surrounding the Carrier plant, there was no other place where the union could have brought home to the railroad workers servicing Carrier its dispute with Carrier.” 311 F. 2d 135, 154.
The railroad gate adjoined company property and was in fact the railroad entrance gate to the Carrier plant. For the purposes of § 8 (b)(4) picketing at a situs so proximate and related to the employer’s day-to-day operations is no more illegal than if it had occurred at a gate owned by Carrier.
Carrier, however, has another argument: holding this picketing protected thwarts the purpose of the 1959 amendment to bring railroads within the protection of §8 (b)(4). The definitions of “employer” and “employee” in §§ 2 (2) and 2 (3) of the Act specifically exclude “any person subject to the Railway Labor Act” and the employees of any such “person.” Prior to 1959, §8 (b)(4) prohibited secondary inducements to “the employees” of any “employer” and there arose a conflict of authority between the Board and several Courts of Appeals as to whether or not the secondary boycott provisions applied to any appeals to railroad employees. Congress resolved this question in 1959 by revising §8 (b)(4) to proscribe inducement of secondary work stoppages by “any individual employed by any person.” There is no indication whatever that Congress intended by the revision to do more than to eliminate the uncertainty deriving from the words “employer” and “employee” and thereby to extend to railroads the same protections which other employers enjoyed. Our holding does not derogate from this equality of treatment. On the contrary, the rule for which Carrier contends would place the railroad on a better footing than all other employers who do business with the struck plant. It would distinguish between picketing an entrance to a struck plant which is owned by the primary employer and picketing a gate which by design or otherwise had been conveyed to a neutral furnishing delivery service, an anomaly which we do not believe Congress intended.
Finally, we reject Carrier’s argument that whatever the rule may be in the ordinary case of separate gate picketing, the picketing of the railroad gate in this case was violative of § 8 (b) (4) because it was accompanied by threats and violence. Under § 8 (b) (4) the distinction between primary and secondary picketing carried on at a separate gate maintained on the premises of the primary employer, does not rest upon the peaceful or violent nature of the conduct, but upon the type of work being done by the picketed secondary employees. Such picketing does not become illegal secondary activity when violence is involved but only when it interferes with business intercourse not connected with the ordinary operations of the employer. This is not to say, of course, that violent primary picketing is in all respects legal but only that it is not forbidden by § 8 (b) (4); it would escape neither the provisions of the federal law nor the local law if violative thereof.
This is all, we think, that was intended by the proviso to §8 (b)(4) which provides that nothing in subsection (B) “shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” (Emphasis supplied.) It is possible to read this language to mean that the proviso does not save from proscription under §8 (b)(4) union activity violative of other laws, but this interpretation would condemn as secondary conduct any and all picketing directed toward neutral employers so long as the conduct, as in the case of violence, was forbidden by some other law. In our view, the words “where not otherwise unlawful” were inserted only to make clear that the proviso, while excluding the conduct from the § 8 (b)(4) sanctions did not also legalize it under other laws, state or federal. The legality of violent picketing, if “primary,” must be determined under other sections of the statute or under state law.
Reversed.
Mr. Justice Douglas concurs in the result.
Mr. Justice Goldberg took no part in the consideration or decision of this case.
Section 8 (b)(4) provides in pertinent part as follows:
“(4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
“(B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.” 29 U. S. C. (Supp. IV) §158 (b)(4).
The union made no objection to the deliveries of coal to Carrier, since the nonstruck General Electric plant obtained its coal from Carrier.
Brief for the National Labor Relations Board, Electrical Workers Local 761 v. Labor Board, No. 321, October Term, 1960, p. 31.
Sailors’ Union of the Pacific, 92 N. L. R. B. 647.
The Court said: “The 1959 Amendments to the National Labor Relations Act, which removed the word ‘concerted’ from the boycott provisions, included a proviso that ‘nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful,. any primary strike or primary picketing.’ 29 U. S. C. (Supp. I, 1959) §158 (b)(4)(B). The proviso was directed against the fear that the removal of ‘concerted’ from the statute might be interpreted so that ‘the picketing at the factory violates section 8 (b) (4) (A) because the pickets induce the truck drivers employed by the trucker not to perform their usual services where an object is to compel the trucking firm not to do business with the . . . manufacturer during the strike.’ Analysis of the bill prepared by Senator Kennedy and Representative Thompson, 105 Cong. Rec. 16589.” 366 U. S., at 681.
See H. R. Rep. No. 741, on H. R. 8342, 86th Cong., 1st Sess., 21, 80; H. R. Rep. No. 1147, on S. 1555, 86th Cong., 1st Sess., 38; 2 Leg. Hist, of the Labor-Management Reporting and Disclosure Act of 1959, 1575-1576, 1707, 1857.
Compare International Brotherhood of Teamsters (The International Rice Milling Co.), 84 N. L. R. B. 360; International Woodworkers of America (Smith Lumber Co.), 116 N. L. R. B. 1756; International Brotherhood of Teamsters (The Alling & Cory Company), 121 N. L. R. B. 315; and Lumber & Sawmill Workers Local Union 2409 (Great Northern Railway Co.), 122 N. L. R. B. 1403, with International Rice Milling Co. v. Labor Board, 183 F. 2d 21 (C. A. 5th Cir.); Smith Lumber Co. v. Labor Board, 246 F. 2d 129 (C. A. 5th Cir.); Great Northern Railway Co. v. Labor Board, 272 F. 2d 741 (C. A. 9th Cir.).
Compare Labor Board v. Rice Milling Co., 341 U. S. 665, 672, in which the Court said: “In the instant case the violence on the picket line is not material. The complaint was not based upon that violence, as such. To reach it, the complaint more properly would have relied upon § 8 (b) (1) (A) or would have addressed itself to local authorities. The substitution of violent coercion in place of peaceful persuasion would not in itself bring the complained-of conduct into conflict with § 8 (b) (4). It is the object of union encouragement that is proscribed by that section, rather than the means adopted to make it felt.”
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
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.
Damon K. WILSON, Plaintiff-Appellant, v. A.A. WAGGENER, Defendant-Appellee.
No. 87-4396.
United States Court of Appeals, Fifth Circuit.
Feb. 11, 1988.
Anthony D. Moroux, Charles M. Ponder, III, Domengeaux & Wright, Lafayette, La., for plaintiff-appellant.
L. Lane Roy, Roy & Hattan, Lafayette, La., for defendant-appellee.
Before THORNBERRY, GEE, and POLITZ, Circuit Judges.
THORNBERRY, Circuit Judge:
Appellant Damon K. Wilson filed this diversity action against A.A. Waggener in the United States District Court for the Western District of Louisiana. Wilson alleged that Waggener had failed to make a $100,000 payment pursuant to the terms of a stock purchase agreement. Following a trial, the district court held that Wilson was barred from collecting the $100,000 because Wilson did not meet the good faith requirement imposed by Louisiana law. Wilson now challenges the district court’s finding of bad faith as clearly erroneous. We affirm the district court.
I
In 1967, A.A. Waggener was one of the initial incorporators of an oil field tool rental company called Petroleum Equipment Tools Company, Inc. (PETCO). In 1976, Waggener became president of PETCO. He hired Damon Wilson to be the company’s purchasing agent. D.W. Harrell also worked for PETCO.
In March 1981, Waggener left PETCO to form his own oil tool rental company, Wag-gener Rental Tools, Inc., which would directly compete with PETCO. Waggener testified that he began setting up the new company while still working for PETCO. When Waggener left PETCO, he took Wilson and Harrell with him to run the new company. As part of Wilson’s compensation, he acquired 5% of Oil Service Tools, Inc., the holding company of Waggener Rental Tools, in exchange for a $3,350 promissory note. Wilson also was paid a monthly salary for his work. Harrell had a similar salary and stock plan.
In May 1981 and again in January 1982, Waggener underwent surgery for the removal of a brain tumor. Because Waggener was incapacitated, Wilson and Harrell ran the company. Waggener Rental Tools lost money every year. As a result, sometime in December 1982 Waggener began efforts to sell Waggener Rental Tools.
In January 1983, Waggener entered into a written contract with Wilson. The entire contract, which was in the form of a letter signed by Waggener, was as follows: Dear Damon [Wilson]:
If we sell Waggener Rental Tools Company on or before June 30, 1983 for $4,000,000.00 or more I will buy your Oil Service Tools, Inc. stock for $150,000.00. If Waggener Rental Tools is sold for less than $4,000,000.00, I will buy your Oil Service Tools, Inc. stock for $100,000.00. After June 30, 1983 we will talk about a new offer depending on how much cash I have put into Waggener Rental Tools Co. and/or depending on how much the debt has increased during that time frame.
Waggener entered into an identical contract with Harrell. The trial court found that this transaction was structured as a stock purchase “to provide more favorable tax treatment to Damon Wilson than simply a bonus to him would have accomplished in the event the company was sold.”
In April 1983, Harrell left the business in an effort to reduce overhead. The court found that
[u]pon his departure, pursuant to the January 1983 letter agreement, and because D.W. Harrell had been a loyal employee but was now being forced of [sic] his job due to financial problems, Wag-gener offered to give Harrell $50,000.00 less the amount of two promissory notes aggregating $7,999.90. Waggener further proposed to pay Harrell the remaining $50,000.00 if [Waggener Rental Tools] was sold before January 1, 1984.
Waggener then took the company off the market, but in mid-January 1984 notified Wilson that the company was again for sale.
On July 28, 1983, Wilson’s contract was renewed, to expire on January 1,1984. On January 30, 1984, the contract was again renewed, to expire on January 1, 1985. Finally, at the request of Wilson, on September 5, 1984, Waggener executed a contract with identical terms, except that the agreement had no expiration date.
Three weeks after this last contract, on September 21, 1984, Wilson notified Wag-gener that he was leaving Waggener Rental Tools. On September 26, 1984, Wilson left the business. The trial court found that on or about September 26, 1984, Wilson incorporated his own business, Subren-tal Tools, Inc., which would compete with Waggener Rental Tools. Subrental Tools officially opened on October 1, 1984.
Waggener sold all of the operating assets of Waggener Rental Tools to PETCO in January 1985 for $2,000,000. After this sale, Waggener Rental Tools engaged in no business (because of a noncompetition clause in the asset-sale agreement) other than passive investment. Because of the sale of assets, Wilson sued Waggener, claiming that pursuant to the agreement Waggener owed him $100,000.
The trial court ruled for Waggener. Although the trial court found the sale of assets to be a sale of the company as contemplated in the contract, the court found that Wilson could not recover because he violated Article 1759 of the Louisiana Civil Code, which imposes a requirement of good faith into all Louisiana contracts. The trial court found that Wilson’s and Harrell’s contracts were predicated upon their continued employment at Wag-gener Rental Tools. The court noted that each contract expired by its terms if the business was not sold, and that when Harrell left the business, Waggener was not obligated to pay anything but nonetheless made a gratuitous payment. The court also found that when Wilson convinced Waggener to enter into the contract without an expiration date, Wilson had already determined to stop working for Waggener Rental Tools but did not mention this to Waggener because he knew that with such a disclosure Waggener would not make the new contract. Thus, the court found that Wilson acted in bad faith and could not recover under the contract. Wilson appealed.
II
Before trial, Wilson made a motion in limine asking that any evidence relating to any duty he might have had to remain in the employment of Waggener Rental Tools be excluded. Wilson argued that such evidence would violate Louisiana’s parol evidence rule because it would allow the court to insert an additional term requiring his continued employment into the unambiguous contract. La.Civ.Code Ann. art. 1848; White v. Rimmer & Garrett, Inc., 340 So.2d 283, 285-86 (La.1976) (parol evidence may not be admitted when the terms of the contract are unambiguous, unless the exclusion of such evidence would lead to “absurd consequences”). The trial court denied Wilson’s motion.
In order to preserve the admission of evidence as error for appellate review, an objection must be made at trial. Fed.R. Evid. 103(a)(1). A motion in limine is insufficient to meet this requirement. A party whose motion in limine is overruled must renew his objection when the evidence is about to be introduced at trial. Petty v. Ideco, Div. of Dresser Indus., Inc., 761 F.2d 1146, 1150 (5th Cir.1985); Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir.1980). Wilson did not object at trial to Waggener’s testimony regarding Wilson’s obligation to remain at Waggener Rental Tools. Thus, Wilson has not preserved this issue for appellate review.
Notwithstanding a failure to object, Fed. R.Evid. 103(d) provides for appellate review of plain error. The plain error remedy is to be used only in extreme cases where a miscarriage of justice would otherwise occur. Petty v. Ideco, Div. of Dresser Indus., Inc., 761 F.2d at 1150. Plain error is error that is obvious and substantial. Id. The admission of this evidence clearly was not such plain error; in fact it was not error at all. Wilson’s argument for the exclusion of this evidence misconstrues the relevance of this “parol” evidence. The trial court did not find that Wilson could not recover because he failed to meet his contractual obligation to remain employed by Waggener Rental Tools. Rather, the trial court held that he could not recover because he did not act in good faith. The trial court did not look to the evidence to insert a new provision into the contract. Louisiana law added the new provision— good faith — to the contract. National Safe Corp. v. Benedict & Myrick, Inc., 371 So.2d 792, 795 (La.1979) (holding that even if an obligation of good faith is not explicitly stated in the contract, the law nonetheless inserts such an obligation), and the trial court examined the evidence only to determine whether Wilson met his obligations under that provision. Thus, the trial court did not err in admitting this evidence.
Ill
Wilson next attacks the trial judge’s conclusion that Wilson acted in bad faith. The judge relied on two factual findings in reaching this conclusion. First, the judge concluded that the contract was predicated on Wilson’s continued employment. Second, the judge concluded that Wilson acted in bad faith by setting up a competing business without informing Waggener that he was doing so, while at the same time renegotiating the contract to eliminate the time limit. Wilson argues that these factual findings are clearly erroneous. See McCarty Corp. v. Pullman-Kellogg, Div. of Pullman, Inc., 751 F.2d 750, 756 (5th Cir.1985).
Wilson first asserts that the finding that Wilson was setting up a new business while renegotiating the new contract was unsupported by any evidence. However, a review of the record shows that the judge’s conclusion is easily supported by reasonable inferences from the evidence. The contract was renegotiated on September 5, 1984. A mere three weeks after that date, on September 26, Wilson left Waggener Rental Tools, and a few days after that, on October 1, Wilson had opened his new business. Moreover, Wilson consulted with a lawyer about incorporating the new business on September 25 — one day before he left Waggener Rental Tools. From the short time span of this sequence of events, it appears reasonable for the judge to have concluded that Wilson must have been planning to leave when renegotiating the contract. Wilson asserts that the renegotiation of the contract was motivated by other concerns — he states, for example, that he wanted to avoid “what had happened” to Harrell — implying that the nearness to his departure was mere coincidence. However, Wilson’s asserted triggering event, the events involving Harrell, took place over a year earlier. It thus was not clearly erroneous for the judge to believe the timing evidence rather than Wilson’s testimony.
Wilson next asserts that the trial court ignored the evidence that the contract was a bonus for past services rather than an incentive payment for his and Harrell’s continued employment. Wilson notes that Waggener did not present this incentive payment argument in his first Answer and suggests that the issue was raised merely one month before trial as an “afterthought.” At trial, Wilson and Harrell both testified that the contract was entered into solely as a bonus for past loyalty and had nothing whatsoever to do with future services. Wilson also notes that the contract nowhere mentioned any requirement of future services.
There was, however, plausible, conflicting evidence on all of these points, and the judge was therefore not clearly erroneous in accepting this evidence and ruling against Wilson. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). First, Wilson’s and Harrell’s testimony was contradicted by Waggener, who stated that the purpose of the contract was to induce Wilson and Harrell to stay to run the company while Waggener recuperated from his operations. Second, the parties never entered into the contracts until negotiations for the sale of Waggener Rental Tools had begun and Wilson and Harrell had expressed concern about their futures with the company. This evidence indicates that the contract’s purpose was to insure their remaining with the company rather than their going immediately to look for other work. Third, it would not have made sense to include expiration dates in the contracts if the contracts were bonuses for past services. Fourth, Waggener’s testimony indicated that the parties did not include a clause about future services because they thought they could obtain favorable tax treatment by structuring the transaction as a stock purchase rather than compensation. The evidence presented by both sides was plausible, although conflicting, and the judge was therefore not clearly erroneous ' in crediting Waggener’s evidence over Wilson’s.
IV
For the reasons set forth above, we AFFIRM the judgment of the district court.
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_counsel2
|
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.
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
FIRST AMERICAN TITLE INSURANCE CO., a Calif. corp.; Provident Savings Bank, a Federally Chartered Savings Bank, Plaintiffs-Appellants, v. UNITED STATES of America; Department of the Treasury; Internal Revenue Service; Mark A. Moss; Provident Financial Corp., a California corp., Defendants-Appellees.
No. 87-6190.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 9, 1988.
Decided June 2, 1988.
Barry R. Laubscher, Sanford Shatz, Cos-ta Mesa, Cal., for plaintiffs-appellants.
William S. Rose, Jr., Acting Asst. Atty. Gen., Michael L. Paup, William S. Esta-brook, B. Paul Klein, Tax Div., Dept, of Justice, Washington, D.C., for defendants-appellees.
Before FARRIS, BOOCHEVER and REINHARDT, Circuit Judges.
FARRIS, Circuit Judge:
First American Title Insurance Co. and Provident Federal Savings Bank appeal from the district court’s grant of a motion to dismiss for failure to state a claim. We reverse and remand.
BACKGROUND
This appeal concerns the status of various liens on real property located in Grand Terrace, California. Mark A. Moss acquired the property in July 1983. He mistakenly recorded the deed under the name Mark H. Moss. In October 1983, Moss gave Provident a deed of trust in the property in order to secure payment of a $156,-000 promissory note. Provident recorded the deed on October 19, 1983. In January 1984, Moss corrected the name on the original deed, but failed to notify Provident of the change.
In November 1985 and January 1986, the Internal Revenue Service recorded tax liens against all of Moss’s property, including the Grand Terrace property. The liens on the Grand Terrace property were junior to Provident’s lien. On March 10,1986, Provident initiated foreclosure proceedings against the property and conducted a title search under the name Mark H. Moss. Provident never discovered the federal tax liens because they were recorded under the name Mark A. Moss. Provident consequently failed to notify the IRS of the upcoming nonjudicial sale. At the sale, Provident purchased the property for $159,-444.
Provident’s failure to notify the IRS of the sale meant that the property remained subject to the federal tax liens. See 26 U.S.C. § 7425(b)(1). When Provident later discovered the federal liens, it received indemnity from First American Title Insurance Co. Both entities then instituted this action. They conceded that Provident’s failure to notify the IRS meant that the sale was “made subject to and without disturbing” the tax liens. They argued, however, that equitable principles would have allowed Provident, and now First American, to retain the senior lien on the property. The district court disagreed. It held that Provident’s senior lien was extinguished when Provident purchased the property, leaving the property subject only to the federal tax liens.
STANDARD OF REVIEW
We review de novo the district court’s grant of a motion to dismiss for failure to state a claim upon which relief can be granted. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984). Dismissal was proper only if Provident and First American could not have proven any set of facts that would have entitled them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
DISCUSSION
The issue on appeal is whether Provident and First American could have proven any set of facts which would have entitled Provident to retain its pre-sale status as senior lienor over the government. Our resolution of the issue involves two steps. First, we must determine the nature of Provident’s property interest after the sale. Second, if Provident’s lien survived the sale, we must determine whether the lien has priority over the tax liens. See Aquilino v. United States, 363 U.S. 509, 512-14, 80 S.Ct. 1277, 1279-80, 4 L.Ed.2d 1365 (1960). Each step is analytically distinct. If our resolution of the property issue reveals that Provident’s lien did not survive the sale, then we need not reach the priority issue because there would be no lien competing for priority with the tax liens. If Provident’s lien survived the sale, however, then, and only then, would we reach the priority issue.
Federal law governs the resolution of each issue. United States v. Brosnan, 363 U.S. 237, 240, 80 S.Ct. 1108, 1110, 4 L.Ed.2d 1192 (1960). If federal statutes do not address the issue, the Supreme Court has specified the source of federal law. We adopt state law as the federal common law when deciding to what extent an individual has an interest in property to which a federal tax lien has attached. Id. at 240-42, 80 S.Ct. at 1110-11; Aquilino, 363 U.S. at 512-13, 80 S.Ct. at 1279-80; see also United States v. Polk, 822 F.2d 871, 874 (9th Cir.1987). We generate uniform nationwide federal rules, however, when deciding priority issues. Brosnan, 363 U.S. at 240, 80 S.Ct. at 1110.
A. The Property Issue
Whether Provident’s lien survived the sale requires us to determine the extent of Provident’s interest in the Grand Terrace property after the sale. We adopt California law as the federal common law to make this determination. See Aquilino, 363 U.S. at 512-13, 80 S.Ct. at 1279-80; Brosnan, 363 U.S. at 240-42, 80 S.Ct. at 1110-11; Polk, 822 F.2d at 874. Under California law, the general rule is that a mortgagee’s lien is extinguished when the mortgagee purchases the property to which his or her lien was attached. Cal.Civ.Code § 2910 (West 1974); Cornelison v. Kornbluth, 15 Cal.3d 590, 125 Cal.Rptr. 557, 568, 542 P.2d 981 (1975); Strike v. Trans-West Discount Corp., 92 Cal.App.3d 735, 155 Cal.Rptr. 132, 137 (1979). The theory is that the mortgagee’s lesser interest (the lien) has “merged” into the greater interest (the fee). If the merger rule applies to Provident, then Provident’s lien did not survive the sale and the tax liens are the only encumbrances on the property.
We are not convinced, however, that the merger rule necessarily applies to Provident. California law recognizes an equitable exception to the rule:
Equity will prevent or permit a merger as will best subserve the purposes of justice and the actual and just intent of the parties.... In the absence of an expression of intention, if the interest of the person in whom the several estates have united, as shown from all the circumstances, would be best subserved by keeping them separate, the intent to do so will ordinarily be implied.
Ito v. Schiller, 213 Cal. 632, 3 P.2d 1, 2 (1931) (quoting Jameson v. Hayward, 106 Cal. 682, 39 P. 1078 (1895)).
If Provident and First American are entitled to equitable relief, then Provident’s lien survived the sale. Before we consider this issue, however, we first address the government’s contention that equitable relief is simply unavailable to a senior lienor such as Provident who has failed to notify the IRS of a nonjudicial sale.
1. Does existing case law foreclose the availability of equitable relief?
On the basis of Southern Bank v. I.R.S., 770 F.2d 1001 (11th Cir.1985), cert. denied sub nom. Mid-State Homes, Inc. v. United States, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 977 (1986), the district court concluded that equitable relief was unavailable to Provident and First American. In Southern Bank, two senior lienors conducted nonjudicial foreclosure sales without notifying the IRS. Each lienor purchased the property at the respective sales. The Eleventh Circuit held that the senior liens were extinguished, leaving the properly subject only to the government’s liens. Id. at 1009.
In reaching this decision, the court applied Alabama’s rule of merger. Id. at 1007. When the lienors contended that elevating the government’s junior liens would be inequitable, they did not argue that Alabama law would allow an equitable exception to the merger rule. Instead, after the court determined that the liens did not survive the sale, the lienors apparently argued that Alabama law would provide equitable relief on the priority issue. The court disagreed, stating “we cannot permit states to nullify the effectiveness of the federal tax lien ... by applying various equitable principles recognized by the state.” Id. at 1009.
We agree with the Eleventh Circuit that, as to priority issues, state equitable principles do not apply. If a federal statute does not address a priority issue, courts generate a federal rule to decide the issue. Brosnan, 363 U.S. at 240, 80 S.Ct. at 1110. In the case before us, however, we deal with a property issue because we must determine whether Provident’s lien survived the sale. Aquilino v. United States, 363 U.S. 509, 512-14, 80 S.Ct. 1277, 1279-80, 4 L.Ed.2d 1365 (1960), and United States v. Brosnan, 363 U.S. 237, 240-42, 80 S.Ct. 1108, 1110-11, 4 L.Ed.2d 1192 (1960), both specify that courts look to state law to determine the extent of an individual’s property interest in cases involving the federal tax liens. Aquilino makes clear that the property issue is analytically distinct from the priority issue. 363 U.S. at 512-14, 80 S.Ct. at 1279-80. Because Southern Bank dealt with a priority issue, the case does not apply here.
We reject the government’s contention that United States v. Polk, 822 F.2d 871 (9th Cir.1987), precludes the availability of equitable relief on the merger issue. In Polk, the senior lienors conducted a foreclosure sale without notifying the IRS. Id. at 872. The court held that, under Arizona law, the senior liens were extinguished regardless of the senior lienors’ intent. Id. at 874 (quoting Best Fertilizers of Arizona, Inc. v. Burns, 116 Ariz. 492, 493, 570 P.2d 179, 180 (1977)). Polk deals with Arizona, law and has no bearing on whether equitable relief is available under California law. The senior lienor’s intent is irrelevant under Arizona law, but not under California law. See Ito v. Schiller, 213 Cal. 632, 3 P.2d 1, 2 (1931); Strike v. Trans-West Discount Corp., 92 Cal. App.3d 735, 155 Cal.Rptr. 132, 137-38 (1979). Polk therefore does not preclude the availability of equitable relief.
2. Does 26 U.S.C. § 7425(b)(1) preclude the availability of equitable relief?
The government contends that granting equitable relief to Provident would be inconsistent with § 7425(b)(1). We disagree. Before Congress enacted § 7425(b)(1), some state laws allowed senior lienors to conduct nonjudicial sales without notice to junior lienors. Junior liens held by the government could be extinguished by operation of state law even though the government had not been notified of a sale. S.Rep. No. 1708, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Admin. News 3722, 3748. To prevent the extinction of government liens under these circumstances, Congress enacted section 7425(b)(1) to assure that the government received notice of these sales so that it could “review its position and determine the appropriate action....” Id. This would assure that the government could protect its interest in having a fair sale. In the event the government did not receive notice, Congress intended only to shield the government’s junior liens from extinction so the government could protect its interests at a later date.
Granting equitable relief to Provident would not undermine Congress’s intent. If Provident’s lien survives the sale, the government’s junior liens still are unaffected by the sale, and the government can protect its interest in having a fair sale in the future when Provident sells the property or when the government forecloses on it. Granting equitable relief also will not discourage senior lienors such as Provident from notifying the government of future sales. Senior lienors have a strong incentive to notify the government because doing so will extinguish the government’s junior liens when the property is sold. See 26 U.S.C. § 7425(b)(2) and Sohn v. California Pacific Title Ins. Co., 124 Cal.App.2d 757, 269 P.2d 223, 230 (1954). If notice is not given, the government’s liens survive the sale, leaving an encumbrance on the property. We believe that this is the penalty that Congress intended to impose on senior lienors such as Provident. Granting equitable relief to Provident is not inconsistent with that intention. Section 7425(b)(1) therefore does not preclude the availability of equitable relief.
3. Availability of equitable relief under California law
As we understand California law, equitable relief is available to Provident and First American if three conditions are met: (1) Provident’s best interests would be best served by preventing a merger of the lien and the fee; (2) the purposes of justice would be served; and (3) the government cannot prove by a preponderance of the evidence that Provident actually intended to merge the lien into the fee. Ito v. Schiller, 213 Cal. 632, 3 P.2d 1, 2 (1931) (quoting Jameson v. Hayward, 106 Cal. 682, 39 P. 1078 (1895)); see also Strike v. Trans-West Discount Corp., 92 Cal.App.3d 735, 155 Cal.Rptr. 132, 137-38 (1979). We need not discuss the first condition, because there is no dispute that Provident’s best interests would be served by preventing a merger.
a. Purposes of justice
To determine whether justice would be served by allowing Provident’s lien to survive the sale, we consider how our resolution of the issue would affect the parties. We presume that Provident did not act in bad faith when it failed to discover the government’s liens. If we do not grant equitable relief, Provident would lose $159,-444 (the amount Provident paid for the property) because the property would be subject to tax liens totalling $534,000. The government, on the other hand, would realize $159,444 which it otherwise would not have received had Provident notified it of the sale. We recognize that any money received by the government would go towards satisfaction of legitimate tax liens. If Provident had notified the government, however, the government’s junior liens would have been extinguished, see 26 U.S.C. § 7425(b)(2) and Sohn v. California Pacific Title Ins. Co., 124 Cal.App.2d 757, 269 P.2d 223, 230 (1954), and the government would not have received any proceeds from the sale because the sale yielded only enough money to satisfy a portion of Provident’s senior lien, see Caito v. United Calif. Bank, 20 Cal.3d 694, 144 Cal.Rptr. 751, 754, 576 P.2d 466 (1978) (junior lienor draws from proceeds only after foreclosing senior lienor paid off). Under these circumstances, the equities favor Provident, particularly since 26 U.S.C. § 7425(b)(1) eliminates virtually any harm the government suffered when it did not receive notice of the sale.
Because Provident failed to notify the government, section 7425(b)(1) provides that the sale was “made subject to and without disturbing” the government’s liens. Even if Provident’s senior lien survives the sale, the government is virtually in the same position it was in before the sale. If Provident sells the land, or if the government forecloses on it, the proceeds from the sale first go towards satisfaction of Provident’s lien and any remaining proceeds go towards satisfaction of the government’s liens.
We therefore conclude that Provident and First American could prove a set of facts which would show that the purposes of justice would be served if equitable relief were granted.
b. Intent
The final condition for receiving equitable relief involves the question of Provident’s intention on the issue of merger. Because Provident did not express any intention on the merger issue, equity will presume that Provident did not intend to merge its lien with its fee interest if two conditions are met: (1) Provident’s best interests would be served by preventing the merger, and (2) the purposes of justice would be served. Ito v. Schiller, 213 Cal. 632, 3 P.2d 1, 2 (1931); Strike v. Trans-West Discount Corp., 92 Cal.App.3d 735, 155 Cal.Rptr. 132, 137-38 (1979). We have concluded that Provident and First American could prove a set of facts to fulfill these conditions. We have also presumed that Provident intended to prevent a merger of its interests. On remand, the presumption is rebuttable if the government can prove by a preponderance of the evidence that Provident actually intended to merge its interests. See Sheldon v. La Brea Materials, 216 Cal. 686, 15 P.2d 1098, 1101 (1932) (merger rule not applied when no direct or circumstantial evidence of an express intention to merge); see also Strike, 92 Cal.App.3d 735, 155 Cal.Rptr. 132,137 (placing burden of proof on person arguing that merger occurred).
B. The Priority Issue
If the district court ultimately determines that Provident’s lien survived the sale, then the only remaining issue is whether the lien has priority over the tax liens. The Federal Tax Lien squarely addresses this issue and therefore obviates the necessity of relying on the federal common law to resolve the issue. See Manalis Finance Co. v. United States, 611 F.2d 1270, 1273 (9th Cir.1980); AETNA Ins. Co. v. Texas Thermal Industries, Inc., 591 F.2d 1035, 1037-38 (5th Cir.1979) (per curiam). If Provident’s lien survived, the Tax Lien Act gives priority to it because Provident had perfected its lien before the government recorded its tax liens. See 26 U.S.C. §§ 6323(a), (h)(1); Manalis, 611 F.2d at 1273; AETNA Ins. Co., 591 F.2d at 1038.
CONCLUSION
We hold that the district court erred in granting the government’s motion to dismiss. We have viewed the facts in the light most favorable to Provident and First American. Whether they can actually prove their case is a matter for the district court to decide on remand.
Reversed and Remanded.
. The district court also rejected the contention that 26 U.S.C. § 7425 allowed a "taking." We need not address this issue.
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_circuit
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Plaintiff-Appellee, v. Stanley Aaron HEADRICK, Defendant-Appellant.
No. 18521.
United States Court of Appeals Sixth Circuit.
Feb. 17, 1969.
Joseph R. Huddleston, Bowling Green, Ky., for appellant, Huddleston & Huddleston, Bowling Green, Ky., on the brief.
John L. Smith, Asst. U. S. Atty., Louisville, Ky., for appellee, Ernest W. Rivers, U. S. Atty., Louisville, Ky., on the brief.
Before WEICK, Chief Judge, and PHILLIPS and EDWARDS, Circuit Judges.
PER CURIAM.
Stanley Aaron Headrick was convicted by a jury on both counts of a two count indictment for passing falsely made United States postal money orders in violation of 18 U.S.C. §§ 500 and 2. The sole question on appeal is whether the District Judge erred in not granting the defendant’s motion for acquittal. We find no reversible error.
At 11:42 p. m. on March 14, 1967, the appellant and David Allen Smith checked out of a motor hotel in Cleveland, Ohio, in possession of a box full of postal money orders which they knew to be stolen. They had registered under aliases at the hotel. According to the appellant, he and Smith then went to the home of a friend to whom he gave the box of money orders.
On March 15 at 10:30 or 11 o’clock in the morning one of the money orders was cashed in Cousin Jack’s Discount Store in Bowling Green, Kentucky, about 500 miles from Cleveland. Two witnesses identified Smith as the man who cashed the money order. On the same day the other money order was cashed at the Shoe Center in Bowling Green. The person who cashed the latter money order could not be identified by the owner of the store, but a fingerprint of the appellant was on the money order.
The appellant testified that they drove the entire distance from Cleveland, Ohio, to Clarksville, Tennessee, where he and Smith checked into a motel the afternoon of the fifteenth of March. Both the appellant and Smith testified that the appellant drove the automobile the entire distance, because Smith’s eyes were inflamed to an extent which prevented his driving. The appellant testified that Smith went out without him, leaving the motel for a while, on the day after they arrived in Clarksville. Smith testified that he alone had cashed both of the money orders while the appellant was asleep on the day they arrived in Clarksville.
Viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the Government, we hold that reasonable minds could find the defendant guilty beyond a reasonable doubt of aiding and abetting in the passing of the money orders. Compare Serio v. United States, 126 U.S.App.D.C. 297, 377 F.2d 936, 938-939, vacated by the Supreme Court on grounds not involved on this appeal, 392 U.S. 305. See also Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919.
Although appellant denied having been in Bowling Green, appellant testified affirmatively that he was with Smith at a time when other witnesses stated that Smith cashed one of the two money orders in Bowling Green. There are numerous conflicts as to details in the testimony of appellant and Smith and much evidence from which the jury could have made credibility determinations against the testimony of appellant. The distance by highway between Clarksville, Tennessee, to Bowling Green, Kentucky, is approximately 74 miles. Bowling Green is geographically located so as to be generally on the route which appellant and Smith logically could have taken in driving from Cleveland, Ohio, to Clarksville, Tennessee.
We find sufficient testimony in the record from which the jury could have concluded beyond a reasonable doubt that appellant drove Smith to Bowling Green and was with him at the time the money orders were passed.
Affirmed.
. Smith was indicted with the appellant and plead guilty on both counts. He appeared at the appellant’s trial as a witness for the defense.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_appel2_8_3
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. 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.
In re ROGERS’ ESTATE. STICKNEY et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 261.
Circuit Court of Appeals, Second Circuit.
July 6, 1944.
John W. Drye, Jr., and Theodore Pearson, both of New York City (William H. Harrar, of New York City, of counsel), for petitioner.
Samuel O. Clark, Jr., Sewall Key, and Morton K. Rothschild, all of Washington, D. C., for respondent.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
1. The Tax Court held, and the taxpayers and the Commissioner now agree, that the sale was an installment sale within the meaning of § 44(b) of the Revenue Act of 1936, 26 U.S.C.A. Int.Rev. Code, § 44(b). We think that the Tax Court correctly held that the subsequent transfers by the executors of the installment obligations to various trusts of which the executors were themselves trustees and to an escrow agent for a residuary legatee, were within the provisions of § 44(d), “distributed, transmitted, sold, or otherwise disposed of.” Maguire v. Commissioner, 313 U.S. 1, 61 S.Ct. 789, 85 L.Ed. 1149; and Helvering v. Gambrill, 313 U.S. 11, 61 S.Ct. 795, 85 L.Ed. 1155, are most persuasive here, although in those cases the tax arose under § 113(a)-5 of the 1928 Revenue Act, 26 U.S.C.A. Int.Rev.Acts, page 380. Taxpayers’ contention that these transfers were transactions without real substance, because the installment obligations vested in the beneficiaries from the moment the obligations were acquired by the estate, is substantially the position taken by this court in its opinion in Commissioner v. Gambrill, 2 Cir., 112 F.2d 530, which was reversed by the Supreme Court in Helvering v. Gambrill, supra. In Brewster v. Gage, 280 U. S. 327, 50 S.Ct. 115, 74 L.Ed. 457, the question here before us was not considered; it is to be noted, too, that Brewster v. Gage was relied upon in this court in reaching its reversed decision in the Gambrill case.
2. We also agree with the Tax Court that the capital gain resulting from the sale of decedent’s property by the executors was not income of the estate “paid or credited” to beneficiaries within the meaning of § 162(c), 26 U.S.C.A. Int.Rev. Code, § 162(c). Decedent’s will expressly forbade such a result since it provided that “all realized appreciation in the value of stock * * *, resulting from the sale * * * thereof, shall be considered principal and not income * * Likewise, under the New York decisions, such a gain is regarded as an addition to the corpus of the estate; Bank of Richmondville v. Graves, 259 App.Div. 4, 18 N.Y.S.2d 133, affirmed 284 N.Y. 671, 30 N.E.2d 720. In the accounts filed by the executors with the Surrogates they showed these gains as part of the “principal.” In Weber v. Commissioner, 2 Cir., 111 F.2d 766, the terms of the will were such that the gains upon the making of the sale became at once a profit of the legatees; obviously it therefore immediately became income so far as they were concerned; that casé is therefore not in point, and any language in that opinion possibly indicating a conclusion different from that we have reached here should be regarded as dictum. We think that Helvering v. Butterworth, 290 U.S. 365, 54 S. Ct. 221, 78 L.Ed. 365, is not at variance with the Tax Court’s decision here; the Supreme Court there dealt not with the distribution of any portion of the estate but with an annuity, which it held not to be deductible as income distributed to a beneficiary.
3. Before the railway stock was sold by the executors, they had held it for about a year and a half. ' After the sale, the executors held the installment notes for a period of about ten months! If those ten months be properly added to the year and a half, then for the purpose of computing income under § 117(a), 26 U.S.C.A. Int. Rev.Acts, page 873, there was a holding for more than two years and less than five, with the consequence that 60% of the gain should be taken into account in computing income. § 44(d), relating to gain or loss upon the disposition of installment obligations, provides that “any gain * * * resulting shall be considered as resulting from the sale * * * of the property in respect of which the installment obligation was received.” The purpose of that provision is shown by the Congressional Committee Reports which read in part as fol-
lows: “This amendment to the House bill makes it clear that where the profit on the sale or exchange of property is returned on the installment basis by spreading the profit over the period during which the installment obligations are satisfied or disposed of, such profit shall be taken into account under the brackets set forth in section 117 of the bill according to the period for which the original property sold was held rather than according to the period for which the installment obligations were held.” In the light of that statement, we agree with the Tax Court that the perio'd of holding here was for less than two years, and that, accordingly, 80% of the gain must be taken into account in computing income under § 117(a).
Affirmed.
Question: This question concerns the second listed appellant. 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_respond1_1_4
|
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 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.
HANNEGAN, Postmaster General, v. READ MAGAZINE, Inc., et al.
No. 9268.
United States Court of Appeals District of Columbia.
Argued Oct. 17, 1946.
Decided Dec. 9, 1946.
EDGERTON, Associate Justice, dissenting.
Mr. J. Francis Hayden, of Washington, D. C., Special Assistant to the Attorney General with whom Mr. Edward M. Curran, United States Attorney at the time the brief was filed, and Mr. Sidney S. Sachs, Assistant United States Attorney, both of Washington, D. C., were on the brief, for appellant.
Mr. John W. Burke, Jr., of New York City, of the Bar of the State of New York, pro hac vice, by special leave of Court, with whom Mr. Burdette M. Asbill, of Washington, D. C., was on the brief, for appellees.
Before EDGERTON, WILBUR K. MILLER, and PRETTYMAN, Associate Justices.
PRETTYMAN, Associate Justice.
Appellant, as Postmaster General, issued an order forbidding the use of the mails to appellees. They brought a civil action in the District Court to enjoin enforcement of the order. That court granted their motion for summary judgment and granted a permanent injunction. This appeal followed.
Appellees publish two magazines and also publish books in the form of reprints of classical literature. In one of these magazines, they conducted a contest, called a puzzle contest, for large cash prizes. A group of eighty puzzles, divided into twenty series of four each, was initially offered for solution. The contest was promoted by national newspaper advertising, by extensive advertising in appellees’ Facts Magazine, and by a booklet sent in response to coupons clipped from the advertisements. The “Official Rules of the Contest” were printed in full text,in the newspaper and magazine advertisements and in the booklet. They contained the following: “In case of ties, if two or more persons tie in submitting the correct solutions, then the first two or more prizes will be reserved for those contestants and will be awarded in the order of accuracy of the submissions of those contestants to a first, and if necessary, a second tie-breaking group of puzzles, divided into Series exactly like the first Group. In case a second tie-breaking Group of puzzles is necessary, contestants eligible to solve same will be required to accompany their solutions to this second tie-breaking Group of puzzles with a letter of not more than 200 words on the subject: ‘The Puzzle I Found Most Interesting and Educational in This Contest.’ All tie-breaking Series must be qualified in accordance with the provisions of Rule No. 8. Only in case ties exist after such final tie-breaking puzzles have been checked will the letters be considered, and in that event they will be judged on the basis of originality in description and general interest. In case of final ties, duplicate prizes will be awarded. Upon entering the contest, the entrant is asked to realize that the sponsor anticipates that a large number of persons may enter The contest and that a large number may solve one, two or all three of the Groups of puzzles, and that the sponsors will not make known the number of persons competing in any phase of the contest, irrespective of how large or how small that number may be. FACTS Magazine reserves the right to offer contestants the opportunity to win increased prizes, or to offer consolation prizes or additional prizes at any time prior to the conclusion of the contest.”
'These Official Rules were printed in the same type and with equal prominence with the remainder of the text of the advertisements, except for the headlines. They were likewise printed in full in the booklet of puzzles sent to each entrant. Contestants were told, both in the advertisements and in the booklet, to read the Rules
—“The Rules are printed in full below. Please read them carefully and be sure you understand them.” The Rules were repeatedly referred to in the advertisements and in the booklet. The entry blank itself recited that the entrant wished to qualify “in accordance with the official rules.” The headlines at the top of the advertisements, in large headline type, were “$10,000 First Prize — Puzzle Contest” and variations of the same terminology. The headlines and the text emphasized the puzzle feature of the contest. The contestants were told that they must enclose 15 cents with each series of four solutions, and that in return for the remittances for the twenty series, each contestant would receive a book issued by the appellee book company. Such .books were duly sent each contestant as promised.
Contestants who solved the first group of eighty puzzles were sent a letter in which they were told 'that by buying additional books they could make themselves eligible fQr increased prizes. The letters were quite emphatic in stating that eligibility for the original prizes remained whether or not the contestants wished to qualify for eligibility for the increased prizes.
At the time of the hearing in the Post Office Department, $760,000 in fees had been received, and appellees had expendéd, or become obligated to expend, $935,000, including prizes, books distributed, printing, advertising, etc. The completion of the contest was interrupted by the Post Office action.
Appellant says that appellees knew at the outset that the winners of the contest would be finally determined not upon the accuracy of puzzle solutions, but upon a judging of the letters submitted by the tie-ing contestants. He also puts much stress upon the communications sent to all contestants who successfully solved the first series of puzzles. He says that the scheme was cleverly designed and intended to create the impression (1) that eighty puzzles comprised the contest, (2) that the contest, though simple in nature, would be decided on the strength of the puzzles and without recourse to letter-writing, and (3) that it would cost not more than three dollars to become eligible for a prize.
Appellant does not claim that any statement in the advertisements was untrue or that there was any departure from the procedure announced in the Official Rules of the Contest. There is no claim by him that the judging of the letters was to be other than bona fide, or that any contestant failed to receive the promised books. No contestant, so far as the record shows, complained of being misled or defrauded. In other words, the fraud order is not premised upon specific or affirmative misstatements, or upon failure to perform as promised, but is premised upon an impression which appellant says is conveyed by the advertisements as a whole. He derives the impression from the headlines in the advertisements and the comparative urgency which he finds in some of the expressions 'in them.
The statutory clause under which appellant acted, authorizes him to forbid the use of the mails to any person or company conducting any “Scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises.”
Findings of the Postmaster General in cases of this sort will not be disturbed by the court where they are fairly arrived at and have substantial evidence to support them. Furthermore, “Even if an advertisement is so worded as not to make an express misrepresentation, nevertheless, if it is artfully designed to mislead those responding to it, the mail fraud statutes are applicable.” It is upon the latter rule that appellant relies in the case at bar.
The rule is broad; a false pretense,' representation, or promise may be made by impression. But such impression must be fairly derived. As we said in Farley v. Simmons, the question is what the advertisement is “Reasonably intended to cause the reader thereof to believe.”
To support appellant’s conclusion in this case, one must ascribe to the advertisements an impression directly contrary to the stated rules of the contest. One must thus assume that readers were led not to read the Rules, or were led to ignore them or to misunderstand them or to believe something else contrary to their statement. There is no evidence, we think, to support any of those assumptions. The Rules were legibly printed. They were emphasized, rather than minimized, in the text. They were clear to any reasonable mind. No contradictory expressions occurred elsewhere.
That this contest was an advertising device designed to promote the book-publishing business of appellees must have been plain to the most casual reader. The advertisements specifically told him, “This contest with FACTS MAGAZINE as sponsor, is being presented as a means of popularizing the Literary Classics Book Club.” Moreover, the puzzles presented were so simple that patience and time were obviously the only requirements for the successful solution of the whole series. It is impossible to believe that any prospective contestant could think that only one person would be successful in the solutions, lie was told in the Rules that the sponsors anticipated that a “large number” of persons would solve all the puzzles, and his own impressions must have told him the same thing.
We fail to see that the letters which were written to the contestants who successfully solved the first series of puzzles, cast any complexion upon the venture different from that cast by the original advertisements themselves.
We are told that the Postmaster General must be sustained if his action is within “The most malign interpretation which can in reason be put on” the advertisements, the quoted words being from an opinion of Judge Learned Hand while on the District Court in 1909. But that broad expression is limited by “in reason,” and the judge’s further description of the Postmaster General’s power was circumscribed by the words “reasonably conclude.” We think that it must necessarily be contemplated that any reasonable person proposing to enter a contest would read the rules if he were cautioned to do so, and would understand plain terms in them. To be within reason even the most malign impression must proceed from that minimum premise. If the Postmaster General’s power were coextensive with the most malign impression to which advertisements might be susceptible, contrary to unambiguous terms plainly stated, he would be the unrestricted master of much of the country’s business. We do not find that power in the simple and explicit language of the statute, which is limited to false or fraudulent pretenses, representations, or promises. Advertisements which are clearly not false or fraudulent frequently have a certain extravagance and urgency in their appeals, which to the most malign, and even to the mildly cynical, are beyond the boundary of precise accuracy. If a general impression contrary to terms plainly stated is to be the basis for a fraud order, it must, we think, be the impression reasonably conveyed to the public to which the advertisement is addressed. The impression which is the criterion is that of a reasonable reader, not the most malign impression uninhibited by reason. We so held in Farley v. Simmons.
We think that the advertisements before us fairly urged contestants to read the Rules and that the Rules stated fairly, in style of type, placement, and terms, what was proposed. That being so, and there being no ambiguity in or departure from the proposals stated, a finding of false pretenses, representations, or promises could not properly be made. Legally speaking, that conclusion upon these facts was arbitrary and capricious.
We think that the District Court was correct in its judgment.
Affirmed.
R. S. § 3929, 39 U.S.C.A. § 259.
Farley v. Simmons, 1938, 69 App.D.C. 110, 114, 99 F.2d 343, 346, 347, and cases there cited.
Id., 69 App.D.C. at page 113, 99 F.2d at page 346.
69 App.D.C. at page 114, 99 F.2d at pages 346, 347.
Putnam v. Morgan, C.C., 172 F. 450, 451.
See our discussion of the same quotation in Farley v. Simmons, 1938, 69 App.D.C. 110, 114, 89 F.2d 343, 347.
1938, 69 App.D.C. 110, 99 F.2d 343.
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_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. Donald W. LINGO, Appellant.
No. 84-1367.
United States Court of Appeals, Eighth Circuit.
Submitted July 23, 1984.
Decided Aug. 13, 1984.
Donald W. Lingo, pro se.
W. Asa Hutchinson, U.S. Atty., Fort Smith, Ark., Deborah J. Groom, Asst. U.S. Atty., for appellee.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
Donald W. Lingo appeals from his conviction under 18 U.S.C. § 153 for misappropriating funds from a bankruptcy estate for which he was acting as trustee. For reversal, he argues that the district court abused its discretion in denying Lingo’s motion for a continuance and that trial on the merits subjected Lingo to double jeopardy. We affirm.
I. CONTINUANCE.
After his indictment for misappropriating over $7,000, Lingo was arraigned on January 24, 1984, and trial was set for March 5, 1984. On February 3, 1984, Lingo moved unsuccessfully for a forty-five-day continuance to obtain counsel.
The Supreme Court has held that the trial court is vested with broad discretion in considering continuances. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983). Only an “unreasoning and arbitrary ‘insistence on expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Id., citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).
This Court has set forth five factors which the trial court must weigh in considering motions for continuance:
1) the nature of the case and whether the parties have been allowed adequate time for trial preparation;
2) the diligence of the party requesting the continuance;
3) the conduct of the opposing party and whether a lack of cooperation has contributed to the need for a continuance;
4) the effect of the continuance and whether a delay will seriously disadvantage either party;
5) the asserted need for the continuance, with weight to be given sudden exigencies and unforeseen circumstances.
United States v. Bernhardt, 642 F.2d 251, 252 (8th Cir.1981).
From our review of the record, we are satisfied that the trial court adequately considered these factors. Lingo is an attorney and the charge he faced was simple enough to be tried to a jury in one day. Lingo’s trial was held nearly three months after his indictment and then weeks after arraignment, which suggests that he had adequate time for preparation or retention of counsel. In his motion for continuance, Lingo did not allege special complications or lack of government cooperation, nor does he now assert that he suffered any material prejudice. See United States v. Olson, 697 F.2d 273, 275 (8th Cir.1983) (measure of trial court’s proper use of discretion in whether appellant was materially prejudiced by denial of continuance). Therefore, we hold that the trial court’s denial of the motion for continuance was not an abuse of discretion.
II. DOUBLE JEOPARDY.
Lingo also suggests that he was twice placed in jeopardy by the judgment of contempt that was entered against him for his failure to appear at a bankruptcy court hearing and by his conviction on the merits in the case at bar.
We find that the judgments against Lingo are for different offenses and do not subject him to double jeopardy. This Court has previously stated that “punishments for contempt of court and a conviction under indictment for the same acts are not within the protection of the constitutional prohibition against double jeopardy.” O’Malley v. United States, 128 F.2d 676, 684 (8th Cir.1942), rev’d on other grounds, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368 (1943). Accord United States v. Rollerson, 449 F.2d 1000, 1003 (D.C.Cir.1971). In the circumstances of this case, we note that Lingo’s contempt citation was for his failure to comply with the order of the bankruptcy court to appear before it. Alternatively, his conviction under 18 U.S.C. § 153 was for misappropriation of funds. Although the two judgments are necessarily related, the elements of the two offenses differ significantly and they do not constitute double jeopardy.
Accordingly, the judgment of the district court is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_state
|
24
|
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, Appellee, v. Gregory MURDOCK, a/k/a Prentice Parker, Appellant.
No. 90-5178.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 12, 1990.
Decided March 20, 1991.
Rehearing and Rehearing En Banc Denied May 9, 1991.
Andrea George, Minneapolis, Minn., for appellant.
Christopher J. Bebel, Minneapolis, Minn., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, District Judge.
THE HONORABLE RICHARD H. BATTEY, United States District Judge for the District of South Dakota, sitting by designation.
MAGILL, Circuit Judge.
Gregory Murdock appeals his conviction for two counts of bank robbery, one count of armed bank robbery, and two counts of using a firearm during the commission of a bank robbery. Murdock claims that the identification procedures and evidence violated his fifth amendment rights; that the district court’s refusal to sever the counts forced him to incriminate himself; that his fourth amendment rights were violated when the police requested and received bags which Murdock kept at an acquaintance’s apartment; and that the police lacked reasonable articulable suspicion when they stopped his car. We reject these arguments and affirm the convictions. Murdock also claims that he received ineffective assistance of counsel. Because only an incomplete record has been developed on this issue, we dismiss this claim without prejudice.
I.
On September 20, 1989, Murdock was charged with two counts of bank robbery, two counts of armed bank robbery, and two counts of using a gun during the commission of a bank robbery. All four robberies took place between August 16, 1989, and September 6, 1989.
On August 16, 1989, an undisguised man entered the First Star Metrobank in Minneapolis, Minnesota, and demanded money from the senior teller, Thomas Faust. Faust described the robber as a light-skinned, clean-shaven, black man, 28 to 30 years old, with salt and pepper hair and a high hairline. The robber was wearing a black and white striped shirt with short sleeves. Faust testified that the robber was approximately one to two feet away from him and that he looked into the robber’s eyes at least three times. On the same day, only three hours after the Minneapolis First Star bank was robbed, the First Wisconsin National Bank of Milwaukee, located in Milwaukee, Wisconsin, was robbed. The teller identified Murdock as the robber when she was shown a stack of nine photographs.
On August 22, 1989, an undisguised man entered the First Minnesota Bank in St. Paul, Minnesota, and demanded money from a bank teller, Julia Asuncion. She described the robber as a slim, tall, black man with short hair and a thin mustache, who was wearing a dark, short-sleeved shirt of velour or sweatshirt-like material. Asuncion testified that the robber stood a couple of feet away from her and that she looked into the robber’s eyes at least two or three times. Three other First Minnesota employees witnessed the robbery: Diane Conney, Gary Chatlain and Todd Peterson. Neither Asuncion, Conney, nor Chatlain was able to identify Murdock in a lineup held on September 14, 1989. Peterson did not attend the lineup, but did identify Mur-dock in the courtroom during Murdock’s trial.
On August 28, 1989, an undisguised man entered the Twin City Federal Bank in Minneapolis, Minnesota, pointed a two-barreled derringer at the teller, Carol Dudley-Trask, and demanded money. Dudley-Trask described the robber as an unshaven black man, 25 to 30 years old, with a large, pointy nose, and a high forehead, who was wearing a blue dress shirt with a white collar. She testified that she looked at the robber three or four times. Nancy Tate, another teller, described the robber as a lean, clean-shaven black man, approximately 5' 8" to 5' 10" and weighing 147 to 160 pounds. The bank camera photographed the robbery as it happened, producing a picture that was admitted as evidence in Murdock’s trial. Neither Dudley-Trask nor Tate attended a lineup, but both positively identified Murdock in court.
On September 5, 1989, an undisguised individual entered Norwest Midland Bank in Minneapolis, pointed a two-barreled derringer at the teller, Mary Schaefer, and demanded money. Schaefer described the robber as a black man with a short, flat-top hair cut, 6' tall, weighing 150 to 175 pounds, and about 30 years old. Schaefer did not attend a lineup nor was she shown a photo array, but she did identify Murdock in court.
Later that day, Special Agent John Fos-sum of the Minnesota Bureau of Criminal Apprehension (BCA) saw a black male passenger in a brown Lincoln Continental counting a large sum of money. Fossum believed the money was drug-related and radioed a description of the ear to the Minneapolis Police Department when heavy traffic prevented him from following the car.
The next day, September 6, Officers Shoua Cha and Michael Simmons of the St. Paul Police Department saw the same Lincoln Continental that Fossum had reported. Cha recognized Murdock, who was riding in the Lincoln, as the robber in the photograph obtained during the Twin City Federal Bank robbery. He pulled the vehicle over and called for backup. When the backup arrived, the officers approached the car and questioned the occupants. The officers then arrested Murdock and Richardson, the driver of the car. During the post-arrest search, the officers discovered a two-barreled derringer on Murdock.
The police then went to the apartment of one of Murdock’s friends, Glenn King. Because Murdock had spent three nights at King’s apartment, Murdock had left some of his belongings there. Murdock had both a key to the apartment and a key to the security door of the apartment building. However, Murdock was not authorized to enter the apartment without King’s presence and permission. King testified that he gave Murdock a set of keys because he did not want to “run up and down to check the door.” King also testified that Mur-dock had only used the key to the apartment when he had King’s express, contemporaneous approval.
After the police arrested Murdock, several officers went to the Kings’ residence. Mrs. King invited the police into the apartment. The police requested and received permission from the Kings to take Mur-dock’s possessions. Mrs. King had washed Murdock’s clothing and stored it alongside their own clothing. Mr. King later testified that he and his wife consented to the police request because they did not believe they had a choice. He also testified that the police did not threaten either of them in any way, nor did police indicate that they would retaliate against the Kings if they did not comply. Among the possessions taken into custody was a blue dress shirt with a white collar. This shirt fit the description of the shirt worn by the robber in the August 28 robbery.
At trial, Murdock attempted to sever the counts claiming that he would be prejudiced by the cumulative effect of the evidence presented by the government. Furthermore, Murdock claimed that failure to sever would violate his fifth amendment rights. Murdock failed to make a specific allegation about how these rights would be violated. Murdock also attempted to suppress the evidence obtained by the police pursuant to his arrest and pursuant to their visit to the Kings’ apartment. All of these motions were denied.
Murdock was convicted of all but the August 22 robbery. The court sentenced him to a total of 420 months. Murdock filed a motion for a new trial under Rule 33 and a petition for habeas corpus relief under 28 U.S.C. § 2255. The court denied his motion for a new trial and dismissed the habeas petition as premature.
II.
On appeal, Murdock raises six issues. He claims that the overly suggestive identification procedures violated his due process rights; that the court’s refusal to sever the counts forced him to incriminate himself; that the court’s failure to scrutinize the reliability of the eyewitness identifications violated his due process rights; that he received ineffective assistance of counsel since his attorney failed to adequately investigate the underlying facts; that the police violated the fourth amendment when they took his clothing from the Kings’ apartment; and that the police violated the fourth amendment when they detained him without reasonable articulable suspicion.
A.
Murdock first claims that the government’s identification procedures violated his due process rights because they were impermissibly suggestive and unreliable. In addressing these claims we must apply the two-part test the Supreme Court adopted in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). See also Graham v. Solem, 728 F.2d 1533 (8th Cir.1984); United States v. Manko, 694 F.2d 1125 (8th Cir.1982). First, we must decide whether the challenged confrontation was impermissibly suggestive. If it was, we must then determine whether, under the totality of the circumstances, the suggestive procedures created “a very substantial likelihood of irreparable misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. at 2254. In making this second determination, reviewing courts must consider: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the time between the crime and the confrontation.” Manson, 432 U.S. at 114, 97 S.Ct. at 2253 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972)).
Murdock’s first identification claim arises out of the fact that three of the four witnesses who positively identified him did so for the first time in court. Murdock argues that this testimony was tainted by the fact that he was sitting at the defense table and was the only African-American in the room. Since this court does not require in-trial identifications to be preceded by pretrial lineups, see United States v. Wade, 740 F.2d 625, 628 (8th Cir.1984), the only issue is whether Murdock’s presence at the defense table, combined with his being the only African-American in the courtroom at the time of the identification, constituted impermissibly suggestive procedures. It is significant to note that Murdock did not request special seating or object to the ethnic composition of the courtroom at the time of the identification. Furthermore, the witnesses’ identifications were open to attack on cross-examination. Therefore, while the procedure may have been suggestive, it was not im-permissibly suggestive. Even if the procedure was impermissibly suggestive, under the totality of the circumstances, there was no substantial likelihood of misidentification. All four witnesses had a substantial amount of time to view the robber at the time of the crime; each was fairly attentive during the crime; each was very certain about Murdock’s identity; and each identification took place within a reasonable period after the crime. Therefore, even though some of the witnesses’ descriptions of the robber were not extremely detailed or accurate, their in-trial identifications were reliable under the totality of the circumstances. See Ford v. Armontrout, 916 F.2d 457 (8th Cir.1990) (impermissibly suggestive pretrial identification did not make in-court identification unreliable where victim had ample opportunity to view defendant, and where victim’s description of her assailants was accurate and where she did not hesitate in her identification of defendant).
Murdock also claims that his constitutional rights were violated when the police used impermissibly suggestive identification procedures when obtaining Faust’s identification. The police showed Faust a single photograph of an individual, taken during the robbery of Twin City Federal, and informed Faust that this man had robbed at least one other bank. Murdock correctly points out that single photograph arrays are considered impermissibly suggestive in the Eighth Circuit. Ruff v. Wyrick, 709 F.2d 1219, 1220 (8th Cir.1983). However, since we have already determined that Faust’s identification was reliable under the totality of the circumstances, Murdock’s constitutional rights were not violated by this procedure.
B.
Murdock next argues that the district court’s refusal to grant him a separate trial for the different robbery counts forced him to incriminate himself in violation of the fifth amendment. Murdock claims that by not severing the counts, he was required to present evidence of the Wisconsin robbery to defend himself against the Minneapolis First Star robbery. As a threshold matter, we note that the Eighth Circuit grants district courts wide discretion in ruling on motions for severance. See United States v. Mendoza, 876 F.2d 639 (8th Cir.1989). Consequently, we review the district court’s refusal to sever Murdock’s counts under an abuse of discretion standard. Since the separate counts of Murdock’s indictment covered robberies carried out over a short period of time and since all five robberies were performed using a similar modus operandi, it was not unreasonable for the district court to refuse to sever the counts. Furthermore, since Murdock had options available to him other than presenting evidence of the Wisconsin robbery charge, he was not forced to incriminate himself.
C.
Murdock raises a claim of prosecutorial misconduct based on an alleged pretrial “dress rehearsal" held by the prosecutor to ensure favorable testimony from the eyewitnesses. Murdock refers to a pretrial meeting held by the prosecutor and an FBI agent to interview potential witnesses. Murdock argues that since the witnesses were presented with evidence that was ultimately shown to them at trial, the prosecutor was required to inform him of the details of this meeting, including what was shown and what the witnesses’ initial reactions to the evidence were. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1984). Murdock claims that he could have used such information to impeach the eyewitnesses on cross-examination. However, Bagley does not require the prosecution to reveal such information. Under Bagley, constitutional error only occurs when information withheld by the prosecutor results in an unfair trial. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381-82. In this case, Murdock attempted to impeach the eyewitnesses by asking them about the “dress rehearsal” on cross-examination. Therefore, since the jury heard about Murdock’s “dress rehearsal” theory and since Murdock did not show that he had an unfair trial, this claim fails.
D.
We refuse to address Murdock’s ineffective assistance of counsel claim since it is more properly raised in a petition for habeas corpus. See United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir.1991) (per curiam). Even though the district court dismissed this claim in Murdock’s Rule 33 motion, we still believe that it would be better for the district court to develop a more complete record on this issue and, therefore, we dismiss this claim without prejudice.
E.
Murdock further claims that the police violated the fourth amendment when they searched and seized his belongings which were kept at the apartment of acquaintances. The government argues that Murdock did not have a reasonable expectation of privacy in the Kings’ apartment and that therefore Murdock does not have standing to raise a fourth amendment claim. Furthermore, the government argues that no fourth amendment violation occurred because the police asked for and received consent from the Kings to search the apartment and to take the items they found.
However, even if we assume that Murdock had a reasonable expectation of privacy, the police obtained the Kings’ consent to take Murdock’s clothing. While Murdock’s control over his possessions in the Kings’ apartment may be questionable, there is no doubt that the Kings had, at a minimum, common authority over these possessions and that they were capable of giving consent to the police to take them into custody. See United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 992-93, 39 L.Ed.2d 242 (1974) (“consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared”).
P.
Finally, Murdock claims that the police violated the fourth amendment in their initial encounter with him because they seized him without reasonable suspicion. The government argues that the initial encounter was justified by probable cause and was therefore well within the bounds of the fourth amendment.
Shortly after the robbery of Norwest Midland Bank on September 5, Special Agent Fossum of the BCA saw Murdock riding in a Lincoln Continental. The car caught Fossum’s attention because of its erratic driving pattern. When Fossum approached the car, he saw Murdock counting a considerable amount of ten and twenty dollar bills. Fossum made note of the car’s vanity license plates (“DAVID 0”) and tried to follow the car. Because of the traffic, Fossum lost sight of the car. Fos-sum then reported the incident to the FBI, stating that he believed that the car had been used in the robbery of the Norwest Midland Bank. Approximately fourteen hours later, Officer Cha sighted the Lincoln Continental described by Fossum. In addition to Fossum’s description of the car, Officer Cha had a surveillance photo from the Norwest Midland Bank robbery. He compared the robber in the photo with the passenger in the Lincoln Continental and concluded that they were the same person. Based on this information, Officer Cha had probable cause to stop the Lincoln Continental and take Murdock into custody. See United States v. Marin-Gifuentes, 866 F.2d 988 (8th Cir.1989). Therefore, Mur-dock’s fourth amendment claim fails.
III.
For the foregoing reasons, Murdock’s conviction on all counts is affirmed.
. The Honorable Edward J. Devitt, Senior United States District Judge for the District of Minnesota.
. Ms. Asuncion testified that she thought Mur-dock "might be" the robber, but could not "positively say.”
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_majvotes
|
2
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
WILLIAMS v. UNITED STATES.
No. 12027.
Circuit Court of Appeals, Fifth Circuit.
Nov. 18, 1947.
McCORD, Circuit Judge, dissenting.
Hollis Fort, Hollis Fort, Jr., and John A. Fort, all of Americus, Ga., for appellant.
John P. Cowart, U. S. Atty., and T. Reese Watkins, Asst. U. S. Atty., both of Macon, Ga., for appellee.
Before HUTCHESON, McCORD, and WALLER, Circuit Judges.
WALLER, Circuit Judge.
Appellant was put to trial on June 12 on an information in eighteen counts undertaking to charge violation of sugar rationing regulations. A copy of the information was first received by defense counsel on June 5. The Court denied the following motions: (1) Motion for continuance; (2) motion to dismiss the information; (3) motion for bill of particulars; and (4) motion to direct a verdict of acquittal as to all counts.
The Court directed a verdict, however, on Counts 9, 12, 14, 16, and 17, and the jury acquitted defendant on Counts 11, 13, and IS, but found him guilty on all other counts.
The indictment in Count 1 is that the defendant “did then and there acquire, use, permit the use of, transfer, possess, and control divers and sundry ration documents, to-wit: about 911 sugar ration stamps, which aforesaid ration documents had not been issued to and acquired by the said defendant John T. Williams, in accordance with a ration order.”
The second and third counts are identical except as to the dates and the numbers of sugar ration stamps.
Count 4 charges that the defendant “then and there being registered as an industrial user of sugar under and pursuant to the provisions of Third Revised Ration Order 3, as amended, of the Office of Price Administration and subject thereto, willfully, knowingly, and unlawfully did possess, use, permit the use of, sell and otherwise transfer about 1,000 pounds of sugar, a rationed commodity, acquired by the said defendant in exchange for divers and sundry ration documents, namely, sugar ration stamps, in violation of the provisions of Third Revised Ration Order 3, as amended, of the Office of Price Administration.”
The fifth count charges that on “divers days during the months of February, March, and April, 1946,” the defendant, “then and there being registered as an individual user of sugar under and pursuant to the provisions of Third Revised Ration Order 3, as amended, of the Office of Price Administration and subject thereto, willfully, knowingly, and unlawfully did'possess, use, permit the use of, sell and otherwise transfer about 4,000 pounds of sugar, a rationed commodity, each and every week during said period, acquired by the said defendant in exchange for divers and sundry ration documents, namely, sugar ration stamps, in violation of the provisions of Third Revised Ration Order 3, as amended, of the Office of Price Administration.”
The sixth and seventh counts are identical except as to the periods of time and the amounts of sugar.
No good purpose will be served by describing each of the remaining counts in the indictment. It is sufficient to say they are all of the same vagueness and lack of factual allegations as are those heretofore described. In the light of the decision of this Court in Sutton v. United States, 157 F.2d 661, we think that the defendant was entitled to a bill of particulars.
We realize that ordinarily the granting or refusal of a bill of particulars rests within the sound discretion of the trial Court, but it has no discretion to disregard the requirements of the Sixth Amendment that the accused shall be informed of the nature and cause of the accusations against him fully enough to enable him to prepare his defense and definite and certain enough that he may be protected by a plea of former jeopardy against another prosecution for the same offense. In view of the very short time between the filing of the information and the bringing of the case on for trial, the large number of counts in the information, the vague and general terms in each count thereof, the unfamiliarity of the bar with ration orders, rules, and regulations, the rapidity with which such rules and regulations were amended and changed, we think that it was a reversible error to refuse the defendant’s motion for a bill of particulars even though the Court was without error in overruling the motion to dismiss or to continue the case.
Reversed and remanded for further proceedings not inconsistent with the views herein expressed.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
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 miscellaneous - other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power). 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".
AVCO DELTA CORPORATION CANADA LIMITED, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant, and Canadian Parkhill Pipe Stringing, Inc., et al., Defendants-Appellees.
No. 71-1321.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 17, 1972.
Decided April 18, 1972.
Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwaeks, Chief, Appellate Section, U. S. Dept, of Justice, Washington, D. C., Donald B. Mackay, U. S. Atty., Springfield, 111., Johnnie M. Walters, Asst. Atty. Gen., Crombie J. D. Garrett, Stephen Schwarz, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
Frank O. Wetmore, II, Edward J. Wendrow,, George L. Saunders, Jr., Mark E. MacDonald, Theodore M. Miller, Chicago, 111., Eugene L. White, Peoria, 111., for plaintiffs-appellees; Winston, Strawn, Smith & Patterson, Sidley & Austin, Chicago, 111., Kavanagh, Scully, Sudow, White & Frederick, Peoria, 111., of counsel.
Before DUFFY, Senior Circuit Judge, SPRECHER, Circuit Judge, and ESCHBACH, District Judge.
District Judge Jesse E. Esclibacli of the Northern District of Indiana is sitting by designation.
SPRECHER, Circuit Judge.
What is the priority between a perfected tax lien and an earlier perfected chattel mortgage lien upon property not owned by the chattel mortgage debtor but owned by the taxpayer who had represented to the creditor that the debtor owned the property?
Three affiliated Parkhill corporations are involved: The parent corporation is Canadian Parkhill Pipe Stringing Ltd. (“Ltd.”), which is the sole shareholder of the taxpayer, Canadian Parkhill Pipe Stringing, Inc., d/b/a Parkhill Pipeline, Inc. (“taxpayer”), and of the chattel mortgage debtor, Canadian Parkhill Construction Equipment, Ltd. (“Construction”).
Aveo Delta Corporation Canada Limited (“Avco”), which was in the business of financing the purchase and rental of construction equipment, loaned $600,000 in cash to Construction on November 13, 1969. Avco took a note for $674,301.32 and a chattel mortgage on 29 pieces of heavy construction equipment. In the chattel mortgage executed by Construction, the mortgagor expressly covenanted that it owned the mortgaged equipment. The equipment was allegedly leased by Construction to taxpayer for use on a pipe laying job in Bureau County, Illinois. Avco filed a financing statement, listing the 29 pieces of equipment, with the recorder of Bureau County, Illinois, where the equipment was located, on November 25, 1969, and with the Secretary of State of Illinois, on December 5, 1969. The financing statement listed Construction as debtor.
As part of the consideration for making the $600,000 loan to Construction, Avco received a “Guarantee and Indemnity” executed on October 23, 1969, by Ltd. and taxpayer, wherein they agreed to guarantee payment as principal debtors of debts and liabilities of Construction to Aveo and to indemnify and save Avco harmless from all liabilities and claims arising as a consequence of Avco’s dealing with Construction.
Avco received from Construction the first two installments on the loan on December 1 and 17, 1969, but on December 30, 1969, Construction communicated to Aveo its inability to make further payments.
The government’s tax claim is based upon withholding and F.I'.C.A. taxes assessed against taxpayer for the third and fourth quarters of 1969 in the amount of $792,125.06. The assessment was made on February 6, 1970, and notices of liens were filed on February 9, 1970, with the Secretary of State of New York, where taxpayer was incorporated, and on February 16, 1970, with the recorder of Bureau County, Illinois.
On February 16, 1970, pursuant to a notice of seizure issued on that date, the Internal Revenue Service seized property located at Princeton, Bureau County, Illinois, including the 29 pieces of equipment listed in the Avco chattel mortgage and financing statement.
On April 20, 1970, Avco served Construction with formal demand for payment of the loan.
On May 26, 1970, after Avco and the government were unable to agree on the ownership of the 29 pieces of equipment or on the priorities of their respective liens, the three Parkhill companies, Avco and the Internal Revenue Service executed an agreement whereby property, including the disputed 29 pieces, was sold at auction on July 16, 1970. The proceeds of the sale, including $603,744 allocable to the 29 items, were deposited in escrow pending the determination of the rights of Avco and the government.
This action was filed in the district court on July 16, 1970, by Avco against the three Parkhill companies and the United States. Avco asked that its lien be adjudged a first lien on proceeds allo-cable to the 29 items.
After answers were filed by all defendants, Avco moved for entry of judgment on the pleadings supported by the affidavits of Avco and Parkhill officers. The three Parkhill companies consented to and prayed for the entry of summary judgment in favor of Avco. The United States opposed the motions and filed the affidavits of two revenue agents, who raised questions as to whether Construction or taxpayer owned the 29 items covered by Avco’s chattel mortgage.
The district court allowed Avco’s motion for judgment on the pleadings, holding that Avco’s “chattel mortgage is a prior and superior lien on the escrow fund to the lien of the Internal Revenue Service of the Treasury Department of the United States Government for taxes due from [taxpayer].” 321 F.Supp. 241, 245 (S.D.111.1971).
In the absence of any dispute regarding Construction’s ownership of the 29 pieces of mortgaged equipment, Avco’s lien would prevail over the government’s tax lien. The lien created by 26 U.S.C. § 6321 is not valid as against the holder of a security interest until filed in the designated office in the state or county in which the property is located. 26 U.S.C. § 6323. The government filing in Bureau County, Illinois, occurred on February 16, 1970, whereas Avco had perfected its security interest under Illinois law by filing its financing statement in Bureau County on November 25, 1969. Ill.Rev.Stat. ch. 26, § 9-302 (1963). Under the codified common-law rule of “the first in time is the first in right,” a choate state-created lien takes priority over later federal tax liens. United States v. Pioneer American Ins. Co., 374 U.S. 84, 87-88, 83 S.Ct. 1651, 1654, 10 L.Ed.2d 770 (1963). A state-created lien is choate “when the identity of the lienor, the property subject to the lien, and the amount of the lien are established:” United States v. New Britain, 347 U.S. 81, 84, 74 S.Ct. 367, 369, 98 L.Ed. 520 (1954). The Avco financing statement showed Construction as the lienor, described the 29 items of equipment and established the amount secured.
However, the two affidavits filed on behalf of the government showed that taxpayer rather than Construction paid virtually the entire purchase price for the 29 items, that taxpayer received the bill of sale from the original seller for 12 of the items and that the items had been expensed on taxpayer’s books and tax returns.
The affidavits filed on behalf of Avco showed that Avco had previously loaned money to the Parkhill companies on three occasions; each time the loans were prepaid before they matured prior to the $600,000 loan. Avco made its customary investigation of the financial standing of the three Parkhill companies, including an examination of the most recent interim accounts and consolidated financial statement prepared by certified accountants, supplemented by Dun & Bradstreet reports and inquiries at Construction’s bank. Thereafter Construction furnished to Avco corporate resolutions authorizing the sale of the pieces of equipment from Ltd. to Construction and a copy of a bill of sale showing title to the equipment in Construction. The affidavits also stated that Avco received letters from the accounting firms of Buckley, McCarney, Swinarton & Company, stating that the equipment was included in the assets of Construction, and Touche Ross & Co., enclosing copies of invoices and bills of sale. Avco received the written guarantees of the loan from both taxpayer and Ltd. and certified copies of resolutions by the boards of directors of each company authorizing the guarantee. Prior to recording the notes and chattel mortgage in Toronto, Ontario, Canada, and the financing statement in Bureau County and with the Secretary of State of Illinois, a check was made of each of the respective recording offices which disclosed that there were no outstanding security interests in any of the pieces of equipment. The government affidavits did not contradict the facts set forth in Avco’s affidavits outlining the steps which Avco took prior to consummating the loan.
The government contended that its affidavits introduced “factual uncertainty relating to the ownership of the construction equipment” sufficient to preclude the district court’s summary disposition.
The district court, however, took the position that the disputed ownership was immaterial since Avco obtained its security interest in equipment which it “believed in good faith to be owned by the borrower.” The court said, “Neither the so-called ‘real owner’ nor his creditors in such a situation can be permitted to prevail over one who has given real value in good faith reliance on the implicit representations with respect to the security.” 321 F.Supp. 241, 242, 245. The district court properly looked to Illinois law to determine whether Avco had indeed perfected its security interest in the 29 items of equipment despite the questions of ownership raised by the government in the district court.
Inasmuch as section 6321 “creates no property rights but merely attaches consequences, federally defined, to rights created under state law,” United States v. Bess, 357 U.S. 51, 55, 78 S. Ct. 1054, 1057, 2 L.Ed.2d 1135 (1958), a federal court must look to state law to determine the nature of the legal interest which the taxpayer had in the property sought to be reached. Aquilino v. United States, 363 U.S. 509, 512-513, 80 S.Ct. 1277, 4 L.Ed.2d 1365 (1960).
Illinois adopted the Uniform Commercial Code in 1961. Section 9-204 provides in part, “A security interest cannot attach until there is agreement . that it attach and value is given and the debtor has rights in the collateral.” Ill.Rev.Stat. ch. 26, § 9-204 (1963). Here there was an agreement that the security interest attach and value was given. The crucial question is whether the debtor had “rights” in the collateral. The code does not define the word “rights” except to indicate that it “includes remedies.” Ill.Rev.Stat. ch. 26, § 1-201(36) (1963).
Section 1-103 provides in part, “Unless displaced by the particular provisions of this Act, the principles of law and equity, including the law merchant and the law relative to . estoppel, fraud, misrepresentation, or other validating or invalidating cause shall supplement its provisions.” Ill.Rev.Stat. ch. 26, § 1-103 (1963).
It is clear under Illinois law that some “title” or “rights” can be created by estoppel. An Illinois court expressed the concept in Mori v. Chicago Nat’l Bank, 3 Ill.App.2d 49, 51, 120 N.E.2d 567, 568 (1954):
“Whatever title the defendant has must rest on the doctrine of estoppel. This is an equitable doctrine taken over by the law. It is based upon the conduct of the true owner, whereby he has allowed another to appear as the owner, or as having full power of disposition over the property, so that an innocent person is led into dealing with such apparent owner.”
The Illinois Supreme Court early stated the principle in Anderson v. Arm-stead, 69 111. 452, 454-455 (1873):
“The law is familiar, that where the owner of property holds out another, or allows him to appear, as the owner of, or as having full power of disposition over the property, and innocent parties are thus led into dealing with such apparent owner, or person having the apparent power of disposition, they will be protected. Their rights, in such cases, do not depend upon the actual title or authority of the party with whom they have directly dealt, but' they are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power he caused or allowed to appear to be vested in the party, upon the faith of whose title, or power, they dealt.”
See also Drain v. La Grange State Bank, 303 Ill. 330, 335, 135 N.E. 780, 782 (1922); Whalen v. Schneider, 281 Ill. 557, 565-566, 118 N.E. 41, 44 (1917); National Bond & Investment Co. v. Shirra, 255 Ill.App. 415 (1930).
It appears established under Illinois law that Construction had some “rights in the collateral” arising through the acquiescence in and guarantee of its arrangement with Avco by taxpayer and Ltd., which created an estoppel. Whether the estoppel was express or implied makes no difference.
The government then asked “why, merely because the three Parkhill companies represented to Avco that Construction owned the mortgaged property (and are thus estopped from later denying that fact), a creditor of the true owner is also necessarily estopped to question the actual ownership of the property ?”
In matters of substance, the government’s lien does not exceed the rights of the taxpayer. Equitable Life Assurance Society of United States v. United States, 331 F.2d 29, 33 (1st Cir. 1964); United States v. Winnett, 165 F.2d 149, 151 (9th Cir. 1947). In other words, the rights of the government rise no higher than those of the taxpayer whose property is sought to be levied on. Karno-Smith Co. v. Maloney, 112 F.2d 690, 692 (3rd Cir. 1940).
Although some states apparently hold that creditors of the estopped party are not likewise estopped as a matter of state law, Illinois holds otherwise. Cross v. Weare Commission Co., 153 Ill. 499, 38 N.E. 1038 (1894); Thomas v. Citizens’ Horse Ry. Co., 104 Ill. 462 (1882); Reynolds v. Patterson, 4 Ill.App. 183 (1879). Thus Construetion’s title to or rights in the collateral created by taxpayer’s estoppel would, in Illinois, apply as against taxpayer’s creditors such as the government.
The government next contended that, even if Ltd. and taxpayer may be classified as “debtors” (see Ill.Rev.Stat. ch. 26, § 9-105(1) (d) (1963) ) with “rights in the collateral,” Avco did not file a financing statement with respect to either Ltd. or taxpayer to perfect its interest as to them.
Because the estoppel created an interest or rights in Construction, binding on taxpayer and its creditors, that interest or rights were sufficient under section 9-204 of the code to permit Avco’s security interest to attach to the collateral. Avco’s subsequent filing of the financing statement as to Construction was then sufficient under section 9-302 to perfect Avco’s security interest in the collateral without any additional filing as to Ltd. or taxpayer. In view of the facts here that Construction and taxpayer were both wholly-owned subsidiaries of Ltd. and that all three companies bore the highly distinctive name of “Canadian Parkhill,” it could not be contended that a searching creditor of taxpayer could be seriously misled upon discovering the security interest claimed against Construction. The similarity in names would immediately lead to disclosure that the collateral was identical to that which the creditor believed was owned by taxpayer. Thus the application of the Illinois law of rights by estoppel and reliance would have no adverse effect upon the commercial relations intended to be protected by the Uniform Commercial Code as enacted in Illinois. See In re Colorado Mercantile Co., 299 F.Supp. 55, 58-59 (D.Colo. 1969).
The judgment of the district court is affirmed.
. “The Code could have usurped the whole field of law as to commercial transactions, but it does not purport to do so.” Theo. Hamm Brewing Co. v. First Trust & Savings Bank, 103 Ill.App.2d 190, 194, 242 N.E.2d 911, 914 (1968).
. This conclusion obviates the necessity of. determining whether the affidavits on file were sufficient to give Construction some colorable title or rights other than those created by estoppel.
. Illinois permits estoppel to arise from silence as well as from words. “Thus, where one with a duty to speak remains silent and such silence would operate to the injury of another, an estoppel will arise in favor of the party who otherwise would be injured. Moreover, one whose silence has induced or encouraged an act infringing upon his rights cannot subsequently complain of such infringement.” 18 Illinois Law and Practice, Estoppel, § 32. See also Jurek v. Smuczynski, 61 Ill.App.2d 426, 433, 209 N.E.2d 850, 853 (1965).
. The guarantees of taxpayer and Ltd. could also be construed as a part of the security agreement, which, under Illinois law, “is effective according to its terms between the parties, against purchasers of the collateral and against creditors.” Ill.Rev.Stat. ch. 26, § 9-201 (1963).
Question: What is the second general issue in the case, other than miscellaneous - other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)?
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_issuearea
|
J
|
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.
ALLIED-BRUCE TERMINIX COS., INC., et al. v. DOBSON et al.
No. 93-1001.
Argued October 4, 1994
Decided January 18, 1995
Breyer, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, Kennedy, Souter, and Ginsburg, JJ., joined. O’Connor, J., filed a concurring opinion, post, p. 282. Scalia, J., filed a dissenting opinion, post, p. 284. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 285.
H. Bartow Farr III argued the cause for petitioners. With him on the briefs were Richard G. Taranto, Joseph P. Jones, Jr., and T. Julian Motes.
Allan R. Chason argued the cause for respondents. With him on the brief were Kenneth J. Chesebro and Kenneth W. Hooks.
Briefs of amici curiae urging reversal were filed for the Alabama Water and Wastewater Institute et al. by Robert E. Sasser; for the American Arbitration Association by Michael F. Hoeliering, Rosemary S. Page, Robert B. von Mehren, James H. Carter, Donald Francis Donovan, Andreas F. Lowenfeld, and David W. Rivkin; for the American Bankers Association et al. by Theodore B. Olson, Theodore J. Boutrous, Jr., Robert H. Carpenter, and Theodore Fischkin; and for the American Council of Life Insurance by Patricia A Dunn, Stephen J. Goodman, Richard E. Barnsback, and Phillip E. Stano.
Briefs of amici curiae urging affirmance were filed for the Attorney General of the State of Alabama et al. by James H. Evans, Attorney General of Alabama, pro se, and Carol Jean Smith, Assistant Attorney General, and by the Attorneys General, pro se, for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Gale A Norton of Colorado, Robert A Marks of Hawaii, Scott Harshbarger of Massachusetts, Jeremiah W. Nixon of Missouri, Don Stenberg of Nebraska, Jeffrey R. Howard of New Hampshire, Winston Bryant of Arkansas, Robert A Butterworth of Florida, Roland W. Burris of Illinois, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Deborah T. Poritz of New Jersey, Heidi Heitkamp of North Dakota, T. Travis Med-loek of South Carolina, Jeffrey L. Amestoy of Vermont, Ernest D. Preate, Jr., of Pennsylvania, and Jan Graham of Utah; and for the Southern Poverty Law Center by J. Richard Cohen, Morris S. Dees, Jr., and Edward Ashworth.
Justice Breyer
delivered the opinion of the Court.
This case concerns the reach of § 2 of the Federal Arbitration Act. That section makes enforceable a written arbitration provision in “a contract evidencing a transaction involving commerce.” 9 U. S. C. § 2 (emphasis added). Should we read this phrase broadly, extending the Act’s reach to the limits of Congress’ Commerce Clause power? Or, do the two italicized words — “involving” and “evidencing” — significantly restrict the Act’s application? We conclude that the broader reading of the Act is the correct one, and we reverse a State Supreme Court judgment to the contrary.
I
In August 1987, Steven Gwin, a respondent who owned a house in Birmingham, Alabama, bought a lifetime “Termite Protection Plan” (Plan) from the local office of Allied-Bruce Terminix Companies, a franchise of Terminix International Company. In the Plan, Allied-Bruce promised “to protect” Gwin’s house “against the attack of subterranean termites,” to reinspect periodically, to provide any “further treatment found necessary,” and to repair, up to $100,000, damage caused by new termite infestations. App. 69. Terminix International “guarantee^] the fulfillment of the terms” of the Plan. Ibid. The Plan’s contract document provided in writing that
“any controversy or claim .. . arising out of or relating to the interpretation, performance or breach of any provision of this agreement shall be settled exclusively by arbitration.” Id., at 70 (emphasis added).
In the spring of 1991, Mr. and Mrs. Gwin, wishing to sell their house to Mr. and Mrs. Dobson, had Allied-Bruce reinspect the house. They obtained a clean bill of health. But no sooner had they sold the house and transferred the Plan to Mr. and Mrs. Dobson than the Dobsons found the house swarming with termites. Allied-Bruce attempted to treat and repair the house, but the Dobsons found Allied-Bruce’s efforts inadequate. They therefore sued the Gwins, and (along with the Gwins, who cross-claimed) also sued Allied-Bruce and Terminix in Alabama state court. Allied-Bruce and Terminix, pointing to the Plan’s arbitration clause and §2 of the Federal Arbitration Act, immediately asked the court for a stay, to allow arbitration to proceed. The court denied the stay. Allied-Bruce and Terminix appealed.
The Supreme Court of Alabama upheld the denial of the stay on the basis of a state statute, Ala. Code §8-1-41(3) (1993), making written, predispute arbitration agreements invalid and “unenforceable.” 628 So. 2d 354, 355 (1993). To reach this conclusion, the court had to find that the Federal Arbitration Act, which pre-empts conflicting state law, did not apply to the termite contract. It made just that finding. The court considered the federal Act inapplicable because the connection between the termite contract and interstate commerce was too slight. In the court’s view, the Act applies to a contract only if “ ‘at the time [the parties entered into the contract] and accepted the arbitration clause, they contemplated substantial interstate activity.’” Ibid, (emphasis in original) (quoting Metro Industrial Painting Corp. v. Terminal Constr. Co., 287 F. 2d 382, 387 (CA2) (Lumbard, C. J., concurring), cert. denied, 368 U. S. 817 (1961)). Despite some interstate activities (e. g., Allied-Bruce, like Terminix, is a multistate firm and shipped treatment and repair material from out of state), the court found that the parties “contemplated” a transaction that was primarily local and not “substantially” interstate.
Several state courts and Federal District Courts, like the Supreme Court of Alabama, have interpreted the Act’s language as requiring the parties to a contract to have “contemplated” an interstate commerce connection. See, e. g., Burke County Public Schools Bd. of Ed. v. Shaver Partnership, 303 N. C. 408, 417-420, 279 S. E. 2d 816, 822-823 (1981); R. J. Palmer Constr. Co. v. Wichita Band Instrument Co., 7 Kan. App. 2d 363, 367, 642 P. 2d 127, 130 (1982); Lacheney v. Profitkey Int’l, Inc., 818 F. Supp. 922, 924 (ED Va. 1993). Several federal appellate courts, however, have interpreted the same language differently, as reaching to the limits of Congress’ Commerce Clause power. See, e. g., Foster v. Turley, 808 F. 2d 38, 40 (CA10 1986); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F. 2d 402, 406-407 (CA2 1959), cert. dism’d, 364 U. S. 801 (1960); cf. Snyder v. Smith, 736 F. 2d 409, 417-418 (CA7), cert. denied, 469 U. S. 1037 (1984). We granted certiorari to resolve this conflict, 510 U. S. 1190 (1994); and, as we said, we conclude that the broader reading of the statute is the right one.
II
Before we can reach the main issues in this case, we must set forth three items of legal background.
First, the basic purpose of the Federal Arbitration Act is to overcome courts’ refusals to enforce agreements to arbitrate. See Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 474 (1989). The origins of those refusals apparently lie in “ ‘ancient times,’ ” when the English courts fought “ ‘for extension of jurisdiction — all of them being opposed to anything that would altogether deprive every one of them of jurisdiction.’ ” Bernhardt v. Polygraphic Co. of America, Inc., 350 U. S. 198, 211, n. 5 (1956) (Frankfurter, J., concurring) (quoting United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., 222 F. 1006, 1007 (SDNY 1915), in turn quoting Scott v. Avery, 5 H. L. Cas. 811 (1856) (Campbell, L. J.)). American courts initially followed English practice, perhaps just “ ‘standing] . . . upon the antiquity of the rule’ ” prohibiting arbitration clause enforcement, rather than “ ‘upon its excellence or reason.’” Bernhardt v. Polygraphic Co., supra, at 211, n. 5 (quoting United States Asphalt Refining Co., supra, at 1007). Regardless, when Congress passed the Arbitration Act in 1925, it was “motivated, first and foremost, by a ... desire” to change this antiarbitration rule. Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 220 (1985). It intended courts to “enforce [arbitration] agreements into which parties had entered,” ibid, (footnote omitted), and to “place such agreements ‘upon the same footing as other contracts/ ” Volt Information Sciences, Inc., supra, at 474 (quoting Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974)).
Second, some initially assumed that the Federal Arbitration Act represented an exercise of Congress’ Article III power to “ordain and establish” federal courts, U. S. Const., Art. Ill, § 1. See Southland Corp. v. Keating, 465 U. S. 1, 28, n. 16 (1984) (O’Connor, J., dissenting) (collecting cases). In 1967, however, this Court held that the Act “is based upon and confined to the incontestable federal foundations of ‘control over interstate commerce and over admiralty.’ ” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 405 (1967) (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924)). The Court considered the following complicated argument: (1) The Act’s provisions (about contract remedies) are important and often outcome determinative, and thus amount to “substantive,” not “procedural,” provisions of law; (2) Erie R. Co. v. Tompkins, 304 U. S. 64, 71-80 (1938), made clear that federal courts must apply state substantive law in diversity cases, see also Hanna v. Plumer, 380 U. S. 460, 465 (1965); therefore (3) federal courts must not apply the Federal Arbitration Act in diversity cases. This Court responded by agreeing that the Act set forth substantive law, but concluding that, nonetheless, the Act applied in diversity cases because Congress had so intended. The Court wrote: “Congress may prescribe how federal courts are to conduct themselves with respect to subject matter over which Congress plainly has power to legislate.” Prima Paint, supra, at 405.
Third, the holding in Prima Paint led to a further question. Did Congress intend the Act also to apply in state courts? Did the Federal Arbitration Act pre-empt conflicting state antiarbitration law, or could state courts apply their antiarbitration rules in cases before them, thereby reaching results different from those reached in otherwise similar federal diversity cases? In Southland Corp. v. Keating, supra, this Court decided that Congress would not have wanted state and federal courts to reach different outcomes about the validity of arbitration in similar cases. The Court concluded that the Federal Arbitration Act pre-empts state law; and it held that state courts cannot apply state statutes that invalidate arbitration agreements. Id., at 15-16.
We have set forth this background because respondents, supported by 20 state attorneys general, now ask us to overrule Southland and thereby to permit Alabama to apply its antiarbitration statute in this case irrespective of the proper interpretation of §2. The Southland Court, however, recognized that the pre-emption issue was a difficult one, and it considered the basic arguments that respondents and amici now raise (even though those issues were not thoroughly briefed at the time). Nothing significant has changed in the 10 years subsequent to Southland; no later cases have eroded Southland’s authority; and no unforeseen practical problems have arisen. Moreover, in the interim, private parties have likely written contracts relying upon Southland as authority. Further, Congress, both before and after Southland, has enacted legislation extending, not retracting, the scope of arbitration. See, e. g., 9 U. S. C. § 15 (eliminating the Act of State doctrine as a bar to arbitration); 9 U. S. C. §§201-208 (international arbitration). For these reasons, we find it inappropriate to reconsider what is by now well-established law.
We therefore proceed to the basic interpretive questions aware that we are interpreting an Act that seeks broadly to overcome judicial hostility to arbitration agreements and that applies in both federal and state courts. We must decide in this case whether that Act used language about interstate commerce that nonetheless limits the Act’s application, thereby carving out an important statutory niche in which a State remains free to apply its antiarbitration law or policy. We conclude that it does not.
Ill
The Federal Arbitration Act, §2, provides that a
“written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added).
The initial interpretive question focuses upon the words “involving commerce.” These words are broader than the often-found words of art “in commerce.” They therefore cover more than “‘only persons or activities within the flow of interstate commerce.’” United States v. American Building Maintenance Industries, 422 U. S. 271, 276 (1975) (quoting Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 195 (1974)) (defining “in commerce” as related to the “flow” and defining the “flow” to include “the generation of goods and services for interstate markets and their transport and distribution to the consumer”); see also FTC v. Bunte Brothers, Inc., 312 U. S. 349, 351 (1941). But how far beyond the flow of commerce does the word “involving” reach? Is “involving” the functional equivalent of the word “affecting”? That phrase — “affecting commerce” — normally signals Congress’ intent to exercise its Commerce Clause powers to the full. See Russell v. United States, 471 U. S. 858, 859 (1985). We cannot look to other statutes for guidance for the parties tell us that this is the only federal statute that uses the word “involving” to describe an interstate commerce relation.
After examining the statute’s language, background, and structure, we conclude that the word “involving” is broad and is indeed the functional equivalent of “affecting.” For one thing, such an interpretation, linguistically speaking, is permissible. The dictionary finds instances in which “involve” and “affect” sometimes can mean about the same thing. V Oxford English Dictionary 466 (1st ed. 1933) (providing examples dating back to the mid-19th century, where “involve” means to “include or affect in ... operation”). For another, the Act’s legislative history, to the extent that it is informative, indicates an expansive congressional intent. See, e. g., H. R. Rep. No. 96, supra, at 1 (the Act’s “control over interstate commerce reaches not only the actual physical interstate shipment of goods but also contracts relating to interstate commerce”); 65 Cong. Rec. 1931 (1924) (the Act “affects contracts relating to interstate subjects and contracts in admiralty”) (remarks of Rep. Graham); Joint Hearings on S. 1005 and H. R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 7 (1924) (hereinafter Joint Hearings) (testimony of Charles L. Bernheimer, chairman of the Committee on Arbitration of the Chamber of Commerce of the State of New York, agreeing that the proposed bill “relates to contracts arising in interstate commerce”); id., at 16 (testimony of Julius H. Cohen, drafter for the American Bar Association of much of the proposed bill’s language, that the Act reflects part of a strategy to rid the law of an “anachronism” by “get[ting] a Federal law to cover interstate and foreign commerce and admiralty”); see also 9 U. S. C. § 1 (defining the word “commerce” in the language of the Commerce Clause itself).
Further, this Court has previously described the Act’s reach expansively as coinciding with that of the Commerce Clause. See, e. g., Perry v. Thomas, 482 U. S. 483, 490 (1987) (the Act “embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause”); Southland Corp. v. Keating, 465 U. S., at 14-15 (the “ ‘involving commerce’ ” requirement is a constitutionally “necessary qualification” on the Act’s reach, marking its permissible outer limit); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S., at 407 (Harlan, J., concurring) (endorsing Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F. 2d 402, 407 (CA2 1959) (Congress, in enacting the FAA, “took pains to utilize as much of its power as it could”)).
Finally, a broad interpretation of this language is consistent with the Act’s basic purpose, to put arbitration provisions on “ ‘the same footing’ ” as a contract’s other terms. Scherk v. Alberto-Culver Co., 417 U. S., at 511. Conversely, a narrower interpretation is not consistent with the Act’s purpose, for (unless unreasonably narrowed to the flow of commerce) such an interpretation would create a new, unfamiliar test lying somewhere in a no man’s land between “in commerce” and “affecting commerce,” thereby unnecessarily complicating the law and breeding litigation from a statute that seeks to avoid it.
We recognize arguments to the contrary: The pre-New Deal Congress that passed the Act in 1925 might well have thought the Commerce Clause did not stretch as far as has turned out to be the case. But, it is not unusual for this Court in similar circumstances to ask whether the scope of a statute should expand along with the expansion of the Commerce Clause power itself, and to answer the question affirmatively — as, for the reasons set forth above, we do here. See, e. g., McLain v. Real Estate Bd. of New Orleans, Inc., 444 U. S. 232, 241 (1980); Hospital Building Co. v. Trustees of Rex Hospital, 425 U. S. 738, 743, n. 2 (1976).
Further, the Gwins and Dobsons point to two cases containing what they believe to be favorable language. In Mine Workers v. Coronado Coal Co., 259 U. S. 344 (1922), and then again in Leather Workers v. Herkert & Meisel Trunk Co., 265 U. S. 457 (1924), they say, this Court said that one might draw a distinction between, on the one hand, cases that “involve interstate commerce intrinsically,” and, on the other hand, cases “affecting interstate commerce so directly as to be within the federal regulatory power.” Mine Workers, supra, at 410 (emphasis added); Leather Workers, supra, at 470 (same). One could read these cases as driving a wedge between “involve” and “affecting.” Yet, in these cases, the Court was not construing a statute containing the words “involving commerce.” Furthermore, nothing suggests the drafters of the Act looked to these cases as a source. And, these cases themselves use the phrase “involve . . . intrinsically,” not the word “involving” alone. In sum, these cases do not support respondents’ position.
The Gwins and Dobsons, with far better reason, point to a different case, Bernhardt v. Polygraphic Co. of America, Inc., 350 U. S. 198 (1956). In that case, Bernhardt, a New York resident, had entered into an employment contract (containing an arbitration clause) in New York with Poly graphic, a New York corporation. But, Bernhardt “was to perform” that contract after he “later became a resident of Vermont.” Id., at 199. This Court was faced with the question whether, in light of Erie, a federal court should apply the Federal Arbitration Act in a diversity case when faced with state law hostile to arbitration. 350 U. S., at 200. The Court did not reach that question, however, for it decided that the contract itself did not “involv[e]” interstate commerce and therefore fell outside the Act. Id., at 200-202. Since Congress, constitutionally speaking, could have applied the Act to Bernhardt’s contract, say the parties, how then can we say that the Act’s word “involving” reaches as far as the Commerce Clause itself?
The best response to this argument is to point to the way in which the Court reasoned in Bernhardt, and to what the Court said. It said that the reason the Act did not apply to Bernhardt’s contract was that there was
“no showing that petitioner while performing his duties under the employment contract was working ‘in’ commerce, was producing goods for commerce, or was engaging in activity that affected commerce, within the meaning of our decisions.” Id., at 200-201 (emphasis added) (footnote omitted).
Thus, the Court interpreted the words “involving commerce” as broadly as the words “affecting commerce”; and, as we have said, these latter words normally mean a full exercise of constitutional power. At the same time, the Court’s opinion does not discuss the implications of the “interstate” facts to which the respondents now point. For these reasons, Bernhardt does not require us to narrow the scope of the word “involving.” And, we conclude that the word “involving,” like “affecting,” signals an intent to exercise Congress’ commerce power to the full.
IV
Section 2 applies where there is “a contract evidencing a transaction involving commerce.” 9 U. S. C. § 2 (emphasis added). The second interpretive question focuses on the italicized words. Does “evidencing a transaction” mean only that the transaction (that the contract “evidences”) must turn out, in fact, to have involved interstate commerce? Or, does it mean more?
Many years ago, Second Circuit Chief Judge Lumbard said that the phrase meant considerably more. He wrote:
“The significant question ... is not whether, in carrying out the terms of the contract, the parties did cross state lines, but whether, at the time they entered into it and accepted the arbitration clause, they contemplated substantial interstate activity. Cogent evidence regarding their state of mind at the time would be the terms of the contract, and if it, on its face, evidences interstate traffic . . . , the contract should come within §2. In addition, evidence as to how the parties expected the contract to be performed and how it was performed is relevant to whether substantial interstate activity was contemplated.” Metro Industrial Painting Corp. v. Terminal Constr. Co., 287 F. 2d 382, 387 (1961) (concurring opinion) (second emphasis added).
The Supreme Court of Alabama and several other courts have followed this view, known as the “contemplation of the parties” test. See supra, at 269-270.
We find the interpretive choice difficult, but for several reasons we conclude that the first interpretation (“commerce in fact”) is more faithful to the statute than the second (“contemplation of the parties”). First, the “contemplation of the parties” interpretation, when viewed in terms of the statute’s basic purpose, seems anomalous. That interpretation invites litigation about what was, or was not, “contemplated.” Why would Congress intend a test that risks the very kind of costs and delay through litigation (about the circumstances of contract formation) that Congress wrote the Act to help the parties avoid? See Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 29 (1983) (the Act “calls for a summary and speedy disposition of motions or petitions to enforce arbitration clauses”).
Moreover, that interpretation too often would turn the validity of an arbitration clause on what, from the perspective of the statute’s basic purpose, seems happenstance, namely, whether the parties happened to think to insert a reference to interstate commerce in the document or happened to mention it in an initial conversation. After all, parties to a sales contract with an arbitration clause might naturally think about the goods sold, or about arbitration, but why should they naturally think about an interstate commerce connection?
Further, that interpretation fits awkwardly with the rest of § 2. That section, for example, permits parties to agree to submit to arbitration “an existing controversy arising out of” a contract made earlier. Why would Congress want to risk nonenforceability of this later arbitration agreement (even if fully connected with interstate commerce) simply because the parties did not properly “contemplate” (or write about) the interstate aspects of the earlier contract? The first interpretation, requiring only that the “transaction” in fact involve interstate commerce, avoids this anomaly, as it avoids the other anomalous effects growing out of the “contemplation of the parties” test.
Second, the statute’s language permits the “commerce in fact” interpretation. That interpretation, we concede, leaves little work for the word “evidencing” (in the phrase “a contract evidencing a transaction”) to perform, for every contract evidences some transaction. But, perhaps Congress did not want that word to perform much work. The Act’s history, to the extent informative, indicates that the Act’s supporters saw the Act as part of an effort to make arbitration agreements universally enforceable. They wanted to “get a Federal law” that would “cover” areas where the Constitution authorized Congress to legislate, namely, “interstate and foreign commerce and admiralty.” Joint Hearings 16 (testimony of Julius H. Cohen). They urged Congress to model the Act after a New York statute that made enforceable a written arbitration provision “in a written contract,” Act of Apr. 19,1920, ch. 275, §2,1920 N. Y. Laws 803, 804. Hearing on S. 4213 and S. 4214 before the Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 2 (1923) (testimony of Charles L. Bern-heimer). Early drafts made enforceable a written arbitration provision “in any contract or maritime transaction or transaction involving commerce.” S. 4214, 67th Cong., 4th Sess., §2 (1922) (emphasis added); S. 1005, 68th Cong., 1st Sess. (1923); H. R. 646, 68th Cong., 1st Sess. (1924). Members of Congress, looking at that phrase, might have thought the words “any contract” standing alone went beyond Congress’ constitutional authority. And, if so, they might have simply connected those words with the later words “transaction involving commerce,” thereby creating the phrase that became law. Nothing in the Act’s history suggests any other, more limiting, task for the language.
Third, the basic practical argument underlying the “contemplation of the parties” test was, in Chief Judge Lum-bard’s words, the need to “be cautious in construing the act lest we excessively encroach on the powers which Congressional policy, if not the Constitution, would reserve to the states.” Metro Industrial Painting Corp., supra, at 386 (concurring opinion). The practical force of this argument has diminished in light of this Court’s later holdings that the Act does displace state law to the contrary. See Southland Corp. v. Keating, 465 U. S., at 10-16; Perry v. Thomas, 482 U. S., at 489-492.
Finally, we note that an amicus curiae argues for an “objective” (“reasonable person” oriented) version of the “contemplation of the parties” test on the ground that such an interpretation would better protect consumers asked to sign form contracts by businesses. We agree that Congress, when enacting this law, had the needs of consumers, as well as others, in mind. See S. Rep. No. 536, 68th Cong., 1st Sess., 3 (1924) (the Act, by avoiding “the delay and expense of litigation,” will appeal “to big business and little business alike,... corporate interests [and]... individuals”). Indeed, arbitration’s advantages often would seem helpful to individuals, say, complaining about a product, who need a less expensive alternative to litigation. See, e. g., H. R. Rep. No. 97-542, p. 13 (1982) (“The advantages of arbitration are many: it is usually cheaper and faster than litigation; it can have simpler procedural and evidentiary rules; it normally minimizes hostility and is less disruptive of ongoing and future business dealings among the parties; it is often more flexible in regard to scheduling of times and places of hearings and discovery devices . . .”). And, according to the American Arbitration Association (also an amicus here), more than one-third of its claims involve amounts below $10,000, while another third involve claims of $10,000 to $50,000 (with an average processing time of less than six months). App. to Brief for American Arbitration Association as Amicus Curiae 26-27.
We are uncertain, however, just how the “objective” version of the “contemplation” test would help consumers. Sometimes, of course, it would permit, say, a consumer with potentially large damages claims to disavow a contract’s arbitration provision and proceed in court. But, if so, it would equally permit, say, local business entities to disavow a contract’s arbitration provisions, thereby leaving the typical consumer who has only a small damages claim (who seeks, say, the value of only a defective refrigerator or television set) without any remedy but a court remedy, the costs and delays of which could eat up the value of an eventual small recovery.
In any event, § 2 gives States a method for protecting consumers against unfair pressure to agree to a contract with an unwanted arbitration provision. States may regulate contracts, including arbitration clauses, under general contract law principles and they may invalidate an arbitration clause “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added). What States may not do is decide that a contract is fair enough to enforce all its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. The Act makes any such state policy unlawful, for that kind of policy would place arbitration clauses on an unequal “footing,” directly contrary to the Act’s language and Congress’ intent. See Volt Information Sciences, Inc., 489 U. S., at 474.
For these reasons, we accept the “commerce in fact” interpretation, reading the Act’s language as insisting that the “transaction” in fact “involv[e]” interstate commerce, even if the parties did not contemplate an interstate commerce connection.
V
The parties do not contest that the transaction in this case, in fact, involved interstate commerce. In addition to the multistate nature of Terminix and Allied-Bruce, the termite-treating and house-repairing material used by Allied-Bruce in its (allegedly inadequate) efforts to carry out the terms of the Plan, came from outside Alabama.
Consequently, the judgment of the Supreme Court of Alabama is reversed, and the case is remanded for further proceedings not inconsistent 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:
|
sc_caseoriginstate
|
31
|
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.
AERO MAYFLOWER TRANSIT CO. v. BOARD OF RAILROAD COMMISSIONERS OF MONTANA et al.
No. 39.
Argued October 15, 1947.
Decided December 8, 1947.
Edmond G. Toomey argued the cause and filed a brief for appellant.
Clarence Hanley, Assistant Attorney General of Montana, argued the cause for appellees. With him on the brief were R. V. Bottomly, Attorney General, and Edwin S. Booth.
Mr. Justice Rutledge
delivered the opinion of the Court.
Again we are asked to decide whether state taxes as applied to an interstate motor carrier run afoul of the commerce clause, Art. I, § 8, of the Federal Constitution.
Two distinct Montana levies are questioned. Both are imposed by that state’s Motor Carriers Act, Rev. Codes Mont. (1935) §§ 3847.1-3847.28. One is a flat tax of $10 for each vehicle operated by a motor carrier over the state’s highways, payable on issuance of a certificate or permit, which must be secured before operations begin, and annually thereafter. § 3847.16 (a). The other is a quarterly fee of one-half of one per cent of the motor carrier’s “gross operating revenue,” but with a minimum annual fee of $15 per vehicle for class C carriers, in which group appellant falls. § 3847.27. Each tax is declared expressly to be laid “in consideration of the use of the highways of this state” and to be “in addition to all other licenses, fees and taxes imposed upon motor vehicles in this state . . . .”
Prior to July 1, 1941, the fees collected pursuant to §§ 3847.16 (a) and 3847.27 were paid into the state treasury and credited to “the motor carrier fund.” After that date, by virtue of Mont. Laws, 1941, c. 14, § 2, they were allocated to the state’s general fund.
Appellant is a Kentucky corporation, with its principal offices in Indianapolis, Indiana. Its business is exclusively interstate. It consists in transporting household goods and office furniture from points in one state to destinations in another. Appellant does no intrastate business in Montana. The volume of its interstate business there is continuous and substantial, not merely casual or occasional. It holds a certificate of convenience and necessity issued by the Interstate Commerce Commission, pursuant to which its business in Montana and elsewhere is conducted.
In 1935 appellant received a class C permit to operate over Montana highways, as required by state law. Until 1937, apparently, it complied with Montana requirements, including the payment of registration and license plate fees for its vehicles operating in Montana and of the 54 per gallon tax on gasoline purchased there. However, in 1937 and thereafter appellant refused to pay the flat $10 fee imposed by § 3847.16 (a) and the $15 minimum “gross revenue” tax laid by § 3847.27. In consequence, after hearing on order to show cause, the appellee board in 1939 revoked the 1935 permit and brought this suit in a state court to enjoin appellant from further operations in Montana.
Upon appellant’s cross-complaint, the trial court issued an order restraining the board from enforcing the “gross revenue” tax laid by § 3847.27. But at the same time it enjoined appellant from operating in Montana until it paid the fees imposed by § 3847.16 (a). On appeal the state supreme court held both taxes applicable to interstate as well as intrastate motor carriers and construed the term “gross operating revenue” in § 3847.27 to mean “gross revenue derived from operations in Montana.” It then sustained both taxes as against appellant’s constitutional objections, state and federal. Accordingly, it reversed the trial court’s judgment insofar as the “gross revenue” tax had been held invalid, but affirmed the decision relating to the flat $10 tax. 119 Mont. 118, 172 P. 2d 452.
We put aside at the start appellant’s suggestion that the Supreme Court of Montana has misconstrued the state statutes and therefore that we should consider them, for purposes of our limited function, according to appellant’s view of their literal import. The rule is too well settled to permit of question that this Court not only accepts but is bound by the construction given to state statutes by the state courts. Accordingly, we accept the state court’s rulings, insofar as they are material, that the two sections apply alike to interstate and intrastate commerce and that “gross operating revenue” as employed in § 3847.27 comprehends only such revenue derived from appellant’s operations within Montana, not outside that state.
Moreover, since Montana has not demanded or sought to enforce payment by appellant of more than the flat $15 minimum fee for class C carriers under § 3847.27, we limit our consideration of the so-called “gross revenue” tax to that fee. This too is in accordance with the state supreme court’s declaration: “Even if it be admitted that the manner of arriving at a sound basis upon which the tax on gross revenue [should be calculated] is not provided by the statute, a contention to which we do not agree, no difficulty would arise in putting into effect the minimum fee of $15.00 required for each company vehicle operated within the state.” Although the state court did not concede that the statute comprehended no workable or sound basis for calculating the tax above the minimum, we take this statement as a clear declaration that it would sustain the minimum charge even if for some reason the amount of the tax above the minimum would have to fall.
With the issues thus narrowed, we have, in effect, two flat taxes, one for $10, the other for $15, payable annually upon each vehicle operated on Montana highways in the course of appellant’s business, with each tax expressly declared to be in addition to all others and to be imposed “in consideration of the use of the highways of this state.”
Neither exaction discriminates against interstate commerce. Each applies alike to local and interstate operations. Neither undertakes to tax traffic or movements taking place outside Montana or the gross returns from such movements or to use such returns as a measure of the amount of the tax. Both levies apply exclusively to operations wholly within the state or the proceeds of such operations, although those operations are interstate in character.
Moreover, it is not material to the validity of either tax that the state also imposes and collects the vehicle registration and license fee and the gallonage tax on gasoline purchased in Montana. The validity of those taxes neither is questioned nor well could be. Hendrick v. Maryland. 235 U. S. 610; Aero Transit Co. v. Georgia Comm’n, 295 U. S. 285; Sonneborn Bros. v. Cureton, 262 U. S. 506; Edelman v. Boeing Air Transp., 289 U. S. 249. Nor does their exaction have any significant relationship to the imposition of the taxes now in question. Dixie Ohio Co. v. Comm’n, 306 U. S. 72, 78; Interstate Busses Corp. v. Blodgett, 276 U. S. 245, 251. They are imposed for distinct purposes and the proceeds, as appellant concedes, are devoted to different uses, namely, the policing of motor traffic and the maintenance of the state’s highways.
Concededly the proceeds of the two taxes presently involved are not allocated to those objects. Rather they now go into the state’s general fund, subject to appropriation for general state purposes. Indeed this fact, in appellant’s view, is the vice of the statute. But in that view appellant misconceives the nature and legal effect of the exactions. It is far too late to question that a state, consistently with the commerce clause, may lay upon motor vehicles engaged exclusively in interstate commerce, or upon those who own and so operate them, a fair and reasonable nondiscriminatory tax as compensation for the use of its highways. Hendrick v. Maryland, supra; Clark v. Poor, 274 U. S. 554; Aero Transit Co. v. Georgia Comm’n, supra; Morf v. Bingaman, 298 U. S. 407; Dixie Ohio Co. v. Comm’n, supra; Clark v. Paul Gray, Inc., 306 U. S. 583; cf. S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177. Moreover “common carriers for hire, who make the highways their place of business, may properly be charged an extra tax for such use.” Clark v. Poor, supra at 557.
The present taxes on their face are exacted “in consideration of the use of the highways of this state,” that is, they are laid for the privilege of using those highways. And the aggregate amount of the two taxes taken together is less than the amount of similar taxes this Court has heretofore sustained. Cf. Dixie Ohio Co. v. Comm’n, supra; Aero Transit Co. v. Georgia Comm’n, supra. The state builds the highways and owns them. Motor carriers for hire, and particularly truckers of heavy goods, like appellant, make especially arduous use of roadways, entailing wear and tear much beyond that resulting from general indiscriminate public use. Morf v. Bingaman, supra at 411. Although the state may not discriminate against or exclude such interstate traffic generally in the use of its highways, this does not mean that the state is required to furnish those facilities to it free of charge or indeed on equal terms with other traffic not inflicting similar destructive effects. Cf. Clark v. Poor, supra; Morf v. Bingaman, supra at 411. Interstate traffic equally with intrastate may be required to pay a fair share of the cost and maintenance reasonably related to the use made of the highways.
This does not mean, as appellant seems to assume, that the proceeds of all taxes levied for the privilege of using the highways must be allocated directly and exclusively to maintaining them. Clark v. Poor, supra at 557; Morf v. Bingaman, supra at 412. That is true, although this Court has held invalid, as forbidden by the commerce clause, certain state taxes on interstate motor carriers because laid “not as compensation for the use of the highways but for the privilege of doing the interstate bus business.” Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 186; cf. McCarroll v. Dixie Lines, 309 U. S. 176, 179. Those cases did not hold that all state exactions for the privilege of using the state’s highways are valid only if their proceeds are required to go directly and exclusively for highway maintenance, policing and administration. Both before and after the Interstate Transit decision this Court has sustained state taxes expressly laid on the privilege of using the highways, as applied to interstate motor carriers, declaring in each instance that it is immaterial whether the proceeds are allocated to highway uses or others. Clark v. Poor, supra at 557; Morf v. Bingaman, supra at 412.
Appellant therefore confuses a tax “assessed for a proper purpose and . . . not objectionable in amount,” Clark v. Poor, supra at 557, that is, a tax affirmatively laid for the privilege of using the state’s highways, with a tax not imposed on that' privilege but upon some other such as the privilege of doing the interstate business. Though necessarily related, in view of the nature of interstate motor traffic, the two privileges are not identical, and it is useless to confuse them or to confound a tax for the privilege of using the highways with one the proceeds of which are necessarily devoted to maintaining them. Whether the proceeds of a tax are used or required to be used for highway maintenance “may be of significance,” as the Court has said, “when the point is otherwise in doubt, to show that the fee is in fact laid for that purpose and is thus a charge for the privilege of using the highways. Interstate Transit, Inc. v. Lindsey, supra. But where the manner of the levy, like that prescribed by the present statute, definitely identifies it as a fee charged for the grant of the privilege, it is immaterial whether the state places the fees collected in the pocket out of which it pays highway maintenance charges or in some other.” Morf v. Bingaman, supra at 412.
The exactions in the present case fall clearly within the rule of Morf v. Bingaman and its predecessors in authority, and therefore, like that case, outside the decisions in the Interstate Transit and like cases. Both taxes are levied “in consideration of the use of the highways of this state,” that is, as compensation for their use, and bear only on the privilege of using them, not on the privilege of doing the interstate business. Moreover, the flat $10 fee laid by § 3847.16 (a) is further identified as one on the privilege of use by the fact that “unlike the general tax in Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, the levy of which was unrelated to the use of the highways, grant of the privilege of their use is by the present statute made conditional upon payment of the fee.” Morf v. Bingaman, supra at 410.
The minimum so-called “gross revenue” fee, on the other hand, is technically conditioned on the receipt of such revenue from the operations within Montana. But the flat minimum of $15 annually, which is all we have before us in the shape the case has taken for the purposes of decision here, has none of the alleged vices characteristic of gross income taxes heretofore held to vitiate such taxes laid by the states on interstate commerce. And appellant has advanced no tenable basis in rebuttal of the legislative declaration that this tax too is exacted in consideration of the use of the state’s highways, i. e., for the privilege of using them, not for that of doing the interstate business. Here, as in Morf v. Bingaman, “there is ample support for a legislative determination that the peculiar character of this traffic involves a special type of use of the highways,” with enhanced wear, tear and hazards laying heavier burdens on the state for maintenance and policing than other types of traffic create. 298 U. S. 407, 411. It is to compensate for these burdens that the taxes are imposed, and appellant has not sustained its burden, Clark v. Paul Gray, Inc., supra at 599, and authorities cited, of showing that the levies have no reasonable relation to that end.
It is of no consequence that the state has seen fit to lay two exactions, substantially identical, rather than combine them into one, or that appellant pays other taxes which in fact are devoted to highway maintenance. For the state does not exceed its constitutional powers by imposing more than one form of tax. Interstate Busses Corp. v. Blodgett, supra; Dixie Ohio Co. v. Comm’n, supra. And, as we have said, the aggregate amount of both taxes combined is less than that of taxes heretofore sustained. In view of these facts there is not even semblance of substance to appellant’s contention that the taxes are excessive.
Neither is there merit in its other arguments, which we have considered, including those urging due process and equal protection grounds for invalidating the levies.
The judgment of the Supreme Court of Montana is
Affirmed.
The section was enacted originally as Mont. Laws, 1931, c. 184, §16. Textually it is as follows: "(a) In addition to all of the licenses, fees or taxes imposed upon motor vehicles in this state, and in consideration of the use of the public highways of this state, every motor carrier, as defined in this act, shall, at the time of the issuance of a certificate and annually thereafter, on or between the first day of July and the fifteenth day of July, of each calendar year, pay to the board of railroad commissioners of the state of Montana the sum of ten dollars ($10.00), for every motor vehicle operated by the carrier over or upon the public highways of this state. . . .”
In further relation to issuance of the permit, see note 5.
This section originally was Mont. Laws, 1935, c. 100, § 2. It reads as follows: “In addition to all other licenses, fees and taxes imposed upon motor vehicles in this state and in consideration of the use of the highways of this state, every motor carrier holding a certificate of public convenience and necessity issued by the public service commission, shall between the first and fifteenth days of January, April, July and October of each year, file with the public service commission a statement showing the gross operating revenue of such carrier for the preceding three months of operation, or portion thereof, and shall pay to the board a fee of one-half of one per cent of the amount of such gross operating revenue; provided, however, that the minimum annual fee which shall be paid by each class A and class B carrier for each vehicle registered and/or operated under the provisions of the motor carrier act shall be thirty dollars ($30.00) and the minimum annual fee which shall be paid by each class C carrier for each vehicle registered and/or operated under the motor carrier act shall be fifteen dollars ($15.00).”
Section 3847.2, Rev. Codes Mont. (1935), contains the definitions of the three classes of carriers.
The moneys in the motor carrier fund were subject to appropriation for use in supervision and regulation of many activities other than those connected with the public highways. See Rev. Codes Mont. (1935), §§ 3847.17, 3847.28; and cf. note 13.
Appellant’s answer and cross-complaint set forth statistics concerning its use of Montana highways during the years 1937, 1938 and 1939. The figures show appellant’s equipment operating on Montana highways during 227 days in 1937; 385 trucking days in 1938; and 405 trucking days in 1939. See also note 6.
The statute was Mont. Laws, 1931, c. 184, § 23, now Rev. Codes Mont. (1935), §3847.23. The section applied the act of which it was a part to interstate and foreign commerce “insofar as such-application may be permitted under the provisions of” the Federal Constitution, treaties and acts of Congress, but expressly exempted interstate carriers from making “any showing of public convenience and necessity” in order to secure the certificate or permit.
These taxes were imposed separately from the two involved in this case. Appellant’s brief states the registration and license plate fees increased from $660.50 in 1937 to $1,212.50 in 1938 and to $1,630.50 in 1939. The gasoline tax increased from $745.30 in 1937 to $1,257.90 in 1938 and $1,649.98 in 1939. The gallonage tax, though ultimately borne by the consumer, was laid on the sale and collected from the dealer.
It should be noted that “the board of railroad commissioners,” as used in § 3847.16 (a), and “the public service commission,” as used in § 3847.27, designate a single body, invested with regulatory power over various public utilities in addition to motor carriers, e. g., railroads, common carriers of oil, etc. By Rev. Codes Mont. (1935), § 3880, “The board of railroad commissioners . . . shall be ex-officio the public service commission hereby created . . . .” The two terms were said by the Montana Supreme Court in this case to be “used interchangeably.” 119 Mont. 118, 136, 172 P. 2d 452, 461.
This judicial construction was embodied in an amendment to the section made by Mont. Laws, 1947, c. 73, § 2.
Louisiana ex rel. Francis v. Resweber, 329 U. S. 459; Huddleston v. Dwyer, 322 U. S. 232; Minnesota v. Probate Court, 309 U. S. 270; Morehead v. N. Y. ex rel. Tipaldo, 298 U. S. 587; cf. Erie R. Co. v. Tompkins, 304 U. S. 64.
Acting not only in the view that statutes are presumptively constitutional and, if necessary, are to be so construed as to make them so, the court noted that § 3847.16 (b) expressly provides that, when service “is rendered partly in this state and partly in an adjoining state or foreign country,” carriers “shall comply with the provisions of this act” concerning “payment of compensation” and making reports by showing “the total business performed within the limits of this state.” (Emphasis added.) Accordingly it held that §§ 3847.27 and 3847.16 should be read together and the limitation of § 3847.16 (b) “within the limits of this state” thus became a part of § 3847.27 as well as § 3847.16 (a). 119 Mont. 118, 134, 172 P. 2d 452, 460.
Appellant’s vice president and general manager, Wheating, testified that for purposes of applying § 3847.27 he had calculated, for each of the years 1939 through 1942, “the [gross] income for that operation of the load miles operated in Montana by using an average income per mile figure based upon the probable load factor we would have had in Montana.” (Emphasis added.) On this basis the amount of the tax as calculated at one-half of one per cent quarterly was substantially below the statutory minimum for each of the four years. See note 19. These figures apparently were reported to and accepted by the board as the basis for its demands upon the taxpayer for the flat $15 minimum annual tax.
119 Mont. 118, 134, 172 P. 2d 452, 460. Appellant had argued, as it does here, that even if the “gross revenue” tax is limited to revenue derived from operations in Montana, it is nevertheless invalid for want of any prescribed method on the face of the statute for ascertaining or calculating the tax. The state court held that the statute by necessary implication authorized the board to “adopt any fair and reasonable mode of enforcement designed to effectuate the purposes of the Act.” 119 Mont. 118, 135, 172 P. 2d 452, 461. In view of our limitation of the question before us, as stated in the text, we need not express opinion concerning this ruling or any tax above the minimum calculated in accordance with it. Cf. note 11.
In another connection the state supreme court adverted to the separability clause contained in § 3847.24 of the statute, though not referring to it expressly in relation to the statement quoted in the text.
See note 6 and text. It is admitted by the pleadings that the proceeds of the vehicle registration and license tax and the gallonage tax are allocated to the construction, repair and maintenance of state highways.
The board concedes in the brief filed here that the state supreme court was in error in the statement that the revenue from the two taxes presently in issue “is devoted to the building, repairing and policing of such highways . . . .” 119 Mont. 118, 138, 172 P. 2d 452, 462.
See note 3 and text.
It is immaterial that the state receives federal aid for state road construction, a fact on which appellant places some emphasis.
See note 18 infra and text.
In Clark v. Poor, the Court stated: “Since the tax is assessed for a proper purpose and is not objectionable in amount, the use to which the proceeds are put is not a matter which concerns the plaintiffs.” 274 U.S. 554,557.
Appellant claims that the $15 minimum fee is unreasonable since it is roughly ten times greater than the tax that would be required if the percentage standard provided in the statute were applied. To accept appellant’s position would mean that a state could never impose a minimum fee, but would have to adjust its taxes to the inevitable variations in the use of the highways made by various carriers. The Federal Constitution does not require the state to elaborate a system of motor vehicle taxation which will reflect with exact precision every gradation in use. In return for the $15 fee appellant can do business grossing $3,000 per vehicle annually for operations on Montana roads. Appellant was not wronged by its failure to make the full use of the highways permitted. Aero Transit Co. v. Georgia Comm’n, 295 U. S. 285; Morf v. Bingaman, 298 U. S. 407; cf. Kane v. New Jersey, 242 U. S. 160.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_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
Elbert C. LEACH, Plaintiff-Appellant, v. ROCKWOOD & CO., Defendant-Appellee.
No. 16517.
United States Court of Appeals Seventh Circuit.
July 10, 1968.
Joseph G. Werner, Madison, Wis., Arthur H. Seidel, Allan W. Leiser, Milwaukee, Wis., for appellant.
Joseph P. House, Jr., Henry C. Fuller, Jr., Walter S. Davis, Milwaukee, Wis., for appellee.
Before HASTINGS, FAIRCHILD and CUMMINGS, Circuit Judges.
HASTINGS, Circuit Judge.
Elbert Leach appeals from an adverse judgment entered June 29, 1967, following a bench trial, in his patent infringement action against appellee Rockwood & Co. The trial court held the patent in suit invalid and not infringed.
The patent in suit, Patent No. 2,580,-306, was issued to appellant and others December 25, 1951 and covers an automatic silo unloader. Nine of the patent claims were involved in the suit and all were held invalid and not infringed. Leach v. Rockwood & Company, D.C.W.D. Wis., 273 F.Supp. 779 (1967). Since the trial of this case we have considered eight of these claims in a companion case and held them invalid. Leach v. Badger Northland, Inc., 7 Cir., 385 F.2d 193 (1967). Appellant does not press his appeal as to those eight claims.
The sole claim in issue is Claim 8, which covers:
“A silo unloader, for installation in a silo above the surface of the silage, comprising a vertically movable spider-like frame having a center portion and three horizontally radiating arms, which arms are adapted to engage with the sides of the silo to center the frame within the silo, three suspension cables connected to the arms, which cables are adapted to extend vertically over pulleys mounted above the same in the top of the silo and to be connected together beyond the pulleys whereby to support the frame against substantial tilting and provide in effect a single raising and lowering cable for the frame operable from a point outside the silo, said cables also acting to support the weight of the frame and to restrain the frame against rotation while allowing the frame to turn a part of a revolution, an arm journalled on a vertical axis in the center portion of the frame and extending horizontally beneath the frame for rotation in a horizontal plane, means associated with said last mentioned arm for loosening the silage and moving the loosened silage inwardly toward the center portion of the frame, means mounted on the frame for rotating said arm, and means also mounted on the frame for conducting the loosened silage to a point outside the silo, said conducting means including a portion which extends laterally between two of the suspension cables and is pivoted for horizontal movement relative to the frame.
The alleged infringing device is ap-pellee’s Volumatic silo unloader, which appellee’s predecessor in interest began producing in 1957. The cutting means of the Volumatic is an auger mounted under and aligned with a horizontal cutter arm. The cutter arm measures approximately three-quarters the diameter of the silo in which the unloader is installed, and the auger measures slightly longer than the radius of the silo. The outer ends of the arm and the auger are in close proximity to the silo wall. At the inner end of the auger, slightly past the center of the silo, a fan casing intersects the cutter arm. A motor is mounted on the cutter arm beyond the casing. At the outer end of the cutter arm two rubber wheels engage the silo wall, and at the arm s inner end a spring-loaded arm extends to the opposite silo wall. Another arm, attached to the cutter arm near the fan casing, extends laterally at an angle of ninety degrees to the silo wall. Rubber wheels are mounted at the ends of both extension arms.
The fan casing on the Volumatic opens upwardly into a short duct which is jour-naled on a frame. The frame consists of three radially-extending beams joined together to form a small equilateral triangle at the center of the frame. Mounted on struts below the frame is a large circular track of a diameter a few feet less than that of the silo. Perforations in the track mesh with the teeth on a gear mounted horizontally on top of the cutter arm near its outer end. The gear is attached by means of a drive shaft to the motor on the cutter arm.
A discharge duct is journaled above the frame and aligned with the short duct atop the fan casing. It curves upwardly and laterally and extends slightly beyond the wall of the silo,
Cables are attached to the ends of the three arms of the frame and extend up t0 individual pulleys affixed to the silo waH near the top of the silo. The pulleys form the vertices of an imaginary equilateral triangle. The three cables are joined together beyond the pulleys and extend down to a winch installed at ground level outside the silo,
In operation the Volumatic is lowered in the silo by means of the cables and winch until the auger rests on the silage bed. The motor on the cutter arm powers the gear mounted near the outer end of the arm. The gear engages the perforations in the circular track attached below the frame and moves the cutter arm around the track.
As the cutter arm moves around the track across the silage bedj the auger, powered by the motor, loosens the silage and moves ¡t toward the fan casing. The gjlage is forced into the fan casing through a rectangular opening. The fan, mounted vertically and powered by the motor, pneumatically and mechanically picks up the silage and propels it upwardjy through the duct and discharge duct, which protrudes through the vertical opening in the side of the silo The silage falls to a receptacle on the ground.
The axis on which the auger of the Volumatic rotates is the axis of the silo, The outer end of the auger is held close to the wall of the silo by the spring-loaded extension arm at the opposite end of the cutter arm and by the reverse thrust of the auger itself. The two rubber wheels at the outer end of the cutter arm ride along the silo wall and keep the auger from striking it. The lateral extension arm mounted perpendicular to the cutter arm also engages the silo wall and prevents the unloader from swaying.
The ducts which convey the silage from the fan to the outside of the silo pass through the center portion of the frame and connect with the opening in the top of the fan casing. Since the fan casing is off-center relative to the center of the silo, the frame is off-center and its diameter is less than the diameter of the silo. When the unloader is operating, the frame swings in an orbit within the silo. Its ends do not engage the side of the silo.
VALIDITY
The essence of Claim 8 in suit is a three-point suspension system utilizing a three-armed frame suspended from cables, which system keeps the unloader level and restrains the frame from rotation, while allowing a limited amount of reverse rotation to overcome resistance to the cutting means. According to the claim and appellant’s argument, when the cutting means encounter resistance from frozen or compacted silage the torque produced by the driving means will rotate the frame counter to the normal rotation of the cutter arm. This rotation will twist the cables, lifting the unloader up and. away from the silage bed. The weight of the unloader will cause the cables to straighten, dropping the un-loader onto the silage bed, and this momentum will overcome the resistance to forward movement of the cutter arm.
The trial court concluded that the patent in suit did not satisfy the statutory requirement of nonobviousness. 35 U.S.C.A. § 103. The court then stated:
“The conclusion that the patent in suit does not satisfy the nonobviousness requirement of 35 U.S.C. § 103 applies to all the claims involved in this action. As to claim 8, it appears that the most pertinent prior art was cited to the patent examiner, and as to that claim a presumption of patent-ability applies. However, this court concludes that the Burgess patent contains all the essential elements of claim 8 and therefore claim 8 should not have been allowed.” 273 F.Supp. at 791.
We interpret the court’s language as a finding that Claim 8 is invalid both for obviousness and for anticipation by Burgess Patent No. 1,233,308. Before this court appellee has all but conceded appellant’s argument that the trial court erred in finding anticipation by Burgess.
We agree with appellant. Burgess discloses a silo unloader suspended by a single cable and restrained against rotation by a bucket elevator affixed to the frame and extended through the vertical opening in the silo. The trial court apparently mistook four struts rigidly attached to the frame for a four-point suspension system. Burgess clearly does not anticipate the three-point flexible suspension system of the claim in suit. The court’s finding of invalidity must be sustained, if at all, on the ground of obviousness.
The statutory presumption of patent validity conferred by 35 U.S.C.A. § 282 is only overcome by clear and cogent evidence of invalidity. Ortman v. Maass, 7 Cir., 391 F.2d 677 (1968); King-Seeley Thermos Co. v. Tastee Freez Industries, Inc., 7 Cir., 357 F.2d 875, cert. denied, 385 U.S. 817, 87 S.Ct. 38, 17 L.Ed.2d 56 (1966); Devex Corporation v. General Motors Corporation, 7 Cir., 321 F.2d 234 (1963), cert. denied, 375 U.S. 971, 84 S.Ct. 490, 11 L.Ed.2d 418 (1964). The presumption is stronger when the most pertinent prior art patents were cited by the Patent Office. Schnell v. Allbright-Nell Company, 7 Cir., 348 F.2d 444 (1965), cert. denied, 383 U.S. 934, 86 S.Ct. 1062, 15 L.Ed.2d 851 (1966); Ekstrom-Carlson & Co. v. Onsrud Machine Works, Inc., 7 Cir., 298 F.2d 765, cert. denied, 369 U.S. 886, 82 S.Ct. 1160, 8 L.Ed.2d 287 (1962); Hunt v. Armour & Co., 7 Cir., 185 F.2d 722 (1950).
The most pertinent prior art patents are Keys Patent No. 1,479,990 and Seidel Patent No. 844,693. Keys discloses a silo unloader with a circular frame suspended by three cables that extend through pulleys at the top of the silo to a winch. Shoes on the frame engage three vertical rails on the silo wall to restrain the frame from rotation. The file wrapper of the patent in suit shows that the claim in suit was initially rejected by the Patent Office partially on the ground that Keys discloses the expedient of suspending the frame on three cables. The claim was allowed after appellant argued the novelty of the limited reverse rotation feature.
Seidel discloses a portable leach-clearing apparatus for cleaning leach tanks. The frame of the apparatus is suspended by two sets of cables from trolleys which travel on an overhead rail system. Shoe extensions on the frame engage vertical channels in the leach tanks to prevent rotation of the frame. Seidel was cited by the Patent Office.
Appellant recognizes that the suspension system of the claim in suit differs from that of Keys and Seidel only in the elimination of the vertical rails or channels used to restrain rotation, stating:
“The use of several flexible, hanging cables to restrain rotation was unobvious, for their inherent flexibility suggests an inability to hold a frame in position. The inventors’ concept of utilizing cables for the purpose, while at the same time taking advantage of some limited reverse rotation to aid silage cutting action was highly ingenious. They combined two directly opposed concepts, i. e. restraint of rotation and limited permissive rotation, and the mixture of such cross purposes was an act of the ingenuity of the inventor.”
We conclude that the elimination of the rails, permitting limited frame rotation, was an obvious expedient. The evidence of obviousness is clear and cogent, and the claim in suit is, for that reason, invalid. The suggested hypothesis that flexible cables could not hold the frame against rotation conflicts with natural laws of gravity, friction and vectors — all of which were well-known before appellant’s invention. One skilled in the art would have known of these forces, as would most who, as children, experimented in a playground swing. He would have known that the weight of the unloader would tend to counteract the torque produced by the driving means and drive the cutting means through the silage. As a corollary, he would have known that if the forward movement of the cutter arm were stopped by the mass of silage, the torque produced by the driving means would rotáte the frame and the unloader would be lifted up and away from the silage only to be forced down into the silage with increased momentum by the force of gravity.
The trial court correctly found the patent invalid for obviousness.
INFRINGEMENT
Although we might affirm the judgment below on the sole ground of invalidity, we also consider the infringement issue, assuming for that purpose the validity of the patent claim in suit.
The infringement issue turns on a single element of Claim 8: “a vertically movable spider-like frame having a center portion and three horizontally radiating arms, which arms are adapted to engage with the sides of the silo to center the frame within the silo * * It is not questioned that the Volumatic responds to the remainder of Claim 8.
The test of infringement is whether the device claimed in the patent and the alleged infringing device perform substantially the same function in substantially the same way to obtain the same results. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950); Ortman v. Maass, supra; Elgen Manufacturing Corp. v. Ventfabrics, Inc., 7 Cir., 314 F.2d 440 (1963).
The trial court found that the word “center” in Claim 8 refers to the geometric center of the silo, that the Volu-matic does not respond to the centering requirement and that the off-center location of the frame on the Yolumatic is essential to its operation, not merely accidental or incidental.
The frame of the patent in suit has two principal functions. First, it serves as a stable platform against which the driving means can develop the torque to propel the cutter arm. Second, it serves as a guide for the unloader, holding the pivot of the cutter arm at the geometric center of the silo so that the cutting means will cover the entire surface of silage in each revolution without striking the silo wall. These functions are clearly apparent when the claim in suit is read in light of the specifications, as it may be. Cf. Ortman v. Maass, supra; Oregon Saw Chain Corp. v. McCulloch Motors Corp., 9 Cir., 323 F.2d 758 (1963), cert. denied, 377 U.S. 915, 84 S.Ct. 1180, 12 L.Ed.2d 186 (1964); Minnesota Mining and Mfg. Co. v. Technical Tape Corp., 7 Cir., 309 F.2d 55 (1962), cert. denied, 372 U.S. 942, 83 S.Ct. 936, 9 L.Ed.2d 968 (1963).
The Volumatic frame performs the same stabilizing function performed by the frame of the patent in suit. Although it swings in an orbit within the silo during operation, it resists rotation, thereby permitting the driving means to develop sufficient torque to propel the cutter arm.
The Volumatic frame does not perform the guiding function of appellant’s frame. That function is performed on the Volu-matie by the cutter arm and its two extension arms. The spring-loaded extension arm keeps the outer end of the auger close to the silo wall for a close cut, while the rubber wheels at the outer end of the cutter arm protect the wall. The laterally-extending arm keeps the cutter arm on the diameter of the silo. This guidance method permits the cutter arm to follow the wall of out-of-round silos, cutting the silage that would be missed if the arm were rigidly held to the central axis of the silo. The frame on the Volumatic follows the cutter arm around the silo.
Appellee’s transfer of the guidance function from the frame to the cutter arm was not an idle modification or a mere change of form to avoid infringement. It represents an improvement on frame-centered unloaders, permitting a closer cut in out-of-round silos. Furthermore, when appellee and other manufacturers began building unloaders with fan casings located under the frame with the cutting means, centered frames became impractical. Apparently the fan casing must be located under the center of the frame for the discharge ducts to function properly. Therefore, if the frame were centered, the fan casing would rest at the center of the silage bed. There would be no way to remove the core of silage under the casing and the downward movement of the unloader would be obstructed. To avoid this appellee designed the Volumatic with the fan casing and frame off-center.
We conclude that the frame claimed in the patent in suit and the Volumatic frame have substantially different functions. We hold the patent in suit is therefore not infringed. The trial court’s findings are not clearly erroneous and the legal criteria it applied are correct.
The judgment of the district court holding Claim 8 of the patent in suit to be invalid and not infringed is affirmed.
Affirmed.
. When the silo is filled, the vertical opening is closed off by a series of removable panels. As the silage is removed, panels above the silage floor are removed.
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_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION v. HALEY
No. 02-1824.
Argued March 2, 2004
Decided May 3, 2004
R. Ted Cruz, Solicitor General of Texas, argued the cause for petitioner. With him on the briefs were Greg Abbott, Attorney General, Barry R. McBee, First Assistant Attorney General, and Danica L. Milios, Assistant Solicitor General.
Matthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Wray, and Deputy Solicitor General Dreeben.
Eric M. Albritton, by appointment of the Court, 540 U. S. 1044, argued the cause for respondent. With him on the brief was Jeffrey L. Bleich.
A brief of amici curiae urging reversal was filed for the State of Illinois et al. by Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Linda D. Woloshin and Domenica A. Osterberger, Assistant Attorneys General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Terry Goddard of Arizona, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Patrick J. Crank of Wyoming.
Briefs of amici curiae urging affirmance were filed for Zachary W. Carter et al. by James Orenstein and Alison Tucher; and for James S. Lieb-man et al. by Edward C. DuMont.
Justice O’Connor
delivered the opinion of the Court.
Out of respect for finality, comity, and the orderly administration of justice, a federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default. We have recognized a narrow exception to the general rule when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense or, in the capital sentencing context, of the aggravating circumstances rendering the inmate eligible for the death penalty. Murray v. Carrier, 477 U. S. 478 (1986); Sawyer v. Whitley, 505 U. S. 333 (1992). The question before us is whether this exception applies where an applicant asserts “actual innocence” of a noncapital sentence. Because the District Court failed first to consider alternative grounds for relief urged by respondent, grounds that might obviate any need to reach the actual innocence question, we vacate the judgment and remand.
I
In 1997, respondent Michael Wayne Haley was arrested after stealing a calculator from a local Wal-Mart and attempting to exchange it for other merchandise. Respondent was charged with, and found guilty at trial of, theft of property valued at less than $1,500, which, because respondent already had two prior theft convictions, was a “state jail felony” punishable by a maximum of two years in prison. App. 8; Tex. Penal Code Ann. § 31.03(e)(4)(D) (Supp. 2004). The State also charged respondent as a habitual felony offender. The indictment alleged that respondent had two prior felony convictions and that the first — a 1991 conviction for delivery of amphetamine — “became final prior to the commission” of the second — a 1992 robbery. App. 9. The timing of the first conviction and the second offense is significant: Under Texas’ habitual offender statute, only a defendant convicted of a felony who “has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final,... shall be punished for a second-degree felony.” § 12.42(a)(2) (emphasis added). A second degree felony carries a minimum sentence of 2 and a maximum sentence of 20 yeárs in prison. § 12.33(a) (2003).
Texas provides for bifurcated trials in habitual offender cases. Tex. Code Crim. Proc. Ann., Art. 37.07, § 3 (Vernon Supp. 2004). If a defendant is found guilty of the substantive offense, the State, at a separate penalty hearing, must prove the habitual offender allegations beyond a reasonable doubt. Ibid. During the penalty phase of respondent’s trial, the State introduced records showing that respondent had been convicted of delivery of amphetamine on October 18,1991, and attempted robbery on September 9,1992. The record of the second conviction, however, showed that respondent had committed the robbery on October 15, 1991— three days before his first conviction became final. Neither the prosecutor, nor the defense attorney, nor the witness tendered by the State to authenticate the records, nor the trial judge, nor the jury, noticed the 3-day discrepancy. Indeed, the defense attorney chose not to cross-examine the State’s witness or to put on any evidence.
The jury returned a verdict of guilty on the habitual offender charge and recommended a sentence of I6V2 years; the court followed the recommendation. Respondent appealed. Appellate counsel did not mention the 3-day discrepancy nor challenge the sufficiency of the penalty-phase evidence to support the habitual offender enhancement. The State Court of Appeals affirmed respondent’s conviction and sentence; the Texas Court of Criminal Appeals refused respondent’s petition for discretionary review.
Respondent thereafter sought state postconviction relief, arguing for the first time that he was ineligible for the habitual offender enhancement based on the timing of his second conviction. App. 83, 87-88. The state habeas court refused to consider the merits of that claim because respondent had not raised it, as required by state procedural law, either at trial or on direct appeal. Id., at 107, 108. The state habeas court rejected respondent’s related ineffective assistance of counsel claim, saying only that “counsel was not ineffective” for failing to object to or to appeal the enhancement. Id., at 108. The Texas Court of Criminal Appeals summarily denied respondent’s state habeas application. Id., at 109.
In August 2000, respondent filed a timely pro se application for a federal writ of habeas corpus pursuant to 28 U. S. C. § 2254, renewing his sufficiency of the evidence and ineffective assistance of counsel claims. App. 110, 118-119; id., at 122, 124, 126-127. The State conceded that respondent was “correct in his assertion that the enhancement paragraphs as alleged in the indictment do not satisfy section 12.42(a)(2) of the Texas Penal Code.” Id., at 132, 140. Rather than agree to resentencing, however, the State argued that respondent had procedurally defaulted the sufficiency of the evidence claim by failing to raise it before the state trial court or on direct appeal. Id., at 142-144. The Magistrate Judge, to whom the habeas application had been referred, recommended excusing the procedural default and granting the sufficiency of the evidence claim because respondent was “ ‘actually innocent’ of a sentence for a second-degree felony.” Haley v. Director, Texas Dept. of Criminal Justice, Institutions Div., Civ. No. 6:00cv518 (ED Tex., Sept. 13, 2001), p. 10, App. to Pet. for Cert. 49a (citing Sones v. Hargett, 61 F. 3d 410, 419 (CA5 1995)). Because she recommended relief on the erroneous enhancement claim, the Magistrate Judge did not address respondent’s related ineffective assistance of counsel challenges. App. to Pet. for Cert. 50a-52a. The District Court adopted the Magistrate Judge’s report, granted the application, and ordered the State to re-sentence respondent “without the improper enhancement.” Id., at 36a-37a (Oct. 27, 2001).
The Court of Appeals for the Fifth Circuit affirmed, holding narrowly that the actual innocence exception “applies to noncapital sentencing procedures involving a career or habitual felony offender.” Haley v. Cockrell, 306 F. 3d 257, 264 (2002). The Fifth Circuit thus joined the Fourth Circuit in holding that the exception should not extend beyond allegedly erroneous recidivist enhancements to other claims of noncapital factual sentencing error: “[T]o broaden the exception further would ‘swallow’ the ‘cause portion of the cause and prejudice requirement’ and it ‘would conflict squarely with Supreme Court authority indicating that generally more than prejudice must exist to excuse a procedural default.’ ” Id., at 266 (quoting United States v. Mikalajunas, 186 F. 3d 490, 494-495 (CA4 1999)). Finding the exception satisfied, the panel then granted relief on the merits of respondent’s otherwise defaulted sufficiency of the evidence claim. In so doing, the panel assumed that challenges to the sufficiency of noncapital sentencing evidence are cognizable on federal habeas under Jackson v. Virginia, 443 U. S. 307 (1979). 306 F. 3d, at 266-267 (citing French v. Estelle, 692 F. 2d 1021, 1024-1025 (CA5 1982)).
The Fifth Circuit’s decision exacerbated a growing divergence of opinion in the Courts of Appeals regarding the availability and scope of the actual innocence exception in the noncapital sentencing context. Compare Embrey v. Hershberger, 131 F. 3d 739 (CA8 1997) (en banc) (no actual innocence exception for noncapital sentencing error); Reid v. Oklahoma, 101 F. 3d 628 (CA10 1996) (same), with Spence v. Superintendent, Great Meadow Correctional Facility, 219 F. 3d 162 (CA2 2000) (actual innocence exception applies in noncapital sentencing context when error is related to finding of predicate act forming the basis for enhancement), and Mikalajunas, supra (actual innocence exception applies in noncapital sentencing context where error relates to a recidivist enhancement). We granted the State’s request for. a writ of certiorari, 540 U. S. 945 (2003), and now vacate and remand.
II
The procedural default doctrine, like the abuse of writ doctrine, “refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” McCleskey v. Zant, 499 U. S. 467, 489 (1991). A corollary to the habeas statute’s exhaustion requirement, the doctrine has its roots in the general principle that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds. Wainwright v. Sykes, 433 U. S. 72, 81 (1977); Brown v. Allen, 344 U. S. 443, 486-487 (1953). But, while an adequate and independent state procedural disposition strips this Court of certiorari jurisdiction to review a state court’s judgment, it provides only a strong prudential reason, grounded in “considerations of comity and concerns for the orderly administration of criminal justice,” not to pass upon a defaulted constitutional claim presented for federal habeas review. Francis v. Henderson, 425 U. S. 536, 538-539 (1976); see also Fay v. Noia, 372 U. S. 391, 399 (1963) (“[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute”). That being the case, we have recognized an equitable exception to the bar when a habeas applicant can demonstrate cause and prejudice for the procedural default. Wainwright, supra, at 87. The cause and prejudice requirement shows due regard for States’ finality and comity interests while ensuring that “fundamental fairness [remains] the central concern of the writ of habeas corpus.” Strickland v. Washington, 466 U. S. 668, 697 (1984).
The cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice. Murray v. Carrier, 477 U. S. 478 (1986), thus recognized a narrow exception to the cause requirement where a constitutional violation has “probably resulted” in the conviction of one who is “actually innocent” of the substantive offense. Id., at 496; accord, Schlup v. Delo, 513 U. S. 298 (1995). We subsequently extended this exception to claims of capital sentencing error in Sawyer v. Whitley, 505 U. S. 333 (1992). Acknowledging that the concept of “ ‘actual innocence’ ” did not translate neatly into the capital sentencing context, we limited the exception to cases in which the applicant could show “by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” Id., at 336.
We are asked in the present case to extend the actual innocence exception to procedural default of constitutional claims challenging noncapital sentencing error. We decline to answer the question in the posture of this case and instead hold that a federal court faced with allegations of actual innocence, whether of the sentence or of the crime charged, must first address all nondefaulted claims for comparable relief and other grounds for cause to excuse the procedural default.
This avoidance principle was implicit in Carrier itself, where we expressed confidence that, “for the most part, Victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard.’” 477 U. S., at 495-496 (quoting Engle v. Isaac, 456 U. S. 107, 135 (1982)). Our confidence was bolstered by the availability of ineffective assistance of counsel claims — either as a ground for cause or as a freestanding claim for relief — to safeguard against miscarriages of justice. The existence of such safeguards, we observed, “may properly inform this Court’s judgment in determining ‘[w]hat standards should govern the exercise of the habeas court’s equitable discretion’ with respect to procedurally defaulted claims.” Carrier, supra, at 496 (quoting Reed v. Ross, 468 U. S. 1, 9 (1984)).
Petitioner here conceded at oral argument that respondent has a viable and “significant” ineffective assistance of counsel claim. Tr. of Oral Arg. 18 (“[W]e agree at this point there is a very significant argument of ineffective assistance of counsel”); see also id., at 7 (agreeing “not [to] raise any procedural impediment” to consideration of the merits of respondent’s ineffective assistance claim on remand). Success on the merits would give respondent all of the relief that he seeks — i. e., resentencing. It would also provide cause to excuse the procedural default of his sufficiency of the evidence claim. Carrier, supra, at 488.
Contrary to the dissent’s view, see post, at 397 (opinion of Stevens, J.), it is precisely because the various exceptions to the procedural default doctrine are judge-made rules that courts as their stewards must exercise restraint, adding to or expanding them only when necessary. To hold otherwise would be to license district courts to riddle the cause and prejudice standard with ad hoc exceptions whenever they perceive an error to be “clear” or departure from the rules expedient. Such an approach, not the rule of restraint adopted here, would have the unhappy effect of prolonging the pendency of federal habeas applications as each new exception is tested in the courts of appeals. And because petitioner has assured us that the State will not seek to reincar-cerate respondent during the pendency of his ineffective assistance claim, Tr. of Oral Arg. 52 (“[T]he state is willing to allow the ineffective assistance case to be litigated before proceeding to reincarcerate [respondent]”), the negative consequences for respondent of our judgment to vacate and remand in this case are minimal.
While availability of other remedies alone would be sufficient justification for a general rule of avoidance, the many threshold legal questions often accompanying claims of actual innocence provide additional reason for restraint. For instance, citing Jackson v. Virginia, 443 U. S. 307 (1979), respondent here seeks to bring through the actual innocence gateway his constitutional claim that the State’s penalty-phase evidence was insufficient to support the recidivist enhancement. But the constitutional hook in Jackson was In re Winship, 397 U. S. 358 (1970), in which we held that due process requires proof of each element of a criminal offense beyond a reasonable doubt. We have not extended Winship’s protections to proof of prior convictions used to support recidivist enhancements. Almendarez-Torres v. United States, 523 U. S. 224 (1998); see also Apprendi v. New Jersey, 530 U. S. 466, 488-490 (2000) (reserving judgment as to the validity of Almendarez-Torres); Monge v. California, 524 U. S. 721, 734 (1998) (Double Jeopardy Clause does not preclude retrial on a prior conviction used to support recidivist enhancement). Respondent contends that Almendarez-Torres should be overruled or, in the alternative, that it does not apply because the recidivist statute at issue required the jury to find not only the existence of his prior convictions but also the additional fact that they were sequential. Brief for Respondent 30-31. These difficult constitutional questions, simply assumed away by the dissent, see post, at 397 (citing Jackson, supra, and Thompson v. Louisville, 362 U. S. 199 (1960)), are to be avoided if possible.
To be sure, not all claims of actual innocence will involve threshold constitutional issues. Even so, as this case and the briefing illustrate, such claims are likely to present equally difficult questions regarding the scope of the actual innocence exception itself. Whether and to what extent the exception extends to noncapital sentencing error is just one example. 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 ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_othcrim
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
James Wm. SMITH, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee. Gilbert Esco ANGLE, Appellant, v. Robert S. McNAMARA, U. S. Secretary of Defense, Appellee.
Nos. 9761, 9754.
United States Court of Appeals Tenth Circuit.
June 12, 1968.
William M. Allison, Denver, Colo, (each petitioner pro se on separate briefs) for appellants.
Benjamin E. Franklin, Topeka, Kan. (Newell A. George, Topeka, Kan., with him on brief) for appellee.
Before MURRAH, Chief Judge, JONES Court of Claims, and BREIT-ENSTEIN, Circuit Judge.
Honorable Marvin Jones, sitting by designation.
MURRAH, Chief Judge.
By separate petitions to the District Court of Kansas, Smith and Angle sought in effect to mandamus the Secretary of Defense to remove from their records dishonorable discharges resulting from court martial convictions in 1945 and 1948, respectively. The salient contention in both petitions seems to be that the court martials were void because petitioners were denied their constitutional right to counsel. On the authority of Ashe v. McNamara, 1 Cir., 355 F.2d 277, Judge Stanley entertained jurisdiction under 28 U.S.C. § 1361 to judicially review administrative orders of the Secretary acting through the Army Board for Correction of Military Records pursuant to 10 U.S.C. § 1552. He denied the writ of mandamus, holding that the court mar-tials were not constitutionally void and the Secretary was not legally required to grant the honorable discharges.
For the first time on appeal the Secretary suggests the failure of jurisdiction in the Angle case for want of proper service. Public law 87-748 (1962), 28 U.S.C. §§ 1361, 1391(e), which confers jurisdiction on the District Courts to entertain actions in the nature of mandamus against government officers provides for service of summons and complaint in accordance with the Federal Rules of Civil Procedure “except that delivery of the summons and complaint to [such] officer * * * may be made by certified mail [outside] the district in which the action is brought.” 28 U.S.C. § 1391(e). Rule 4(d) (4) and (5), F.R.Civ.P., significantly provides that in suits against officers of the United States a copy of the summons and complaint must be delivered to the officer and to the United States, i. e. the United States Attorney and the Attorney General. See Messenger v. United States, 2 Cir., 231 F.2d 328; Wallach v. Cannon, 8 Cir., 357 F.2d 557. Angle admits that no such delivery was made on either the officer sued, i. e. the Secretary of Defense, or on the United States as provided in the rules. Nor did the Secretary or the United States waive the lack of service by pleading or appearance. It follows that the court never acquired jurisdiction in Angle’s case and the action must be dismissed on that ground.
A different situation obtains with regard to Smith where the Secretary entered his appearance in response to an order to show cause. It now seems to be conceded that by such appearance the lack of proper service was waived, and we proceed to consider the Smith ease on its merits.
Smith was convicted in 1945 of the crimes of Absence Without Leave and Robbery in violation of Articles of War 61 and 93 and sentenced to a term of imprisonment at hard labor, forfeiture of pay and allowances and dishonorable discharge. At trial he was represented by a member of the Military Police admittedly not trained in the law; the prosecuting officer was a member of the Transportation Corps and there is no record indication that he was legally trained. The convening authority approved the findings of guilt but reduced the term of confinement and suspended the dishonorable discharge. The record of trial was then reviewed by the office of the Judge Advocate General and found legally sufficient to support the sentence. Smith escaped from detention in the Phil-lipines and was recaptured five years later in the United States, at which time he was returned to confinement and suspension of the dishonorable discharge was revoked. Through legally trained, non-military counsel, Smith petitioned the office of the Judge Advocate General for a new trial raising some of the issues urged here, but not complaining of lack of counsel. The petition was denied but the term of imprisonment was subsequently reduced. On completion of the sentence, he petitioned the Army Board three times to grant him an honorable discharge and payment of all sums previously withheld; his requests were denied without a hearing. He brought the present action by petition pro se while in the custody of the State of Kansas on an unrelated conviction. The record before the court included one page of the transcript of testimony at the court martial and numerous documents summarizing the proceedings including both the brief and decision on the petition for new trial. In denying relief the trial court was of the opinion that all of Smith’s asserted claims had been fully investigated on the petition for new trial and found meritless by the military authorities.
The Secretary’s initial contention on appeal is that, notwithstanding Ashe, the District Court had no jurisdiction to review the court martial and consequently the denial of the writ of mandamus should have been made to rest on that ground alone. The Secretary invokes the finality provisions of two statutes: (1) 10 U.S.C. § 876 which makes the decisions of court martials “final” and “binding upon all * * * courts”; and (2) 10 U.S.C. § 1552 which makes corrections of military records thereunder by the Secretary “final and conclusive on all officers of the United States”. It is sufficient to say that the contention with respect to Section 1552 was squarely met and conclusively answered in Ashe, supra, where, upon painstaking review of the legislative history, the First Circuit was of the opinion that the statute “was not intended to preclude any otherwise proper judicial review of departmental action [upon a petition] to change the type of [a] discharge.” Id. 355 F.2d 281. As to Section 876, it is well settled that the section “do[es] not deprive civil courts [of jurisdiction] of habeas corpus jurisdiction in proper cases.” Easley v. Hunter, 10 Cir., 209 F.2d 483; and see Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146. And, notwithstanding the finality language of section 876, the Court of Claims has continuously entertained suits by military personnel claiming that their court martial convictions were void. Augenblick v. United States, 377 F.2d 586, 180 Ct.Cl. 131; and see Shaw v. United States, 357 F.2d 949, 953,174 Ct.Cl. 899 and cases cited in footnote 4. The court in Augenblick, supra, 377 F.2d 592, reasoned that “To deny collateral attack to one not in confinement — ■ the consequence of saying that habeas corpus is the only remedy — would be to deny the possibility of review by a constitutional court, and ultimately by the Supreme Court, of the constitutional claims of servicemen * * * who have not been sentenced to jail or who have been released.” For like reasons we conclude that the trial court was vested with jurisdiction to review by mandamus, as in habeas corpus, the “final” court martial decision even though Smith had completed the term of imprisonment imposed as a result of that conviction.
It follows that where the “conviction was the product of court-martial procedure so fundamentally unfair that, upon a proper petition, a district court at the place of incarceration would have been obliged to grant * * * a writ of habeas corpus”, it would be “as much the duty of the Secretary and the Correction Board, as it would have been of a court * * *, to treat as void a sentence thus unconstitutionally imposed” and “the matter of changing the type of discharge [would therefore involve] a plain duty to grant relief, enforceable by an action in the nature of mandamus under section 1361 of title 28.” Ashe, supra, 355 F.2d 280, 282. This brings us squarely and inevitably to the constitutional validity of Smith’s court martial and particularly to the question whether the representation afforded him there complied with the fundamental right of due process, i. e. a full and fair hearing where liberty is at stake.
In Kennedy v. Commandant, 10 Cir., 377 F.2d 339, we were confronted with the claim of denial of the constitutional right to counsel in a special court martial under the Uniform Code of Military Justice, which provides that both trial and defense counsel in a general court martial must be legally trained and that prosecution and defense counsel in a special court’martial need only be of coequal training. See Article 27, 10 U.S.C. § 827. In the circumstances of that case we found it “unnecessary and inappropriate to resolve the question whether the right to counsel provisions of the Sixth Amendment as recently vitalized in federal prosecutions and made applicable to state prosecutions * * * should now be made strictly applicable to military prosecutions.” But, we were certain that, in any event the spirit of the Sixth Amendment right to counsel pervaded the due process rights of military justice to the end that an accused person was entitled to the guiding hand of one whose competence was comparable to that of his adversary. We were satisfied that such requirement “fully complies] with the right of counsel requirements of the Sixth Amendment.” Kennedy, supra, 343.
The instant case arose before the advent of the Uniform Code of Military Justice, but the applicable Articles of War provided that: “Accused shall have the right to be represented * * * by counsel of his own selection * * * [or by appointed counsel]”. Article 17. Case law of the era interpreted this provision to mean that a commissioned officer admitted to practice before court martials was “a competent attorney within the purview of the Sixth Amendment.” Altmayer v. Sanford, 5 Cir., 148 F.2d 161, 162; and see Romero v. Squier, 9 Cir., 133 F.2d 528; Duval v. Humphrey, D.C., 83 F.Supp. 457, 460; Hayes v. Hunter, D.C., 83 F.Supp. 940, 944. By inference we are asked to overrule this line of cases in light of the “vitalized” Sixth Amendment. We do not choose to do so.
“It would be fallacious to assume that a service member appears before a court martial in the identical position as a defendant before a civilian court. From Powell v. [State of] Alabama, 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158] * * * down to and including Gideon v. Wainright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] * * *, there persists the plight of one charged with crime before civilian courts, who appears alone and without counsel because he is indigent. * * * [N]o serviceman appears before a court martial alone.” Judge Kilday in United States v. Culp, 14 U.S. C.M.A. 199, 202. While the qualifications of counsel under the applicable Articles of War were not as stringent as the requirements of the Military Code, they did provide for counsel and Smith received it. We are not persuaded that Smith’s representation by non-legally trained counsel violated his right to counsel when the prosecuting officer was apparently also untrained in the law. This is particularly so in as much as Smith was represented by legally trained counsel on his petition for new trial and all issues relevant to the conduct of the court martial were then raised, considered and decided. Our situation is quite different from Ashe, supra, where the contradictory defenses of the two accused servicemen defended by a single attorney made it per se impossible for him to function as counsel for both.
Smith also complains (1) that a reduction in rank from private first class to private was punishment for his alleged absence without leave and that as such he was put in double jeopardy; (2) that he was convicted on the uncorroborated testimony of an accomplice; (3) that the reading of the charge sheet in open court amounted to the introduction of hearsay evidence. All these issues were raised and answered on the petition for new trial and have been dealt with “fully and fairly” by the military and we will not interfere with their judgment. Burns v. Wilson, supra; Kennedy v. Commandant, supra, 377 F.2d 342, and cases cited.
The motion for writ of mandamus was properly denied.
. Section 1552 pertinently provides that the “Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice.”
. See Prairie Band of Pottawatomie Tribe of Indians v. Udall, 10 Cir., 355 F.2d 364.
. Unlike the petitioner in Ashe, supra, Smith did not seek review of the Board’s action by the U.S. Court of Military Appeals, but the Secretary has not suggested that court had jurisdiction to review these administrative decisions.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES v. HENDLER.
No. 4202.
Circuit Court of Appeals, Fourth Circuit.
Aug. 6, 1937.
Arnold Raum, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the United States.
William R. Semans and Randolph Barton, Jr., both of Baltimore, Md. (Joseph Addison, of Baltimore, Md., on the brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
SOPER, Circuit Judge.
The United States has appealed from the decision of the District Court holding that under section 112 of the Revenue Act of 1928 (26 U.S.C.A. § 112 and note) the computation of the taxable gain of the Hendler Creamery Company, Inc., resulting from the performance of a reorganization agreement with the Borden Company, should not take account of the bonded debt of the Hendler Company which was assumed by the Borden Company.
On June 21, 1929, in conformity with a “reorganization agreement” of May 21,1929, the Hendler Company transferred all of its assets to the Borden Company in exchange for 105,306 shares of the latter’s stock, $43,-421.87 in cash, and the assumption by the Borden Company of all of the outstanding liabilities of the Hendler Company, consisting of $501,000 first mortgage bonds, current bank loans of $1,050,000, and merchandise accounts of $130,410.78. As a result of the transaction, the Hendler Company made a total calculated profit of $6,608,713.65 based on the current market price of the Borden stock. After the transaction the Hendler Company discontinued business, filed its income tax return for 1929, and dissolved.
The Hendler bonds were subject to redemption on any interest date at 107y2. In accordance with an understanding which preceded the agreement of May 21,1929, the board of directors of the Hendler Company resolved on May 15, 1929, to call the bonds for redemption on July 1, 1929. The Borden Company, through the purchase of some of the bonds and the redemption of the rest, performed its promise to assume the payment of the bonds at a total cost to it of $534,297.40. This sum did not pass through the Hendler Company but was paid directly to the bondholders. The Hendler Company did not include it in its income tax return for 1929 nor any part of the profit realized in the reorganization. ' The Commissioner reached the determination that while the total profit on the exchange was not taxable, the item of $534,297.40 was taxable and made a deficiency assessment of $58,772.72 with interest of $10,781.97, which was paid by L. Manuel Hendler, as transferee. The present suit was filed to recover these amounts after a claim for refund had been denied. The District Court ordered the refund, finding a verdict for $62,145.89 which represented the amount of the plaintiff’s claim less an offset based on circumstances not involved in the pending case.
Section 112 of the Revenue Act of 1928, 45 Stat. 791, 816 (26 U.S.C.A. § 112 and note), provides in part as follows:
Ҥ 112. Recognition of gain or loss
“(a) General rule. Upon the sale or «ixchange of property the entire amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section.
“(b) Exchanges solely in kind — * * *
“(4) Same. [Stock for Stock Reorganisation] — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization. if: >f; jf:
“(d) Same. [Gain from Exchanges not Solely in Kind] — Gain of corporation. If an exchange would be within the provisions of subsection (b) (4) of this section if it were not for the fact that the property received in exchange consists not only' of stock or securities permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then—
“(1) If the corporation receiving such other property or money distributes it in pursuance of the plan of reorganization, no gain to the corporation shall be recognized from the exchange, but
“(2) If the corporation receiving such other property or money does not distribute it in pursuance of the plan of reorganization, the gain, if any, to the corporation shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property so received, which it not so distributed.”
The contention of the United States is that under section 112(a) of the statute the entire amount of the gain or loss upon the sale or exchange of property is recognized in computing the income tax, unless the transaction falls withi-n one of the exceptions enumerated in the section; and that the only exceptions relied upon by the taxpayer, to wit, section 112(b) (4) and section 112 (d), are not applicable to the facts of the case. It is not denied that there was a “reorganization” as defined in section 112 (i), 45 Stat. 816 (26 U.S.C.A. § 112 and note) ; see Helvering v. Minnesota Tea Co., 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284; Helvering v. Watts, 296 U.S. 387, 56 S.Ct. 275, 80 L.Ed. 289; G. & K. Mfg. Co. v. Helvering, 296 U.S. 389, 56 S.Ct. 276, 80 L.Ed. 291; but it is said that the taxpayer did not exchange its property in pursuance of a plan of reorganization solely for stock or securities in the Borden Company within the terms of section 112(b) (4), but also received $43,421.87 in cash and an assumption of the taxpayer’s liability which included the bonded indebtedness discharged at a cost of $534,297.40; and it is contended that this assumption of indebtedness was not money or property within the true construction of section 112(d), or if it was money or property, it was not distributed in pursuance of the plan of reorganization within the terms of the section. Hence it is said that the item of $534,297.40 should be added to the taxable income.
At the outset we are assailed by the doubts aroused by the failure of the government to press its argument to the conclusion which would seem to follow if its premises, based upon a literal interpretation of the language, are sound. If the assumption of the bonded indebtedness did not constitute money or property, but nevertheless represented taxable value received by the taxpayer, it would seem that the transaction was not covered by the literal terms of either section 112(b) (4) or section 112(d), and that therefore the .entire profit of $6,608,-713.85 was taxable under section 112(a) of the statute; and on the other hand, if such assumption did constitute money or property not distributed under section 112(d), manifestly the assumption of the current bank loans in the amount of $1,050,000 and of the merchandise accounts in the amount of $130,410.78 was of the same nature and these sums should have been added to the taxable profit. The omission of the Government in these respects is difficult to understand.
In our opinion, however, the decision of the District Court was correct. We do not question the rule that the payment of an obligation of a taxpayer by another person constitutes income to the taxpayer. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918; United States v. Boston & M. R. R., 279 U.S. 732, 49 S.Ct. 505, 73 L.Ed. 929; Gold & Stock Telegraph Co. v. Commissioner (C.C.A.) 83 F.(2d) 465; Houston Belt & Terminal Ry. Co. v. United States (C.C.A.) 250 F. 1; Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3, 101 A.L.R. 391. And of course the assumption not only of bonded indebtedness but also of all other forms of indebtedness owing by a taxpayer must necessarily be taken into account in computing tire taxpayerVprofit in a reorganization. However, it does not follow that the amount •of indebtedness assumed is taxable as profit at the time that the reorganization is effected ; and it is significant that the usual practice of the Commissioner has been quite to the contrary.
The sections of the act in question must be construed in view of the purposes which they were intended to effect. It is well known that the purpose was to provide for the exemption from taxation at the time of a business reorganization of the gains involved therein to the extent specified in the statute in order to remove impediments to corporate readjustments and also to prevent the recognition of fictitious gains or losses. The history of the legislation and the committee reports in Congress clearly manifest this legislative intention. C. H. Mead Coal Co. v. Commissioner (C.C.A.) 72 F.(2d) 22, 27, 28; Minnesota Tea Co. v. Commissioner (C.C.A.) 76 F.(2d) 797, 802. Baar & Morris on Hidden Taxes & Corporate Reorganization, p. 244. The result is to defer the taxation of such gains until they are subsequently realized by the corporation grantor or its stockholders through the liquidation of the securities or property received.
So it was provided in effect that no gain should be recognized in the exchange of property solely for stock or securities in the transferee corporation; or if the property received in exchange should also, include property or money other than stock or securities, the gain should be recognized only to the extent that such other property or money was not distributed in pursuance óf the plan of reorganization. Now it seems to us, bearing in mind the general purpose of the statute, that it was not the intention of Congress to recognize for immediate taxation the gain derived in a corporate reorganization to the extent it should consist of an assumption of the debts of the corporate grantor. Such an assumption is undoubtedly an asset of value and may fairly be called property in the broad sense; but the money spent in the performance of the promise passes to creditors and does not come into the possession of the debtor corporation or its stockholders. It reduces the debts and therefore frees the assets from the claims of creditors so that they may be lawfully distributed amongst the stockholders or otherwise disposed of; but it does not increase in their hands the assets whose liquidation brings about the actual enjoyment of the realized profit. Therefore the recognition of the gain, to the extent of the amount of the debt assumed, would not serve the statutory purpose, but on the contrary would tend to defeat it. It is a matter of common knowledge that a promise by the grantee to assume the debts of the grantor corporation is a customary incident of reorganization agreements, and where the transaction yields a profit to the grantor, taxable gain up to the amount of the assumed debt would accrue in the current year if the present contention of the Commissioner is correct, whether or not at that time the corporation or its stockholders had actually realized the profit in the transaction.
It seems obvious that Congress in referring to the receipt of stock or securities in section 112(b) (4) and to the receipt of money and other property in section 112(d) had in mind the sort of property that is susceptible of distribution among stockholders. Indeed, this is part of the argument of the government which asserts that a distribution in reorganization generally contemplates a distribution among stockholders and that it would be a distortion of language to misconstrue the word “distribute” to mean the payment of creditors. But it does not follow, as the government contends, that when the taxpayer secures an assumption of its debts in addition to stock and securities or distributable property, it is not entitled to the exemption claimed. Congress has adopted the realistic conception that the substantial value which a corporation owns is the equity in its corporate property — that is, the value of its assets after provision has been made for the payment of its debts — that what the grantee acquires in a corporate reorganization is this equity, and that its assumption of liabilities is merely the means by which it is enabled to acquire a good title to the grantor’s property. If this viewpoint is kept in mind, it is clear that the grantor in a reorganization agreement receives nothing from the assumption of its debts by the grantee- that prevents it from claiming an exemption under Cither of the cited sections of the statute.
It must not be supposed that the gain derived by the corporate grantor from the assumption of its debts will entirely escape taxation through this construction of the act. Manifestly the price paid for the corporate assets by the grantee includes both the value which passes to the corporation or its stockholders and that which passes to its creditors; and the entire profit will be recognized, when upon the ultimate liquidation of the assets actually received by the corporation or its stockholders a comparison is made between that which was originally put into the venture and that which has been finally taken out.
We have been referred to the decisions in Helvering v. Minnesota Tea Co. (C.C.A.) 89 F.(2d) 711, and Liquidating Co. v. Commissioner, 33 B.T.A. 1173; but in so far as they are at variance with the views herein expressed, we are constrained to disagree,
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:
|
songer_counsel2
|
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.
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
MOMSEN-DUNNEGAN-RYAN CO. v. HEL-VERING, Com’r of Internal Revenue.
No. 5680.
Court of Appeals of the District of Columbia.
Dec. 18, 1933.
Rehearing Denied Jan. 22, 1934.
J. S. Y. Ivins and Richard B. Barker, both of Washington, D. C., for appellant.
Sewall Key, G. A. Youngquist, C. M. Charest, John D. Kiley, and S. Dee Hanson, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
HITZ, Associate Justice.
The applicable statutes are the Revenue Acts of 1921 and 1924 (42 Stat. 227, 255; 43 Stat. 253, 284, 26 USCA § 986 (a) (5). Section 234 (a) (5) of eaeh of those acts allows a corporation to deduct from its gross income “debts ascertained to be worthless and charged off within the taxable year (or in the discretion of the commissioner, a reasonable addition to a reserve for bad debts).”
This alternative method of return, by reserving for bad debts, was first permitted by the 1921 act and was covered by a subsequently issued regulation of the Department (article 151 of Treasury Regulation 62).
In this regulation the Commissioner provided that regardless of previous practice the taxpayer might thereafter elect between the two methods, but having elected for 1921 would be required to abide his election in later years, unless permission to change to the alternative method should be granted by the Commissioner.
The Revenue Act of 1921 was effective November 23, 1921, and the Commissioner’s regulation was published February 15, 1922.
This petitioner, as the Board found, filed its return March 2, 1922, for the year 1921, and at that time did not know of the regulation giving the option as to the two methods of return. • •
It therefore contends that in using the charge-off method it cannot be held to have made an election, since it would be unfair to say that it had made a choice between alternatives which it did not know existed, and in justification of its failure to know of the opportunity afforded by the new regulation, it points out that it is located in Texas and the time between the publishing of the regulation and the filing of its return was but two weeks.
In deciding against this claim of the petitioner the Board said:
“The fact that the petitioner had no actual knowledge of its right under the above statute and regulation at the time of making its return for 1921, if such be the fact, cannot excuse it from the consequences of its act.
“That act constituted an election of the method pursued in claiming its bad debt deduction, and that method so elected could not thereafter be changed without first obtaining permission of the Commissioner.
“One who purports to act under a law, and claims the benefits conferred, cannot plead ignorance of the law to avoid a burden imposed, and the same rule applies to regulations promulgated pursuant to and having the force and effect of law.”
We regard this statement of the Board as merely a recognition of the familiar maxim that ■ “ignorance of the law excuses no one.”
But there are cases enough in which equity will relieve against the harshness of this rule under proper circumstances.
Thus, a person who, though knowing his facts, has acted in misapprehension of his lights, will not be held to an election so made, in the absence of an estoppel. Watson v. Watson, 128 Mass. 152.
And in Standard Oil Co. v. Hawkins, 74 F. 395, 33 L. R. A. 739, the Circuit Court of Appeals for the Seventh Circuit held that where a choice of two rights or remedies is open and a party pursues one under the impression that the law affords him no other, a court of equity will ordinarily interfere to permit him to change his position.
This rule has been recognized and applied in tax cases both by the Board and by the courts.
As in Dexter Sulphite Co. v. Com’r, 23 B. T. A. 227, the Board, in speaking of the presumption of election from pursuing one ■of several remedies, held that no election is presumed where the alternative remedies were unknown.
And in Lucas v. Sterling, 62 F.(2d) 951, it was held l>y the Court of Appeals for the Sixth Circuit that there must be opportunity for free choice in order to constitute a binding election.
We would, therefore, in a proper’ ease be disposed to hold that a return filed by a distant taxpayer within two weeks of the promulgation of a lawful regulation presenting new provisions of a taxing statute, but in ignorance of its terms, ought not to hind the taxpayer, if thereafter, and as soon as he learns of its provisions, he takes steps to correct or revise his earlier return.
But this is not such a ease, first, because the statute of 1921 itself gave the new privilege, and petitioner does not contend that it did not know, or was not bound to know, of the new rights which the statute gave in respect of the matter in question when he filed his return for that year.
And moreover, even assuming he acted in ignorance of the terms of the statute, he at no time thereafter even when informed of the ehange effected both by the statute and the regulations, applied to the Commissioner for leave to correct or amend his return.
It is true that in subsequent years he did adopt the reserve-for-bad-debts method, but the right of using this method for 1921 was lost by the adoption of the charge-off method for that year, as under the terms of the regulations that was the test year.
The petitioner at no time either sought or obtained permission to ehange the method adopted in its return for 1921.
If it had done so within a reasonable time after the filing of that return, and had been denied that privilege by the Commissioner, its case would be stronger here, but whatever its rights might have been in that event it is obvious that it lost them when without notice, protest, or application to amend, it allowed its return for 1921 to remain on file as rendered.
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:
|
songer_method
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
UNITED STATES of America, Appellee, v. Michael PATRISSO and Simon Mankes, Appellants.
No. 101, Docket 25194.
United States Court of Appeals Second Circuit.
Argued Oct. 22, 23, 1958.
Decided Dec. 22, 1958.
William K. Zinke, Asst. U. S. Atty. for Southern District of New York, New York City (Arthur H. Christy, U. S. Atty. for Southern District of New York, George I. Gordon, Asst. U. S. Atty. for Southern District of New York, New York City, on the brief), for appellee.
David Markowitz, New York City, for appellant, Michael Patrisso.
Charles Sutton, Brooklyn, N. Y. (George W. Herz, Jamaica, N. Y., on the brief), for appellant, Simon Mankes.
Before SWAN and MOORE, Circuit Judges, and KAUFMAN, District Judge.
MOORE, Circuit Judge.
The defendants Michael Patrisso and Simon Mankes appeal from judgments of conviction entered upon verdicts of guilty after a jury trial. Patrisso was convicted of conspiring to possess and transport merchandise moving in interstate commerce knowing it to have been stolen (18 U.S.C.A. § 371) (Count I of the indictment); Mankes of possessing such merchandise knowing it to have been stolen (18 U.S.C.A. § 659) (Count III of the indictment). The indictment contained six counts; Count I charged a conspiracy by Michael Patrisso, Edward Ellis, Monroe Postrel and Simon Mankes with others unknown to violate section 659; Count II related only to Monroe Postrel and charged possession; Count III was similar to Count II naming Simon Mankes; Count IV was similar naming Edward Ellis; Count V charged Edward Ellis with interstate transportation; ' and Count VI made a similar charge against Monroe Postrel. During the trial Ellis pleaded guilty to Counts I and IV, Count V being severed. Thereafter and also during the trial Postrel pleaded guilty to Count II. At the end of the government’s case the court granted Mankes’ motion for judgment of acquittal of the conspiracy charge (Count I) but denied the motion as to possession (Count III). Patrisso’s motion to dismiss as to conspiracy was denied. The cases, therefore, must be reviewed as to sufficiency of proof and for trial errors against a somewhat similar factual background but with quite different legal principles applicable.
On February 3, 1953 a valuable truck load of some 250,000 Sylvania television tubes being driven from the Sylvania plant at Emporium, Pennsylvania was hijacked in New York City. The charges against Patrisso and Mankes arise out of the possession, sale and interstate transportation of tubes alleged to have been thus stolen.
The Conspiracy Case Against Patrisso
Patrisso was implicated by his co-conspirator Ellis who, after changing his not-guilty pleas to guilty during the trial, became a government witness. Ellis testified, in substance, that he started to buy tubes from Patrisso in the early part of 1953, that he went to see Patrisso and a friend (Murray Cohen) in New Jersey, and that “[T]hey showed me a list of tubes” which “come from the Sylvania deal” and “was a hijacked load of Syl-vania tubes, and that was a part of them.” After some discussion as to price (30 cents being finally agreed upon) Ellis picked out 30,000 to be delivered when Patrisso should let him “know as soon as they [the tubes] got there.” During the same general discussion between Ellis, Patrisso and Cohen it was revealed that Patrisso and Cohen were to pay 19 cents and split the 11 cents profit between them. About two weeks thereafter Ellis obtained around 2,500 tubes from Patris-so in New Jersey, and as to the place of intended resale “just told him New York.” A week or so later Ellis picked up about 1,600 additional tubes from Pa-trisso. Both lots (2,500 and 1,600) he sold to Postrel for 45 cents a tube.
There can be no doubt, if the jury chose to believe Ellis, that Pati'isso, together with Ellis and Cohen, entered into a plan whereby Cohen and Patrisso were to obtain Sylvania tubes from the hijacked shipment and sell them to Ellis for interstate transportation to New York and that the tubes were delivered to Ellis, Patrisso knowing of Ellis’ intentions that the tubes were to be sold by him in New York. The overt acts pleaded and proved occurred in New York, thus satisfying jurisdictional requirements, 18 U.S.C.A. § 3237; Hyde v. United States, 1911, 225 U.S. 347, 356-367, 32 S.Ct. 793, 56 L.Ed. 1114; United States v. Cohen, 3 Cir., 1952, 197 F.2d 26; Ladner v. United States, 5 Cir., 1948, 168 F.2d 771, certiorari denied 335 U.S. 827, 69 S.Ct. 53, 93 L.Ed. 381. These facts rebut Patrisso’s argument that a conspiracy was not proved.
Patrisso next argues that the tubes sold were not identified as being a part of the hijacked lot and that he did not know of the hijacking, that the tubes were stolen, or that interstate commerce was involved. These contentions are at variance with Patrisso’s statement to Ellis as to the source of the tubes and his knowledge of their destination. The other errors assigned, i. e. unlawful joinder of the defendants and delay in bringing the case to trial, lack merit. Joinder was proper as a matter of law and there was no proof that the delay was prejudicial. The judgment as to Patrisso should be affirmed.
The Possession Case Against Mankes '
Mankes was acquitted of conspiracy (Count I) and convicted solely of possession (Count III). The indictment under 18 U.S.C.A. § 659 charges that on or about May 10, 1953 Mankes had in his possession Sylvania television tubes, “knowing the same to have been stolen.” Assuming that the proof was sufficient to establish that the tubes possessed by Mankes on that date were taken from the hijacked truck, the essential element of the crime is Mankes’ knowledge that the tubes had been stolen.
There is no dispute as to the chain of title. Ellis, Patrisso and Cohen knew that the tubes had come from the hijacked truck. Ellis purchased the tubes from Patrisso. Mankes was not present on that occasion. Ellis sold the tubes to Postrel. Mankes was not a participant in that transaction. Postrel then sold 1,000 of the tubes to Mankes. Postrel pleaded guilty to a possession count and became a witness for the government. His testimony that, when he obtained the tubes from Ellis, he did not know they were stolen and had no knowledge that they had been stolen when he delivered them to Mankes on May 10, 1953, appears most credible. Had Postrel any knowledge of the theft which he had imparted to Mankes it surely would have been in his interest to so testify if he hoped to gain favor and leniency from the court for his cooperation.
The government’s case against Mankes depends upon a series of inferences. The accumulation of instances during the trial in which testimony inadmissible against Mankes was received against others with instructions that it was not to be considered as to Mankes could have been highly prejudicial to Mankes. The accumulative effect of this testimony leads to the conclusion that he did not have a fair trial. This conclusion is not based on any lack of solicitude for Man-kes’ rights on the part of the trial judge or on error in his instruction to the jury. Both during the trial and in his charge as to the limitations which the jury should place upon the proof the court admonished that certain damaging testimony should not be considered against Mankes. To illustrate, testimony from Postrel that he knew the tubes were stolen was received over objection that it was incompetent and highly prejudicial as against Mankes. The trial court, in so ruling, said it was only Postrel’s knowledge and not the knowledge of any other defendant. However, when the testimony was given Postrel had already pleaded guilty. Since proof of Postrel’s knowledge was unnecessary to convict Postrel this testimony was clearly academic as to him and inadmissible against Mankes.
The jury requested a reading of Post-rel’s testimony more than three hours after it had retired, and at the same time asked to hear again the court’s charge as to Mankes (SM 715-716). The jury also requested the date of Postrel’s first conversation with Mankes after Postrel’s release from custody by the F. B.I. (SM 720). The court had charged that Mankes could not be found guilty unless he knew the tubes to have been stolen at the time when he acquired them from Postrel (SM 702), but the conversation which the jury was concerned with took place at least three weeks later.
In spite of the court’s statement that Postrel’s knowledge could not be considered proof of Mankes’ knowledge, the jury might well have drawn inferences from Postrel’s testimony which were substantially prejudicial to Mankes.
Almost every criminal case against multiple defendants creates difficult trial problems. Here the trial started against four defendants. During the government’s case the liberal rules for admission in evidence of testimony against alleged co-conspirators applied. The jury heard all this evidence. The jury knew that Ellis and Postrel had changed their not-guilty pleas and had admitted that they knew the tubes had been stolen. Although the government argues that Ellis’ admission of knowledge that the tubes were stolen was restricted to Patrisso, this argument scarcely applies to the admission of Postrel’s knowledge. Post-rel’s plea of guilt carrying with it the inference that he knew that the tubes-which he possessed on May 17, 1953 were stolen is not proof that Postrel knew that the tubes delivered to Mankes on May 10 were stolen or that he intimated this fact or suspicion to Mankes.
There being insufficient proof to connect Mankes with the conspiracy, he was-acquitted. Thus the very basis for the admission of the proof as against Mankes-was destroyed. However, there was no way to obliterate the proof from the minds of the jury. In a most able charge the trial judge attempted to do so but Mankes’ conviction upon the scanty proof properly applicable to him is indicative-that the atmosphere created against Man-kes was too strong to be overcome by mere instructions.
The government in its endeavor to establish guilty knowledge is forced to argue that Mankes must have had guilty knowledge because everybody in the trade, including Mankes, knew of the hijacking. The logical conclusion, therefore, would be that anyone who purchased Sylvania tubes subsequent to February 3, 1953 did so at his peril and was subject to being accused of violating 18 U.S.C.A. § 659. Next, the government points to Mankes’ “surreptitious handling of stolen goods” as a circumstance from which guilty knowledge may be inferred (Government Brief, p. 28). The facts do not justify this characterization. Mankes testified that he became suspicious on June 1,1953, after talking to two of Postrel’s employees, that the Postrel tubes might have been stolen. Later that day two F.B.I. agents called on Mankes at his home. From there they all went to Mankes’ store. There was no effort made to remove or conceal any tubes before the agents arrived. Instead, various Sylvania tubes were segregated at the store so that the agents could inspect them the next day. No one appearing on June 2, Mankes removed the tubes to his garage. He claimed that his reason for the removal was to avoid inspection in his store. The reason is unimportant. Since the agents knew of the existence of the tubes on June 1, the removal was scarcely an act of concealment. Yet despite the fact that the subject matter of the crime was the possession of stolen tubes the government made no effort to seize any of the tubes or to offer any tubes in evidence. There appears to have been no follow up of the inspection project. Mankes kept these tubes for three years, first in his garage, and later in his house. During this period no demand was made by the government to examine them. After three years had elapsed Mankes, on advice of counsel, disposed of the tubes. These facts as to the physical disposition of the tubes do not support even an inference of “surreptitious handling.”
The government also relies upon a “low price” for the tubes as justifying an inference of guilt. In contrast to proof that Mankes had purchased tubes at prices ranging from 20 cents to 48 cents, the government introduced proof from the three other defendants as to price. Postrel’s conclusion that 45 cents was substantially lower than the available price was inadmissible and prejudicial. The government was required to prove Mankes’ guilty knowledge, not that of his co-defendants.
In summary, the admission of testimony as to Ellis’ and Postrel’s knowledge that the tubes were stolen, with such incidents as the failure of Ellis to give Postrel an invoice (thus implying that Postrel’s failure to give Mankes an invoice evidenced a similar transaction with equally guilty knowledge), together with the admission of proof applicable to Patrisso, Ellis and Postrel and not to Mankes, all created a situation which nc charge could effectively cure.
The judgment against Patrisso is affirmed. The judgment against Mankes is reversed and the case remanded for a new” trial.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
songer_dissent
|
1
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES v. GOODYEAR.
No. 8725.
Circuit Court of Appeals, Ninth Circuit.
Oct. 18, 1938.
STEPHENS, Circuit Judge, dissenting.
James W. Morris, Asst. Atty. -Gen., Sewall' Key;- Norman D. Keller, James P. Garland, and Lester Gibson, Sp. Assts. to ■ Atty. Gen., and Ben Harrison, U. S. Atty., and E. H. Mitchell and Alva C. Baird, Asst. U. S. Attys., all of Los Angeles, Cal., forthe United States.
Dana Latham and George Bouchard, both of Los Angeles, Cal., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
HANEY, Circuit Judge.
Refund of estate taxes paid the United States was obtained by the judgment appealed from.
Ida P. Goodyear and W. E. Goodyear were married in .California- on August 18, 1891. They were at that time, and continued to be thereafter, residents of California. They acquired certain community property while married prior to July 29, 1927. Since the wife had only an “expectancy” in community property prior to 1927 (Stewart v. Stewart, 204 Cal. 546, 269 P. 439), it was held that community income could not be divided between the spouses for income tax purposes. United States v. Robbins, 269 U.S. 315, 46 S.Ct. 148, 70 L.Ed. 285. At that time California Civil Code § 172 provided that “The husband has the management and control of the community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate” subject to certain exceptions. Likewise at that time, California Civil Code § 172a provided that “The husband has the management and control of the community real property, but the wife, either personally or by duly authorized agent, must join with him in executing any instrument by which such community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered” subject to certain exceptions.
Likewise it was held that all of the community property for estate tax purposes, must be included in the value of a decedent’s estate. Wardell v. Blum, 9 Cir., 276 F. 226, certiorari denied 258 U.S. 617, 42 S.Ct. 271, 66 L.Ed. 793; Talcott v. United States, 9 Cir., 23 F.2d 897, certiorari denied 277 U.S. 604, 48 S.Ct. 601, 72 L.Ed. 1011; Title Insurance & Trust Co. v. Goodcell, 9 Cir., 60 F.2d 803, certiorari denied 288 U.S. 613, 53 S.Ct. 404, 77 L.Ed. 986.
In 1923 there was an amendment to the Civil Code, § 1401 (now § 201 of the Probate Code) provided that “Upon the death of either husband or wife, one-half of the. community property belongs to the surviving spouse; the other half is subject to the testamentary disposition of the decedent, and in the absence thereof goes to the surviving spouse” subject to certain exceptions.
On July 29, 1927, § 161a, an amendment to the Civil Code became effective. It provided: “The respective interests of the husband and wife in community property during continuance of the marriage relation are present, existing and equal interests under the management and control of the husband as is provided in sections 172 and 172a of the Civil Code. This section shall be construed as defining the respective interests and rights of husband and wife in community property. * * *»
After that amendment, litigation ensued over the question as to whether the income of the community could then be divided for income tax purposes. The question was answered in the affirmative on January 19, 1931, in United States v. Malcolm, 282 U.S. 792, 51 S.Ct. 184, 75 L. Ed. 714.
Ida P. Goodyear and W. E. Goodyear entered into an agreement as of January 1, 1931, on July 9, 1931. The instrument provided in part:
“Whereas, the parties hereto are the owners of certain personal and real property, hereinafter described, as community property, all of the same having been acquired by them after their marriage on the 18th day of August, 1891; and,
“Whereas, all of said property was acquired by the parties hereto previous to July 29, 1927, or from income from property acquired previous to July 29, 1927; and,
“Whereas, it is the desire of the party of the first part to vest, in the party of the second part, a present, existing and equal interest in such community property and in all property acquired by them from income derived therefrom, the same as if said property had been acquired by the parties hereto as community property after July 29, 1927;
“Now, Therefore, the said party of the first part, in consideration of the love and affection which he has and bears unto the said party of the second part, does hereby give, grant, convey and confirm unto the party of the second part such an interest in the personal and real property herein described and referred to as will vest in her, with the party of the first part, a present, existing and equal interest in said personal and real property. * *
“It is not the intention of this instrument to create in the parties hereto a tenancy in common in said property to which reference is herein made, but rather to vest in the party of the second part such an interest in the community property as she would have at the present time were the property to be acquired now from earnings of either of the parties hereto accumulated or earned since July 29, 1927.”
That instrument was acknowledged on July 9, 1931, and recorded in the proper county in California on the following day.
On September 3, 1933, W. E. Goodyear died in California. On October 2, 1933, Ida P. Goodyear was appointed executrix of his estate, qualified, and since has acted as such. On June. 12, 1934, the executrix, hereafter called appellee, filed an estate tax return, including therein only one-half of the value of the community property, and on that day paid the amount of tax shown to be due by the return. The Commissioner of Internal Revenue audited the return, and determined that the entire value of the community property should have been included in the return. On December 21, 1935, appellee paid the additional tax and interest demanded, in the sum of $7,671.22.
On January 22, 1936, appellee filed a claim for refund, which was denied on April 10, 1936. On April 18, 1936, this action against appellant was commenced to recover the amount of the additional tax paid with interest. The trial court held that the agreement gave Ida P. Goodyear the same interest in the community property as she would have had if the property had been acquired after the effective date of § 161a of. the Civil Code. Judgment was entered on July 21, 1937. This appeal followed.
The' applicable statute is § 302 of the Revenue Act of 1926 (44 Stat. 9). The Act of March 3, 1931 (46 Stat. 1516) amended subdivision (c) of that section. In quoting that section the matter added to the amendment is shown in italics. Section 302 provides in part:
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated — * * *
“(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, including a transfer under Which the transferor has retained for, his life or any period not ending before his death (1) the possession or enjoyment of, or the income from, the property or (2) the right to designate the persons zvho shall possess or enjoy the property or the income therefrom; except in case of a bona fide salé for an adequate and full consideration in money or money’s worth.
“(d) To the extent of any interest therein.of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person,' to alter, amend, or revoke, or where the decedent relinquished any such power in contemplation of his death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * * ”
First Although it had been decided that local law was controlling in determining who owned community earnings with regard to income tax, the Supreme Court had not, until recently ruled with respect to estate taxes. In Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199, it was said that “state law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law”. In accordance with that rule, thé Supreme Court had applied that rule, and held with respect to1 ownership of property, and the extent thereof, that general law would apply, rather than local law, and had reached a result opposite to what it would have reached had local law been applied. See cases cited in Welch v. Kerckhoff, 9 Cir., 84 F.2d 295, 298, 106 A. L.R. 1434.
The primary question was,, then, whether § 302 was to depend on ownership, as defined by local law. Construing that section, it was said in Porter v. Commissioner, 288 U.S. 436, 441, 53 S.Ct. 451, 452, 77 L.Ed. 880: “The net estate as there used does not mean an amount to be ascertained as such under any general rule of law or under statutes governing the administration of estates, but is the gross estate as specifically defined in section 302 * * * less deductions permitted by section 303 * * * ”
It is obvious that statutes relating to community property govern “the administration of estates” and therefore, under the language used, it would seem that such statutes would not be applicable. We so held in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., 9 Cir., 90 F.2d 981, 983, saying that we believed local law “to be immaterial”. Thereafter, that statement was said to be “inaccurate” and community property law was applied under § 302, in Lang v. Commissioner, 304 U.S. 264, 58 S.Ct. 880, 82 L.Ed. 1331, May 16, 1938, the opinion making no explanation of, or reference to, Porter v. Commissioner, supra. In view of Lang v. Commissioner, supra, the present rule seems to be that community property law is applicable in determining the amount of the gross estate under § 302, and we consider the instant case on that assumption.
Second. Appellant contends that the agreement did not operate ás a “transfer” because it “merely attempted to define a. tenancy without creating one and did not establish an interest in and to property by any recognized conveyance”. In view of the granting words, we think the agreement was sufficient in form to operate as a conveyance.
Appellant further contends that there was no transfer'because decedent “gave up none of his statutory rights, powers or privileges with regard to community property acquired in California prior to 1927, and she by the same token gained no additional rights, powers or privileges in and to such property”. We believe this contention cannot be sustained.
California Civil Code, § 158 provides that “Either husband or wife may enter into any engagement or transaction with the other * * * respecting property, which either might if unmarried * * * ”. Section 159 provides: “A husband and wife cannot, by any contract with each other, alter their legal relations, except as to property is apparent that husband and wife may make a valid contract with each other, and may alter their legal relations with respect to property. Here decedent granted a present and equal interest in the property to which his wife then became entitled by virtue of the grant. Her legal rights were changed from an “expectancy” to a present and equal interest in the community property. The grant took effect, we think, upon delivery of the grant by virtue of § 1054 of the Civil Code, which provides: “A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor”. * * ”. Thus, it
Third. Appellant further contends that even if the agreement did constitute a transfer, it was “intended to take effect in possession or enjoyment at or after death” and therefore the entire value should have been included in the gross estate pursuant to § 302(c), before amendment. Vesting of the interest, however, took place upon execution and delivery of the agreement, and was intended as such, and not at the death of the decedent. While such interest vested immediately, other rights, such as disposal, accrued to her upon the death of decedent. There is here no contention that such rights were sufficient to authorize taxation of the privilege of disposing of them. Compare Tyler v. United States, 281 U.S. 497, 50 S.Ct. 356, 74 L.Ed. 991, 69 A.L.R. 758; Gwinn v. Commissioner, 287 U.S. 224, 53 S.Ct. 157, 77 L.Ed. 270.
Fourth. Appellant further contends that decedent “retained for his life * * * the possession or enjoyment of * * * the property” ánd therefore the entire value should have been included in the gross estate under § 302(c) as amended. Eliminating redundant parts of the statute, we find that there must be included in the value of the gross estate “all property * * * To the extent of any interest therein of which the decedent has at any time made * * * a transfer under which the transferor has retained for his life * * * . the possession or enjoyment of * * * the property”. We think what decedent retained was his own interest. Both spouses had possession and enjoyment of the property and owned the income therefrom, although the property was subject to “management and control” by decedent. The terms “management and control” are not synonymous with “possession and enjoyment”. That one may manage and control property- without either possession or enjoyment is illustrated by the situation where an agent manages real property for the owner. In such case although the agent may have absolute control in managing and renting the property and in collecting rents, the rents belong to the owner who enjoys them. We think that theoretically each spouse had possession and enjoyment of his particular' in-s terest. Decedent, therefore, did not possess and enjoy his wife’s interest. If in controlling and managing the property, decedent transferred possession and enjoyment to' a third person, the fruits received for such transfer, were then owned by both spouses. See the cases in the dissenting opinion in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., supra, page 985.
Fifth. Appellant further contends that while the agreement is irrevocable, decedent could have used the property so as to “alter, amend or revoke” the effect of the agreement, and therefore the entire value should be included pursuant to § 302(d). We do not understand that decedent had such power, however. By Civil Code § 172, he could not make a gift of, or dispose of, the community personal property, except for a valuable consideration, without the written consent of the wife. Civil Code § 172a, quoted above, discloses that except for leases for less than a year, the wife is required to join in executing an instrument. If on disposal of either kind of property, consideration is received, then such consideration becomes community property. See the dissent in Bank of America Nat. T. & Sav. Ass’n v. Com’r of Int. Rev., supra, page 985.
Sixth. The remaining contention of appellant is that if only one-half of' the community property is included, then only one-half of the community debts should be deducted. Section 303 of the act in question, 44 Stat. 72, permits deduction of “claims against the estate”. Article 36 of Regulations 80,.is applicable, and provides that there may be deducted amounts which “represent personal obligations of the decedent existing at the time of his death”. It was stipulated by the parties that the deduction was “the amount of $5,696.91, representing 100% of the debts of said W. E. Goodyear at the date of his death”. Since those debts were personal debts of decedent, and not debts of the community, the deduction was properly, made.
Affirmed.
The effect of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, April 25, 1938 and Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L. Ed. 1290, May 2, 1938, if any, on this rule is yet to-be determined;
Question: What is the number of judges who dissented from the majority?
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".
Cameron O’CONNOR, Alias, Respondent, Appellant, v. John A. O’CONNELL, District Director of Providence District, Internal Revenue Service, Petitioner, Appellee.
No. 5267.
United States Court of Appeals First Circuit.
March 20, 1958.
Christopher Del Sesto, Providence, R. I., Jacob S. Temkin, Providence, R. I., on the brief, for appellant.
Joseph Mainelli, U. S. Atty., Providence, R. I., Arnold Williamson, Jr., and Samuel S. Tanzi, Asst. U. S. Attys., Providence, R. I., on the brief, for ap-pellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a district court order directing compliance with a summons issued by a Special Agent of the Internal Revenue Service directing the appellant to appear at a specified time and place to testify as to his and his wife’s tax liabilities for the calendar years 1943 to 1947, inclusive. A motion by the appellee to dismiss the appeal for lack of jurisdiction lays first claim upon our attention.
The assertion is that the order of the District Court is not appealable for the reason that it is neither a “final decision” within the meaning of § 1291 of Title 28 U.S.C., nor any one of the interlocutory orders, decrees or judgments made appealable by § 1292 of the same Title. We do not agree for we consider the District Court’s order to be a “final decision” and hence appeal-able under § 1291. In Ellis v. Interstate Commerce Commission, 1915, 237 U.S. 434, 442, 35 S.Ct. 645, 59 L.Ed. 1036, the Court, relying upon Interstate Commerce Commission v. Baird, 1904, 194 U.S. 25, 24 S.Ct. 563, 48 L.Ed. 860, and distinguishing Alexander v. United States, 1906, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686, said that there was “no doubt” that an appeal lay from a district court order entered on a petition of the Interstate Commerce Commission under § 12 of the act, 49 U.S.C.A. § 12, to regulate commerce for enforcement of a summons issued by it directing the appellant to answer certain questions propounded and to produce certain papers called for by the Commission. In explanation of its holding the Court said [237 U.S. 434, 35 S.Ct. 646]: “The order is not like one made to a witness before an examiner or on the stand in the course of a proceeding inter alios in court.” Instead, the Court pointed out: “It is the end of a proceeding begun against the witness.”
In the later case of Cobbledick v. United States, 1940, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, upon which the appel-lee relies, the Court was not confronted with the problem in the Ellis case or with the problem which confronts us here. The question in Cobbledick was whether a district court order denying a motion to quash a subpoena duces tecum requiring the person named therein to appear with papers and testify before a grand jury was a “final decision” and hence appealable to a court of appeals. The Circuit Court of Appeals for the Ninth Circuit, Palmuth v. U. S., 107 F.2d 975, had held that the order was not a final decision and the Supreme Court affirmed. But in doing so the Court was careful to distinguish, not to overrule, the Ellis case and to perpetuate, indeed to elaborate upon, the distinction between it and the Alexander case. After discussing the Ellis case and the distinction therein drawn with Alexander, the Court in Cobbledick, 309 U.S. at page 330, 60 S:Ct. at page 543 said that it found “a sufficient justification for treating these controversies [i. e. those with respect to subpoenas issued in aid of administrative proceedings] differently from those arising out of court proceedings unrelated to any administrative agency.” It said:
“The doctrine of finality is a phase of the distribution of authority within the judicial hierarchy. But a proceeding like that under § 12 of the Interstate Commerce Act may be deemed self-contained, so far as the judiciary is concerned — as much so as an independent suit in equity in which appeal will lie from an injunction without the necessity of waiting for disobedience. After the court has ordered a recusant witness to testify before the Commission, there remains nothing for it to do. Not only is this true with respect to the particular witness whose testimony is sought; there is not, as in the case of a grand jury or trial, any further judicial inquiry which would be halted were the offending witness permitted to appeal. The proceeding before the district court is not ancillary to any judicial proceeding. So far as the court is concerned, it is complete in itself.”
Observing this distinction, we follow the Ellis case and hold that the order of the District Court from which this appeal is taken is a “final decision” and hence appealable to this court under Title 28 U.S.C. § 1291. In accord see particularly Capital Co. v. Fox, 2 Cir., 1936, 85 F.2d 97, 99, 106 A.L.R. 376, certiorari denied 1936, 298 U.S. 672, 56 S.Ct. 937, 80 L.Ed. 1394; Falsone v. United States, 5 Cir., 1953, 205 F.2d 734, 737, certiorari denied 1953, 346 U.S. 864, 74 S.Ct. 103, 98 L.Ed. 375. And, sub silentio, First National Bank of Mobile, Ala. v. United States, 1925, 267 U.S. 576, 45 S.Ct. 231, 69 L.Ed. 796, and, in this circuit, McDonough v. Lambert, 1 Cir., 1938, 94 F. 2d 838; and Pacific Mills v. Kenefick, 1 Cir., 1938, 99 F.2d 188.
We have discussed the question of our jurisdiction at some length only because of the appellee’s heavy reliance upon Jarecki v. Whetstone, 7 Cir., 1951, 192 F.2d 121, which holds that an order of the kind under consideration is not final and hence not appealable. The Jarecki case undoubtedly supports the appellee’s contention. But we reject it as authority, for in it the court relied upon the Alexander and Cobbledick cases without any notice of the Ellis case and the distinction drawn therein and emphasized in Cobbledick between an order enforcing a subpoena issued in the course of a judicial proceeding and an order enforcing a subpoena issued in aid of an administrative proceeding.
Having determined that the order appealed from is within our jurisdiction, we turn to the merits.
A Special Agent of the Internal Revenue Service, as the delegate of the Secretary of the Treasury, on February 7, 1957, issued a summons pursuant to § 7602 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7602, directing the appellant to present himself at the office of the Intelligence Division of the Internal Revenue Service in Providence, Rhode Island, at 9:30 a. m. on February 18, 1957, to testify with respect to his and his wife’s tax liabilities for the calendar years 1943 to 1954, inclusive. By agreement the date of appearance was advanced to February 15, and on that day the appellant accompanied by counsel appeared in response to the summons. He was not put under oath but he was asked about and freely discussed matters pertaining to his and his wife’s taxes for the years 1951 to 1954. As a result a basis for the settlement of claimed deficiencies for those years was agreed upon. He was informed that no deficiencies were claimed for the years 1948 to 1950, and then the years 1943 to 1947 came up for discussion. At this juncture appellant’s counsel pointed out that there was no claim that the appellant had failed to file returns for any of those years and that no waivers for any of the years, except 1944, had ever been requested, and that the last of five waivers granted by the appellant for that year had long since expired. He therefore asserted that in the absence of fraud2 the statute of limitations prevented the assessment or collection of tax deficiencies for the years 1943 to 1947 and that he would advise his client not to discuss those years until some reasonable ground for the possible belief that the appellant had fraudulently understated his taxable income for those years had been shown. Counsel said: “We want to make it perfectly clear, however, that if and when there is any evidence submitted that would show, or tend to show, fraud for those years, Mr. O’Connor is willing to testify as to those years.”
The Revenue Agents in attendance at the hearing admitted that the appellant had filed returns for the years in question and that the years were “closed” except for fraud. But, although they conceded that the appellant’s return for 1943 had been destroyed in accordance with established administrative practice, they asserted that calculations based on the tax paid by the appellant for 1943, and his returns for later years, indicated a substantial untaxed increase in his net worth during the years in question. Appellant’s counsel replied that proof of a deficiency alone was not proof of fraud and further that calculations based only on the amount of tax paid could not possibly show the amount of gross income reported or the nature and amount of the deductions claimed. And he reasserted his position that discussion with respect to the years 1943 to 1947 “will depend [upon] whether or not you can show us any evidence of fraud. The minute you show us any evidence of fraud, Mr. O’Connor would discuss those years freely and without reservation.” The Agents maintained that they did not need to make any such showing as a prerequisite to discussion of those years and the interview came to an amicable end.
Soon thereafter the appellee filed a petition in the court below for an order directing the appellant to comply with the subpoena insofar as the so-called “closed” years of 1943 through 1947, closed that is except for fraud, were concerned. The appellant moved to dismiss the petition and to quash the subpoena and the matter came on for hearing. At the hearing appellant’s counsel maintained the same position he had taken at the interview and the appellee took the position that the testimony of the agent that from his investigation he honestly suspected that the taxpayer-appellant had filed false and fraudulent returns for the years in question was all that had to be shown to support an order of the court directing the appellant to comply with the summons and testify as to those years. The District Court agreed with the Government’s contention. It said:
“The respondent contends that the burden is upon the Government to establish either the returns for the years in question were fraudulent or at least probable cause for me to conclude that the returns were fraudulent. I don’t think that that is the test. I am dealing here with an authorization conferred by Congress on the Secretary or his delegate to investigate tax liabilities and to compel payment of taxes where taxes are justly due and owing. It is not for the courts to unnecessarily hamper or restrict the activities of the Commissioner of Internal Revenue in this regard. I think it is safe to say the overwhelming weight of authority where the question of the power of the Secretary or his delegate to issue a subpoena under this particular section has been brought into issue is to the effect that it is sufficient to entitle the delegate to an order from the Court compelling obedience of his subpoena, that the Court be satisfied that the agent from his investigation of the matters available to him had grounds to conclude that there was reasonable suspicion that the taxpayer had made a false or fraudulent return.”
******
“In this case there is testimony by Mr. Katz that the substantial increases in the net worth of the respondent here during the years in question led him to strongly suspect that the respondent taxpayer had grossly understated his income during those years, and that his return may have been false and fraudulent.
“It seems to me, gentlemen, that that sworn testimony of Mr. Katz is, in the light of the decided cases, sufficient authority for the exercise of the power to subpoena granted to the Secretary or his delegate under Section 7602 of the Internal Revenue Code of 1954.”
Wherefore the District Court issued the order requiring the applicant to comply with the summons issued by the Internal Revenue agent from which this appeal has been taken.
We are not here concerned with an inquiry into a “closed” year for the purpose of determining a deficiency in an “open” one, or with inquiries directed to a taxpayer’s agent or employee, as in Falsone v. United States, 5 Cir., 1953, 205 F.2d 734, certiorari denied 1953, 346 U.S. 864, 74 S.Ct. 103. Our concern is with what the tax authorities must show to warrant enforcement of a summons directing a taxpayer himself to testify with respect to possible deficiencies in his taxes for years “closed” by the statute of limitations except for fraud. The question is: Do the tax authorities only need to show the enforcing court that they entertain a bona fide suspicion of fraud on the part of the taxpayer for those years, or must they establish to the satisfaction of the court that there is probable cause or a reasonable basis for it to believe that in those years the taxpayer perpetrated a fraud upon the revenue ?
Although the Court of Appeals for the Second Circuit in Application of United States (In re Carroll), 2 Cir., 1957, 246 F.2d 762 certiorari denied 1957, 355 U.S. 857, 78 S.Ct. 85, 2 L.Ed.2d 64, found no need to answer this precise question it nevertheless gave rather detailed consideration to the conflicting authorities bearing upon it. No useful purpose would be served by repeating Judge Medina’s discussion and exhaustive citations here, for many of the cases he cites are somewhat vague and in only a few of them is the question given more than cursory consideration. It will suffice to say that although perhaps the numerical weight of authority supports the position taken by the Government and by the court below, we think the taxpayer’s position is supported by the better reason.
Chapter 78 of the Internal Revenue Code of 1954, after authorizing the issuance of summons by the Secretary or his delegate in § 7602, and providing for enforcement of such summons by the local district court in § 7604, 26 U.S.C.A. § 7604, provides in § 7605(b), 26 U.S. C.A. § 7605(b), under the subtitle “Restrictions on examination of taxpayer”:
“No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.”
We entertain no doubt that the Secretary or his delegate is entitled as a matter of right to an order enforcing compliance with any reasonable summons issued by him directing a taxpayer to testify and to produce his records with respect to any year not barred by the statute of limitations, provided, of course, the specific statutory restrictions on his investigatory powers imposed in § 7605(a) are observed. These examinations may well be burdensome to the taxpayer but by no other means can the tax laws be enforced. As the years pass, however, the burden of such examinations on the taxpayer increases, for memories fade, records may be lost or mislaid, indeed to conserve space honest taxpayers may well destroy their records relating to years as to which the statute of limitations has run, and persons who have assisted taxpayers in preparing their returns may die, move away, or for one reason or another be no longer available. For instance, the taxpayer here asserts that the legal counsel who prepared his returns for the “closed” years has died and the accountant who assisted in their preparation is now over 80 years of age and is suffering from a defective memory.
We may well assume that considerations such as these had weight with Congress when it legislated in § 7605(b) to curb excessive administration zeal by protecting taxpayers from unnecessary examination and investigation. But if these considerations are to be adequately served we cannot adopt the Government’s contention that to obtain an order for enforcement as to a “closed” year all that the Secretary or his delegate needs to show is the honesty of his subjective belief that fraud existed in such a year. The reason for this is that in the Government’s view the necessity for an examination into a closed year would for all practical purposes be left to administrative determination and § 7605(b) would be relegated to hardly more than a pious exhortation directed to the tax authorities. As a practical matter, according to the Government’s contention, the court’s function under § 7604 would be reduced to little more than that of summarily affixing its stamp of approval to administrative action, for we can hardly assume that agents of the Internal Revenue Service would undertake to examine a taxpayer as to a closed year when they did not honestly believe that the taxpayer had been guilty of fraud in such a year. We cannot assume that the agents of the Internal Revenue Service would undertake an examination into a closed year only to harass and annoy a taxpayer.
To make the Congressional purpose expressed in § 7605(b) to protect taxpayers from unnecessary examinations truly effective we think the Secretary or his delegate, when a court order is needed to enforce compliance with a summons to testify as to a “closed” year, should be required to establish to the court’s satisfaction that there is probable cause for an investigation into such a year. We think Congress intended to give taxpayers this much protection when the investigation of their returns may reach far back into the past, in this case fourteen years, and in some eases perhaps even further, and that to require such a showing does not impose too heavy a burden upon the tax authorities or unduly restrict or hamper them in tax enforcement.
Furthermore, this interpretation of § 7605(b) is in accord with the limitations upon the inquisitorial powers of government which have become traditional in this country. We agree with Judge Moscowitz’ statement in In re Brooklyn Pawnbrokers, Inc., D.C.E.D.N.Y.1941, 39 F.Supp. 304, 305, that “to permit the government to examine as to statute barred years upon a mere conclusory allegation of fraud is to deprive the taxpayer of that freedom from unreasonable harassment which he has a right to expect under a democratic form of government.”
This does not mean that proof of fraud is required. It means only that before the tax authorities are entitled to a district court order enforcing a summons directing a taxpayer to testify as to a closed year they must establish to the district court’s satisfaction that a reasonable basis exists for a suspicion of fraud, or put another way, that there is probable cause to believe that the taxpayer was guilty of fraud in a statute barred year. We, therefore, disagree in principle with United States v. United Distillers Products Corp., 2 Cir., 1946, 156 F.2d 872, 874, and Globe Construction Co. v. Humphrey, 5 Cir., 1956, 229 F.2d 148, and agree with the rule as it was assumed to be in Martin v. Chandis Securities Co., 9 Cir., 1942,128 F.2d 731, 735, wherein it is said:
“It is the appellant’s contention that the only showing required (and we assume also the only allegation required) is a ‘showing of probable cause, sometimes called reasonable ground for suspicion of fraud.’ Ap-pellees do not controvert that contention, and we accept it as the test in this case without expressing any opinion as to the soundness thereof.”
The taxpayer’s return for 1943 having been destroyed, the Government may have some serious difficulty in establishing probable cause for the belief that the taxpayer was guilty of fraud in that year. But we do not think that destruction of the return for that year makes it impossible as a matter of law for the Government to show the possibility of fraud.
It follows that the case must go back to the court below for application of the test set out herein to the evidence already submitted, or to that evidence as supplemented by such additional evidence as the court may see fit to receive if any is offered.
Judgment will be entered vacating and setting aside the order of the District Court and remanding the case to that Court for further proceedings not inconsistent with this opinion.
. This holding cuts the ground out from under, and makes it unnecessary for us to consider, the appellee’s further contention that since the order appealed from is not final, it is not subject to stay of execution upon tbe filing of a super-sedeas bond.
. Chapman v. Goodman, 9 Cir., 1955, 219 F.2d 802, upon which the appellee also relies, is not in point for in that case an order like the present was held not to be final and, therefore not appealable, for the reason that the district court in issuing the order had reserved jurisdiction to pass upon any questions of the attorney-client privilege which might arise at the administrative hearing.
. Section 276(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 276(a), provides: “In the case of a false or fraudulent return with intent to evade tax or of a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.”
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_adminaction
|
038
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
CBS, INC. v. FEDERAL COMMUNICATIONS COMMISSION et al.
No. 80-207.
Argued March 3, 1981
Decided July 1, 1981
Burgee, C. J., delivered the opinion of the Court, in which BreNNAN, Stewart, Marshall, BlacicmuN, and Powell, JJ., joined. White, J., filed a dissenting opinion, in which RehNQüist and SteveNS, JJ., joined, post, p. 397. SteveNS, J., filed a dissenting opinion, post, p. 418.
Floyd Abrams argued the cause for petitioners in all cases. On the briefs in No. 80-207 were J. Roger Wollenberg, Timothy B. Dyk, Ralph E. Goldberg, and Joseph DeFranco. On the briefs in No. 80-213 were James A. McKenna, Jr., Thomas N. Frohock, Carl R. Ramey, and Robert J. Kaufman. With Mr. Abrams on the briefs in No. 80-214 were Dean Ringel, Patricia A. Pickrel, Corydon B. Dunham, and Howard Monderer. Erwin G. Krasnow filed a brief for the National Association of Broadcasters, respondent under this Court's Rule 19.6, urging reversal.
Stephen M. Shapiro argued the cause for the federal respondents in all cases. With him on the brief were Solicitor General McCree, Deputy Solicitor General Claiborne, Robert R. Bruce, and C. Grey Pash, Jr.
Together with No. 80-213, American Broadcasting Cos., Inc. v. Federal Communications Commission et al., and No. 80-214, National Broadcasting Co., Inc. v. Federal Communications Commission et al., also on certiorari to the same court.
Heidi P. Sanchez and Andrew Jay Schwartzman filed a brief for the National Citizens Committee for Broadcasting et al. as amici curiae urging affirmance.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to consider whether the Federal Communications Commission properly construed 47 U. S. C. § 312 (a) (7) and determined that petitioners failed to provide “reasonable access to... the use of a broadcasting station” ■ as required by the statute. 449 U. S. 950 (1980).
I
A
On October 11, 1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, requested each of the three major television networks to provide time for a 30-minute program between 8 p. m. and 10:30 p. m. on either the 4th, 5th, 6th, or 7th of December 1979. The Committee intended to present, in conjunction with President Carter’s formal announcement of his candidacy, a documentary outlining the record of his administration.
The networks declined to make the requested time available. Petitioner CBS emphasized the large number of candidates for the Republican and Democratic Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but it offered to sell two 5-minute segments to the Committee, one at 10:55 p. m. on December 8 and one in the daytime. Petitioner American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, but subsequently indicated that it would allow such sales in January 1980. App. 58. Petitioner National Broadcasting Co., noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December 1979.
On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violated their obligation to provide “reasonable access” under § 312 (a)(7) of the Communications Act of 1934, as amended. Title 47 U. S. C. § 312 (a) (7), as added to the Act, 86 Stat. 4, states:
“The Commission may revoke any station license or construction permit—
“(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.”
At an open meeting on November 20, 1979, the Commission, by a 4-to-3 vote, ruled that the networks had violated §312 (a)(7). In its memorandum opinion and order, the Commission concluded that the networks’ reasons for refusing to sell the time requested were “deficient” under its standards of reasonableness, and directed the networks to indicate by November 26, 1979, how they intended to fulfill their statutory obligations. 74 F. C. C. 2d 631.
Petitioners sought reconsideration of the FCC’s decision. The reconsideration petitions were denied by the same 4-to-3 vote, and, on November 28, 1979, the Commission issued a second memorandum opinion and order clarifying its previous decision. It rejected petitioners’ arguments that § 312 (a) (7) was not intended to create a new right of access to the broadcast media and that the Commission had improperly substituted its judgment for that of the networks in evaluating the Carter-Mondale Presidential Committee’s request for time. November 29, 1979, was set as the date for the networks to file their plans for compliance with the statute. 74 F. C. C. 2d 657.
The networks, pursuant to 47 U. S. C. § 402, then petitioned for review of the Commission’s orders in the United States Court of Appeals for the District of Columbia Circuit. The court allowed the Committee and the National Association of Broadcasters to intervene, and granted a stay of the Commission’s orders pending review.
Following the seizure of American Embassy personnel in Iran, the Carter-Mondale Presidential Committee decided to postpone to early January 1980 the 30-minute program it had planned to broadcast during the period of December A-7, 1979. However, believing that some time was needed in conjunction with the President’s announcement of his candidacy, the Committee sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. In addition, the Committee sought and obtained from ABC and NBC offers of time for a 30-minute program in January, and the ABC offer eventually was accepted. Throughout these negotiations, the Committee and the networks reserved all rights relating to the appeal.
B
The Court of Appeals affirmed the Commission’s orders, 202 U. S. App. D. C. 369, 629 F. 2d 1 (1980), holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office. As to the implementation of §312 (a)(7), the court concluded that the Commission has the authority to independently evaluate whether a campaign has begun for purposes of the statute, and approved the Commission’s insistence that “broadcasters consider and address all non-frivolous matters in responding to a candidate’s request for time.” Id., at 386, 629 F. 2d, at 18. For example, a broadcaster must weigh such factors as: “(a) the individual needs of the candidate (as expressed by the candidate); (b) the amount of time previously provided to the candidate; (c) potential disruption of regular programming; (d) the number of other candidates likely to invoke equal opportunity rights if the broadcaster grants the request before him; and, (e) the timing of the request.” Id., at 387, 629 F. 2d, at 19. And in reviewing a broadcaster’s decision, the Commission will confine itself to two questions: “(1) has the broadcaster adverted to the proper standards in deciding whether to grant a request for access, and (2) is the broadcaster’s explanation for his decision reasonable in terms of those standards?” Id., at 386, 629 F. 2d, at 18.
Applying these principles, the Court of Appeals sustained the Commission’s determination that the Presidential campaign had begun by November 1979, and, accordingly, the obligations imposed by § 312 (a) (7) had attached. Further, the court decided that “the record... adequately supports the Commission’s conclusion that the networks failed to apply the proper standards.” Id., at 389, 629 F. 2d, at 21. In particular, the “across-the-board” policies of all three networks failed to address the specific needs asserted by the Carter-Mondale Presidential Committee. Id., at 390, 629 F. 2d, at 22. From this the court concluded that the Commission was correct in holding that the networks had violated the statute’s “reasonable access” requirement.
Finally, the Court of Appeals rejected petitioners’ First Amendment challenge to § 312 (a) (7) as applied, reasoning that the statute as construed by the Commission “is a constitutionally acceptable accommodation between, on the one hand, the public’s right to be informed about elections and the right of candidates to speak and, on the other hand, the editorial rights of broadcasters.” Id., at 389, 629 F. 2d, at 25. In a concurring opinion adopted by the majority, id., at 389, n. 117, 629 F. 2d, at 25, n. 117, Judge Tamm expressed the view that § 312 (a) (7) is saved from constitutional infirmity “as long as the [Commission]... maintains a very limited ‘overseer’ role consistent with its obligation of careful neutrality....” Id., at 402, 629 F. 2d, at 34.
II
We consider first the scope of §312 (a)(7). Petitioners CBS and NBC contend that the statute did not impose any additional obligations on broadcasters, but merely codified prior policies developed by the Federal Communications Commission under the public interest standard. The Commission, however, argues that § 312 (a) (7) created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal elective office.
A
The Federal Election Campaign Act of 1971, which Congress enacted in 1972, included as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained the provision that was codified as 47 U. S. C. §312 (a)(7).
We have often observed that the starting point in every case involving statutory construction is “the language employed by Congress.” Reiter v. Sonotone Corp., 442 U. S. 330, 337 (1979). In unambiguous language, § 312 (a)(7) authorizes the Commission to revoke a broadcaster’s license
“for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by.a legally qualified candidate for Federal elective office on behalf of his candidacy.”
It is clear on the face of the statute that Congress did not prescribe merely a general duty to afford some measure of political programming, which the public interest obligation of broadcasters already provided for. Rather, § 312 (a) (7) focuses on the individual “legally qualified candidate” seeking air time to advocate “his candidacy,” and guarantees him “reasonable access” enforceable by specific governmental sanction. Further, the sanction may be imposed for “willful or repeated” failure to afford reasonable access. This suggests that, if a legally qualified candidate for federal office is denied a reasonable amount of broadcast time, license revocation may follow even a single instance of such denial so long as it is willful; where the denial is recurring, the penalty may be imposed in the absence of a showing of willfulness.
The command of § 312 (a) (7) differs from the limited duty of broadcasters under the public interest standard. The practice preceding the adoption of §312 (a)(7) has been described by the Commission as follows:
“Prior to the enactment of the [statute], we recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community. No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. However, stations were required to make reasonable, good faith judgments about the importance and interest of particular races. Based upon those judgments, licensees were to 'determine how much time should be made available for candidates in each race on either a paid or unpaid basis.' There was no requirement that such time be made available for specific 'uses' of a broadcasting station to which Section 315 'equal opportunities’ would be applicable.” (Footnotes omitted.) Report and Order: Commission Policy in Enforcing Section 812 (a)(7) of the Communications Act, 68 F. C. C. 2d 1079, 1087-1088 (1978) (1978 Report and Order).
Under the pre-1971 public interest requirement, compliance with which was necessary to assure license renewal, some time had to be given to political issues, but an individual candidate could claim no personal right of access unless his opponent used the station and no distinction was drawn between federal, state, and local elections. See Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U. S. 525, 534 (1959). By its terms, however, §312 (a) (7) singles out legally qualified candidates for federal elective office and grants them a special right of access on an individual basis, violation of which carries the serious consequence of license revocation. The conclusion is inescapable that the statute did more than simply codify the pre-existing public interest standard.
B
The legislative history confirms that § 312 (a) (7) created a right of access that enlarged the political broadcasting responsibilities of licensees. When the subject' of campaign reform was taken up by Congress in 1971, three bills were introduced in the Senate — S. 1, S. 382, and S. 956. All three measures, while differing in approach, were “intended to increase a candidate’s accessibility to the media and to reduce the level of spending for its use.” Federal Election Campaign Act of 1971: Hearings on S. 1, S. 382, and S. 956 before the Subcommittee on Communications of the Senate Committee on Commerce, 92d Cong., 1st Sess., 2 (1971) (remarks of Sen. Pastore). The subsequent Report of the Senate Commerce Committee stated that one of the primary purposes of the Federal Election Campaign Act of 1971 was to “give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters.” S. Rep. No. 92-96, p. 20 (1971) (emphasis added). The Report contained neither an explicit interpretation of the provision that became § 312 (a) (7) nor a discussion of its intended impact, but simply noted:
“[The amendment] provide[s] that willful or repeated failure by a broadcast licensee to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of his station’s facilities by a lagally [sic] qualified candidate for Federal elective office on behalf of his candidacy shall be grounds for adverse action by the FCC.
“The duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communities] of license. The Federal Communications Commission has recognized this obligation... Id., at 34.
While acknowledging the “general” public interest requirement, the Report treated it separately from the specific obligation prescribed by the proposed legislation. See also id., at 28.
As initially reported in the Senate, § 312 (a) (7) applied broadly, to “the use of a broadcasting station by any person who is a legally qualified candidate on behalf of his candidacy.” Id., at 3. The Conference Committee confined the provision to candidates seeking federal elective office. S. Conf. Rep. No. 92-580, p. 22 (1971); H. Conf. Rep. No. 92-752, p. 22 (1971). During floor debate on the Conference Report in the House, attention was called to the substantial impact § 312 (a) (7) would have on the broadcasting industry:
“[B]roadcasters [are required] to permit any legally qualified candidate [for federal office] to purchase a ‘reasonable amount of time’ for his campaign advertising. Any broadcaster found in willful or repeated violation of this requirement could lose his license and be thrown out of business, his total record of public service notwithstanding.
“[Ujnder this provision, a broadcaster, whose license is obtained and retained on basis of performance in the public interest, may be charged with being unreasonable and, therefore, fall subject to revocation of his license.” 118 Cong. Nee. 326 (1972) (remarks of Rep. Keith).
Such emphasis on the thrust of the statute would seem unnecessary if it did nothing more than reiterate the public interest standard.
Perhaps the most telling evidence of congressional intent, however, is the contemporaneous amendment of § 315 (a) of the Communications Act. That amendment was described by the Conference Committee as a “conforming amendment” necessitated by the enactment of §312 (a)(7). S. Conf. Rep. No. 92-580, supra, at 22; H. Conf. Rep. No. 92-752, supra, at 22. Prior to the “conforming amendment,” the second sentence of 47 U. S. C. § 315 (a) (1970 ed.) read: “No obligation is imposed upon any licensee to allow the use of its station by any such candidate.” This language made clear that broadcasters were not common carriers as to affirmative, rather than responsive, requests for access. As a result of the amendment, the second sentence now contains an important qualification: “No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate.” 47 U. S. C. § 315 (a) (emphasis added). Congress retreated from its statement that “no obligation” exists to afford individual access presumably because § 312 (a) (7) compels such access in the context of federal elections. If § 312 (a) (7) simply reaffirmed the pre-existing public interest requirement with the added sanction of license revocation, no conforming amendment to § 315 (a) would have been needed.
Thus, the legislative history supports the plain meaning of the statute that individual candidates for federal elective office have a right of reasonable access to the use of stations for paid political broadcasts on behalf of their candidacies, without reference to whether an opponent has secured time.
C
We have held that “the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 381 (1969) (footnotes omitted). Accord Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 121 (1973). Such deference “is particularly appropriate where, as here, an agency’s interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives.” United States v. Rutherford, 442 U. S. 544, 554 (1979).
Since the enactment of §312 (a)(7), the Commission has consistently construed the statute as extending beyond the prior public interest policy. In 1972, the Commission made clear that § 312 (a) (7) “now imposes on the overall obligation to operate in the public interest the additional specific requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for Federal office.” Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F. C. C. 2d 510, 537-538 (1972) (1972 Policy Statement) (emphasis added). Accord, Public Notice Concerning Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971, 47 F. C. C. 2d 516 (1974). In its 1978 Report and Order, the Commission stated:
“When Congress enacted Section 312(a)(7), it imposed an additional obligation on the general mandate to operate in the public interest. Licensees were specifically required to afford reasonable access to or to permit the purchase of reasonable amounts of broadcast time for the ‘use’ of Federal candidates.
“We see no merit to the contention that Section 312 (a)(7) was meant merely as a codification of the Commission’s already existing policy concerning political broadcasts. There was no reason to commit that policy to statute since it was already being enforced by the Commission....” 68 F. C. C. 2d, at 1088.
See also 1978 Primer, 69 F. C. C. 2d, at 2286-2289. The Commission has adhered to this view of the statute in its rulings on individual inquiries and complaints. See, e. g., The Labor Party, 67 F. C. C. 2d 589, 590 (1978); Ken Bauder, 62 F. C. C. 2d 849 (Broadcast Bureau 1976); Don C. Smith, 49 F. C. C. 2d 678, 679 (Broadcast Bureau 1974); Summa Corp., 43 F. C. C. 2d 602, 603-605 (1973); Robert H. Hauslein, 39 F. C. C. 2d 1064, 1065 (Broadcast Bureau 1973).
Congress has been made aware of the Commission’s interpretation of § 312 (a)(7). In 1973, hearings were conducted to review the operation of the Federal Election Campaign Act of 1971. Federal Election Campaign Act of 1973: Hearings on S. 372 before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess. (1973). Commission Chairman Dean Burch testified regarding the agency’s experience with § 312 (a)(7). Id., at 136-137. He noted that the Commission’s 1972 Policy Statement was “widely distributed and represented our best judgment as to the requirements of the law and the intent of Congress.” Id., at 135. Chairman Burch discussed some of the difficult questions implicit in determining whether a station has afforded “reasonable access” to a candidate for federal office, and in conclusion stated: “We have brought our approach to these problems in the form of the 1972 Public Notice to the attention of Congress. If we have erred in some important construction, we would, of course, welcome congressional guidance.” Id., at 137. Senator Pastore, Chairman of the Communications Subcommittee, replied:
“We didn’t draw the provision any differently than we did because when you begin to legislate on guidelines, and on standards, and on criteria, you know what you run up against. I think what we did was reasonable enough, and I think what you did was reasonable enough as well.
“I would suppose that in cases of that kind, you would get some complaints. But, frankly, I think it has worked out pretty well.” Id., at 137-138.
The issue was joined when CBS Vice Chairman Frank Stanton also testified at the hearings and objected to the fact that § 312 (a) (7) “grants rights to all legally qualified candidates for Federal office....” Id., at 190. He strongly urged “repeal” of the statute, but his plea was unsuccessful. Ibid
The Commission’s repeated construction of § 312 (a) (7) as affording an affirmative right of reasonable access to individual candidates for federal elective office comports with the statute’s language and legislative history and has received congressional review. Therefore, departure from that construction is unwarranted. “Congress’ failure to repeal or revise [the statute] in the face of such administrative interpretation [is] persuasive evidence that that interpretation is the one intended by Congress.” Zemel v. Rusk, 381 U. S. 1, 11 (1965).
D
In support of their narrow reading of § 312 (a)(7) as simply a restatement of the public interest obligation, petitioners cite our decision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973), which held that neither the First Amendment nor the Communications Act requires broadcasters to accept paid editorial advertisements from citizens at large. The Court in Democratic National Committee observed that “the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities,” and that Congress has not altered that policy even though it has amended the Communications Act several times. Id., at 113. In a footnote, on which petitioners here rely, we referred to the then recently enacted § 312 (a) (7) as one such amendment, stating that it had “essentially codified the Commission’s prior interpretation of § 315 (a) as requiring broadcasters to make time available to political candidates.” Id., at 113-114, n. 12.
However, “the language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Reiter v. Sonotone Corp., 442 U. S., at 341. The qualified observation that § 312 (a) (7) “essentially codified” existing Commission practice was not a conclusion that the statute was in all respects coextensive with that practice and imposed no additional duties on broadcasters. In Democratic National Committee, we did not purport to rule on the precise contours of the responsibilities created by § 312 (a) (7) since that issue was not before us. Like the general public interest standard and the equal opportunities provision of § 315 (a), § 312 (a) (7) reflects the importance attached to the use of the public airwaves by political candidates. Yet we now hold that § 312 (a) (7) expanded on those predecessor requirements and granted a new right of access to persons seeking election to federal office.
Ill
A
Although Congress provided in § 312 (a) (7) for greater use of broadcasting stations by federal candidates, it did not give guidance on how the Commission should implement the statute’s access requirement. Essentially, Congress adopted a “rule of reason” and charged the Commission with its enforcement. Pursuant to 47 U. S. C. § 303 (r), which empowers the Commission to “ [m] ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Communications Act],” the agency has developed standards to effectuate the guarantees of §312 (a)(7). See also 47 U. S. C. § 154 (i). The Commission has issued some general interpretative statements, but its standards implementing § 312 (a) (7) have evolved principally on a case-by-case basis and are not embodied in formalized rules. The relevant criteria broadcasters must employ in evaluating access requests under the statute can be summarized from the Commission’s 1978 Report and Order and the memorandum opinions and orders in these cases.
Broadcasters are free to deny the sale of air time prior to the commencement of a campaign, but once a campaign has begun, they must give reasonable and good-faith attention to access requests from “legally qualified” candidates for federal elective office. Such requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate’s stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular programming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of § 315 (a). These considerations may not be invoked as pretexts for denying access; to justify a negative response, broadcasters must cite a realistic danger of substantial program disruption — perhaps caused by insufficient notice to allow adjustments in the schedule — or of an excessive number of equal time requests. Further, in order to facilitate review by the Commission, broadcasters must explain their reasons for refusing time or making a more limited counteroffer. If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission’s analysis would have differed in the first instance. But if broadcasters adopt “across-the-board policies” and do not attempt to respond to the individualized situation of a particular candidate, the Commission is not compelled to sustain their denial of access. See 74 F. C. C. 2d, at 665-674; 74 F. C. C. 2d, at 642-651; 1978 Report and Order, 68 F. C. C. 2d, at 1089-1092, 1094. Petitioners argue that certain of these standards are contrary to the statutory objectives of § 312 (a) (7).
(1)
The Commission has concluded that, as a threshold matter, it will independently determine whether a campaign has begun and the obligations imposed by § 312 (a) (7) have attached. 74 F. C. C. 2d, at 665-666. Petitioners assert that, in undertaking such a task, the Commission becomes improperly involved in the electoral process and seriously impairs broadcaster discretion.
However, petitioners fail to recognize that the Commission does not set the starting date for a campaign. Rather, on review of a complaint alleging denial of “reasonable access,” it examines objective evidence to find whether the campaign has already commenced, “taking into account the position of the candidate and the networks as well as other factors.” Id., at 665 (emphasis added). As the Court of Appeals noted, the “determination of when the statutory obligations attach does not control the electoral process,... the determination is controlled by the process.” 202 U. S. App. D. C., at 384, 629 F. 2d, at 16. Such a decision is not, and cannot be, purely one of editorial judgment.
Moreover, the Commission’s approach serves to narrow § 312 (a) (7), which might be read as vesting access rights in an individual candidate as soon as he becomes “legally qualified” without regard to the status of the campaign. See n. 11, supra. By confining the applicability of the statute to the period after a campaign commences, the Commission has limited its impact on broadcasters and given substance to its command of reasonable access.
(2)
Petitioners also challenge the Commission’s requirement that broadcasters evaluate and respond to access requests on an individualized basis. In petitioners’ view, the agency has attached inordinate significance to candidates’ needs, thereby precluding fair assessment of broadcasters’ concerns and prohibiting the adoption of uniform policies regarding requests for access.
While admonishing broadcasters not to “ ‘second guess’ the ‘political’ wisdom or... effectiveness” of the particular format sought by a candidate, the Commission has clearly acknowledged that “the candidate’s... request is by no means conclusive of the question of how much time, if any, is appropriate. Other... factors, such as the disruption or displacement of regular programming (particularly as affected by a reasonable probability of requests by other candidates), must
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America, Plaintiff-Appellee, v. Miles Davis SAUNDERS, Defendant-Appellant.
No. 91-3841.
United States Court of Appeals, Seventh Circuit.
Argued June 9, 1992.
Decided Sept. 3, 1992.
John W. Vaudreuil, Asst. U.S. Atty. (argued), Office of U.S. Atty., Madison, Wis., for plaintiff-appellee.
T. Christopher Kelly, Madison, Wis. (argued), for defendant-appellant.
Before FLAUM and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FLAUM, Circuit Judge.
A jury convicted Miles Saunders of conspiring to possess cocaine with the intent to distribute and of possessing cocaine with the intent to distribute. Saunders contends he is entitled to a new trial because the district court violated his sixth amendment right to confront witnesses in limiting the scope of cross-examination. He also challenges the sufficiency of the evidence supporting his conviction, the jury instructions, and the constitutionality of §§ 3E1.1 and 4B1.1 of the Sentencing Guidelines. We affirm.
I.
In August 1990, while frequenting a bar in Minneapolis, Saunders met a man named Greg James, who was in town from Chicago visiting friends. Several weeks later, after running into each other again, Saunders agreed to loan James roughly $200 to fix his car. They kept in touch, and in April 1991, got together at a shopping mall in Chicago, along with a friend of Saunders named Gina. Shortly thereafter, Saunders called James, offering to forgive the car loan, and give him some money as well, if James would deliver a package to him in Minneapolis. James agreed to the deal, and Saunders gave James his pager number and explained that Gina would make arrangements to deliver the package to him in Chicago. On the morning of May 1, 1991, Gina called James and they agreed to meet at a Popeye’s restaurant in Harvey, Illinois. After borrowing a car — apparently, his was still on the fritz — from a friend named Ronnie Anderson, James received the package from Gina, put it in a dog food bag in the trunk of Anderson’s car, and left for Minneapolis.
Later that day, Wisconsin state trooper Leslie Block stopped James for tailgating. After giving him a warning ticket,, the trooper explained the state’s drug interdiction program and sought permission to search the car. A consent search of the trunk revealed 13 baggies of what appeared to be cocaine, and Block arrested James. Subsequent tests demonstrated that each baggie held one ounce of pure cocaine, with a total street value of $23,-000. James later told investigators that he was transporting the cocaine from Chicago to Minneapolis for an individual known to him as “L.A.,” and that he had been given the drugs by a woman named Gina. After James agreed to cooperate with authorities, Special Agent David Matthews of the Wisconsin Department of Justice devised a plan in which James would travel to the Wisconsin Dells under his supervision, place a call to “L.A.’s” pager number, and arrange a delivery. James would tell “L.A.” that he had the drugs, but that he needed a ride because his car had broken down.
Early the next morning, James placed several calls to the pager number as planned. At 12:50 a.m., Saunders returned the call to a pay phone at a Perkins Restaurant. James told Saunders his car had broken down and Saunders agreed to come pick up James and the package, telling James to get a motel room and to relay the room number to his pager. James checked into room 226 at a Super 8 Motel in the Wisconsin Dells and paged Saunders as planned. Saunders returned the call, acknowledging that he had received the room number. Finally, at 7:15 a.m., Saunders called back to say that he was on his way.
Saunders arrived at the motel at 12:35 p.m., going directly to room 226, which agents had fitted with a microphone. He was accompanied by two friends, one of whom, Sharon Ford, also knew Saunders as “L.A.” and also had his pager number. James asked Saunders if he knew how much “stuff” was in the bag; Saunders responded that he did not, and asked nothing else about the “stuff.” After about five minutes, all of the individuals in the room left, at which time they were arrested by law enforcement agents. In an interview with Matthews immediately following his arrest, Saunders denied knowing James, making any calls to James, receiving any pager calls within the last 24 hours, or having the nickname “L.A.” When asked why he came to the Wisconsin Dells and went directly to room 226 at the motel, he offered no explanation.
One week later, a federal grand jury returned a one-count indictment charging Saunders with the conspiracy count. The indictment mentioned James as a co-conspirator but not as a defendant. Later in May, the grand jury returned a superseding indictment adding James as a defendant and co-conspirator, and charging both Saunders and James with a second count for possession with intent to distribute. The government later discovered that Saunders had a 1990 felony conviction for possessing cocaine with intent to distribute and served notice of its plan to seek an enhanced 30-year prison term and $2 million fine based on that prior conviction.
Saunders filed a motion to sever his trial from James,’ which the court granted without opposition from the government. James subsequently entered into a plea agreement with the government and received a 16-month prison sentence which is not at issue in this appeal. After a two-day trial, a jury found Saunders guilty on both counts. Saunders moved for a judgment of acquittal notwithstanding the verdict challenging the sufficiency of the evidence and claiming James’ testimony against him was “too incredible to justify guilty verdicts.” The district court denied the motion.
During the presentence investigation, Saunders confessed to the crime. However, he maintained that he was not the sole intended recipient of the 13-ounce shipment and was supposed to split it with two other individuals in Minneapolis. He also asserted that it was Ronnie Anderson who was responsible for the shipment and who had asked James to transport the cocaine to Minneapolis. Saunders explained that after he sold his share of the delivery (4 ounces), he was supposed to keep $1,500 and deliver the remaining proceeds to Anderson. The presentence report recommended a two-level reduction based on this acceptance of responsibility. The district court declined to grant the reduction, and sentenced Saunders to 262 months imprisonment on each count, to be served concurrently, followed by a six-year term of supervised release. This appeal followed.
II.
Saunders first maintains that the district court violated his sixth amendment right to confront witnesses by limiting the scope of his cross-examination of Trooper Block. See Chambers v. Mississippi, 410 U.S. 284, 294-95, 93 S.Ct. 1038, 1045-46, 35 L.Ed.2d 297 (1973) (right to cross-examine essential procedural safeguard to the fact-finding process); Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931) (right to explore relevant facts on cross-examination essential to a fair trial). At trial, the government objected when Saunders asked Block on cross-examination if he had found marijuana seeds inside the car after stopping James. The district court sustained the objection on relevance grounds, and Saunders claims this ruling thwarted his principal theory of defense.
According to that theory, James actually was transporting the drugs for Anderson, and trying to protect Anderson at trial by attributing ownership of the drugs to Saunders. Saunders maintains that evidence regarding the marijuana seeds was relevant under Fed.R.Evid. 401 because it buttressed his defense theory in two ways: first, evidence suggesting that Anderson’s car had been used in the past to transport drugs would have impeached James’ claim that Anderson knew nothing of his intent to transport drugs when loaning him the car. Second, it would have strengthened the inference that the cocaine found in that car belonged to Anderson, rather than Saunders.
A trial court has broad discretion in assessing the admissibility of evidence, and we may reverse its rulings only if the court abused its discretion. United States v. Abayomi, 820 F.2d 902, 908 (7th Cir.), cert. denied, 484 U.S. 866, 108 S.Ct. 189, 98 L.Ed.2d 142 (1987). However, if, as Saunders suggests, the district court’s ruling implicates his constitutional rights, we review the ruling de novo. Id. at 909. The confrontation clause secures the right to cross-examine witnesses, but does not prohibit reasonable limits on the cross-examination of a prosecution witness. Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); Chambers, 410 U.S. at 294-95, 93 S.Ct. at 1045-46; Jones v. Berry, 880 F.2d 670, 673 (2d Cir.1989). Accordingly, “courts have striven to distinguish between the core values of the confrontation right and more peripheral concerns which remain within the ambit of the trial judge’s discretion.” Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir.) (citations omitted), cert. denied, 493 U.S. 831, 110 S.Ct. 103, 107 L.Ed.2d 67 (1989). Beyond certain essential areas of cross-examination, such as those involving key witnesses or issues, the right to cross-examine is subject to limits imposed by the trial court in the exercise of its discretion. Id. Here, the district court minimally curtailed cross-examination on one peripheral issue, and thus made a straightforward evidentiary ruling that we review for abuse of discretion. Abayomi, 820 F.2d at 909; United States v. Jungles, 903 F.2d 468, 478 (7th Cir.1990).
We conclude that the district court did not abuse its discretion in preventing Saunders from probing Block about the marijuana seeds. The charges in this ease focused on the shipment and delivery of cocaine between James and Saunders, and not on the source of the cocaine in Chicago. The marijuana seeds were certainly not relevant to the government’s case and, at best, only tangentially related to Saunders’ defense theory. First, the mere presence of marijuana seeds in Anderson’s car does not necessarily support an inference that he owned the cocaine at issue or that he even knew James was carrying cocaine on May 1. Second, even if the marijuana seeds support such an inference, this does not obviate the critical charge against Saunders: receipt of the cocaine in Wisconsin.
Even if the district court erred in excluding this evidence because it cast some doubt on James’ veracity, the error was harmless. United States v. Norwood, 798 F.2d 1094, 1098 (7th Cir.), cert. denied, 479 U.S. 1011, 107 S.Ct. 656, 93 L.Ed.2d 711 (1986). We will overturn a conviction on evidentiary grounds only if the erroneous ruling had a “substantial influence over the jury.” United States v. Fairman, 707 F.2d 936, 941 n. 5 (7th Cir.1983). The omitted evidence, even if relevant, fell short of that standard here. With the exception of the marijuana seed evidence, Saunders was not limited in any way in arguing that he was the fall guy for James and Anderson, and he fully developed this theory at trial in cross-examining James — the government’s key witness and principle accuser— at length and without any additional limitation.
III.
Saunders next points to three weaknesses in the government’s case which he claims make the evidence insufficient to support his conviction: first, that James’ testimony was so peppered with inconsistencies that it cannot support a conviction, second, that James’ testimony was uncorroborated by any other witnesses, and third, that the evidence did not establish that Saunders intended to distribute the cocaine.
We must uphold the conviction if the evidence, viewed in the light most favorable to the government, establishes that any rationale trier of fact could have found Saunders guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Harty, 930 F.2d 1257, 1265 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 262, 116 L.Ed.2d 215 (1991). In challenging the sufficiency of the evidence, Saunders bears a heavy burden, particularly when the facts turn upon credibility determinations. United States v. Buggs, 904 F.2d 1070, 1074 (7th Cir.1990). “Credibility is for the jury, not this Court, to determine.” United States v. Mejia, 909 F.2d 242, 245 (7th Cir.1990). We must accept the evidence unless it is contrary to the laws of nature, Harty, 930 F.2d at 1266, or is so inconsistent or improbable on its face that no reasonable factfinder could accept it. United States v. Cardona-Riv-era, 904 F.2d 1149, 1152 (7th Cir.1990).
Here, the evidence was not inherently unbelievable or improbable. Although James’ testimony on direct and cross-examination did contain some inconsistencies — which, we note, defense counsel called to the jury’s attention — the jury chose to believe James nonetheless. Its decision to do so was not unreasonable because the inconsistencies were arguably tangential ones that did not relate to the core events surrounding the crime. Although James wavered on the question of who introduced him to Saunders, the dates and durations of trips to Minneapolis, and other surrounding details, he consistently related the same facts when it came to the cocaine conspiracy itself. Moreover, his story at trial meshed with his confession to law enforcement officers immediately after his arrest. The jury heard and rejected Saunders’ claim that James’ testimony was “wildly improbable,” and we are not at liberty to second-guess that determination.
Saunders also asserts that his conviction cannot stand because the government’s case rested solely on the uncorroborated testimony of his co-conspirator, in violation of the teachings of United States v. Martinez de Ortiz, 907 F.2d 629, 638 (7th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 684, 112 L.Ed.2d 676 (1991), and United States v. Thompson, 944 F.2d 1331, 1341 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1177, 117 L.Ed.2d 422 (1992). We disagree. In both Martinez de Ortiz and Thompson, we reserved the question whether a conspiracy conviction based solely on the out-of-court statements of an alleged co-conspirator could sustain a guilty verdict. That unanswered question is not at issue here because Saunders’ conviction rests on the in-court testimony of his co-conspirator regarding Saunders’ involvement in the conspiracy. “Co-conspirator testimony about the words and deeds of a defendant are not hearsay; the words and deeds of the defendant, while themselves out-of-court statements, are admissions, and because the testimony is offered in court, the statements of the co-conspirator are not hearsay either.” Thompson, 944 F.2d at 1341. Moreover, even had Saunders’ conviction rested solely on the uncorroborated testimony of an “admitted liar, convicted felon, large scale drug dealing, paid government informant,” the jury is still entitled to credit that testimony despite those character flaws. United States v. Beverly, 913 F.2d 337 (7th Cir.1990) (quoting United States v. Molinaro, 877 F.2d 1341, 1347 (7th Cir.1989)), cert. denied, — U.S., 111 S.Ct. 766, 112 L.Ed.2d 786 (1991). Finally, while Saunders’ involvement in the conspiracy may not have been directly corroborated by other witnesses, it was supported by additional evidence implicating him in the crime, most notably getting caught red-handed at the Super 8 motel in Wisconsin.
Saunders last evidentiary claim is that the government showed only a buyer-seller relationship between Saunders and some unspecified individual in Chicago and, consequently, failed to establish either the existence of a conspiracy to distribute cocaine or an intent to distribute cocaine. These contentions lack merit. For one, Saunders never raised a buyer-seller defense theory at trial, nor did he request a buyer-seller jury instruction. See United States v. Briscoe, 896 F.2d 1476, 1514-15 (7th Cir.), cert. denied, — U.S.-, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); United States v. Douglas, 818 F.2d 1317, 1321 (7th Cir.1987), cert. denied, 493 U.S. 841, 110 S.Ct. 126, 107 L.Ed.2d 87 (1989); cf. United States v. Townsend, 924 F.2d 1385, 1415 (7th Cir.1991) (denying buyer-seller jury instruction where evidence suggested conspiracy to distribute). That aside, the facts were sufficient to establish both a conspiracy to distribute and an intent to distribute. Id. at 1400. The amount of cocaine (13 ounces) and its packaging in a manner consistent with distribution (13 individual one-ounce baggies) supports an inference of an intent to distribute. United States v. Franklin, 728 F.2d 994, 998-1000 (8th Cir.1984). Separating the cocaine into 13 one-ounce packets does not seem the sort of packaging one would bother with if the cocaine was for personal consumption. Further, the purity of the cocaine, along with its uncut value ($23,000), also supports an inference of intent to distribute. United States v. Calvo, 865 F.2d 823, 827 (7th Cir.1988), cert. denied, 490 U.S. 1023, 109 S.Ct. 1750, 104 L.Ed.2d 187 (1989). Finally, James delivered the drugs from Chicago to Wisconsin without any payments changing hands. As law enforcement agents testified, this manner of “fronting” cocaine on credit is a common practice in drug distribution networks. All of this evidence, taken in the light most favorable to the government, supports the existence of both a conspiracy to distribute and an intent to distribute.
IV.
Saunders next maintains his conviction should be reversed because the jury instructions failed to provide the jury with (1) each element of the crime of conspiracy, and (2) a complete definition of the crime of “possession.” It is well settled that jury instructions must be reviewed as a whole and that the district court’s handling of the instructions will be upheld if the issues were treated fairly and adequately. United States v. Hoffman, 957 F.2d 296, 298 (7th Cir.1991).
Here, after reading the conspiracy count from the indictment, the district court instructed the jury, pursuant to § 5.11 of the Seventh Circuit pattern instructions, that the government must establish two elements beyond a reasonable doubt: first, that the conspiracy alleged in the indictment existed, and second, that the defendant knowingly and intentionally joined that conspiracy. The court then provided the jury with the definition of a conspiracy and instructed the jury that the government had the burden of proving the existence of a conspiracy that met that definition. Finally, the court submitted a copy of the instructions for use during deliberations.
Saunders claims the district court erred when it instructed the jury on the elements of the conspiracy without simultaneously explaining the precise sort of conspiracy they must find (i.e., an agreement to distribute cocaine). Saunders acknowledges that the district court provided this information to the jury when reading the indictment just prior to delivering the challenged instruction, and again a few moments later in the instruction regarding the definition of conspiracy, but claims nonetheless that the manner of presentation by the court was reversible error. We disagree. The conspiracy instructions in this case, taken as a whole, clearly instructed the jury that in determining whether a conspiracy existed, it had to be one involving an agreement to distribute cocaine.
Saunders also alleges that the court provided the jury with an inadequate definition of “possession”; the tendered definition read:
The term “possession,” as used in these instructions, includes actual possession and constructive possession. Actual possession means that a defendant knowingly had personal or physical possession of the controlled substance. Constructive possession means that a defendant had the intent and ability to exercise control over the controlled substance.
Saunders claims that the district court erred in failing to give the jury the following additional language:
To establish constructive possession of a controlled substance, the government must prove beyond a reasonable doubt that the defendant knew of the presence of the controlled substance and that he had both the power and intent to exercise dominion and control over it. Mere proximity to a controlled substance, knowledge of its existence, presence on the property where it is found, and association with a person having control of it are all insufficient to establish constructive possession.
Saunders argues that this more comprehensive statement of the law was necessary because the case against him was limited to evidence, (i.e., James’ testimony) of constructive possession and, thus, that there was no evidence that he had ever handled the drugs himself. Saunders maintains that, under these circumstances, it was an abuse of discretion to deny his more thorough instruction. We disagree. The court’s instruction fairly and adequately stated the law of constructive possession. See 3 Federal Criminal Jury Instructions (Seventh Circuit) ch. 13, at 119 (1986); United States v. Perry, 747 F.2d 1165, 1171 (7th Cir.1984). While the additional points submitted by Saunders were perhaps appropriate for argument to the jury, it was not an abuse of discretion for the district court to streamline the instruction in an effort to aid jury comprehension.
V.
Saunders maintains that § 3E1.1 of the Sentencing Guidelines unconstitutionally punishes a defendant who, like himself, opts to maintain his innocence and proceed to trial. Alternatively, he contends that the district court erred in declining to grant the two-level reduction for acceptance of responsibility recommended in his presen-tence report, and, in a related argument, that he was at least entitled to prior notice of the district court’s intent to decline that recommendation.
Section 3E1.1 provides for a two-level reduction in sentence if the defendant “clearly demonstrates a recognition and affirmative acceptance of responsibility for his criminal conduct.” Here, the probation officer recommended that Saunders receive such a reduction because he confessed to his crimes during the preparation of a pre-sentence report. After listening to arguments at the sentencing hearing, the district court declined to grant the recommended reduction, commenting:
I really haven’t seen anything that would indicate to me that he has really decided that he is responsible for very serious criminal activity.
He seems to me to be playing down his role in the offense and trying to make Ronnie Anderson and Greg James look much worse. And he, unlike Greg James, did not cooperate promptly with law enforcement officers. In fact, he didn’t cooperate at all.
It is generally the case that a person who goes to trial is not eligible for the acceptance of responsibility. That’s not a firm and fast rule. Because if it were, it would or it might have constitutional problems about exercising one’s right to trial. But there have to be pretty unusual circumstances for a person who goes to trial to get the acceptance of responsibility. There has to be a showing of very sincere remorse, and I simply can’t say that I have seen that with Mr. Saunders.
Tr. at 7-8 (Dec. 5, 1991).
A.
Saunders makes a facial challenge to § 3E1.1, claiming that its two-point reduction for acceptance of responsibility has been effectively — and unconstitutionally— made available only to defendants who plead guilty. This approach, he argues, disadvantages defendants (like himself) who wait until after trial to confess, thus penalizing them for exercising their right to a jury trial under the sixth amendment and their right against self-incrimination under the fifth amendment. It is well established under the so-called unconstitutional conditions doctrine that a defendant may not be subjected to more severe punishment for exercising his or her constitutional right to stand trial. See e.g., Minnesota v. Murphy, 465 U.S. 420, 434, 104 S.Ct. 1136, 1145-46, 79 L.Ed.2d 409 (1984). Saunders argues, in essence, that § 3E1.1 violates this principle by putting defendants to a Hobson’s choice: either confess before trial and receive a reduced sentence or exercise your right to a trial and forego that possibility.
Although this claim was made in United States v. McNeal, 900 F.2d 119, 122 (7th Cir.1990), a procedural flaw precluded us from reaching the issue and hence it remains an unsettled issue in this Circuit. We did tip our hand there, however, commenting that “[a] show of lenience to those who exhibit contrition by admitting guilt does not carry a corollary that the judge indulges a policy of penalizing those who elect to stand trial,” id. at 122 n. 3 (citations omitted), and more recently, held that a revised Application Note to § 3E1.1 did not unconstitutionally penalize defendants for exercising their right to trial. United States v. Guadagno, 970 F.2d 214, 225, (7th Cir.1992). We now hold the approach embodied in § 3E1.1 does not constitute a per se policy of punishing those who elect to stand trial, despite the fact that leniency is more often granted to defendants who accept responsibility by pleading guilty. Accord United States v. Paz Uribe, 891 F.2d 396, 400 (1st Cir.1989), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990); United States v. Parker, 903 F.2d 91, 106 (2d Cir.1990); United States v. White, 869 F.2d 822, 826 (5th Cir.) (per curiam), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989); United States v. Gonzalez, 897 F.2d 1018, 1019—21 (9th Cir.1990); United States v. Trujillo, 906 F.2d 1456, 1461 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 396, 112 L.Ed.2d 405 (1990); United States v. Henry, 883 F.2d 1010, 1011-12 (11th Cir.1989); but see United States v. Frierson, 945 F.2d 650, 660 (3d Cir.1991), cert. de nied, — U.S. -, 112 S.Ct. 1515, 117 L.Ed.2d 651 (1992) (“a denied reduction in sentence is a penalty in the context of fifth amendment jurisprudence”). The plea bargain cases teach that “not every burden on the exercise of a constitutional right and not every encouragement to waive such a right is invalid,” Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S.Ct. 492, 497, 58 L.Ed.2d 466 (1978) (offer to seek a lower sentence in exchange for plea bargain not an unconstitutional burden); see also Brady v. United States, 397 U.S. 742, 753, 90 S.Ct. 1463, 1471-72, 25 L.Ed.2d 747 (1970) (state may extend benefit to defendant who shows acceptance of responsibility), and that principle is as valid here as it is there.
Courts have traditionally been allowed to show leniency based on an expression of remorse and § 3E1.1 merely “formalizes and clarifies that tradition of leniency.” Henry, 883 F.2d at 1012. As long as the leniency decision is an individualized one, not based merely on the defendant’s decision to go to trial, a defendant’s constitutional rights are not impaired. See United States v. Rodriguez, 959 F.2d 193, 197 (11th Cir.1992) (vacating sentence in which trial judge expressly made acceptance of responsibility reduction contingent on giving up right to trial). Application Note 2 to § 3E1.1 makes clear that it leaves the door open to defendants who exercise their right to trial. It declares that in “rare situations” a defendant who proceeds to trial may qualify for an acceptance of responsibility reduction, particularly if the defense theory at trial rested on issues other than factual guilt (e.g., the constitutionality of a criminal statute).
Here, the district court’s comments at sentencing indicate it considered a variety of factors in declining to grant an acceptance of responsibility reduction and did not rely solely on Saunders’ decision to go to trial. We acknowledge the difficulty a defendant faces in trying to convince the sentencing judge that he has accepted responsibility for his crime without appearing to contradict his earlier stance at trial maintaining his innocence; however, that difficulty, in itself, does not make § 3E1.1 constitutionally infirm. Gonzalez, 897 F.2d at 1021.
B.
Alternatively, Saunders argues that the district court erred in declining to give him a two-level reduction for acceptance of responsibility. We review the district court’s decision to deny such a sentencing recommendation under the clearly erroneous standard. United States v. Sullivan, 916 F.2d 417, 419 (7th Cir.1990). A decision is clearly erroneous if it lacks any support in the record or if we are left with the definite and firm conviction that a mistake has been committed. United States v. D’Antoni, 856 F.2d 975, 978 (7th Cir.1988). “Whether or not a defendant has accepted responsibility for his crime is a factual question_ Because the trial court’s assessment of a defendant’s contrition will depend heavily on credibility assessments, the ‘clearly erroneous’ standard will nearly always sustain the judgment of the district court in this area.” Sullivan, 916 F.2d at 419 (citations omitted).
Here, the district court’s decision was not clearly erroneous. The court considered Saunders’ confession and determined that he had not shown true remorse. He did not turn himself in or voluntarily withdraw from criminal activity, and in fact, told plain lies at the time of his arrest; despite a clear opportunity to come clean, Saunders chose to perpetuate the conspiracy. Saunders’ non-cooperation after his arrest, combined with his attempts to downplay his role in the conspiracy, led the district court to reasonably conclude that Saunders’ remorse was too little, too late.
Finally, Saunders argues that in light of Burns v. United States, — U.S. -, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), he was entitled to notice prior to the sentencing hearing that the district court intended to reject the presentence report recommendation. We conclude that the Burns notice requirement is inapplicable to this case. Burns held that Rule 32 of the Federal Rules of Criminal Procedure— which mandates that the defendant be given “an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence” — requires the sentencing court to give reasonable notice that it is contemplating departing upward on a ground not identified in the presentence report. Id. — U.S. at-, 111 S.Ct. at 2187. Here, Saunders was not caught off-guard by an upward departure nor did the court make a sentencing decision on grounds not mentioned in the presentence report — the district court simply chose not to accept a presentence report recommendation. Gua-dagno, 970 F.2d at 224. The inclusion of that recommendation in the report, by definition, gave Saunders notice that it was an open question at the sentencing hearing. The district court makes the final sentencing determination, Sullivan, 916 F.2d at 419, and Bums does not dictate advance warning of the sentencing judge’s intent to reject a recommended acceptance of responsibility sentencing reduction.
VI.
Finally, Saunders attacks guideline § 4B1.1. That guideline provides for a “career offender” enhancement if the “instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense” and “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1. Here, Saunders had one prior crime of violence and one prior drug conviction. His guideline enhancement pursuant to § 4B1.1 resulted in a sentencing range of 210-262 months rather than 51-63 months. Saunders asserts that the United States Sentencing Commission (the Commission) exceeded the scope of its statutory authority in enacting § 4B1.1, and, alternatively, that this guideline violates principles of double jeopardy, due process, and cruel and unusual punishment.
A.
28 U.S.C. § 994(h)(2) authorized the Sentencing Commission to promulgate guidelines for adults who have “been convicted of two or more prior felonies, each of which is: (A) a crime of violence; or (B) a [drug offense].” Saunders maintains that the placement of the semicolon in this provision, combined with the “each of which” prefatory language, indicates that Congress intended the career offender enhancement to apply only if a defendant has two prior violent crime convictions or two prior drug convictions, but not one of each (as in his case). He contends Congress sought to go after offenders who
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
INDEPENDENT SCHOOL DISTRICT NO. 93, POTTAWATOMIE COUNTY, OKLAHOMA, Plaintiff-Appellant, v. TRINITY UNIVERSAL INSURANCE COMPANY, Defendant-Appellee.
No. 268-70.
United States Court of Appeals, Tenth Circuit.
Dec. 30, 1970.
J. C. Winterringer, Shawnee, Okl., Lawrence E. Hoecker and Hugh A. Bay-singer, Oklahoma City, Okl., for plaintiff-appellant.
Byrne A. Bowman, Oklahoma City, Okl., for defendant-appellee.
Before PICKETT, HILL and SETH, Circuit Judges.
HILL, Circuit Judge.
This suit was brought by Independent School District #93, Pottawatomie County, Oklahoma, (hereinafter called School District) to recover on a statutory official bond covering the treasurer for the School District, Kenneth E. Bovee.
Bovee was the treasurer of the School District from January 7, 1957, to October 31, 1965, at which time he was removed for cause following an official audit by a state examiner and inspector. This audit revealed that the School Board had routinely approved expenditures in excess of general fund appropriations, and that Bovee had failed to maintain required records of appropriations and thus had registered and paid all the warrants approved by the School Board. During this period Bovee was covered by two different surety companies. Trinity Universal Insurance Company carried the bond from 1957 until January 7, 1964, at which time bond coverage shifted to the Western Surety Company which carried the bond until Bovee’s removal for cause. The present suit only involves coverage under Trinity’s bond from September 27, 1961, because of the five year statute of limitations. 12 O.S.1961, § 95. The School District has previously brought suit against Western Surety Company concerning their liability on the bond covering Bovee from January 7, 1964, until October 31, 1965. Independent School District 93 v. Western Surety Co., 419 F.2d 78 (10th Cir. 1969). The same basic facts established in the Western case were also found by the trial court to exist in the present suit. Although the findings of fact in Western are not binding in the present case, still the exact same rules of law will apply. Bovee’s statutory duties as treasurer were set out in Western, 419 F.2d at 80. Those duties which Bovee failed to perform and which were found to be violative of the state’s requirements in Western were also found to be omitted in the instant case. Thus in this case as in Western, there is no question but that Bovee did not faithfully perform his duties as required by state statutes and insured by the bond.
As pointed out in Western, however, this is not depositive of the question of liability. In 'Western, recovery was not allowed because it was found that there was a failure of proof, i. e., there was no showing of which warrants Bovee could have prevented payment on had he maintained the proper records. This same failure of proof exists in the instant ease, and plaintiff’s attempt to recover for Bovee’s registering and paying warrants in excess of appropriation fails.
The bond coverage in Western was separated into two terms from January, 1964, until January, 1965, and from January, 1965, until October, 1965. These terms did not match the fiscal terms which ran from July 1 until June 30. This mismatch created an additional burden of proof for the School District, i. e., “there was no proof that the excessive warrants paid in fiscal 1963-64 were paid in the last half of the fiscal year which was the only part of the fiscal year covered by the first bond.” Western, supra, at 82. The same situation existed for that portion of the fiscal year running from July, 1965, until October, 1965. Id. This is directly analogous to the partial terms in the instant case of September, 1961, until June 30, 1962, and July, 1963, until January, 1964. Here, as in Western, plaintiff did not meet this additional burden of proof.
Here fiscal year 1962-63 is analogous to fiscal year 1964-65 in the Western case in that the entire year was covered by the same company’s bond, the only difference being that Trinity’s bond was considered continuous, giving only $100,-000 coverage straight through from 1957 until 1964. The bond in Western was considered two separate bonds. The basis of the court’s decision in Western in regard to fiscal year 1964-65 was: “[A]ppellant failed to show which warrants paid in 1964-65 exceeded the appropriation. Absent such a showing, it is impossible to say how many of these warrants Bovee could have discovered had he kept the account required by 68 O.S.1961, Sec. 299, * * * ” This exact reasoning applies to the instant case, and the difference in viewing the term of the bond is immaterial.
The sole argument put forth by plaintiff to distinguish Western is that in the instant case Bovee’s testimony was included in the record. The testimony relied upon by plaintiff concerns statements by Bovee admitting that he discontinued keeping records of appropriations after December of 1959, that he used general fund appropriations from one year to pay excess general fund warrants from the preceding year, that he commingled protected fund revenues with the general fund cash, and that he did not maintain records to show the status of the various accounts. This evidence, however, goes solely to the issue of Bovee’s failure to perform his statutory duties, and as was found in both the Western and the instant case, there was no question but that Bovee did not perform his statutory duties. This evidence had nothing to do with establishing which of the warrants Bovee could have prevented paying had he maintained the proper records. An examination of the entire record reveals that such evidence was not introduced, and that at least with regard to liability for warrants registered in excess of general fund appropriations, there can be no recovery because of a failure of proof.
One further issue raised by the School District concerns a cash shortage from a particular fund, the 1960 Bond Fund. John Pan tier, the state accountant who performed the audit of the financial position of the School District, testified that as of October 31, 1961, there was, considering all available cash assets, $68,-457.55 less than the amount required to be present in the 1960 Bond Fund. He further testified that as of September 30, 1962, there was a cash shortage, computed in the same manner, of $91,193.19. The School District argues that these shortages had to result from using funds from the 1960 Bond Fund to pay warrants drawn on some other fund, which is in violation of Oklahoma law.
There is probably no question but that if a shortage were found to exist from the 1960 Bond Fund because of expenditures drawn from that fund to pay warrants drawn on another fund Bovee would be liable. Cf. State ex rel. Lester v. Baker, 156 Kan. 439, 134 P.2d 386 (1943). However, the audit shows that $395,000, or the entire amount of the 1960 Bond Fund, was paid out in valid warrants drawn on the 1960 Bond Fund. Thus it'appears that even though at some point in time there were not sufficient funds to have paid out in cash the 1960 Bond Fund, still the full amount of that fund was expended in legal warrants drawn specifically on that fund. It is clear that no warrants were intentionally drawn against the 1960 Bond Fund and applied to other expenditures, and that any loss against this fund was only temporary in nature. Thus cases cited by the School District, such as Newport v. McLane, 256 Ky. 803, 77 S.W.2d 27 (1934), are not applicable. The School District argues that the only way all the payments could have been made from the 1960 Bond Fund was to have further illegal transfers between other funds, and that such illegal acts cannot correct the initial illegal act. It is, however, far from established under Oklahoma law or that of any jurisdiction, see Annot. 96 A.L.R. 664, whether such an inadvertent temporary transfer should constitute a loss such as to make the treasurer and his bondsman liable. As this question is solely one of state law and is a case of first impression, it is primarily a question for the determination of the trial court judge, and his interpretation of the ruling Oklahoma law will not be overturned by us unless clearly erroneous. Machinery Center, Inc. v. Anchor National Life Insurance Co., 434 F.2d 1 (10th Cir. 1970); Parsons v. Amerada Hess Corp., 422 F.2d 610 (10th Cir. 1970). We cannot say that his finding was clearly in error and thus his decision not to allow plaintiff’s recovery on the theory of a cash shortage in the 1960 Bond Fund will not be reversed.
Affirmed.
. Jurisdiction in the Federal Court is based on diversity of citizenship and jurisdictional amount. 28 U.S.C. § 1332.
. The bond provided by Trinity provided that the treasurer “shall well and faithfully perform all and singular the duties incumbent upon him by reason of his election or appointment as aforesaid, and honestly account for all monies coming into his hands as such officer, according to law * *
. One of plaintiff’s contentions is that this bond term was not continuous but was separate for each individual year, leaving Trinity liable for $100,000 for each separate year term. This issue is not reached because of the finding that there was a failure of proof.
. Based on this finding that plaintiff failed in its proof to show the extent of the damages, we do not reach the first element of the trial court’s decision not to award damages which was that since the School District received goods and services for all expenditures, there was no “loss or damage” sufficient to allow recovery.
. There is also an allegation in Western concerning a cash shortage. This claim was not allowed because of failure to prove that payments were made from this particular protected fund within the term of either bond. Independent School District 93 v. Western Surety Co., 419 F.2d 78, 82 (10th Cir. 1969).
. Even if the School District’s position were entirely valid, it could recover only $22,735.64, the difference between the cash shortage established on October 31, 1961, and that established on September 30, 1962, as it was not shown that the shortage as of October 31, 1961, occurred after the cutoff date of Sepember 27, 1961. Therefore, in speaking of proven cash shortages which occurred during the bond coverage in question in the instant case, we refer to the difference of the two amounts established, or $22,-735.64.
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:
|
sc_issuearea
|
C
|
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.
WATERS et al. v. CHURCHILL et al.
No. 92-1450.
Argued December 1, 1993
Decided May 31, 1994
O’Connor, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Souter and Ginsburg, JJ., joined. Souter, J., filed a concurring opinion, post, p. 682. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 686. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 694.
Lawrence A. Manson argued the cause for petitioners. With him on the briefs was Donald J. McNeil.
Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Acting Deputy Solicitor General Kneedler, Barbara L. Herwig, and Robert D. Kamenshine.
John H. Bisbee argued the cause for respondents. With him on the brief was Barry Nakell.
Richard Ruda and Glen D. Nager filed a brief for the International City/County Management Association et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Nurses Association by Ronald C. Jessamy; for the National Education Association et al. by Robert H. Chanin, Jeremiah A Collins, and Larry R Weinberg; and for the Southern States Police Benevolent Association et al. by J. Michael McGuinness.
Charles E. Tucker, Jr., Patricia C. Benassi, and Mary Lee Leahy filed a brief for the National Employment Lawyers Association as amicus curiae.
Justice O’Connor
announced the judgment of the Court and delivered an opinion,
in which The Chief Justice, Justice Souter, and Justice Ginsburg join.
In Connick v. Myers, 461 U. S. 138 (1983), we set forth a test for determining whether speech by a government employee may, consistently with the First Amendment, serve as a basis for disciplining or discharging that employee. In this case, we decide whether the Connick test should be applied to what the government employer thought was said, or to what the trier of fact ultimately determines to have been said.
I
This case arises out- of a conversation that respondent Cheryl Churchill had on January 16, 1987, with Melanie Perkins-Graham. Both Churchill and Perkins-Graham were nurses working at McDonough District Hospital; Churchill was in the obstetrics department, and Perkins-Graham was considering transferring to that department. The conversation took place at work during a dinner break. Petitioners heard about it and fired Churchill, allegedly because of it. There is, however, a dispute about what Churchill actually said, and therefore about whether petitioners were constitutionally permitted to fire Churchill for her statements.
The conversation was overheard in part by two other nurses, Mary Lou Ballew and Jean Welty, and by Dr. Thomas Koch, the clinical head of obstetrics. A few days later, Ballew told Cynthia Waters, Churchill’s supervisor, about the incident. According to Ballew, Churchill took “‘the cross trainee into the kitchen for... at least 20 minutes to talk about [Waters] and how bad things are in [obstetrics] in general.’” 977 F. 2d 1114, 1118 (CA7 1992). Ballew said that Churchill’s statements led Perkins-Graham to no longer be interested in switching to the department. Supplemental App. of Defendants-Appellees in No. 91-2288 (CA7), p, 60.
Shortly after this, Waters met with Ballew a second time for confirmation of Ballew’s initial report. Ballew said that Churchill “was knocking the department” and that “in general [Churchill] was saying what a bad place [obstetrics] is to work.” Ballew said she heard Churchill say Waters “was trying to find reasons to fire her.” Ballew also said Churchill described a patient complaint for which Waters had supposedly wrongly blamed Churchill. Id., at 67-68.
Waters, together with petitioner Kathleen Davis, the hospital’s vice president of nursing, also met with Perkins-Graham, who told them that Churchill “had indeed said unkind and inappropriate negative things about [Waters].” Id., at 228. Also, according to Perkins-Graham, Churchill mentioned a negative evaluation that Waters had given Churchill, which arose out of an incident in which Waters had cited Churchill for an insubordinate remark. Ibid. The evaluation stated that Churchill “ ‘promotes an unpleasant atmosphere and hinders constructive communication and cooperation,’” 977 F. 2d, at 1118, and “‘exhibits negative behavior towards [Waters] and [Waters’] leadership through her actions and body language’ the evaluation said Churchill’s work was otherwise satisfactory, id., at 1116. Churchill allegedly told Perkins-Graham that she and Waters had discussed the evaluation, and that Waters “wanted to wipe the slate clean... but [Churchill thought] this wasn’t possible.” Supplemental App. of Defendants-Appellees in No. 91-2288, at 228. Churchill also allegedly told Perkins-Graham “that just in general things were not good in OB and hospital administration was responsible.” Id., at 229. Churchill specifically mentioned Davis, saying Davis “was ruining MDH.” Ibid. Perkins-Graham told Waters that she knew Davis and Waters “could not tolerate that kind of negativism.” Ibid.
Churchill’s version of the conversation is different. For several months, Churchill had been concerned about the hospital’s “cross-training” policy, under which nurses from one department could work in another when their usual location was overstaffed. Churchill believed this policy threatened patient care because it was designed not to train nurses but to cover staff shortages, and she had complained about this to Davis and Waters. According to Churchill, the conversation with Perkins-Graham primarily concerned the cross-training policy. 977 F. 2d, at 1118. Churchill denies that she said some of what Ballew and Perkins-Graham allege she said. She does admit she criticized Davis, saying her staffing policies threatened to “ruin” the hospital because they “‘seemed to be impeding nursing care.’” Ibid. She claims she actually defended Waters and encouraged Perkins-Graham to transfer to obstetrics. Ibid.
Koch’s and Welty’s recollections of the conversation match Churchill’s. Id., at 1122. Davis and Waters, however, never talked to Koch or Welty about this, and they did not talk to Churchill until the time they told her she was fired. Moreover, Churchill claims, Ballew was biased against Churchill because of an incident in which Ballew apparently made an error and Churchill had to cover for her. Brief for Respondents 9, n. 12.
After she was discharged, Churchill filed an internal grievance. The president of the hospital, petitioner Stephen Hopper, met with Churchill in regard to this and heard her side of the story. App. to Pet. for Cert. 75-77. He then reviewed Waters’ and Davis’ written reports of their conversations with Ballew and Perkins-Graham, and had Bernice Magin, the hospital’s vice president of human resources, interview Ballew one more time. Supplemental App. of Defendants-Appellees in No. 91-2288, at 108, 139-142. After considering all this, Hopper rejected Churchill’s grievance.
Churchill then sued under Rev. Stat. § 1979, 42 U. S. C. §1983, claiming that the firing violated her First Amendment rights because her speech was protected under Con-nick v. Myers, 461 U. S. 138 (1983). In May 1991, the United States District Court for the Central District of Illinois granted summary judgment to petitioners. The court held that neither version of the conversation was protected under Connick: Regardless of whose story was accepted, the speech was not on a matter of public concern, and even if it was on a matter of public concern, its potential for disruption nonetheless stripped it of First Amendment protection. Therefore, the court held, management could fire Churchill for the conversation with impunity. App. to Pet. for Cert. 45-49.
The United States Court of Appeals for the Seventh Circuit reversed. 977 F. 2d 1114 (1992). The court held that Churchill’s speech, viewed in the light most favorable to her, was protected speech under the Connick test: It was on a matter of public concern — “the hospital’s [alleged] violation of state nursing regulations as well as the quality and level of nursing care it provides its patients,” id., at 1122 — and it was not disruptive, id., at 1124.
The court also concluded that the inquiry must turn on what the speech actually. was, not on what the employer thought it was. “If the employer chooses to discharge the employee without sufficient knowledge of her protected speech as a result of an inadequate investigation into the employee’s conduct,” the court held, “the employer runs the risk of eventually being required to remedy any wrongdoing whether it was deliberate or accidental.” Id., at 1127 (footnote omitted).
We granted certiorari, 509 U. S. 903 (1993), to resolve a conflict among the Circuits on this issue. Compare the decision below with Atcherson v. Siebenmann, 605 F. 2d 1058 (CA8 1979); Wulf v. Wichita, 883 F. 2d 842 (CA10 1989); Sims v. Metropolitan Dade County, 972 F. 2d 1230 (CA11 1992).
II
A
There is no dispute in this case about when speech by a government employee is protected by the First Amendment: To be protected, the speech must be on a matter of public concern, and the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to “ ‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Connick, supra, at 142 (quoting Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568 (1968)). It is also agreed that it is the court’s task to apply the Connick test to the facts. 461 U. S., at 148, n. 7, and 150, n. 10.
The dispute is over how the factual basis for applying the test — what the speech was, in what tone it was delivered, what the listener’s reactions were, see id., at 151-153 — is to be determined. Should the court apply the Connick test to the speech as the government employer found it to be, or should it ask the jury to determine the facts for itself? The Court of Appeals held that the employer’s factual conclusions were irrelevant, and that the jury should engage in its own factfinding. Petitioners argue that the employer’s factual conclusions should be dispositive. Respondents take a middle course: They suggest that the court should accept the employer’s factual conclusions, but only if those conclusions were arrived at reasonably, see Brief for Respondents 39, something they say did not happen here.
We agree that it is important to ensure not only that the substantive First Amendment standards are sound, but also that they are applied through reliable procedures. This is why we have often held some procedures — a particular allocation of the burden of proof, a particular quantum of proof, a particular type of appellate review, and so on — to be constitutionally required in proceedings that may penalize protected speech. See Freedman v. Maryland, 380 U. S. 51, 58-60 (1965) (government must bear burden of proving that speech is unprotected); Speiser v. Randall, 357 U. S. 513,526 (1958) (same); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 775-778 (1986) (libel plaintiff must bear burden of proving that speech is false); Masson v. New Yorker Magazine, Inc., 501 U. S. 496, 510 (1991) (actual malice must be proved by clear and convincing evidence); Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503-511 (1984) (appellate court must make independent judgment about presence of actual malice).
These cases establish a basic First Amendment principle: Government action based on protected speech may under some circumstances violate the First Amendment even if the government actor honestly believes the speech is unprotected. And though Justice & alia suggests that this principle be limited to licensing schemes and to “deprivation[s] of the freedom of speech specifically through the judicial process,” post, at 687 (emphasis in original), we do not think the logic of the cases supports such a limitation. Speech can be chilled and punished by administrative action as much as by judicial processes; in no case have we asserted or even implied the contrary. In fact, in Speiser v. Randall, we struck down procedures, on the grounds that they were insufficiently protective of free speech, which involved both administrative and judicial components. Speiser, like this case, dealt with a government decision to deny a speaker certain benefits — in Speiser a tax exemption, in this case a government job — based on what the speaker said. Our holding there did not depend on the deprivation taking place “specifically through the judicial process,” and we cannot see how the result could have been any different had the process been entirely administrative, with no judicial review. We cannot sweep aside Speiser and the other cases cited above as easily as Justice Scalia proposes.
Nonetheless, not every procedure that may safeguard protected speech is constitutionally mandated. True, the procedure adopted by the Court of Appeals may lower the chance of protected speech being erroneously punished. A speaker is more protected if she has two opportunities to be vindicated — first by the employer’s investigation and then by the jury — than just one. But each procedure involves a different mix of administrative burden, risk of erroneous punishment of protected speech, and risk of erroneous exculpation of unprotected speech. Though the First Amendment creates a strong presumption against punishing protected speech even inadvertently, the balance need not always be struck in that direction. We have never, for instance, required proof beyond a reasonable doubt in civil cases where First Amendment interests are at stake, though such a requirement would protect speech more than the alternative standards would. Compare, e. g., California ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater, 454 U. S. 90,93 (1981) (per curiam), with McKinney v. Alabama, 424 U. S. 669, 686 (1976) (Brennan, J., concurring in judgment in part). Likewise, the possibility that defamation liability would chill even true speech has not led us to require an actual malice standard in all libel cases. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 761 (1985) (plurality opinion); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). Nor has the possibility that overbroad regulations may chill commercial speech convinced us to extend the overbreadth doctrine into the commercial speech area. Bates v. State Bar of Ariz., 433 U. S. 350, 380-381 (1977).
We have never set forth a general test to determine when a procedural safeguard is required by the First Amendment — -just as we have never set forth a general test to determine what constitutes a compelling state interest, see Boos v. Barry, 485 U. S. 312, 324 (1988), or what categories of speech are so lacking in value that they fall outside the protection of the First Amendment, New York v. Ferber, 458 U. S. 747, 763-764 (1982), or many other matters — and we do not purport to do so now. But though we agree with Justice Scalia that the lack of' such a test is inconvenient, see post, at 687-688, this does not relieve us of our responsibility to decide the case that is before us today. Both Justice Scalia and we agree that some procedural requirements are mandated by the First Amendment and some are not. See post, at 686. None of us have discovered a general principle to determine where the line is to be drawn. See post, at 686-688. We must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges.
Accordingly, all we say today is that the propriety of a proposed procedure must turn on the particular context in which the question arises — on the cost of the procedure and the relative magnitude and constitutional significance of the risks it would decrease and increase. And to evaluate these factors here we have to return to the issue we dealt with in Connick and in the cases that came before it: What is it about the government’s role as employer that gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large?
B
We have never explicitly answered this question, though we have always assumed that its premise is correct — that the government as employer indeed has far broader powers than does the government as sovereign. See, e. g., Pickering, 391 U. S., at 568; Civil Service Comm’n v. Letter Carri ers, 413 U. S. 548, 564 (1973); Connick, 461 U. S., at 147. This assumption is amply borne out by considering the practical realities of government employment, and the many situations in which, we believe, most observers would agree that the government must be able to restrict its employees’ speech.
To begin with, even many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees. The First Amendment demands a tolerance of “verbal tumult, discord, and even offensive utterance,” as “necessary side effects of... the process of open debate,” Cohen v. California, 403 U. S. 15, 24-25 (1971). But we have never expressed doubt that a government employer may bar its employees from using Mr. Cohen’s offensive utterance to members of the public or to the people with whom they work. “Under the First Amendment there is no such thing as a false idea,” Gertz, supra, at 339; the “fitting remedy for evil counsels is good ones,” Whitney v. California, 274 U. S. 357, 375 (1927) (Brandéis, J., concurring). But when an employee counsels her co-workers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counterspeech. The First Amendment reflects the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). But though a private person is perfectly free to uninhibitedly and robustly criticize a state governor’s legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing. Cf. Branti v. Finkel, 445 U. S. 507, 518 (1980). Even something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees. Broadrick v. Oklahoma, 413 U. S. 601 (1973); Letter Carriers, supra; Public Workers v. Mitchell, 330 U. S. 75 (1947).
Government employee speech must be treated differently with regard to procedural requirements as well. For example, speech restrictions must generally precisely define the speech they target. Baggett v. Bullitt, 377 U. S. 360, 367-368 (1964); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55 (1988). Yet surely a public employer may, consistently with the First Amendment, prohibit its employees from being “rude to customers,” a standard almost certainly too vague when applied to the public at large. Cf. Arnett v. Kennedy, 416 U. S. 134, 158-162 (1974) (plurality opinion) (upholding a regulation that allowed discharges for speech that hindered the “efficiency of the service”); id., at 164 (Powell, J., concurring in part and concurring in result in part) (agreeing on this point).
Likewise, we have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large. New of the examples we have discussed involve tangible, present interference with the agency’s operation. The danger in them is mostly speculative. One could make a respectable argument that political activity by government employees is generally not harmful, see Public Workers v. Mitchell, swpra, at 99; or that high officials should allow more public dissent by their subordinates, see Connick, supra, at 168-169 (Brennan, J., dissenting); Whistleblower Protection Act of 1989, 103 Stat. 16, or that even in a government workplace the free market of ideas is superior to a command economy. But we have given substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved is on a matter of public concern, and even though when the government is acting as sovereign our review of legislative predictions of harm is considerably less deferential. Compare, e. g., Connick, supra, at 151-152; Letter Carriers, supra, at 566-567, with Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115,129 (1989); Texas v. Johnson, 491 U. S. 397, 409 (1989). Similarly, we have refrained from intervening in government employer decisions that are based on speech that is of entirely private concern. Doubtless some such speech is sometimes nondisruptive; doubtless it is sometimes of value to the speakers and the listeners. But we have declined to question government employers’ decisions on such matters. Connick, supra, at 146-149.
This does not, of course, show that the First Amendment should play no role in government employment decisions. Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions. Pickering, supra, at 572. And a government employee, like any citizen, may have a strong, legitimate interest in speaking out on public matters. In many such situations the government may have to make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished. See, e. g., Rankin v. McPherson, 483 U. S. 378, 388 (1987); Connick, supra, at 152; Pickering, supra, at 569-571. Moreover, the government may certainly choose to give additional protections to its employees beyond what is mandated by the First Amendment, out of respect for the values underlying the First Amendment, values central to our social order as well as our legal system. See, e. g., Whistleblower Protection Act of 1989, supra.
But the above examples do show that constitutional review of government employment decisions must rest on different principles than review of speech restraints imposed by the government as sovereign. The restrictions discussed above are allowed not just because the speech interferes with the government’s operation. Speech by private people can do the same, but this does not allow the government to suppress it.
Rather, the extra power the government has in this area comes from the nature of the government’s mission as employer. Government agencies are charged by law with doing particular tasks. Agencies hire employees to help do those tasks as effectively and efficiently as possible. When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her. The reason the governor may, in the example given above, fire the deputy is not that this dismissal would somehow be narrowly tailored to a compelling government interest. It is that the governor and the governor’s staff have a job to do, and the governor justifiably feels that a quieter subordinate would allow them to do this job more effectively.
The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.
C
1
The Court of Appeals’ decision, we believe, gives insufficient weight to the government’s interest in efficient employment decisionmaking. In other First Amendment contexts the need to safeguard possibly protected speech may indeed outweigh the government’s efficiency interests. See, e.g., Freedman v. Maryland, 380 U. S. 51 (1965); Speiser v. Randall, 357 U. S., at 526. But where the government is acting as employer, its efficiency concerns should, as we discussed above, be assigned a greater value.
The problem with the Court of Appeals’ approach — under which the facts to which the Connick test is applied are determined by the judicial factfinder — is that it would force the government employer to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court. The government manager would have to ask not what conclusions she, as an experienced professional, can draw from the circumstances, but rather what conclusions a jury would later draw. If she relies on hearsay, or on what she knows about the accused employee’s character, she must be aware that this evidence might not be usable in court. If she knows one party is, in her personal experience, more credible than another, she must realize that the jury will not share that personal experience. If she thinks the alleged offense is so egregious that it is proper to discipline the accused employee even though the evidence is ambiguous, she must consider that a jury might decide the other way.
But employers, public and private, often do rely on hearsay, on past similar conduct, on their personal knowledge of people’s credibility, and on other factors that the judicial process ignores. Such reliance may sometimes be the most effective way for the employer to avoid future recurrences of improper and disruptive conduct. What works best in a judicial proceeding may not be appropriate in the employment context. If one employee accuses another of misconduct, it is reasonable for a government manager to credit the allegation more if it is consistent with what the manager knows of the character of the accused. Likewise, a manager may legitimately want to discipline an employee based on complaints by patrons that the employee has been rude, even though these complaints are hearsay.
It is true that these practices involve some risk of erroneously punishing protected speech. The government may certainly choose to adopt other practices, by law or by contract. But we do not believe that the First Amendment requires it to do so. Government employers should be allowed to use personnel procedures that differ from the evidentiary rules used by courts, without fear that these differences will lead to liability.
2
On the other hand, we do not believe that the court must apply the Connick test only to the facts as the employer thought them to be, without considering the reasonableness of the employer’s conclusions. Even in situations where courts have recognized the special expertise and special needs of certain decisionmakers, the deference to their conclusions has never been complete. Cf. New Jersey v. T. L. O., 469 U. S. 325, 342-343 (1985); United States v. Leon, 468 U. S. 897, 914 (1984); Universal Camera Corp. v. NLRB, 340 U. S. 474, 490-491 (1951). It is necessary that the decisionmaker reach its conclusion about what was said in good faith, rather than as a pretext; but it does not follow that good faith is sufficient. Justice Scalia is right in saying that we have often held various laws to require only an inquiry into the decisionmaker’s intent, see post, at 690-691, but, as discussed supra in Part II-A, this has not been our view of the First Amendment.
We think employer decisionmaking will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be. It may be unreasonable, for example, for the employer to come to a conclusion based on no evidence at all. Likewise, it may be unreasonable for an employer to act based on extremely weak evidence when strong evidence is clearly available — if, for instance, an employee is accused of writing an improper letter to the editor, and instead of just reading the letter, the employer decides what it said based on unreliable hearsay.
If an employment action is based on what an employee supposedly said, and a reasonable supervisor would recognize that there is a substantial likelihood that what was actually said was protected, the manager must tread with a certain amount of care. This need not be the care with which trials, with their rules of evidence and procedure, are conducted. It should, however, be the care that a reasonable manager would use before making an employment decision — discharge, suspension, reprimand, or whatever else— of the sort involved in the particular case. Justice Scalia correctly points out that such care is normally not constitutionally required unless the employee has a protected property interest in her job, post, at 688; see also Board of Regents of State Colleges v. Roth, 408 U. S. 564, 576-578 (1972); but we believe that the possibility of inadvertently punishing someone for exercising her First Amendment rights makes such care necessary.
Of course, there will often be situations in which reasonable employers would disagree about who is to be believed, or how much investigation needs to be done, or how much evidence is needed to come to a particular conclusion. In those situations, many different courses of action will necessarily be reasonable. Only procedures outside the range of what a reasonable manager would use may be condemned as unreasonable.
Petitioners argue that Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), forecloses a reasonableness test, and holds instead that the First Amendment was not violated unless “‘the defendant^’] intent [was] to violate the plaintiff[’s] constitutional rights.’” Brief for Petitioners 25; see also post, at 690 (Scalia, J., dissenting). Justice Scalia makes a similar argument based on Pickering, Con-nick, and Perry, which alluded to the impropriety of management “retaliation” for protected speech. Post, at 689. But in all those cases the employer assertedly knew the true content of the employee’s protected speech, and fired the employee in part because of it. In none of them did we have occasion to decide what should happen if the defendants hold an erroneous and unreasonable belief about what plaintiff said. These cases cannot be read as foreclosing an argument that they never dealt with. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952).
3
We disagree with Justice Stevens’ contention that the test we adopt “provides less protection for a fundamental constitutional right than the law ordinarily provides for less exalted rights.” Post, at 695. We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information. Where an employee has a property interest in her job, the only protection we have found the Constitution gives her is a right to adequate procedure. And an at-will government employee — such as Churchill apparently was, App. to Pet. for Cert. 70 — generally has no claim based on the Constitution at all.
Of course, an employee may be able to challenge the substantive accuracy of the employer’s factual conclusions under state contract law, or under some state statute or common-law cause of action. In some situations, the employee may even have a federal statutory claim. See NLRB v. Burnup & Sims, Inc., 379 U. S. 21 (1964). Likewise, the State or Federal Governments may, if they choose, provide similar protection to people fired because of their speech. But this protection is not mandated by the Constitution.
The one pattern from which our approach does diverge is the broader protection normally given to people in their relationship with the government as sovereign. See, e. g., New York Times Co. v. Sullivan, 376 U. S., at 279-280, cited post, at 696, 699 (Stevens, J., dissenting). But the reasons for this are those discussed supra in Part II — B: “[0]ur ‘profound national commitment’ to the freedom of speech,” post, at 699 (Stevens, J., dissenting), must of necessity operate differently when the government acts as employer rather than sovereign.
Ill
Applying the foregoing to this case, it is clear that if petitioners really did believe Perkins-Graham’s and Ballew’s story, and fired Churchill because of it, they must win. Their belief, based on the investigation they conducted, would have been entirely reasonable. After getting the initial report from Ballew, who overheard the conversation, Waters and Davis approached and interviewed Perkins-Graham, and then interviewed Ballew again for confirmation. In response to Churchill’s grievance, Hopper met directly with Churchill to hear her side of the story, and instructed Magin to interview Ballew one more time. Management can spend only so much of their time on any one employment decision. By the end of the termination process, Hopper, who made the final decision, had the word of two trusted employees, the endorsement of those employees’ reliability by three hospital managers, and the benefit of a face-to-face meeting with the employee he fired. With that in hand, a reasonable manager could have concluded that no further time needed to be taken. As respondents themselves point out, “if the belief an employer forms supporting its adverse personnel action is ‘reasonable,’ an employer has no need to investigate further.” Brief for Respondents 39.
And under the Connick test, Churchill’s speech as reported by Perkins-Graham and Ballew was unprotected. Even if Churchill’s criticism of cross-training reported by Perkins-Graham and Ballew was speech on a matter of public concern — something we need not decide — the potential disruptiveness of the speech as reported was enough to outweigh whatever First Amendment value it might have had. According to Ballew, Churchill’s speech may have substantially dampened Perkins-Graham’s interest in working in obstetrics. Discouraging people from coming to work for a department certainly qualifies as disruption. Moreover, Perkins-Graham perceived Churchill’s statements about Waters to be “unkind and inappropriate,” and told management that she knew they could not continue to “tolerate that kind of negativism” from Churchill. This is strong evidence that Churchill’s complaining, if not dealt with, threatened to undermine management’s authority in Perkins-Graham’s eyes. And finally, Churchill’s statement, as
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:
|
sc_decisiondirection
|
B
|
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.
KENNEDY, executrix of the ESTATE OF KENNEDY, DECEASED v. PLAN ADMINISTRATOR FOR DuPONT SAVINGS AND INVESTMENT PLAN et al.
No. 07-636.
Argued October 7, 2008
Decided January 26, 2009
Souter, J., delivered the opinion for a unanimous Court.
David A. Furlow argued the cause for petitioner. With him on the briefs were Kevin Pennell and Stacy L. Kelly.
Mark I. Levy argued the cause for respondents. With him on the brief were Adam H. Chames, John M. Vine, Seth J. Safra, Theodore P. Metzler, Raymond Michael Ripple, and Donna L. Goodman.
Leondra R. Kruger argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Clement, Assistant Attorney General Hochman, Deputy Solicitor General Kneedler, Robert F. Hoyt, Donald L. Korb, Nathaniel 1. Spiller, and Edward D. Sieger.
Briefs of amici curiae urging affirmance were filed for AARP by Mary Ellen Signorille and Melvin R. Radowitz; for the American Benefits Council et al. by Kent A. Mason; and for the Western Conference of Teamsters Pension Trust Fund by R. Bradford Huss.
Justice Souter
delivered the opinion of the Court.
The Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seq., generally obligates administrators to manage ERISA plans “in accordance with the documents and instruments governing” them. § 1104(a)(1)(D). At a more specific level, the Act requires covered pension benefit plans to “provide that benefits... under the plan may not be assigned or alienated,” § 1056(d)(1), but this bar does not apply to qualified domestic relations orders (QDROs), § 1056(d)(3). The question here is whether the terms of the limitation on assignment or alienation invalidated the act of a divorced spouse, the designated beneficiary under her ex-husband’s ERISA pension plan, who purported to waive her entitlement by a federal common law waiver embodied in a divorce decree that was not a QDRO. We hold that such a waiver is not rendered invalid by the text of the antialienation provision, but that the plan administrator properly disregarded the waiver owing to its conflict with the designation made by the former husband in accordance with plan documents.
I
The decedent, William Kennedy, worked for E. I. DuPont de Nemours & Company and was a participant in its savings and investment plan (SIP), with power both to “designate any beneficiary or beneficiaries... to receive all or part” of the funds upon his death, and to “replace or revoke such designation.” App. 48. The plan requires “[a]ll authorizations, designations and requests concerning the Plan [to] be made by employees in the manner prescribed by the [plan administrator],” id., at 52, and provides forms for designating or changing a beneficiary, id., at 34, 56-57. If at the time the participant dies “no surviving spouse exists and no beneficiary designation is in effect, distribution shall be made to, or in accordance with the directions of, the executor or administrator of the decedent’s estate.” Id., at 48.
The SIP is an ERISA “‘employee pension benefit plan,”’ 497 F. 3d 426, 427 (CA5 2007); 29 U. S. C. § 1002(2), and the parties do not dispute that the plan satisfies ERISA’s anti-alienation provision, § 1056(d)(1), which requires it to “provide that benefits provided under the plan may not be assigned or alienated.” The plan does, however, permit a beneficiary to submit a “qualified disclaimer” of benefits as defined under the Tax Code, see 26 U. S. C. § 2518, which has the effect of switching the beneficiary to an “alternate... determined according to a valid beneficiary designation made by the deceased.” Supp. Record 86-87 (Exh. 15).
In 1971, William married Liv Kennedy, and, in 1974, he signed a form designating her to take benefits under the SIP, but naming no contingent beneficiary to take if she disclaimed her interest. 497 F. 3d, at 427. William and Liv divorced in 1994, subject to a decree that Liv “is... divested of all right, title, interest, and claim in and to... [a]ny and all sums... the proceeds [from], and any other rights related to any... retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.” App. to Pet. for Cert. 64-65. William did not, however, execute any documents removing Liv as the SIP beneficiary, 497 F. 3d, at 428, even though he did execute a new beneficiary-designation form naming his daughter, Kari Kennedy, as the beneficiary under DuPont’s Pension and Retirement Plan, also governed by ERISA.
On William’s death in 2001, petitioner Kari Kennedy was named executrix and asked DuPont to distribute the SIP funds to William’s estate (hereinafter Estate). Ibid. DuPont, instead, relied on William’s designation form and paid the balance of some $400,000 to Liv. Ibid. The Estate then sued respondents DuPont and the SIP plan administrator (together, DuPont), claiming that the divorce decree amounted to a waiver of the SIP benefits on Liv’s part, and that DuPont had violated ERISA by paying the benefits to William’s designee.
So far as it matters here, the District Court entered summary judgment for the Estate, to which it ordered DuPont to pay the value of the SIP benefits. The court relied on Fifth Circuit precedent establishing that a beneficiary can waive his rights to the proceeds of an ERISA plan “‘provided that the waiver is explicit, voluntary, and made in good faith.’” App. to Pet. for Cert. 38 (quoting Manning v. Hayes, 212 F. 3d 866, 874 (CA5 2000)).
The Fifth Circuit nonetheless reversed, distinguishing prior decisions enforcing federal common law waivers of ERISA benefits because they involved life-insurance policies, which are considered “ ‘welfare plants]’ ” under ERISA and consequently free of the antialienation provision. 497 F. 3d, at 429. The Court of Appeals held that Liv’s waiver constituted an assignment or alienation of her interest in the SIP benefits to the Estate, and so could not be honored. Id., at 430. The court relied heavily on the ERISA provision for bypassing the antialienation provision when a marriage breaks up: under 29 U. S. C. § 1056(d)(3), a court order that satisfies certain statutory requirements is known as a QDRO, which is exempt from the bar on assignment or alienation. Because the Kennedys’ divorce decree was not a QDRO, the Fifth Circuit reasoned that it could not give effect to Liv’s waiver incorporated in it, given that “ERISA provides a specific mechanism — the QDRO — for addressing the elimination of a spouse’s interest in plan benefits, but that mechanism is not invoked.” 497 F. 3d, at 431.
We granted certiorari to resolve a split among the Courts of Appeals and State Supreme Courts over a divorced spouse’s ability to waive pension plan benefits through a divorce decree not amounting to a QDRO. 552 U. S. 1178 (2008). We subsequently realized that this case implicates the further split over whether a beneficiary’s federal common law waiver of plan benefits is effective where that waiver is inconsistent with plan documents, and after oral argument we invited supplemental briefing on that latter issue, upon which the disposition of this case ultimately turns. We now affirm, albeit on reasoning different from the Fifth Circuit’s rationale.
II
A
By its terms, the antialienation provision, § 1056(d)(1), requires a plan to provide expressly that benefits be neither “assigned” nor “alienated,” the operative verbs having histories of legal meaning: to “assign” is “[t]o transfer; as to assign property, or some interest therein,” Black’s Law Dictionary 152 (4th rev. ed. 1968), and to “alienate” is “[t]o convey; to transfer the title to property,” id., at 96. We think it fair to say that Liv did not assign or alienate anything to William or to the Estate later standing in his shoes.
The Fifth Circuit saw the waiver as an assignment or alienation to the Estate, thinking that Liv’s waiver transferred the SIP benefits to whoever would be next in line; without a designated contingent beneficiary, the Estate would take them. The court found support in the applicable Treasury Department regulation that defines “assignment” and “alienation” to include
“[a]ny direct or indirect arrangement (whether revocable or irrevocable) whereby a party acquires from a participant or beneficiary a right or interest enforceable against the plan in, or to, all or any part of a plan benefit payment which is, or may become, payable to the participant or beneficiary.” 26 CFR § 1.401(a) — 13(c)(l)(ii) (2008).
See Boggs v. Boggs, 520 U. S. 833, 851-852 (1997) (relying upon the regulation to interpret the meaning of “assignment” and “alienation” in § 1056(d)(1)). The Circuit treated Liv’s waiver as an “ ‘indirect arrangement’ ” whereby the Estate gained an “‘interest enforceable against the plan.’” 497 F. 3d, at 430.
Casting the alienation net this far, though, raises questions that leave one in doubt. Although it is possible to speak of the waiver as an “arrangement” having the indirect effect of a transfer to the next possible beneficiary, it would be odd usage to speak of an estate as the transferee of its own decedent’s property, just as it would be to speak of the decedent in his lifetime as his own transferee. And treating the estate or even the ultimate estate beneficiary as the assignee or transferee would be strange under the terms of the regulation: it would be hard to say the estate or future beneficiary “acquires” a right or interest when at the time of the waiver there was no estate and the beneficiary of a future estate might be anyone’s guess. If there were a contingent beneficiary (or the participant made a subsequent designation) the estate would get no interest; as for an estate beneficiary, the identity could ultimately turn on the law of intestacy applied to facts as yet unknown, or on the contents of the participant’s subsequent will, or simply on the participant’s future exercise of (or failure to invoke) the power to designate a new beneficiary directly under the terms of the plan. Thus, if such a waiver created an “arrangement” assigning or transferring anything under the statute, the assignor would be blindfolded, operating, at best, on the fringe of what “assignment” or “alienation” normally suggests.
The questionability of this broad reading is confirmed by exceptions to it that are apparent right off the bat. Take the case of a surviving spouse’s interest in pension benefits, for example. Depending on the circumstances, a surviving spouse has a right to a survivor’s annuity or to a lump-sum payment on the death of the participant, unless the spouse has waived the right and the participant has eliminated the survivor annuity benefit or designated a different beneficiary. See Boggs, supra, at 843; 29 U. S. C. §§ 1055(a), (b)(1)(C), (c)(2). This waiver by a spouse is plainly not barred by the antialienation provision. Likewise, DuPont concedes that a qualified disclaimer under the Tax Code, which allows a party to refuse an interest in property and thereby eliminate federal tax, would not violate the anti-alienation provision. See Brief for Respondents 21-23; 26 U. S. C. § 2518. In each example, though, we fail to see how these waivers would be permissible under the Fifth Circuit’s reading of the statute and regulation.
Our doubts, and the exceptions that call the Fifth Circuit’s reading into question, point us toward authority we have drawn on before, the law of trusts that “serves as ERISA’s backdrop.” Beck v. PACE Int’l Union, 551 U. S. 96, 101 (2007). We explained before that § 1056(d)(1) is much like a spendthrift trust provision barring assignment or alienation of a benefit, see Boggs, supra, at 852, and the cognate trust law is highly suggestive here. Although the beneficiary of a spendthrift trust traditionally lacked the means to transfer his beneficial interest to anyone else, he did have the power to disclaim prior to accepting it, so long as the disclaimer made no attempt to direct the interest to a beneficiary in his stead. See 2 Restatement (Third) of Trusts §58(1), Comment c, p. 359 (2001) (“A designated beneficiary of a spendthrift trust is not required to accept or retain an interest prescribed by the terms of the trust.... On the other hand, a purported disclaimer by which the beneficiary attempts to direct who is to receive the interest is a precluded transfer”); E. Griswold, Spendthrift Trusts §524, p. 603 (2d ed. 1947) (“The American cases, though not entirely clear, generally take the view that the interest under a spendthrift trust may be disclaimed”); Roseberry v. Moncure, 245 Va. 436, 439, 429 S. E. 2d 4, 6 (1993) (“ Tf a trust is created without notice to the beneficiary or the beneficiary has not accepted the beneficial interest under the trust, he can disclaim’” (quoting 1 A. Scott & W. Fratcher, Law of Trusts § 36.1, p. 389 (4th ed. 1987) (hereinafter Fratcher))).
We do not mean that the whole law of spendthrift trusts and disclaimers turns up in § 1056(d)(1), but the general principle that a designated spendthrift can disclaim his trust interest magnifies the improbability that a statute written with an eye on the old law would effectively force a beneficiary to take an interest willy-nilly. Common sense and common law both say that “[t]he law certainly is not so absurd as to force a man to take an estate against his will.” Townson v. Tickell, 3 Barn. & Ald. 31, 36, 106 Eng. Rep. 575, 576-577 (K. B. 1819).
The Treasury is certainly comfortable with the state of the old law, for the way it reads its own regulation “no party ‘acquires from’ a beneficiary a ‘right or interest enforceable against a plan’ pursuant to a beneficiary’s waiver of rights where the beneficiary does not attempt to direct her interest in pension benefits to another person.” Brief for United States as Amicus Curiae 18. And, being neither “plainly erroneous [n]or inconsistent with the regulation,” the Treasury Department’s interpretation of its regulation is controlling. Auer v. Robbins, 519 U. S. 452, 461 (1997) (internal quotation marks omitted).
The Fifth Circuit found “significant support” for its contrary holding in the QDRO subsections, reasoning that “[i]n the marital-dissolution context, the QDRO provisions supply the sole exception to the anti-alienation provision,” 497 F. 3d, at 430, a point that echoes in DuPont’s argument here. But the negative implication of the QDRO language is not that simple. If a QDRO provided a way for a former spouse like Liv merely to waive benefits, this would be powerful evidence that the antialienation provision was meant to deny any effect to a waiver within a divorce decree but not a QDRO, else there would have been no need for the QDRO exception. But this is not so, and DuPont’s argument rests on a false premise. In fact, a beneficiary seeking only to relinquish her right to benefits cannot do this by a QDRO, for a QDRO by definition requires that it be the “creat[ion] or recognition of] the existence of an alternate payee’s right to, or assignment] to an alternate payee [of] the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.” 29 U. S. C. § 1056(d)(3)(B)(i)(I). There is no QDRO for a simple waiver; there must be some succeeding designation of an alternate payee. Not being a mechanism for simply renouncing a claim to benefits, then, the QDRO provisions shed no light on whether a beneficiary may waive by a non-QDRO.
In sum, Liv did not attempt to direct her interest in the SIP benefits to the Estate or any other potential beneficiary, and accordingly we think that the better view is that her waiver did not constitute an assignment or alienation rendered void under the terms of § 1056(d)(1).
B
DuPont has three other reasons for saying that Liv’s waiver was barred by ERISA. They are unavailing.
First, it argues that even if the waiver is not an assignment or alienation barred under the terms of § 1056(d)(1), § 1056(d)(3)(A) still prohibits it, in providing that § 1056(d)(1) “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order [that is not a QDRO].” At the very least, DuPont reasons, Liv’s waiver included a “recognition” of William’s rights with respect to the SIP benefits. But DuPont overlooks the point that when subsection (d)(3)(A) provides that the bar to assignments or alienations extends to non-QDROs, it does nothing to expand the scope of prohibited assignment and alienation under subsection (d)(1). Whether Liv’s action is seen as a waiver or as a domestic relations order that incorporated a waiver, subsection (d)(1) does not cover it and § 1056(d)(3)(A) does not independently bar it.
Second, DuPont relies upon •§ 1056(d)(3)(H)(iii)(II), providing that if a domestic relations order is not a QDRO, “the plan administrator shall pay the segregated amounts (including any interest thereon) to the person or persons who would have been entitled to such amounts if there had been no order.” According to DuPont, because the divorce decree was not a QDRO this provision calls for paying benefits as if there had been no order. But DuPont has wrenched this language out of its setting, reading clause (iii) of subparagraph (H) as if there were no clause (i):
“During any period in which the issue of whether a domestic relations order is a qualified [QDRO] domestic relations order is being determined... the plan administrator shall separately account for the amounts (hereinafter in this subparagraph referred to as the ‘segregated amounts’) which would have been payable to the alternate payee during such period if the order had been determined to be a [QDRO].” § 1056(d)(3)(H)®.
Thus it is clear that subparagraph (H) speaks of a domestic relations order that distributes certain benefits (the “segregated amounts”) to an alternate payee, when the question for the plan administrator is whether the order is effective as a QDRO. That is the circumstance in which, for want of a QDRO, clause (iii) tells the plan administrator not to pay the alternate, but to distribute the segregated amounts as if there had been no order. Clause (iii) does not, as DuPont suggests, state a general rule that a non-QDRO is a nullity in any proceeding that would affect the determination of a beneficiary. And of course clause (iii) says nothing here at all; the divorce decree names no alternate payee, and there are consequently no “segregated amounts.”
Third, DuPont claims that a plan cannot recognize a waiver of benefits in a non-QDRO divorce decree because ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan,” with “State law” being defined to include “decisions” or “other State action having the effect of law.” §§ 1144(a), (c)(1). DuPont says that Liv’s waiver, expressed in a state-court decision and related to an employee benefit plan, is thus preempted. But recognizing a waiver in a divorce decree would not be giving effect to state law; the argument is that the waiver should be treated as a creature of federal common law, in which case its setting in a state divorce decree would be only happenstance. A court would merely be applying federal law to a document that might also have independent significance under state law. See, e. g., Melton v. Melton, 324 F. 3d 941, 945-946 (CA7 2003); Clift v. Clift, 210 F. 3d 268, 271-272 (CA5 2000); Lyman Lumber Co. v. Hill, 877 F. 2d 692, 693-694 (CA8 1989).
Ill
The waiver’s escape from inevitable nullity under the express terms of the antialienation clause does not, however, control the decision of this case, and the question remains whether the plan administrator was required to honor Liv’s waiver with the consequence of distributing the SIP balance to the Estate. We hold that it was not, and that the plan administrator did its statutory ERISA duty by paying the benefits to Liv in conformity with the plan documents.
ERISA requires “[e]very employee benefit plan [to] be established and maintained pursuant to a written instrument,” 29 U. S. C. § 1102(a)(1), “specifying] the basis on which payments are made to and from the plan,” § 1102(b)(4). The plan administrator is obliged to act “in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of [Title I] and [Title IV] of [ERISA],” § 1104(a)(1)(D), and ERISA provides no exemption from this duty when it comes time to pay benefits. On the contrary, § 1132(a)(1)(B) (which the Estate happens to invoke against DuPont here) reinforces the directive, with its provision that a participant or beneficiary may bring a cause of action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plah.”
The Estate’s claim therefore stands or falls by “the terms of the plan,” § 1132(a)(1)(B), a straightforward rule of hewing to the directives of the plan documents that lets employers “ ‘establish a uniform administrative scheme, [with] a set of standard procedures to guide processing of claims and disbursement of benefits,’ ” Egelhoff v. Egelhoff, 532 U. S. 141, 148 (2001) (quoting Fort Halifax Packing Co. v. Coyne, 482 U. S. 1, 9 (1987)); see also Curtiss-Wright Corp. v. Schoonejongen, 514 U. S. 73, 83 (1995) (ERISA’s statutory scheme “is built around reliance on the face of written plan documents”). The point is that by giving a plan participant a clear set of instructions for making his own instructions clear, ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtues of adhering to an uncomplicated rule: “simple administration, avoiding] double liability, and ensuring] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.” Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F. 2d 275, 283 (CA7 1990) (Easterbrook, J., dissenting).
And the cost of less certain rules would be too plain. Plan administrators would be forced “to examine a multitude of external documents that might purport to affect the dispensation of benefits,” Altobelli v. IBM Corp., 77 F. 3d 78, 82-83 (CA4 1996) (Wilkinson, C. J., dissenting), and be drawn into litigation like this over the meaning and enforceability of purported waivers. The Estate’s suggestion that a plan administrator could resolve these sorts of disputes through interpleader actions merely restates the problem with the Estate’s position: it would destroy a plan administrator’s ability to look at the plan documents and records conforming to them to get clear distribution instructions, without going into court.
The Estate of course is right that this guarantee of simplicity is not absolute. The very enforceability of QDROs means that sometimes a plan administrator must look for the beneficiaries outside plan documents notwithstanding § 1104(a)(1)(D); § 1056(d)(3)(J) provides that a “person who is an alternate payee under a [QDRO] shall be considered for purposes of any provision of [ERISA] a beneficiary under the plan.” But this in effect means that a plan administrator who enforces a QDRO must be said to enforce plan documents, not ignore them. In any case, a QDRO enquiry is relatively discrete, given the specific and objective criteria for a domestic relations order that qualifies as a QDRO, see §§ 1056(d)(3)(C), (D), requirements that amount to a statutory checklist working to “spare [an administrator] from litigation-fomenting ambiguities,” Metropolitan Life Ins. Co. v. Wheaton, 42 F. 3d 1080, 1084 (CA7 1994). This is a far cry from asking a plan administrator to figure out whether a claimed federal common law waiver was knowing and voluntary, whether its language addressed the particular benefits at issue, and so forth, on into factually complex and subjective determinations. See, e.g., Altobelli, supra, at 83 (Wilkinson, C. J., dissenting) (“[W]aiver provisions are often sweeping in their terms, leaving their precise effect on plan benefits unclear”); Mohamed v. Kerr, 53 F. 3d 911, 915 (CA8 1995) (making “fact-driven determination” that marriage termination agreement constituted a valid waiver under federal common law).
These are good and sufficient reasons for holding the line, just as we have done in cases of state laws that might blur the bright-line requirement to follow plan documents in distributing benefits. Two recent preemption cases are instructive here. Boggs v. Boggs, 520 U. S. 833, held that ERISA preempted a state law permitting the testamentary transfer of a nonparticipant spouse’s community property interest in undistributed pension plan benefits. We rejected the entreaty to create “through case law... a new class of persons for whom plan assets are to be held and administered,” explaining that “[t]he statute is not amenable to this sweeping extratextual extension.” Id., at 850. And in Egelhoff we held that ERISA preempted a state law providing that the designation of a spouse as the beneficiary of a nonprobate asset is revoked automatically upon divorce. 532 U. S., at 143. We said the law was at fault for standing in the way of making payments “simply by identifying the beneficiary specified by the plan documents,” id., at 148, and thus for purporting to “undermine the congressional goal of ‘minimizing] the administrative and financial burden[s]’ on plan administrators,” id., at 149-150 (quoting Ingersoll-Rand Co. v. McClendon, 498 U. S. 133, 142 (1990)); see Egelhoff, supra, at 147, n. 1 (identifying “the conflict between the plan documents (which require making payments to the named beneficiary) and the statute (which requires making payments to someone else)”).
What goes for inconsistent state law goes for a federal common law of waiver that might obscure a plan administrator’s duty to act “in accordance with the documents and instruments.” See Mertens v. Hewitt Associates, 508 U. S. 248, 259 (1993) (“The authority of courts to develop a ‘federal common law’ under ERISA... is not the authority to revise the text of the statute”). And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule. Under the terms of the SIP Liv was William’s designated beneficiary. The plan provided an easy way for William to change the designation, but for whatever reason he did not. The plan provided a way to disclaim an interest in the SIP account, but Liv did not purport to follow it. The plan administrator therefore did exactly what § 1104(a)(1)(D) required: “the documents control, and those name [the ex-wife].” McMillan v. Parrott, 913 F. 2d 310, 312 (CA6 1990).
It is no answer, as the Estate argues, that William’s beneficiary-designation form should not control because it is not one of the “documents and instruments governing the plan” under § 1104(a)(1)(D) and was not treated as a plan document by the plan administrator. That is beside the point. It is uncontested that the SIP and the summary plan description are “documents and instruments governing the plan.” See Curtiss-Wright Corp., 514 U. S., at 84 (explaining that 29 U. S. C. §§ 1024(b)(2) and (b)(4) require a plan administrator to make available the “governing plan documents”). Those documents provide that the plan administrator will pay benefits to a participant’s designated beneficiary, with designations and changes to be made in a particular way. William’s designation of Liv as his beneficiary was made in the way required; Liv’s waiver was not.
IV
Although Liv’s waiver was not rendered a nullity by the terms of § 1056, the plan administrator properly distributed the SIP benefits to Liv in accordance with the plan documents. The judgment of the Court of Appeals is affirmed on the latter ground.
It is so ordered.
The plan states that “[e]xcept as provided by Section 401(a)(13) of the [Internal Revenue] Code, no assignment of the rights or interests of account holders under this Plan will be permitted or recognized, nor shall such rights or interests be subject to attachment or other legal processes for debts.” App. 50-51. Title 26 U. S. C. §401(a)(13)(A), in language substantially tracking the text of § 1056(d)(1), provides that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.”
The Estate now says that William’s beneficiary-designation form for the Pension and Retirement Plan applied to the SIP as well, but the form on its face applies only to DuPont’s “Pension and Retirement Plan.” App. 62. In the District Court, in fact, the Estate stipulated that William “never executed any forms or documents to remove or replace Liv Kennedy as his sole beneficiary under either the SIP or [a plan that merged into the SIP].” Id., at 28. In any event, the Estate did not raise this argument in the Court of Appeals, and we will not address it in the first instance. See Taylor v. Freeland & Kronz, 503 U. S. 638, 645-646 (1992).
Section 1056(d)(3)(A) provides that the antialienation provision “shall apply to the creation, assignment, or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order, except that paragraph (1) shall not apply if the order is determined to be a qualified domestic relations order.”
Compare Altobelli v. IBM Corp., 77 F. 3d 78 (CA4 1996) (federal common law waiver in divorce decree does not conflict with antialienation provision); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F. 2d 275 (CA7 1990) (en banc) (same); Keen v. Weaver, 121 S. W. 3d 721 (Tex. 2003) (same), with McGowan v. NJR Serv. Corp., 423 F. 3d 241 (CA3 2005) (federal common law waiver in divorce decree barred by antialienation provision).
Compare Altobelli, supra (federal common law waiver controls); Mohamed v. Kerr, 53 F. 3d 911 (CA8 1995) (same); Brandon v. Travelers Ins. Co., 18 F. 3d 1321 (CA5 1994) (same); Fox Valley, supra (same); Strong v. Omaha Constr. Industry Pension Plan, 270 Neb. 1, 701 N. W. 2d 320 (2005) (same); Keen, supra (same), with Metropolitan Life Ins. Co. v. Marsh, 119 F. 3d 415 (CA6 1997) (plan documents control); Krishna v. Colgate Palmolive Co., 7 F. 3d 11 (CA2 1993) (same).
DuPont argues that Liv’s waiver would have been an invalid disclaimer at common law because it was given for consideration in the divorce settlement. But the authorities DuPont cites fail to support the proposition that a beneficiary’s otherwise valid disclaimer was invalid at common law because she received consideration. See Roseberry v. Moncure, 245 Va., at 439, 429 S. E. 2d, at 6; Smith v. Bank of Del., 43 Del. Ch. 124,126-127, 219 A. 2d 576, 577 (1966); Preminger v. Union Bank & Trust Co., 54 Mich. App. 361, 368-369, 220 N. W. 2d 795, 798-799 (1974); 4 Fratcher
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Loren A. DECKER, d/b/a Decker Truck Lines, Respondent.
No. 16738.
United States Court of Appeals Eighth Circuit.
Nov. 14, 1961.
Russell Specter, Atty., N. L. R. B., Washington, D. C., made argument for petitioner. Stuart Rothman, Gen. Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate Gen. Counsel, Marcel-Mallet-Prevost, Asst. Gen. Counsel, Melvin Pollack, Atty., N. L. R. B., Washington, D. C., were with him on the brief.
John H. Mitchell, Fort Dodge, Iowa, made argument for respondent and was on the brief.
Before SANBORN, MATTHES and RIDGE, Circuit Judges.
RIDGE, Circuit Judge.
This case is before the Court on petition of the National Labor Relations Board for enforcement of its order of August 26, 1960, issued against Loren A. Decker, d/b/a Decker Truck Lines (hereinafter called Decker) whose terminal is at Fort Dodge, Iowa, within the jurisdiction of this Court. The Board’s Decision and Order are reported in 91 N.L.R.B., at 128.
The order in question was made pursuant to Section 10(c) of the National Labor Relations Act, as amended, 29 U.S.C.A. § 160(c). It is based on findings made by the Board:
(1) that Decker violated Section 8(a) (5) and (1) of the Act, 29 U.S.C.A. § 158 (a) (5), (1), by refusing to negotiate in good faith, on and after January 21, 1959, with Local Union No. 650, Teamsters, Chauffeurs, Warehousemen & Helpers of America, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and by unilaterally increasing wages of his employees in July, 1959, after he had negotiated with that Local Union concerning wages; (2) that Decker violated Section 8(a) (3) and (1) of the act by discriminatorily denying trucker Earl Hall work from January 18 to April 11, 1959 and by discriminatorily discharging trucker Carl Reisner on March 18, 1959; (3) that Decker independently violated Section 8(a) (1) of the Act by questioning employees concerning Union activities, threatening them with economic reprisals for such activity, and by soliciting them to withdraw from the Union and to repudiate it, by promising a wage increase and by circulating an anti-Union petition. The Board’s order requires Decker to cease and desist from such unfair labor practices; to take affirmative action to reinstate trucker Reisner and to make trucker Hall whole; upon request to bargain collectively with the Local Union; to preserve and make available to the Board for examination, upon request, his pertinent records; to post at his terminal appropriate notices to be furnished him by the Regional Director ; and to notify the Regional Director what steps he has taken to comply with such directives and order.
All that Decker urges in opposition to enforcement of such order is: (1) that he has never been permitted to have an election to determine the question of Union representation, although petitions therefor were filed with the Board by him and also by three of his employees on March 28, 1959; (2) that those petitions were dismissed by the Board without a hearing after the Union filed charges accusing Decker of “unfair labor practices”; (3) that a later petition for an election filed by Decker was also dismissed because the Regional Office of the N.L.R.B. ruled the question of representation was involved in the Union’s charges as made against him and then pending before the N.L.R.B.; (4) that reinstatement of trucker Reisner has been offered and refused and he has made full settlement with Hall. Hence, Decker says, no part of the order should be enforced, and particularly that part of the Board’s order concerning Hall and Reisner, until evidence is taken concerning his right to an election and the present situation of Hall and Reisner.
None of the points urged by Decker against enforcement of the Board’s order are leveled against the sufficiency of the evidence to sustain the findings of the Board as made, from which it determined Decker’s unfair labor practices to be in violation of the Act, as above stated. The sum and substance of Decker’s main thrust is stated by him thus: “The issue before the Court is basically one of representation and Decker’s right to an election in (sic) the question of representation and the examiner’s report and the Board’s order deprive (him) of this basic right.” In his brief and by oral argument Decker “states that Union membership is not an issue in this case because Respondent’s employees were already Union members when the Union first approached the Respondent in January, 1959 * - * *. Respondent’s employees were required to belong to the Union in order to load and unload trucks at different points.”
In the light of the position assumed by Decker toward the order of the Board, enforcement of which is here sought, it is' readily perceived that only one basic question is presented for determination and that may be stated thus: whether under the facts adduced before the N.L.R.B. Decker had a right to petition for an “election” for determination of the exclusive representative for purposes of collective bargaining on behalf of his employees after he was first approached by the Local Union, informed that a majority of his drivers had signed Union cards, and was requested to negotiate with the Local Union. That he had no such right under the Act and rules of the Board will hereinafter be demonstrated. As a consequence, this opinion may be capsulated by categorically stating that a reading of the record as a whole reveals substantial evidence in support of each of the findings made by the Board in this case and it is most convincing therefrom that the Board correctly determined that Decker refused to bargain in good faith with Local Union 650, in violation of Section 8(a) (5) and (1) of the Act.
These salient facts appear from the record. On January 10, 1959, six of the eight over-the-road drivers regularly employed by Decker met with a representative of Local Union 650 and signed cards authorizing that Union to act as their collective bargaining agent with Decker. January 21, 1959, Melvin Jensen, Business Representative of Local 650, called on Decker, informed him that he had with him Union cards from six of Decker’s drivers and requested him to recognize that Union as the bargaining representative of his drivers and for an opportunity to negotiate a contract. Jensen offered to show Decker the Union cards. Decker did not ask to see the cards, instead Decker put Jensen off with a flimsy reason. February 4, 1959, Jensen returned to Decker’s terminal to renew his request for negotiations.. This time he was ordered off the premises by Decker. February 11, 1959, Jensen advised Decker that the drivers would strike unless the Union was recognized and a contract agreed upon by February 21, 1959. At that time, all eight regular drivers of Decker had signed Union cards. February 16, 1959, Decker consulted his attorney, who merely informed Jensen that his client “is going to require that your Union be certified” by the N.L.R.B. “When the certification is made the Company is ready: — (and) will promptly arrange for bargaining sessions.” Subsequent thereto, but before March 27,1959, Decker, his Attorney and Jensen had several conferences at which contract provisions were negotiated. It is admitted that an agreement on a wage scale was reached before March 27, 1959. On the last-mentioned date a letter was sent by Decker’s Attorney to Jensen, in which it was stated in part: “the addendum has not been signed by Loren Decker and (sic) he believes there should be an election to determine the bargaining agent for his employees.” That letter also contained this significant paragraph:
“This is brought about because of real serious trouble he is having with his employees, and it is my understanding that they too will ask for an election.”
There is substantial evidence in the record that the “trouble” referred to in that letter was the result of threats of discharge, coercion, intimidation, promise of wage increase, encouraging employees to negotiate directly with Decker, and circulation of anti-Union petition sponsored by Decker. The following was also established; after Decker learned of Union activities on the part of his employees, he interrogated the drivers concerning that matter and threatened them with reprisals and Decker singled out Hall, Reisner and another employee as the ones whom he believed to be responsible for Union activities coming into his business. Although eight of his employees had signed Union cards before February 7, 1959, by mid-March the Union’s majority had been dissipated because of Decker’s above-mentioned conduct. In a move to get a contract executed to which the Union would not be a party, Decker held a meeting in his office, with all employees present. Here Decker said he would give them a raise but he could not afford to sign a Union contract. Thereafter, Hall, who refused to go along, was discriminatively denied runs, and Carl Reisner was terminated, as the Board found, “because of Decker’s desire to get rid of one of the last Union adherents on his payroll.” Notwithstanding-the foregoing and other matters shown in the record, it was not until April 10, 1959, that Decker filed a petition for an election with the N.L.R.B. No action was taken on that petition by the Board because of the Union’s unfair labor charges filed against Decker on April 19, 1959. Effective July 12, 1959, , ... ,, Decker, without prior consultation or no- ,. . .. TT . ... ~ , tice to the Union, put into effect wage , .. ... ’ ,. ... ,, rates identical with those set out m the TT , , Union s addendum prepared for Decker s , , , T signature after negotiations between Jen- ° . .. f . sen, Decker and his lawyer.
It is too late, in light of the declared wisdom found in the National Labor Relations Act, for an employer to drift into an eddy, as Decker does, and now make the contention that he has no duty to bargain with a particular Union until it has been certified by the Board, after an election. Under the N.L.R.B., “An employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support.” N. L. R. B. v. Dahlstrom Metallic Door Co., 2 Cir., 1940, 112 F.2d 756, 757. “The Act is clear in intent, and it has been too well established to require extended discussion, that election a.nd certification proceedings are not the only method of determining majority representation * * Matter of L. B. Hartz Stores, 1946, 71 N.L.R.B. 848, 871. See also I. O. B. et al. v. Los Angeles Brewing Co., Inc., et al., 9 Cir., 1950, 183 F.2d 398, 405, and cases there cited. Decker’s contention, that he had no duty to bargain until Local 650 had established its majority status by a Board election, is frivolous. Medo Photo Corp. v. N. L. R. B., 1944, 321 U.S. 678, 64 S.Ct. 830, 321 U.S. 678; N. L. R. B. v National Seal Corp., 2 Cir., 1942, 127 F.2d 776. “He made no inquiry of the Union’s agents or, so far as it appears, of any one else as to who constituted the majority for the Union” when he was first asked to negotiate, “but merely engaged in acts violative of the Act,” similar to those considered by this Court in N. L. R. B. v. Wheeling Pipe Line, Inc., 8 Cir., 1956, 229 F.2d 391, at page 393. Under Section 9(c) (1) of the National Labor Relations Act, 29 U.S.C.A. § 159(c) (1), it has been held:
(¡„, . , , There is no absolute right vested . . , . . , ,. m an employer to demand an election, T T . , „ . „ I. O. B. v. Los Angeles Brewing Co. , . T„ , . , (supra). If an employer m good . ... , , , ,, . , . ., . faith doubts the union s majority, he ... , . , ,. . ’ may, without violating the Act, re- . , ,, ... ., fuse to recognize the union until its daim is established by a Board election. A doubt professed by an employer as to the union’s majority claim must be genuine. Otherwise employer has a duty to bargain an<^ may no^ insist upon a.n eleetion. See N. L. R. B. v. Trimfit of California, 9 Cir., 1954, 211 F.2d 206, 209. Accord Joy Silk Mills v. N. L. R. B., 1950, 87 U.S.App.Div. D.C. 360, 185 F.2d 732.
jn case a-¿ there is no evidence, or even a suggestion on the part of Decker that he ever had a bona fide doubt as to the Local Union 650’s majority status ¡n january; 1959. On the contrary, it is clearly established that as soon as Decker learned that a majority of his employees had signed cards with that Union he immediately began to pursue a course of conduct in an attempt to dissipate that majority. As said in N. L. R. B. v. Trimfit of California, supra, 211 F.2d l. c. 210:
“(He) consistently refused to bargain with the union, which at all relevant times represented a majority of (his) employees. Not once (from January 21, 1959 to February 7, 1959) did (Decker) challenge the union’s right to represent (his) employees. On both of these occasions the union informed (Decker) that a majority of (his) employees had signed union cards. There was no necessity for the union to offer proof of the genuineness of its majority claim absent a challenge by (Decker). (His) refusal to bargain was not based upon any doubt that the - union spoke for a majority of the . employees. (Decker) would have refused to bargain had every employee in the plant signed authorization cards” (which is an established fact in the record of the case at bar). (Par. added)
The “findings of the Board (are) conclusive with respect to questions of fact — * * * when supported by substantial evidence on the record as a whole * * N. L. R. B. v. Denver Building & Construction Trades Council, et al., 1951, 341 U.S. 675, 691, 71 S.Ct. 943, 953, 77 L.Ed. 1284. In keeping with the Act, we find that on the record as a whole there is substantial evidence to support the totality of the Board findings as made in this case.
The only other matter that should be noticed in this case is the point made by -Decker in argument but which he does not undertake to support by fortifying authority, namely, “it is necessary that additional evidence be taken to protect Respondent’s rights in this case. So the Respondent files this Application ;
“The Respondent respectfully requests that enforcement of the Board’s order be denied- and that it particularly be denied until such time . as the Respondent is- given an opportunity to protect his statutory and constitutional rights by the introduction of evidence on the question of representation and on the question of full compliance with the Board’s order as far as the employees Hall and Reisner are concerned.”
The record made before the Trial Examiner and considered by the Board in this case patently reveals that Decker, with counsel, was given every opportunity to participate, and did so fully, in all hearings leading up to the cease and desist order as entered by the Board. The “question of representation” was thoroughly sounded at the hearings, and this specific finding was made by the Examiner in his report: “It is apparent from Decker’s own testimony, * * * that he never accepted the principle of negor tiating with the Union as the exclusive bargaining agent for his employees.” The evidence which Decker says he now wants to introduce in the record is directed to the proposition that the Union had lost a majority of his employees at the time he filed a petition for an election, and to develop his compliance with the Board’s order as to Reisner and Hall. It is well established that where the Union’s loss of majority is attributable to the employer’s unfair labor practices, as found by the Board in this case, the Union does not lose its representative status. Medo Corp. v. N. L. R. B. supra; Franks Bros. Co. v. N. L. R. B., 1944, 321 U.S. 702, 64 S.Ct. 817, 88 L.Ed. 1020. Compliance may not be raised as a bar to the enforcement of a Board order. N. L. R. B. v. Mexia Textile Mills, Inc., 1950, 339 U.S. 563, 569, 70 S.Ct. 833, 94 L.Ed. 1067; N. L. R. B. v. Swift & Co., 8 Cir., 1942, 129 F.2d 222, 224.
Enforcement of the order is awarded as prayed.
. The Board has a policy not to conduct representative elections during the pend-ency of unfair labor practice charges. N. L. R. B. v. Trimfit of California, 9 Cir., 1954, 211 F.2d 206, 209, note 2.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_casetyp1_1-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
Kenneth WEAVER, Petitioner-Appellant, v. Dale FOLTZ, Respondent-Appellee.
No. 88-1450.
United States Court of Appeals, Sixth Circuit.
Argued Sept. 21, 1989.
Decided Nov. 2, 1989.
Frank D. Eaman (argued), Bellanca, Beattie and De Lisle, Detroit, Mich., for petitioner-appellant.
Carolyn Schmidt, Asst. Atty. Gen. (argued), Detroit, Mich., for respondent-appel-lee.
Before MERRITT, Chief Judge, KRUPANSKY, Circuit Judge, and GRAHAM, District Judge.
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by designation.
MERRITT, Chief Judge.
In this case, the District Court dismissed Weaver’s habeas corpus petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as a “mixed” petition containing exhausted and unex-hausted issues. It did so without regard to the subsequent case of Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), which allows consideration of exhausted issues in mixed habeas corpus petitions. In our view, Weaver’s insufficient evidence claim under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), may well be dispositive of the case; and, as stated by the District Court, that federal claim was exhausted because it was fairly presented to the Michigan courts. Accordingly, we exercise our discretion under Granberry and vacate the District Court’s order denying relief. Further, we remand for consideration of the insufficient evidence claim and any other federal claims fairly presented to the Michigan courts.
FACTS
The state charged four men — Weaver, his twin brother, Hopson, and Thompson with the murder of Hagwood. The evidence against Hopson and Weaver appears to be identical: both were among a group of four men arguing with Hagwood when Thompson pulled a gun from his car and fatally shot Hagwood. The only eyewitness to the shooting, Elaine Faye Peterson, testified at the separate trials of Weaver and Hopson. In her account of the night of the shooting, Hagwood had argued in a barroom with Hopson and the Weaver twins over ownership of a radio. All four men left the bar and continued to argue outside, where Hopson and the Weavers threatened that Hagwood “would never see daylight.” It was then that Thompson shot Hagwood. After the shooting, two other witnesses saw Hopson and one of the Weaver twins walk to Hopson’s home and exchange with the residents some item or items which may have been the shell casings from Thompson’s gun.
PROCEDURAL HISTORY
A jury convicted Weaver of aiding and abetting first-degree murder and possession of a firearm in the commission of a felony; he was sentenced to life without parole and two years, respectively. After the Michigan trial court denied Weaver’s motion for a new trial, the Michigan Court of Appeals upheld his aiding and abetting conviction, vacated his felony firearm conviction, and denied his motion for reconsideration. Weaver subsequently unsuccessfully sought review by the Michigan Supreme Court.
Weaver then petitioned for a writ of ha-beas corpus in the District Court. He alleged that the following events violated his federal constitutional rights: 1) the evidence was insufficient; 2) the judge failed to give a cautionary instruction regarding the testimony of an addict-informant; 3) the prosecution withheld exculpatory evidence; 4) the judge erroneously admitted testimony that a codefendant had taken a polygraph test; 5) Weaver was denied effective assistance of counsel due to joint representation of Weaver and his twin brother; and 6) the judge denied a new trial based on newly discovered evidence.
In its answer to Weaver’s petition, the state conceded that Weaver had exhausted his federal claims in the Michigan courts, but persuaded the District Court that issues two, four, and six had not been raised as federal questions in state court. Relying on the “mixed petition” principle set forth in Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) (plurality opinion), the District Court dismissed the petition because it contained both exhausted and unexhausted claims. In his motion for reconsideration, Weaver insisted that he had exhausted his federal claims in state court, and emphasized that a codefendant (Hopson) who had been tried separately on identical evidence had received a writ of habeas corpus from this Court on the ground of insufficient evidence. After the District Court denied his motion, Weaver appealed to this Court.
ISSUE I: INSUFFICIENT EVIDENCE
Our account of the facts and evidence against Hopson in Hopson v. Foltz, [818 F.2d 866 (Table)] (6th Cir.1987), and the facts and evidence as presented in the Michigan Court of Appeals in Weaver’s case appear to be identical. Interpreting the decisions of Michigan courts and of this Circuit, we held that Hopson’s “passive acquiescence” without “some conscious action to make the criminal venture succeed” fell short of the threshold conduct required of an aider and abettor of first-degree murder. Hopson, slip op. at 3.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Supreme Court held that an individual’s state court conviction on insufficient evidence violates the due process clause of the Fourteenth Amendment. That seminal case established the pertinent standard of review.
[W]hether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Id. at 319, 99 S.Ct. at 2789. A writ of habeas corpus must issue to any habeas petitioner whose conviction falls short of this standard. Id. at 317-18, 99 S.Ct. at 2788.
Reviewing the facts of Hopson under the Jackson standard, this Court was unable to conclude that a rational juror could find beyond a reasonable doubt that Hopson aided and abetted the shooting. Hopson, slip op. at 3. At most, Hopson was present at the shooting, he may have argued with Hagwood shortly before the shooting, he may have known that someone intended to harm Hagwood, and he may have taken the empty shell casings after the shooting. Id. There was no evidence that Hopson acted in pre-concert with Thompson or that he in any way supported, encouraged, or incited commission of the crime. Id. at 4. Hopson’s actions, perhaps sufficient to make him an accessory after the fact, did not rise to the level of an aider and abettor in the killing. Id. As a result, this Court issued Hopson’s writ of habeas corpus. Id.
The state presented no evidence at trial or any subsequent stage to distinguish the evidence against these codefendants. Accordingly, we instruct the District Court on remand to consider Weaver’s insufficient evidence claim in light of Hopson v. Foltz.
ISSUE II: FAIR PRESENTATION OF FEDERAL CLAIMS IN STATE COURT
Notwithstanding the insufficient evidence claim, Weaver asks this Court to direct the District Court to reach the merits of the remaining five claims made in his original petition. Should the District Court determine that the writ should not issue on the basis of the insufficient evidence claim, we instruct it to consider the merits of those claims which have been fairly presented to the Michigan courts.
The guiding principles for the District Court’s inquiry come from two Supreme Court cases. See, e.g., Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (per curiam) (substance of respondent’s claim was not fairly presented to state courts so as to meet exhaustion requirement); Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (constitutional claim itself and not just underlying facts must be presented to state courts). The Supreme Court’s requirement of fair presentation has been strictly followed in this Circuit. See, e.g., Franklin v. Rose, 811 F.2d 322, 325 (6th Cir.1987) (catch-all allegations such as constitutional right to a fair trial supported only by state law do not fairly apprise state court of specific constitutional theory); Petrucelli v. Coombe, 735 F.2d 684, 688 (6th Cir.1984) (“fair trial” and “due process” do not call to mind a specific right protected by the Constitution).
In its order denying Weaver’s petition for habeas relief, the District Court concluded that three of Weaver’s six federal claims satisfied the Supreme Court’s requirement of fair presentation to the state courts. Should the District Court decide against Weaver’s insufficient evidence claim on remand, then it should reach the merits of the two remaining exhausted federal claims. Weaver may not present in a habeas petition his three remaining federal claims that the Michigan courts did not have fair opportunity to address.
ISSUE III: EXHAUSTION OF STATE COURT REMEDIES
A. Mixed Petitions
The District Court grounded its dismissal of Weaver’s petition on the strict exhaustion dictate of Rose v. Lundy, in which the Supreme Court held that habeas courts must dismiss petitions containing both exhausted and unexhausted claims. A prisoner filing a “mixed petition” could choose to return to state court and exhaust his nonexhausted claims, or to drop them and proceed in federal court with only the exhausted claims. Rose v. Lundy, however, has not survived Granberry v. Greer intact. After Granberry, a federal appellate court may, in “extraordinary cases” requiring “prompt federal intervention,” reverse the district court's dismissal and reach the merits of the mixed petition. Alternatively, it may reverse the dismissal and remand for consideration by the district court as we elect to do here. The factual and evidentiary overlap between Hopson v. Foltz and this case is “extraordinary.”
B. Waiver
The final issue on appeal concerns Weaver's allegation that the state waived the right to raise the exhaustion issue in this Court by conceding in its answer to his petition that Weaver had exhausted his federal claims in state court. Although the District Court confronted the waiver issue, it did so without the perspective offered by the Supreme Court’s decision in Granberry v. Greer. Before Granberry, this Circuit interpreted the strict exhaustion dictate of Rose v. Lundy to prohibit states from waiving the exhaustion requirement. See Bowen v. Tennessee, 698 F.2d 241, 243 (6th Cir.1983) (en banc). But like Rose v. Lundy, Bowen has not survived Granberry intact. See, e.g., Cobb v. Perini, 832 F.2d 342, 345 (6th Cir.1987) (“Granberry casts considerable doubt on our prior decisions requiring total exhaustion.”). Granberry has circumscribed the exhaustion requirement by allowing federal courts to use their sound discretion in deciding the waiver issue and to make exceptions in the application of the mixed petition doctrine of Rose v. Lundy.
Accordingly, we exercise our discretion in this case under Granberry. The judgment of the District Court is reversed and the case remanded for consideration first of the Jackson v. Virginia claim, and if necessary, any other claims which Weaver has exhausted in the state courts of Michigan.
. One month after the Court decided Granberry, this Court expressly approved bypassing the exhaustion requirement in a case in which the state conceded the exhaustion issue. See Prather v. Rees, 822 F.2d 1418, 1421-22 (6th Cir.1987).
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
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.
LAMBRIX v. SINGLETARY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS
No. 96-5658.
Argued January 15, 1997
Decided May 12, 1997
Matthew C. Lawry, by appointment of the Court, 519 U. S. 1005, argued the cause for petitioner. With him on the briefs was Mark Evan Olive.
Carol M. Dittmar, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Justice Scalia
delivered the opinion of the Court.
We granted certiorari in this case to consider whether a prisoner whose conviction became final before our decision in Espinosa v. Florida, 505 U. S. 1079 (1992) (per curiam), is foreclosed from relying on that decision in a federal habeas corpus proceeding because it announced a “new rule” as defined in Teague v. Lane, 489 U. S. 288 (1989).
I
On February 5, 1983, Cary Michael Lambrix and his girlfriend, Frances Smith, met Clarence Moore and Aleisha Bryant at a local tavern. The two couples returned to Lam-brix’s trailer for dinner, where Lambrix killed Moore and Bryant in brutal fashion. Lambrix was convicted on two counts of first-degree murder. In the sentencing phase of trial, the jury rendered an advisory verdict recommending that the trial court sentence Lambrix to death on both counts. The trial court, after finding five aggravating circumstances in connection with the murder of Moore, four aggravating circumstances in connection with the murder of Bryant, and no mitigating circumstances as to either murder, sentenced Lambrix to death on both counts. Lambrix’s conviction and sentence were upheld on direct appeal by the Florida Supreme Court. Lambrix v. State, 494 So. 2d 1143 (1986).
After the Florida courts denied his repeated efforts to obtain collateral relief, Lambrix v. Dugger, 529 So. 2d 1110 (Fla. 1988); Lambrix v. State, 534 So. 2d 1151 (Fla. 1988); Lambrix v. State, 559 So. 2d 1137 (Fla. 1990), Lambrix filed a petition for a writ of habeas corpus pursuant to 28 U. S. C. §2254 in the United States District Court for the Southern District of Florida; that court rejected all of his claims. While Lambrix’s appeal was pending before the Court of Appeals for the Eleventh Circuit, this Court decided Espinosa v. Florida, supra, which held that if the sentencing judge in a “weighing” State (i. e., a State that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial) is required to give deference to a jury’s advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since Florida is such a State, and since one of Lambrix’s claims was that his sentencing jury was improperly instructed on the “especially heinous, atrocious, or cruel” (HAC) aggravator, Espinosa had obvious relevance to his habeas petition. Rather than address this issue in the first instance, however, the Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his Espinosa claim to the Florida state courts.
The Florida Supreme Court rejected Lambrix’s Espinosa claim without considering its merits on the ground that the claim was procedurally barred. Lambrix v. Singletary, 641 So. 2d 847 (1994). That court explained that although Lam-brix had properly preserved his Espinosa objection at trial by requesting a limiting instruction on the HAC aggravator, he had failed to raise the issue on direct appeal. 641 So. 2d, at 848. The Florida Supreme Court also rejected Lambrix’s claim that the procedural bar should be excused because his appellate counsel was ineffective in failing to raise the forfeited issue, explaining that this claim was itself procedurally barred and was, in any event, meritless. Id., at 848-849.
After the Florida Supreme Court entered judgment against Lambrix, the Eleventh Circuit adjudicated his ha-beas petition. Without even acknowledging the procedural bar — which was expressly raised and argued by the State— the Court of Appeals proceeded to address the Espinosa claim, and determined that Espinosa announced a new rule which cannot be applied retroactively on federal habeas under Teague v. Lane, supra. 72 F. 3d 1500, 1503 (1996). We granted certiorari. 519 U. S. 958 (1996).
II
Before turning to the question presented m this case, we pause to consider the State’s contention that Lambrix’s Es-pinosa claim is procedurally barred because he failed to contend that the jury was instructed with a vague HAC aggra-vator on his direct appeal to the Florida Supreme Court. According to the State, the Florida Supreme Court “has consistently required that an Espinosa issue must have been objected to at trial and pursued on direct appeal in order to be reviewed in postconviction proceedings.” Brief for Respondent 30, citing Chandler v. Dugger, 634 So. 2d 1066, 1069 (Fla. 1994), Jackson v. Dugger, 633 So. 2d 1051, 1055 (Fla. 1993), and Henderson v. Singletary, 617 So. 2d 313 (Fla.), cert. denied, 507 U. S. 1047 (1993).
In Coleman v. Thompson, 501 U. S. 722, 729 (1991), we reaffirmed that this Court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” See also Harris v. Reed, 489 U. S. 255, 262 (1989). We in fact lack jurisdiction to review such independently supported judgments on direct appeal: Since the state-law determination is sufficient to sustain the decree, any opinion of-this Court on the federal.question would be purely advisory. Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945); see also Sochor v. Florida, 504 U. S. 527, 533-534, and n. (1992). The “independent and adequate state ground” doctrine is not technically jurisdictional when a federal court considers a state prisoner’s petition for habeas corpus pursuant to 28 U. S. C. §2254, since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” We have nonetheless held that the doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law. Coleman, supra, at 729-730, 750; see also Wainwright v. Sykes, 433 U. S. 72, 81, 82 (1977), discussing Brown v. Allen, 344 U. S. 443, 486-487 (1953), and Ex parte Spencer, 228 U. S. 652 (1913); Harris, supra, at 262.
Application of the “independent and adequate state ground” doctrine to federal habeas review is based upon equitable considerations of federalism and comity. It “ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases.” Coleman, 501 U. S., at 732. “[A] habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Ibid. If the “independent and adequate state ground” doctrine were not applied, a federal district court or court of appeals would be able to review claims that this Court would have been unable to consider on direct review. See id., at 730-731.
We have never had occasion to consider whether a federal court should resolve a State’s contention that a petitioner’s claim is procedurally barred before considering whether his claim is Teague barred. Our opinions, however — most particularly, Coleman — certainly suggest that the procedural-bar issue should ordinarily be considered first. It was speculated at oral argument that the Court of Appeals may have resolved the Teague issue without first considering procedural bar because our opinions have stated that the Teague retroactivity decision is to be made as a “threshold matter.” E. g., Penry v. Lynaugh, 492 U. S. 302, 329 (1989); Caspari v. Bohlen, 510 U. S. 383, 389 (1994). That simply means, however, that the Teague issue should be addressed “before considering the merits of [a] claim.” 510 U. S., at 389. It does not mean that the Teague inquiry is antecedent to consideration of the general prerequisites for federal habeas corpus which are unrelated to the merits of the particular claim— such as the requirement that the petitioner be “in custody,” see 28 U. S. C. § 2254(a), or that the state-court judgment not be based on an independent and adequate state ground. Constitutional issues are generally to be avoided, and as even a cursory review of this Court’s new-rule cases reveals (including our discussion in Part IV, infra), the Teague inquiry requires a detailed analysis of federal constitutional law. See, e. g., Sawyer v. Smith, 497 U. S. 227, 233-241 (1990); Penry, supra, at 316-319; Gilmore v. Taylor, 508 U. S. 333, 339-344 (1993); Saffle v. Parks, 494 U. S. 484, 488-494 (1990).
We are somewhat puzzled that the Eleventh Circuit, after having held proceedings in abeyance while petitioner brought his claim in state court, did not so much as mention the Florida Supreme Court’s determination that Lambrix’s Espinosa claim was procedurally barred. The State of Florida raised that point before both the District Court and the Court of Appeals, going so far as to reiterate it in a postjudgment Motion for Clarification and/or Modification of Opinion before the Court of Appeals, reprinted at App. 176. A State’s procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system. We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the Teague question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law. Cf. 28 U. S. C. § 2254(b)(2) (permitting a federal court to deny a habeas petition on the merits notwithstanding the applicant’s failure to exhaust state remedies).
Despite our puzzlement at the Court of Appeals’ failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on that basis ourselves. Lambrix asserts several reasons why his claim is not procedurally barred, which seem to us insubstantial but may not be so; as we have repeatedly recognized, the courts of appeals and district courts are more familiar than we with the procedural practices of the States in which they regularly sit, see, e. g., Rummel v. Estelle, 445 U. S. 263, 267, n. 7 (1980); County Court of Ulster Cty. v. Allen, 442 U. S. 140, 153-154 (1979). Rather than prolong this litigation by a remand, we proceed to decide the case on the Teague grounds that the Court of Appeals used.
III
Florida employs a three-stage sentencing procedure. First, the jury weighs statutorily specified aggravating circumstances against any mitigating circumstances, and renders an “advisory sentence” of either life imprisonment or death. Fla. Stat. §921.141(2) (Supp. 1992). Second, the trial court weighs the aggravating and mitigating circumstances, and enters a sentence of life imprisonment or death; if the latter, its findings must be set forth in writing. §921.141(3). The jury’s advisory sentence is entitled to “great weight” in the trial court’s determination, Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), but the court has an independent obligation to determine the appropriate punishment, Ross v. State, 386 So. 2d 1191, 1197 (Fla. 1980). Third, the Florida Supreme Court automatically reviews all cases in which the defendant is sentenced to death. §921.141(4).
Lambrix’s jury, which was instructed on five aggravating circumstances, recommended that he be sentenced to death for each murder. The trial court found five aggravating circumstances as to Moore’s murder and four as to Bryant’s, including that each murder was “especially heinous and atrocious”; it found no mitigating circumstances as to either murder; it concluded that the aggravating circumstances outweighed the mitigating, and sentenced Lambrix to death on each count. App. 20-21. Although Lambrix failed to raise any claims concerning the sentencing procedure on direct appeal, the Florida Supreme Court agreed with the trial court’s findings as to the aggravating circumstances. Lambrix v. State, 494 So. 2d, at 1148.
Lambrix contends that the jury’s consideration of the HAC aggravator violated the Eighth Amendment because the jury instructions concerning this circumstance failed to provide sufficient guidance to limit the jury’s discretion. Like the Eleventh Circuit, see 72 F. 3d, at 1503, we assume, arguendo, that this was so. Lambrix further contends (and this is at the heart of the present case) that the trial court’s independent weighing did not cure this error. Prior to our opinion in Espinosa v. Florida, 505 U. S. 1079 (1992), the State had contended that Lambrix was not entitled to relief because the sentencing judge properly found and weighed a narrowed HAC aggravator. In Espinosa, however, we established the principle that if a “weighing” State requires the sentencing trial judge to give deference to a jury’s advisory recommendation, neither the judge nor the jury is constitutionally permitted to weigh invalid aggravating circumstances. Lam-brix seeks the benefit of that principle; the State contends that it constitutes a new rule under Teague and thus cannot be relied on in a federal habeas corpus proceeding.
In Teague we held that, in general, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U. S., at 310-311. To apply Teague, a federal court engages in a three-step process. First, it determines the date upon which the defendant’s conviction became final. See Caspari v. Bohlen, 510 U. S., at 390. Second, it must ‘“[s]urve[y] the legal landscape as it then existed,’ Graham v. Collins, [506 U. S. 461, 468 (1993)], and ‘determine whether a state court considering [the defendant’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,’ Saffle v. Parks, 494 U. S. 484, 488 (1990).” Ibid. Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the reliéf sought falls within one of the two narrow exceptions to nonretroactivity. See Gilmore v. Taylor, 508 U. S., at 345.
IV
Lambrix’s conviction became final on November 24, 1986, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in Espinosa was dictated by then-existing precedent — whether, that is, the unlawfulness of Lambrix’s conviction was apparent to all reasonable jurists. See, e. g., Graham v. Collins, 506 U. S. 461, 477 (1993); Butler v. McKellar, 494 U. S. 407, 415 (1990); id., at 417-418 (Brennan, J., dissenting).
In Espinosa, we determined that the Florida capital jury is, in an important respect, a cosentencer with the judge. As we explained: “Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court’s process of weighing aggravating and mitigating circumstances.” 505 U. S., at 1082. We then concluded that the jury’s consideration of a vague aggravator tainted the trial court’s sentence because the trial court gave deference to the jury verdict (and thus indirectly weighed the vague aggravator) in the course of weighing the aggravating and mitigating circumstances. Ibid. We reasoned that this indirect weighing created the same risk of arbitrariness as the direct weighing of an invalid aggravating factor. Ibid.
In our view, Espinosa was not dictated by precedent, but announced a new rule which cannot be used as the basis for federal habeas corpus relief. It is significant that Espinosa itself did not purport to rely upon any controlling precedent. The opinion cited only a single case, Baldwin v. Alabama, 472 U. S. 372, 382 (1985), in support of its central conclusion that indirect weighing of an invalid aggravator “creates the same potential for arbitrariness” as direct weighing of an invalid aggravator. Espinosa, 505 U. S., at 1082. And it introduced that lone citation with a “cf.” — an introductory signal which shows authority that supports the point in dictum or by analogy, not one that “controls” or “dictates” the result.
Baldwin itself contains further evidence that Espinosa set forth a new rule. Baldwin considered the constitutionality of Alabama’s death sentencing scheme, in which the jury’was required to “fix the punishment at death” if it found the defendant guilty of an aggravated offense, whereupon the trial court would conduct a sentencing hearing at which it would determine a sentence of death or of life imprisonment. 472 U. S., at 376. The defendant contended that because the jury’s mandatory sentence would have been unconstitutional standing alone, see Woodson v. North Carolina, 428 U. S. 280, 288-305 (1976) (plurality opinion), it was impermissible for the trial court to consider that verdict in determining its own sentence. We did not reach that contention because we concluded that under Alabama law the jury’s verdict formed no part of the trial judge’s sentencing calculus. Id., at 382. We noted, however, on the page of the opinion that Espinosa cited, that the defendant’s “argument conceivably might have merit if the judge actually were required to consider the jury’s ‘sentence’ as a recommendation as to the sentence the jury believed would be appropriate, cf. Proffitt v. Flor ida, 428 U. S. 242 (1976), and if the judge were obligated to accord some deference to it.” Baldwin, 472 U. S., at 382 (emphasis added); see also id., at 386, n. 8 (“expressing] no view” on the same point). This highly tentative expression, far from showing that Baldwin “dictate[sj” the result in Espinosa, see Sawyer v. Smith, 497 U. S., at 235, suggests just the opposite. Indeed, in Baldwin the Chief Justice, who believed that Alabama’s scheme did contemplate that the trial judge would consider the jury’s “sentence,” nonetheless held the scheme constitutional. 472 U. S., at 392 (opinion concurring in judgment).
The Supreme Court decisions relied upon most heavily by petitioner are Godfrey v. Georgia, 446 U. S. 420 (1980); Maynard v. Cartwright, 486 U. S. 356 (1988); and Clemons v. Mississippi, 494 U. S. 738 (1990). In Godfrey, we held that Georgia’s “outrageously or wantonly vile, horrible and inhuman” aggravator was impermissibly vague, reasoning that there was nothing in the words “outrageously or wantonly vile, horrible and inhuman” “that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence,” and concluded that these terms alone “gave the jury no guidance.” 446 U. S., at 428-429 (plurality opinion). Similarly, in Maynard v. Cartwright, applied retroactively to February 1985 in Stringer v. Black, 503 U. S. 222 (1992), we held that Oklahoma’s HAC aggravator, which is identically worded to Florida’s HAC aggravator, was impermissibly vague because the statute gave no more guidance than the vague aggravator at issue in Godfrey and the sentencing jury was not given a limiting instruction. 486 U. S., at 363-364.
Although Godfrey and Maynard support the proposition that vague aggravators must be sufficiently narrowed to avoid arbitrary imposition of the death penalty, these cases, and others, demonstrate that the failure to instruct the sentencing jury properly with respect to the aggravator does not automatically render a defendant’s sentence unconstitutional. We have repeatedly indicated that a sentencing jury’s consideration of a vague aggravator can be cured by appellate review. Thus, in Godfrey itself, we were less concerned about the failure to instruct the jury properly than we were about the Georgia Supreme Court’s failure to narrow the facially vague aggravator on appeal. Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey’s death sentence, notwithstanding the failure to instruct the jury on that narrowing construction. Godfrey, supra, at 431-432. Likewise in Maynard, we stressed that the vague HAC aggravator had not been sufficiently limited on appeal by the Oklahoma Court of Criminal Appeals “to cure the unfettered discretion of the jury.” 486 U. S., at 364.
We reached a similar conclusion in Clemons v. Mississippi, applied retroactively to February 1985 in Stringer. Clemons considered the question whether the sentencer’s weighing of a vague HAC aggravator rendered that sentence unconstitutional in a “weighing” State. The sentencing jury in Clemons, as in Maynard, was given a HAC instruction that was unconstitutionally vague. We held that “the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review.” Clemons, supra, at 741, 745; see also Stringer, supra, at 230.
The principles of the above-described cases do not dictate the result we ultimately reached in Espinosa. Florida, unlike Oklahoma, see Maynard, supra, at 360, had given its facially vague HAC aggravator a limiting construction sufficient to satisfy the Constitution. See Proffitt v. Florida, 428 U. S., at 255-256 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 260 (White, J., concurring in judgment). Thus, unlike the sentencing juries in Clemons, Maynard, and Godfrey, who were not instructed with a properly limited aggravator, the sentencing trial judge in Espinosa did find the HAC aggravator under a properly limited construction. See Espinosa, 505 U. S., at 1082, citing Walton v. Arizona, 497 U. S. 639, 653 (1990). A close examination of the Florida death penalty scheme persuades us that a reasonable jurist considering Lambrix's sentence in 1986 could have reached a conclusion different from the one Espinosa announced in 1992. There were at least three different, but somewhat related, approaches that would have suggested a different outcome:
(1) The mere cabining of the trial court’s discretion would avoid arbitrary imposition of the death penalty, and thus avoid unconstitutionality. In Proffitt v. Florida, supra, we upheld the Florida death penalty scheme against the contention that it resulted in arbitrary imposition of the death penalty, see Gregg v. Georgia, 428 U. S. 153, 188 (1976), because “trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life” and because the Florida Supreme Court reviewed sentences for consistency. Proffitt, 428 U. S., at 253 (joint opinion of Stewart, Powell, and Stevens, JJ.); id., at 260-261 (opinion of White, J., joined by the Chief Justice and Rehnquist, J.). (In Proffitt itself, incidentally, the jury had not been instructed on an appropriately narrowed HAC aggravator, see Proffitt v. Wainwright, 685 F.2d 1227, 1264, n. 57 (CA11 1982), cert. denied, 464 U. S. 1002 (1983).) From what was said in Proffitt it would, as the en banc Eleventh Circuit noted, “sensibly follow that the judge’s proper review of the sentence cures any risk of arbitrariness occasioned by the jury’s consideration of an unconstitutionally vague aggravating circumstance.” Glock v. Singletary, 65 F. 3d 878, 886 (1995), cert. denied, 519 U. S. 888 (1996). It could have been argued, of course, as Justice Stevens contends, see post, at 543 (dissenting opinion), that prior constitutional error by a sentencing-determining jury would make a difference, but both the conclusion and the premise of that argument were debatable: not only whether it would make a difference, but even (as the succeeding point demonstrates) whether there was any constitutional error by a sentencing-determining jury.
(2) There was no error for the trial judge to cure, since under Florida law the trial court, not the jury, ivas the sen-tencer. In Espinosa we concluded, in effect, that the jury was at least in part a cosentencer along with the trial court. That determination can fairly be traced to our opinion in Sochor v. Florida, 504 U. S. 527 (1992), decided just three weeks earlier, where we explained that under Florida law the trial court “is at least a constituent part of ‘the sen-teneer,’ ” implying that the jury was that as well. Id., at 535-536. That characterization is in considerable tension with our pre-1986 view. In Proffitt, for example, after considering Tedder v. State, 322 So. 2d 908 (Fla. 1975), on which Espinosa primarily relied, the Court determined that the trial court was the sentences E. g., 428 U. S., at 249 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he actual sentence is determined by the trial judge” (emphasis added)); id., at 251 (the trial court is “[t]he sentencing authority in Florida”); id., at 252 (“[T]he sentence is determined by the judge rather than by the jury”); id., at 260 (White, J., concurring in judgment). We even distinguished the Florida scheme from the Georgia scheme on the ground that “in Florida the sentence is determined by the trial judge rather than by the jury.” Id., at 252 (joint opinion) (emphasis added). Some eight years later, just two years before petitioner’s conviction became final, we continued to describe the judge as the sentencer. See Spaziano v. Florida, 468 U. S. 447 (1984); see also Barclay v. Florida, 463 U. S. 939, 952-954 (1983) (plurality opinion); id., at 962 (Stevens, J., concurring in judgment). (Although he now believes the jury is a co-sentencer, at the time Lambrix’s conviction became final Justice Stevens had explained that “the sentencing authority [is] the jury in Georgia, the judge in Florida.” Ibid.) It would not have been unreasonable to rely on what we had said in Proffitt, Spaziano, and Barclay — that the trial court was the sentencer — and to conclude that where the sentencer considered properly narrowed aggravators there was simply no error under Godfrey or Maynard. The Florida Supreme Court and the Eleventh Circuit held precisely that in 1989, see Smalley v. State, 546 So. 2d 720, 722; Bertolotti v. Dugger, 883 F. 2d 1503, 1526-1527, cert. denied, 497 U. S. 1032 (1990); and in 1985 the Eleventh Circuit foresaw the possibility of such a holding: “[Spaziano’s] reasoning calls into question whether any given error in such a merely ‘advisory’ proceeding should be considered to be of constitutional magnitude.” Proffitt v. Wainwright, 756 F. 2d 1500, 1502.
(3) The trial court’s weighing of properly narrowed ag-gravators and mitigators was sufficiently independent of the jury to cure any error in the jury’s consideration of a vague aggravator. Although the Florida Supreme Court had interpreted its statute — which provided that the judge was the sentencer, Fla. Stat. § 921.141(3) (Supp. 1992), and that the jury rendered merely an “advisory sentence,” § 921.141(2) — as requiring the trial judge to give “great weight” to a jury’s advisory recommendation, Tedder v. State, supra, that court nonetheless emphasized that the trial court must “independently weigh the evidence in aggravation and mitigation,” and that “[ujnder no combination of circumstances can th[e] [jury’s] recommendation usurp the judge’s role by limiting his discretion.” Eutzy v. State, 458 So. 2d 755, 759 (Fla. 1984), cert. denied, 471 U. S. 1045 (1985). In one case, the Florida Supreme Court vacated a sentence because the trial court had given “undue weight to the jury’s recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed.” Ross v. State, 386 So. 2d 1191, 1197 (1980) (emphasis added). In Spaziano v. Florida, supra, we acknowledged that the Florida trial court conducts “its own weighing of the aggravating and mitigating circumstances,” id., at 451, and that “[Regardless of the jury’s recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances,” id., at 466 (emphasis added); see also Proffitt, 428 U. S., at 251. Given these precedents, it was reasonable to think that the trial court’s review would at least constitute the sort of “reweighing” that would satisfy Clemons v. Mississippi, 494 U. S. 738 (1990), see also Stringer, 503 U. S., at 237. In fact, given the view of some Members of this Court that appellate reweighing was inconsistent with the Eighth Amendment, see, e. g., Cabana v. Bullock, 474 U. S. 376, 400-401, 404 (1986) (Blackmun, J., dissenting, joined by Brennan and Marshall, JJ.); Clemons, supra, at 769-772 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in part and dissenting in part), it would have been reasonable to think that trial-court reweighing was preferable. As one Court of Appeals was prompted to note, “Clemons’s holding, which arguably points in the opposite direction from Espinosa, indicates that even in 1990 Espinosa’s result would not have been dictated by precedent.” Glock v. Singletary, 65 F. 3d, at 887 (en banc).
That Espinosa announced a new rule is strongly confirmed by our decision in Walton v. Arizona, 497 U. S. 639 (1990). Although decided after petitioner’s conviction became final, Walton is a particularly good proxy for what a reasonable jurist would have thought in 1986, given that the only relevant cases decided by this Court in the interim were Maynard and Clemons, the holdings of both of which, we later held, were compelled by the law in 1985, see Stringer, supra. In Walton, we rejected a claim that Arizona’s HAC aggravator failed sufficiently to channel the sentencer’s discretion. Summarizing Godfrey and Maynard, we explained that “in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition,” and this, we said, “w[as] crucial to the conclusion we reached in Maynard.” Walton, supra, at 653. This reasoning suggests that even following Maynard, a weighing-state death sentence would satisfy the Eighth Amendment so long as the vague aggravator was narrowed at some point in the process. Additionally, in the course of our opinion, we characterized Clemons as follows:
“[E]ven if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in Clemons v. Mississippi, 494 U. S. 738 (1990), a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty.” Walton, supra, at 653-654 (emphasis added).
Our use of the disjunctive suggests that as late as 1990, if a Florida trial court determined that the defendant’s conduct fell within the narrowed HAC aggravator, the sentence would satisfy the Eighth Amendment irrespective of whether the trial court reweighed the aggravating and mitigating factors. The holdings in Stringer, Maynard, Clem ons, and Godfrey cannot be thought to suggest otherwise, because there was no indication in those cases that the state courts had found the facts of the crimes to fall within appropriately narrowed definitions of the aggravators. Before Espinosa, we had never invalidated a death sentence where a court found the challenged aggravator to be within the appellate court’s narrowed definition of a facially vague aggravator.
Most of Justice Stevens’s dissent is devoted to making a forceful case that Espinosa was a reasonable interpretation of prior law — perhaps even the most reasonable one. But the Teague inquiry — which is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior law — requires more than that. It asks whether Espinosa was dictated by precedent — i. e., whether no other interpretation was reasonable. We think it plain from the above that a jurist considering all the relevant material (and not, like Justice Stevens’s dissent, considering only the material that favors the Espinosa result) could reasonably have reached a conclusion contrary to our holding in that case. Indeed, both before and after Lam-brix’s conviction became final, every court decision we are aware of did so
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_district
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Robert MORRIS et al., Appellants, v. WERNER-CONTINENTAL, INC., et al., Appellees.
No. 71-2044.
United States Court of Appeals, Sixth Circuit.
Sept. 20, 1972.
Stanley H. Sidicane, Nashville, Tenn., on brief for appellants.
George W. Weber, Jr., Cincinnati, Ohio, Sorrell Logothetis, Dayton, Ohio, for appellees; Jack B. Josselson, Schmidt, Effron, Josselson & Weber, Cincinnati, Ohio, Sorrell Logothetis, and Robert C. Knee, Knee, Snyder & Parks, Dayton, Ohio, on brief.
Before PHILLIPS, TUTTLE, and O’SULLIVAN, Circuit Judges.
Elbert P. Tuttle, Senior Circuit Judge, United States Court of Appeals, Fifth Circuit, sitting by designation.
TUTTLE, Circuit Judge.
This appeal presents principally the question whether employees who are bound by arbitration provisions of a labor contract, having submitted a grievance to arbitration as provided in the contract, may appeal to the courts when it appears that the arbitration committee may have made an egregious error in the interpretation of terminology which controls the dispute.
The issue is further complicated because of the circumstance that the rights of the complaining employees are to be fixed, under their bargaining agreement, by terminology used between their employer and another corporation and under such circumstances, it is doubtful that the employees complaining in this action have the standing to prevent a practical rewriting of the contract which fixes their rights as to seniority by the introduction of parol evidence completely changing the terminology used in the contract between the two corporations.
The following facts seem undisputed; in any event they are to be taken most strongly in favor of the appellants-employees of Continental Truck Lines because the trial court dismissed their complaint on the ground that the court would not interfere with a determination by the Ohio Joint State Grievance Committee of the International Brotherhood. In 1967, after considerable negotiation, a “plan and agreement of merger” was entered into between Werner Transportation Company and Continental Transportation Lines, Inc. This agreement was denominated throughout as a merger of the two companies, thus giving rise to the issue here. After the agreement was signed, but before it had gone into effect, the question was raised as to the seniority status of the Continental employees, principally drivers, under the newly organized Werner-Continental, Inc. Both parties agreed that the Ohio Joint State Grievance Committee had established rules governing seniority as follows:
“The established Ohio practice is that employees of the purchased company are placed at the bottom of the seniority list of the purchasing company. The past practice shall continue to apply to all Ohio domiciled employees, except in the event of merger when the seniority of the employees affected shall be dovetailed by chronological listing unless otherwise mutually agreed to by the parties.”
The trial court found “in 1967 the Werner Transportation Company and Continental Transportation Lines, Inc. entered into a statutory merger agreement, which was subsequently approved by the respective stockholders. The new company was known as Werner-Continental, Inc., but, in fact, the Werner Transportation Company was the survivor, operations removed from the Continental terminals to the Werner terminals, and the Werner managers were retained in their former positions, while the Continental managers were delegated to an assistant manager position. Mr. Werner retained full control of the newly merged company. The evidence shows that Werner was at all times a successful, prosperous company, while Continental was in financial difficulty.”
While we do not recognize the relevance of the findings beginning with “but in fact the Werner Transportation Company was the survivor,” they are not quite accurately stated. WernerContinental, Inc. was the survivor and it was the survivor with additional common capital stock authorized, and had issued a very substantial amount of preferred stock, which was exchanged for the stock of Continental and which was convertible into common stock of Werner-Continental upon the election of its owners. Moreover, it appears that the former president of Continental was chairman of the board of the new corporation, although having very limited operational duties to perform. It is apparent that the reference made by the trial court to the success of the one corporation and the financial difficulties of the other bears upon some tests that are occasionally utilized to determine whether there has actually been a purchase of a defunct or failing corporation by a successful one. This is unimportant in this case, because there is no proof that Continental was in a failing or insolvent condition, although they had suffered losses during a period shortly before the “merger.”
Both companies being engaged in land transportation, it was necessary for an application for permission to create the merger to be submitted to the Interstate Commerce Commission for its approval. The application to the Interstate Commerce Commission designated the proposal as a “merger,” and the order issued by that Commission also carried that designation. It is not evident, however, from anything in the record that it would have been of any significance in the treatment of the matter by the Interstate Commerce Commission had the application indicated that Werner wished to purchase Continental.
Mr. Werner, who at all times, both before and after the accession of Continental, was the managing head of Werner and of Werner-Continental, testified very frankly that the agreement to cast the association of the two entities in the form of a “merger” was a deliberate choice. He stated that he had tried to buy Continental as an outright purchase. He never made it clear, however, in his testimony, whether he wished for his company to purchase the assets subject to liabilities, or purchase the assets clear of liabilities, or to purchase the common stock from the stockholders of Continental. In other words, there is nothing in this record to indicate what it was Werner considered his company had purchased.
The merger agreement called for the surrender of all of the common stock of Continental in return for preferred stock of Werner-Continental, Inc. convertible into common stock on a specified ratio. This is what is known as a tax-free reorganization for income tax purposes, and Mr. Werner testified that he was unable to make a purchase because Mr. Harris, the president of Continental, refused to proceed on that basis on advice of his counsel. The second reason given was employee morale, that is to say, the morale of the Continental employees, the very people who are now complaining. It is clear that the effect of Mr. Werner’s testimony is that he was told by Mr. Harris of Continental that they would have to “call the deal” a “merger” because the employees would be unhappy if, instead, Continental were in some way being sold out to Werner. The significance of this deception is that it was of great importance to the employees of Continental, in determining their course of action towards their employer, Continental, up to the time of the association of the two companies into one, to know whether they were to be dovetailed into the seniority system of the new corporation, which would be the case if it were a merger, as they were being told, or put at the bottom of the seniority list, as would be the case if it were a sale by Continental and a purchase by Werner, which they were objecting to.
So we come up to the day of effective reorganization and for the first time the question is raised by Continental drivers who, naturally, wish to know what their seniority status is to be. They are first told by a letter from Mr. Werner that the transaction was a “merger” and they therefore would be dovetailed into the seniority list along with the Werner employees. Later, without any hearing of any sort, the committee received a correcting letter from Mr. Werner in which he stated that the transaction was a purchase and not a merger; thereupon, the committee set the matter down for hearing on a grievance or series of grievances that had been filed in the meantime by some of the drivers of Continental, the parties who are now sponsoring this action.
During the consideration of the contention of Mr. Morris and his fellow Continental drivers that the transaction between the two carriers had been a merger, the following facts became apparent. The Vice President of Werner originally wrote to the Ohio Joint State Committee (hereafter OJSC) stating that the transaction was a “merger”, and that the seniority list would be dovetailed. He later wrote the Chairman of the OJSC stating that this determination of his had brought him a flood of complaints from his own drivers and that upon further consideration he was writing to advise the Committee that the transaction was a “purchase”, and that the Continental drivers would be placed at the bottom of the seniority list. Thereafter, at a hearing of the Committee, Mr. Morris introduced into the record copies of the minutes of Werner authorizing a “merger” with Continental, an application by Werner, over the signature of its president, to the Interstate Commerce Commission asking permission to enter into a “merger”, a notice to the stockholders of Werner, telling them of the plans for the “merger” with Continental, application to the Securities and Exchange Commission for a change in the name of Werner to Werner-Continental, in which the transaction is referred to as a “merger,” and finally a statement to stockholders in which the same terminology is used. The court can well get the feeling that what was done by the OJSC was simply to follow the dictates of Mr. Werner, even when he changed his mind, for, finally, following a May 15th session, the Chairman of the Committee announced the unanimous vote of the Committee as follows:
“Following careful examination and consideration of all evidence submitted and after further investigation and consultation with legal counsel, it is the decision of the Ohio Joint State Committee that Werner Transportation Company did in fact purchase Continental Transportation Lines and the employees of Continental Transportation Lines are properly placed at the bottom of the consolidated seniority list of Werner-Continental, Inc. at the specified terminal points in accord with the established practice.”
The plaintiffs do not contest the validity or effectiveness of the provisions in the National Master Freight Agreement establishing the grievance machinery, nor do they contest the applicability of the “practice” quoted above which provides that where two employers are joined by merger the employees are dovetailed for seniority purposes, whereas if they are joined by purchase the employees of the purchased company go at the bottom of the list. Their contentions here are, in effect, two-fold. The first contention is that the order of the ICC, which is an essential for the carrying on by the new Werner-Continental, Inc. of its transportation business, is res ad judicata of the fact that this was a “merger” and not a “purchase” by Werner of Continental. The second is that there were defects in the OJSC proceedings which make it null and void.
The trial court stated:
“This court cannot and will not decide whether there was a merger or purchase in this case.” Citing [United] Steel Workers v. American Manufacturing Company, 363 U.S. 564 [80 S.Ct. 1343, 4 L.Ed.2d 1403], together with [United] Steel Workers v. Warrior and Gulf [Navigation] Company, 363 U.S. 574, [80 S.Ct. 1347, 4 L.Ed.2d 1409] and [United] Steel Workers v. Enterprise [Wheel & Car] Corp., 363 U.S. 593, [80 S.Ct. 1358, 4 L.Ed.2d 1424] 1960.
Little need be said with respect to the contention of the appellants that the action of the Interstate Commerce Commission was res adjudicata as to the proper relationship between Werner and Continental at the time they became one. That is, whether this was a “merger” or “purchase.” That was not an issue before the Interstate Commerce Commission. Appellant concedes that if the application filed with the ICC had stated it to be a “purchase” instead of a “merger”, it would have made no difference. Thus, there was no contested issue as to which the order of the ICC undertook to offer a solution dealing with this problem.
With respect to the contention that certain procedural requirements were not met and that the Union breached its duty of fair representation of these particular appellants, we think it necessary to say that there were findings by the trial court rejecting these contentions. In the first place the court found that “the plaintiffs waived any objections they may have had to the alleged irregularities”, citing Order of Railway Conductors v. Clinchfield R.R. Company, C. A.6, 1969, 407 F.2d 985. In the Clinchfield case, this court held that the plaintiff had waived objections to the size of the Arbitration Board by acquiescence to the arbitration. With respect to the allegations that the Union representatives on the Joint Committee were either biased or had a conflict of interest or failed actively to present the contentions of the Continental drivers, the trial court said:
“On the facts of this ease we cannot find the requisite fraud, collusion, bad-faith, or hostile discrimination
“The Union was in a difficult position in this case. It was charged with the duty of representing both the former Werner employees and the former Continental employees. The evidence shows that three of the four locals involved took a neutral position on the seniority question. The fourth local actively tried to secure a dovetailed seniority list, as does plaintiff. The position of neutrality did not prevent the locals from processing grievances to the OJSC, thereby setting the stage for a full and final decision on the merits. Neutrality in this situation does not show bad faith any more than it shows breach of duty of fair representation (citing Bieski v. Eastern Automobile Forwarding Company, 3 Cir. 1968, 396 F.2d 32). It is probably the most prudent position for a Union to take in this situation
“In summary, we hold that the bargained for arbitration procedure was adequate to provide, and actually did provide, a fair decision; and that plaintiff did not sustain his burden of proof that the Union breached its duty of fair representation.”
The recurrent theme which runs through appellants’ brief and argument is that it simply can’t be possible for the courts to permit the Continental drivers to be deprived of the rights to which they are entitled under the Ohio Past Practice by being dovetailed as to seniority with the drivers of Werner under the circumstances of this case. Although not saying so in so many terms, their argument runs to the proposition that it can be nothing more than an ipse dixit for the OJSC, purely on the say-so of Mr. Werner or some lawyer’s advice, to say that when all of the documents relating to the affiliation between the two companies were admittedly in terms of “merger” this was no merger at all, but was purchase of some undescribed property. It is extremely difficult for us to see how the OJSC could translate or transform the merger that actually took place into a purchase. However, perhaps unfortunately for the Continental drivers, but, also, fortunately for the promotion of industrial peace in general, it is not our place to decide this issue, nor was it the function of the trial court.
If any principle is generally recognized in labor relations these days, it is that the grievance procedures, leading ultimately to arbitration, if provided in a labor contract, as they most always are, are to be given the broadest possible construction. The law is well settled in this regard, since the three Supreme Court decisions, United Steelworkers v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). As pointed out by the Supreme Court in those cases, the process of hearing and passing on grievances is part of the regular warp and woof of industrial labor-management relations. When the parties agree to contracts such as the National Master Freight Agreement, which has the explicit provision to the effect that questions of seniority shall be subject to grievance procedures, the courts will not only refrain from hearing appeals from the awards of such arbitration as may finally result in such grievance matters, but courts will, by injunction, require the parties to proceed with the arbitration proceedings in the event either of them should decline to do so.
This group of cases teaches us another thing as well — that is, that so long as there is an absence of fraud or bad faith or demonstrated bias or collusion, the decision by the arbitrators or, here, the Joint Committee, is final and binding and courts are generally powerless to interfere. It became the duty of the Joint Committee here to determine what the parties to the National Master Freight Agreement meant when they spoke of a “merger” and of a “purchase.” While, as we have said, it would appear very difficult for any court to hold that on the record which we have disclosed above, there was anything other than a “merger” in the ordinary legal sense, it turns out that the members of the committee, in solving a labor dispute, are not restricted to the legal terminology- that would be binding on courts. Neither are they restricted to the written contracts' between two parties, neither of whom is before the court. In sum, we conclude that having found the fact relating to the fairness of the proceedings as it did, the court properly declined to set aside the decision of the Ohio Joint State Committee. This decision by the court was fully justified by the language of the Supreme Court’s opinion, “Words in a collective bargaining agreement, rightly viewed by the court to be the charter instrument of a system of industrial self-government, like words in a statute, are to be understood only by reference to the background which gave rise to their inclusion. The Court, therefore, avoids the prescription of inflexible rules for the enforcement of arbitration promises. Guidance is given by identifying the various considerations which a court should take into account when construing a particular clause — considerations of the milieu in which the clause is negotiated and of the national labor policy. It is particularly underscored that the arbitral process in collective bargaining presupposes that the parties wanted the informed judgment of an arbitrator, precisely for the reason that judges cannot provide it. Therefore, a court asked to enforce a promise to arbitrate should ordinarily refrain from involving itself in the interpretation of the substantive provisions of the contract.”
The judgment is affirmed.
. We use this terminology because no where in the record is any effort made to explain what it is that even Mr. Werner thought the Werner Company had purchased. Certainly it didn’t purchase the rolling stock or the terminals or the charter or the good will, or even the stock from the Continental stockholders. The latter was particularly avoided, because as we read the testimony, it is plain that the transaction was cast in the form of a taxfree reorganization for income tax purposes.
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_appel1_1_4
|
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 "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
In re MARQUETTE MANOR BLDG. CORPORATION. NATIONAL BUILDERS BANK OF CHICAGO v. BROWN et al.
No. 6570.
Circuit Court of Appeals, Seventh Circuit.
June 2, 1938.
Rehearing Denied July 15, 1938.
Arthur J. Hughes, Frank Michels, and C. S. Macaulay, all of Chicago, 111., for appellant.
Charles W. Mead, Gustav Andreen, Jr., and Harry S. Harned, all of Chicago, 111. (Edward G. Berglund, of Chicago, 111., oí counsel), for appellees Brown and others.
Michael Gesas and Edward G. Berg-lund, both of Chicago, 111., for appellees Becker and Smith.
Before SPARKS, and MAJOR, Circuit Judges, and LINDLEY, District Judge.
MAJOR, Circuit Judge.
This is an appeal from an order entered December 6, 1937, by the court below reducing the claim of the Bondholders’ Committee filed in the corporate reorganization proceedings of the debtor, from $135,900 to $74,300. The court decreed that bonds aggregating $61,600, included in the Committee’s claim, be subordinated in lien, which accounts for the reduction in the allowed claim. The, master to whom the matter was referred made a report recommending such reduction. Exceptions were filed to' such report, which were overruled by the court and the report approved. The appeal is taken from this order.
On October 4, 1932, Terrill Bond and Mortgage Company (hereinafter referred to as Terrill), executed its collateral note in the amount of $25,000 to appellant and pledged various securities, including bonds of the debtor here in controversy. This note was renewed from time to time, with some changes in the amount and character of the collateral until March 1, 1934, when the last note, maturing March 30, 1934, was given. By the terms of the pledge, appellant was authorized to sell said collateral, without notice at public or private sale in case of non-payment of the loan at maturity. Appellant claims it had an agreement with Terrill that upon the sale of the collateral, appellant might become the purchaser thereof. The debtor, of course-, was not a party to such agreement and neither was the bondholders’ committee. In March of 1933, appellant was advised that the bonds pledged with it were in default and a foreclosure suit had been instituted in the State Court.
On March 31, 1933, a bondholders’ committee was organized consisting of S. N. Becker, Chairman, Roy J. Smith and Myron D. Goldberg. Edward G. Berglund was designated as Counsel to the committee, and appellant as depositary. Goldberg was appellant’s cashier and appears to have had the controlling voice in the affairs of the committee. As a member of the committee, he was in a position to and did become familiar with the value of, the proceeds from, and the expenses incurred in connection with the various properties, securing the collateral which 'appellant held for the Terrill note, and especially the property of the debtor securing the bonds in question.
At the time of the organization of the committee, appellant held, as collateral security for the Terrill note, bonds of debtor in the sum of $61,600, together with various other bonds and securities. On May 6, 1933, appellant deposited with the committee the said bonds of the debtor held by it as collateral and on June 19, 1933, a certificate of deposit was issued to Terrill, assigned to and retained by appellant.
On June 11, 1935, after numerous conferences among the officials of appellant, including Goldberg, appellant gave public notice that it would sell all of the’ collateral held by it as security for the note on June 14, 1935, at 10:00 in the forenoon at the Clark Street entrance of the County Building in the City of Chicago. The public notice consisted only of the posting of three notices in the City of Chicago. The attorney for the bondholders’ committee was given two days’ notice by telephone, but neither of the other two members of the committee, nor the bondholders, were given any notice. Goldberg, as cashier of appellant, was authorized on its behalf to bid at such sale $5,000 for such collateral security, and, if necessary, in order to purchase the same, to bid as high as $25,000. No other bidders appeared at the sale and Goldberg, on behalf of appellant, purchased the collateral for the initial bid of $5,000. The collateral thus purchased by appellant consisted of bonds of the par value of $61,-600 of the debtor (those in controversy) ; bonds of the par value of $29,600 of Paul-ina Mansions; bonds of the par value of $49,800 of Marquette-Chateau Building; notes signed by various churches in the aggregate amount of approximately $125,-000, and a judgment against the American Hospital in the sum of $20,020.57.
The master found that appellant received payment in full of its note from the collateral purchased at such sale, not including the subordinated bonds in question, and we think this finding is supported by substantial evidence. While we find no direct finding as to the exact amount due upon appellant’s note at the time of the sale, yet the master does find that on March 30, 1934, which was the'date of its maturity, there was an unpaid balance on said note of $22,662 and the amount due on June 4, 1935 is readily ascertainable by adding interest for such period to the amount found to be due and unpaid. While an officer of appellant testified that the collateral was not worth more than the amount of the bid, yet the records of appellant disclose that within fifteen days after the sale the collateral was set up on the books of appellant at a “total true value or actual worth of $92,551.62.” It was also shown that shortly thereafter an agreement was entered into between appellant and the trustees of the American Hospital with reference to the judgment against said hospital in the sum of $20,068.02; that appellant received $5,000 in cash in said settlement and a first mortgage upon real estate owned by the hospital in the sum of $18,777 payable at the rate of $500 per month, and in addition thereto, appellant was paid another $4,000 in cash, which it claims was for attorney fees and expenses in connection with said transaction, but the record seems to be silent as to whom or in what amounts said sum was expended by appellant. In addition to this, appellant expects to receive the sum of $6,304 on account of the bonds of Paulina Mansions which were involved in another reorganization proceeding. • There was also testimony as to a notation appearing on the back of the Terrill note, made by an officer of appellant, which indicated that the note had been fully paid.
The essential controversy is whether appellant was entitled to make a profit on the sale of the collateral security or whether it was only entitled to receive payment of the Terrill note. Appellant contends it was entitled to make a profit on the transaction; in other words, to realize all it could from the securities purchased at the collateral sale, while appellees say that appellant occupied a fiduciary relation and was entitled to nothing more than the payment of its note. The lower court adopted appellees’ theory and we think correctly so. We have examined the authorities upon which appellant relies and they are not in point. True, it is generally held that the holder of collateral security under authority to sell may purchase the same at such sale without any restriction upon his right to make a profit. In other words, the purchaser at such sale is permitted to step in the shoes of the assignor of the collateral. That, no doubt, would have been the situation here had appellant exercised its right of sale under the circumstances originally created by tjie assignment of the collateral to it, but those circumstances were materially altered by subsequent events.
After the organization of the bondholders’ committee, of which appellant’s cashier was a conspicuous member, and the designation of appellant as the depositary for said committee, the rights, and especially the duties devolving upon appellant were of an entirely different character.
The depositary agreement of which appellant, as depositary, the committee and bondholders were parties, expressly provided that the title to all deposited securities vested in the committee immediately upon their deposit with the depositary; the committee was authorized to execute any and all transfers and assignments of bonds deposited with it and to have and exercise all the rights and powers of absolute owners with reference to said bonds, and in fact to have complete control of all compromises, releases or settlements made with reference to said bonds. The committee was also authorized in its discretion to give bondholders notice of any proposed action and, in case it so decided, its action was to be binding upon such bondholders unless they filed their written dissent thereto, in which case' they were to have permission to withdraw their bonds. The purpose of the formation of the bondholders’ Committee must have been for the protection of those who deposited their bonds and to obtain by reorganization, compromise or settlement that which would be the most advantageous to them.
It is difficult to see how this purpose could be served with appellant occupying a dual, and perhaps a three-fold position. As a bank it was properly interested in the collection of the Terrill loan; through its cashier it was serving as a member of the committee and was also acting as its depositary. It was in the interest of appellant, as a bank, to purchase the collateral offered at the sale at a low price. It was ,the duty of the committee and the bank, as its depositary, to sell the bonds at the best price possible, for it is apparent the more realized from such sale, the less would be the indebtedness against the property securing the bonds and the greater would be the security for other bondholders. The least appellant could have done was to notify all members of the committee of the sale, and under the circumstances we think it was obliged to see that all bondholders had notice. Ordinarily, no doubt, the duty of notifying the bondholders would rest upon the committee, but where, as here, we find appellant’s chief agent an important member of the committee, it seems appellant was not without responsibility in this respect.
Our attention is called to no authority where a court has considered a proposition such as is here presented. There is much authority, however, to the effect that those who serve in a fiduciary capacity are not permitted to do so for their own gain. Typical of such cases is that of Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418, where the court on page 588, 41 S.Ct. on page 201, said:
“Ambrose, had, as receiver, the affirmative duty to endeavor to realize the largest possible amount from the Schwab note. Baker v. Schofield, 243 U.S. 114, 37 S.Ct. 333, 61 L.Ed. 626; Robertson v. Chapman, 152 U.S. 673, 681, 14 S.Ct. 741, 38 L.Ed. 592. To this end it was his duty to endeavor to have the land, when sold under the trust deed, bring the largest possible price. J. H. Lane & Co. v. Maple Cotton Mill, 146 C.C.A. 415, 232 F. 421. When he agreed with Smith and Wilson to join in the purchase if Wilson should become the successful bidder, he placed himself in a position in which his personal interests were or might be, antagonistic to those of his trust. Michoud v. Girod, 4 How. 503, 552, 11 L.Ed. 1076. It became to his personal interest that the purchase should be made by Wilson for the lowest possible price. The course taken was one which a fiduciary could not legally pursue. Magruder v. Drury, 235 U.S. 106, 119, 120, 35 S.Ct. 77, 59 L.Ed. 151. Since he did pursue it and profits resulted the law máde him accountable to the trust estate for all the profits obtained by him and those who were associated with him in the matter, although the estate may nbt have been injured thereby.”
Concluding as we do that appellant, under the circumstances, was acting in a fiduciary capacity, and was obligated in connection with the committee of which it was a part, to refrain from disposing of the bonds in question except in a manner most advantageous to other bondholders who had deposited their bonds, and having failed to discharge its duty in this respect, it necessarily follows that appellant should not be permitted to make a profit, huge or small, from the transaction. We are of the opinion that appellant was entitled to have the obligation owing it, represented by the Terrill note, discharged in full. As heretofore stated, the master and the court below found it was so discharged. We have examined the record rather carefully with reference to this controverted question of fact and are satisfied that the evidence in support of such conclusion was not only substantial, but convincing. This obligation having been thus discharged, appellant was entitled to nothing more. To hold otherwise would give it an advantage which would be neither fair nor equitable under the presented circumstances.
The decree of the District Court' is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Defendant, Appellant, v. Stanley M. BOLSTER, Trustee, Plaintiff, Appellee.
No. 3712.
Circuit Court of Appeals, First Circuit.
Sept. 16, 1941.
Edmund J. Brandon, U. S. Atty., and George F. Garrity, Asst. U. S. Atty., both of Boston, Mass., for appellant.
S. R. Wrightington, of Boston, Mass., for appellee.
PER CURIAM.
Upon motion of appellant, it is ordered that this case be docketed, and it is further ordered that the appeal herein, 38 F.Supp. 625, be, and the same hereby is, dismissed without costs to either party.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
sc_decisiondirection
|
B
|
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.
MICROSOFT CORP. v. AT&T CORP.
No. 05-1056.
Argued February 21, 2007
Decided April 30, 2007
Ginsburg, J., delivered the opinion of the Court, except as to footnote 14. Scalia, Kennedy, and Souter, JJ., joined that opinion in full. Alito, J., filed an opinion concurring as to all but footnote 14, in which Thomas and Breyer, JJ., joined, post, p. 459. Stevens, J., filed a dissenting opinion, post, p. 462. ROBERTS, C. J., took no part in the consideration or decision of the case.
Theodore B. Olson argued the cause for petitioner. With him on the briefs were Miguel A. Estrada, Mark A. Perry, Matthew D. McGill, Amir C. Tayrani, T Andrew Culbert, and Dale M. Heist.
Daryl Joseffer argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Hungar, John J. Sullivan, Joan Bernott Maginnis, John M. Whealan, Thomas W. Krause, and Heather F. Auyang.
Seth P. Waxman argued the cause for respondent. With him on the brief were William G. McElwain, Jonathan E. Nuechterlein, and Mark C. Fleming.
Briefs of amici curiae urging reversal were filed for Amazon.com, Inc., et al. by Jeffrey S. Love and John D. Vandenberg; for Autodesk, Inc., by John Dragseth and Frank E. Scherkenbach; for the Business Software Alliance by Viet D. Dinh; for Eli Lilly and Co. by Robert A. Armitage and James J. Kelley; for Intel Corp. by Joel W. Nomkin, Jonathan M. James, Dan L. Bagatell, Stefani E. Shanberg, Steven R. Rodgers, and Tina M. Chappell; for Intellectual Property Professors by John F. Duffy, Mark Lemley, and William H. Neukom; for Shell Oil Co. by Richard L. Stanley and John D. Norris; for the Software Freedom Law Center by Eben Moglen and Richard Fontana; for the Software & Information Industry Association by Gregory S. Coleman, Amber H. Rovner, and Edward R. Reines; and for Yahoo! Inc. by Christopher J. Wright, Timothy J. Simeone, Joseph K. Siino, and Lisa G. McFall.
Briefs of amici curiae urging affirmance were filed for BayhDole25, Inc., by Stephen J. Marzen and Susan K. Finston; for the U. S. Philips Corp. et al. by John M. DiMatteo, Eugene Chang, Jack E. Haken, and Edward Blocker; and for the Wisconsin Alumni Research Foundation et al. by Richard G. Taranto, Munir R. Meghjee, and Anne M. Lockner.
Briefs of amici curiae were filed for the American Intellectual Property Law Association by Joseph R. Re and Irfan A Lateef; for the Bar of the District of Columbia, Patent, Trademark & Copyright Section by David W. Long and Vandana Koelsch; for the Fédération Internationale des Conseils en Propriété Industrielle (FICPI) by John R Sutton; for the Houston Intellectual Property Law Association by Albert B. Kimball, Jr., and Michael G. Locklar; and for Edward S. Lee by Mr. Lee, pro se.
Justice Ginsburg
delivered the opinion of the Court, except as to footnote 14.
It is the general rule under United States patent law that no infringement occurs when a patented product is made and sold in another country. There is an exception. Section 271(f) of the Patent Act, adopted in 1984, provides that infringement does occur when one “supplies... from the United States,” for “combination” abroad, a patented invention’s “components.” 35 U. S. C. § 271(f)(1). This case concerns the applicability of § 271(f) to computer software first sent from the United States to a foreign manufacturer on a master disk, or by electronic transmission, then copied by the foreign recipient for installation on computers made and sold abroad.
AT&T holds a patent on an apparatus for digitally encoding and compressing recorded speech. Microsoft’s Windows operating system, it is conceded, has the potential to infringe AT&T’s patent, because Windows incorporates software code that, when installed, enables a computer to process speech in the manner claimed by that patent. It bears emphasis, however, that uninstalled Windows software does not infringe AT&T’s patent any more than a computer standing alone does; instead, the patent is infringed only when a computer is loaded with Windows and is thereby rendered capable of performing as the patented speech processor. The question before us: Does Microsoft’s liability extend to computers made in another country when loaded with Windows software copied abroad from a master disk or electronic transmission dispatched by Microsoft from the United States? Our answer is “No.”
The master disk or electronic transmission Microsoft sends from the United States is never installed on any of the foreign-made computers in question. Instead, copies made abroad are used for installation. Because Microsoft does not export from the United States the copies actually installed, it does not “suppl[y]... from the United States” “components” of the relevant computers, and therefore is not liable under § 271(f) as currently written.
Plausible arguments can be made for and against extending § 271(f) to the conduct charged in this case as infringing AT&T’s patent. Recognizing that § 271(f) is an exception to the general rule that our patent law does not apply extraterritorially, we resist giving the language in which Congress cast § 271(f) an expansive interpretation. Our decision leaves to Congress’ informed judgment any adjustment of § 271(f) it deems necessary or proper.
I
Our decision some 35 years ago in Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518 (1972), a case about a shrimp deveining machine, led Congress to enact § 271(f). In that case, Laitram, holder of a patent on the time-and-expense-saving machine, sued Deepsouth, manufacturer of an infringing deveiner. Deepsouth conceded that the Patent Act barred it from making and selling its deveining machine in the United States, but sought to salvage a portion of its business: Nothing in United States patent law, Deepsouth urged, stopped it from making in the United States the parts of its deveiner, as opposed to the machine itself, and selling those parts to foreign buyers for assembly and use abroad. Id., at 522-524. We agreed.
Interpreting our patent law as then written, we reiterated in Deepsouth that it was “not an infringement to make or use a patented product outside of the United States.” Id., at 527; see 35 U. S. C. §271(a) (1970 ed.) (“[W]hoever without authority makes, uses or sells any patented invention, within the United States during the term of the patent therefor, infringes the patent.”). Deepsouth’s foreign buyers did not infringe Laitram’s patent, we held, because they assembled and used the deveining machines outside the United States. Deepsouth, we therefore concluded, could not be charged with inducing or contributing to an infringement. 406 U. S., at 526-527. Nor could Deepsouth be held liable as a direct infringer, for it did not make, sell, or use the patented invention — the fully assembled deveining machine — within the United States. The parts of the machine were not themselves patented, we noted, hence export of those parts, unassembled, did not rank as an infringement of Laitram’s patent. Id., at 527-529.
Laitram had argued in Deepsouth that resistance to extension of the patent privilege to cover exported parts “derived from too narrow and technical an interpretation of the [Patent Act].” Id., at 529. Rejecting that argument, we referred to prior decisions holding that “a combination patent protects only against the operable assembly of the whole and not the manufacture of its parts.” Id., at 528. Congress’ codification of patent law, we said, signaled no intention to broaden the scope of the privilege. Id., at 530 (“When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.”). And we again emphasized that
“[o]ur patent system makes no claim to extraterritorial effect; these acts of Congress do not, and were not intended to, operate beyond the limits of the United States; and we correspondingly reject the claims of others to such control over our markets.” Id., at 531 (quoting Brown v. Duchesne, 19 How. 183, 195 (1857)).
Absent “a clear congressional indication of intent,” we stated, courts had no warrant to stop the manufacture and sale of the parts of patented inventions for assembly and use abroad. 406 U. S., at 532.
Focusing its attention on Deepsouth, Congress enacted § 271(f). See Patent Law Amendments Act of 1984, §101, 98 Stat. 3383; Fisch & Allen, The Application of Domestic Patent Law to Exported Software: 35 U. S. C. §271(f), 25 U. Pa. J. Int’l Econ. L. 557, 565 (2004) (hereinafter Fisch & Allen) (“Congress specifically intended § 271(f) as a response to the Supreme Court’s decision in Deepsouth”). The provision expands the definition of infringement to include supplying from the United States a patented invention’s components:
“(1) Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.
“(2) Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uneombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” 35 U. S. C. § 271(f).
II
Windows is designed, authored, and tested at Microsoft’s Redmond, Washington, headquarters. Microsoft sells Windows to end users and computer manufacturers, both foreign and domestic. Purchasing manufacturers install the software onto the computers they sell. Microsoft sends to each of the foreign manufacturers a master version of Windows, either on a disk or via encrypted electronic transmission. The manufacturer uses the master version to generate copies. Those copies, not the master sent by Microsoft, are installed on the foreign manufacturer’s computers. Once assembly is complete, the foreign-made computers are sold to users abroad. App. to Pet. for Cert. 45a-46a.
AT&T’s patent (’580 patent) is for an apparatus (as relevant here, a computer) capable of digitally encoding and compressing recorded speech. Windows, the parties agree, contains software that enables a computer to process speech in the manner claimed by the ’580 patent. In 2001, AT&T filed an infringement suit in the United States District Court for the Southern District of New York, charging Microsoft with liability for domestic and foreign installations of Windows.
Neither Windows software (e. g., in a box on the shelf) nor a computer standing alone (i e., without Windows installed) infringes AT&T’s patent. Infringement occurs only when Windows is installed on a computer, thereby rendering it capable of performing as the patented speech processor. Microsoft stipulated that by installing Windows on its own computers during the software development process, it directly infringed the ’580 patent. Microsoft further acknowledged that by licensing copies of Windows to manufacturers of computers sold in the United States, it induced infringement of AT&T’s patent. Id., at 42a; Brief for Petitioner 3-4; Brief for Respondent 9, 19.
Microsoft denied, however, any liability based on the master disks and electronic transmissions it dispatched to foreign manufacturers, thus joining issue with AT&T. By sending Windows to foreign manufacturers, AT&T contended, Microsoft “supplie[d]... from the United States,” for “combination” abroad, “components” of AT&T’s patented speech processor; accordingly, AT&T urged, Microsoft was liable under § 271(f). See supra, at 445 (reproducing text of § 271(f)). Microsoft responded that unincorporated software, because it is intangible information, cannot be typed a “component” of an invention under § 271(f). In any event, Microsoft urged, the foreign-generated copies of Windows actually installed abroad were not “supplie[d]... from the United States.” Rejecting these responses, the District Court held Microsoft liable under § 271(f). 71 USPQ 2d 1118 (SDNY 2004). On appeal, a divided panel of the Court of Appeals for the Federal Circuit affirmed. 414 F. 3d 1366 (2005). We granted certiorari, 549 U. S. 991 (2006), and now reverse.
Ill
A
This case poses two questions: First, when, or in what form, does software qualify as a “component” under § 271(f)? Second, were “components” of the foreign-made computers involved in this case “supplie[d]” by Microsoft “from the United States”?
As to the first question, no one in this litigation argues that software can never rank as a “component” under § 271(f). The parties disagree, however, over the stage at which software becomes a component. Software, the “set of instructions, known as code, that directs a computer to perform specified functions or operations,” Fantasy Sports Properties, Inc. v. SportsLine.com, Inc., 287 F. 3d 1108, 1118 (CA Fed. 2002), can be conceptualized in (at least) two ways. One can speak of software in the abstract: the instructions themselves detached from any medium. (An analogy: The notes of Beethoven’s Ninth Symphony.) One can alternatively envision a tangible “copy” of software, the instructions encoded on a medium such as a CD-ROM. (Sheet music for Beethoven’s Ninth.) AT&T argues that software in the abstract, not simply a particular copy of software, qualifies as a “component” under § 271(f). Microsoft and the United States argue that only a copy of software, not software in the abstract, can be a component.
The significance of these diverse views becomes apparent when we turn to the second question: Were components of the foreign-made computers involved in this case “supplied]” by Microsoft “from the United States”? If the relevant components are the copies of Windows actually installed on the foreign computers, AT&T could not persuasively argue that those components, though generated abroad, were “supplied]... from the United States” as § 271(f) requires for liability to attach. If, on the other hand, Windows in the abstract qualifies as a component within § 271(f)’s compass, it would not matter that the master copies of Windows software dispatched from the United States were not themselves installed abroad as working parts of the foreign computers.
With this explanation of the relationship between the two questions in view, we further consider the twin inquiries.
B
First, when, or in what form, does software become a “component” under § 271(f)? We construe §271(f)’s terms “in accordance with [their] ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471,476 (1994). Section 271(f) applies to the supply abroad of the “components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components.” § 271(f)(1) (emphasis added). The provision thus applies only to “such components” as are combined to form the “patented invention” at issue. The patented invention here is AT&T’s speech-processing computer.
Until it is expressed as a computer-readable “copy,” e. g., on a CD-ROM, Windows software — indeed any software detached from an activating medium — remains uncombinable. It cannot be inserted into a CD-ROM drive or downloaded from the Internet; it cannot be installed or executed on a computer. Abstract software code is an idea without physical embodiment, and as such, it does not match §271(f)’s categorization: “components” amenable to “combination.” Windows abstracted from a tangible copy no doubt is information — a detailed set of instructions — and thus might be compared to a blueprint (or anything containing design information, e. g., a schematic, template, or prototype). A blueprint may contain precise instructions for the construction and combination of the components of a patented device, but it is not itself a combinable component of that device. AT&T and its amid do not suggest otherwise. Cf. Pellegrini v. Analog Devices, Inc., 375 F. 3d 1113, 1117-1119 (CA Fed. 2004) (transmission abroad of instructions for production of patented computer chips not covered by § 271(f)).
AT&T urges that software, at least when expressed as machine-readable object code, is distinguishable from design information presented in a blueprint. Software, unlike a blueprint, is “modular”; it is a stand-alone product developed and marketed “for use on many different types of computer hardware and in conjunction with many other types of software.” Brief for Respondent 5; Tr. of Oral Arg. 46. Software’s modularity persists even after installation; it can be updated or removed (deleted) without affecting the hardware on which it is installed. Ibid. Software, unlike a blueprint, is also “dynamic.” Ibid. After a device has been built according to a blueprint’s instructions, the blueprint’s work is done (as AT&T puts it, the blueprint’s instructions have been “exhausted,” ibid.). Software’s instructions, in contrast, are contained in and continuously performed by a computer. Brief for Respondent 27-28; Tr. of Oral Arg. 46. See also Bolas Technologies Inc. v. Microsoft Corp., 399 F. 3d 1325, 1339 (CA Fed. 2005) (“[S]oftware code... drives the functional nucleus of the finished computer product.” (quoting Imagexpo, L. L. C. v. Microsoft Corp., 299 F. Supp. 2d 550, 553 (EB Va. 2003))).
The distinctions advanced by AT&T do not persuade us to characterize software, uncoupled from a medium, as a combinable component. Blueprints too, or any design information for that matter, can be independently developed, bought, and sold. If the point of AT&T’s argument is that we do not see blueprints lining stores’ shelves, the same observation may be made about software in the abstract: What retailers sell, and consumers buy, are copies of software. Likewise, before software can be contained in and continuously performed by a computer, before it can be updated or deleted, an actual, physical copy of the software must be delivered by CD-ROM or some other means capable of interfacing with the computer.
Because it is so easy to encode software’s instructions onto a medium that can be read by a computer, AT&T intimates, that extra step should not play a decisive role under § 271(f). But the extra step is what renders the software a usable, combinable part of a computer; easy or not, the copy-producing step is essential. Moreover, many tools may be used easily and inexpensively to generate the parts of a device. A machine for making sprockets might be used by a manufacturer to produce tens of thousands of sprockets an hour. That does not make the machine a “component” of the tens of thousands of devices in which the sprockets are incorporated, at least not under any ordinary understanding of the term “component.” Congress, of course, might have included within § 271(f)’s compass, for example, not only combinable “components” of a patented invention, but also “information, instructions, or tools from which those components readily may be generated.” It did not. In sum, a copy of Windows, not Windows in the abstract, qualifies as a “component” under § 271(f).
C
The next question, has Microsoft “supplie[d]... from the United States” components of the computers here involved? Under a conventional reading of §271(f)’s text, the answer would be “No,” for the foreign-made copies of Windows actually installed on the computers were “supplie[d]” from places outside the United States. The Federal Circuit majority concluded, however, that “for software ‘components,’ the act of copying is subsumed in the act of ‘supplying.’ ” 414 F. 3d, at 1370. A master sent abroad, the majority observed, differs not at all from the exact copies, easily, inexpensively, and swiftly generated from the master; hence “sending a single copy abroad with the intent that it be replicated invokes § 271(f) liability for th[e] foreign-made copies.” Ibid.; cf. post, at 464 (Stevens, J., dissenting) (“[A] master disk is the functional equivalent of a warehouse of components... that Microsoft fully expects to be incorporated into foreign-manufactured computers.”).
Judge Rader, dissenting, noted that “supplying” is ordinarily understood to mean an activity separate and distinct from any subsequent “copying, replicating, or reproducing— in effect manufacturing.” 414 F. 3d, at 1372-1373 (internal quotation marks omitted); see id., at 1373 (“[Cjopying and supplying are separate acts with different consequences— particularly when the ‘supplying’ occurs in the United States and the copying occurs in Düsseldorf or Tokyo. As a matter of logic, one cannot supply one hundred components of a patented invention without first making one hundred copies of the component...He further observed: “The only true difference between making and supplying software components and physical components [of other patented inventions] is that copies of software components are easier to make and transport.” Id., at 1374. But nothing in §271(f)’s text, Judge Rader maintained, renders ease of copying a relevant, no less decisive, factor in triggering liability for infringement. See ibid. We agree.
Section 271(f) prohibits the supply of components “from the United States... in such manner as to actively induce the combination of suck components.” § 271(f)(1) (emphasis added). Under this formulation, the very components supplied from the United States, and not copies thereof, trigger § 271(f) liability when combined abroad to form the patented invention at issue. Here, as we have repeatedly noted, see supra, at 441, 442, 445-446, the copies of Windows actually installed on the foreign computers were not themselves supplied from the United States. Indeed, those copies did not exist until they were generated by third parties outside the United States. Copying software abroad, all might agree, is indeed easy and inexpensive. But the same could be said of other items: “Keys or machine parts might be copied from a master; chemical or biological substances might be created by reproduction; and paper products might be made by electronic copying and printing.” Brief for United States as Amicus Curiae 24. See also supra, at 451-452 (rejecting argument similarly based on ease of copying in construing “component”). Section 271(f) contains no instruction to gauge when duplication is easy and cheap enough to deem a copy in fact made abroad nevertheless “supplie[d]... from the United States.” The absence of anything addressing copying in the statutory text weighs against a judicial determination that replication abroad of a master dispatched from the United States “supplies” the foreign-made copies from the United States within the intendment of § 271(f).
D
Any doubt that Microsoft’s conduct falls outside § 271(f)’s compass would be resolved by the presumption against extraterritoriality, on which we have already touched. See supra, at 442,444. The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law. The traditional understanding that our patent law “operate[s] only domestically and d[oes] not extend to foreign activities,” Fisch & Allen 559, is embedded in the Patent Act itself, which provides that a patent confers exclusive rights in an invention within the United States. 35 U. S. G. § 154(a)(1) (patentee’s rights over invention apply to manufacture, use, or sale “throughout the United States” and to importation “into the United States”). See Deepsouth, 406 U. S., at 531 (“Our patent system makes no claim to extraterritorial effect”; our legislation “d[oes] not, and [was] not intended to, operate beyond the limits of the United States, and we correspondingly reject the claims of others to such control over our markets.” (quoting Brown, 19 How., at 195)).
As a principle of general application, moreover, we have stated that courts should “assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws.” F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 164 (2004); see EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991). Thus, the United States accurately conveyed in this case: “Foreign conduct is [generally] the domain of foreign law,” and in the area here involved, in particular, foreign law “may embody different policy judgments about the relative rights of inventors, competitors, and the public in patented inventions.” Brief for United States as Amicus Curiae 28. Applied to this case, the presumption tugs strongly against construction of § 271(f) to encompass as a “component” not only a physical copy of software, but also software’s intangible code, and to render “supplie[d]... from the United States” not only exported copies of software, but also duplicates made abroad.
AT&T argues that the presumption is inapplicable because Congress enacted § 271(f) specifically to extend the reach of United States patent law to cover certain activity abroad. But as this Court has explained, “the presumption is not defeated... just because [a statute] specifically addresses [an] issue of extraterritorial application,” Smith v. United States, 507 U. S. 197, 204 (1993); it remains instructive in determining the extent of the statutory exception, see Empagran, 542 U. S., at 161-162, 164-165; Smith, 507 U. S., at 204.
AT&T alternately contends that the presumption holds no sway here given that § 271(f), by its terms, applies only to domestic conduct, i. e., to the supply of a patented invention’s components “from the United States.” § 271(f)(1). AT&T’s reading, however, “converts a single act of supply from the United States into a springboard for liability each time a copy of the software is subsequently made [abroad] and combined with computer hardware [abroad] for sale [abroad.]” Brief for United States as Amicus Curiae 29; see 414 F. 3d, at 1373, 1375 (Rader, J., dissenting). In short, foreign law alone, not United States law, currently governs the manufacture and sale of components of patented inventions in foreign countries. If AT&T desires to prevent copying in foreign countries, its remedy today lies in obtaining and enforcing foreign patents. See Deepsouth, 406 U. S., at 531.
IV
AT&T urges that reading § 271(f) to cover only those copies of software actually dispatched from the United States creates a “loophole” for software makers. Liability for infringing a United States patent could be avoided, as Microsoft’s practice shows, by an easily arranged circumvention: Instead of making installation copies of software in the United States, the copies can be made abroad, swiftly and at small cost, by generating them from a master supplied from the United States. The Federal Circuit majority found AT&T’s plea compelling:
“Were we to hold that Microsoft’s supply by exportation of the master versions of the Windows® software — specifically for the purpose of foreign replication — avoids infringement, we would be subverting the remedial nature of § 271(f), permitting a technical avoidance of the statute by ignoring the advances in a field of technology — and its associated industry practices — that developed after the enactment of § 271(f).... Section 271(f), if it is to remain effective, must therefore be interpreted in a manner that is appropriate to the nature of the technology at issue.” 414 F. 3d, at 1371.
While the majority’s concern is understandable, we are not persuaded that dynamic judicial interpretation of § 271(f) is in order. The “loophole,” in our judgment, is properly left for Congress to consider, and to close if it finds such action warranted.
There is no dispute, we note again, that § 271(f) is inapplicable to the export of design tools — blueprints, schematics, templates, and prototypes — all of which may provide the information required to construct and combine overseas the components of inventions patented under United States law. See supra, at 449-452. We have no license to attribute to Congress an unstated intention to place the information Microsoft dispatched from the United States in a separate category.
Section 271(f) was a direct response to a gap in our patent law revealed by this Court’s Deepsouth decision. See supra, at 444, and n. 3. The facts of that case were undeniably at the fore when § 271(f) was in the congressional hopper. In Deepsouth, the items exported were kits containing all the physical, readily assemblable parts of a shrimp deveining machine (not an intangible set of instructions), and those parts themselves (not foreign-made copies of them) would be combined abroad by foreign buyers. Having attended to the gap made evident in Deepsouth, Congress did not address other arguable gaps: Section 271(f) does not identify as an infringing act conduct in the United States that facilitates making a component of a patented invention outside the United States; nor does the provision check “supplying]... from the United States” information, instructions, or other materials needed to make copies abroad. Given that Congress did not home in on the loophole AT&T describes, and in view of the expanded extraterritorial thrust AT&T’s reading of § 271(f) entails, our precedent leads us to leave in Congress’ court the patent-protective determination AT&T seeks. Cf. Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417, 431 (1984) (“In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests.”).
Congress is doubtless aware of the ease with which software (and other electronic media) can be copied, and has not left the matter untouched. In 1998, Congress addressed “the ease with which pirates could copy and distribute a copyrightable work in digital form.” Universal City Studios, Inc. v. Corley, 273 F. 3d 429, 435 (CA2 2001). The resulting measure, the Digital Millennium Copyright Act, 17 U. S. C. § 1201 et seq., “backed with legal sanctions the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections.” Universal City Studios, 273 F. 3d, at 435. If the patent law is to be adjusted better “to account for the realities of software distribution,” 414 F. 3d, at 1370, the alteration should be made after focused legislative consideration, and not by the Judiciary forecasting Congress’ likely disposition.
* * *
For the reasons stated, the judgment of the Court of Appeals for the Federal Circuit is
Reversed.
The Chief Justice took no part in the consideration or decision of this case.
Deepsouth shipped its deveining equipment “to foreign customers in three separate boxes, each containing only parts of the l3/4-ton machines, yet the whole [was] assemblable in less than one hour.” Deepsouth Packing Co. v. Laitram Corp., 406 U. S. 518, 524 (1972).
See 35 U. S. C. § 271(b) (1970 ed.) (“Whoever actively induces infringement of a patent shall be liable as an infringer.”); § 271(c) (rendering liable as a contributory infringer anyone who sells or imports a “component” of a patented invention, “knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial non-infringing use”).
See also, e. g., Eatent Law Amendments of 1984, S. Rep. No. 98-663, pp. 2-3 (1984) (describing §271(f) as “a response to the Supreme Court’s 1972 Deepsouth decision which interpreted the patent law not to make it infringement where the final assembly and sale is abroad”); Section-by-Section Analysis of H. R. 6286,130 Cong. Rec. 28069 (1984) (“This proposal responds to the United States Supreme Court decision in Deepsouth... concerning the need for a legislative solution to close a loophole in [the] patent law.”).
Microsoft also distributes Windows to foreign manufacturers indirectly, by sending a master version to an authorized foreign “replicator”; the replicator then makes copies and ships them to the manufacturers. App. to Eet. for Cert. 45a-46a.
See 35 U. S. C. § 271(a) (“[Wjhoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
TERMINAL TRANSPORT COMPANY, Appellant, v. John P. BERRY, Appellee.
No. 12027.
United States Court of Appeals Sixth Circuit.
Nov. 29, 1954.
John L. Davis, Lexington, Ky., for appellant.
Armer H. Mahan, Louisville, Ky., for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
MILLER, Circuit Judge.
Appellee, John P. Berry, instituted this action in the District Court to recover damages for personal injuries resulting from an automobile accident on February 18, 1952 on U. S. Highway No. 31W near Upton, Kentucky. The petition alleged negligence in the operation of a truck of the appellant, Terminal Transport Company, as the cause of the accident. In view of the nature of the .questions raised on appeal, it is unnecessary to give the details of the accident. The jury returned a verdict in his favor in the sum of $13,500. Appellant’s motion for a new trial was overruled and judgment was rendered for appellee in the sum of $5,600, and in favor of the intervening petitioner Lloyd’s London in the sum of $7,900. This appeal followed.
William C. Gray, a witness for the ap-pellee, who operated a place of business in Upton, was asked on direct examination by appellee’s counsel — “Did you examine the sidewalk on the other side of the street,” to which he answered, “I did after their insurance man came up and asked me to help measure it.” This was followed by an off the record discussion between Court and counsel at which time the appellant made a motion to set aside the swearing of the jury, which the Court overruled. A little later on cross-examination, the witness was asked by appellant’s counsel how far back of the intersection certain skid marks started, to which the witness answered that he judged it about 125 to 150 feet back. Then came the following question and answer:
“Q. Didn’t you step it off as 43 steps? A. I didn’t step it — now, your insurance man done that.”
This was followed by an off the record conversation between Court and counsel and appellant again renewed its motion to set aside the swearing of the jury, which the Court overruled. Appellant contends that the District Judge committed reversible error in overruling these motions.
Appellant relies upon a well established rule in Kentucky that it is reversible error to permit the jury to hear and consider testimony to the effect that a defendant in a personal injury suit is protected by indemnity insurance. There are many cases stating and applying this general rule. Trevillian v. Boswell, 241 Ky. 237, 43 S.W.2d 715; Star Furniture Co. v. Holland, 273 Ky. 617, 117 S.W.2d 603; Indian Refining Co. v. Crain, 280 Ky. 112, 132 S.W.2d 750; Stott v. Hinkle, 286 Ky. 143, 150 S.W.2d 655; Nickell v. Stewart, 291 Ky. 4, 163 S.W.2d 39; Kaufman-Strauss Co. v. Short, 311 Ky. 78, 223 S.W.2d 367; Turner v. Smith, 313 Ky. 635, 232 S.W.2d 1006; Bybee v. Shanks, Ky., 253 S.W. 2d 257. See Ideal Pure Milk Co. v. Whitaker, Ky., 243 S.W.2d 479; Maddox v. Grauman, Ky., 265 S.W.2d 939, 942, decided March 12, 1954.
However, as appellee points out, the rule is by no means absolute, and it is as equally well settled that under certain conditions a reference to liability insurance will not be deemed prejudicial and will not require the trial judge to set aside the swearing of the jury. Fel-der v. Wilbers, 208 Ky. 830, 271 S.W. 1096; Consolidated Coach Corp. v. Hopkins, 228 Ky. 184, 14 S.W.2d 768; Consolidated Coach Corp. v. Saunders, 229 Ky. 284, 17 S.W.2d 233; Chambers v. Hawkins, 233 Ky. 211, 25 S.W.2d 363; Hedger v. Davis, 236 Ky. 432, 33 S.W.2d 310; Gayheart v. Smith, 240 Ky. 596, 42 S.W.2d 877; Heil v. Seidel, 249 Ky. 314, 60 S.W.2d 626; Huls v. Dalzell, 252 Ky. 13, 66 S.W.2d 28; Marsee v. Johnson, 260 Ky. 615, 86 S.W.2d 299; Rose v. Edmonds, 271 Ky. 36, 111 S.W.2d 427, 431.
A statement of the rule and the exception to it is given in Rose v. Edmonds, supra, as follows: “It is true that we have held in a number of cases that it is prejudicial error to permit plaintiff in such actions to place before the jury the fact that defendant carried indemnity insurance; and, whenever such facts are intentionally injected into the case in a manner evidencing a bad faith purpose on the part of plaintiff, we have uniformly held that he would not be entitled to the fruits of that purpose, and that any judgment obtained would be set aside for that reason. But on the other hand, we have held that when the fact of the existence of such indemnity insurance is inadvertently injected into the case in the absence of bad faith, with no purpose to profit thereby, the error will be regarded as not prejudicial, and especially so when due objection is made thereto and the court excludes its consideration from the jury. Such exclusion would, no doubt, have been made in this case had steps been taken to procure it.” In most of the cases above referred to, where the judgment was reversed, the reference to insurance was a deliberate one by plaintiff’s counsel in his argument to the jury. In Kaufman-Straus Co., supra, the reference by the doctor-witness was obviously deliberate and calculated to influence the jury. In the cases above referred to, where the.reference to insurance was not considered prejudicial, and the judgment was affirmed, the reference was usually a casual, inadvertent one,-not sought for by plaintiff’s counsel, or‘was one that was responsive to a question asked by defendant's counsel.
We are of the opinion that this case falls within the exception to the rule as shown by the cases above referred to. The questions by appellee’s counsel did not call for any reference to “their insurance man,” and such a reference by the witness was gratuitous on his part. See Heil v. Seidel, supra; Chambers v. Hawkins, supra. The reference to “your insurance man” on cross-examination was -justified by the incorrect leading question asked by appellant’s counsel, which the witness denied and then gave the correct facts. See Rose v. Edmonds, supra. As pointed out in Hedger v. Davis, supra, when an insurance company carrying a risk puts its representative in contact with the plaintiff or witnesses for the plaintiff in preparing for defense, it is not unreasonable to expect that fact to come out in a full development of the case before the jury. The Court should be alert to detect any intentional injection of the fact of insurance into the case, even though carefully camouflaged. Bybee v. Shanks, supra; Ideal Pure Milk Co. v. Whitaker, supra. But the present record does not convince us of any such intention on the part of appellee’s counsel, or that the statements complained of are such as to require the setting aside of the swearing of the jury in order to protect appellant’s rights.
In a number of the cases herein cited, the trial judge sustained an objection to the answer and admonished the jury not to consider it. That was not done in the present case. But it was not requested by appellant. Ideal Pure Milk Co. v. Whitaker, supra, 243 S.W.2d 479, 480; Rose v. Edmonds, supra, 271 Ky. 36, 44, 111 S.W.2d 427. It is a question of trial tactics whether a defendant prefers such an admonition to the jury or to overlook the incident. As stated in Consolidated Coach Corp. v. Hopkins, supra, 228 Ky. 184, 194, 14 S.W.2d 768, 773: “Had the court sustained the motion and admonished the jury, it is likely emphasis and prominence would have been given to it and greater damage done appellant than letting it alone.” In Turner v. Smith, supra, 313 Ky. 635, 639, 232 S.W.2d 1006, the appellant’s attorney made the point that the unrequested admonition of the trial judge aggravated rather than lessened the prejudicial effect of the improper reference to insurance. If the admonition is not requested by the defendant, we think it is not error to omit it in a case like the present one.
In submitting the case to the jury, the District Judge on the question of damages, authorized a recovery for the damage to appellee’s tractor, for lost wages, for pain or suffering, “and such further amount not exceeding $500 as you think would fairly and reasonably compensate him on account of the loss of the use of a tractor like and similar to this tractor for a period of not exceeding two weeks following the accident.” Appellant complains of that portion of the instruction dealing with loss of use, contending that the maximum amount of $500 authorized was not supported by the evidence, was accordingly erroneous, and requires a reversal. Harlan Fruit Co. v. Kilbourne, 280 Ky. 511, 516, 133 S.W.2d 730; J. N. Youngblood Truck Lines v. Hatfield, 304 Ky. 600, 608, 201 S.W.2d 567.
The evidence on this item was very brief. Appellee was asked on direct examination what was the reasonable rental value at the time of the accident of a like or similar unit to the one that was destroyed, to which he answered — “They rent them out by the mile, ten cents a mile, and they furnish everything, driver and fuel, all of it.” Appellant’s argument is that under the above evidence ten cents per mile was the gross rental and since the evidence also showed that appellee was paying truck drivers 5.7 cents per mile wages, this amount, in addition to the cost of fuel, about which there was no evidence, should be deducted from the ten cents per mile to determine the net cost to the appellee. On this basis the net cost was less than 4.3 cent per mile which would make a total maximum recovery of something lesS than $258 for the two weeks’ period. This contention overlooks the additional testimony of ap-pellee which followed immediately after the answer above referred to.
“Q. They rent it at ten cents a mile and furnish everything, that is ten cents net per mile? A. That’s right, * * * (remainder of answer stricken as being hearsay).
“Q. What was the average mileage per week that vehicle was being driven? A. Three thousand miles.
“Q. Therefore, two thousand at ten cents net per mile would be $200? A. I said three thousand miles.
“Q. Then it would be $300 per week and it took two weeks to make the adaptations? A. Yes.”
This evidence twice refers to ten cents net per mile. Whether the witness meant it was ten cents gross or ten cents net was not resolved by any further questioning or by the testimony of any other witness. The net effect of this apparently conflicting testimony was for the jury to decide. State v. Coomer, 105 Vt. 175, 163 A. 585, 94 A.L.R. 1038, 1040. Compare Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. The District Judge gave the usual instruction that disputes in the testimony were to be resolved by the jury. Appellant had the opportunity to argue this factual issue to the jury. We are of the opinion that the instruction complained of was not prejudicial.
The judgment is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_capric
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine. 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".
CITY OF CHICAGO, a Municipal Corporation of the State of Illinois, and Public Service Commission of the State of Wisconsin, Petitioners, v. FEDERAL POWER COMMISSION, Respondent, Natural Gas Pipeline Company of America, Intervenor. NATURAL GAS PIPELINE COMPANY OF AMERICA, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
Nos. 19604, 19836.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 28, 1966.
Decided Sept. 8, 1967.
As Amended Oct. 31, 1967.
Petition for Rehearing Denied Oct. 31, 1967.
See also 124 U.S.App.D.C. 13, 360 F.2d 828.
Mr. Mathias M. Mattern, Chicago, 111., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Mr. William T. Torkelson, Madison, Wis., was on the brief, for petitioners in No. 19,604.
Mr. William W. Brackett, Chicago, 111., for petitioner in No. 19,836.
Mr. Peter H. Schiff, Deputy Sol., F. P. C., with whom Messrs. Richard A. Solomon, Gen. Counsel, Howard E. Wahrenbroek, Sol. at the time of argument, and Abraham R. Spalter, Asst. Gen. Counsel, F. P. C., were on the brief, for respondent.
Before Burgee, Tamm and Leventhal, Circuit Judges.
LEVENTHAL, Circuit Judge:
This case presents a cluster of issues concerning the proper treatment, for purposes of regulation by the Federal Power Commission of the rates of natural gas pipeline companies, of the higher deductions permitted in calculation of Federal income tax by the liberalized depreciation provisions of Section 167 of the Internal Revenue Code of 1954. In addition to questions of general approach there are particular issues as to the effect of a rate settlement agreement.
I Procedural History.
The controversy before us began when rate increases were filed in 1960 by Natural Gas Pipeline Company (Natural), the petitioner in No. 19836. On Natural’s motion in the ensuing proceeding under Section 4(e) of the Natural Gas Act, the increased rates were put into effect on March 1, 1961, after the statutory suspension period expired, subject to Natural’s obligation to make such refunds as the Commission might validly order. After a full hearing was had, but before briefs were submitted to the examiner, Natural, its customers, the City of Chicago (Chicago) and the Wisconsin Public Service Commission (Wisconsin), and the Commission staff, agreed upon a rate settlement. The customers agreed to accept an increase in rates yielding approximately $6,200,000 per annum, about half the increase Natural had proposed, and Natural agreed to refund amounts already collected above the agreed-upon increase.
The settlement left open two questions for future determination, one of which relates to liberalized depreciation, and Natural agreed to abide by a Commission refund order “if any” with regard to the reserved issue, subject to its right to judicial review. On October 25, 1962, the Commission approved this settlement.
On February 3, 1964, the Commission issued Opinion 417, Alabama-Tennessee Natural Gas Co., wherein it announced principles concerning rate treatment of liberalized depreciation, and the City of Chicago then moved the Commission to decide the liberalized depreciation issue with respect to Natural. On March 18, 1965, the Commission issued its Opinion 456, concluding that the principles of Alabama-Tennessee were applicable to Natural and making certain other rulings with respect to effective date and settlement agreements that will be discussed in due course.
Petitions for rehearing were filed and denied, and petitions for review under Section 19(b) of the Natural Gas Act were filed both by Chicago and Wisconsin as joint petitioners in No. 19604, and by Natural in No. 19836.
Consideration by this court was deferred pending judicial review of the Commission’s Alabama-Tennessee decision. That decision was affirmed by the Fifth Circuit in Alabama-Tennessee Natural Gas Co. v. FPC, 359 F.2d 318 (1966). The Supreme Court denied certiorari, 385 U.S. 847, 87 S.Ct. 69, 17 L.Ed.2d 78 (1966).
II The Validity of the Commission’s Requirement for “Flow Through” to Consumers of the Tax Reductions Achieved by Natural Through Use of Liberalized Depreciation.
1. The Federal Power Commission, with judicial approval, has been engaged under the Natural Gas Act in regulating the maximum rates of natural gas pipeline companies by permitting rates that will yield operating revenues sufficient to cover “cost of service,” a term that in essence includes, in addition to operating costs, depreciation, etc., the “return” to the company which the Commission calculates by providing a fair rate of return on a rate base equal to the amount prudently invested in utility property, and the “expense” of Federal income tax payable on the allowed return. The objective is to allow a fair profit, after taxes, ascertained after taking into account “a variety of factors, such as the risks of the business, the necessity for attracting capital, and the desirability of lower cost of gas to the public.”
2. Focusing on the income tax element this is regarded by regulatory commissions as part of the “cost” of service, a terminology in line with the general thinking of businessmen, although for various purposes economists and accountants draw a distinction between tax burden and cost. The difference is largely one of nomenclature since in any event it is necessary to provide, obtain or permit revenues after taxes that are sufficient to cover all costs other than taxes.
The general rule followed by the Commission, and indeed most if not all regulatory commissions, is that the “consumers should be charged for only the actual liability for Federal income taxes.” However, as the Commission pointed out, in some cases normalization of tax deferrals is required lest future consumers be compelled to subsidize present consumers being served by the operations accruing tax liabilities. The specific question of the proper regulatory treatment of the liberalized depreciation tax deduction is one on which the regulatory commissions are nearly equally divided.
A bare majority use the so-called “normalization” method by which the tax expense component of cost of service is calculated by using the higher income tax that would have been payable if depreciation were calculated on the “straight-line” method almost universally utilized for tax purposes prior to the 1954 Code, without reduction for the amount of “deferred” taxes carried in a tax reserve on the books in contemplation of the future tax obligation. This approach focuses on the current tax reduction achieved by the utility as a tax “deferral,” with liberalized deduction providing higher depreciation deductions and hence lower taxes in the early part of the property’s usable life, and of lower deductions and higher taxes in later years.
The rejection of the normalization approach by respondent Commission, and others, rests on the view that the deferral conception is inappropriate in the absence of a reasonably foreseeable decline in depreciable plant account, and hence is inapplicable where a growing or stable plant is ascertainable for the foreseeable future. In Alabama-Tennessee the Commission determined that the deferral conception was inapplicable in view of the factual condition of growing or stable plant for the foreseeable future, a condition found to exist in general for the natural gas industry and natural gas pipeline companies. The finding of this condition followed a review of forecasts for energy supply and demand and other pertinent economic data, a forecast of continuous growth characteristics for the industry for some time, albeit at a more modest rate than the dramatically steep incline that has marked the industry in the post-war decades, and a relative assurance of at least stable plant for ’the foreseeable future.
In Alabama-Tennessee the Commission rejected normalization for the natural gas industry in general, but left open the possibility that a different ruling might be applicable to a particular company that showed its condition was different from the industry’s in this regard. No such showing was attempted by Natural, and there is no serious effort in this case to dispute the factual finding underlying the flow-through determination, similar to that made for the company in Ala bama-Tennessee, that “Natural will maintain a growing or stable plant for the foreseeable future.”
3. We follow the decision of the Fifth Circuit in Alabama-Tennessee which sustained the Commission’s findings as reasonable and supported by evidence and upheld the general validity and particular application of the policy determination requiring “flow-through” of the tax reduction ascribable to liberalized depreciation. Although in general the denial of certiorari is said to import no conclusion on the merits, it is not insignificant that in Alabama-Tennessee the writ was denied notwithstanding the concession of the Solicitor General that an important recurring question was involved.
In any event, Alabama-Tennessee is plainly in line with the principles expressed in FPC v. United Gas Pipe Line Co., 386 U.S. 237, 87 S.Ct. 1003, 18 L.Ed. 2d 18 (1967). In that case the Court held that where affiliated companies obtain a tax saving through consolidated returns, a regulatory commission can flow through the amount it calculates, by a reasonable allocation, to be the tax saving of a regulated company within the affiliated group. The Court pointed out that the tax law does not attempt to set rates, and stated (at 244-245, 87 S.Ct. at 1007):
[W]hen the out-of-pocket tax cost of the regulated affiliate is reduced, there is an immediate confrontation with the ratemaking principle that limits cost of service to expenses actually incurred. Nothing in Colorado Interstate [Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 65 S.Ct. 829, 89 L.Ed. 1206] or Panhandle [Panhandle Eastern Pipe Line Co. v. FPC, 324 U.S. 635, 65 S.Ct. 821, 89 L.Ed. 1241] forbids the Commission to recognize the actual tax saving impact of a private election to file consolidated returns. On the contrary, both cases support the power and the duty of the Commission to limit cost of service to real expenses. [Footnote omitted.]
While Natural’s contentions to this court are for the most part disposed of by the court’s decision in Alabama-Tennessee, some supplementary comments may be appropriate. First, we note that it is in the tradition of sound regulation for a commission to develop doctrines, as respondent Commission has done, that are attuned to its growth forecast. Indeed, it is this factual experience of renewal of capital investment that has undercut the objections of theory, once expressed by natural gas companies, that the Commission’s use of prudent rate base and deduction of depreciation reserves would lead in time to the absurdity of a “vanishing rate base” and zero return. Similarly here the factual projection of capital investment undercuts the objection grounded on the theoretical point that the flow-through approach exposes a company to the risk of a future tax bill without the comfort of a tax reserve.
Given the premise of a growing or stable plant, there is no basis for our rejecting as arbitrary the Commission’s conclusion that the utility will obtain a continuing tax reduction from liberalized depreciation. That proposition, noted in publications, and presented in this record, as in the Alabama-Tennessee record, through the testimony of Mr. Melwood Van Scoyoc, as a witness for intervenors, is essentially demonstrable as a matter of mathematics. The critical point is that whereas tax “deferral” is the correct analysis when only a single unit of property is involved, when the procedure is applied to “property comprised of a large number of units as is characteristic of utility plant,” typically with different vintages, depreciated through use of “average service life” experience, composite depreciation on total plant will exceed straight line composite depreciation as long as total dollar amount of gross composite plant (before depreciation) remains at least stable, since the depreciation on older assets that is below normal “is counterbalanced by ‘above normal’ depreciation on new assets.”
Natural’s primary emphasis is on the legislative intention it gleans from the tax statute. What Congress provides in a tax statute does not necessarily control in the implementation of federal regulatory statutes. See FPC v. United Gas Pipe Line Co., supra,. In Alabama-Tennessee, after reviewing the legislative history at length after contrasting the Congressional silence on the liberalized depreciation issue with the precise language used in the provision of the tax statute that expressly restricted the rate-making authority of federal regulatory agencies to reduce the federal income tax component of cost of service by the amount of the investment tax credit, and after projecting as well as it could how the legislature would have dealt with the concrete situation if it had but spoken, the Fifth Circuit concluded (359 F.2d at 335):
Given the long reach of the Natural Gas Act, as liberally interpreted by the Supreme Court, and weighing the consumer-oriented objectives of that Act against the Section 167 objective of promoting plant expansion by postponing the timing of tax payments, we conclude: It is unlikely to suppose that Congress amended the Natural Gas Act by a reference in the Internal Revenue Code; it is unreasonable to read Section 167 as a mandate reducing the Commission’s responsibility to fix fair rates according to its usual ratemaking policies in favor of the consumer. * * * [We] infer that its [Congress’] decision not to disturb, in terms, the status quo of ratemaking indicates a congressional intent that each federal regulatory agency should continue to exercise an informed discretionary authority in accordance with the agency’s usual standards in the light of the needs peculiar to the particular industry subject to rate regulation.
The fact that the tax statute is not controlling does not necessarily end the matter. A regulatory agency may, should, and in some instances must, give consideration to objectives expressed by Congress in other legislation, assuming they can be related to the objectives of the statute administered by the agency. Here, however, the Commission did give consideration to the Congressional objective of stimulating investment. It pointed out that the major expenditures by natural gas pipelines result from system expansion to serve additional loads, and technological obsolescence has not been a large investment factor; that lower rates tend to generate higher volume and thus ultimately to require expansion; that natural gas pipelines have no need for the additional capital provided by tax reserves to finance expansion in view of the regulatory principles under which rate of return is established so as to attract new capital and there is provision for adequate working capital allowance in the rate base; and that there is no indication that pipelines will have any problem financing the moderate expansion expected in the near future, especially in view of the tremendous expansion financed in the past two decades at a cost of over $9 billion. The Commission applied to Natural its rationale in Alabama-Tennessee “that flow-through and lower rates are a more effective stimulus to new investment than normalization”; and Natural does not contend that if it be assumed that the approach is sound for the natural gas pipeline industry generally it is not properly applicable to Natural.
Natural’s position is that the Commission is required not only to further the Congressional objective of enhancing investment, but to adopt the method prescribed by Congress for achieving that objective, and that Congress sought economic stimulus through the technique of providing current investment funds and not through the technique of tax reduction. We do not read the legislative history as indicating that Congress would have felt frustrated if producers in a competitive industry decided to treat the liberalized depreciation as in effect a tax reduction and to lower prices in contemplation of increasing sales and capital investment. The regulation of companies protected from free competition may properly be conducted so as to seek the kind of service and price reductions that would have been achieved under free competition — assuming the utility is not deprived of a fair return. In any event, we agree with the conclusion of the Fifth Circuit that the courts are not in a position to choose between economic theories or to mandate the particular technique espoused by Natural as the plainly ascertainable will of Congress.
4. Natural says that the Commission has been treating the courts as “rubber stamps,” stating in its brief: “It has repeatedly changed its position and each time it has ignored prior judicial holdings, apparently confident that it will be upheld in its new-found reversible exercise of ‘expertise.’ If the Commission can successfully do this — if its decisions can be relied upon only until the composition of the Commission changes and a different social philosophy gains control— and can secure judicial approval each time it switches position, then Natural submits that judicial review has lost its meaning.”
In reply, respondent’s brief retraces the Commission’s steps and argues that they were responsive to growing appreciation of the consequences of the normalization approach and to new judicial indications of the range of discretion available to the Commission. Natural disputes the reading of pertinent decisions both by the Commission and in the Alabama-Tennessee decision of the Fifth Circuit. So far as our own decisions go, it may be observed that in 1955 City of Detroit, Mich. v. Federal Power Commission, upheld, as the result intended by Congress, the Commission’s normalization approach to the accelerated amortization applicable under the 1950. Code to particular national defense facilities. The Commission’s 1956 Amere decision assumed that City of Detroit governed liberalized depreciation, notwithstanding the fact that the accelerated amortization provisions were concerned with particular units of plan, and did not involve the entirety of new plant covered by liberalized depreciation, which assures and generalizes the savings effect related above.
Our 1963 en banc decision in Panhandle Eastern Pipe Line Co. v. Federal Power Commission, limited the scope of this part of City of Detroit when the court approved the 1961 determination of the Commission, faced with the mounting accumulations of tax deferrals under the normalization policy, that limited the rate of return on this part of rate base to only 1.5%. The indications of agency discretion in the majority opinion were relied upon by the Commission as a recognition of its authority when it acted within a year to reject completely the “normalization” approach.
The Rule of Law does not forbid an agency from modifying its regulatory policy, and the courts have upheld policy revision many times. Indeed one of the signal attributes of the administrative process is flexibility in reconsidering and reforming of policy. What is required by the Rule of Law is that agency policies and standards, whether or not modifications of previous policies, be reasonable and non-discriminatory, and flow rationally from findings that are reasonable inferences from substantial evidence.
There is perhaps one additional requirement inserted in case of a change in policy, that the agency give due consideration to the equities, if any, arising out of commitments based on previous rulings.
The possibility that changes in policy and viewpoint may come with changes in membership is inherent in an agency’s characteristic as an institution headed and staffed by human beings, and will not come as a surprise to any observer of the administrative process. Sometimes indeed an industry resists renomination of a commissioner precisely to obtain a change in policy. It is not necessarily invidious that a change in approach may reflect a change in personnel; indeed, it may well be a blessing rather than a vice that the rigidity of staff bureaucracy may be minimized by changes of agency membership that can initiate a fresh look at old problems, rather than a mechanical perpetuation of what has been done in the past. In any event, judicial review is not abdicated by a doctrine that accepts an agency discretion to change policies, but rejects rulings based on improper pressures on or even secret contacts with administrators, the exercise of pure whim, or other irrational or arbitrary bases of decision.
Insofar as Natural relies on the inaction of Congress during the years of the Commission’s normalization ruling, this does not significantly add to or subtract from the legislation as passed in 1954. Sometimes legislative inaction may be taken as acquiescence in the validity of executive or administrative action under an assumed power. More rarely can it be taken as a prohibition where there has been executive inaction or delay in apprehending the scope and nature of the evil that is later considered to require attention in the public interest.
We affirm the Commission’s policy use of the “flow through” of the current tax reduction resulting from use of liberalized depreciation and its application of that policy in limitation of Natural’s rate increase.
lli Invalidity Under Settlement Agreement of the Commission’s Deduction from Natural’s Rate Base of Previously Accumulated Deferred Taxes.
The Commission, after concluding that Natural’s condition was properly governed by the principles of Alabama-Tennessee, decided that as was done in that case “we shall provide for deduction of the accumulated reserves from the rate base.” We think this action was precluded by its 1962 order approving the parties’ Stipulation and Agreement to Terminate Proceedings, hereafter referred to as their Settlement Agreement.
In Alabama-Tennessee, after adopting the flow-through policy, the Commission turned to the existing accumulation of deferred tax reserves, and held they should be maintained as contingency reserves against the remote possibility that due to some improbable but conceivable combination of circumstances future ratepayers may be called upon to defray the cost of higher taxes attributable to the earlier use of liberalized depreciation. It concluded that since the accumulations will not be needed in the foreseeable future to defray any increase in taxes payable on earnings from properties used in rendering service, the balances “must now be regarded as consumer-contributed capital collected for a specific purpose of remote and improbable occurrence.”
The Commission formulated the policy, prospective in effect from the date of the order, that the rate of return on these balances should be zero, since no cost had been incurred in their accumulation, and it accordingly modified its policy of permitting gas pipeline companies to earn a 1.5% return on those balances.
As to the general propriety of such an approach, assuming a flow-through policy, we agree with the Fifth Circuit’s affirmance of this ruling in Alabama-Tennessee. We agree with Natural, however, that the Commission’s application of this ruling to Natural was in excess of the question reserved for the Commission by the Settlement Agreement, which uses explicit and unambiguous language reserving only the question whether Natural should use “flow through” or “normalization” in computing its federal income tax expense allowance. Opinion No. 367 approving the Settlement Agreement uses the same terminology, and makes no reference to other aspects of liberalized depreciation problem, such as effect on rate base or rate of return. Any adjustment in rate base or rate of return would affect the “return” component of the cost of service which is separate and distinct from the Federal Income Tax expense allowance. The difference between these two items is not recondite technicality; it is part of the basic vocabulary of all parties and counsel to a rate proceeding.
In denying Natural’s petition for rehearing the respondent Commission said that the determination of the issue whether Natural was properly subject to flow through “also involved, in our opinion, the proper treatment of the accumulated deferred taxes,” since these reserves reflect the benefits of depreciation that had not been flowed through. We have no doubt that the two subjects are interrelated, as the discussion in Alabama-Tennessee makes clear, but we also have no doubt that they are two separate subjects, and that under the Settlement Agreement one was settled by the parties and one was reserved for Commission decision.
The case is governed by the need for construing settlement agreements in accordance with the specialized understanding of parties to a rate proceeding. There is little we can add to the Fifth Circuit’s knowledgeable discussion of settlement agreements and their interpretation in Texas Eastern Transmission Corp. v. FPC, 306 F.2d 345 at 348 (5th Cir. 1962):
* * * [0]ne sure way to discourage voluntary settlements is for the Commission, at the behest of one party or the other, or the ubiquitous intervenors, to read into contracts things which are simply not expressed or not there, out of the thoroughly commendable (and understandable) feeling that unless that is done the result is not as good as it ought to have been. This is particularly true in this area where, as was the case here, the proposed settlement is subjected, as it should be, to the closest scrutiny by the Commission and its staff. It is more than arms’ length. Overreaching is an impossibility. But precision is not merely a possibility. Precision is almost a certainty as skilled partisans undertake to hammer out the bargain under the ever-present watchful eye (and hand) of the independent agency as the guardian of the public interest. Consequently, both in its substantive provisions and in the terminology sought to memorialize the undertaking, the parties ought to be able to accept the contract as drafted, executed and approved. It should stand for what it says.
In construing the contract in accordance with its terms, and incidentally in a way that Chicago as well as Natural tells us is sound, we observe that this is not necessarily the perpetuation of an unintended and egregious mistake. We note that Mr. W. H. Beidatsch, the Commission staff witness, calculated that fair rate of return, was 6.28%, if the “capital obtained through the deferral of income taxes” is assumed to be “cost free,” and 6.32% if a cost of 1.5% “is imputed to such capital.” So the parties and staff were not unaware of the problem. And the City of Chicago in particular was presumably not unaware that only two years previously the Supreme Court of Illinois held that the state commission could in its discretion recognize deferred tax liability as a present expense, but could not fail to exclude from rate base the funds generated by accruing deferred tax expense.
The Settlement Agreement says the agreement by the parties as to amount of cost of service, reached for purposes of settlement, “is not intended to reflect agreement to the amount, percentage or method or derivation of any particular item of such cost of service.” It also expressly provides that it is without prejudice to the right of the parties hereafter to question in any other proceeding the propriety of any method or principle employed or the accuracy of any data used in connection with this settlement.” These are important provisions. The parties may be disposed to avoid the expense and distractions of litigation if the various rates reached in a settlement do not constitute a binding admission or ruling on principle. But for purposes of considering whether it makes sense to construe the Settlement Agreement as written, it may be supposed that at least the intervenors and staff may have been satisfied that in their calculation the settlement was acceptable in that it essentially reflected a 1.5% rate of return for that part of capital composed of deferred tax accruals. Although this was no more than would have been required by the Commission’s policy at the time, that policy was of only one year’s standing, there was at least some question of its validity under the City of Detroit case, and it had not yet been affirmed by the 5-4 en banc decision which was issued by this court in 1963. An agreement by Natural not to seek a greater return and by the customers and staff not to press for a zero return has every element of a meaningful bargain. That agreement was not articulated in express terms, but it is, we think, the meaning and consequence of the Settlement Agreement executed by the parties and duly approved by.the Commission.
IV Validity of the Commission’s Decision To Apply the Flow Through Policy to Natural’s Rates as of the Date of Its Alabama-Tennessee Decision.
The Commission concluded that the flow-through policy should be applied to Natural’s rates as of February 3, 1964, the date from which the Commission decided in Alabama-Tennessee that tax benefits from liberalized depreciation should be flowed through. We hold the Commission’s action valid, and shall state our reasons while discussing and rejecting the attacks from both sides.
A. Contentions of Invalidity under the Natural Gas Act
Chicago contends that Section 4 (e) of the Natural Gas Act required the Commission to make its order retroactive to the effective date of the increased rates held invalid. Section 4(e) does give the Commission “power * * * to make its order retroactive, by means of the refund procedure, to the date the change became effective.” United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 341, 76 S.Ct. 373, 379, 100 L.Ed. 373 (1956). That does not mean Section 4(e) requires this retroactive result. Explaining why its ruling was not made retroactive to the effective date of Natural’s rate increase, the Commission stated “that in Alabama-Tennessee we were announcing a new policy and overruling previous decisions. It was therefore not equitable, contrary to the contentions of Chicago, to make our determination effective before February 3, 1964, but on that date the industry was informed of the new policy, and it was appropriate that refunds should be ordered from then.”
Natural on the other hand contends that the Commission erred in applying its policies to Natural retroactively, that is prior to the date on which it found such policies valid as to Natural (March 18, 1965).
We reject both sets of contentions. The Commission acted sensibly and reasonably in making its new policy effective as of-fhe date it was announced to the industry. We have recently upheld as reasonable, against a charge that retroactive application was unlawful, the Commission’s determination under the Federal Power Act to make a license requirement effective as of the date it issued decisions setting forth new criteria for requirement of licenses. Niagara Mohawk Power Corp. v. FPC, 126 U.S. App.D.C. 376, 379 F.2d 153 (May 18, 1967).
Instructive analogy is afforded by precedents of both legislative and judicial branches. Customarily decisions of the judicial branch are retroactive and the legal principles announced by the court are considered to be the rules that governed transactions and events prior to the date of decision. But this is not a necessary feature even of the judicial process. In recent years the Supreme Court has deemed it appropriate to make several doctrines effective prospectively as of the date of its announcement of a change in the course of decision. The Court has rejected the Blackstonian concept that decisions are only the exposition of pre-existing principles that are “discovered” by the “living oracle of the law,” and that overruled decisions reflect only a human error in the Court failure of true discovery. Instead it took the view that even courts do more than discover the law, that overruled decisions are judicial facts and that practical consequences, such as hardship or injustice, can be taken into account in deciding whether changes in decision should be retroactive.
A similar destination is often reached from another direction by the legislative branch which customarily operates prospectively but frequently finds that the public interest lies in making legislation retroactive to the date of public awareness of consideration being given to proposed changes.
The good sense and reasonableness, and hence presumptive validity, of a determination to start the effectiveness of a new policy with the date of a public awareness, are not to be gainsaid for an administrative agency because it states, as respondent Commission did, that this solution is “the most equitable resolution” it could reach. It is argued to us that Section 4(e) “does not confer equity powers” upon respondent Commission. It may readily be agreed that a commission does not have the same range as an equity court to summon powers to the call of justice. It likewise does not have the power to punish for contempt. However, when an agency is exercising powers entrusted to it by Congress, it may have recourse to equitable conceptions in striving for the reasonableness that broadly identifies the ambit of sound discretion. Conceptions of equity are not a special province of the courts but may properly be invoked by administrative agencies seeking to achieve “the necessities of control in an increasingly complex society without sacrifice of fundamental principles of fairness and justice.”
Upholding the Commission’s action is not equivalent, as Chicago suggests, to a ruling that the agency would be free to permit the utility to retain some rates the Commission had found unjust. The point is, rather, as respondent’s brief puts it, that the “Commission’s decision in effect means that until February 3, 1964, the date of the Alabama-Tennessee decision, rates reflecting normalization were just and reasonable,” while rates reflecting normalization subsequent to the notice then given to the industry were “to that extent, excessive and unjustified.”
Natural would have no cause for complaint over the 1964 date if in 1964 the Commission had proceeded by way of a policy regulation. On this record it shows no substantial ground for a difference in result because the agency declared a general principle in the context of an individual proceeding, but with leave to the industry to participate amicus curiae; it was free to utilize this technique notwithstanding the efforts of courts and scholars to encourage greater use of regulations for broad policy declaration. Satisfied that its findings were valid with respect to Alabama-Tennessee “and other typical pipelines” the Commission left a gas pipeline not a party to that proceeding “legally free to introduce evidence and testimony of exceptional situations demonstrating the inapplicability of the determinations made in Opinion No. 417 to its individual situation.” That left a pipeline free to try to be excused, but did not require a postponement of the effective date for a company like Natural that did not even make an effort to claim its individual situation was “exceptional.” New England Divisions Case, 261 U.S. 184, 199, 43 S.Ct. 270, 67 L.Ed. 605 (1923). A contrary requirement would breed litigation for the sole purpose of delay.
This leads us into a discussion of Natural’s thorny contention that it is entitled to an October 1965 effective date because dates in this general range are reflected in the orders, with prospective effect, entered with regard to other companies. Certainly Natural is entitled to relief if it has been singled out for a difference in treatment not justified by a difference in conditions. And Natural points out that Opinion 417, the Alabama-Tennessee opinion, after phrasing the issues, stated that the issue had been reserved in other cases, wherein “we uniformly provided that any changed policy * * * would have only a prospective effect on the rates and charges of the individual pipelines concerned.” In a footnote Natural’s case was listed along with three other cases where the ultimate result was prospective from a 1965 effective date.
We find somewhat disingenuous the Commission’s observation that the reference to the present proceeding in Opinion 417 conveys no more than that the same issue was presented in both eases. But we do agree that the description of the present proceeding, in the course of an introductory background, was not a commitment to make the present order effective as of the date of its issuance. The settlement obviously contemplated some refund if the liberalized depreciation issue was decided on the merits contrary to Natural’s position. We think the Commission decided in accordance with the spirit of both the settlement and the forecast that a change in policy would be “prospective” by its decision under review making the change prospective from an effective date of February 3, 1964.
When we turn to the question of discrimination in factual results, we find that the proceedings listed by Natural involved sufficient differences in posture to negative the charge of arbitrary discrimination. All of the cases involved either a section 5 (a) proceeding, in which the Commission has no statutory authority to order refunds and can act only prospectively, or they involved section 4(e) proceedings in which rate reductions were put forward that included but were not limited to the reductions implementing flow throughs.
The proposals were settlements consented to by consumers, cities, and state commissions. Agreed reductions and settlements may involve compromises that recognize that immediate reductions may be preferable to larger refunds sometime in the future. Refunds are not an adequate substitute for an immediate rate reduction. FPC v. Tennessee Gas Transmission Co., 271 U.S. 145, 154-155, 83 S.Ct. 211, 9 L.Ed.2d 199 (1962). As to the Commission’s order approving the joint rate reduction offer of American-Louisiana and Michigan-Wisconsin, affiliated companies which were cited along with Natural in the footnote in Opinion 417, the Commission's opinion under review noted that in those cases, unlike Natural, no evidence had been introduced on treatment of liberalized depreciation and a further evidentiary hearing would have been required, which was not the case as to Natural where no compromise was required in order to avoid delay in implementation, and also that reductions were proposed as to the rates payable by the consumers (to Michigan-Wisconsin).
Though the various Commission’s actions have been, so to speak, reconciled so as to avoid the taint of illegal discrimination, we acknowledge an uneasiness that may well have its roots in the fact that the Commission’s general policies were implemented in individual proceedings. The Commission followed up Opinion 417 with an accounting regulation, and charges of discrimination could have been obviated at the start by use of policy regulations both for restatement of the principles of the policy decisions and crystallization of implementing sub-principles. The continued expressions of courts and commentators
Question: Did the courts's use or interpretation of the arbitrary and capricious standard support the government? Note that APA allows courts to overturn agency actions deemed to be arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. Overton Park emphasized this is a narrow standard, and one must prove that agency's action is without a rational basis. This also includes the "substantial justification" doctrine.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Jesse W. FRANKS; Central States Fire Insurance Company; Springfield Fire & Marine Insurance Company, Appellants, v. GROENDYKE TRANSPORT, Inc., Appellee.
No. 5171.
United States Court of Appeals Tenth Circuit.
Jan. 12, 1956.
Clarence N. Holeman, Wichita, Kan. (W. A. Kahrs and Robert H. Nelson, Wichita, Kan., were with him on the brief), for appellants.
Malcolm Miller, Wichita, Kan. (George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Robert N. Partridge and Robert M. Siefkin, Wichita, Kan., were with him ■on the brief), for appellee.
Before BRATTON, Chief Judge, HUX-MAN, Circuit Judge, and CHRISTEN-SON, District Judge.
BRATTON, Chief Judge.
Jesse W. Franks instituted this action against Groendyke Transport, Inc., to recover damages for the destruction of property by fire. Central States Fire Insurance Company and Springfield Fire & Marine Insurance Company subsequently joined as parties plaintiff. The defendant denied liability and by cross-complaint sought to recover damages for injury to its property by the fire. The cause was tried to a jury. At the conclusion of all the evidence the court directed a verdict against the plaintiffs upon their cause of action and against the defendant upon the cause of action pleaded in the cross-complaint. Judgment was entered upon the verdict, and plaintiifs appealed.
The case falls within a narrow factual compass. There were admissions in the pleadings or evidence adduced upon the trial which tended to establish these facts. Franks owned a combination service station, grocery, restaurant, and home, located immediately adjacent to a highway in Kansas. Central States Fire Insurance Company and Springfield Fire & Marine Insurance Company each issued its policy of fire insurance covering some or all of such property, and after the fire to which reference is hereinafter made each company made payment under its policy. Groendyke was engaged in the business of delivering gasoline to others by means of motor transports. Harold Perkins was the agent and servant of Groendyke. Acting as such agent and servant, Perkins arrived at the filling station in a gasoline tank transport owned by Groendyke to make delivery of certain gasoline. It was a cloudy, rainy day. The transport was placed in proper position near the storage tanks belonging to Franks. Perkins and Franks cooperated in making the hose connection between a compartment of the transport and a storage tank belonging to Franks. The motor of the transport was left running in order to provide the necessary power to operate the pump which forced the gasoline from the compartment into the storage tank. After the pumping of the gasoline into the storage tanks had begun and while it was continuing, Perkins and Franks got into the cab of the transport and examined certain papers relating to the delivery and receipt of the gasoline. Nothing different or unusual about the unloading of the gasoline was observed by either of the parties. A customer arrived at the filling station. Franks got out of the cab of the transport, waited on the customer, and went inside to ring up the money. Shortly after Franks got out of the cab, Perkins got out, went to the rear of the transport, placed a ladder in an upright position against the truck, and climbed the ladder to see whether all of the ethyl gasoline had been pumped into the storage tank. As his head cleared the top of the rear compartment of the transport, he saw flames coming out of the ethyl tank belonging to Franks. He jumped from the transport and started towards its front. As he did so, he saw flames coming up over the cab of the transport. He then ran from the transport toward the road, circled around, went to the filling station, and helped in the effort to control or extinguish the fire. After waiting on the customer, Franks went inside the building and rang up the money. His wife was there. Both of them saw the fire at about the same time. When they first saw the fire, it was burning or rolling up around the cab of the truck. No one testified that he saw the fire start or knew its origin. The property belonging to Franks was destroyed and the transport belonging to Groendyke was damaged.
Appellants predicate error upon the action of the court in directing a verdict in favor of the appellee. It is argued that the evidence established a prima facie case against the appellee and that the case should have been submitted to the jury. It is the general rule in the federal courts that on motion for a directed verdict, the evidence and the inferences which may be fairly drawn from the evidence must be considered in the light most favorable to the party against whom the motion is directed; and that if the evidence and the inferences viewed in that manner are of such character that reasonably minded persons in the exercise of fair and impartial judgment may reach different conclusions upon the crucial issue, the motion should be denied and the question submitted to the jury. Long v. Clinton Aviation Co., 10 Cir., 180 F.2d 665; Stern v. Dunlap Co., C.A.10, 228 F.2d 939. But it is the province and duty of the court to direct a verdict where the evidence is without dispute or is conflicting but of such conclusive nature that if a verdict were returned for one party the exercise of sound judicial discretion would require that it be set side. Central Surety & Insurance Corp. v. Murphy, 10 Cir., 103 F.2d 117; Farr Co. v. Union Pacific Railroad Co., 10 Cir., 106 F.2d 437; Oklahoma Natural Gas Co. v. McKee, 10 Cir., 121 F.2d 583; Coppinger v. Republic Natural Gas Co., 10 Cir., 171 F.2d 4; McKenna v. Scott, 10 Cir., 202 F.2d 23; Stern v. Dunlap Co., supra.
Appellants did not plead or attempt to prove any specific act or acts of negligence on the part of the appellee as the proximate cause of the fire. They rely entirely upon the long established doctrine of res ipsa loquitur. But appropriate application of that doctrine does not change the rule that where the evidence as a whole is insufficient to support a verdict for the complainant, it is the duty of the court to direct a verdict for the defendant.
Since jurisdiction of the court was predicated upon diversity of citizenship with' the requisite amount in controversy, resort must be had to the law of Kansas to determine whether the facts — established by admissions or evidence — were sufficient to establish actionable negligence on the part of the appellee with resulting liability in damages. It is the general rule in Kansas that the doctrine of res ipsa loquitur is recognized and applied where it is shown that the agency or instrumentality which caused the injury was at the time under the exclusive management and control of the defendant, and that the accident was such that in the ordinary course of things it would not have happened if those having such management and control had exercised proper care. It is not enough merely to show that the offending agency or instrumentality was under the exclusive management or control of the defendant. It must also be shown that such agency or instrumentality proximately caused the injury. And it must also be shown that the accident was such that in the ordinary course of events it would not have occurred if those exercising management and control of the transport had used ordinary care. Starks Food Markets v. El Dorado Refining Co., 156 Kan. 577, 134 P.2d 1102.
The fact that the fire occurred with its resulting destruction of property was not enough to establish liability on the part of the appellee. It was essential that negligence be shown as the proximate cause of the fire. And since the appellants rely upon the doctrine of res ipsa loquitur, it was necessary for them to show that the transport was under the exclusive management and control of the appellee; that it caused the fire; and that the fire was such that in the ordinary course of events it would not have happened if the appellee had exercised care commensurate with the circumstances. The case of Emigh v. Andrews, 164 Kan. 732, 191 P.2d 901, is strikingly apposite. There plaintiff sought to recover damages for the destruction by fire of certain wheat. It was alleged in the complaint that the wheat was being harvested by means of a combine-harvester-thresher; that the defendant had been employed as an independent contractor to haul the wheat in his truck away from the combine-harvester-thresher; and that the truck was under the exclusive control and management of the defendant. It was further pleaded that while the truck was being operated by the defendant in the hauling of wheat, a fire was started in the stubble of the wheat field; that the fire was started at a point over which the truck had just passed; and that no other persons or vehicles had passed over such point. It was further pleaded that the usual method of hauling wheat away from combine-harvester-threshers and off the premises where it was raised was in trucks; and that when such trucks were maintained and operated in a careful manner, fires did not result from the operation. And it was further pleaded that plaintiffs had not been informed and therefore could not allege the specific act or acts of negligence which caused the fire, but that the negligence of the defendant or his employees was the proximate cause of the fire. The trial court sustained a demurrer to the complaint, and on appeal the judgment was affirmed. In upholding the action of the trial court in sustaining the demurrer, the Supreme Court of Kansas pointed out that the complaint failed to charge that the truck was the agency which caused the fire and failed to charge that the truck would not have caused the fire unless the defendant was negligent in operating the truck or maintaining it in a safe condition. The court placed emphasis upon the point that the plaintiffs sought to establish both of such essential facts by pyramiding one inference or presumption upon another. And the court held in emphatic language that facts essential to recovery cannot be established by such pyramiding of inference upon inference or presumption upon presumption. Here, it was not shown affirmatively that the motor transport was the agency or instrumentality which caused the fire. When Franks and his wife first saw the fire, it was already burning or rolling up around the cab of the transport. They did not see the fire start and did not know its origin. When Perkins first saw fire about the transport the flames were coming up over the cab. He did not purport to testify that the fire originated at or in the truck. There was no direct evidence that the fire started in the truck. Appellants rely upon inference or presumption that the transport was the agency or instrumentality which caused the fire. And there was no evidence of a defective condition of the truck or negligence in its operation. Again, appellants rely upon inference or presumption that the transport was in a defective condition or was improperly operated. These appellants seek to pyramid or impose one inference or presumption upon another to establish facts necessary to constitute liability on the part of the appellee. And liability cannot be established in that manner. Emigh v. Andrews, supra.
The judgment is affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_certreason
|
L
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
COLLEGE SAVINGS BANK v. FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD et al.
No. 98-149.
Argued April 20, 1999
Decided June 23, 1999
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 691. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 693.
David C. Todd argued the cause for petitioner. With him on the briefs was Deborah M. Lodge.
Solicitor General Waxman argued the cause for the United States, respondent under this Court’s Rule 12.6, urging reversal. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Wallace, Malcolm L. Stewart, Mark B. Stern, Michael E. Robinson, and H. Thomas Byron III.
William B. Mallín argued the cause for respondent Florida Prepaid Postseeondary Education Expense Board. With him on the brief were Joseph M. Ramirez and Louis F. Hubener.
Martin H. Redish and Jerome Gilson filed a brief for the International Trademark Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Edward B. Foley, State Solicitor, and Elise W. Porter, Assistant Solicitor, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Mark Pryor of Arkansas, Bill Lock-yer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, James E. Ryan of Illinois, J Joseph Cur-ran, Jr., of Maryland, Jennifer Granholm oí Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T McLaughlin of New Hampshire, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, Mark L. Earley of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Gay Woodhouse of Wyoming; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.
Charles A. Miller, Caroline M. Brown, Gerald P. Dodson, James E. Holst, P. Martin Simpson, Jr., and Richard L. Stanley filed a brief for the Regents of the University of California as amicus curiae.
Justice Scalia
delivered the opinion of the Court.
The Trademark Remedy Clarification Act (TRCA), 106 Stat. 3567, subjects the States to suits brought under § 43(a) of the Trademark Act of 1946 (Lanham Act) for false and misleading advertising, 60 Stat. 441, 15 U. S. C. § 1125(a). The question presented in this case is whether that provision is effective to permit suit against a State for its alleged misrepresentation of its own product — either because the TRCA effects a constitutionally permissible abrogation of state sovereign immunity, or because the TRCA operates as an invitation to waiver of such immunity which is automatically accepted by a State’s engaging in the activities regulated by the Lanham Act.
I
In Chisholm v. Georgia, 2 Dall. 419 (1793), we asserted jurisdiction over an action in assumpsit brought by a South Carolina citizen against the State of Georgia. In so doing, we reasoned that Georgia’s sovereign immunity was qualified by the general jurisdictional provisions of Article III, and, most specifically, by the provision extending the federal judicial power to controversies “between a State and Citizens of another State.” U. S. Const., Art. III, §2, cl. 1. The “shock of surprise” created by this decision, Principality of Monaco v. Mississippi, 292 U. S. 313, 325 (1934), prompted the immediate adoption of the Eleventh Amendment, which provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
Though its precise terms bar only federal jurisdiction over suits brought against one State by citizens of another State or foreign state, we have long recognized that the Eleventh Amendment accomplished much more: It repudiated the central premise of Chisholm that the jurisdictional heads of Article III superseded the sovereign immunity that the States possessed before entering the Union. This has been our understanding of the Amendment since the landmark case of Hans v. Louisiana, 134 U. S. 1 (1890). See also Ex parte New York, 256 U. S. 490, 497-498 (1921); Principality of Monaco, supra, at 320-328, Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 97-98 (1984); Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54, 66-68 (1996).
While this immunity from suit is not absolute, we have recognized only two circumstances in which an individual may sue a State. First, Congress may authorize such a suit in the exercise of its power to enforce the Fourteenth Amendment — an Amendment enacted after the Eleventh Amendment and specifically designed to alter the federal-state balance. Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Second, a State may waive its sovereign immunity by consenting to suit. Clark v. Barnard, 108 U. S. 436, 447-448 (1883). This ease turns on whether either of these two circumstances is present.
II
Section 43(a) of the Lanham Act, 15 U. S. C. § 1125(a), enacted in 1946, created a private right of action against “[a]ny person” who uses false descriptions or makes false representations in commerce. The TRCA amends § 43(a) by defining “any person” to include “any State, instrumentality of a State or employee of a State or instrumentality of a State acting in his or her official capacity.” §3(c), 106 Stat. 3568. The TRCA further amends the Lanham Act to provide that such state entities “shall not be immune, under the eleventh amendment of the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal court by any person, including any governmental or nongovernmental entity for any violation under this Act,” and that remedies shall be available against such state entities “to the same extent as such remedies are available... in a suit against” a nonstate entity. §3(b) (codified in 15 U.S.C. §1122).
Petitioner College Savings Bank is a New Jersey chartered bank located in Princeton, New Jersey. Since 1987, it has marketed and sold CollegeSure certificates of deposit designed to finance the costs of college education. College Savings holds a patent upon the methodology of administering its CollegeSure certificates. Respondent Florida Prepaid Postsecondary Education Expense Board (Florida Prepaid) is an arm of the State of Florida. Since 1988, it has administered a tuition prepayment program designed to provide individuals with sufficient funds to cover future college expenses. College Savings brought a patent infringement action against Florida Prepaid in United States District Court in New Jersey. That action is the subject of today’s decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, ante, p. 627. In addition, and in the same court, College Savings filed the instant action alleging that Florida Prepaid violated § 43(a) of the Lanham Act by making misstatements about its own tuition savings plans in its brochures and annual reports.
Florida Prepaid moved to dismiss this action on the ground that it was barred by sovereign immunity. It argued that Congress had not abrogated sovereign immunity in this case because the TRCA was enacted pursuant to Congress’s powers under Article I of the Constitution and, under our decisions in Seminole Tribe, supra, and Fitzpatrick, supra, Congress can abrogate state sovereign immunity only when it legislates to enforce the Fourteenth Amendment. The United States intervened to defend the constitutionality of the TRCA. Both it and College Savings argued that, under the doctrine of constructive waiver articulated in Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964), Florida Prepaid had waived its immunity from Lan-ham Act suits by engaging in the interstate marketing and administration of its program after the TRCA made clear that such activity would subject Florida Prepaid to suit. College Savings also argued that Congress’s purported abrogation of Florida Prepaid’s sovereign immunity in the TRCA was effective, since it was enacted not merely pursuant to Article I but also to enforce the Due Process Clause of the Fourteenth Amendment. The District Court rejected both of these arguments and granted Florida Prepaid’s motion to dismiss. 948 F. Supp. 400 (N. J. 1996). The Court of Appeals affirmed. 181 F. 3d 353 (CA3 1997). We granted certiorari. 525 U. S. 1063 (1999).
III
We turn first to the contention that Florida’s sovereign immunity was validly abrogated. Our decision three Terms ago in Seminole Tribe, supra, held that the power “to regulate Commerce” conferred by Article I of the Constitution gives Congress no authority to abrogate state sovereign immunity. As authority for the abrogation in the present case, petitioner relies upon §5 of the Fourteenth Amendment, which we held in Fitzpatrick v. Bitzer, supra, and reaffirmed in Seminole Tribe, see 517 U. S., at 72-73, could be used for that purpose.
Section 1 of the Fourteenth Amendment provides that no State shall “deprive any person of... property... without due process of law.” Section 5 provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” We made clear in City of Boerne v. Flores, 521 U. S. 507, 516-529 (1997), that the term “enforce” is to be taken seriously — that the object of valid §5 legislation must be the earefiilly delimited remediation or prevention of constitutional violations. Petitioner claims that, with respect to § 43(a) of the Lanham Act, Congress enacted the TRCA to remedy and prevent state deprivations without due process of two species of “property” rights: (1) a right to be free from a business competitor’s false advertising about its own product, and (2) a more generalized right to be secure in one’s business interests. Neither of these qualifies as a property right protected by the Due Process Clause.
As to the first: The hallmark of a protected property interest is the right to exclude others. That is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). That is why the right that we all possess to use the public lands is not the “property” right of anyone — hence the sardonic maxim, explaining what economists call the “tragedy of the commons,” res publica, res nullius. The Lanham Act may well contain provisions that protect constitutionally cognizable property interests — notably, its provisions dealing with infringement of trademarks, which are the “property” of the owner because he can exclude others from using them. See, e. g., K mart Corp. v. Cartier, Inc., 486 U. S. 176, 185-186 (1988) (“Trademark law, like contract law, confers private rights, which are themselves rights of exclusion. It grants the trademark owner a bundle of such rights”). The Lanham Act’s false-advertising provisions, however, bear no relationship to any right to exclude; and Florida Prepaid’s alleged misrepresentations concerning its own products intruded upon no interest over which petitioner had exclusive dominion.
Unsurprisingly, petitioner points to no decision of this Court (or of any other court, for that matter) recognizing a property right in freedom from a competitor’s false advertising about its own products. The closest petitioner comes is dicta in International News Service v. Associated Press, 248 U. S. 215, 236 (1918), where the Court found equity jurisdiction over an unfair-competition claim because “[t]he rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right.” But to say that a court of equity “treats any civil right of a pecuniary nature as a property right” is not to say that all civil rights of a pecuniary nature are property rights. In fact, when one reads the full passage from which this statement is taken it is clear that the Court was saying just the opposite, namely, that equity will treat civil rights of a pecuniary nature as property rights even though they are properly not such:
“In order to sustain the jurisdiction of equity over the controversy, we need not affirm any general and absolute property in the news as such. The rule that a court of equity concerns itself only in the protection of property rights treats any civil right of a pecuniary nature as a property right... ; and the right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired.... It is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition.” Id., at 286-237.
We may also note that the unfair competition at issue in International News Service amounted to nothing short of theft of proprietary information, something in which a power to “exclude others” could be said to exist. See id., at 233.
Petitioner argues that the common-law tort of unfair competition “by definition” protects property interests, Brief for Petitioner 15, and thus the TRCA “by definition” is designed to remedy and prevent deprivations of such interests in the false-advertising context. Even as a logical matter, that does not follow, since not everything which protects property interests is designed to remedy or prevent deprivations of those property interests. A municipal ordinance prohibiting billboards in residential areas protects the property interests of homeowners, although erecting billboards would ordinarily not deprive them of property. To sweep within the Fourteenth Amendment the elusive property interests that are “by definition” protected by unfair-competition law would violate our frequent admonition that the Due Process Clause is not merely a “font of tort law.” Paul v. Davis, 424 U. S. 693, 701 (1976).
Petitioner’s second assertion of a property interest rests upon an argument similar to the one just discussed, and suffers from the same flaw. Petitioner argues that businesses are “property” within the meaning of the Due Process Clause, and that Congress legislates under § 5 when it passes a law that prevents state interference with business (which false advertising does). Brief for Petitioner 19-20. The assets of a business (including its good will) unquestionably are property, and any state taking of those assets is unquestionably a “deprivation” under the Fourteenth Amendment. But business in the sense of the activity of doing business, or the activity of making a profit is not property in the ordinary sense — and it is only that, and not any business asset, which is impinged upon by a competitor’s false advertising.
Finding that there is no deprivation of property at issue here, we need not pursue the follow-on question that City of Boerne would otherwise require us to resolve: whether the prophylactic measure taken under purported authority of §5 (viz., prohibition of States’ sovereign-immunity claims, which are not in themselves violations of the Fourteenth Amendment) was genuinely necessary to prevent violation of the Fourteenth Amendment. We turn next to the question whether Florida’s sovereign immunity, though not abrogated, was voluntarily waived.
IV
We have long recognized that a State’s sovereign immunity is “a personal privilege which it may waive at pleasure.” Clark v. Barnard, 108 U. S., at 447. The decision to waive that immunity, however, “is altogether voluntary on the part of the sovereignty.” Beers v. Arkansas, 20 How. 527, 529 (1858). Accordingly, our “test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one.” Atascadero State Hospital v. Scanlon, 478 U. S. 234, 241 (1985). Generally, we will find a waiver either if the State voluntarily invokes our jurisdiction, Gunter v. Atlantic Coast Line R. Co., 200 U. S. 273, 284 (1906), or else if the State makes a "clear declaration” that it intends to submit itself to our jurisdiction, Great Northern Life Ins. Co. v. Read, 322 U. S. 47, 54 (1944). See also Pennhurst State School and Hospital v. Halderman, 465 U. S., at 99 (State’s consent to suit must be "unequivocally expressed”). Thus, a State does not consent to suit in federal court merely by consenting to suit in the courts of its own creation. Smith v. Reeves, 178 U. S. 436, 441—445 (1900). Nor does it consent to suit in federal court merely by stating its intention to “sue and be sued,” Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Assn., 450 U. S. 147, 149-150 (1981) (per curiam), or even by authorizing suits against it “‘in any court of competent jurisdiction,’ ” Kennecott Copper Corp. v. State Tax Common, 327 U. S. 573, 577-579 (1946). We have even held that a State may, absent any contractual commitment to the contrary, alter the conditions of its waiver and apply those changes to a pending suit. Beers v. Arkansas, supra.
There is no suggestion here that respondent Florida Prepaid expressly consented to being sued in federal court. Nor is this a ease in which the State has affirmatively invoked our jurisdiction. Rather, petitioner College Savings and the United States both maintain that Florida Prepaid has "impliedly” or “constructively” waived its immunity from Lanham Act suit. They do so on the authority of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U. S. 184 (1964)— an elliptical opinion that stands at the nadir of our waiver (and, for that matter, sovereign-immunity) jurisprudence. In Parden, we permitted employees of a railroad owned and operated by Alabama to bring an action under the Federal Employers’ Liability Act (FELA) against their employer. Despite the absence of any provision in the statute specifically referring to the States, we held that the Act authorized suits against the States by virtue of its general provision subjecting to suit "[e]very common carrier by railroad... engaging in commerce between... the several States,” 45 U. S. C. §51 (1940 ed.). We further held that Alabama had waived its immunity from FELA suit even though Alabama law expressly disavowed any such waiver:
“By enacting the [FELA]... Congress conditioned the right to operate a railroad in interstate commerce upon amenability to suit in federal court as provided by the Act; by. thereafter operating a railroad in interstate commerce, Alabama must be taken to have accepted that condition and thus to have consented to suit.” 377 U. S., at 192.
The four dissenting Justices in Parden refused to infer a waiver because Congress had not “expressly declared” that a State operating in commerce would be subject to liability, but they went on to acknowledge — in a concession that, strictly speaking, was not necessary to their analysis — that Congress possessed the power to effect such a waiver of the State’s constitutionally protected immunity so long as it did so with clarity. Id., at 198-200 (opinion of White, J.).
Only nine years later, in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U. S. 279 (1973), we began to retreat from Parden. That case held — in an opinion written by one of the Parden dissenters over the solitary dissent of Parderis author — that the State of Missouri was immune from a suit brought under the Fair Labor Standards Act by employees of its state health facilities. Although the statute specifically covered the state hospitals in question, see 29 U. S. C. § 203(d) (1964 ed.), and such coverage was unquestionably enforceable in federal court by the United States, 411 U. S., at 285-286, we did not think that the statute expressed with clarity Congress’s intention to supersede the States’ immunity from suits brought by individuals. We “put to one side” the Parden case, which we characterized as involving “dramatic circumstances” and “a rather isolated state activity,” 411 U. S., at 285, unlike the provision of the Fair Labor Standards Act in question that applied to a broad class of state employees. We also distinguished the railroad in Parden on the ground that it was “operated for profit” “in the area where private persons and corporations normally ran the enterprise.” 411 U. S., at 284. Justice Marshall, joined by Justice Stewart, went even further, concluding that although, in their view, Congress had clearly purported to subject the States to suits by individuals in federal courts, it lacked the constitutional authority to do so. Id., at 287, 289-290 (opinion concurring in result).
The next year, we observed (in dictum) that there is “no place” for the doctrine of constructive waiver in our sovereign-immunity jurisprudence, and we emphasized that we would “find waiver only where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Edelman v. Jordan, 415 U. S. 651, 673 (1974) (internal quotation marks omitted). Several Terms later, in Welch v. Texas Dept. of Highways and Public Transp., 483 U. S. 468 (1987), although we expressly avoided addressing the constitutionality of Congress’s conditioning a State’s engaging in Commerce Clause activity upon the State’s waiver of sovereign immunity, we said there was “no doubt that Parden’s discussion of congressional intent to negate Eleventh Amendment immunity is no longer good law,” and overruled Parden “to the extent [it] is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language,” 483 U. S., at 478, and n. 8.
College Savings and the United States concede, as they surely must, that these intervening decisions have seriously limited the holding of Parden. They maintain, however, that Employees and Welch are distinguishable, and that a core principle of Parden remains good law. A Parden-style waiver of immunity, they say, is still possible after Employees and Welch so long as the following two conditions are satisfied: First, Congress must provide unambiguously that the State will be subject to suit if it engages in certain specified conduct governed by federal regulation. Second, the State must voluntarily elect to engage in the federally regulated conduct that subjects it to suit. In this latter regard, their argument goes, a State is never deemed to have constructively waived its sovereign immunity by engaging in activities that it cannot realistically choose to abandon, such as the operation of a police force; but constructive waiver is appropriate where a State runs an enterprise for profit, operates in a field traditionally occupied by private persons or corporations, engages in activities sufficiently removed from “core [state] functions,” Reply Brief for United States 3, or otherwise acts as a “market participant” in interstate commerce, cf. White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204, 206-208 (1983). On this theory, Florida Prepaid constructively waived its immunity from suit by engaging in the voluntary and nonessential activity of selling and advertising a for-profit educational investment vehicle in interstate commerce after being put on notice by the clear language of the TRCA that it would be subject to Lanham Act liability for doing so.
We think that the constructive-waiver experiment of Par-den was ill conceived, and see no merit in attempting to salvage any remnant of it. As we explain below in detail, Parden broke sharply with prior eases, and is fundamentally incompatible with later ones. We have never applied the holding of Parden to another statute, and in fact have narrowed the case in every subsequent opinion in which it has been under consideration. In short, Parden stands as an anomaly in the jurisprudence of sovereign immunity, and indeed in the jurisprudence of constitutional law. Today, we drop the other shoe: Whatever may remain of our decision in Parden is expressly overruled.
To begin with, we eannot square Parden with our cases requiring that a State’s express waiver of sovereign immunity be unequivocal. See, e. g., Great Northern Life Ins. Co. v. Read, 322 U. S. 47 (1944). The whole point of requiring a “clear declaration” by the State of its waiver is to be certain that the State in fact consents to suit. But there is little reason to assume actual consent based upon the State’s mere presence in a field subject to congressional regulation. There is a fundamental difference between a State’s expressing unequivocally that it waives its immunity and Congress’s expressing unequivocally its intention that if the State takes certain action it shall be deemed to have waived that immunity. In the latter situation, the most that can be said with certainty is that the State has been put on notice that Congress intends to subject it to suits brought by individuals. That is very far from concluding that the State made an “altogether voluntary” decision to waive its immunity. Beers, 20 How., at 529.
Indeed, Parden-style waivers are simply unheard of in the context of other constitutionally protected privileges. As we said in Edelman, “[c]onstructive consent is not a doctrine commonly associated with the surrender of constitutional rights.” 415 U. S., at 673. For example, imagine if Congress amended the securities laws to provide with unmistakable clarity that anyone committing fraud in connection with the buying or selling of securities in interstate commerce would not be entitled to a jury in any federal criminal prosecution of such fraud. Would persons engaging in securities fraud after the adoption of such an amendment be deemed to have “constructively waived” their constitutionally protected rights to trial by jury in criminal eases? After all, the trading of securities is not so vital an activity that any one person’s decision to trade cannot be regarded as a voluntary choice. The answer, of course, is no. The classic description of an effective waiver of a constitutional right is the “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). “[C]ourts indulge every reasonable presumption against waiver” of fundamental constitutional rights. Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U. S. 389, 398 (1937). See also Ohio Bell Telephone Co. v. Public Util. Comm’n of Ohio, 301 U. S. 292, 307 (1937) (we “do not presume acquiescence in the loss of fundamental rights”). State sovereign immunity, no less than the right to trial by jury in criminal eases, is constitutionally protected. Great Northern, supra, at 51; Pennhurst, 465 U. S., at 98. And in the context oí federal sovereign immunity — obviously the closest analogy to the present case — it is well established that waivers are not implied. See, e.g., United States v. King, 395 U. S. 1, 4 (1969) (describing the “settled proposi-tio[n]” that the United States’ waiver of sovereign immunity “cannot be implied but must be unequivocally expressed”). We see no reason why the rule should be different with respect to state sovereign immunity.
Given how anomalous it is to speak of the “constructive waiver” of a constitutionally protected privilege, it is not surprising that the very cornerstone of the Parden opinion was the notion that state sovereign immunity is not constitutionally grounded. Parden’s discussion of waiver began with the observation:
“By empowering Congress to regulate commerce... the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity.” 377 U. S., at 192.
See also id., at 193-194, n. 11. Our more recent decision in Seminole Tribe expressly repudiates that proposition, and in formally overruling Parden we do no more than make explicit what that case implied.
Recognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe. Forced waiver and abrogation are not even different sides of the same coin — they are the same side of the same coin. “All congressional creations of private rights of action attach recovery to the defendant’s commission of some act, or possession of some status, in a field where Congress has authority to regulate conduct. Thus, all federal prescriptions are, insofar as their prospective application is concerned, in a sense conditional, and — to the extent that the objects of the prescriptions consciously engage in the activity or hold the status that produces liability — can be rede-scribed as invitations to ‘waiver.’ ” Pennsylvania v. Union Gas Co., 491 U. S. 1, 43 (1989) (Scalia, J., dissenting). See also Fitzpatrick, 427 U. S., at 451-452 (referring to congressional intent to “abrogate” state sovereign immunity as a “necessary predicate” for Parden-style waiver). There is little more than a verbal distinction between saying that Congress can make Florida liable to private parties for false or misleading advertising in interstate commerce of its prepaid tuition program, and saying the same thing but adding at the end “if Florida chooses to engage in such advertising.” As further evidence that constructive waiver is little more than abrogation under another name, consider the revealing facts of this case: The statutory provision relied upon to demonstrate that Florida constructively waived its sovereign immunity is the very same provision that purported to abrogate it.
Nor do we think that the constitutionally grounded principle of state sovereign immunity is any less robust where, as here, the asserted basis for constructive waiver is conduct that the State realistically could choose to abandon, that is undertaken for profit, that is traditionally performed by private citizens and corporations, and that otherwise resembles the behavior of “market participants.” Permitting abrogation or constructive waiver of the constitutional right only when these conditions exist would of course limit the evil— but it is hard to say that that limitation has any more support in text or tradition than, say, limiting abrogation or constructive waiver to the last Friday of the month. Since sovereign immunity itself was not traditionally limited by these factors, and since they have no bearing upon the volun-tariness of the waiver, there is no principled reason why they should enter into our waiver analysis. When we held in Seminole Tribe that sovereign immunity barred an action brought under the Indian Gaming Regulatory Act against the State of Florida for its alleged failure to negotiate a gambling compact with the Seminole Tribe of Indians, we did not pause to consider whether Florida’s decision not to negotiate was somehow involuntary. Nor did we pause to consider whether running a tugboat towing service at “fair and reasonable rates” was for profit, was traditionally performed by private citizens and corporations, and otherwise resembled the behavior of “market participants” when we held, in Ex parte New York, 256 U. S. 490 (1921), that sovereign immunity foreclosed an admiralty action against the State of New York for damages caused by the State’s engaging in such activity. Hans itself involved an action against Louisiana to recover coupons on a bond — the issuance of which surely rendered Louisiana a participant in the financial markets.
The “market participant” eases from our dormant Commerce Clause jurisprudence, relied upon by the United States, are inapposite. See, e.g., White v. Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204 (1983); Reeves, Inc. v. Stake, 447 U. S. 429 (1980); and Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). Those cases hold that, where a State acts as a participant in the private market, it may prefer the goods or services of its own citizens, even though it could not do so while acting as a market regulator. Since “state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants,” “[ejvenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the [dormant] Commerce Clause,” White, supra, at 207-208, n. 3. The “market participant” exception to judicially created dormant Commerce Clause restrictions makes sense because the evil addressed by those restrictions — the prospect that States will use custom duties, exclusionary trade regulations, and other exercises of governmental power (as opposed to the expenditure of state resources) to favor their own citizens, see Hughes, supra, at 808 — is entirely absent where the States are buying and selling in the market. In contrast, a suit by an individual against an unconsenting State is the very evil at which the Eleventh Amendment is directed — and it exists whether or not the State is acting for profit, in a traditionally “private” enterprise, and as a “market participant.” In the sovereign-immunity context, moreover, “[e]venhandness” between individuals and States is not to be expected: “[T]he constitutional role of the States sets them apart from other employers and defendants.” Welch, 483 U. S., at 477. Cf. Atascadero, 473 U. S., at 246.
The United States points to two other contexts in which it asserts we have permitted Congress, in the exercise of its Article I powers, to extract “constructive waivers” of state sovereign immunity. In Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275 (1959), we held that a bistate commission which had been created pursuant to an interstate compact (and which we assumed partook of state sovereign immunity) had consented to suit by reason of a suability provision attached to the congressional approval of the compact. And we have held in such cases as South Dakota v. Dole, 483 U. S. 203 (1987), that Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions. These cases seem to us fundamentally different from the present one. Under the Compact Clause, U. S. Const., Art. I, §10, cl. 3, States cannot form an interstate compact without first obtaining the express consent of Congress; the granting of such consent is a gratuity. So also, Congress has no obligation to use its Spending Clause power to disburse funds to the States; such funds are gifts. In the present case, however, what Congress threatens if the State refuses to agree to its condition is not the denial of a gift or gratuity, but a sanction: exclusion of the State from otherwise permissible activity. Justice Breyer’s dissent acknowledges the intuitive difference between the two, but asserts that it disappears when the gift that is threatened to be withheld is substantial enough. Post, at 697. Perhaps so, which is why, in eases involving conditions attached to federal funding, we have acknowledged that “the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ ” Dole, supra, at 211, quoting Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937). In any event, we think where the constitutionally guaranteed protection of the States’ sovereign immunity is involved, the point of coercion is automatically passed — and the voluntariness of waiver destroyed — when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity.
V
The principal thrust of Justice Breyer’s dissent is an
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
songer_district
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Robert I. WARD and Ruth Ward, Plaintiffs-Appellants, Cross-Appellees, v. UNITED STATES of America, Defendant-Appellee, Cross-Appellant.
Nos. 86-5978, 86-5979 and 86-6122.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 10, 1987.
Decided Feb. 3, 1988.
Wayne Taylor, Omer and Taylor, James R. Omer (argued), Nashville, Tenn., for plaintiffs-appellants, cross-appellees.
W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., Joe Dycus, for defendant-ap-pellee, cross-appellant.
Before JONES and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.
BAILEY BROWN, Senior Circuit Judge.
Plaintiffs Robert I. Ward and Ruth Ward, husband and wife, appeal the judgment of the district court for the defendant in this Federal Tort Claims Act case brought for the alleged medical malpractice of a surgeon-employee of defendant. Plaintiffs contend that the district court was clearly erroneous in finding that plaintiffs had not proved by a preponderance of the evidence that the surgeon performed surgery contrary to the applicable standard of care. Plaintiffs also allege error by the district court in admitting into evidence and relying on certain medical journal articles that were relied on by expert witnesses, in disqualifying one of plaintiffs’ witnesses as an expert on the applicable standard of care, and in failing to give plaintiffs the benefit of the presumption of defendant’s negligence under Tenn.Code Ann. 29-26-115(c).
“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.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Because we find no error in fact or law by the district court, we affirm the judgment for the defendant.
Plaintiff Robert Ward brought his action for personal injuries against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. Mrs. Ward filed her action for loss of services and consortium and for the value of her nursing care. The two actions were consolidated for trial. Plaintiffs allege that on January 9, 1978, Dr. C. Allen Ruleman, Jr., a surgeon at the Veterans Administration Medical Center in Memphis, Tennessee, was negligent in that he breached the applicable standard of care when he unintentionally injected Teflon (polytetrafluoroethy-lene) paste into Mr. Ward’s carotid artery, causing Mr. Ward to suffer a cerebrovascu-lar accident or stroke.
At the time of the alleged malpractice, Mr. Ward was undergoing a procedure known as a Teflon injection of the naso-pharynx to treat his patent (open) eustachi-an tube. The procedure involves using a Bruning syringe to inject Teflon paste in the area of the nasopharynx, causing the eustachian tubes to close partially. The operation report showed that the surgery, under general anesthesia, began at 9:15 a.m., with the actual operation going from 9:25 a.m. to 9:50 a.m. Mr. Ward was taken to the recovery room in a drowsy condition, but responded to verbal stimuli. By 12:30 a.m. the next morning, Mr. Ward could not move his right arm or leg and the right side of his mouth was drooping. He could not talk. At this time, doctors suspected a stroke. Subsequent medical tests confirmed this diagnosis.
I. The Standard of Care
The liability of the United States in actions under the Federal Tort Claims Act is governed by the law of the place where the alleged tort occurred. 28 U.S.C. §§ 1346(b), 2674. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). All of the acts in this case occurred in Tennessee; therefore Tenn. Code Ann. § 29-26-115, which governs liability of medical personnel, is controlling. On the first day of trial, the parties stipulated that Dr. Ruleman had injected the Teflon paste into the artery, and that the injection was the proximate cause of Mr. Ward’s stroke. Therefore, the only issue regarding liability to be decided at trial was the negligence of Dr. Ruleman, in other words, whether he breached the applicable standard of care.
Tenn.Code Ann. § 29-26-115 provides:
(a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant’s negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a) unless he was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make his expert testimony relevant to the issues in the case and had practiced this profession or specialty in one of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebuttal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.
(c) In a malpractice action as described in subsection (a) of this section there shall be no presumption of negligence on the part of the defendant. Provided, however, there shall be a rebuttable presumption that the defendant was negligent where it is shown by the proof that the instrumentality causing injury was in the defendant (or defendants’) exclusive control and that the accident or injury was one which ordinarily doesn’t occur in the absence of negligence.
(d) In a malpractice action as described in subsection (a) of this section, the jury shall be instructed that the claimant has the burden of proving, by a preponderance of the evidence, the negligence of the defendant. The jury shall be further instructed that injury alone does not raise a presumption of the defendant’s negligence.
Plaintiffs had the burden to prove by a preponderance of the evidence the recognized standard of care in the community regarding the Teflon injection procedure by ear, nose, and throat (ENT) surgeons. Plaintiffs also had the burden to prove that Dr. Ruleman deviated from this standard and was, therefore, negligent. Plaintiffs’ evidence regarding the standard of care consisted of the testimony, by deposition, of Perry Felton Harris, M.D., John J. Shea, M.D., and Howard Kirshner, M.D. As discussed below, Dr. Kirshner was later disqualified by the court as an expert on the standard of care.
Dr. Harris, a board certified otolaryngol-ogist, testified that he had performed the Teflon injection procedure from 1970 or 1971 to 1985. He performed this procedure in a manner similar to the one used by Dr. Ruleman on Mr. Ward. Dr. Harris injects the needle to a depth of only one and a half to two millimeters under the mucous membrane. He uses a special syringe with a bulb on it that prevents him from injecting deeper; but in 1978, at the time of Mr. Ward’s surgery, this syringe was not available. Dr. Harris testified that he assumed that Dr. Ruleman’s use of a plastic sleeve on the syringe was an attempt to prevent the injection from going too deeply. Dr. Harris noted that such a sleeve could be put on the needle, “and try to hold it in a fashion whereby you couldn’t go but two or three or four or five millimeters.” Joint Appendix (JA) at 85. He testified that if you inject too deeply, the carotid artery might be penetrated. He stated that the carotid artery is at different depths in different people and that he did not know how close Mr. Ward’s artery was to the injection site. Furthermore, only an autopsy could reveal this information. Anatomically, the artery “would be anywhere from four or five millimeters to maybe a half-inch or thereabouts” from the injection site. JA at 70.
Dr. Harris testified that the standard of care in performing this surgery was “to inject the Teflon into the anterior and inferior portion of the eustachian tube to render it partially closed or no longer patent, and, in so doing, not injecting either into the adjacent carotid artery or so near it that it should be blocked.” JA at 40. He opined that Dr. Ruleman had not deviated from the standard of care by doing the procedure in the manner he did, or in the amount of Teflon paste that he injected, but that he did deviate by blocking the artery. Dr. Harris stated he was led to this conclusion “[b]ecause of the stroke the man had.” JA at 75.
Dr. Shea, a world famous otologist, testified that he had also done this procedure. His method involved doing the procedure through the nose, rather than through the mouth by raising the soft palate with a retractor as Dr. Ruleman had done. Dr. Shea was of the opinion that his was the only safe and reliable method, but that not everyone in Memphis knew or should have known this. He also testified that in his opinion, it is beneath the standard of care to inject Teflon paste into the artery regardless of the method used.
Two articles written by Jack L. Pulec, M.D., were attached to Dr. Shea’s deposition by counsel for defendant as exhibits 3 and 4. Dr. Shea had referred to these articles in his direct testimony and stated these articles were authoritative. In one of the articles, Dr. Pulec stated that the Teflon procedure can usually be done with the patient awake sitting in a chair, either lifting the palate, or going through the nostril. Dr. Pulec also wrote that:
In most cases this procedure can be done with the patient sitting in the chair and awake (Fig. 6), although occasionally the palate cannot be elevated sufficiently. For these patients it is desirable to place the needle through the nostril on the involved side and guide its placement accurately into the tissue just anterior to the eustachian tube orifice by observing the area through a nasopharyngoscope placed through the other nostril.
Occasionally general anesthesia is necessary. The Yankauer speculum is stronger and seems to be better when general anesthesia is used. The injection is made 0.5 cm. anterior and 0.5 cm. inferior to the nasopharyngeal orifice of the eustac-hian tube (Fig. 7). The tip of the needle is thrust into the tissue for approximately 0.5 cm.; this is the area of the levator palatine muscle. The injection is delayed for a few moments and the area of the injection observed to make sure that there is no flow of blood from around the tip of the needle, indicating perforation of a large vessel. Then 0.75 to 1.5 ml. of paste is injected.
JA 475-76 (exhibit 3: Pulec & Hahn, The Abnormally Patulous Eustachian Tube, Otolaryngolic Clinics of North America, 131, 136-37 (Feb. 1970)).
Dr. Ruleman testified that he had assisted Dr. Charles Gross, the head of the oto-laryngology residency program at the University of Tennessee, in the Teflon injection procedure on at least two prior occasions, one of them under general anesthesia. The night before he did the surgery, Dr. Ruleman reread Pulec’s articles. -Dr. Ruleman testified that Mr. Ward’s deviated septum prevented him from doing the procedure through his nose, and the structure of his palate would have required too much pressure to retract it under local anesthesia; therefore, the injection was made through the mouth under general anesthesia. Dr. Ruleman detailed how he did the surgery, including putting plastic tubing on the needle to insure that he did not go deeper than 5 millimeters and following the procedure outlined in the Pulec articles. He testified that the standard of care at the time of Mr. Ward’s surgery was that described by Dr. Pulec in his articles and taught by Dr. Gross, and that he had performed the surgery within this standard of care. Dr. Ruleman also testified that at the time of the surgery, there was no report in the medical literature of the possibility of strokes or other severe side effects from the procedure.
The district court found that at the time of Ward’s surgery in 1978, Dr. Ruleman was a well-qualified ENT surgeon. The court also found that Pulec’s articles described the national standard of care for performing the Teflon injection procedure. The district court found that Dr. Ruleman injected at the correct site, at the correct depth, with the correct amount of paste, and checked for blood or swelling after inserting the needle to be sure that an artery had not been penetrated.
The court concluded that the plaintiffs had not carried their burden of proof regarding Dr. Ruleman’s negligence and found that Mr. Ward’s stroke was the result of a complication of the procedure. The court stated:
It is not enough to find that the plaintiffs have carried their burden of proof to say that injection into the artery is a breach of the standard of care and that every time a physician injects into the artery, despite the best of care and caution, that is a violation of the standard. To say that the standard is “not to inject into the artery” is to say that a physician should guarantee his results, and that is not the law in medical malpractice cases.
JA at 2.
This analysis is correct. Under Tennessee law, a physician’s duty is to exercise reasonable care and diligence. He must exercise his best judgment regarding treatment, and is not guilty of malpractice if he chooses a course of treatment supported by other physicians in good standing. Truan v. Smith, 578 S.W.2d 73, 75-76 (Tenn.1979). A physician is not the insurer of the patient; he is only liable for negligence, and negligence is not presumed from the fact that the treatment is unsuccessful. Liability for malpractice depends on whether or not the physician is lacking in and fails to exercise the reasonable degree of learning, skill, and experience that is ordinarily possessed by others of his profession. Watkins v. United States, 482 F.Supp. 1006, 1012 (M.D.Tenn.1980).
There is no presumption of negligence; rather, the law presumes the physician has discharged his full duty. Redwood v. Raskind, 49 Tenn.App. 69, 350 S.W.2d 414 (1961). Moreover, negligence may not be presumed from the mere fact of injury. Johnson v. Lawrence, 720 S.W.2d 50, 56 (Tenn.Ct.App.1986). An honest mistake in judgment is not sufficient to find a physician negligent. Perkins v. Park View Hosp., 61 Tenn.App. 458, 456 S.W.2d 276 (1970).
In determining the degree of learning and skill required of a medical practitioner in the treatment of a particular case, regard must be given to the state of medical science at the time. Ogle v. Noe, 6 Tenn.App. 485 (1927). “Evaluation of professional judgment must be based upon the facts available to the professional and the accepted practice among members of the profession under such facts.” Perkins, 61 Tenn.App. at 482-83, 456 S.W.2d at 287.
The district court’s finding that Dr. Ruleman performed the procedure in a manner well-recognized and accepted in January 1978 and exercised the care required to meet the standards of the specialty, was not clearly erroneous.
II. Medical Articles as Evidence
The plaintiffs contend that the district court erred when it read and relied on Dr. Pulec’s articles in establishing the applicable standard of care. These articles were referred to by Dr. Shea on direct examination and marked by defendant’s counsel as exhibits 3 and 4 to Dr. Shea’s deposition. Although Federal Rule of Evidence 803(18) precludes learned treatises from being received as exhibits, the Rule provides that treatises can be read into evidence. It appears that plaintiffs’ counsel has confused the concept of not being received as exhibits with not being received as evidence.
Furthermore, Federal Rule of Evidence 103 provides that, in order to be error, a ruling admitting evidence must affect a substantial right of the party and a timely objection or motion to strike must appear on the record. On the second day of the trial, the court announced that it had read the depositions submitted and that court time need not be taken by reading them into the record. At this time, counsel for defendant objected to specific statements in the depositions submitted by plaintiffs, and the court ruled on those objections. Plaintiffs failed to object at this time, and never objected to the court’s reading of the exhibits until this appeal. Moreover, plaintiffs have not shown that a substantial right was violated. The articles were relied upon by Dr. Ruleman, referred to by Dr. Kirshner, identified by Dr. Harris, discussed and quoted from by Dr. Shea, and generally recognized by the expert witnesses as the most important papers regarding the technique used on Mr. Ward.
Plaintiffs argue that because state law governs the competency of witnesses under Federal Rule of Evidence 601, the articles cannot be relied upon to establish the standard of care because Dr. Pulec would be incompetent to testify to the standard of care under the locality rule of Tenn.Code Ann. § 29-26-115(b). Even assuming, arguendo, that plaintiffs are correct in this contention, the short answer is that Dr. Pulec was not offered as a witness. Furthermore, these articles were incorporated into the testimony of Drs. Shea and Ruleman, who are competent to testify under the state statute. Considering all of the above, it was not reversible error for the district court to read and rely on the articles regarding the issue of the standard of care.
III. Disqualification of Expert Witness
On the second day of trial, the district court ruled that plaintiffs had not qualified Dr. Kirshner, a neurologist and not an ENT surgeon, as an expert to testify to the standard of care for performing this type of ENT surgery. During the taking of Dr. Kirshner’s deposition, counsel for defendant objected to Kirshner’s testimony on the standard of care on the grounds that he was not qualified to give such an opinion. The parties make an issue as to whether Federal Rules of Evidence 601 or 702 applies to the court’s determination.
Plaintiffs argue that under Federal Rule of Evidence 601, when state law provides the substantive law, competency of witnesses is also determined by state law. See Crumley v. Memorial Hosp., 509 F.Supp. 531, 532 n. 2 (E.D.Tenn.1978) (in diversity based medical malpractice action, competency of physician as expert witness is to be determined in accordance with Tennessee law), aff'd, 647 F.2d 164 (6th Cir.1981) (unpublished opinion). See also LeMaire v. United States, 826 F.2d 949, 954 (10th Cir.1987) (state law regarding competency of physician’s testimony applicable to medical malpractice case brought under Federal Tort Claims Act). Defendant argues that Federal Rule of Evidence 702 governs expert testimony and that state law is inapplicable. See Dawsey v. Olin Corp., 782 F.2d 1254, 1262 (5th Cir.1986) (under Fed.R.Evid. 1101 and 702, state statute preventing unlicensed physicians from testifying as medical experts inapplicable in diversity action in federal court).
We need not decide this issue because plaintiffs failed to show that this evidentiary ruling affected a substantial right as required by Federal Rule of Evidence 103(a)(1). Furthermore, the court stated that Dr. Kirshner’s testimony on the standard of care did not add anything to the record. Kirshner testified that he was not “an expert about precise standards for that particular operation.” JA at 158. His testimony was to the effect that it was never acceptable for any doctor to inject Teflon into the carotid artery. Therefore, we determine that no error was committed by the district court.
IV. Rebuttable Presumption
Federal Rule of Evidence 302 provides that state law determines presumptions when state law provides the rule of decision. Plaintiffs contend that the district court erred in failing to give them the benefit of the rebuttable presumption of defendant’s negligence available in Tenn. Code Ann. § 29-26-115(c) when the instrumentality is in the exclusive control of the defendant and the injury ordinarily does not occur in the absence of negligence. The presumption codified in § 29-26-115(c) is the doctrine of res ipsa loquitur. This doctrine is not ordinarily applicable to medical malpractice cases. German v. Nichopoulos, 577 S.W.2d 197 (Tenn.Ct.App.1978). “This is true because neither lay people nor Courts possess reliable common knowledge in such technical matters. Therefore, expert testimony regarding the standard of care or duty in order to show negligence is required.” Id. at 202. Here, the proper procedure to use in injecting Teflon is clearly not within common knowledge of a lay person and res ipsa loquitur does not apply. See Perkins v. Park View Hosp., 61 Tenn.App. 458, 456 S.W.2d 276 (1970). Furthermore, there was no proof at trial that the injury would not have occurred in the absence of negligence. Even when all due care is exercised, this injury could still occur. See Johnson v. Lawrence, 720 S.W.2d 50, 56 (Tenn.Ct.App.1986) (failure of plaintiff to show that stroke ordinarily does not occur in absence of negligence precluded plaintiff’s reliance on statutory presumption of negligence).
Moreover, the doctrine is not applied when evidence is offered by plaintiff of specific acts of negligence. Hughes v. Hastings, 225 Tenn. 386, 469 S.W.2d 378 (1971). In the present case, plaintiffs presented extensive evidence on the issue of negligence of Dr. Ruleman. Therefore, it is clear that this case is not appropriate for the application of the presumption found in § 29-26-115(c).
For the foregoing reasons, we AFFIRM the district court’s judgment for defendant based on the plaintiffs’ failure to carry their burden of proof regarding the defendant’s breach of the standard of care.
. Defendant cross-appeals the finding of the district court that plaintiffs timely filed their administrative tort claim. Because we affirm the judgment for defendant on the liability issue, we need not address the statute of limitations issue.
. Plaintiffs complain that the district court relied on Tennessee cases decided before this statute became effective on July 1, 1975. However, the Tennessee Supreme Court has stated that this statute is a codification of the common law elements of negligence, Cardwell v. Bechtol, 724 S.W.2d 739, 753 (Tenn.1987), and Tennessee cases applying the statute give precedential effect to pre-statute cases. See, e.g., German v. Nichopoulus, 577 S.W.2d 197 (Tenn.Ct.App.1978).
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_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Henry P. AUSTIN, Appellant, v. William M. O’KEEFFE, Deputy Commissioner et al., Appellees.
No. 23770.
United States Court of Appeals Fifth Circuit.
July 5, 1967.
John A. Lloyd, Jr., St. Petersburg, Fla., for appellant.
Brooks P. Hoyt, Tampa, Fla., Mac-farlane, Ferguson, Allison & Kelly, Tampa, Fla., for appellees Tampa Ship Repair & Dry Dock Co. and United States Fidelity & Guaranty Co.
Alfred H. Myers, Atty., Dept. of Labor, Charles Donahue, Sol. of Labor, James E. Hughes, Atty., U. S. Dept. of Labor, of counsel, Edward F. Boardman, U. S. Atty., E. J. Salcines, Asst. U. S. Atty., for appellee O’Keeffe.
Before PHILLIPS, COLEMAN, and SIMPSON, Circuit Judges.
Of the Tenth Circuit, sitting by designation.
COLEMAN, Circuit Judge.
Henry P. Austin brought an injunctive proceeding under 33 U.S.C. § 921(b) to set aside a Longshoremen’s and Harbor Workers’ Compensation Act compensation order. The District Court granted summary judgments in favor of the deputy commissioner and the two inter-venors, the employer and insurance carrier. Austin appealed. We reverse and remand with directions.
On August 15, 1961, Austin was injured in the course of his employment for Tampa Ship Repair & Dry Dock Company. Another worker jerked a hose, which caught Austin’s feet, throwing him to the deck of the vessel on which he was working. Austin twice underwent surgery on his right knee, but was left with substantial loss of use of his right leg. At a later time, Austin again fell, this time at his home, and injured his left knee.
Medical treatment was provided for Austin and compensation was paid him from the time of his first injury until November 1, 1963, when payments were terminated and the carrier denied entitlement to further benefits under the Act. Austin filed a claim for permanent and total disability benefits and additional medical treatment. The claim stated he had injured “both legs, knees and back”. At the hearing on his claim before a deputy commissioner, Austin asserted (1) that the instability of his injured right leg caused his fall and injury to his left knee; (2) that as a result of alterations in his gait and abnormal stresses placed on his back and spine by his knee injuries, he had suffered either an injury to his low back or aggravation of a preexisting condition in his low back which was previously non-disabling; (3) that his injuries caused an aggravation of pre-existing emotional or nervous disorders; (4) that his compensable injuries, or they in connection with preexisting disabilities, had caused him to suffer total disability and a total loss of earning capacity.
The deputy commissioner found the following facts:
“* * * [Cjlaimant did not injure his back in the accident of August 15, 1961; * * * claimant’s preexisting emotional instability was not materially permanently aggravated by the injury sustained; * * * the injury to the left leg * * * is a direct result of the injury and subsequent treatment of the right leg; * * * as the result of the injury sustained, the claimant was temporarily totally disabled from August 26, 1961, to October 1, 1963, inclusive; * * * as the further result of the injury sustained, the claimant has a 40 percent permanent partial loss of the use of the right leg and a 20 percent permanent partial loss of the use of the left leg * *
On the basis of these findings of partial disability, the deputy commissioner awarded the compensation allowable under the 33 U.S.C. § 908 schedule.
Austin filed his § 921 proceeding in the District Court claiming the deputy commissioner had failed to make findings or pass on the claim for total disability, had failed to consider the evidence as to the cause of his back disability, and had made findings and conclusions not supported by competent substantial evidence. The employer and carrier were allowed to intervene as defendants. Both filed motions for summary judgment. This appeal is from the order granting those motions.
The code section governing multiple injuries such as Austin’s, 33 U.S.C. § 908(c) (22), provides,
“In any case in which there shall be * * * loss of use of, more than one member * * * set forth in paragraphs (1) to (19) of this subdivision, not amounting to permanent total disability, the award of compensations shall be for the * * * loss of use of, each such member * * [Emphasis added].
It is Austin’s argument that his injuries do totally disable him, so that his compensation should be determined not by the schedules in paragraphs (1) to (19) of § 908(c) but by § 908(a).
Austin does not contend that there was a disputed issue of material fact which would have necessitated a full-scale trial in the District Court. Rather the contention is that, as a matter of law, the District Court should have enjoined the deputy commissioner’s order.
We do not linger long with Austin’s contentions that the deputy commissioner made erroneous findings. The standard is that set forth in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. O’Leary v. Brown-Pacific-Maxon, Inc., 1951, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483. We hold that the findings made were supported by substantial evidence.
The likelihood that the findings were incomplete is what troubles us.
The deputy commissioner found, “ * * * claimant did not injure his back in the accident of August 15, 1961 * * It is Austin’s theory, however, that he would be entitled to benefits for his back injury even though it arose subsequent to the original knee injury if it were due to stresses brought on by the leg injuries. The only expert testimony favoring Austin’s theory that changes in his gait brought on his back complaints was that of Dr. Wilson, Austin’s witness. On direct examination Dr. Wilson’s testimony was as follows:
“Q. Did you arrive at a diagnosis as to the complaints in the lumbo-sacral spine ?
A. This man has a degenerative lumbar disc. Any abnormal strain placed upon this particular joint would cause pain, yes, sir.
Q. Did you reach any determination as the relationship between these complaints and the injury to his right and left knees?
A. I believe that that is unconnected. The degenerative lumbar disc preexisted the injury. This was noted in 1958 on the hospital records. Their relationship there ivould simply be that of some stress mechanically imposed to that joint by the fact that he was walking abnormally. And I think there is some mechanical disadvantage from his leg limp or walking abnormally as far as a direct mechanical influence on this joint is concerned.
* * * * * *
Q. Is it consistent that these preexisting conditions could be present in a man who did heavy manual exertion such as in the occupation followed by Mr. Austin prior to this leg injury?
A. Without pain?
Q. Yes, sir.
A. I believe that with this degenerative condition he could do fairly heavy work without pain, yes, sir.
Q. Assuming that this was the situation, what, in your opinion, would be the relationship between his leg injuries and the development of pain in his back ?
A. Again, I would say that the only reasonable cause for this would be the altered mechanization secondary to limping on the right leg.
* * * * * *
Q. Is it possible that these degenerative changes [in the lumbar spine] that appear in 1963 could be a product of the mechanical changes made necessary by his leg injuries? '
A. I think it is possible.” [Emphasis added.]
Later on the following testimony was elicited from Dr. Wilson:
“Q. And could you explain in a bit more detail the actual mechanization of the production of a back pain and change in a gait or leg instability ?
A. Well, the major problem is from a different cause. In fact you are dealing with a pelvic tilt. He walks with his knee flexed on the opposite side, he also is actually extending his back ab normally by his flexed postural strain, so we are dealing with the effects of a short leg and extension strain, which, as I say, is simply postural, and we see him at times without pain.”
The appellees contend that since Dr. Wilson first testified he believed the back complaints and the knee injuries were unconnected all his subsequent testimony on the subject was hypothetical and conjectural. We think it clear, however, that Dr. Wilson meant the two complaints were originally unconnected, but that the limp adversely affected the back.
On the other hand, an expert medical witness for the employer and carrier testified, in effect, that the injuries to Austin’s legs did not permanently impair his back or spine.
In this state of the evidence, we conclude the deputy commissioner should have made an explicit finding as to whether Austin’s leg injuries aggravated his back condition.
Austin also claims it was error for the deputy commissioner not to make an explicit finding on his claim of total disability. We are of the opinion that the finding that Austin was not entitled to total disability benefits after October 1, 1963, coupled with his further finding that claimant’s disability thereafter was partial, makes it clear the commissioner was denying total disability benefits. Since the case must be remanded, however, and to be sure that Austin’s claim that his three injuries have interacted to produce total permanent disability is considered, the commissioner should now make an explicit finding on the point.
The judgment of the District Court will be reversed and the cause will be remanded with instructions to remand it to the deputy commissioner for additional findings of fact consistently with what we have said herein, Lumberman’s Mut. Cas. Co. v. Einbinder, 1965, 120 U.S.App.D.C. 56, 343 F.2d 338.
Reversed and remanded with directions.
. * * * (b) If not in accordance with law, a compensation order may be suspended or set aside, in whole or in part, through injunction proceedings, mandatory or otherwise, brought by any party in interest against the deputy commissioner making the order, and instituted in the Federal district court for the judicial district in which the injury occurred * * *.
. § 90S. Compensation for disability.
Compensation for disability shall be paid to the employee as follows:
(a) Permanent total disability: In case of total disability adjudged to be permanent 60% per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. * * *
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_fedlaw
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
WILSON & CO., Inc., v. NATIONAL LABOR RELATIONS BOARD. EMPLOYEES’ REPRESENTATIVE COMMITTEE v. SAME.
Nos. 3218, 3225.
Circuit Court of Appeals, Tenth Circuit.
July 8, 1946.
Rehearing Denied Sept. 13, 1946.
William L. Murphy, of Oklahoma City, Okl., and R. C. Winkler, of Chicago, 111. (F. G. Anderson, of Oklahoma City, Okl., on the brief), for petitioners.
Reeves R. Hilton, Atty., N.L.R.B., of Washington, D. C., (David A. Morse, Gen. Counsel, A. Norman Somers, Asst. Gen. Counsel, and Ida Klaus, Atty., N.L.R.B., all of Washington, D. C., on the brief), for respondent.
Before PHILLIPS and MURRAH, Circuit Judges, and KENNAMER, District Judge.
PHILLIPS, Circuit Judge.
These cases are here on petitions to review an order of the National Labor Relations Board. Wilson and Co., Inc., is a Delaware corporation, and is engaged in operating meat packing plants in various states. Labor relations at its meat packing plant in Oklahoma City, Oklahoma, are here involved. The Employees’ Representative Committee is an independent labor union, its membership being restricted to employees of Wilson’s plant.
Upon an amended charge filed by United Packinghouse Workers of America, an affiliate of the Congress of Industrial Organizations, and a charge filed by W. M. Blankenship, an employee of Wilson, the Board issued its complaint against Wilson, alleging it had engaged in unfair labor practices within the meaning of § 8(1), (2), (3), and (4) and § 2(6) and (7) of the National Labor Relations Act 29 U.S.C.A. §§ 158(1-4), 152(6, 7).
At the hearing, the following facts were established by substantial evidence:
In 1920, there was formed, at the Oklahoma City plant, an independent union known as the Joint Representative Plan. The Plan was operated in accordance with printed provisions issued by Wilson and distributed among its employees, and it provided for' a “committee” composed of five elected employee representatives and an equal number of appointed management representatives. In September, 1935, after the passage of the Act, a meeting of both management and employee representatives of the Plan was held. A management official, whose identity is unknown, proposed the organization of E. R. C., and its organization followed. Since its formation, no general membership meetings have been held; Wilson has provided a meeting place, without charge, for E. jR. C. representatives; meetings have been held during working hours, and representatives have been paid their regular wages for time thus spent; the secretary of E. R. C. has had the use of Wilson’s mimeograph machine; and no dues have been assessed or collected. Since 1942, the E. R. C. has been allowed the commissions paid by a local company for the privilege of operating confection machines at the plant. Until 1942, non-supervisory employees at the plant were “automatically” members of E. R. C., no membership lists were kept and no membership cards issued, and E. R. C. had no constitution or by-laws.
Employee representatives of E. R. C. were elected in October, 1935. It has no management representatives. Its first chairman was William J. Lassiter. At one time he had been a management representative but, in 1934, he was elected as an employee representative. In 1936, Roy G. Decker became chairman. Thereafter, until the time of the hearing before the Board, he held that office, except for one year. Decker has been a watchman in Wilson’s “Safety First Department” since about 1941, his sole and specific duty being to enforce Wilson’s rules for fire prevention, “safety first,” and sanitation.
During the latter part of 1942, when the Union became active at the plant/ the question of membership cards and dues was brought up at an E. R. C. meeting. Representatives John B. Holmes and Preston Willrich testified that Superintendent A. M. Kellert advised the representatives that dues were unnecessary, and that they could get the “same thing” from E. R. C. that employees at ,a nearby Armour packing plant were “paying for” as members of the Union. Kellert testified that he did not remember whether he was present át that meeting. About the same time, Kellert informed the representatives that Wilson would deal only with a union that represented a majority of the employees. Chairman Decker called a meeting, and Louis B. Williams, although not a representative, was sent by his foreman to the office of Division Superintendent Tom Peacock, who sent him to the meeting. Decker gave Williams and the representatives E. R. C. application cards, told them he was “trying to head the C. I. O. off,” and sent them back to their departments to get the cards signed. The signatures were obtained during working hours, and the representatives were paid regular wages for the time thus spent.
After employees’ names were obtained, representatives informed M. R. Swanson, Wilson’s Industrial Relations Manager, that they had about 1,100 memberships out of the 1,400 employees eligible for membership. A contract, recognizing E. R. C. as the exclusive “Bargaining Agency” for all production and maintenance employees at the plant, was made between E. R. C. and Wilson on June 11, 1943, and such contract was in effect at the time of the hearing.
In February, 1944, employee W. M. Blankenship was summoned by Kellert and told that there were to be no “C. I. O. cards signed up on Wilson & Co’s, premises.” Foreman Clarence Jones also told Blankenship that he had been advised by a “good, responsible person” that if he “didn’t cut out the Union talk,” they would be “minus another man there.” In April, Blankenship protested a change in his working hours, and Kellert said, “Don’t come to me with things like that, the things you’re a-doin’.” Blankenship then appealed to an E. R. C. representative, who told him that he could not intercede for him unless he joined the E. R. C. and would “take an oath” that he would quit the Union and “have no more to do with it.” After Blankenship had signed an E. R. C. card, he was restored to his former working hours.
Several witnesses testified that in 1933, the A. F. of L. became the bargaining agent for the employees, and that it called two strikes, one in 1934, and one in 1935, and that thereafter, the A. F. of L. abandoned the plant. The Trial Examiner made no finding on this point.
The Board found that Wilson, by long domination and interference with two successive labor organizations, its contribution of support to them, and the activities of its supervisory employees, had engaged in unfair labor practices within the meaning of the Act, and issued a cease and desist order.
After petitioners’ brief was filed, but before the oral argument before this court, petitioners filed two motions to include additional evidence in the record. The first of these motions was concerned with an election held at Wilson’s Oklahoma City Plant, on December 21, 1945, at which time the employees voted not to be represented by the Union. The petitioners’ remedy for obtaining consideration of this evidence was to apply to this court for an order requiring the Board to receive and consider the additional evidence, and to file its recommendations, if any, for the modification or setting aside of its original order. Since the petitioners have not applied for this relief, they are not entitled to have their first motion considered by this court.
The second motion was concerned with evidence of Wilson’s conduct toward the Union at its other plants. This evidence was offered before the Trial Examiner, but was not admitted on the ground that it was immaterial. If this evidence were admitted and considered, it would not change the result here. Therefore, it is unnecessary to pass upon its admissibility.
Petitioners contend that the Board’s order should be set aside because the collective bargaining agreement of June 11, 1943, was in force at the time the charge of W. M. Blankenship was filed on July 5, 1944. This contention is based on the rider attached to the Labor-Federal Security Appropriation Act of 1944, 57 Stat. 494, which provides:
“No part of the funds appropriated in this title shall be used in any way in connection with a complaint case arising over an agreement, or a renewal thereof, between management and labor which has been in existence for three months or longer without complaint being filed by an employee or employees of such plant. * * *”
Petitioners, however, fail to notice the proviso, which reads as follows:
“Provided further, That these limitations shall not apply to agreements with labor organizations formed in violation of section 158, paragraph 2, title 29, United States Code.”
The Board found that § 158(2), Title 29, § 8(2) of the Act, had been violated. Hence, under the express provision of the proviso, the limitation does not apply. It has been held that the limitation is on the expenditure of money, and does not go to the jurisdiction of the Board. In National Labor Relations Board v. Thompson Products, 9 Cir., 141 F.2d 794, 798, the court said:
“The conclusion is unavoidable that a limitation on appropriations, not an alteration in the basic act, was contemplated.”
However, we deem it unnecessary to decide that question.
The evidence shows that Wilson instigated the Plan in the early 1920’s, and controlled it until October, 1935, after the passage of the Act, and that the Plan was in violation of the Act is not denied by petitioners. When an. existing labor organization, unlawful because of employer domination, is succeeded by a new organization, there must be a clear line of cleavage between the old and the new. “The slate must be wiped clean.” Here, there was no clear line of cleavage between the Plan and E. R. C., and Wilson encouraged, supported, and discriminated in favor of E. R. C. The Board was warranted in finding that Wilson dominated E. R. C.
It is .well settled, as petitioners.contend, that, the findings of the Board' cannot stand unless supported by substantial evidence. However, the weight of the evidence, the credibility of the witnesses, and the inferences reasonably to be drawn from the evidence are matters to be determined by the Board and not by the court. In National Labor Relations Board v. Standard Oil Co., 10 Cir., 124 F.2d 895, 903, we said:
“Section 10(e) of the Act, 29 U.S.C.A. § 160(e), provides: ‘The findings of the Board as to the facts, if supported by evidence, shall be conclusive.’ This ‘means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred. * * * Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” * * * It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.’ ”
Considering these requirements, we are of the opinion that the evidence supports the Board’s findings.
Petitioners contend that even if there were some basis for issuing a cease and desist order, the one issued here is too broad, because it orders Wilson to withdraw all recognition from, and completely disestablish E. R. C. But it is for the Board, not the courts, to determine how the effect of prior unfair labor practices may be expunged.
The order will be enforced.
Hereinafter called the Board.
Hereinafter called Wilson.
Hereinafter called the E. R. C.
Hereinafter called the Union.
Hereinafter called the Act.
Hereinafter called the Plan.
See 29 U.S.C.A. § 160(e).
Magnolia Petroleum Co. v. National Labor Relations Board, 10 Cir., 115 F. 2d 1007, 1011; National Labor Relations Board v. Moore-Lowry F. M. Co., 10 Cir., 122 F.2d 419, 424; National Labor Relations Board v. Continental Oil Co., 10 Cir., 121 F.2d 120, 123.
Boeing Airplane Co. v. National Labor Relations Board, 10 Cir., 140 F.2d 423, 433; National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299, 59 S.Ct. 501, 83 L.Ed. 660; Ballston-Stillwater K. Co. v. National Labor Relations Board, 2 Cir., 98 F.2d 758, 760; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126; National Labor Relations Board v. Standard Oil Co., 10 Cir., 124 F.2d 895, 903.
Swift & Co. v. National Labor Relations Board, 10 Cir., 106 F.2d 87, 93; National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Link-Belt Co., 311 U.S. 584, 597, 61 S.Ct. 358, 85 L.Ed. 368.
International Ass’n of Machinists v. National Labor Relations Board, 311 U.S. 72, 82, 61 S.Ct. 83, 85 L.Ed. 50; National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; National Labor Relations Board v. Falk Corp., 308 U.S. 453, 461, 60 S.Ct. 307, 84 L.Ed. 396.
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:
|
sc_petitioner
|
144
|
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.
HUDSON v. McMILLIAN et al.
No. 90-6531.
Argued November 13, 1991
Decided February 25, 1992
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Kennedy, and Souter, JJ., joined, and in which Stevens, J., joined as to Parts I, II-A, II-B, and II-C. Stevens, J., filed an opinion concurring in part and concurring in the judgment, post, p. 12. Blackmun, J., filed an opinion concurring in the judgment, post, p. 13. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 17.
Alvin J. Bronstein, by appointment of the Court, 500 U. S. 903, argued the cause for petitioner. With him on the briefs were John A. Powell, Steven R. Shapiro, Mark J. Lopez, and Elizabeth Alexander.
Deputy Solicitor General Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorneys General Dunne and Mueller, Acting Deputy Solicitor General Wright, and Ronald J. Mann.
Harry McCall, Jr., Special Assistant Attorney General of Louisiana, argued the cause for respondents. With him on the brief were William J. Guste, Jr., Attorney General, Jonathan C. McCall, Special Assistant Attorney General, and Jenifer Schaye, Clifton O. Bingham, Jr., Houston C. Gascon III, and Joseph Erwin Kopsa, Assistant Attorneys General.
Briefs of amici curiae urging reversal were filed for Americans for Effective Law Enforcement, Inc., by Daniel B. Hales, Emory A Plitt, Jr., Wayne W. Schmidt, and James P. Manak; for the D. C. Prisoners’ Legal Services Project, Inc., by Theodore A Howard and Richard J. Arsenault; for Human Rights Watch by Cameron Clark; and for the Prisoners’ Legal Service of New York by John A Gresham and Stephen M. Latimer.
A brief of amici curiae urging affirmance was filed for the State of Texas et al. by Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Michael P. Hodge, Charles A Palmer, Sharon Felfe, and Adrian L. Young, Assistant Attorneys General, joined by the Attorneys General for their respective States as follows: Warren Price Ill of Hawaii, Joseph B. Meyer of Wyoming, Frankie Sue Del Papa of Nevada, and Robert A Butterworth of Florida.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to decide whether the use of excessive physical force against a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury. We answer that question in the affirmative.
I
At the time of the incident that is the subject of this smt, petitioner Keith Hudson was an inmate at the state penitentiary in Angola, Louisiana. Respondents Jack McMillian, Marvin Woods, and Arthur Mezo served as corrections security officers at the Angola facility. During the early morning hours of October 30,1983, Hudson and McMillian argued. Assisted by Woods, McMillian then placed Hudson in handcuffs and shackles, took the prisoner out of his cell, and walked him toward the penitentiary’s “administrative lock-down” area. Hudson testified that, on the way there, McMil-lian punched Hudson in the mouth, eyes, chest, and stomach while Woods held the inmate in place and kicked and punched him from behind. He further testified that Mezo, the supervisor on duty, watched the beating but merely told the officers “not to have too much fun.” App. 23. As a result of this episode, Hudson suffered minor bruises and swelling of his face, mouth, and lip. The blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months.
Hudson sued the three corrections officers in Federal District Court under Rev. Stat. § 1979, 42 U. S. C. § 1983, alleging a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments and seeking compensatory damages. The parties consented to disposition of the case before a Magistrate, who found that McMillian and Woods used force when there was no need to do so and that Mezo expressly condoned their actions. App. 26. The Magistrate awarded Hudson damages of $800. Id., at 29.
The Court of Appeals for the Fifth Circuit reversed. 929 F. 2d 1014 (1990). It held that inmates alleging use of excessive force in violation of the Eighth Amendment must prove: (1) significant injury; (2) resulting “directly and only from the use of force that was clearly excessive to the need”; (3) the excessiveness of which was objectively unreasonable; and (4) that the action constituted an unnecessary and wanton infliction of pain. Id., at 1015. The court determined that respondents’ use of force was objectively unreasonable because no force was required. Furthermore, “[t]he conduct of McMillian and Woods qualified as clearly excessive and occasioned unnecessary and wanton infliction of pain.” Ibid. However, Hudson could not prevail on his Eighth Amendment claim because his injuries were “minor” and required no medical attention. Ibid.
We granted certiorari, 499 U. S. 958 (1991), to determine whether the “significant injury” requirement applied by the Court of Appeals accords with the Constitution’s dictate that cruel and unusual punishment shall not be inflicted.
II
In Whitley v. Albers, 475 U. S. 312 (1986), the principal question before us was what legal standard should govern the Eighth Amendment claim of an inmate shot by a guard during a prison riot. We based our answer on the settled rule that “ ‘the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”’ Id., at 319 (quoting Ingraham v. Wright, 430 U. S. 651, 670 (1977)) (internal quotation marks omitted).
What is necessary to establish an “unnecessary and wanton infliction of pain,” we said, varies according to the nature of the alleged constitutional violation. 475 U. S., at 320. For example, the appropriate inquiry when an inmate alleges that prison officials failed to attend to serious medical needs is whether the officials exhibited “deliberate indifference.” See Estelle v. Gamble, 429 U. S. 97, 104 (1976). This standard is appropriate because the State’s responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns. Whitley, supra, at 320.
By contrast, officials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force. Despite the weight of these competing concerns, corrections officials must make their decisions “in haste, under pressure, and frequently without the luxury of a second chance.” 475 U. S., at 320. We accordingly concluded in Whitley that application of the deliberate indifference standard is inappropriate when authorities use force to put down a prison disturbance. Instead, “the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Id., at 320-321 (quoting Johnson v. Glick, 481 F. 2d 1028, 1033 (CA2), cert. denied sub nom. John v. Johnson, 414 U. S. 1033 (1973)).
Many of the concerns underlying our holding in Whitley arise whenever guards use force to keep order. Whether the prison disturbance is a riot or a lesser disruption, corrections officers must balance the need “to maintain or restore discipline” through force against the risk of injury to inmates. Both situations may require prison officials to act quickly and decisively. Likewise, both implicate the principle that “‘[pjrison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’” 475 U. S., at 321-322 (quoting Bell v. Wolfish, 441 U. S. 520, 547 (1979)). In recognition of these similarities, we hold that whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.
Extending Whitley’s application of the “unnecessary and wanton infliction of pain” standard to all allegations of excessive force works no innovation. This Court derived the Whitley test from one articulated by Judge Friendly in Johnson v. Glick, supra, a case arising out of a prisoner’s claim to have been beaten and harassed by a guard. Moreover, many Courts of Appeals already apply the Whitley standard to allegations of excessive force outside of the riot situation. See Corselli v. Coughlin, 842 F. 2d 23, 26 (CA2 1988); Miller v. Leathers, 913 F. 2d 1085, 1087 (CA4 1990) (en banc), cert. denied, 498 U. S. 1109 (1991); Haynes v. Marshall, 887 F. 2d 700, 703 (CA6 1989); Stenzel v. Ellis, 916 F. 2d 423, 427 (CA8 1990); Brown v. Smith, 813 F. 2d 1187, 1188 (CA11 1987). But see Unwin v. Campbell, 863 F. 2d 124, 130 (CA1 1988) (rejecting application of Whitley standard absent “an actual disturbance”).
A
Under the Whitley approach, the extent of injury suffered by an inmate is one factor that may suggest “whether the use of force could plausibly have been thought necessary” in a particular situation, “or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” 475 U. S., at 321. In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat “reasonably perceived by the responsible officials,” and “any efforts made to temper the severity of a forceful response.” Ibid. The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it.
Respondents nonetheless assert that a significant injury requirement of the sort imposed by the Fifth Circuit is mandated by what we have termed the “objective component” of Eighth Amendment analysis. See Wilson v. Seiter, 501 U. S. 294, 298 (1991). Wilson extended the deliberate indifference standard applied to Eighth Amendment claims involving medical care to claims about conditions of confinement. In taking this step, we suggested that the subjective aspect of an Eighth Amendment claim (with which the Court was concerned) can be distinguished from the objective facet of the same claim. Thus, courts considering a prisoner’s claim must ask both if “the officials act[ed] with a sufficiently culpable state of mind” and if the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation. Id., at 298, 303.
With respect to the objective component of an Eighth Amendment violation, Wilson announced no new rule. Instead, that decision suggested a relationship between the requirements applicable to different types of Eighth Amendment claims. What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause depends upon the claim at issue, for two reasons. First, “[t]he general requirement that an Eighth Amendment claimant allege and prove the unnecessary and wanton infliction of pain should ... be applied with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.” Whitley, supra, at 320. Second, the Eighth Amendment’s prohibition of cruel and unusual punishments “ (draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society,’ ” and so admits of few absolute limitations. Rhodes v. Chapman, 452 U. S. 337, 346 (1981) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)).
The objective component of an Eighth Amendment claim is therefore contextual and responsive to “contemporary standards of decency.” Estelle, supra, at 103. For instance, extreme deprivations are required to make out a conditions-of-confinement claim. Because routine discomfort is “part of the penalty that criminal offenders pay for their offenses against society,” Rhodes, supra, at 347, “only those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, supra, at 298 (quoting Rhodes, supra, at 347) (citation omitted). A similar analysis applies to medical needs. Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are “serious.” See Estelle v. Gamble, 429 U. S., at 103-104.
In the excessive force context, society’s expectations are different. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. See Whitley, supra, at 327. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today. See Estelle, supra, at 102 (proscribing torture and barbarous punishment was “the primary concern of the drafters” of the Eighth Amendment); Wilkerson v. Utah, 99 U. S. 130, 136 (1879) (“[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth Amendment]”).
That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F. 2d, at 1033 (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights”). The Eighth Amendment’s prohibition of “cruel and unusual” punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort “ ‘repugnant to the conscience of mankind.’” Whitley, 475 U. S., at 327 (quoting Estelle, supra, at 106) (internal quotation marks omitted).
In this case, the Fifth Circuit found Hudson’s claim untenable because his injuries were “minor.” 929 F. 2d, at 1015. Yet the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes. The extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983 claim.
B
The dissent’s theory that Wilson requires an inmate who alleges excessive use of force to show serious injury in addition to the unnecessary and wanton infliction of pain misapplies Wilson and ignores the body of our Eighth Amendment jurisprudence. As we have already suggested, the question before the Court in Wilson was “[wjhether a prisoner claiming that conditions of confinement constitute cruel and unusual punishment must show a culpable state of mind on the part of prison officials, and, if so, what state of mind is required.” Wilson, supra, at 296. Wilson presented neither an allegation of excessive force nor any issue relating to what was dubbed the “objective component” of an Eighth Amendment claim.
Wilson did touch on these matters in the course of summarizing our prior holdings, beginning with Estelle v. Gamble, supra. Estelle, we noted, first applied the Cruel and Unusual Punishments Clause to deprivations that were not specifically part of the prisoner’s sentence. Wilson, supra, at 297. As might be expected from this primacy, Estelle stated the principle underlying the cases discussed in Wilson: Punishments “incompatible with the evolving standards of decency that mark the progress of a maturing society” or “involving] the unnecessary and wanton infliction of pain” are “repugnant to the Eighth Amendment.” Estelle, supra, at 102-103 (internal quotation marks omitted). This is the same rule the dissent would reject. With respect to the objective component of an Eighth Amendment claim, however, Wilson suggested no departure from Estelle and its progeny.
The dissent’s argument that claims based on excessive force and claims based on conditions of confinement are no different in kind, post, at 24-25, and n. 4, is likewise unfounded. Far from rejecting Whitley’s insight that the unnecessary and wanton infliction of pain standard must be applied with regard for the nature of the alleged Eighth Amendment violation, the Wilson Court adopted it. See Wilson, 501 U. S., at 302-303. How could it be otherwise when the constitutional touchstone is whether punishment is cruel and unusual? To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the “ ‘concepts of dignity, civilized standards, humanity, and decency’” that animate the Eighth Amendment. Estelle, supra, at 102 (quoting Jackson v. Bishop, 404 F. 2d 571, 579 (CA8 1968)).
C
Respondents argue that, aside from the significant injury test applied by the Fifth Circuit, their conduct cannot constitute an Eighth Amendment violation because it was “isolated and unauthorized.” Brief for Respondents 28. The beating of Hudson, they contend, arose from “a personal dispute between correctional security officers and a prisoner,” and was against prison policy. Ibid. Respondents invoke the reasoning of courts that have held the use of force by prison officers under such circumstances beyond the scope of “punishment” prohibited by the Eighth Amendment. See Johnson v. Glick, supra, at 1032. (“[Ajlthough a spontaneous attack by a guard is ‘cruel’ and, we hope, ‘unusual,’ it does not fit any ordinary concept of ‘punishment’ ”); George v. Evans, 633 F. 2d 413, 416 (CA5 1980) (“[A] single, unauthorized assault by a guard does not constitute cruel and unusual punishment . . .”)• But see Duckworth v. Franzen, 780 F. 2d 645, 652 (CA7 1985) (“If a guard decided to supplement a prisoner’s official punishment by beating him, this would be punishment. . cert. denied, 479 U. S. 816 (1986).
We take no position on respondents’ legal argument because we find it inapposite on this record. The Court of Appeals left intact the Magistrate’s determination that the violence at issue in this case was “not an isolated assault.” App. 27, n. 1. Indeed, there was testimony that McMillian and Woods beat another prisoner shortly after they finished with Hudson. Ibid. To the extent that respondents rely on the unauthorized nature of their acts, they make a claim not addressed by the Fifth Circuit, not presented by the question on which we granted certiorari, and, accordingly, not before this Court. Moreover, respondents ignore the Magistrate’s finding that Lieutenant Mezo, acting as a supervisor, “expressly condoned the use of force in this instance.” App. 26.
The judgment of the Court of Appeals is
Reversed.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
sc_issue_1
|
27
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
KENTUCKY v. STINCER
No. 86-572.
Argued April 22, 1987
Decided June 19, 1987
Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Powell, O’ConnoR, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which BRennan and Stevens, JJ., joined, post, p. 748.
Penny R. Warren, Assistant Attorney General of Kentucky, argued the cause for petitioner. With her on the briefs were David L. Armstrong, Attorney General, and John S. Gillig, Assistant Attorney General.
Mark A. Posnansky, by appointment of the Court, 479 U. S. 1005, argued the cause and filed a brief for respondent.
Briefs of amici curiae urging reversal were filed for the State of Arkansas et al. by Steve Clark, Attorney General of Arkansas, and Rodney A. Smolla, joined by the Attorneys General for their respective jurisdictions as follows: Don Siegelman of Alabama, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Charles Troutman of Guam, Jim Jones of Idaho, Linley E. Pearson of Indiana, Neil F. Hartigan of Illinois, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Hal Stratton of New Mexico, Lacy H. Thorn-burg of North Carolina, Nicholas Spaeth of North Dakota, Dave Frohn-mayer of Oregon, LeRoy S. Zimmerman of Pennsylvania, James E. O’Neil of Rhode Island, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, W. J. Michael Cody of Tennessee, Jeffrey Amestoy of Vermont, J’Ada Finch-Sheen of the Virgin Islands, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner and Harry B. Sondheim.
Briefs of amicus curiae urging affirmance were filed for the American Civil Liberties Union by George Kannar; and for the National Association of Criminal Defense Lawyers by Nancy Hollander.
Donald N. Bersoff filed a brief for the American Psychological Association as amicus curiae.
Justice Blackmun
delivered the opinion of the Court.
The question presented in this case is whether the exclusion of a defendant from a hearing held to determine the competency of two child witnesses to testify violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth Amendment.
I
Respondent Sergio Stincer was indicted in the Circuit Court of Christian County, Ky., and charged with committing first-degree sodomy with T. G., an 8-year-old girl, N. G., a 7-year-old girl, and B. H., a 5-year-old boy, in violation of Ky. Rev. Stat. §510.070 (1985). After a jury was sworn, but before the presentation of evidence, the court conducted an in-chambers hearing to determine if the two young girls were competent to testify. Over his objection, respondent, but not his counsel (a public defender), was excluded from this hearing. Tr. 15.
The two children were examined separately and the judge, the prosecutor, and respondent’s counsel asked questions of each girl to determine if she were capable of remembering basic facts and of distinguishing between telling the truth and telling a lie. Id., at 15-26. T. G., the 8-year-old, was asked her age, her date of birth, the name of her school, the names of her teachers, and the name of her Sunday school. She was also asked whether she knew what it meant to tell the truth, and whether she could keep a promise to God to tell the truth. Id., at 16-18. N. G., the 7-year-old girl, was asked similar questions. Id., at 20-25. The two children were not asked about the substance of the testimony they were to give at trial. The court ruled that the girls were competent to testify. Respondent’s counsel did not object to these rulings. Id., at 20, 25.
Before each of the girls began her substantive testimony in open court, the prosecutor repeated some of the basic questions regarding the girl’s background that had been asked at the competency hearing. Id., at 31-33 (direct examination of T. G.) (questions regarding age, where the witness attended school and Sunday school, and the like); id., at 66 (direct examination of N. G.) (questions regarding age and where the witness attended school). T. G. then testified, on direct examination, that respondent had placed a sock over her eyes, had given her chocolate pudding to eat, and then had “put his d-i-c-k” in her mouth. Id., at 34. N. G., on direct examination, testified to a similar incident. Id., at 69.
On cross-examination, respondent’s counsel asked each girl questions designed to determine if she could remember past events and if she knew the difference between the truth and a lie. Some of these questions were similar to those that had been asked at the competency hearing. See id., at 38-39, 44-47, 60-63 (cross-examination of T. G.); 71-72, 74-75, 78-83 (cross-examination of N. G.). After the testimony of the girls was concluded, counsel did not request that the trial court reconsider its ruling that the girls were competent to testify. The jury convicted respondent of first-degree sodomy for engaging in deviate sexual intercourse and fixed his sentence at 20 years’ imprisonment.
On appeal to the Supreme Court of Kentucky, respondent argued, among other things, that his exclusion from the competency hearing of the two girls denied him due process and violated his Sixth Amendment right to confront the witnesses against him. The Kentucky Supreme Court, by a divided vote, agreed that, under the Sixth Amendment of the Federal Constitution and under § 11 of the Bill of Rights of the Kentucky Constitution (the right “to meet the witnesses face to face”), respondent had an absolute right to be present at the competency hearing because the hearing “was a crucial phase of the trial.” 712 S. W. 2d 939, 940 (1986). The court explained that respondent’s trial “might not have taken place had the trial court determined that the children were not competent to testify.” Id., at 941. Two justices, however, dissented, concluding that respondent’s right to confront the witnesses against him was not violated because respondent had the opportunity to assist counsel fully in cross-examining the two witnesses at trial. Id., at 942-944.
We granted certiorari, 479 U. S. 1005 (1986), to determine whether respondent’s constitutional rights were violated by his exclusion from the competency hearing.
HH HH
A
The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” This right is secured for defendants in state as well as in federal criminal proceedings. Pointer v. Texas, 380 U. S. 400 (1965). The Court has emphasized that “a primary interest secured by [the Confrontation Clause] is the right of cross-examination.” Douglas v. Alabama, 380 U. S. 415, 418 (1965). The opportunity for cross-examination, protected by the Confrontation Clause, is critical for ensuring the integrity of the factfinding process. Cross-examination is “the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U. S. 308, 316 (1974). Indeed, the Court has recognized that cross-examination is the “ ‘greatest legal engine ever invented for the discovery of truth.’” California v. Green, 399 U. S. 149, 158 (1970), quoting 5 J. Wigmore, Evidence § 1367, p. 29 (3d ed. 1940). The usefulness of cross-examination was emphasized by this Court in an early case explicating the Confrontation Clause:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits... being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U. S. 237, 242-243 (1895).
See also Kirby v. United States, 174 U. S. 47, 53 (1899).
The right to cross-examination, protected by the Confrontation Clause, thus is essentially a “functional” right designed to promote reliability in the truth-finding functions of a criminal trial. The cases that have arisen under the Confrontation Clause reflect the application of this functional right. These cases fall into two broad, albeit not exclusive, categories: “cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination.” Delaware v. Fensterer, 474 U. S. 15, 18 (1985) (per curiam).
In the first category of cases, the Confrontation Clause is violated when “hearsay evidence [is] admitted as substantive evidence against the defendant],” Tennessee v. Street, 471 U. S. 409, 413 (1985), with no opportunity to cross-examine the hearsay declarant at trial, or when an out-of-court statement of an unavailable witness does not bear adequate indications of trustworthiness. See Ohio v. Roberts, 448 U. S. 56, 65-66 (1980). For example, in Roberts, we held that an out-of-court statement by an unavailable witness was sufficiently reliable to be admitted at trial, consistent with the Confrontation Clause, because defense counsel had engaged in full cross-examination of the witness at the preliminary hearing where the statement was made. Id., at 70-73. In California v. Green, supra, the Court concluded that the Confrontation Clause was not violated by admitting a declar-ant’s inconsistent out-of-court statement “as long as the de-clarant is testifying as a witness and subject to full and effective cross-examination” at the trial itself. 399 U. S., at 158.
The second category involves cases in which the opportunity for cross-examination has been restricted by law or by a trial court ruling. In Davis v. Alaska, supra, defense counsel was restricted by state confidentiality provisions from questioning a witness about his juvenile criminal record, although such evidence might have affected the witness’ credibility. The Court held that the Confrontation Clause was violated because the defendant was denied the right “to expose to the jury the facts from which jurors... could appropriately draw inferences relating to the reliability of the witness.” 415 U. S., at 318. Similarly, in Delaware v. Van Arsdall, 475 U. S. 673 (1986), defense counsel was precluded by the trial court from questioning a witness about the State’s dismissal of a pending public drunkenness charge against him. The Court concluded: “By thus cutting off all questioning about an event... that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony,” the trial court’s ruling violated the defendant’s rights under the Confrontation Clause. Id., at 679.
Although claims arising under the Confrontation Clause may not always fall neatly into one of these two categories, these cases reflect the Confrontation Clause’s functional purpose in ensuring a defendant an opportunity for cross-examination. See Lee v. Illinois, 476 U. S. 530 (1986). Of course, the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U. S., at 20 (emphasis in original). This limitation is consistent with the concept that the right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial.
B
The Commonwealth argues that respondent’s exclusion from the competency hearing of the two children did not violate the Confrontation Clause because a competency hearing is not “a stage of trial where evidence or witnesses are being presented to the trier of fact.” Brief for Petitioner 22. Cf. Gannett Co. v. DePasquale, 443 U. S. 368, 394 (1979) (Burger, C. J., concurring). Distinguishing between a “trial” and a “pretrial proceeding” is not particularly helpful here, however, because a competency hearing may well be a “stage of trial.” In this case, for instance, the competency hearing was held after the jury was sworn, in the judge’s chambers, and in the presence of opposing counsel who asked questions of the witnesses. Moreover, although questions regarding the guilt or innocence of the defendant usually are not asked at a competency hearing, the hearing retains a direct relationship with the trial because it determines whether a key witness will testify. Further, although the preliminary determination of a witness’ competency to testify is made at this hearing, the determination of competency is an ongoing one for the judge to make based on the witness’ actual testimony at trial.
Instead of attempting to characterize a competency hearing as a trial or pretrial proceeding, it is more useful to consider whether excluding the defendant from the hearing interferes with his opportunity for effective cross-examination. No such interference occurred when respondent was excluded from the competency hearing of the two young girls in this case. After the trial court determined that the two children were competent to testify, they appeared and testified in open court. At that point, the two witnesses were subject to full and complete cross-examination, and were so examined. Tr. 38-58 (cross-examination of T. G.); id., at 71-84 (cross-examination of N. G.). Respondent was present throughout this cross-examination and was available to assist his counsel as necessary. There was no Kentucky rule of law, nor any ruling 'by the trial court, that restricted respondent’s ability to cross-examine the witnesses at trial. Any questions asked during the competency hearing, which respondent’s counsel attended and in which he participated, could have been repeated during direct examination and cross-examination of the “witnesses in respondent’s presence. See California v. Green, 399 U. S., at 159 (“[T]he inability to cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial significance as long as the defendant is assured of full and effective cross-examination at the time of trial”).
Moreover, the type of questions that were asked at the competency hearing in this case were easy to repeat on cross-examination at trial. Under Kentucky law, when a child’s competency to testify is raised, the judge is required to resolve three basic issues: whether the child is capable of observing and recollecting facts, whether the child is capable of narrating those facts to a court or jury, and whether the child has a moral sense of the obligation to tell the truth. See Moore v. Commonwealth, 384 S. W. 2d 498, 500 (Ky. 1964) (“When the competency of an infant to testify is properly raised it is then the duty of the trial court to carefully examine the witness to ascertain whether she (or he) is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth”); Capps v. Commonwealth, 560 S. W. 2d 559, 560 (Ky. 1977); Hendricks v. Commonwealth, 550 S. W. 2d 551, 554 (Ky. 1977); see also Thomas v. Commonwealth, 300 Ky. 480, 481-482, 189 S. W. 2d 686, 686-687 (1945); Comment, An Overview of the Competency of Child Testimony, 13 No. Ky. L. Rev. 181, 184 (1986). Thus, questions at a competency hearing usually are limited to matters that are unrelated to the basic issues of the trial. Children often are asked their names, where they go to school, how old they are, whether they know who the judge is, whether they know what a lie is, and whether they know what happens when one tells a lie. See Comment, The Competency Requirement for the Child Victim of Sexual Abuse: Must We Abandon It?, 40 U. Miami L. Rev. 245, 263, and n. 78 (1985); Comment, Defendants’ Rights in Child Witness Competency Hearings: Establishing Constitutional Procedures for Sexual Abuse Cases, 69 Minn. L. Rev. 1377, 1381-1383, and nn. 9-11 (1985).
In Kentucky, as in certain other States, it is the responsibility of the judge, not the jury, to decide whether a witness is competent to testify based on the witness’ answers to such questions. Whitehead v. Stith, 268 Ky. 703, 709, 105 S. W. 2d 834, 837 (1937) (question of competency is one for court, not jury, and if court finds witness lacks qualification, “it commits a palpable abuse of its discretion” should it then permit witness to testify); Payne v. Commonwealth, 623 S. W. 2d 867, 878 (Ky. 1981); Capps v. Commonwealth, 560 S. W. 2d, at 560. See 2 Wigmore § 507, p. 714 (citing cases). In those States where the judge has the responsibility for determining competency, that responsibility usually continues throughout the trial. A motion by defense counsel that the court reconsider its earlier decision that a child is competent may be raised after the child testifies on direct examination, see, e. g., In re R. R., 79 N. J. 97, 106, 398 A. 2d 76, 80 (1979) (at close of State’s case, defense attorney moved that 4-year-old boy be declared incompetent on basis of actual testimony given by boy), or after direct and cross-examination of the witness. See, e. g., Reply Brief for Petitioner 12 (“If, during trial, there arises some basis for challenging the judge’s competency determination, the judge may be asked to reconsider,” referring to respondent’s motion to that effect, Tr. 126-127). Moreover, appellate courts reviewing a trial judge’s determination of competency also often will look at the full testimony at trial.
In this case both T. G. and N. G. were asked several background questions during the competency hearing, as well as several questions directed at what it meant to tell the truth. Some of the questions regarding the witnesses’ backgrounds were repeated by the prosecutor on direct examination, while others — particularly those regarding the witnesses’ ability to tell the difference between truth and falsehood — were repeated by respondent’s counsel on cross-examination. At the close of the children’s testimony, respondent’s counsel, had he thought it appropriate, was in a position to move that the court reconsider its competency rulings on the ground that the direct and cross-examination had elicited evidence that the young girls lacked the basic requisites for serving as competent witnesses. Thus, the critical tool of cross-examination was available to counsel as a means of establishing that the witnesses were not competent to testify, as well as a means of undermining the credibility of their testimony.
Because respondent had the opportunity for full and effective cross-examination of the two witnesses during trial, and because of the nature of the competency hearing at issue in this case, we conclude that respondent’s rights under the Confrontation Clause were not violated by his exclusion from the competency hearing of the two girls.
h-1 hH h — I
Respondent argues that his rights under the Due Process ■Clause of the Fourteenth Amendment were violated by his exclusion from the competency hearing. The Court has assumed that, even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U. S. 97, 105-106 (1934). Although the Court has emphasized that this privilege of presence is not guaranteed “when presence would be useless, or the benefit but a shadow,” id., at 106-107, due process clearly requires that a defendant be allowed to be present “to the extent that a fair and just hearing would be thwarted by his absence,” id., at 108. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.
We conclude that respondent’s due process rights were not violated by his exclusion from the competency hearing in this case. We emphasize, again, the particular nature of the competency hearing. No question regarding the substantive testimony that the two girls would have given during trial was asked at that hearing. All the questions, instead, were directed solely to each child’s ability to recollect and narrate facts, to her ability to distinguish between truth and falsehood, and to her sense of moral obligation to tell the truth. Thus, although a competency hearing in which a witness is asked to discuss upcoming substantive testimony might bear a substantial relationship to a defendant’s opportunity better to defend himself at trial, that kind of inquiry is not before us in this case.
Respondent has given no indication that his presence at the competency hearing in this case would have been useful in ensuring a more reliable determination as to whether the witnesses were competent to testify. He has presented no evidence that his relationship with the children, or his knowledge of facts regarding their background, could have assisted either his counsel or the judge in asking questions that would have resulted in a more assured determination of competency. On the record of this case, therefore, we cannot say that respondent’s rights under the Due Process Clause of the Fourteenth Amendment were violated by his exclusion from the competency hearing. As was said in United States v. Gagnon, 470 U. S. 522, 527 (1985) (per curiam), there is no indication that respondent “could have done [anything] had [he] been at the [hearing] nor would [he] have gained anything by attending.”
The judgment of the Supreme Court of Kentucky is reversed.
It is so ordered.
Immediately prior to the competency hearing of the two girls, the prosecutor moved that the charge regarding B. H., the 5-year-old boy, be dismissed because the prosecution did not believe B. H. was competent to testify. Respondent did not object and the court granted the prosecutor’s motion. Tr. 13-14.
In response to these questions, T. G. stated that telling the truth meant “[d]on’t tell no stories.” Id., at 17.
N. G. replied that she would “get a whopping” if she told a lie. Id., at 24.
There is some confusion as to whether T. G. knew what a “d-i-c-k” was, although she spelled the word at trial. Id., at 55-58. It also appears that N. G. may have recanted her testimony somewhat on cross-examination. Id., at 77-78. These facts, however, relate to whether the evidence was sufficient to convict respondent of the crimes charged. The Kentucky Supreme Court concluded that the evidence was sufficient to withstand a motion for a directed verdict of acquittal. 712 S. W. 2d 939, 941 (1986). That ruling is not before us in this case.
After the two girls testified, the prosecution stated that it also wished to present the testimony of E. T., a 4-year-old boy who allegedly had witnessed the events in question. The court examined E. T. in the courtroom, without the jury present and, apparently, without respondent present. Tr. 87. No objection from respondent regarding his exclusion from this hearing appears on the record. The court ruled that the boy was competent to testify, a ruling to which respondent’s counsel apparently objected. Id., at 109-110. After direct and cross-examination of E. T., defense counsel moved that the court reconsider its previous ruling that the boy was competent to testify. The court declined to rule that he was incompetent. Id., at 126-127.
Respondent’s exclusion from E. T.’s competency hearing is not before us because the validity of respondent’s absence from that hearing was never raised before the Kentucky Supreme Court. See Brief for Appellant in No. 84-SC-496-I (Ky. Sup. Ct.), pp. 14-17. Thus, not surprisingly, the majority opinion of the Kentucky Supreme Court refers solely to the competency hearing of the two girls.
Under Kentucky law, deviate sexual intercourse means “any act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.” Ky. Rev. Stat. § 510.010(1) (1985). First-degree sodomy with a child under 12 is a Class A felony and conviction carries a minimum sentence of 20 years’ imprisonment and a maximum sentence of life imprisonment. §§ 510.070(2) and 532.060.
As an initial matter, respondent asks us to vacate our grant of certio-rari because, in his view, the decision of the Kentucky Supreme Court rests on ‘“separate, adequate, and independent grounds.’” Brief for Respondent 50, quoting Michigan v. Long, 463 U. S. 1032, 1041 (1983). We decline to do so. In Michigan v. Long, we explained that “when... a state court decision fairly appears... to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion,” we shall assume that the state court believed that federal law compelled its conclusion. Id., at 1040-1041. In this case, the Kentucky Supreme Court consistently referred to respondent’s rights under the Sixth Amendment to the Federal Constitution as supporting its ruling. The court gave no indication that respondent’s rights under § 11 of the Bill of Rights of the Kentucky Constitution were distinct from, or broader than, respondent’s rights under the Sixth Amendment.
One noted commentator has pointed out that the main purpose of confrontation “is to secure for the opponent the opportunity of cross-examination” (emphasis omitted), 5 J. Wigmore, Evidence § 1395, p. 150 (Chadbourn rev. 1974) (Wigmore), with an additional advantage being that “the judge and the jury are enabled to obtain the elusive and incommunicable evidence of a witness’ deportment while testifying” (emphasis omitted). Id., at 153.
The Court sometimes has referred to a defendant’s right of confrontation as a “trial right.” See Barber v. Page, 390 U. S. 719, 725 (1968); see also California v. Green, 399 U. S. 149, 157 (1970) (“right to ‘confront’ the witness at the time of trial”). In Pennsylvania v. Ritchie, 480 U. S. 39 (1987), a plurality of the Court interpreted the Clause to mean that the right of confrontation is designed simply “to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination.” Id,., at 52. Thus, the plurality in Ritchie concluded that the constitutional error in Davis v. Alaska, 415 U. S. 308 (1974), was not that state law made certain juvenile criminal records confidential, but rather that the defense attorney had been precluded from asking questions about that criminal record at trial. 480 U. S., at 54. The personal view of the author of this opinion as to the Confrontation Clause is somewhat broader than that of the Ritchie plurality. Although he believes that “[tjhere are cases, perhaps most of them, where simple questioning of a witness will satisfy the purposes of cross-examination,” id., at 62 (Black-mun, J., concurring), he also believes that there are cases in which a state rule that precludes a defendant from access to information before trial may hinder that defendant’s opportunity for effective cross-examination at trial, and thus that such a rule equally may violate the Confrontation Clause. Id., at 63-65.
His differences with the plurality in Ritchie, however, are not implicated in this case. As is demonstrated below, respondent’s ability to engage in full cross-examination at trial was not affected by his exclusion from the competency hearing, nor was his opportunity to engage in effective cross-examination interfered with by his exclusion. Thus, under either the author’s view or that of the plurality in Ritchie, there was no Confrontation Clause violation in this ease.
Indeed, a competency hearing may take place in the middle of a trial, as did the hearing of E. T. See n. 6, supra.
Similar requirements for establishing competency to testify were set forth in Wheeler v. United States, 159 U. S. 523 (1895): “[T]here is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.” Id., at 524. See generally 2 Wigmore §§ 505-507.
Some States explicitly allow children to testify without requiring a prior competency qualification, while others simply provide that all persons, including children, are deemed competent unless otherwise limited by statute. See B. Battman & J. Bulkley, National Legal Resource Center for Child Advocacy and Protection, Protecting Child Victim/Witnesses: Sample Laws and Materials 43-44 (1986) (listing statutes) (Protecting Child Victim/Witnesses); Bulkley, Evidentiary and Procedural Trends in State Legislation and Other Emerging Legal Issues in Child Sexual Abuse Cases, 89 Dick. L. Rev. 645, 645 (1985). Some commentators have urged that children be allowed to testify without undergoing a prior competency qualification. See Protecting Child Victim/Witnesses, at 38 (proposing sample competency statute according children same rebuttable presumption of competency granted other witnesses); 2 Wigmore § 509, p. 719 (“it must be concluded that the sensible way is to put the child upon the stand to give testimony for what it may seem to be worth”).
A number of States, however, mandate by statute that a trial judge assess a child’s competency to testify on the basis of specified requirements. These usually include a determination that the child is capable of expression, is capable of understanding the duty to tell the truth, and is capable of receiving just impressions of the facts about which he or she is called to testify. See, e. g., Ariz. Rev. Stat. Ann. § 12-2202 (1982); Ga. Code Ann. §24-9-5 (1982); Idaho Code §9-202 (Supp. 1987); Ind. Code §34-1-14-5 (1986); Mich. Comp. Laws §600.2163 (1986); Minn. Stat. §595.02.Subd. 1(f) (Supp. 1987); N. Y. Crim. Proc. Law § 60.20 (McKinney 1981); Ohio Rev. Code Ann. §2317.01 (1981); see Protecting Child Victim/Witnesses, at 45 (listing statutes). The recent reforms in some States of presuming the competency of young children and allowing juries to assess credibility at trial is not called into question by this opinion. We are concerned solely with those States that retain competency qualification requirements.
See, e. g., Litzkuhn v. Clark, 85 Ariz. 355, 360, 339 P. 2d 389, 392 (1959) (“[I]t is the duty of the trial judge who has permitted a child to be sworn as a witness, at any time to change his mind upon due occasion therefor, to remove the child from the stand and to instruct the jury to disregard his testimony”); Davis v. Weber, 93 Ariz. 312, 317, 380 P. 2d 608, 611 (1963) (“The right of a trial judge to change his mind [regarding a child’s competency] can hardly be denied”).
California recently amended its statute governing the disqualification of incompetent witnesses to provide explicitly: “In any proceeding held outside the presence of a jury, a court may reserve challenges to the competency of a witness until the conclusion of the direct examination of that witness.” Cal. Evid. Code Ann. § 701(b) (West Supp. 1987).
See, e. g., Payne v. Commonwealth, 623 S. W. 2d 867, 878 (Ky. 1981) (review of children’s testimony at trial reveals that trial court’s ruling of competency was appropriate); Hendricks v. Commonwealth, 550 S. W. 2d 551, 554 (Ky. 1977) (“Not only did the trial judge determine that the children were competent to testify
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
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).
UNITED STATES of America, Plaintiff-Appellee, v. Alfonso QUINTANA, a/k/a Poncho Quintana, Defendant-Appellant.
No. 89-2132.
United States Court of Appeals, Tenth Circuit.
Sept. 20, 1990.
Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.
William L. Lutz, U.S. Atty., and Mary 'L. Higgins, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, and SETH and LOGAN, Circuit Judges.
SETH, Circuit Judge.
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); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
The defendant Alfonso Quintana, an alien, pled guilty to a charge of violation of 26 U.S.C. § 5861(d) and § 5871, for the possession of a sawed-off shotgun. Before being sentenced the defendant filed a Motion for Judicial Recommendation against Deportation apparently in reliance on 8 U.S.C. § 1251(b). The trial court during the sentencing proceedings denied the motion. In sentencing the court said:
“I take the position in most of these cases that the Immigration Department is in a far better position, far better, to determine as to whether or not an individual should be deported than is this court, and I leave it up to them in practically every instance. So your motion for recommendation against deportation will be denied.”
The trial judge did not state whether he did, or whether he could, “consider” the motion on its merits, and did not further describe his reasons for its denial.
The defendant on this appeal argues only as to the denial of the motion, and that the trial court should have “considered” it on the merits. It is urged that in not doing so the court abused its discretion.
We construe the trial court’s statement, above quoted, to mean that it was not necessary under the applicable statute that the merits of the motion be considered. The crime to which the defendant pled guilty is one listed in 8 U.S.C. § 1251(a)(14) as one which specifically provides for deportation as do others listed in § 1251(a).
Defendant, as mentioned, seeks a recommendation by the judge binding on the INS pursuant to § 1251(b) that he not be deported. Defendant urges a construction of the statute on deportations to permit the trial judge to make a recommendation against deportation although his crime is one not mentioned in the statute as subject to such a recommendation.
In 8 U.S.C. § 1251(a)(4) it is provided that on order of the Attorney General an alien may be deported who is convicted of a crime involving moral turpitude (with certain conditions). The statute in another subsection, § 1251(a)(14), provides for deportation if convicted, as was appellant, for possessing or carrying a sawed-off shotgun.
The section sought to be applied by the defendant, and which provides for a binding recommendation by the judge against deportation, is § 1251(b). This subsection states in part:
“The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes [involving moral turpitude] shall not apply ... if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence ... a recommendation to the Attorney General that such alien not be de-ported_ The provisions of this subsection shall not apply in the case of any alien who is charged with being deporta-ble ... under subsection (a)(ll) of this section [drug offenses].”
Thus the subsection providing for a recommendation includes specifically only crimes involving moral turpitude. It also specifically excludes only drug offenses. The defendant does not seek to be included in the moral turpitude category, but urges that the section by its exclusion of drug offenses is intended to thereby include all other deportable offenses listed in § 1251(a). Hence, the trial judge should have considered on the merits his motion for a recommendation in sentencing for the sawed-off shotgun offense.
Section 1251(a)(4) is the only subsection listing deportable crimes which is referred to in § 1251(b) authorizing the recommendation. The construction of the relationship between the two subsections must start with the proposition that the offenses in § 1251(a)(4) are the only ones subject to a recommendation. They are the only ones mentioned affirmatively in the statute.
The exclusion only of drug offenses, added in 1956 as the last sentence of § 1251(b), has no legislative history other than Congress’ displeasure with decisions which permitted recommendations in drug offense cases. Thus with the lack of any vagueness or uncertainty created by the addition of the exception as to drugs the original clarity remained. There is presented no basis for a construction of the subsection to include all other deportable offenses. One group — crimes involving moral turpitude — was the only subject of the original subsection with the detailed procedure for a recommendation as to it. To this the drug exception was added.
Statutes relating to deportation of aliens are liberally construed in favor of the alien concerned as the deportation penalty can be harsh. Fong Haw Tan v. Phe lan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948). However, the application of this doctrine in the case before us does not lead to the construction sought by appellant.
The Ninth Circuit in Jew Ten v. I.N.S., 307 F.2d 832 (1962), considered the same argument as here advanced by the appellant including the impact of the 1956 exclusion of drug offenses. The court there reached the same conclusion as herein expressed — the recommendation provision is applicable only to offenses described in § 1251(a)(4) and no other deportable offenses. See also Oviawe v. I.N.S., 853 F.2d 1428 (7th Cir.1988); Delgado-Ckavez v. I.N.S., 765 F.2d 868 (9th Cir.1985).
In United States v. Gonzales, 582 F.2d 1162 (7th Cir.1978), the court upheld the trial court’s refusal to consider a recommendation where the offense was not within § 1251(a)(4). There the offense was drug related and thus, of course, expressly excluded, but the issue as to whether the recommendation need be considered at all by the trial judge would there be the same as in the case before us as to non-included offenses.
We have quoted above the words of the trial judge at sentencing on this issue, and again, we construe it as a statement that the suggestion that a recommendation be made did not need to be considered on its merits.
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:
|
sc_petitioner
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
VIRGINIA v. HICKS
No. 02-371.
Argued April 30, 2003
Decided June 16, 2003
Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 124.
William H. Hurd, State Solicitor of Virginia, argued the cause for petitioner. With him on the briefs were Jerry W. Kilgore, Attorney General, Maureen Riley Matsen and William E. Thro, Deputy State Solicitors, and Christy A. McCormick and A. Cameron O’Brion, Assistant Attorneys General.
Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorneys General Chertoff and McCallum, James A. Feld-man, Michael Jay Singer, and Stephanie R. Marcus.
Steven D. Benjamin argued the cause for respondent. With him on the brief were Amanda Frost, Brian Wolfman, and Alan B. Morrison.
Briefs of amici curiae urging reversal were filed for the City of Richmond et al. by William G. Broaddus, Jonathan T. Blank, William H. Baxter II, Godfrey T. Pinn, Jr., and John A. Rupp; for the Council of Large Public Housing Authorities et al. by Robert A. Graham, William F. Maher, and Carl A, S. Coan III; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the National League of Cities et al. by Richard Ruda and James I. Crowley.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Mark J. Lopez, Steven R. Shapiro, Rebecca Glenberg, and David M. Porter; for the DKT Liberty Project by Julia M. Carpenter; for the Richmond Tenants Organization et al. by Catherine M. Bishop; for the Thomas Jefferson Center for the Protection of Free Expression by J. Joshua Wheeler and Robert M. O’Neil; and for Watchtower Bible and Tract Society of New York, Inc., by Paul D. Polidoro and Philip Brumley.
A brief of amici curiae was filed for the State of Alabama et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, James R. Lay-ton, State Solicitor, Erwin O. Switzer III, and Michele L. Jackson, Assistant Attorney General of Alabama, and by the Attorneys General for their respective jurisdictions as follows: Gregg D. Renkes of Alaska, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Charlie J. Crist, Jr., of Florida, Mike Moore of Mississippi, Jim Petro of Ohio, W A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, An-abelle Rodriguez of Puerto Rico, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, and Mark L. Shurtleff of Utah.
Justice Scalia
delivered the opinion of the Court.
The issue presented in this case is whether the Richmond Redevelopment and Housing Authority’s trespass policy is facially invalid under the First Amendment’s overbreadth doctrine.
H-l
The Richmond Redevelopment and Housing Authority (RRHA) owns and operates a housing development for low-income residents called Whitcomb Court. Until June 23, 1997, the city of Richmond owned the streets within Whit-comb Court. The city council decided, however, to “privatize” these streets in an effort to combat rampant crime and drug dealing in Whitcomb Court — much of it committed and conducted by nonresidents. The council enacted Ordinance No. 97-181-197, which provided, in part:
“‘§1. That Carmine Street, Bethel Street, Ambrose Street, Deforrest Street, the 2100-2300 Block of Sussex Street and the 2700-2800 Block of Magnolia Street, in Whitcomb Court... be and are hereby closed to public use and travel and abandoned as streets of the City of Richmond.’ ” App. to Pet. for Cert. 93-94.
The city then conveyed these streets by a recorded deed to the RRHA (which is a political subdivision of the Commonwealth of Virginia). This deed required the RRHA to “ ‘give the appearance that the closed street, particularly at the entrances, are no longer public streets and that they are in fact private streets.’” Id., at 95. To this end, the RRHA posted red-and-white signs on each apartment building — and every 100 feet along the streets — of Whitcomb Court, which state: ‘“NO TRESPASSING^ PRIVATE PROPERTY[.] YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA. UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROSECUTION. UNAUTHORIZED VEHICLES WILL BE TOWED AT OWNERS EXPENSE.’” Pet. for Cert. 5. The RRHA also enacted a policy authorizing the Richmond police
“‘to serve notice, either orally or in writing, to any person who is found on Richmond Redevelopment and Housing Authority property when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises. Such notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and Housing Authority authorizes Richmond Police Department officers to arrest any person for trespassing after such person, having been duly notified, either stays upon or returns to Richmond Redevelopment and Housing Authority property.’” App. to Pet. for Cert. 98-99 (emphasis added).
Persons who trespass after being notified not to return are subject to prosecution under Va. Code Ann. § 18.2-119 (1996):
“If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof ... he shall be guilty of a Class 1 misdemeanor.”
B
Respondent Kevin Hicks, a nonresident of Whitcomb Court, has been convicted on two prior occasions of trespassing there and once of damaging property there. Those convictions are not at issue in this case. While the property-damage charge was pending, the RRHA gave Hicks written notice barring him from Whitcomb Court, and Hicks signed this notice in the presence of a police officer. Twice after receiving this notice Hicks asked for permission to return; twice the Whitcomb Court housing manager said “no.” That did not stop Hicks; in January 1999 he again trespassed at Whitcomb Court and was arrested and convicted under §18.2-119.
At trial, Hicks maintained that the RRHA’s policy limiting access to Whitcomb Court was both unconstitutionally over-broad and void for vagueness. On appeal of his conviction, a three-judge panel of the Court of Appeals of Virginia initially rejected Hicks’ contentions, but the en banc Court of Appeals reversed. That court held that the streets of Whit-comb Court were a “traditional public forum,” notwithstanding the city ordinance declaring them closed, and vacated Hicks’ conviction on the ground that RRHA’s policy violated the First Amendment. 36 Va. App. 49, 56, 548 S. E. 2d 249, 253 (2001). The Virginia Supreme Court affirmed the en banc Court of Appeals, but for different reasons. Without deciding whether the streets of Whitcomb Court were a public forum, the Virginia Supreme Court concluded that the RRHA policy was unconstitutionally overbroad. While acknowledging that the policy was “designed to punish activities that are not protected by the First Amendment,” 264 Va. 48, 58, 568 S. E. 2d 674, 680 (2002), the court held that “the policy also prohibits speech and conduct that are clearly protected by the First Amendment,” ibid. The court found the policy defective because it vested too much discretion in Whitcomb Court’s manager to determine whether an individual’s presence at Whitcomb Court is “authorized,” allowing her to “prohibit speech that she finds personally distasteful or offensive even though such speech may be protected by the First Amendment.” Id., at 60, 563 S. E. 2d, at 680-681. We granted the Commonwealth’s petition for certiorari. 537 U. S. 1169 (2003).
II
A
Hicks does not contend that he was engaged in constitutionally protected conduct when arrested; nor does he challenge the validity of the trespass statute under which he was convicted. Instead he claims that the RRHA policy barring him from Whitcomb Court is overbroad under the First Amendment, and cannot be applied to him — or anyone else. The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. See Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984). The showing that a law punishes a “substantial” amount of protected free speech, “judged in relation to the statute’s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973), suffices to invalidate all enforcement of that law, “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression,” id., at 613. See also Virginia v. Black, 538 U. S. 343, 367 (2003); New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982); Dombrowski v. Pfister, 380 U. S. 479, 491, and n. 7, 497 (1965).
We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or “chill” constitutionally protected speech — especially when the overbroad statute imposes criminal sanctions. See Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 634 (1980); Bates v. State Bar of Ariz., 433 U. S. 350, 380 (1977); NAACP v. Button, 371 U. S. 415, 433 (1963). Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, Dombrowski, supra, at 486-487—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech.
As we noted in Broadrick, however, there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law — particularly a law that reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.” 413 U. S., at 615. For there are substantial social costs created by the over-breadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do not swallow the social benefits of declaring a law “overbroad,” we have insisted that a law’s application to protected speech be “substantial,” not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, ibid., before applying the “strong medicine” of overbreadth invalidation, id., at 613.
B
Petitioner asks this Court to impose restrictions on “the use of overbreadth standing,” limiting the availability of facial overbreadth challenges to those whose own conduct involved some sort of expressive activity. Brief for Petitioner 13, 24-31. The United States as amicus curiae makes the same proposal, Brief for United States as Amicus Curiae 14-17, and urges that Hicks’ facial challenge to the RRHA trespass policy “should not have been entertained,” id., at 10. The problem with these proposals is that we are reviewing here the decision of a State Supreme Court; our standing rules limit only the federal courts’ jurisdiction over certain claims. “[S]tate courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law.” ASARCO Inc. v. Radish, 490 U. S. 605, 617 (1989). Whether Virginia’s courts should have entertained this overbreadth challenge is entirely a matter of state law.
This Court may, however, review the Virginia Supreme Court’s holding that the RRHA policy violates the First Amendment. We may examine, in particular, whether the claimed overbreadth in the RRHA policy is sufficiently “substantial” to produce facial invalidity These questions involve not standing, but “the determination of [a] First Amendment challenge on the merits.” Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 958-959 (1984). Because it is the Commonwealth of Virginia, not Hicks, that has invoked the authority of the federal courts by petitioning for a writ of certiorari, our jurisdiction to review the First Amendment merits question is clear under ASARCO, 490 U. S., at 617-618. The Commonwealth has suffered, as a consequence of the Virginia Supreme Court’s “final judgment altering tangible legal rights,” id., at 619, an actual injury in fact — inability to prosecute Hicks for trespass — that is sufficiently “distinct and palpable” to confer standing under Article III, Warth v. Seldin, 422 U. S. 490, 501 (1975). We accordingly proceed to that merits inquiry, leaving for another day the question whether our ordinary rule that a litigant may not rest a claim to relief on the legal rights or interests of third parties, see Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474 (1982), would exclude a case such as this from initiation in federal court.
C
The Virginia Supreme Court found that the RRHA policy allowed Gloria S. Rogers, the manager of Whitcomb Court, to exercise “unfettered discretion” in determining who may use the RRHA’s property. 264 Va., at 59, 563 S. E. 2d, at 680. Specifically, the court faulted an “unwritten” rule that persons wishing to hand out flyers on the sidewalks of Whit-comb Court need to obtain Rogers’ permission. Ibid. This unwritten portion of the RRHA policy, the court concluded, unconstitutionally allows Rogers to “prohibit speech that she finds personally distasteful or offensive.” Id., at 60, 563 S. E. 2d, at 681.
Hicks, of course, was not arrested for leafleting or demonstrating without permission. He violated the RRHA’s written rule that persons who receive a barment notice must not return to RRHA property. The Virginia Supreme Court, based on its objection to the “unwritten” requirement that demonstrators and leafleters obtain advance permission, declared the entire RRHA trespass policy overbroad and void — including the written rule that those who return after receiving a barment notice are subject to arrest. Whether these provisions are severable is of course a matter of state law, see Leavitt v. Jane L., 518 U. S. 137, 139 (1996) (per curiam), and the Virginia Supreme Court has implicitly decided that they are not — that all components of the RRHA trespass policy must stand or fall together. It could not properly decree that they fall by reason of the overbreadth doctrine, however, unless the trespass policy, taken as a whole, is substantially overbroad judged in relation to its plainly legitimate sweep. See Broadrick, 413 U. S., at 615. The overbreadth claimant bears the burden of demonstrating, “from the text of [the law] and from actual fact,” that substantial overbreadth exists. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 14 (1988).
Hicks has not made such a showing with regard to the RRHA policy taken as a whole — even assuming, arguendo, the unlawfulness of the policy’s, “unwritten” rule that demonstrating and leafleting at Whitcomb Court require permission from Gloria Rogers. Consider the “no-return” notice served on nonresidents who have no “legitimate business or social purpose” in Whitcomb Court: Hicks has failed to demonstrate that this notice would even be given to anyone engaged in constitutionally protected speech. Gloria Rogers testified that leafleting and demonstrations are permitted at Whitcomb Court, so long as permission is obtained in advance. App. to Pet. for Cert. 100-102. Thus, “legitimate business or social purpose” evidently includes leafleting and demonstrating; otherwise, Rogers would lack authority to permit those activities on RRHA property. Hicks has failed to demonstrate that any First Amendment activity falls outside the “legitimate business or social purpose[s]” that permit entry. As far as appears, until one receives a barment notice, entering for a First Amendment purpose is not a trespass.
As for the written provision authorizing the police to arrest those who return to Whitcomb Court after receiving a barment notice: That certainly does not violate the First Amendment as applied to persons whose postnotice entry is not for the purpose of engaging in constitutionally protected speech. And Hicks has not even established that it would violate the First Amendment as applied to persons whose postnotice entry is for that purpose. Even assuming the streets of Whitcomb Court are a public forum, the notice-barment rule subjects to arrest those who reenter after trespassing and after being warned not to return — regardless of whether, upon their return, they seek to engage in speech. Neither the basis for the barment sanction (the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First Amendment. Punishing its violation by a person who wishes to engage in free speech no more implicates the First Amendment than would the punishment of a person who has (pursuant to lawful regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to take part in a political demonstration. Here, as there, it is Hicks’ nonexpressive conduct— his entry in violation of the notice-barment rule — not his speech, for which he is punished as a trespasser.
Most importantly, both the notice-barment rule and the “legitimate business or social purpose” rule apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression. The rules apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer playérs, and others not engaged in constitutionally protected conduct — a group that would seemingly far outnumber First Amendment speakers. Even assuming invalidity of the “unwritten” rule that requires leafleters and demonstrators to obtain advance permission from Gloria Rogers, Hicks has not shown, based on the record in this ease, that the RRHA trespass policy as a whole prohibits a “substantial” amount of protected speech in relation to its many legitimate applications. That is not surprising, since the overbreadth doctrine’s concern with “chilling” protected speech “attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct.” Broadrick, supra, at 615. Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating). Applications of the RRHA policy that violate the First Amendment can still be remedied through as-applied litigation, but the Virginia Supreme Court should not have used the “strong medicine” of overbreadth to invalidate the entire RRHA trespass policy. Whether respondent may challenge his conviction on other grounds — and whether those claims have been properly preserved — are issues we leave open on remand.
* * *
For these reasons, we reverse the judgment of the Virginia Supreme Court and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
The letter stated, in part: ‘“This letter serves to inform you that effective immediately you are not welcome on Richmond Redevelopment and Housing Authority’s Whitcomb Court or any Richmond Redevelopment and Housing Authority property. This letter is an official notice informing you that you are not to trespass on RRHA property. If you are seen or caught on the premises, you will be subject to arrest by the police.’ ” 264 Va. 48, 53, 563 S. E. 2d 674, 677 (2002).
As noted, the Virginia Supreme Court held that invalidity of the RRHA policy entitled Hicks to vacatur of his conviction under the unquestionably valid trespass statute, which Hicks unquestionably violated. We do not reach the question whether federal law compels this result.
Contrary to Justice Souter's suggestion, post, at 124 (concurring opinion), the Supreme Court of Virginia did not focus solely on the “unwritten” element of the RRHA trespass policy “[i]n comparing invalid applications against valid ones for purposes of the First Amendment over-breadth doctrine.” The fact is that its opinion contains no “comparing” of valid and invalid applications whatever; the proportionality aspect of our overbreadth doctrine is simply ignored. Since, however, the Virginia Supreme Court struck down the entire RRHA trespass policy, the question presented here is whether the entire policy is substantially overbroad.
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_appbus
|
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 "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. 5.96 ACRES OF LAND, more or less, situated in Skamania County, State of Washington, Knappton Towboat Company, a corporation, and the State of Washington, Department of Natural Resources, Defendants-Appellants.
Nos. 77-1557, 77-2215.
United States Court of Appeals, Ninth Circuit.
March 22, 1979.
J. Lawrence Coniff, Jr., Asst. Atty. Gen. (argued), Olympia, Wash., Robert M. Schaefer (argued), Vancouver, Wash., for defendants-appellants.
Jacques B. Gelin, Atty. (argued), Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge.
The Honorable Robert M. Takasugi, United States District Judge for the Central District of California, sitting by designation.
J. BLAINE ANDERSON, Circuit Judge:
To expedite completion of the Bonneville Second Powerhouse Project, the United States filed this action seeking flowage easements and condemnation of certain lands adjacent to the Columbia River. Appellant Knappton Towboat Company (Knappton) leases aquatic lands from the State of Washington (the State). Pursuant to these leases, Knappton has constructed pilings, dolphins, and dikes in and along the waters near the juncture of the Wind and Columbia Rivers. The district court granted the United States partial summary judgment against Knappton, ruling that no compensation was due for damages that the proposed enlargement of the existing dam would cause to the structures built by Knappton. The court reasoned that since these structures were below the river’s ordinary high-water mark and the permits issued by the Army Corps of Engineers authorizing their construction were revocable at will, the United States’ dominant navigational servitude precluded Knappton’s claim for compensation.
The district judge certified an interlocutory appeal. 28 U.S.C. § 1292(b). We affirm the judgment against Knappton and dismiss the State’s appeal.
I. FACTS
For a small annual rent the State of Washington leases to Knappton aquatic lands located immediately upstream from the Bonneville Dam. Knappton built various pilings, dolphins, and dikes on the leased lands for timber storage. Completion of the Second Powerhouse Project will raise the water level behind the dam thereby weakening the structures Knappton has already built. To preserve them, Knappton must rebuild the structures at considerable expense.
Knappton contends this constitutes a compensable taking of private property under the fifth amendment. The State’s claimed loss is predicated on an anticipated decrease in rental value of its aquatic lands.
II. PROCEEDINGS
The United States filed its Complaint in December 1974. The State and Knappton filed Notices of Appearance in January 1975. The United States moved for partial summary judgment in July 1976, but limited its motion to Knappton's claim. Both Knappton and the State filed memoranda in opposition to the motion. The United States then filed a supplemental memorandum in support of partial summary judgment and again addressed its argument only to Knappton’s claim for compensation for injury to the physical structures.
In a Memorandum and Order filed November 19, 1976, the district court granted partial summary judgment, ruling that the United States had established, as a matter of law, that the Second Powerhouse Project served a navigational purpose, and therefore no compensation was due. The court excluded from its ruling the State’s claim for compensation:
“The court would emphasize that the decision reached here is limited to the facts of this case. The collateral issue raised by the State of Washington, in a case not part of this motion and relating to the river bottom, has not been considered.” (R. 165)
The Order also specified that the court would certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), “should either party so desire.”
Knappton moved the court for certification, and the court entered an order certifying this appeal (R. 167). Knappton then filed a Notice of Appeal and a Cost Bond on Appeal (R. 168-69). The State did not file a notice of appeal or a cost bond, nor did it join in Knappton’s motion for certification.
Both Knappton and the State petitioned this court for leave to file an interlocutory appeal. Neither Petition clearly explains the procedural background of the State’s attempt to appeal. A motions panel of this court granted both Knappton and the State leave to appeal. All parties then submitted briefs and participated in oral argument.
III. APPEAL OF THE STATE OF WASHINGTON
Although a motions panel did grant the State’s Petition, we are free to reconsider its standing on appeal. United States v. Emens, 565 F.2d 1142, 1144 n.2 (CA 9 1977); see United States v. Patrick, 532 F.2d 142, 147 (CA 9 1976).
The State argues that the district court’s ruling that the Bonneville Second Powerhouse Project has a navigational purpose will effectively control the outcome of its claim for compensation. Therefore, the State concludes, it is a proper party to this interlocutory appeal. The district judge apparently disagreed: he specifically reserved for separate consideration the effect of the navigational servitude on the State’s claim. Although the State’s argument is logical, it is premised on the belief that the district court’s ruling and this appeal will establish the navigational servitude as the law of the case.
For reasons discussed infra, we do not reach the navigational servitude issue in considering the appeal of Knappton. We decide Knappton’s appeal on another ground. Thus, the State and Knappton (with respect to other claims for compensation) will be unaffected by this appeal, and they may further develop a factual record and address further arguments to the district court should the United States again assert the navigational servitude as a bar to just compensation.
The appeal of the State of Washington is dismissed. See Libby, McNeill, and Libby v. City National Bank, 592 F.2d 504, slip op. 3918 at 3926, # 75-3218 (CA 9, Nov. 28, 1978) (“A party may appeal only to protect its own interests, and not those of a coparty.”) Insofar as its briefs are pertinent to the issues raised by Knappton, we treat the State as amicus curiae.
IV. THE APPEAL OF KNAPPTON TOWBOAT CO.
Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, expressly forbids the construction of any structure in navigable waters unless authorized by the Secretary of the Army. The United States alleges that the structures built by Knappton were authorized by permits that are revocable at will and therefore Knappton has no property interest cognizable under the fifth amendment.
Knappton points out that the permits are not included in the record. Copies are included in the record, and Knappton has never alleged that permits were not obtained or that the copies inaccurately or incompletely state the attendant conditions. In fact, Knappton’s Memorandum in Response to plaintiff’s Motion for Summary Judgment (R. 38) implicitly admits that permits were obtained. Even in its briefs to this court, Knappton has not denied that permits were obtained. Despite the asserted deficiency in the record, Knappton’s attempt to raise this phantom issue of fact comes too late.
Moreover, if no permits had been obtained, the structures would be unlawful, and their removal would not require compensation.
In the alternative, Knappton contends that issuance of the permits cannot be conditioned on waiver of its fifth amendment right to compensation for damages to the structures. There are two variants to Knappton’s contention, one directed to each of the two pertinent permit clauses (see n.4, supra).
A.
The first variant is that the permits grant Knappton a property right for which it must be compensated, unless the navigational servitude applies. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (six justices held procedural due process criteria applicable in determining whether good cause existed for termination of federal employee). This misconstrues the effect of the permit: the permit granted Knappton a mere license to build and maintain these structures.
The permits expressly negate the conclusion that the permit holder received any property right. (E. g., “[T]his instrument does not convey any property rights either in real estate or material.” R. 84.) In United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913), the power company had built similar structures pursuant to a revocable permit. The Court denied any compensation to the power company:
“That it did not [by reason of the permit] acquire any right to maintain these constructions in the river [any] longer than the government should continue the license needs no argument.” 229 U.S. at 68, 33 S.Ct. at 674.
This court has held that comparable permits issued for maintaining outdoor signs along the nation’s highways do not require compensation when revoked. In Ryan Outdoor Advertising, Inc. v. United States, 559 F.2d 554 (CA 9 1977), the panel concluded that once the permits were revoked, there was no longer any interest to be compensated. We find no reason to distinguish these cases.
Although these permits were not revoked, we agree with the district court that the effect was identical:
“The direct language of the permit itself is evidence that [Knappton] knew the government could require removal . . . and that it was acquiring no property interest. It would be an anomaly to argue that the government can require the removal of structures within the river without payment of compensation, yet damage done to the same structures by the exercise of the same inherent rights must be compensated.” R. 164-65.
Cf. United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973) (revocable grazing permits could not be considered in determining value of ranch land though permits had not been revoked). This court has impliedly recognized this fact. In a condemnation action, this court rejected evidence of the land’s value as a port site even though permits had been obtained and may have actually been used, and never revoked, to construct improvements on a navigable river. United States v. 87.30 Acres of Land, 430 F.2d 1130 (CA 9 1970). The permits were revocable at will. We agree with their conclusion:
“This type of permit is not such a vested property right as, on termination, requires payment of just compensation under the Fifth Amendment.” 430 F.2d at 1133.
Even if Knappton’s conclusion that the permits are conditioned on waiver of its right to compensation is correct, the Supreme Court’s analysis in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), indicates the condition is constitutional. The Court upheld the validity of a condition in a dam license that allowed the United States to acquire the dam in the future for less than fair market value. The Court also stated that the licensee could be required to convey existing riparian rights to the United States at a reduced price in order to secure the right to build a dam, even though payment of full value would be required for these same rights if the government built the dam itself.
B.
Knappton next contends that the exculpatory clause for damages caused by future government operations is invalid.
This court has implicitly rejected the same argument in Pacific Northwest Bell Telephone Co. v. United States, 549 F.2d 1313 (CA 9), cert. denied, 434 U.S. 820, 98 S.Ct. 62, 54 L.Ed.2d 76 (1977) (hereinafter Bell). In that case, the permittee contended the condition conflicted with the waiver of sovereign immunity contained in the Public Vessels Act and the Suits in Admiralty Act. Although the argument here is couched in constitutional and public policy terms, the court’s reasoning is nonetheless applicable.
In Bell, the telephone company had been granted a permit to lay a cable underneath Lake Washington. The permit exculpated the United States from liability for damages that might be caused to the cable by future government operations. While setting buoys for a regatta, a Coast Guard vessel fouled the cable. The telephone company sued the United States for damages; the theory of liability was negligence.
The court upheld the validity of the exculpatory clause. The telephone company had asserted that the condition violated the policy embodied in the statutes waiving sovereign immunity by unfairly favoring the United States solely because of its sovereignty. The court responded:
“This does not serve to place the United States in a position more favorable than that which a private person would occupy . . .. The private person hypothesized in these circumstances is the owner of land from whom an easement is sought by one having no power to compel a grant or demand passage. The question is whether such a private person, in his power to attach conditions to an easement he was not otherwise obliged to grant, is less favored in the law than the United States is here held to be. We do not perceive that he is.
“Finally, we note that holding clause (g) to be unenforceable would do more than relieve Bell of a condition it regards as improper. It would, in effect, operate to render persons incompetent to secure desired benefits by way of contract, since they could no longer effectively commit themselves to conditions they may be entirely willing to assume in order to obtain their permit.”
549 F.2d at 1317.
The State of California argues that the court’s analogy is inapposite because the conditions, in both instances, were imposed, not bargained for at arm’s length. This argument, however, denies the United States the power to place reasonable conditions on private use of public waterways in the same manner as private persons may condition use of their real or personal property. Actually, the government is more constrained. Unlike a private individual, government actions must reasonably further a valid public purpose. See United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 (1926); Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126 (1900). An individual property owner may refuse to grant an easement or license as he pleases or condition the grant on any lawful grounds.
In Boston Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891 (CA 1 1970), the permittee argued that the exculpatory clause violated public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso holds that a tugboat company cannot contractually insulate itself from liability for damages caused by its own negligence when towing another vessel. The court in Boston Edison distinguished Bisso :
“Finally, Edison argues that Clause (g) should be struck down as violative of public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso, however, enunciates a rule of contract law and arises in a context in which the Supreme Court ruled, in substance, that where two parties to a contract are of unequal bargaining power it is against public policy for the stronger of the two parties to force the weaker to accept a clause exculpating the stronger from liability for its own negligence.
“The instant situation is totally distinguishable from Bisso in that Clause (g) does not appear in a contract. The permit in question was neither negotiated for nor sold, but was issued by the Secretary of the Army acting under discretionary authority clearly conferred on him by 33 U.S.C. sec. 1 et seq. If the insertion of such a clause under authority given to the Secretary be now thought to be against public policy, the entity enunciating that a policy clearly contained in a statutory grant of power to the Secretary is no longer held in favor should be the Congress and not this court.”
423 F.2d at 897. We also note that absent here is the special relationship between a tow for hire and a helpless vessel that the court expressly relied on in Bisso. 9 349 U.S. at 91, 75 S.Ct. 629. Compare The Steamer Syracuse, 79 U.S. (12 Wall.) 167, 20 L.Ed. 382 (1870) with Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932).
We find the panel’s analogy in Bell apposite and follow its reasoning. We hold that “[t]he effect of the condition here imposed is simply to place upon the permittee the risk of damage to the permitted structure.” Id. at 1316. Irrespective of the condition’s validity in a contract setting, it is valid when the United States is discharging its “special duties and responsibilities” over navigable waters.
The State of California also asserts that Bell should be distinguished because Bell relies on the fact that the Coast Guard was serving a navigational purpose. We disagree. The opinion expressly disavows reliance on the United States’ navigational servitude. 549 F.2d at 1317 n.5. Both the permit here and the one in Bell conditioned the license on the permittee assuming the risk of damage caused by government actions in the public interest.
Finally, the State of California invites us to distinguish Bell on the ground that Bell involved a tort action whereas here the government action involves an alleged taking of private property without compensation. We decline. In Bell, the damage was caused by the government’s negligence; by definition, then, the damage was not necessary to further the public interest. Here, the damage was an unavoidable consequence of a project undertaken to further the public good. The policy supporting insulating the government from liability is therefore much stronger in the case at bar.
Finally, we emphasize that, although the district court relied primarily on the navigational servitude, our decision is in keeping with its conclusion regarding the effect of the permits. The question whether this project serves a navigational purpose may be considered by the district court when ruling on the State’s claim for compensation. This, again, is in keeping with the district court’s initial ruling.
The appeal of the State of Washington is DISMISSED. The judgment is AFFIRMED, and the case is REMANDED for further proceedings.
. For purposes of this appeal, we assume the alleged damage could, in other circumstances, constitute a taking of private property. Thus we do not decide whether the anticipated rise in pool level and consequent weakening of these structures is a sufficient encroachment on private property to constitute a “taking” under the fifth amendment. Similarly, we do not decide whether diminution in rental value can constitute a “taking.” Cf. Gibson v. United States, 166 U.S. 269, 275-76, 17 S.Ct. 578, 41 L.Ed. 996 (1897) (alternative ground); Brothers v. United States, - F.2d -, slip op. 459, # 77-3044 (C.A.9, Feb. 8, 1979) (“there is a taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property.”)
. F.R.A.P. Rule 5, 28 U.S.C.A., provides:
“Appeals by Permission Under 28 U.S.C. § 1292(b)
(d) If permission to appeal is granted the appellant shall file a bond for costs .
A notice of appeal need not be filed.
. Ҥ 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”
33 U.S.C. § 403.
. “[Tjhis permit may be revoked by authority of the Secretary of the Army ... if the Secretary determines that, under the existing circumstances, such action is required in the public interest.” Copy of Permit, R. 84.
The permits also contained an exculpatory clause:
“(j) [T]he United States shall in no way be liable for any damage to any structure or work authorized herein which may be caused by or result from future operations undertaken by the Government in the public interest.” Copy of Permit, R. 85.
Although Knappton contends the present project does not serve a navigational purpose, it does not contend that the project fails to serve a legitimate public interest. Knappton does contend that the Secretary has expanded his authority by changing the wording of these conditions. We have examined the wording in all the permits submitted to the court, including the ones attached to Knappton’s petition for leave to file this appeal and in the regulations promulgated by the Secretary of the Army. In light of the facts and issues raised in this appeal, the variations in wording are immaterial. In each, the government’s power to revoke and its exculpation from liability are clearly stated. See n.6, infra.
. This case also puts to rest Knappton’s contention that conditions unrelated to navigation are invalid per se. See also Zabel v. Tabb, 430 F.2d 199 (CA 5 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971) (Secretary must consider effects other than navigation and may refuse a permit under the Rivers and Harbor Act on conservation grounds). And Knappton’s assertion that the Secretary exceeded his authority in imposing these conditions is unsupported by case law. See id. at 207.
. The condition reviewed in Bell was differently worded, but essentially the same as the condition in the permits issued to Knappton:
“That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the Government for the conservation or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from any such damage.”
549 F.2d at 1315. Compare 33 C.F.R. § 209.-130(c)(2)(vii) (1974) with 38 Fed.Reg. 12217 (1973) and 33 C.F.R. § 209.120(g) (1976).
. We granted the State of California leave to file a brief as amicus curiae.
. Any special relationship that exists between the United States and potential users of the nation’s waterways is assured by the requirement that the United States must always act reasonably and in the public interest.
. The district judge in Bell had found that the Coast Guard was negligent per se. 549 F.2d at 1316.
. In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), the court grounded its decision on the need:
"(I) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” (footnote omitted) 349 U.S. at 91, 75 S.Ct. at 632, 633.
Upholding the validity of the instant clause under these facts jeopardizes neither of these policies. As noted in the text, negligence is not involved. There can be no overreaching in bargaining when, as here, the government grants a gratuitous license.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_circuit
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED BONDING INSURANCE COMPANY, Plaintiff-Appellee, v. Joseph B. MOHR and Marilyn Mohr, Defendants-Appellants.
No. 281, Docket 30927.
United States Court of Appeals Second Circuit.
Argued Dec. 16, 1966.
Decided Dec. 30, 1966.
W. Harvey Mayer, New York City (Friedlander, Gaines, Ruttenberg & Goetz, New York City, on the brief), for appellee.
Joseph Zalk, New York City (Zalk, Rubel & Perret, New York City, on the brief), for appellants.
Before WATERMAN, MOORE and KAUFMAN, Circuit Judges.
PER CURIAM:
Appellants Joseph and Marilyn (Joseph’s wife) Mohr signed an indemnification agreement on July 3, 1961 agreeing to indemnify appellee United Bonding Insurance Company (United Bonding) for any loss it might incur in connection with its issuance of performance bonds guarantying the performance of the Pelican Building Company (Pelican) on certain construction contracts. Siebert Mohr (Joseph’s brother), a principal in Pelican, had requested his brother and sister-in-law to sign the indemnification agreement as United Bonding was unwilling to issue performance bonds to Pelican in the absence of the guaranty of a financially responsible person — a quality lacking in Siebert. Pelican defaulted on its performance of its construction contracts and United Bonding expended over $8,000 on its performance bonds to have the construction finished plus additional sums for counsel and inspection fees. United Bonding seeks to recover these amounts and its counsel fees incurred in prosecuting this action on the indemnification agreement. Judgment has been entered in its favor.
Appellants argue that they were sureties, that their obligation was governed strictly by the Pelican contract, that Pelican altered the terms of that contract without their consent by purchasing some additional land after the issuance of the performance bonds and that they, therefore, were discharged on their obligation under strict suretyship principles. Appellants’ contention must fail. First, appellants overlook the distinction between a suretyship contract and a contract of indemnity. As appellants agreed to save United Bonding harmless on the future issuance of bonds, appellants were indemnitors rather than sureties. Since the Pelican contract was not in existence when the indemnification agreement was signed, a minor change in the Pelican contract would not void the indemnification agreement. Second, even if appellants were sureties, they have failed to sustain their burden of proving that the Pelican contract was altered. Appellants showed at trial that Pelican obtained the deed to certain land after the Pelican agreement was signed. However, Pelican had actually negotiated to buy the property prior to the Pelican contract.
Appellants’ contention that United Bonding never proved that Pelican was in default is without merit in view of the stipulation annexed to the pre-trial order.
Appellants’ claim that the counsel fees allowed were excessive is refuted by the facts, the nature of the services performed and the results achieved.
Judgment affirmed.
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_geniss
|
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. 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".
TANKARD et al. v. MITCHELL, Secretary of Labor.
No. 13766.
United States Court of Appeals, Ninth Circuit.
Aug. 11, 1954.
Robert M. Devitt, Long Beach, Cal., for appellants.
Stuart Rothman, Sol., Jeter S. Ray, Acting Sol., Bessie Margolin, Asst. Sol., William A. Lowe, Harold S. Saxe, Washington, D. C., Kenneth C. Robertson, Attys., Dept, of Labor, San Francisco, Cal., George E. Duemler, Atty., Dept, of Labor, Los Angeles, Cal., for appellee.
Before STEPHENS and CHAMBERS, Circuit Judges, and WALSH, District Judge.
PER CURIAM.
The ultimate question on this appeal is whether Tankard’s employees come within Section 16(c) of the Fair Labor Standards Act of 1938, c. 676, 52 Stat. 1060, 29 U.S.C. 201 et seq., as amended in 1949 by c. 736, 63 Stat. 910, 29 U.S.C.A. § 201 et seq. as to payment for overtime. That question turns upon whether Tankard knew or in reason should have known that a substantial quantity of scrap metal and paper sold by Tankard locally was purchased for and was shipped in interstate commerce. Warren-Bradshaw Drilling Co. v. Hall, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83; Culver v. Bell & Loffland, 9 Cir., 146 F.2d 29.
There is ample evidence in the record to support the trial court’s finding in the affirmative on the latter question.
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_direct1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the 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.
Robert O. GILMORE, Jr., Appellant, v. The PEOPLE OF the STATE OF CALIFORNIA and Warden Lawrence E. Wilson et al., Appellees.
No. 20466.
United States Court of Appeals Ninth Circuit.
Aug. 4, 1966.
Robert O. Gilmore, Jr., Tamal, Cal., in pro. per.
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Jay S. Linderman, Deputy Attys. Gen., San Francisco, Cal., for appellee.
Before BROWNING, DUNIWAY and ELY, Circuit Judges.
DUNIWAY, Circuit Judge:
Appeal from an order denying a writ of habeas corpus. Gilmore pleaded guilty in California Superior Court to two counts of a seven-count information. The offenses are rape (Calif.Pen.Code § 261, subd. 3), for which the penalty is imprisonment for not less than 3 years, (Calif.Pen.Code § 264) and robbery (Calif.Pen.Code § 211) for which the penalty is not less than 5 years (Calif. Pen.Code § 213, subd. 1). Sentences were concurrent. The other 5 counts, which included kidnapping (Calif.Pen. Code § 207), for which the punishment may be death or life imprisonment without possibility of parole (Calif.Pen.Code § 209), were dismissed.
Gilmore claims that a “confession” was obtained from him unlawfully in that he was not at the time represented by counsel and was “brow-beaten” and “inflicted with brutality” by the police. This contention is not available to him. The evidence was not used to convict him. His conviction rests solely upon his guilty plea. Hardee v. Wilson, 9 Cir., 1966, 363 F.2d 848 (June 29, 1966); Fleming v. Klinger, 9 Cir., 1966 363 F.2d 378 (June 28, 1966); Spry v. Oberhauser, 9 Cir., 1966, 361 F.2d 391 (May 20, 1966); Wallace v. Heinze, 9 Cir., 1965, 351 F.2d 39; Davis v. United States, 9 Cir., 1965, 347 F.2d 374; Harris v. United States, 9 Cir., 1964, 338 F.2d 75; Hoffman v. United States, 9 Cir., 1964, 327 F.2d 489; Thomas v. United States, 9 Cir., 1961, 290 F.2d 696; Berg v. United States, 9 Cir., 1949, 176 F.2d 122.
The only question open to Gilmore is whether his guilty plea was freely and voluntarily entered. Nowhere in his petition, in what he designates as an “application” attached thereto, in his traverse to appellee’s return, or in his “supplement” to the traverse, does he assert that the claimed violation of the Escobedo rule [Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977], or the claimed brow-beating, or any of numerous non jurisdictional and non-constitutional matters that he discusses, brought about his guilty plea. A careful reading of these lengthy documents reveals that the guilty plea itself is attacked on only three grounds.
The first is that Gilmore was afraid that if he went to trial he might get the death penalty. This was a real possibility. He was charged with an offense carrying that penalty. The fact that he was confronted with a hard choice, and that he chose what he thought was the lesser of two evils, would not make his plea involuntary. The second is that his retained counsel made a deal with the prosecutor whereby the latter agreed to and did dismiss five counts — at least one of which was for kidnapping and carried a possible death penalty — in exchange for the plea. This, as we have previously held, is not improper, and, standing alone, does not render the plea of guilty invalid. Cortez v. United States, 9 Cir., 1964, 337 F.2d 699.
The third assertion is that Gilmore was deceived by his retained counsel into believing that he would receive, in exchange for his plea, a one year jail sentence instead of being sentenced, as he actually was, to state prison for the term prescribed by law. He does not directly charge that either the judge or the prosecutor was a party to any such understanding. At most he says that his attorney told him that the judge had promised such leniency, and that the prosecutor had agreed to the same deal. It is also implicit in the allegations that Gilmore did not agree to the deal, at least if the claimed promise of leniency were not a part of it. It has been held, and we agree, that mere disappointment at the severity of the sentence received upon a plea of guilty is no ground for habeas corpus or other similar relief, even where defendant’s counsel has expressed an opinion that leniency will be granted. Pinedo v. United States, 9 Cir., 1965, 347 F.2d 142; United States v. Parrino, 2 Cir., 1954, 212 F.2d 919; Monroe v. Huff, 1944, 79 U.S.App.D.C. 246, 145 F. 2d 249. But here, allowing for Gilmore’s lack of skill in drafting his allegations it is at least arguable that more than mere disappointment is involved. A flat misrepresentation by his attorney is asserted. Participation in a promise of leniency, and breach of that promise, by both judge and prosecutor are at least implied. We would feel more comfortable about the case if the court had held a hearing on these charges. If the judge or the prosecutor made a promise, and if this were a federal conviction, the case would fall within the rule in Machibroda v. United States, 1962, 368 U.S. 487, 489, 493, 82 S.Ct. 510, 7 L.Ed.2d 473. We entertain some doubt, as the trial judge did, that Gilmore’s charges are true. But the trial court did not and we do not have the record of what took place at Gilmore’s sentencing, and in any event, it probably would not fully answer the charge, which appears to allege matters occurring outside the record. We conclude that the trial judge should have held a hearing limited to those allegations that relate to the voluntary character of Gilmore’s plea. See Zaffarano v. United States, 9 Cir., 1962, 306 F.2d 707; ibid, 1964, 9 Cir., 330 F.2d 114.
We do not now decide whether all the rules developed by the federal courts to determine the validity of a plea of guilty by one charged with a federal offense are equally applicable to a plea by one charged in a state court with a state offense, either under the due process clause of the fourteenth amendment or under other provisions of the federal constitution made applicable to the states by that amendment. It will be time enough to decide such questions if, after a hearing, they are presented by the facts found. Certainly, if Gilmore’s plea was voluntary under federal constitutional standards, we can ask no more of the state.
Gilmore has also filed two applications, ex parte, for bail. We do not ordinarily grant bail to state prisoners seeking habeas corpus; we do not think that we should in this case, assuming that we have the power. Nothing in the Bail Reform Act of 1966, P.L. 89-465, 80 Stat. 214, requires us to grant bail in such cases. Both applications are denied.
The order is reversed, with directions that further proceedings, consistent with this opinion, be held.
. He did not, in fact, confess. Some of his statements, however, were incriminating, others were exculpatory. As to future cases, these distinctions no longer have meaning. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We do not consider them material here.
. The petition itself is upon a form prescribed by the rules of the District Court, and is duly verified. The “Application” is a 26 page document, a mixture of factual assertions and argument. We treat it as part of the petition because it, too, is verified.
. The traverse is similar to the “application.” It is 58 pages long, and is likewise verified.
. The “supplement” is like the traverse, and is 14 pages long. It, too, is verified.
. Like many prisoners who proceed in pro. per. Gilmore has filled his papers with factual assertions and legal citations that present no issue cognizable in habeas corpus, such as the sufficiency, credibility, and admissibility of testimony given at the preliminary hearing, and other matters. We do not discuss them, as. it would serve no useful purpose to do so. Some of his contentions might have been available to him had he gone to trial; he did not do so. Others would not. None is available here. The trial court did not hold a hearing. We therefore assume the truth, for the purpose of this decision, of such allegations as are relevant and material.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_state
|
56
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
JACKSONVILLE SHIPYARDS, INC., Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.
No. 86-3533.
United States Court of Appeals, Eleventh Circuit.
Aug. 10, 1988.
Rehearing and Rehearing In Banc Denied, Sept. 16.1988.
Taylor, Day, Rio & Mercier, John C. Taylor, Jr., Ada A. Hammond, Jacksonville, Fla., for petitioner.
Office of Workers’ Compensation Programs, Marianne Demetral Smith, Sol. of Labor, U.S. Dept, of Labor, Washington, D.C., for respondents.
Bette T. Miller, Rogers, Towers, Bailey, Jones & Gay, Jacksonville, Fla., Janet R. Dunlop, U.S. Dept, of Labor, Washington, D.C., for amicus curiae-Cigna.
TJOFLAT, Circuit Judge:
The panel has decided to vacate its earlier opinion and judgment in this case, 842 F.2d 1253, and to substitute the following in its stead.
I.
William J. Stokes worked in a Jacksonville, Florida shipyard from 1958 until 1976. During that eighteen-year period, the shipyard was owned by three different entities. The third and final owner during the period of Stokes’ employment was Jacksonville Shipyards, Inc., the appellant here, which purchased the shipyard in 1965.
Throughout the 1960’s, Stokes worked at the shipyard as a sandblaster. In 1971, he began to experience shortness of breath when climbing stairs and ladders. That same year, a chest x-ray was performed which indicated a condition consistent with silicosis, a lung disease that results from exposure to dust and silica. Due to deteriorating health, Stokes finally stopped working at the shipyard in August 1976.
Stokes thereafter filed a permanent total disability claim under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, against Jacksonville Shipyards and his previous employers at the shipyard. Also named in the claim were the insurance carriers who had insured the various employers during the course of Stokes’ eighteen-year employment at the shipyard. A hearing was held before an administrative law judge (AU) on September 1, 1983. The AU found that Stokes was permanently disabled, and assessed full liability for disability compensation against Jacksonville Shipyards.
Jacksonville Shipyards then sought relief under 33 U.S.C. § 908(f) (1982 & Supp.1985). That section provides in pertinent part:
(1) In any case in which an employee having an existing permanent partial disability suffers injury, the employer shall provide compensation for such disability as is found to be attributable to that injury_ In all ... cases of total permanent injury or of death, found not to be due solely to that injury, of an employee having an existing permanent partial disability, the employer shall provide ... compensation payments or death benefits for one hundred and four weeks only....
(2) After cessation of the payment for the period of weeks provided for herein, the employee or his survivor entitled to benefits shall be paid the remainder of the compensation that would be due out of the special fund established in section 944 of this title.
Thus, when a partially disabled worker becomes totally disabled as a result of a work-related incident, the employer will be liable only for the first 104 weeks of disability compensation; after that, disability compensation is paid from a “special fund” created from payments by employers. In evaluating requests for relief under section 908(f), courts have applied a three-part test developed in C & P Telephone v. Director, OWCP, 564 F.2d 503 (D.C.Cir.1977). Under that test, (1) the employee must have had a preexisting, permanent partial disability; (2) this condition must have been manifest to the employer; and (3) the preexisting partial disability must have contributed to the seriousness of the employee’s second injury.
Here, the AU found that the first two prongs of the C & P Telephone test were satisfied: Stokes had a preexisting permanent disability as early as 1971, and that condition had been manifest to Jacksonville Shipyards. .The AU denied section 908(f) relief, however, because he concluded that the evidence failed to show a “second injury.” The Benefits Review Board affirmed, and Jacksonville Shipyards now appeals.
II.
We first address the issue of appellate jurisdiction. Under 33 U.S.C. § 921(c) (1982), we have jurisdiction to review final orders of the Benefits Review Board. In this case, the Benefits Review Board affirmed the AU’s determination on the merits, but vacated that part of the AU’s order awarding attorney’s fees and remanded the case to the AU for further consideration of that award.
In McQurter v. City of Atlanta, 724 F.2d 881, 882 (11th Cir.1984), we held that “[w]hen attorney’s fees are similar to costs or collateral to an action, a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits.” (Citations omitted; quoting Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983)). The fees in this case were awarded under 33 U.S.C. § 928 (1982), which provides for the awarding of a reasonable fee “in addition to the award of compensation.” We find that the fee award in this case was collateral to the main claim, and that we are therefore presented with an appealable final order.
Turning to the merits of the appeal, we affirm. The AU recognized that the “second injury” prerequisite to section 908(f) relief may be satisfied by showing a work-related aggravation of a preexisting disability. See C & P Telephone, 564 F.2d at 514. The AU correctly emphasized, however, that there must be a showing of actual aggravation: when a total disability results from nothing more than the natural progression of a preexisting partial disability, the total disability cannot be considered a “second injury.” Based on the evidence before him, the AU concluded that Jacksonville Shipyards had failed to show an actual aggravation of the preexisting disability. Because the AU’s findings are supported by substantial evidence in the record considered as a whole, see Geddes v. Benefits Review Bd., 735 F.2d 1412, 1415 (D.C.Cir.1984), we must affirm.
Jacksonville Shipyards seeks to avoid this result by way of an argument based on the so-called “last injurious exposure” rule for allocating liability in employment disability cases. In order to explain why we reject this argument, we must further examine the peculiar posture of the case before us.
From the time it purchased the shipyard in 1965 until December 31, 1975, Jacksonville Shipyards was insured by two successive insurance carriers. On January 1, 1976, seven months before Stokes stopped working at the shipyard, Jacksonville Shipyards became self-insured. When an employer is assessed liability for a work related disability, as Jacksonville Shipyards was in this case, and that employer was insured by a number of successive insurers over the period of the claimant’s employment, the question naturally arises as to which insurer should bear responsibility. Here, there would be three insurers potentially involved in such a dispute: the two former carriers and Jacksonville Shipyards itself as a self-insurer.
In resolving such disputes among the insurers of an employer against which liability has been assessed, courts have applied the so-called “last injurious exposure” rule. See Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir.), cert. denied, 350 U.S. 913, 76 S.Ct. 196, 100 L.Ed. 800 (1955). At the time liability was assessed against Jacksonville Shipyards in its capacity as Stokes’ employer, it stipulated that it was also the responsible insurer under the Cardillo rule. The AU accepted the stipulation. Jacksonville Shipyards now argues that because it is the responsible insurer under the “last injurious exposure” rule, it is entitled to section 908(f) relief. Jacksonville Shipyards’ argument is that exposure sufficient to trigger the Cardillo allocation rule constitutes a “second injury” for purposes of section 908(f). We cannot agree.
The Cardillo rule, as it pertains to this case, is a rule for allocating responsibility among insurers for a particular injury. As such, it is simply not relevant to the “second injury” inquiry required when an employer seeks section 908(f) relief. In this case, the Cardillo rule came into play only insofar as it was used to determine which of the three insurers would be responsible for the single injury at issue— Stokes” total permanent disability. This determination is wholly unrelated to the question whether Jacksonville Shipyards, as the employer against which liability has been assessed, has carried its burden of showing a “second injury” for purposes of section 908(f). Because Jacksonville Shipyards did not carry that burden, the ruling of the Benefits Review Board is
AFFIRMED.
. Jacksonville Shipyards stipulated that it was responsible for the total permanent disability.
. Apart from its use in this manner, the rule is also used to determine employer liability in the first instance when successive employers have exposed the employee to noxious substances. In such case, the rule operates in a similar manner: it is used to determine which of several successive employers will be responsible for the particular injury at issue.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
PETITE v. UNITED STATES.
No. 45.
Decided February 23, 1960.
Edward Bennett Williams, Raymond W. Bergan and Agnes A. Neill for petitioner.
Solicitor "General Rankin, Assistant Attorney General Wilkey, Wayne. G. Barnett, Beatrice Rosenberg and .Jerome M. Feit for the United States.
Per Curiam.
Petitioner was indicted, with others, in the Eastern District of Pennsylvania, for conspiring to make false statements to an' agency of the United States at hearings held in Philadelphia and Baltimore under proceedings for the deportation of an alien. Petitioner was also separately indicted for suborning perjury at the Philadelphia hearings. Petitioner’s co-defendants pleaded • guilty to the conspiracy charged. Petitioner went to trial on both indictments, but at the close of the Government’s case he changed his plea to nolo contendere to the conspiracy charge, and the Government dismissed the subornation indictment. He was fined $500 and sentenced to two months’ imprisonment, which he served. 'Petitioner was subsequently indicted in the District of Maryland for suborning' the perjury of two witnesses at the Baltimore hearings. Among the overt acts which, had been relied upon in the Pennsylvania conspiracy indictment was the testimony of these two witnesses. ' Because of this, petitioner .moved to dismiss the Maryland indictment on the ground of double jeopardy, but his motion was denied, 147 F. Supp. 791, and the conviction which resulted was affirmed by the Court of Appeals for the Fourth Circuit, 262 F. 2d 788.
Thereupon a petition- for a writ of certiorari was filed with the double jeopardy issue as the single question presented, and certiorari was granted. 360 U. S. 908. The Government-did-not oppose the granting of this petition, but informed the Court that the case was' under consideration by the Department of Justice to determine whether the second prosecution in the District of Maryland was consistent with the sound policy of the Department in discharging its .responsibility for the control of government litigation wholly apart from the question of the legal validity of the claim of double jeopardy.
In due course the Government filed this motion for an order vacating the judgment below and remanding the case to the United States District Court for the District of Maryland with directions to dismiss the indictment. It did so on the ground that it is the general policy of the Federal Government “that several offenses arising out of a single transaction should be alleged and tried tqgether and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.” The Solicitor General on behalf of the Government represents this policy as closely related to that against duplicating federal-state prosecutions, which was formally defined by the Attorney General of the United States in a memorandum to the United States Attorneys. (Department of Justice Press Release, Apr. 6,1959.) Counsel for petitioner “joins in and consents” to the Government’s motion.
The ca'se is remanded to the Court of Appeals to vacate its judgment and to direct the District Court to vacate. its judgment and to dismiss the indictment. In the interest of justice, the Court is clearly empowered thus to dispose of the matter, 28 U. S. C. § 2106, and we do so with due regard for the settled rule that the Court will not “anticipate a question of constitutional law in ádvance of the necessity of deciding it.” Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39. By thus disposing of the matter, we are of course not to be understood as remotely intimating in any degree an opinion on the question of double jeopardy sought to be presented by the petition for certiorari.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_respond1_1_2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Dorothy WILLNER, Plaintiff-Appellant, v. UNIVERSITY OF KANSAS, Defendant-Appellee.
No. 86-2678.
United States Court of Appeals, Tenth Circuit.
June 1, 1988.
Dorothy Willner, pro se.
Rose Marino, Associate Gen. Counsel, University of Kansas, Lawrence, Kan., J. Steven Pigg, Fisher, Patterson, Sayler & Smith, Topeka, Kan., Clifford T. Mueller and Douglas M. Greenwald, McAnany, Van Cleave & Phillips, Lenexa, Kan., for defendant-appellee.
Before WRIGHT, ALARCON and HALL, Circuit Judges.
Honorable Eugene A. Wright, Honorable Arthur L. Alarcon, and Honorable Cynthia Holcomb Hall, Circuit Judges, United States Court of Appeals for the Ninth Circuit, sitting by designation.
PER CURIAM.
Dorothy Willner appeals from the judgment for the defendants after a bench trial in this sex discrimination action. She makes the following contentions on appeal.
(1) The district judge erred in refusing to recuse himself from presiding over the case.
(2) The district court erred when it dismissed her claims against the individual defendants prior to trial because of her failure to comply with an order compelling her to answer interrogatories.
(3) The district court’s factual findings were clearly erroneous.
I
PERTINENT FACTS
Dorothy Willner, a professor of anthropology at the University of Kansas, filed this action naming as defendants the University of Kansas and twelve individuals who either were or had been University Chancellor, Dean of the College of Liberal Arts and Sciences, anthropology department chairpersons, or professors in the anthropology department (collectively individual defendants). She alleged the defendants had denied her equal pay, verbally abused her, harassed her, caused her to lose a Fulbright research grant, falsely evaluated her with regard to salary increases, deliberately failed to display a book that she had written, and slandered her to students, faculty, and others. She claimed the defendants discriminated against her because she is female and Jewish. She sought relief pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988; Title VII, 42 U.S.C. § 2000e et seq.; the Equal Pay Act (EPA), 29 U.S.C. § 206(d); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; and the first, fifth, and fourteenth amendments.
Willner’s attorney was granted leave to withdraw shortly after the complaint was filed. Willner appeared pro se throughout the course of the lawsuit. During pretrial proceedings, all of Dorothy Willner’s claims were dismissed, except for the Title VII and the EPA claims against the University of Kansas. In May 1986, a bench trial was held on the remaining claims. The district court entered judgment for the University of Kansas. Willner appeals from the judgment.
II
PROPRIETY OF RECUSAL ISSUES
Dorothy Willner moved for the recusal of Judge Richard D. Rogers on several grounds at various stages of the proceedings. She claims that recusal was warranted on the following grounds:
1. Judge Rogers’ demeanor in a separate sex discrimination action filed against the University of Kansas by her sister suggested bias against all similarly situated females.
2. Judge Rogers had made statements evincing a bias against women employees who filed actions against the University of Kansas.
3. Judge Rogers failed to disclose that he was related to a former defense attorney in these proceedings.
4. Judge Rogers denied her motion for an extension of time and dismissed the claims against the individual defendants because she was Jewish.
5. Judge Rogers refused to grant her a protective order to delay her deposition.
6. Judge Rogers was a director of the alumni association of the University of Kansas when she filed her complaint with the Equal Employment Opportunity Commission (EEOC).
7. Judge Rogers was aware that there was an appearance of bias because he inquired of Myra Hinman, in a separate proceeding against the University of Kansas, whether she felt he would be biased because of his close association with the University of Kansas Alumni Association.
8. Judge Rogers was the president of the Board of Governors of the law school of the University of Kansas during the pendency of this action.
9. Judge Rogers permitted her attorney to withdraw on improper grounds.
10. Judge Rogers refused to strike alleged “defamatory remarks” from her attorney’s notice of withdrawal.
The denial of a motion to recuse is reviewed for abuse of discretion. Weatherhead, v. Globe International, Inc., 832 F.2d 1226, 1227 (10th Cir.1987). The district court did not abuse its discretion because the recusal motions (1) failed to allege sufficient facts, (2) involved adverse rulings, or (3) were untimely.
A. Adequacy of Factual Allegations
On October 11, 1983, Dorothy Willner filed a motion to recuse Judge Rogers pursuant to 28 U.S.C. §§ 455(a) and 455(b)(1) (1982). She alleged, inter alia, that:
Plaintiff pro se Dorothy Willner observed Judge Rogers’ demeanor towards plaintiff pro se Ann Ruth Willner on June 8, 1983 when plaintiff pro se Ann Ruth Willner appeared before the Court. Having formed the distinct impression of personal prejudice of the Court toward plaintiff pro se Ann Ruth Willner, plaintiff pro se Dorothy Willner asks the Court to consider most carefully whether it has exhibited the full consideration due their own behalf.
This allegation was unsupported by an affidavit or declaration.
Section 455(a) requires that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(b)(1) provides that a judge must disqualify himself when “he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
An unsubstantiated suggestion of personal bias or prejudice is insufficient to mandate recusal under section 455(a). United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982). The motion fails to state any facts concerning Judge Rogers’ demeanor that would “cause a reasonable man to doubt the judge’s impartiality.” Id. Under such circumstances recusal is not mandated under section 455(a). Id.
The October 11, 1983 motion is also insufficient to meet the requirements of section 455(b)(1). No facts were alleged that demonstrate actual bias against Dorothy Willner.
In the same motion, Dorothy Willner also alleges:
Plaintiff has been informed that Judge Rogers was heard to make the following statement in reference to cases of sex discrimination being filed by female employees of defendant University of Kansas: “Those women over there! If they don’t get the high-paying jobs they want, they holler discrimination.”
This allegation is also unaccompanied by a supporting affidavit or declaration stating the source of the hearsay statement or when and where it was made. In Hines, this court concluded that a recusal motion that “fail[ed] to state with reasonable particularity when, where, and to whom the statement was made” did not meet the requirements of a section 455 motion. Id. at 729. Dorothy Willner has failed to allege facts showing actual bias. A reasonable person would not doubt a judge’s impartiality on the basis of a hearsay statement from an undisclosed informer of unknown reliability. Id.
In a motion filed on February 7, 1986, Dorothy Willner alleged that an attorney who had appeared for the individual defendants in this action, prior to his withdrawal, was related to Judge Rogers. No evidence was offered by Dorothy Willner to support this allegation. Judge Rogers denied that he was related to any attorney who had appeared in the case. In Hinman v. Rogers, 831 F.2d 937, 939-40 (10th Cir.1987) this court stated that a judge had a duty not to recuse himself on unsupported speculation.
B. Attempted Recusal Based on Adverse Rulings
Some of Dorothy Willner’s challenges to Judge Rogers’ rulings denying her motions for recusal are based on adverse rulings of the court. On January 7, 1985, she filed a motion for recusal under 28 U.S.C. § 144 (1982). This motion was supported by an affidavit. The affidavit alleges that Judge Rogers denied her motion for reconsideration of his order granting her ten additional days to comply with a discovery order because he is personally biased against her because she is Jewish. The affidavit further states that on September 19, 1984, Judge Rogers ordered her to submit answers to five interrogatories within ten days, notwithstanding the fact that she had notified the court on September 12, 1984 that the Jewish High Holy Days of Rosh Hashanah and Yom Kippur and the Sabbath in between “were approaching.” On September 21, 1984, after the court had previously granted her up to ten days to comply with the discovery order, Dorothy Willner informed the court that this religious celebration would commence on September 26, 1984.
The affidavit contained no facts that would support an inference that Judge Rogers was personally biased against Dorothy Willner because she is Jewish or for any other reason in ordering compliance with the discovery order.
Dorothy Willner was served with interrogatories on February 17, 1983. She was required to respond or object within 30 days. Fed.R.Civ.P. 33(a). She did not respond until June 30, 1983.
On August 18, 1983, the defendants moved to compel more complete and direct answers. Dorothy Willner opposed the motion on the ground that she had supplied sufficiently detailed answers. On March 5, 1984, a magistrate ordered her to supplement her answers before March 30, 1984. She failed to comply with this order.
On August 10, 1984, the individual defendants who had requested the answers to the interrogatories moved for dismissal of Willner’s claims against them pursuant to Fed.R.Civ.P. 37(b)(2)(C). Rule 37(b)(2)(C) permits the court to dismiss an action when a plaintiff fails to comply with a discovery order.
On September 12, 1984, Willner claimed that certain circumstances, not of her own doing, led to her failure to supply the supplemental answers. In addition, Willner argued that she had already given complete answers to her questions in her deposition. She also informed the court, as set forth above, that the religious holidays would occur later that month. The district court held a hearing on the motion to dismiss on September 18, 1984.
Instead of granting the motion to dismiss, Judge Rogers sua sponte ordered her to provide supplemental answers within ten days. The court also advised her that failure to comply would result in dismissal. These facts demonstrate that the district court exercised considerable and commendable patience in the face of Dorothy Willner’s failure to comply with the March 5, 1984 order to supplement her answers. In challenging the propriety of the order compelling further answers, Dorothy Willner argues that the information sought by the defendants is contained within her deposition. Assuming that this representation is accurate, Dorothy Willner had ample time to comply with the court’s order prior to the commencement of her religious observances. Indeed, she expended her energies during the ten-day period filing a further motion to delay compliance with the court’s order.
The allegation that Judge Rogers is personally biased against Dorothy Willner is unsupported by any facts. The court order granting her additional time to comply with discovery was well within the court’s discretion. Moreover, a motion to recuse cannot be based solely on adverse rulings. See Hamm v. Members of the Board of Regents, 708 F.2d 647, 651 (11th Cir.1983) (motion to recuse pursuant to sections 455 and 144); United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976) (motion to recuse pursuant to section 144). Under the circumstances shown by this record, the district court did not abuse its discretion in denying the motion for recusal pursuant to section 144.
C. Untimeliness
On several occasions, Dorothy Willner requested that Judge Rogers recuse himself on the ground that his participation in the University of Kansas alumni activities demonstrated actual bias or would cause a reasonable person to question his impartiality.
Dorothy Willner has failed to present any facts that would support an inference that Judge Rogers was actually biased against her as the result of his leadership position in the University of Kansas’ alumni affairs. The law of this circuit does not require recusal on the basis of mere speculation that such activities would cause him to harbor prejudice against her. Hinman, 831 F.2d at 939-40.
A motion to recuse under section 455(a) must be timely filed. See Singer v. Wadman, 745 F.2d 606, 608 (10th Cir.1984) (motion to recuse under both 28 U.S.C. §§ 144 and 455(a) was untimely) cert. denied, 470 U.S. 1028, 105 S.Ct. 1396, 84 L.Ed.2d 785 (1985); see also Oglala Sioux Tribe v. Homestake Mining Co., 722 F.2d 1407, 1414 (8th Cir.1983) (section 455(a) has a timeliness requirement); United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.1983) (same), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1164 n. 3 (5th Cir.1982) (same), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed. 2d 83 (1983); In re International Business Machines Corp., 618 F.2d 923, 932 (2d Cir.1980) (same).
In the instant matter, the complaint was filed on December 1, 1982. The first motion to recuse based on Judge Rogers’ alumni activities was not filed until October 11, 1983. Discovery would have been completed by this time except for Dorothy Winner’s recalcitrance in ignoring the defendants’ requests for more complete answers to their interrogatories. Granting a motion to recuse many months after an action has been filed wastes judicial resources and encourages manipulation of the judicial process. See International Business Machines Corp., 618 F.2d at 933 (imposition of a timeliness requirement in considering re-cusal motions is necessary to prevent waste of judicial resources). The motion to recuse based on Judge Rogers’ alumni activities was untimely.
Dorothy Willner’s contention that Judge Rogers asked Myra Hinman whether she felt he would be biased because of his participation in alumni activities must also fail because of untimeliness. We note that in Hinman, another panel of this court concluded that the allegations in Myra Hinman’s recusal requests did not support a motion for recusal under section 144 or section 455. 831 F.2d at 939-40.
Equally untimely is Dorothy Willner’s February 7, 1986 motion to recuse Judge Rogers because he was President of the Board of Governors of the University of Kansas Law School. This information was known to Dorothy Willner for at least one year prior to the filing of this motion. She relied upon the same facts in her petition for a writ of mandamus filed in this court on February 11, 1985.
In the February 7, 1986 recusal motion, Dorothy Willner also alleged that the district judge should recuse himself for permitting an attorney to withdraw on “spurious grounds” and for refusing to strike his alleged defamatory remarks from his withdrawal petitions. These adverse orders were rendered approximately three years prior to the recusal motion. These grounds for recusal are clearly untimely.
Ill
VALIDITY OF THE ORDER COMPELLING FURTHER DISCOVERY
Dorothy Willner argues that the district court committed reversible error in ordering her to provide more complete answers to the defendants’ interrogatories. We disagree.
A district court’s ruling on a motion to compel discovery is reviewed for abuse of discretion. Naugle v. O’Connell, 833 F.2d 1391, 1397 (10th Cir.1987).
Willner argues that the district court abused its discretion because it violated the spirit of the 1983 amendment to Fed.R.Civ.P. 26 which encourages judicial control over excessive use of discovery. She contends that the answers to defendants’ interrogatories are contained within her deposition and, thus, compelling her to answer the interrogatories is an excessive use of discovery. Dorothy Willner’s deposition contained over 1500 pages. Counsel for the defendants persuaded the district court that it would be unfair to compel their law clerks to search through this voluminous transcript to find the answer to five questions. Furthermore, she was served with the interrogatories and the motion to compel further answers before her deposition was taken in July 1984. Under these circumstances, the district court did not abuse its discretion in ordering her to supplement her answers to five interrogatories.
Dorothy Willner also complains that the district court abused its discretion in denying her September 24, 1986 motion for ten-day extension to supplement her answers. The district court acted well within its discretion. The defendants moved to compel more complete answers on August 18, 1983. Dorothy Willner was first ordered to supplement her answers on March 5, 1984. She failed to comply with this order. She did not offer any explanation for her defiance of the court’s order until the defendants moved to dismiss the action on August 10, 1984. Thus, Dorothy Willner had notice for more than one year prior to September 19, 1984 that the defendants were seeking a further response to their interrogatories. She also defied a court order to supplement her answers without explanation for over six additional months. Under these circumstances, the district court did not abuse its discretion in refusing to permit her to delay further the prosecution of this action.
IV
VALIDITY OF THE SANCTION OF DISMISSAL
The district court dismissed the action against the individual defendants because of Dorothy Willner’s failure to comply with the discovery order of the court. As discussed above, on September 19,1984, when the district court allowed Dorothy Willner up to ten days to comply with the March 5, 1984 order compelling further answers to the interrogatories, she was warned that “[f]ailure to comply with this order will result in the dismissal of the actions against the individual defendants.” She failed to comply. On October 15,1984, the district court dismissed the claims against the individual defendants. The court found that she had over six months to submit supplemental answers as ordered on March 5, 1984 but willfully failed to do so in the face of the court’s warning that dismissal would occur if she did not comply within ten days of September 19, 1984.
If a party fails to provide discovery, the court may dismiss the action. Fed.R.Civ.P. 37(b)(2)(C). This court reviews an order of dismissal for failure to provide discovery for abuse of discretion. Mertsching v. United States, 704 F.2d 505, 506 (10th Cir.), cert. denied, 464 U.S. 829, 104 S.Ct. 105, 78 L.Ed.2d 108 (1983).
We have reviewed the record. It demonstrates willful disregard of the court’s orders. The district court’s finding that Dorothy Willner’s actions constitute “a willful failure to cooperate in the discovery process” was not clearly erroneous.
Dorothy Willner asserts that the refusal to grant her additional time to answer the interrogatories because of the Jewish High Holy Days violated her rights under the First Amendment. The district court’s September 19, 1984 order did not violate her constitutional rights. She was given up to ten days to comply with the court’s order. She was free to budget her time to complete her responsibility to the court in less than the maximum allotted time and before September 26, 1984, the first day of her religious observance.
V
SUFFICIENCY OF THE EVIDENCE
Willner contends that the district court’s findings of fact are not supported by the evidence presented at trial.
A district court’s findings of facts may be overturned on appeal only if they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Carino v. Univ. of Oklahoma Bd. of Regents, 750 F.2d 815, 820 (10th Cir.1984). A finding is clearly erroneous only if “ ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)). This court cannot reverse a district court simply because we might have decided the case differently. Id. “If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. 470 U.S. at 573-74, 105 S.Ct. at 1511. The Supreme Court has urged deference to the district court’s findings whether those findings are based on credibility determinations, documentary evidence, or both. Id. at 574-75, 105 S.Ct. at 1512.
Willner contends that the district court relied heavily on a letter, dated March 5, 1972, to the Dean of the College at the University of Kansas from Robert Squier, Chairman of the Anthropology Department, addressing Willner’s early claims of discrimination and retaliation. Willner argues, however, that it was clearly erroneous for the court to rely on the explanations and information in the letter because it provided false and misleading information in the form of a table with salary information for the anthropology department. Willner claims that the table inaccurately represents the percentage increase in salaries among the anthropology professors. In support of her argument, Willner compared the salary information in the table with that provided by the defendants at trial that contained the official budget data of the University of Kansas, including professors’ salaries.
Willner’s comparison is flawed. The table attached to Squier’s letter listed the percentage increases in salary that the anthropology department recommended for each of its professors. The information contained in the official budget data was the actual percentage salary increases. The anthropology department’s function was to recommend a salary increase to the University of Kansas. The University of Kansas administration made the final decisions. Thus, Willner’s claim that Squier’s letter contained false and misleading information is incorrect.
Willner also argues that there was no merit system at the University of Kansas. The district court’s finding that there was a valid merit system is supported by the testimony produced at trial. Documentary evidence was presented, including evaluation forms used by the faculty committee, faculty handouts explaining the merit system, and minutes from faculty meetings where the system was discussed.
Third, Willner contends that the evidence shows that she was discriminated against because she did not receive equal pay, although she performed comparable work. The district court’s findings that she did not receive equal pay because she was not contributing to the department and was not cooperating with the evaluation process were amply supported by testimony and documentary evidence. This proof included letters written by Willner in which she refused to submit necessary information to the anthropology department’s salary committee.
The district court found that salary increases in the anthropology department were determined by evaluation on the basis of merit. This finding is amply supported by the testimony of former and present chairpersons. Originally, the department chairperson was responsible for evaluating the faculty and recommending their salary increases to the Dean of the College of Liberal Arts and Sciences, but beginning in 1977, that job was delegated to a committee made up of three members of the department. The faculty selected the members and voted on the procedures by which the committee would arrive at its recommendations. The record shows that, before the change in evaluation procedure, faculty members were judged on the basis of quality of their instruction, their research, and service, not on the basis of rank or seniority-
The district court also made extensive findings as to the scores and the salary increases that Professor Willner received from the chairperson or the committee in various years. These findings were supported by the testimony at trial, and court exhibits. The court found that Professors White, Johnson and Schott testified that Professor Willner failed to submit the materials needed for proper evaluation, or submitted them late and to the wrong person, and that during several years she received no increase because of her failure to cooperate. This evidence supports the court’s determination that Professor Willner’s salary increases were dictated by the fair application of the merit evaluation system and were not the result of sex discrimination.
The district court also found that the University of Kansas and its employees did not retaliate against Professor Willner because she filed charges with the EEOC and the district court. The court found that Professor Willner’s interpersonal problems in the department were a result of her abusive and arrogant manner. The district court also heard testimony regarding Willner’s unwillingness to sit on committees, or to submit her course schedules on time. Other witnesses testified concerning her abusive behavior and threats she made to her colleagues. This testimony revealed and the district court concluded that, if anything, Willner received favorable treatment from the University of Kansas over the years in an effort to placate her.
The thoroughness of the district court’s findings and extensive discussion of the evidence demonstrates that the court carefully considered the entire record. Each of the court’s findings is supported by evidence in the record. After reviewing the evidence, we are not left with a “definite and firm conviction that a mistake has been committed.” Id. at 573, 105 S.Ct. at 1511. Accordingly, the judgment is AFFIRMED.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff and Appellee, v. Joseph Charles BONANNO, Jr., and Salvatore Vincent Bonanno, Defendants and Appellants.
Nos. 72-1779, 72-1780.
United States Court of Appeals, Ninth Circuit.
May 12, 1972.
Albert J. Krieger, New York City, for defendants and appellants.
James L. Browning, Jr., U. S. Atty., Philip R. Michael, Asst. U. S. Atty., San Francisco, Cal., for plaintiff and appellee.
CHAMBERS, Chief Judge:
Salvatore Vincent Bonanno and Joseph Charles Bonanno, Jr., brothers, were convicted of rather ungentle federal crimes. Salvatore was sentenced to a prison term to run concurrently with terms he was serving already in a federal penitentiary. Joseph was sentenced to five years in prison but is at large on bail pending appeal.
On February 16, 1972, the brothers filed notices of appeal. At the time of sentence, Joseph was represented by John T. Dawson of Campbell, California, and Salvatore by Albert J. Krieger of New York City.
Promptly the district court put the appeals under our expedited appeal plan. Our clerk then set the ready date for all briefing to be completed as of May 1, 1972.
Since February 16, 1972, this court has heard nothing from Joseph’s attorney, Dawson. On April 27, 1972, our clerk received from Attorney Krieger a request for an extension of time to file the record. (It was not in proper form. Although there had been no substitution, in his application Krieger purported to act for both parties. At the clerk’s suggestion, Krieger has now moved to substitute himself for Dawson to serve for Joseph, also.) The application to extend time to docket was the first communication from counsel to our clerk. Under the rules, the record should have been here March 27, 1972.
The request of April 27 specified that two weeks was needed, but the record arrived here on May 1, 1972. The affidavit relates that there was a reporter’s daily transcript in the trial. For this criminal appeal we should get an original and four copies of the transcript. We can get photostatic reproduction of transcripts in less than a week, usually within two days and sometimes overnight. We assume the reporter can do business with our contractor. And practically the record here could have been forwarded within a week after notice of appeal was filed.
But the Krieger affidavit indicates that just recently he found out that the reporter should be paid $911.10 and that he had promptly paid it, and we could expect the transcript to be along soon. After he paid, the transcript arrived quite promptly.
But we get the transcripts in here in 74 days instead of 40 days under the rules (and someone should have shortened the 40 days’ time).
I do not indict Krieger. His delays are less than par for the course. But I use his case to express my views, because in so many other cases of delay it might be said that counsel is a bumbler. Krieger is one of the most competent in the criminal field. I believe him to be ethical, and an ethical lawyer is to be admired for taking the cases of unpopular people such as the Bonannos.
But I believe Krieger could have put the record in here promptly if early action would have benefited his clients. But Joseph is out on bond. Tomorrow can’t be any worse than today. So the request for an extension says, essentially, “The record did not pursue me.”
We have tried one way and another to get criminal cases in and heard promptly. Some of our measures such as “ready date” work for a while but then counsel build up immunities to them. Criminal cases are entitled to priority. The Chief Justice calls on us to get criminal cases disposed of promptly. The Judicial Conference of the United States commanded us in October, 1971, to come up with a plan to get the criminal cases disposed of promptly.
The best plan to get these cases disposed of promptly is to calendar on the date of receipt of notice of appeal the case for an oral hearing. Counsel traditionally respect a date for an oral hearing in open court. (Of course, intermediate monitoring of the laggards is necessary.) I feel I am authorized to calendar after a default.
Salvatore and Joseph may have been improperly convicted. If so, their convictions should have been reversed ere now. If their convictions are sound, that should have been so pronounced this week of May 8, 1972, or earlier. ((The ready date was May 1, 1972.)
Yesterday I entered in the appeal an order as follows:
“Record to be filed on or before May 12, 1972. Balance of docket fee to be paid forthwith. Opening brief to be filed on or before June 1, 1972. Government brief to be filed on or before June 15, 1972. Case is to be heard during the week of July 12, 1972.”
This will assure disposition in about five months after judgment in a case that could have been disposed of in a few weeks. The delay here by comparison with a lot of other criminal cases is minor, but there is no room to argue in this one that there was any good reason for the slightest delay.
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_respondentstate
|
48
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
HAM v. SOUTH CAROLINA
No. 71-5139.
Argued November 6, 1972
Decided January 17, 1973
Rehnquist, J., delivered the opinion of the Court, in which Burgek, C. J., and Brennan, Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, post, p. 529, and Marshall, JJ., post, p. 530, filed opinions concurring in part and dissenting in part.
Jonathan Shapiro argued the cause for petitioner. With him on the brief were Jack Greenberg, James M. Nabrit III, and Anthony G. Amsterdam.
Timothy G. Quinn, Assistant Attorney General of South Carolina, argued the cause for respondent. With him on the brief was Daniel B. McLeod, Attorney General.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Petitioner was convicted in the South Carolina trial court of the possession of marihuana in violation of state law. He was sentenced to 18 months’ confinement, and on appeal his conviction was affirmed by a divided South Carolina Supreme Court. 256 S. C. 1, 180 S. E. 2d 628 (1971). We granted certiorari limited to the question of whether the trial judge’s refusal to examine jurors on voir dire as to possible prejudice against petitioner violated the latter’s federal constitutional rights. 404 U. S. 1057 (1972).
Petitioner is a young, bearded Negro who has lived most of his life in Florence County, South Carolina. He appears to have been well known locally for his work in such civil rights activities as the Southern Christian Leadership Conference and the Bi-Racial Committee of the City of Florence. He has never previously been convicted of a crime. His basic defense at the trial was that law enforcement officers were “out to get him” because of his civil rights activities, and that he had been framed on the drug charge.
Prior to the trial judge’s voir dire examination of prospective jurors, petitioner’s counsel requested the judge to ask jurors four questions relating to possible prejudice against petitioner. The first two questions sought to elicit any possible racial prejudice against Negroes; the third question related to possible prejudice against beards; and the fourth dealt with pretrial publicity relating to the drug problem. The trial judge, while putting to the prospective jurors three general questions as to bias, prejudice, or partiality that are specified in the South Carolina statutes, declined to ask any of the four questions posed by petitioner.
The dissenting justices in the Supreme Court of South Carolina thought that this Court's decision in Aldridge v. United States, 283 U. S. 308 (1931), was binding on the State. There a Negro who was being tried for the murder of a white policeman requested that prospective jurors be asked whether they entertained any racial prejudice. This Court reversed the judgment of conviction because of the trial judge's refusal to make such an inquiry. Mr. Chief Justice Hughes, writing for the Court, stated that the “essential demands of fairness” required the trial judge under the circumstances of that case to interrogate the veniremen with respect to racial prejudice upon the request of counsel for a Negro criminal defendant. Id., at 310.
The Court's opinion relied upon a number of state court holdings throughout the country to the same effect, but it was not expressly grounded upon any constitutional requirement. Since one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure these “essential demands of fairness,” e. g., Lisenba v. California, 314 U. S. 219, 236 (1941), and since a principal purpose of the adoption of the Fourteenth Amendment was to prohibit the States from invidiously discriminating on the basis of race, Slaughter-House Cases, 16 Wall. 36, 81 (1873), we think that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice. South Carolina law permits challenges for cause, and authorizes the trial judge to conduct voir dire examination of potential jurors. The State having created this statutory framework for the selection of juries, the essential fairness required by the Due Process Clause of the Fourteenth Amendment requires that under the facts shown by this record the petitioner be permitted to have the jurors interrogated on the issue of racial bias. Cf. Groppi v. Wisconsin, 400 U. S. 505, 508 (1971); Bell v. Burson, 402 U. S. 535, 541 (1971).
We agree with the dissenting justices of the Supreme Court of South Carolina that the trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner. The Court in Aldridge was at pains to point out, in a context where its authority within the federal system of courts allows a good deal closer supervision than does the Fourteenth Amendment, that the trial court “had a broad discretion as to the questions to be asked,” 283 U. S., at 310. The discretion as to form and number of questions permitted by the Due Process Clause of the Fourteenth Amendment is at least as broad. In this context, either of the brief, general questions urged by the petitioner would appear sufficient to focus the attention of prospective jurors on any racial prejudice they might entertain.
The third of petitioner’s proposed questions was addressed to the fact that he wore a beard. While we cannot say that prejudice against people with beards might not have been harbored by one or more of the potential jurors in this case, this is the beginning and not the end of the inquiry as to whether the Fourteenth Amendment required the trial judge to interrogate the prospective jurors about such possible prejudice. Given the traditionally broad discretion accorded to the trial judge in conducting voir dire, Aldridge v. United States, supra, and our inability to constitutionally distinguish possible prejudice against beards from a host of other possible similar prejudices, we do not believe the petitioner’s constitutional rights were violated when the trial judge refused to put this question. The inquiry as to racial prejudice derives its constitutional stature from the firmly established precedent of Aldridge and the numerous state cases upon which it relied, and from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. The trial judge’s refusal to inquire as to particular bias against beards, after his inquiries as to bias in general, does not reach the level of a constitutional violation.
Petitioner’s final question related to allegedly prejudicial pretrial publicity. But the record before us contains neither the newspaper articles nor any description of the television program in question. Because of this lack of material in the record substantiating any pretrial publicity prejudical to this petitioner, we have no occasion to determine the merits of his request to have this question posed on voir dire.
Because of the trial court’s refusal to make any inquiry as to racial bias of the prospective jurors after petitioner’s timely request therefor, the judgment of the Supreme Court of South Carolina is
Reversed.
S. C. Code §32-1506 (1962).
The four questions sought to be asked are the following:
“1. Would you fairly try this case on the basis of the evidence and disregarding the defendant’s race?
“2. You have no prejudice against negroes? Against black people? You would not be influenced by the use of the term ‘black’?
“3. Would you disregard the fact that this defendant wears a beard in deciding this case?
“4. Did you watch the television show about the local drug problem a few days ago when a local policeman appeared for a long time? Have you heard about that show? Have you read or heard about recent newspaper articles to the effect that the local drug problem is bad? Would you try this case solely on the basis of the evidence presented in this courtroom? Would you be influenced by the circumstances that the prosecution’s witness, a police officer, has publicly spoken on TV about drugs?”
S. C. Code §38-202 (1962). The three questions asked of all prospective jurors in this case were, in substance, the following:
“1. Have you formed or expressed any opinion as to the guilt or innocence of the defendant, Gene Ham?
“2. Are you conscious of any bias or prejudice for or against him?
“3. Can you give the State and the defendant a fair and impartial trial?”
The record indicates that there was a brief colloquy between petitioner’s counsel and the trial judge, in which the former apparently offered newspaper accounts and an editorial in support of his request that the question be propounded; the judge responded that he did not consider the items submitted prejudicial. The Supreme Court of South Carolina, discussing prejudicial publicity in the context of petitioner’s claim that he was entitled to a change of venue, stated that “[t]he two newspaper clippings and one editorial concerning drug abuse did not name the defendant or refer in any way to his trial.”
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
JOHNSON v. STATE FARM LIFE INS. CO.
No. 3827.
United States Court of Appeals Tenth Circuit.
July 14, 1949.
PHILLIPS, Chief Judge, dissenting.
Ralph E. Waldo Jr., Greeley, Colo. (Waldo & Waldo, Greeley, Colo., were with him on the brief), for appellant.
Kenneth M. Wormwood, Denver, Colo. (William T. Wolvington, Denver, Colo., was with him on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
Margaret L. Johnson instituted this action against State Farm Life Insurance Company to recover upon a policy, of insurance covering the life of Kenneth Warren Johnson. The complaint alleged in conventional manner the issuance of the policy, the payment of premiums, the death of the insured, the submission of proof of death, and the refusal to make payment. A copy of the policy including the medical history of the insured was attached to the complaint. By express provision, the policy made the application a part of it and provided that all statements made by or on behalf of the insured should, in the absence of fraud, be deemed representations and not warranties. The application, signed by the insured, recited that all statements, answers, and representations contained therein-were true, complete, and correctly recorded; and that no material circumstances or information had been withheld or omitted concerning the past or present state of health of the insured. The policy was dated July 4, 1946, and the insured died on May 31, 1947, of coronary occlusion. The defense pleaded in the answer was that in the application for the policy, the insured falsely stated that he was then free from disease, was in sound health, and had not consulted a physician or been under medical care during the immediately preceding ten years; that at the time of the delivery of the policy and for some time prior thereto, the insured was not in good health; and that during the preceding ten years he had consulted four physicians, one of whom was a heart specialist. Certain facts were admitted by the respective parties. Plaintiff admitted among other things the submission of the application, including the medical history containing questions and answers signed by the insured. She also admitted that during the ten-year period immediately preceding the making of the application, the insured did consult three of the physicians referred to in the answer of the company. An she further admitted that the death of the insured was due to coronary occlusion. Defendant admitted the authenticity of the medical examiner’s report, the respective dates on which the physicians examined the insured, and further that the heart specialist last saw him about sixteen months prior to the issuance of the policy. Each party moved for summary judgment on the ground that the pleadings and admissions on file showed that there was no valid and genuine issue of any material fact, and that the moving party was entitled to judgment. Plaintiff submitted in support of her motion the affidavits of three of the physicians who examined the insured. Each stated in substance that at the time of his examination or examinations the insured was not suffering from any grave or serious disease, and that he was free from any ailment that seriously affects the general soundness of healthfulness of the system. She also submitted the affidavit of the physician who conducted the physical examination of the insured in connection with the application for the insurance. He stated in substance that in his opinion, the insured was then in excellent health and had no grave or serious ailment and was free from any ailment that seriously affects the general soundness or healthfulness of the system. No affidavit of the heart specialist was submitted by either party. The court entered summary judgment for the defendant, and the plaintiff appealed.
The record makes it clear that the action of the court in entering summary judgment for the defendant was predicated upon the conclusion that false answers were given to certain questions in the application for the policy and that therefore the plaintiff could not recover. It is the law in Colorado that a false statement of fact material to the risk contained in the application will avoid the policy, whether the misrepresentation be the result of intention or of mistake, and whether made in good faith or otherwise. German Life Insurance Co. v. Klein, 25 Colo.App.326, 137 P. 73; North American Life Insurance Co. of Chicago v. Korrey, 113 Colo. 359, 157 P.2d 149. But it is also the well recognized rule that where an application for a policy of insurance discloses upon its face that a question as incompletely or imperfectly answered, or Is not answered at all, the acceptance of the application and the issuance of the policy without request for clarification or completion of the application constitutes a waiver of the incompleteness or imperfection of the answer, or the failure to answer at all, and renders such condition of the application immaterial. Phoenix Mutual Life Insurance Co. v. Raddin, 120 U.S. 183, 7 S.Ct. 500, 30 L.Ed. 644; Pacific Mutual Life Insurance Co. v. Van Fleet, 47 Colo. 401, 107 P. 1087.
Question 8 in the application for the policy in suit inquired in pertinent part whether the applicant had been advised to have a surgical operation or whether he ■contemplated having one, and it was answered in the affirmative. Question 15 was whether the applicant had consulted a physician or had been under medical care during the past ten years. A blank space was provided for the answer “yes” or “no”, and that space was not filled. Nothing was inserted in it. It was left blank. Following such blank were the words “If so, give the details below”. And tabulated below were the words “Disease or Injury”, '“Date — Month and Year”, “Complications”, “Duration and Date of Recovery”, “Remaining Effects”, and “Medical Attendant’s Name and Address”, with a blank space under each in which to tabulate the information. Under the words “Disease and Injury” the word “None” was inserted in writing. The other spaces were left blank. Nothing was inserted in them. The failure to make any answer “yes” or “no” to the question whether the applicant had consulted a physician or had been under medical care during the preceding ten years indicated with emphasis the incompleteness of the application and the propriety of requesting an answer or additional information in respect of the 'fact which was material to the risk, especially in view of the answer given to question 8 that the applicant had been advised to have a surgical operation or contemplated having one. And the insertion of the word “None” below the words “Disease or Injury” did not make the answer complete and inaccurate or false in point of fact. It still remained incomplete. But the defendant accepted it in that form, made no request for completion, clarification, or additional information, and issued the policy upon it. Therefore, it waived and rendered immaterial any incompleteness or inaccuracy of fact contained in the application as to whether the applicant had consulted a physician or been under medical care during tile preceding ten years. Phoenix Mutual Life Insurance Co. v. Raddin, supra; Pacific Mutual Life Insurance Co. v. Van Fleet, supra. And having waived and rendered immaterial such incompleteness or inaccuracy of fact, the defendant was not entitled to judgment on the ground of falsity of the answer to that question.
Question 12 in the application inquired in pertinent part whether the applicant was then free from disease and was in sound health, and it was answered in the affirmative. The defendant pleaded affirmatively in its answer that such answer was false; that the applicant knew it to be false; and that he made such answer and gave such statement for the purpose of deceiving the defendant and inducing it to issue the policy. The answer pleaded a defense to the right to recover on the policy for falsity of the answer to that question. German Life Insurance Co. v. Klein, supra; North American Life Insurance Co. of Chicago v. Korrey, supra. But the pleading merely tendered the issue of fact for determination at the trial. And the issue of fact was not admitted by plaintiff. Neither was it resolved by the ex parte affidavits submitted by her in support of her motion for summary judgment. It was still joined for determination at the trial before the court or the jury. And Federal Rule of Civil Procedure 56, 28 U.S.C.A., authorizes the entry of a summary judgment only where it affirmatively appears from the pleadings, depositions, and admissions on file, together with the affidavits, if any, that except as to the amount of damages there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. A genuine issue of fact being joined in respect of the falsity of the answer to question 12, both motions for summary judgment should have been denied.
The judgment is reversed and the cause remanded.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_issuearea
|
B
|
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.
AVERY v. GEORGIA.
No. 648.
Argued April 30, 1953.
Decided May 25, 1953.
Frank M. Gleason argued the cause and filed a brief for petitioner.
M. H. Blackshear, Jr., Deputy Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Eugene Cook, Attorney General, Lamar W. Sizemore, Assistant Attorney General, and Paul Webb.
Mr. Chief Justice Vinson
delivered the opinion of the Court.
Petitioner was tried for rape in the Superior Court of Fulton County, Georgia. He was convicted and sentenced to death. The Supreme Court of Georgia affirmed after overruling petitioner’s contention that the jury which convicted him had been selected by a means repugnant to the Equal Protection Clause of the Fourteenth Amendment. We granted certiorari to review this claim. 345 U. S. 903.
The indictment, upon which petitioner was tried, was returned by a grand jury in Walker County, Georgia. A change of venue was granted and the cause removed to Fulton County. By proper pleadings petitioner, a Negro, challenged the array of petit jurors selected to try his case; he charged that discrimination had been practiced against members of his race. Testimony was then taken, and thereafter the trial court overruled the challenge.
The salient facts, developed in this hearing, are undisputed. Under Georgia law the task of organizing panels of petit jurors for criminal cases falls upon a county Board of Jury Commissioners. In discharging this responsibility the Commissioners, at stated intervals, select prospective jurors from the county tax returns. Their list is then printed; the names of white persons on this list are printed on white tickets; the names of Negroes are printed on yellow tickets. These tickets — white and yellow — are placed in a jury box. A judge of the Superior Court then draws a number of tickets from the box. The tickets are handed to a sheriff who in turn entrusts them to a clerk. It is the clerk’s duty to “arrange” the tickets and to type up, in final form, the list of persons to be called to serve on the panel.
Approximately sixty persons were selected to make up the panel from which the jury in this particular case was drawn. The judge who picked out the tickets — bearing the names of persons composing the panel — testified that he did not, nor had he ever, practiced discrimination in any way, in the discharge of that duty. There is no contradictory evidence. Yet the fact remains that there was not a single Negro in that panel. The State concedes that Negroes are available for jury service in Fulton County, and we are told that Negroes generally do serve on juries in the courts of that county. The question we must decide, based upon our independent analysis of the record, is whether petitioner has made a sufficient showing of discrimination in the organization of this particular panel. We think he has.
The Jury Commissioners, and the other officials responsible for the selection of this panel, were under a constitutional duty to follow a procedure — “a course of conduct” — which would not “operate to discriminate in the selection of jurors on racial grounds.” Hill v. Texas, 316 U. S. 400, 404 (1942). If they failed in that duty, then this conviction must be reversed — no matter how strong the evidence of petitioner’s guilt. That is the law established by decisions of this Court spanning more than seventy years of interpretation of the meaning of “equal protection.”
Petitioner’s charge of discrimination in the jury selection in this case springs from the Jury Commissioners’ use of white and yellow tickets. Obviously that practice makes it easier for those to discriminate who are of a mind to discriminate. Further, the practice has no authorization in the Georgia statutes — which simply enjoin the Commissioners to select “upright and intelligent men to serve as jurors . ...” It is important to note that the Supreme Court of Georgia, in this case, specifically disapproved of the use of separately colored tickets in Fulton County, saying that it constituted “prima facie evidence of discrimination.”
We agree. Even if the white and yellow tickets were drawn from the jury box without discrimination, opportunity was available to resort to it at other stages in the selection process. And, in view of the case before us, where not a single Negro was selected to serve on a panel of sixty — though many were available — we think that petitioner has certainly established a prima facie case of discrimination.
The court below affirmed, however, because petitioner had failed to prove some particular act of discrimination by some particular officer responsible for the selection of the jury; and the State now argues that it is petitioner’s burden to fill this “factual vacuum.” We cannot agree. If there is a “vacuum” it is one which the State must fill, by moving in with sufficient evidence to dispel the prima facie case of discrimination. We have held before, and the Georgia Supreme Court, itself, recently followed these decisions, that when a prima facie case of discrimination is presented, the burden falls, forthwith, upon the State to overcome it. The State failed to meet this test.
Reversed.
Mr. Justice Black concurs in the result.
Mr. Justice Jackson took no part in the consideration or decision of this case.
Avery v. State, 209 Ga. 116, 70 S. E. 2d 716 (1952).
Norris v. Alabama, 294 U. S. 587 (1935).
E. g., Neal v. Delaware, 103 U. S. 370 (1881); Rogers v. Alabama, 192 U. S. 226 (1904); Norris v. Alabama, supra; Pierre v. Louisiana, 306 U. S. 354 (1939); Cassell v. Texas, 339 U. S. 282 (1950).
Ga. Code Ann. § 59-106. See Crumb v. State, 205 Ga. 547, 54 S. E. 2d 639 (1949).
Norris v. Alabama, supra, 294 U. S., at 594-595, 598; Hill v. Texas, 316 U. S. 400, 405-406 (1942); Patton v. Mississippi, 332 U. S. 463 (1947).
Crumb v. State, supra.
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_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.
Robert D. NELLIGAN and Owen B. Nelligan, Jr., partners doing business under the partnership name of The Nelligans, Appellants, v. FORD MOTOR COMPANY, a corporation, Appellee.
No. 7725.
United States Court of Appeals Fourth Circuit.
Argued Nov. 11, 1958.
Decided Jan. 5, 1959.
Myron N. Krotinger, Cleveland, Ohio, and Thomas A. Wofford, Greenville, S. C. (Mendelsohn, Krotinger & Lane, Cleveland, Ohio, on brief), for appellants.
J. D. Todd, Jr., Greenville, S. C. (Wesley M. Walker and Leatherwood, Walker, Todd & Mann, Greenville, S. C., on brief), for appellee.
Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and THOMSEN, District Judge.
THOMSEN, District Judge.
This is another private antitrust action against Ford Motor Company in which a franchise dealer claims that the sales agreements and advertising agreements which he was forced to sign in order to retain his dealership violated both the Sherman Act and the Clayton Act, 15 U.S.C.A. §§ 1-7, 15 note, 12 et seq. In Miller Motors, Inc. v. Ford Motor Co., 4 Cir., 252 F.2d 441, this court held that under the evidence in that case Ford’s requirement that the dealers contribute a certain amount per car to LMDA, a nonprofit corporation organized for Lincoln-Mercury dealer advertising, did not violate the Sherman Act, and that Miller’s claim under the Clayton Act, which was based upon the required purchase of parts and accessories, was barred by limitations.
In the instant case plaintiffs are appealing from an order dismissing their amended complaint. Plaintiffs contend that the complaint sufficiently alleges a violation of the antitrust laws, in that: the sales agreements and advertising agreements taken together constituted an attempt to monopolize under sec. 2 of the Sherman Act; that the requirements that the dealers contribute $25 per car to LMDA advertising was a tying arrangement which was illegal under sec. 3 of the Clayton Act, and was an unreasonable restraint of trade under sec. 1 of the Sherman Act; and that the cancellation of plaintiffs’ sales agreements violated the antitrust laws.
In September, 1953, plaintiff partnership was formed to take over the business of a corporation which had been a Lincoln-Mercury dealer since December, 1946. The predecessor corporation assigned to plaintiffs the sales agreements and the other agreements which it had entered into with Ford, including the Lincoln-Mercury Dealer Advertising Fund Agreement.
Plaintiffs contend that these agreements contained provisions which permitted Ford “to monopolize the market for cars, parts and accessories presented by the many thousands of dealers who entered into such agreements”, in violation of sec. 2 of the Sherman Act. However, as the Supreme Court noted in United States v. E. I. Du Pont De Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 1006, 100 L.Ed. 1264, the power which “automobile or soft-drink manufacturers have over their trade marked products is not the power that makes an illegal monopoly”. Plaintiffs do not allege that Ford monopolized or attempted to monopolize the market for automobiles, parts or accessories generally, but only the market represented by its own franchise dealers. And plaintiffs do not allege, as Miller did, that they were forced to purchase any parts or accessories which they did not want. Cf. D.C., 149 F.Supp. 790, at page 807; 252 F.2d 441, at page 448.
The complaint alleges that Ford’s right to terminate a dealership at will on sixty days notice, together with other provisions contained in the agreements, permitted Ford to control and dominate the business of its dealers in violation of sec. 1 of the Sherman Act, and to coerce plaintiffs and other dealers into courses and methods of conducting business which they as independent businessmen would not otherwise have pursued. Plaintiffs’ principal complaint is that they were required by Ford to contribute $25 per ear to LMDA, which spent the money principally for national TV advertising programs which plaintiffs allege were not received in the Greenville, South Carolina, area, and which “did not, in the opinion of the plaintiff, assist plaintiff in its sales as greatly as would a program of local advertising purchased by plaintiff with the same funds”. The complaint also alleges that in 1953 plaintiffs spent $37,550.82 for advertising, of which $13,300.00 was paid for LMDA advertising and the remaining $24,250.82 for local advertising.
The facts alleged in the complaint in the instant case with respect to LMDA are essentially similar to the facts proved in the Miller case, where this court said: “Even if we accept plaintiff’s argument that LMDA’s are a creation of the Ford Motor Company, organized solely to raise advertising funds for its products, the action would nevertheless fail. It is not sufficient for the plaintiff to prove a cooperative effort between Ford and LM-DA, but it must be shown that the combination has the objectionable features which the act is designed to prevent.”
Like Miller, this case is distinguishable from the GMAC case, United States v. General Motors Corp., 7 Cir., 121 F.2d 376, upon which plaintiffs strongly rely. (1) In that case the indictment charged and the , evidence showed that General Motors Corp., General Motors Sales Corp., and General Motors Acceptance Corp. conspired to restrain unreasonably interstate trade and commerce in General Motors cars, and that their purpose was to control the financing essential to the wholesale purchase and retail sale of General Motors cars. GMAC was owned by General Motors; the conspirators had identical interests: to make money for the General Motors family. In this case, however, the interests of Ford and LMDA are not identical. It is not alleged that Ford owned or controlled LMDA; it is composed of Lineoln-Mercury dealers, who are interested in promoting the sale of Lincolns and Mercurys against all other automobiles, including Fords. (2) The scheme to require GMAC financing bore no relation to the good will of General Motors or its line of cars, whereas the advertising of Lincoln and Mercury automobiles has a most important bearing on the good will of defendant and its line of cars. (3) GMAC was selling financing and was in active competition with other finance companies. Neither Ford nor LMDA is selling advertising; both of them are buying advertising. It is not alleged that Ford had any interest in the advertising agency used by LMDA except to obtain effective advertising service from it. All agencies and all media had a right to compete for the advertising purchased by LMDA. (4) General Motors required dealers to promise to use GMAC financing exclusively. Ford did not require Lineoln-Mercury dealers to use LMDA advertising exclusively or to promise to use it exclusively. (5) General Motors was reaching out to monopolize the business of financing the resale of automobiles which it manufactured. Ford was not using its economic position-as an automobile manufacturer to invade- and dominate the advertising business.
The arrangement is entirely different from the tying agreements held to be illegal per se in International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; and in Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed.2d 545; See Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277; Klor’s Inc. v. Broadway-Hale Stores, 9 Cir., 255 F.2d 214; Turner, Tying Arrangements, 72: Harv.L.R. 50, 72.
No facts are alleged by plaintiffs which tend to show that the amounts which they spent on LMDA advertising restrained trade in automobiles. Miller Motors, Inc. v. Ford Motor Co., supra.
Moreover, the facts alleged' show no restraint of trade or commerce-in advertising. Some advertising agencies or advertising media may lose some-dealer advertising as a result of co-ordinated LMDA advertising; that is true-of advertising by any association. But advertising by associations does not violate the Sherman Act unless it restricts, competition or tends to create a monopoly to an extent far beyond anything alleged in the amended complaint. In addition to-their LMDA advertising, plaintiffs spent many thousands of dollars for local advertising which plaintiffs themselves selected. Except that participation in LM-DA was required by Ford, the LMDA plan differs little from other cooperative advertising plans, which are “béneficiali to the industry and to consumers”. Maple Flooring Mfrs.’ Ass’n v. United States, 268 U.S. 563, 566, 45 S.Ct. 578, 579, 69 L.Ed. 1093.
Finally, plaintiffs argue that the cancellation of plaintiffs’ sales agreements “was the result of a coercive and unlawful conspiracy resulting from plaintiffs’ protests against and unwillingness to continue to make the contributions to LMDA * * Miller made a similar argument in the district court, but abandoned it on appeal. Plaintiffs here, like Miller, refer to the facts developed by Congressional committees which studied the automobile industry in 1955 and 1956. The reports of those committees are discussed in the district court’s opinion in Miller, 149 F.Supp. at page 810-811, and in a footnote to the opinion on appeal, 252 F.2d at page 451. The Congressional committees concluded that the antitrust laws did not afford automobile dealers a remedy against inequitable and oppressive use of the manufacturers’ superior economic power, citing Judge Parker's opinion in Ford Motor Co. v. Kirkmyer Motor Co., 4 Cir., 65 F.2d 1001. Congress found it necessary to “supplement the antitrust laws of the United States” by adopting the “Automobile Dealer’s Day in Court” statute, 15 U.S.C.A. 1221 et seq. That statute does not apply in this case. We cannot sustain a complaint which does not allege with reasonable definiteness facts from which the court may infer conduct in restraint of trade of the kind prohibited by the antitrust laws, and from which an inference of public injury may reasonably be extracted. Alexander Milburn Co. v. Union Carbide & Carbon Corp., 4 Cir., 15 F.2d 678, 680; Floyd v. Gage, 4 Cir., 192 F.2d 137, 139. See Radovich v. National Football League, 352 U.S. 445, 453, 77 S.Ct. 390, 1 L.Ed.2d 456; Klor’s Inc. v. Broadway-Hale Stores, supra.
The district court did not err in granting defendant’s motion to dismiss the amended complaint.
Affirmed.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
sc_caseorigin
|
109
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
STAR ATHLETICA, L.L.C., Petitioner
v.
VARSITY BRANDS, INC., et al.
No. 15-866.
Supreme Court of the United States
Argued Oct. 31, 2016.
Decided March 22, 2017.
John J. Bursch, Grand Rapids, MI, for petitioner.
William M. Jay, Washington, DC, for respondents.
Eric J. Feigin for the United States as amicus curiae, by special leave of the Court, supporting the respondents.
Steven M. Crosby, Stephen E. Feldman, The Feldman Law Group, New York, NY, Michael F. Rafferty, Emily Hamm Huseth, Harris Shelton Hanover, Walsh, P.L.L.C., Memphis, TN, John J. Bursch, Bursch Law PLLC, Caledonia, MI, Matthew T. Nelson, Conor B. Dugan, Warner Norcross & Judd LLP, Grand Rapids, MI, for petitioner.
Grady M. Garrison, Adam S. Baldridge, Baker, Donelson, Bearman, Caldwell & Berkowitz P.C., Memphis, TN, William M. Jay, Brian T. Burgess, Goodwin Procter LLP, Washington, DC, Thomas Kjellberg, Cowan, Liebowitz & Latman, P.C., New York, NY, Robert D. Carroll, Goodwin Procter LLP, Boston, MA, Charles T. Cox Jr., Goodwin Procter LLP, Washington, DC, for respondents.
Justice THOMAS delivered the opinion of the Court.
Congress has provided copyright protection for original works of art, but not for industrial designs. The line between art and industrial design, however, is often difficult to draw. This is particularly true when an industrial design incorporates artistic elements. Congress has afforded limited protection for these artistic elements by providing that "pictorial, graphic, or sculptural features" of the "design of a useful article" are eligible for copyright protection as artistic works if those features "can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C. § 101.
We granted certiorari to resolve widespread disagreement over the proper test for implementing § 101's separate-identification and independent-existence requirements. 578 U.S. ----, 136 S.Ct. 1823, 194 L.Ed.2d 829 (2016). We hold that a feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work-either on its own or fixed in some other tangible medium of expression-if it were imagined separately from the useful article into which it is incorporated. Because that test is satisfied in this case, we affirm.
I
Respondents Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity Spirit Fashions & Supplies, Inc., design, make, and sell cheerleading uniforms. Respondents have obtained or acquired more than 200 U.S. copyright registrations for two-dimensional designs appearing on the surface of their uniforms and other garments. These designs are primarily "combinations, positionings, and arrangements of elements" that include "chevrons..., lines, curves, stripes, angles, diagonals, inverted [chevrons], coloring, and shapes." App. 237. At issue in this case are Designs 299A, 299B, 074, 078, and 0815. See Appendix, infra.
Petitioner Star Athletica, L.L.C., also markets and sells cheerleading uniforms. Respondents sued petitioner for infringing their copyrights in the five designs. The District Court entered summary judgment for petitioner on respondents' copyright claims on the ground that the designs did not qualify as protectable pictorial, graphic, or sculptural works. It reasoned that the designs served the useful, or "utilitarian," function of identifying the garments as "cheerleading uniforms" and therefore could not be "physically or conceptually" separated under § 101"from the utilitarian function" of the uniform. 2014 WL 819422, *8-*9 (W.D.Tenn., Mar. 1, 2014).
The Court of Appeals for the Sixth Circuit reversed. 799 F.3d 468, 471 (2015). In its view, the "graphic designs" were "separately identifiable" because the designs "and a blank cheerleading uniform can appear'side by side'-one as a graphic design, and one as a cheerleading uniform." Id., at 491 (quoting Compendium of U.S. Copyright Office Practices § 924.2(B) (3d ed. 2014) (Compendium)). And it determined that the designs were " 'capable of existing independently' " because they could be incorporated onto the surface of different types of garments, or hung on the wall and framed as art. 799 F.3d, at 491, 492.
Judge McKeague dissented. He would have held that, because "identifying the wearer as a cheerleader" is a utilitarian function of a cheerleading uniform and the surface designs were "integral to" achieving that function, the designs were inseparable from the uniforms. Id., at 495-496.
II
The first element of a copyright-infringement claim is "ownership of a valid copyright." Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). A valid copyright extends only to copyrightable subject matter. See 4 M. Nimmer & D. Nimmer, Copyright § 13.01[A] (2010) (Nimmer). The Copyright Act of 1976 defines copyrightable subject matter as "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102(a).
"Works of authorship" include "pictorial, graphic, and sculptural works," § 102(a)(5), which the statute defines to include "two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans," § 101. And a work of authorship is " 'fixed' in a tangible medium of expression when it[ is] embodi[ed] in a" "material objec[t]... from which the work can be perceived, reproduced, or otherwise communicated." Ibid. (definitions of "fixed" and "copies").
The Copyright Act also establishes a special rule for copyrighting a pictorial, graphic, or sculptural work incorporated into a "useful article," which is defined as "an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information." Ibid. The statute does not protect useful articles as such. Rather, "the design of a useful article" is "considered a pictorial, graphical, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Ibid.
Courts, the Copyright Office, and commentators have described the analysis undertaken to determine whether a feature can be separately identified from, and exist independently of, a useful article as "separability." In this case, our task is to determine whether the arrangements of lines, chevrons, and colorful shapes appearing on the surface of respondents' cheerleading uniforms are eligible for copyright protection as separable features of the design of those cheerleading uniforms.
A
As an initial matter, we must address whether separability analysis is necessary in this case.
1
Respondents argue that "[s]eparability is only implicated when a [pictorial, graphic, or sculptural] work is the 'design of a useful article.' " Brief for Respondents 25. They contend that the surface decorations in this case are "two-dimensional graphic designs that appear on useful articles," but are not themselves designs of useful articles. Id., at 52. Consequently, the surface decorations are protected two-dimensional works of graphic art without regard to any separability analysis under § 101. Ibid. ; see 2 W. Patry, Copyright § 3:151, p. 3-485 (2016) (Patry) ("Courts looking at two-dimensional design claims should not apply the separability analysis regardless of the three-dimensional form that design is embodied in"). Under this theory, two-dimensional artistic features on the surface of useful articles are "inherently separable." Brief for Respondents 26.
This argument is inconsistent with the text of § 101. The statute requires separability analysis for any "pictorial, graphic, or sculptural features" incorporated into the "design of a useful article." "Design" refers here to "the combination" of "details" or "features" that "go to make up" the useful article. 3 Oxford English Dictionary 244 (def. 7, first listing) (1933) (OED). Furthermore, the words "pictorial" and "graphic" include, in this context, two-dimensional features such as pictures, paintings, or drawings. See 4 id., at 359 (defining "[g]raphic" to mean "[o]f or pertaining to drawing or painting"); 7 id., at 830 (defining "[p]ictorial" to mean "of or pertaining to painting or drawing"). And the statute expressly defines "[p]ictorial, graphical, and sculptural works" to include "two-dimensional... works of... art." § 101. The statute thus provides that the "design of a useful article" can include two-dimensional "pictorial" and "graphic" features, and separability analysis applies to those features just as it does to three-dimensional "sculptural" features.
2
The United States makes a related but distinct argument against applying separability analysis in this case, which respondents do not and have not advanced. As part of their copyright registrations for the designs in this case, respondents deposited with the Copyright Office drawings and photographs depicting the designs incorporated onto cheerleading uniforms. App. 213-219; Appendix, infra. The Government argues that, assuming the other statutory requirements were met, respondents obtained a copyright in the deposited drawings and photographs and have simply reproduced those copyrighted works on the surface of a useful article, as they would have the exclusive right to do under the Copyright Act. See Brief for United States as Amicus Curiae 14-15, 17-22. Accordingly, the Government urges, separability analysis is unnecessary on the record in this case. We generally do not entertain arguments that were not raised below and that are not advanced in this Court by any party, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ----, ----, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014), because "[i]t is not the Court's usual practice to adjudicate either legal or predicate factual questions in the first instance," CRST Van Expedited, Inc. v. EEOC, 578 U.S. ----, ----, 136 S.Ct. 1642, 1653, 194 L.Ed.2d 707 (2016). We decline to depart from our usual practice here.
B
We must now decide when a feature incorporated into a useful article "can be identified separately from" and is "capable of existing independently of" "the utilitarian aspects" of the article. This is not a free-ranging search for the best copyright policy, but rather "depends solely on statutory interpretation." Mazer v. Stein, 347 U.S. 201, 214, 74 S.Ct. 460, 98 L.Ed. 630 (1954). "The controlling principle in this case is the basic and unexceptional rule that courts must give effect to the clear meaning of statutes as written." Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992). We thus begin and end our inquiry with the text, giving each word its "ordinary, contemporary, common meaning." Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) (internal quotation marks omitted). We do not, however, limit this inquiry to the text of § 101 in isolation. "[I]nterpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning." Maracich v. Spears, 570 U.S. ----, ----, 133 S.Ct. 2191, 2203, 186 L.Ed.2d 275 (2013). We thus "look to the provisions of the whole law" to determine § 101's meaning. United States v. Heirs of Boisdore, 8 How. 113, 122, 12 L.Ed. 1009 (1849).
1
The statute provides that a "pictorial, graphic, or sculptural featur [e]" incorporated into the "design of a useful article" is eligible for copyright protection if it (1) "can be identified separately from," and (2) is "capable of existing independently of, the utilitarian aspects of the article." § 101. The first requirement-separate identification-is not onerous. The decisionmaker need only be able to look at the useful article and spot some two- or three-dimensional element that appears to have pictorial, graphic, or sculptural qualities. See 2 Patry § 3:146, at 3-474 to 3-475.
The independent-existence requirement is ordinarily more difficult to satisfy. The decisionmaker must determine that the separately identified feature has the capacity to exist apart from the utilitarian aspects of the article. See 2 OED 88 (def. 5) (defining "[c]apable" of as "[h]aving the needful capacity, power, or fitness for"). In other words, the feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in § 101 once it is imagined apart from the useful article. If the feature is not capable of existing as a pictorial, graphic, or sculptural work once separated from the useful article, then it was not a pictorial, graphic, or sculptural feature of that article, but rather one of its utilitarian aspects.
Of course, to qualify as a pictorial, graphic, or sculptural work on its own, the feature cannot itself be a useful article or "[a]n article that is normally a part of a useful article" (which is itself considered a useful article). § 101. Nor could someone claim a copyright in a useful article merely by creating a replica of that article in some other medium-for example, a cardboard model of a car. Although the replica could itself be copyrightable, it would not give rise to any rights in the useful article that inspired it.
2
The statute as a whole confirms our interpretation. The Copyright Act provides "the owner of [a] copyright" with the "exclusive righ[t]... to reproduce the copyrighted work in copies." § 106(1). The statute clarifies that this right "includes the right to reproduce the [copyrighted] work in or on any kind of article, whether useful or otherwise." § 113(a).
Section 101 is, in essence, the mirror image of § 113(a). Whereas § 113(a) protects a work of authorship first fixed in some tangible medium other than a useful article and subsequently applied to a useful article, § 101 protects art first fixed in the medium of a useful article. The two provisions make clear that copyright protection extends to pictorial, graphic, and sculptural works regardless of whether they were created as freestanding art or as features of useful articles. The ultimate separability question, then, is whether the feature for which copyright protection is claimed would have been eligible for copyright protection as a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful article before being applied to a useful article.
3
This interpretation is also consistent with the history of the Copyright Act. In Mazer, a case decided under the 1909 Copyright Act, the respondents copyrighted a statuette depicting a dancer. The statuette was intended for use as a lamp base, "with electric wiring, sockets and lamp shades attached." 347 U.S., at 202, 74 S.Ct. 460. Copies of the statuette were sold both as lamp bases and separately as statuettes. Id., at 203, 74 S.Ct. 460. The petitioners copied the statuette and sold lamps with the statuette as the base. They defended against the respondents' infringement suit by arguing that the respondents did not have a copyright in a statuette intended for use as a lamp base. Id., at 204-205, 74 S.Ct. 460.
Two of Mazer's holdings are relevant here. First, the Court held that the respondents owned a copyright in the statuette even though it was intended for use as a lamp base. See id., at 214, 74 S.Ct. 460. In doing so, the Court approved the Copyright Office's regulation extending copyright protection to works of art that might also serve a useful purpose. See ibid. (approving 37 C.F.R. § 202.8(a) (1949) (protecting "works of artistic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned")).
Second, the Court held that it was irrelevant to the copyright inquiry whether the statuette was initially created as a freestanding sculpture or as a lamp base. 347 U.S., at 218-219, 74 S.Ct. 460 ("Nor do we think the subsequent registration of a work of art published as an element in a manufactured article, is a misuse of copyright. This is not different from the registration of a statuette and its later embodiment in an industrial article"). Mazer thus interpreted the 1909 Act consistently with the rule discussed above: If a design would have been copyrightable as a standalone pictorial, graphic, or sculptural work, it is copyrightable if created first as part of a useful article.
Shortly thereafter, the Copyright Office enacted a regulation implementing the holdings of Mazer. See 1 Nimmer § 2A.08[B][1][b] (2016). As amended, the regulation introduced the modern separability test to copyright law:
"If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be identified separately and are capable of existing independently as a work of art, such features will be eligible for registration." 37 C.F.R. § 202.10(c) (1960) (punctuation altered).
Congress essentially lifted the language governing protection for the design of a useful article directly from the post-Mazer regulations and placed it into § 101 of the 1976 Act. Consistent with Mazer, the approach we outline today interprets §§ 101 and 113 in a way that would afford copyright protection to the statuette in Mazer regardless of whether it was first created as a standalone sculptural work or as the base of the lamp. See 347 U.S., at 218-219, 74 S.Ct. 460.
C
In sum, a feature of the design of a useful article is eligible for copyright if, when identified and imagined apart from the useful article, it would qualify as a pictorial, graphic, or sculptural work either on its own or when fixed in some other tangible medium.
Applying this test to the surface decorations on the cheerleading uniforms is straightforward. First, one can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in another medium-for example, on a painter's canvas-they would qualify as "two-dimensional... works of... art," § 101. And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents have applied the designs in this case to other media of expression-different types of clothing-without replicating the uniform. See App. 273-279. The decorations are therefore separable from the uniforms and eligible for copyright protection.
The dissent argues that the designs are not separable because imaginatively removing them from the uniforms and placing them in some other medium of expression-a canvas, for example-would create "pictures of cheerleader uniforms." Post, at 1035 - 1036 (opinion of BREYER, J.). Petitioner similarly argues that the decorations cannot be copyrighted because, even when extracted from the useful article, they retain the outline of a cheerleading uniform. Brief for Petitioner 48-49.
This is not a bar to copyright. Just as two-dimensional fine art corresponds to the shape of the canvas on which it is painted, two-dimensional applied art correlates to the contours of the article on which it is applied. A fresco painted on a wall, ceiling panel, or dome would not lose copyright protection, for example, simply because it was designed to track the dimensions of the surface on which it was painted. Or consider, for example, a design etched or painted on the surface of a guitar. If that entire design is imaginatively removed from the guitar's surface and placed on an album cover, it would still resemble the shape of a guitar. But the image on the cover does not "replicate" the guitar as a useful article. Rather, the design is a two-dimensional work of art that corresponds to the shape of the useful article to which it was applied. The statute protects that work of art whether it is first drawn on the album cover and then applied to the guitar's surface, or vice versa. Failing to protect that art would create an anomaly: It would extend protection to two-dimensional designs that cover a part of a useful article but would not protect the same design if it covered the entire article. The statute does not support that distinction, nor can it be reconciled with the dissent's recognition that "artwork printed on a t-shirt" could be protected. Post, at 1019 (internal quotation marks omitted).
To be clear, the only feature of the cheerleading uniform eligible for a copyright in this case is the two-dimensional work of art fixed in the tangible medium of the uniform fabric. Even if respondents ultimately succeed in establishing a valid copyright in the surface decorations at issue here, respondents have no right to prohibit any person from manufacturing a cheerleading uniform of identical shape, cut, and dimensions to the ones on which the decorations in this case appear. They may prohibit only the reproduction of the surface designs in any tangible medium of expression-a uniform or otherwise.
D
Petitioner and the Government raise several objections to the approach we announce today. None is meritorious.
1
Petitioner first argues that our reading of the statute is missing an important step. It contends that a feature may exist independently only if it can stand alone as a copyrightable work and if the useful article from which it was extracted would remain equally useful. In other words, copyright extends only to "solely artistic" features of useful articles. Brief for Petitioner 33. According to petitioner, if a feature of a useful article "advance[s] the utility of the article," id., at 38, then it is categorically beyond the scope of copyright, id., at 33. The designs here are not protected, it argues, because they are necessary to two of the uniforms' "inherent, essential, or natural functions"-identifying the wearer as a cheerleader and enhancing the wearer's physical appearance. Id., at 38, 48; Reply Brief 2, 16. Because the uniforms would not be equally useful without the designs, petitioner contends that the designs are inseparable from the "utilitarian aspects" of the uniform. Brief for Petitioner 50.
The Government raises a similar argument, although it reaches a different result. It suggests that the appropriate test is whether the useful article with the artistic feature removed would "remai[n] similarly useful." Brief for United States as Amicus Curiae 29 (emphasis added). In the view of the United States, however, a plain white cheerleading uniform is "similarly useful" to uniforms with respondents' designs. Id., at 27-28.
The debate over the relative utility of a plain white cheerleading uniform is unnecessary. The focus of the separability inquiry is on the extracted feature and not on any aspects of the useful article that remain after the imaginary extraction. The statute does not require the decisionmaker to imagine a fully functioning useful article without the artistic feature. Instead, it requires that the separated feature qualify as a nonuseful pictorial, graphic, or sculptural work on its own.
Of course, because the removed feature may not be a useful article-as it would then not qualify as a pictorial, graphic, or sculptural work-there necessarily would be some aspects of the original useful article "left
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_appel1_7_5
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Nathaniel J. JACOBS, Appellant, v. WARDEN, MARYLAND PENITENTIARY, Appellee.
No. 9564.
United States Court of Appeals Fourth Circuit.
Argued April 6, 1965.
Decided Oct. 7, 1966.
John H. Ditto, Jr., Baltimore, Md. (Court-assigned counsel), for appellant.
R. Randolph Victor, Asst. Atty. Gen. of Maryland (Thomas B. Finan, Atty. Gen. of Maryland, on the brief), for appellee.
Before HAYNSWORTH, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.
HAYNSWORTH, Chief Judge.
Convicted on a plea of guilty to a charge of armed robbery in a state court, this Maryland prisoner seeks habeas corpus relief upon the ground that his plea was involuntary. The contention depends in large part upon a finding of involuntariness in the confession of a co-defendant which supplied the cause for the arrest, without a warrant, of this appellant, which in turn, it is said, led to his almost spontaneous confession. We affirm the denial of relief.
Jacobs, an employee of a department store, had been filching clothing. Allegedly, he expanded his operation by masterminding an armed robbery. The store was robbed by three men. When one of them, Kelly, was arrested, he signed a confession which, implicated Jacobs as the ringleader. Armed with this information, police officers went to the store and arrested Jacobs. In the presence of the store manager, he did not deny the charge, and, within twenty-five minutes of his arrival at the police station, he admitted his guilt. A few minutes later, he signed a written confession. Later, all participants initialed a joint confession.
Kelly had been arrested without a warrant on the basis of information received from two informants. • The police had not recorded the information they had received and, at the time of the hearing, could not identify the informants beyond general references to their sex. The officers could not vouch for the reliability of those informants.
On that account, the District Court held that there was no probable cause for Kelly’s arrest and that his subsequent confession was the involuntary product of the illegal arrest, though otherwise uncoerced.
Jacobs contends that, since Kelly’s confession has been held involuntary as the technical product of his illegal arrest, it could not furnish probable cause for a belief that Jacobs was a participant in the crime which the officer knew had been committed. He concludes that his arrest must also have been unlawful and his confession the product of the unlawful arrest.
The contention draws the thread too fine. The connection between Kelly’s illegal arrest and his confession is sufficiently close that the latter may be said to be dependent upon the former. The connection between Kelly’s illegal arrest and Jacobs’ confession is far more attenuated. The fruit-of-the-poisonous-tree doctrine need not be extended to its seedlings.
The District Court found, with abundant justification that Kelly’s confession was truthful and trustworthy. Its invalidation as a basis for Kelly’s conviction, because of the technical defect in Kelly’s arrest, was not found to have infected its apparent reliability. At the time the policemen moved to effect the arrest of Jacobs, they had every reason to believe that Kelly’s confession in its implication of Jacobs was reliable information. Its subsequent suppression as support for Kelly’s conviction because of uncertainty of the sources of information which led to Kelly’s arrest cannot gainsay its reliability, apparent at the time to the officers, which all subsequent events have confirmed. An arrest of one of multiple offenders upon improbable cause, or upon cause which years after the event cannot be documented, may invoke rules of exclusion for the protection of the victim of the illegal arrest, but it does not deprive the victim’s statement of the inherent and apparent reliability it convincingly and undeniably bore then and now.
There is no greater merit in the alternative contention that the confession was the tainted product of Kelly’s.
The victim of an unlawful seizure may be able to object successfully to the use of his confession, when the confession is the direct result of confrontation with the fruits of the seizure. Similarly, the victim of an unlawful search cannot be compelled to produce evidence upon process dependent upon information obtained in the course of the search. In some instances, such a rule may be the only effective sanction against an unlawful search and seizure, and a refusal to apply it may deprive the prohibition of its substance.
That rule, however, has been applied only to the protection of the victim of the search from its immediate, if collateral, consequences. Its purpose is to restore the victim to the position he would have been in had his right to be secure from an unlawful search been observed. It has never been extended to cloak strangers to the unlawful search with absolute or conditional immunities.
The District Court, here, applied a similar rule to redress the wrong done Kelly when he was arrested without probable cause. Refusal to permit use of Kelly’s confession against him, however, is an entirely sufficient recompense. The protection of Kelly’s right does not require that others, who have suffered no deprivation of their rights, be made the beneficiaries of the exclusionary rule.
Again, Kelly’s confession had all of the hallmarks of trustworthiness. If now it must be held unusable against Kelly because the police, who kept no records to prod their memories after the lapse of time, are now unable to identify their informants and justify Kelly’s arrest, there was no unfairness of constitutional proportion in confronting Jacobs with the information Kelly had furnished the police.
Jacobs does not show that his own confession was involuntary by establishing its responsiveness to word of Kelly’s.
In the District Court, on the habeashearing, Jacobs claimed other coercive practices. The District Court did not believe his testimony. It found that he was not refused permission to telephone a lawyer. He was not denied access to a telephone. He did call his wife. No pressure was brought upon him. A rather equivocal admission of guilt was made upon his arrest in the store; a full confession had been made and completed within half an hour after his arrival at the police station.
The District Court’s finding that the confession was voluntary is abundantly supported by the record. This 1961 case is not subject to Escobedo’s or Miranda’s standards.
Affirmed.
. The District Court treated Kelly’s and Jacobs’ cases in one opinion. Kelly v. Warden, D.C., Md., 230 F.Supp. 551.
. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
. Cf. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.
. Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.
. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L. Ed. 319.
. Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.
. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694.
. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_appel1_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").
VON ROSEN v. DEAN.
No. 4952.
Court of Appeals of District of Columbia.
Argued May 6, 1930.
Decided June 2, 1930.
F. B. Rhodes and Cooper B. Rhodes, both of Washington, D. C., for appellant.
T. Moms Wampler, of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
This appeal is from a judgment on demurrer to a declaration which attempts to make a case for the recovery of usurious interest under sections 1180 and 1181 of the Code; and also under the Act of Congress of February 4, 1913, 37 Stat. 657, commonly called the Loan Shark Law.
It appears from the declaration that on the 6th day of June, 1927, the plaintiff purchased certain real estate, on which he assumed the payment of certain notes secured by a deed of trust. Thei unpaid balance on the notes at the time of the purchase amounted to $177,500. Shortly after the purchase, the amount was reduced to $175,000. On the 8th day of May, 1928, there became due and payable from plaintiff to the defendant interest on the indebtedness amounting to $6,-125. There was also due at that time a payment on the principal sum of $2,500, making a total of $8,625. For an extension of time or forbearance for payment for thirty days until June 7, 1928, plaintiff paid defendant the sum of $500. For a further extension of three days, defendant exacted from plaintiff the sum of1 $200. And, for a further extension and forbearance of ten days, plaintiff paid defendant the sum of $800. On June 1, 1928, plaintiff curtailed the indebtedness in the sum of $900; and, in order to secure an extension and forbearance until August 7th following, the plaintiff paid the further sum of $300. On August 7th, plaintiff made a further curtailment of the principal sum of $500; and, in order to secure a further extension and forbearance until August 20th, plaintiff paid the defendant the sum of $300. On August 20th, the indebtedness was further curtailed, leaving a balance of $6,725; and, to secure a further extension and forbearance of ten days, plaintiff paid defendant the sum of $200. On September 1st the indebtedness was reduced to the sum of $3,000; and, to secure a further extension and forbearance on the balance due for thirty days, or until October 1st, plaintiff paid the defendant the sum of $200. On October 1st, the principal indebtedness was reduced to a balance of $2,-000, on which plaintiff paid defendant, for a further extension and forbearance until October 31st, the sum of $200, at which time the balance of the debt amounting to $2,000 was paid.
In addition to the foregoing amounts paid for extension and forbearance, plaintiff paid to defendant interest at the rate of 7 per cent. The amount thus paid as interest amounted to $211.32. The total sum above enumerated, as payments for extension, forbearance, and interest, amounted to $2,911.32.
It is alleged in the declaration “that all of the payments heretofore enumerated were made in forbearance of the payment of the debt, as aforesaid, and were demanded, exacted. and accepted by the defendant under a threat of immediate foreclosure proceedings and the sale of plaintiff’s property; that while said payments and said forbearance in the payment of the interest and curtailment, as aforesaid, were described as bonuses, they were, in fact, exactions of usurious interest and as such exactions of usurious interest were so knowingly accepted by the defendant,”
Action for the recovery of usury paid is provided for in section 1181 of the Code, as follows: “If any person or corporation in the District shall directly or indirectly take or receive any greater amount of interest than is herein declared to be lawful, whether in advance or not, the person or corporation paying the same shall be entitled to sue for and recover the amount of the unlawful interest so paid from the person or corporation receiving the same, provided said suit be begun within one year from the date of such payment.” It was held in Brown v. Slocum, 30 App. D. C. 576, 580, that the period, of limitation runs, not from the time that usurious interest may have been deducted, but from the time the last payment was made on the debt on which usury was charged. It was held that “until that time the full amount of the deduction had not been paid by her. There could be no usurious interest collected until the appellee had paid the full amount she received, together with legal interest.”
The Slocum Case is authority for the rule that commissions deducted in advance by the lender constituted usury under the law in force in the District of Columbia. It may be said that this ease is authority for the rale that money exacted by the lender from the borrower for the use of money in excess of the legal rate allowed by statute is usury under whatever name or pretense the exaction, extension, or forbearance may be designated. While the amounts exacted, therefore, in the present case, may undoubtedly be regarded as coming within the provisions of the statute denouncing usury, we are of the opinion, under the foregoing averment of the declaration, that they were paid not merely as a forbearance or extension of time for the payment of the amount due on the full obligation, but to prevent foreclosure proceedings on the entire debt. This, we think, so attaches it to the original debt as to make the charge of usury applicable thereto rather than to the immediate payment that was then duo. In this view of the case we agree with the court below that “the declaration must be held to be insufficient, if for no other reason, because an action to recover back usurious interest paid can only be maintained after the. last payment on the debt has been made.”
We also agree with the court below in holding that the Loan Shark Law can have no application to a ease of this sort, since the act was intended to apply only to persons making small loans upon personal security, as shown by the fact that the amount of such loans is limited by the act to $200. As said by the court below: “It is apparent that Congress did not have in mind such transactions as are involved in .the present case, in which a debt of $177,500.00 was secured by a first trust upon real estate, so that the payer of a small bonus for an extension in the payment of interest might recover one-fourth of the great principal sum as is undertaken to be done in this case. Such cases are plainly covered by the sections of the Code already referred to.”
In Reagan v. District of Columbia, 41 App. D. C. 409, 412, this court, considering the Loan Shark Law, said: “This is not a usury statute as applied to the regulation of interest charges for the use of money in legitimate commercial transactions, but an act licensing, under limitations and restrictions, the loaning of money in small sums upon personal security.”
The judgment is affirmed, with costs.
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_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Elmer EASLEY, Appellant, v. UNITED STATES of America, Appellee.
No. 7672.
United States Court of Appeals Tenth Circuit.
June 8, 1964.
Peter C. Dietze, Denver, Colo., for appellant.
Milton C. Branch, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., was with him on the brief), for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
PER CURIAM.
Defendant was found guilty of having transported a stolen vehicle in interstate commerce in violation of 18 U.S.C. § 2312. He appeals, asserting that his written confession was improperly admitted into evidence under the totality of the circumstances and in view of the rule of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. We find no merit to the contentions.
On August 27, 1963, defendant was arrested by an officer of the Colorado State Highway Patrol for operating an improperly equipped automobile upon the highways of that state and for driving without a valid operator’s license. He was immediately taken before a justice of the peace, was adjudged guilty, and sentenced to a 12-day jail term. While in state custody defendant was interrogated by a special agent of the F.B.I. and on August 31 signed a written confession to the commission of the federal offense. On Saturday, September 7, he was placed under federal arrest and appeared before the United States Commissioner on , , n Monday, September 9.
When defendant’s confession was offered in evidence at the trial, objection to its voluntariness was timely made and the trial court properly proceeded to make preliminary inquiry of the circumstances surrounding the execution of the instrument. McHenry v. United States, 10 Cir., 308 F.2d 700. Both the testimony of the special agent and that of the defendant indicated that the interrogation of defendant was conducted with commendable fairness, without taint of threat or promise, and that defendant was fully advised of his rights, including the right to be silent and to consult counsel. There is no indication of unbecoming conduct upon the part of state officers, no offensive “cooperation” between state and federal officers, no exploitation of a physical or mental weakness in defendant’s condition, and nothing in the totality of circumstances that would dictate that the confession was made otherwise than as an expression of free will. Compare Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed. 2d 1037.
Defendant’s appearance before the United States Commissioner was made promptly after he was subject to federal restraint and the prohibition of Mallory against the use of confessions obtained during an unnecessary delay between arrest and arraignment is not here applicable. And although defendant s confession was made before he consulted counsel he was denied no right in such regard by either state or federal authority. Compare Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448.
The judgment is affirmed.
. Defendant specifically requested that the issue not be submitted as a factual issue to the jury.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_counsel2
|
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.
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
MITCHELL, Secretary of Labor v. JOYCE AGENCY, Inc.
No. 10936.
United States Court of Appeals Seventh Circuit.
March 29, 1954.
Rehearing Denied April 23, 1954.
Stanford Clinton, Robert A. Sprecher, Pritzker, Pritzker & Clinton, Crowley, Sprecher & Weeks, Frank A. Karaba, Chicago, Ill., of counsel, for appellant.
Stuart Rothman, Sol., Bessie Margolin, Chief of Appellate Litigation, U. S. Department of Labor, Washington, D. C., Herman Grant, Regional Atty., Department of Labor, Chicago, Ill., E. Gerald Lamboley, Harold S. Saxe, Attys., U. S. Department of Labor, Washington, D. C., for appellee.
Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This is an appeal by the defendant, Joyce Agency, Inc., from a judgment entered on May 7, 1953, by the United States District Court for the Northern District of Illinois, Eastern Division, finding that the defendant has violated sections 7 and 15(a) (2) of the Fair Labor Standards Act of 1938, as amended, Act of June 25, 1938, c. 676, 52 Stat. 1060; 29 U.S.C.A. § 201 et seq., as amended, 63 Stat. 910, and ordering, pursuant to section 17, that the defendant be enjoined from further violating the provisions of section 15(a) (2) of the Act.
The question for decision is whether defendant’s employees were engaged in interstate commerce or in the production of goods for interstate commerce at four warehouses of Goldblatt Bros, and at defendant’s central office, so as to bring them within the coverage of the act.
From the parties’ stipulation of facts the following situation appears to have existed at all times hereinafter mentioned.
Defendant is an Illinois corporation with its central office at 343 South Dear-born Street, Chicago. It engages in the business of furnishing watchman, guard, detective, fire inspection and shopping service to Goldblatt Bros. Inc., hereinafter called “Goldblatt”, and employs 72 persons.
Goldblatt owns and operates a chain of 14 retail department stores. Of these stores, 10 are in the city of Chicago and one in each of the cities of Joliet, Illinois, Hammond, Gary, and South Bend, Indiana. It has a central office in Chicago, Illinois, where the administrative work in connection with Goldblatt’s organization is performed, including the purchase of various kinds of merchandise usually found in a large department store. To service its 14 department stores, Gold-blatt maintains in Chicago, Illinois, warehouses at 3913 South Wentworth Avenue, 3161 South Ashland Avenue, 201 East 63rd Street, and 328 South Wabash Avenue. At these warehouses goods are received and stored and thereafter shipped to the defendant’s various retail stores. Most of the goods received are from points outside Illinois and a substantial part of the goods shipped to retail stores is to those located in Indiana. At one of the warehouses, which is known as the Ashland warehouse, there are also a furniture renovating shop, a radio and television clinic, a carpet and linoleum department, and a sewing machine department, as well as a garage where nine persons are employed by Goldblatt in maintaining its motor transportation fleet.
Defendant’s employees include guards and watchmen who guard the warehouses and their contents against all risks, including fire, and the loading and unloading of goods on the loading platforms of the warehouses, check all packages being carried out, keep records of the names of people working after closing hours for the use of the watchmen, open railroad doors to receive freight cars during the night, control ingress and egress of trucks in and out of the garage, and about 5 A. M. check out a truck carrying advertising material to the Indiana stores. Certain guards check the locks and seals on trucks before permitting them to unload or to leave the warehouses when loaded. Guards performing this particular service will be hereinafter referred to as the “seal-checking guards”. Defendant’s employees do not physically handle the goods received or shipped, except insofar as they may handle stolen goods recovered by them, valued at approximately $300.00 per year.
The furniture renovating shop reconditions, upholsters, repairs, replaces broken parts, assembles, refinishes and polishes furniture which has been damaged while on display in the stores or in transit. The clinic removes television and radio sets from their cases, repairs new, display and customers’ sets. The carpet and linoleum department cuts carpets and linoleums to size, edges and binds carpeting and prepares carpets and linoleum for laying. The sewing machine shop unpacks sewing machines and their accessories and cabinets, whereupon it attaches the accessories to the machines and the latter are tested and then installed in cabinets or portable cases.
Defendant has two watchmen at Gold-blatt’s Lexington bakery and the parties agree that their activities constitute production of goods for commerce and hence they are covered by the act.
Defendant employs about ten persons in its central office. They perform administrative work in connection with defendant’s furnishing watchman, guard, detective, fire inspection and shopping service to Goldblatt. They hire, assign and direct the work of all employees employed by defendant in Goldblatt’s warehouses and stores. At the central office employees maintain all the books and records in connection with defendant’s business. Defendant’s payroll is kept there and from there weekly bills are sent to Goldblatt for the payroll plus social security and unemployment compensation contributions, the latter of which is sent by defendant to the State of Illinois or the State of Indiana and the United States Collector of Internal Revenue. At the central office, as a part of her duties, one employee communicates with the various employees of defendant stationed in the Goldblatt warehouses and stores and advises them when a truck will arrive at a warehouse after closing time. When a bad check is cashed in a Goldblatt store, that fact is telephoned to this woman, who, in turn, telephones the same information to defendant’s detectives in all Goldblatt stores. There is a direct telephone line from the central office to all Goldblatt stores and warehouses.
Counsel for both parties have in their briefs treated the Fair Labor Standards Act of 1938, as subsequently amended, including the 1949 amendment to section 3 thereof, 29 U.S.C.A. § 203, as governing this case.
Under the plain language of the act we are convinced that plaintiff was required to show that Goldblatt was engaged in the production of goods for interstate commerce and that defendant’s employees now under consideration were engaged in occupations directly essential to such production or that they were employees engaged in interstate commerce. Engebretsen v. E. J. Albrecht Co., 7 Cir., 150 F.2d 602, at page 604.
Plaintiff contends that the Goldblatt warehouse employees are engaged in “handling” and “working on” goods intended for interstate shipment, which, under the definition of “produced” in section 3(j) and the decisions of this court and of the United States Supreme Court, constitutes “production of goods for commerce”, and that the employees of defendant, which furnishes the guard, watchman, detective, and fire inspection service for these warehouses, are engaged in a “closely related” process or occupation “directly essential” to such production within the meaning of section 3(j) and are, therefore, engaged in producing goods for commerce.
Section 3(j), as amended, reads as follows:
“(j) ‘Produced’ means produced, manufactured, mined, handled, or in any other manner worked on in any State; and for the purposes of this chapter an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, in any State.”
As to the work done in the furniture renovation shop, television and radio clinic, carpet and linoleum and sewing machine shops, there is no production. Such work constitutes the rendering of services upon articles already produced. Insofar as these activities pertain to goods theretofore sold to Goldblatt’s customers, they fall within the exemption of a retail servicing occupation in accordance with the Regulations issued by the Wage and Hour Division of the Department of Labor, which provide in Section 779.14(c) in part as follows:
“Work performed on the customer’s own goods where the completed job will not result in the creation of a different product from that which the customer brought in will be considered as ‘services’ for purposes of the exemption, and, if recognized in the particular industry as retail services, will be considered as such in determining the applicability of section 13(a) (2). For example, the recapping of a tire for a customer, the reupholstering of a chair for a customer, the repairing of an automobile for a customer regardless of the degree of repairs, the rebuilding of a pair of shoes for a customer, the rebuilding of a typewriter for a customer, will be regarded as the performance of services for purposes of the application of Section 13(a) (2) exemption to retail or service establishments and employees employed by them.”
As to those activities relating to Gold-blatt's own goods, the work done in the clinic and shops does not create a different product, and hence does not constitute production.
From a consideration of the processes occurring in the warehouses it is inescapable that there is physical touching by Goldblatt’s employees of the goods in the warehouses which are intended for movement in interstate commerce. Plaintiff contends also that these goods are “worked on” by Goldblatt employees in the warehouses. The words “handled” or “worked on” include every kind of incidental operation preparatory to putting goods into the stream of commerce. But there is a distinction between handling in transportation, on the one hand, and producing, on the other hand, which is put to naught by a contention such as plaintiff’s that by definition everyone who handles goods is thereby made a producer. As was said in Western Union Tel. Co. v. Lenroot, 323 U.S. 490, at page 504, 65 S.Ct. 335, at page 342, 89 L.Ed. 414:
“One would not readily impute such an absurdity to Congress; nor can we assume, contrary to the statute, that ‘produced’ means one thing in one section and something else in another. To construe those words to mean that handling in carriage or transmission in commerce makes one a producer makes one of these results inevitable. Congress, we think, did not intend to obliterate all distinction between production and transportation.”
In the warehouses, Goldblatt’s employees receive, store, in some cases split up large packages of goods into smaller ones, and re-ship. These are not acts of production. They do nothing to affect the character of the articles themselves. Such handling is not production. There is no “working on” the goods by these employees. It will be noted, therefore, as a matter of fact that in the case at bar the employees of Goldblatt do not produce any goods in these warehouses. There being no production in the warehouses by Goldblatt employees, it cannot be said that any duties of defendant’s employees on said premises are performed in any process or occupation related or essential to the production of goods, within the meaning of section 3 (j).
In Engebretsen v. E. J. Albrecht Co., supra, relied upon by plaintiff, this court concluded that a janitor and watchman performed a service essential to an operation which the court found to be the production of goods for commerce, and, therefore, held that that employee was covered by the act. That case is not controlling here where we find there was no production of goods for commerce carried on in the Goldblatt warehouses.
Plaintiff also contends that the receiving, handling, and shipping of goods interstate at the Goldblatt warehouses constitutes engagement “in commerce” and that the guards, watchmen, detectives and fire inspectors, who are employed by the defendant to furnish a highly integrated fire and theft protection service at such warehouses, who control the departure of interstate shipments and who protect the actual transportation of the goods, are “engaged in commerce”.
The real test as to defendant’s employees is whether they (the employees themselves) are engaged in an interstate commerce activity. Kirschbaum Co. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. We must look to the employee’s activity rather than the employer’s activity, so far as “ ‘engaged in commerce’ ” determines liability. Engebretsen v. E. J. Albrecht Co., supra, 150 F.2d at page 605. At the outset of this part of the discussion, it is to be noted that the seal-checking guards examine the seals on trucks before incoming trucks are unloaded and after outgoing trucks are loaded and sealed. Until incoming trucks are actually unloaded and the contents deposited on the warehouse platform they are in interstate commerce, and after outgoing trucks are loaded and sealed they are also in interstate commerce. The seal-checking guards in performing their function of checking these seals in the interest of security of the contents of the trucks are engaged in interstate commerce and are, therefore, subject to the act. Walling v. Goldblatt Bros., Inc., 7 Cir., 128 F.2d 778, at page 782.
Defendant admits in its brief that some of the Goldblatt warehouse employees are involved in interstate commerce (appellant’s brief, 50). The facts in this case show, however, that none of the employees of defendant working at the warehouses, except the seal-checking guards, is himself engaged in commerce.
It will be noted that section 7(a) of the act, 29 U.S.C.A. § 207(a), provides:
“(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce * * * for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”
In Carrigan v. Provident Trust Co. of Philadelphia, 3 Cir., 153 F.2d 74, the court, in considering whether a bank guard was subject to the act, said, beginning at page 74:
“In § 8(j), 29 U.S.C.A. § 203 (j), ‘production’ is broadly defined * * *. ‘Commerce’, on the other hand, is narrowly limited in § 3(b), 29 U.S.C.A. § 203(b) * * *
“An important distinction between the two definitions is evident. Congress described ‘production’ to include acts merely necessary to the production of goods. ‘Commerce’, on the other hand, is so closely circumscribed that acts merely necessary to commerce are not included. The wide variation in the scope of the two terms has been frequently noted.”
The court cited McLeod v. Threlkeld, 319 U.S. 491, at page 497, 63 S.Ct. 1248, 87 L.Ed. 1538, saying that there it was declared:
“that ‘The test under this present act, to determine 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 actually in or so closely related to the movement of the commerce as to be a part of it. Employee activities outside of this movement, so far as they are covered by wage-hour regulation, are governed by the other phrase, “production of goods for commerce.” ’
******
“Only one question is involved here, namely, is appellant ‘engaged in commerce’ within the meaning of the Fair Labor Standards Act.
“This court held in Blumenthal v. Girard Trust Co., 3 Cir., 1944, 141 F.2d 849, that a caretaker or janitor of a building, containing at least one tenant engaged in interstate commerce, was not an employee within the terms of the Act. * * *
“As the courts have consistently maintained, it is the work of the employee and not the nature of his employer’s business that determines the applicability of the Act. * * * That the employer’s entire business is not interstate in character is unimportant so long as a substantial part of the employee’s work relates to the interstate movement of goods. Walling v. Jacksonville Paper Co., 1943, 317 U.S. 564, 572, 63 S.Ct. 332, 87 L.Ed. 460. That a building is wholly occupied by an employer, whose business is partly interstate in character, or only partially occupied by such an employer, is immaterial with respect to the status under the Act of a building guard. It would seem that the instant case cannot be distinguished in character of fact from its predecessors in this court unless appellant’s duties of guarding appellee’s bank building are ‘so closely related to the movement of the commerce as to be a part of it.’ * * *
“But for a rather remote possibility that the law would be violated by a person or persons violently and forcefully breaking into the bank premises with the intent of robbery, or that some emergency should arise as a fire or leaky pipe, the watchman’s services could have no effect upon commerce, and even then the effect of the watchman’s acts would be negative and not acts in commerce. He had no hand whatever in the affirmative acts which constitute commerce.”
There is nothing stated in Carrigan v. Provident Trust Co. of Philadelphia, supra, which is inconsistent with the holding in Walling v. Goldblatt Bros., Inc., 7 Cir., 128 F.2d 778.
Accordingly, we hold that none of the defendant’s employees in the warehouses, with the exception of the seal-checking guards, is covered by the act.
As to the employees in defendant’s central office, it appears that there is one employee who gives a substantial part of her time to making and receiving telephone calls to and from defendant’s guards at the Goldblatt warehouses and stores, some of the latter being in the State of Indiana. It will be noted that these telephone calls are from and to persons entirely in the service of defendant. When employees talk to each other in performing their duties for their employer, they are not engaged in commerce as that word is used in the act now under consideration. That is true whether they sit at adjoining desks or are at the opposite ends of a telephone wire and regardless of whether that wire crosses state lines. This is still true even though another, who owns the- wire, may be engaged in commerce in the transmitting of the sound of- human voices over that wire. Section 3 of the act, 29 U.S.C.A. § 203, declares that “ ‘Commerce’ means trade, commerce, transportation, transmission, or communication” interstate. As was said in Fleming v. Jacksonville Paper Co., 5 Cir., 128 F.2d 395, at page 398:
“Transportation is only a part of it. Trade is another part, and according to the old maxim, it takes two to make a trade. Importer as well as exporter, buyer as well as seller, is a participant; and ordering and paying for goods are included.”
If it takes two to make a trade, these two must be the employer and another person or firm with which he is dealing. Communication means from one person to another; that is from the employer to some other person or firm. It cannot reasonably be said to mean a communication by one of the employees of an employer to another employee of the same employer. In the case at bar, the person doing the telephoning to points in another state did not call anyone outside of the defendant’s own staff of employees. There was no communication within the definition of commerce contained in the act. Neither by the statutory definition nor as commonly understood does “commerce” include communication by word of mouth between the servants of a common employer in the course of the latter’s business. Telephoning by an employee to persons not in the employer’s organization, on behalf of his employer, for the benefit of a third party with whom the employer has a contract for such service, would be an act in commerce. But that is not the factual situation which confronts us. It follows that the telephoning done by the employee in question does not bring her under the act.
This conclusion is strengthened by the fact that this particular employee is not engaged in selling and delivering across state lines or at buying and receiving across state lines, and hence would not fall within the category referred to in Fleming v. Jacksonville Paper Co., supra, 128 F.2d at page 398, where the court said:
“Those who work either at selling or delivering across State lines, or at buying and receiving across State lines, are employed in commerce, whether they write the letters, keep the books, or load and unload or drive the trucks.”
There are other employees in the central office of defendant. Their duties include the supervision of the various guards and watchmen stationed by defendant in the Goldblatt warehouses and stores, as well as the keeping of payroll records and the making of payments to said employees of salaries, less tax deductions. Inasmuch as the only employees in this group serviced by the central office who are engaged in interstate commerce are the seal-checking guards, of whom there are only three, and two watchmen at the Lexington bakery, which is engaged in production, and since the record is silent as to the amount of time actually expended by the employees in the central office in connection with these five employees, the plaintiff has not established that in connection therewith central office employees are devoting a substantial part of their time to these five employees, Walling v. Jacksonville Paper Co., 317 U.S. 564, at page 572, 63 S.Ct. 332, 87 L.Ed. 460, and hence this court cannot say that the said central office employees are covered by the act. In all other respects it is clear on this record that none of the central office employees of defendant is subject to the act.
Conclusion.
For the reasons above stated, we conclude that as to the seal-checking guards the decree of the court below is affirmed and in all other respects it is reversed.
Affirmed in part; reversed in part.
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_applfrom
|
I
|
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).
In re Michael LINDSEY, Petitioner.
No. 89-7312.
United States Court of Appeals, Eleventh Circuit.
May 1, 1989.
Louis E. Braswell, David A. Bagwell, Mobile, Ala., for petitioner.
Ed Carnes, Asst. Atty. Gen., Montgomery, Ala., for respondent.
Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.
BY THE COURT:
Michael Lindsey, convicted of murder and sentenced to death, seeks a writ of mandamus directing the district court to appoint for his representation in Alabama collateral-review proceedings an attorney with three years’ experience handling felony appeals and a psychiatrist. We deny the petition.
I. PROCEDURAL POSTURE
On June 6, 1985, Lindsey filed his first petition for a writ of habeas corpus (CA 85-0775), an application for leave to proceed in forma pauperis (“IFP”), a motion for a stay of execution (which was then scheduled for June 7, 1985), and a motion for appointment of counsel under 18 U.S.C. § 3006A.
On June 7, 1985, the district court granted leave to proceed IFP, stayed the scheduled execution, and appointed Louis E. Braswell and David A. Bagwell to serve as counsel. Notwithstanding its grant of interim relief, however, the district court denied Lindsey’s petition for habeas corpus on March 3, 1986. On March 10, 1986, the court denied his application for a certificate of probable cause to appeal (“CPC”) but granted his motion to proceed IFP in this court.
On March 11, 1986, Lindsey docketed his appeal from the denial of habeas in CA 85-0775 by applying to this court for CPC. We granted the application and set the case for oral argument. On June 12, 1987, we issued an opinion affirming the district court’s judgment; on August 18, 1987, we denied rehearing. Lindsey v. Smith, 820 F.2d 1137 (11th Cir.), reh’g denied, 828 F.2d 775 (11th Cir.1987). Nevertheless, on September 4, 1987, we granted Lindsey’s motion to withhold our mandate pending the United States Supreme Court’s disposition of his petition for certiorari.
The Court denied Lindsey’s petition for certiorari on February 27, 1989 and denied rehearing on April 17, 1989. Lindsey v. Smith, — U.S. -, 109 S.Ct. 1327, 103 L.Ed.2d 595 reh’g denied, — U.S. -, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989). Per our September 4, 1987 order, our mandate affirming the denial of habeas corpus in CA 85-0775 issued on March 2, 1989. Thereafter, the Attorney General of Alabama sought and obtained from the Supreme Court of that State an order setting a new date for Lindsey’s execution, which now is scheduled for May 26, 1989.
On March 8, 1989, Lindsey, through Braswell and Bagwell, filed in the district court a new motion in CA 85-0775. The motion, which was styled a “MOTION FOR STAY OF EXECUTION AND FOR APPOINTMENT OF COUNSEL,” urged the court to appoint new counsel pursuant to the newly enacted 21 U.S.C. § 848(q). The motion argued that subsections 848(q)(4)(B) and 848(q)(6) entitle Lindsey to the appointment of “at least one attorney ... admitted to practice in the court of appeals for not less than five years, and [having] not less than three years experience in the handling of appeals in that court in felony cases.” The motion averred Braswell and Bagwell lack such experience. Lindsey also moved for a stay of execution so that new counsel would have time to seek further relief.
On March 24, 1989, the district court denied the motion, holding that, although neither Braswell nor Bagwell has three years’ experience handling felony appeals, their appointments should stand under subsection 848(q)(7), which provides:
[T]he court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.
21 U.S.C.A. § 848(q)(7) (West Supp.1989). The court found that Braswell and Bagwell have sufficient professional experience, particularly when coupled with their familiarity with Lindsey’s case, to represent him properly.
On March 30, 1989, Lindsey asked this court for a writ of mandamus directing the district court to appoint new counsel. On April 10, 1989, we denied the petition, holding that “the district court had no pending case before it when it entered the March 24, 1989 order denying Lindsey’s application for appointment of new counsel” and that “[o]nly after Lindsey file[d] a new petition for a writ of habeas corpus under 28 U.S.C. § 2254, one which complie[d] with the district court’s local rules governing such petitions, [would] the district court have authority to appoint new counsel” under 21 U.S.C. § 848(q). In re Lindsey, 875 F.2d 1518 (11th Cir.1989) (per curiam).
On April 5, 1989, while Lindsey’s first petition for mandamus was pending in this court, the district court entered an order recognizing that CA 85-0775 terminated when this court’s mandate issued and that the district court was without authority to entertain Lindsey’s March 8, 1989 request for counsel, unless the court treated the papers accompanying the request as a new petition for habeas corpus. The court decided so to treat those papers and assigned the new petition case number CA 89-0253-CB-M. The court read the second petition to allege that Lindsey currently is insane and that, under the reasoning of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), execution of Lindsey would violate the eighth amendment’s prohibition of cruel and unusual punishment. The court read Lindsey’s filings also to include a motion for a stay of execution, a motion for appointment of a psychiatrist, and a renewed motion for appointment of new counsel or, in the alternative, a motion for instructions to Braswell and Bagwell regarding the scope of their appointments and their responsibilities with respect to state competency and clemency proceedings.
On April 12, 1989, two days after we denied Lindsey’s first petition for mandamus, the district court denied habeas relief in CA 89-0253-CB-M, on the ground that Lindsey had failed to exhaust all available state remedies for his Ford claim. The court also denied Lindsey’s motion for appointment of a psychiatrist, holding that Lindsey had failed to show that the services of such a psychiatrist are reasonably necessary to present his case. In a separate order, also dated April 12, 1989, the court denied the renewed motion for appointment of new counsel and reappointed Braswell and Bagwell pursuant to the Criminal Justice Act, as amended, 18 U.S.C. § 3006A and the Controlled Substances Act, as amended, 21 U.S.C. § 848(q)(7).
On April 13, 1989, Lindsey filed a notice of appeal and an application for CPC in the district court. The district court denied CPC on the same day, and, on April 18, 1989, Lindsey applied to this court for CPC. He also moved to expedite the appeal and to stay his scheduled execution. By a separate order, also entered today, we denied CPC. See Lindsey v. Thigpen, 875 F.2d 1518 (11th Cir.1989).
On April 19, while his application for CPC was pending, Lindsey filed this, his second, petition for mandamus. He seeks an order directing the district court to appoint for his representation in state collateral-review proceedings both a lawyer with three years’ experience handling felony appeals and a psychiatrist. We deny the petition.
II. DISCUSSION
We emphasize that the petition for mandamus neither challenges the district court’s denial of habeas relief nor argues that the district court’s failure to give Lindsey a new lawyer and/or a psychiatrist impaired his ability to demonstrate that he has exhausted all available state remedies. The petition contests only the district court’s refusal to appoint a psychiatrist and a lawyer with three years’ experience handling felony appeals to assist Lindsey in his pursuit of state-court remedies for his unexhausted Ford claim. We find merit neither in Lindsey’s argument under 21 U.S.C. § 848(q) nor in that under 18 U.S.C. § 3006A.
A. Assistance Under 21 U.S.C. § 848
Subsection 848(q)(4)(B) of Title 21 provides that “[i]n any post conviction proceeding under section 2254 ... seeking to vacate or set aside a death sentence, any defendant who is ... financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services” in accordance with subsections 848(q)(5) — (q)(9). 21 U.S.C.A. § 848(q)(4)(B) (West Supp. 1989). Subsection 848(q)(9) authorizes appointment of experts “[u]pon a finding ... that ... expert ... services are reasonably necessary for the representation of the de-fendant_” Id. at § 848(q)(9). Subsection 848(q)(8) provides that, “[u]nless replaced by similarly qualified counsel ..., each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings ... and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” Id. at § 848(q)(8).
Lindsey contends that, taken together, these subsections entitle him to the appointment of a lawyer and expert to assist in his pursuit of state-court remedies for his Ford claim. Acceptance of that contention, however, would require us to assume two crucial points upon which Lindsey has offered no argument. First, we would have to assume that Lindsey’s rights under section 848 attached when the district court decided to treat his post-March 2 filings as a second petition for-habeas corpus — even though, under 28 U.S.C. § 2254(b), the district court was without authority to grant relief upon that petition, as it presented only an unexhausted claim. Second, we would have to assume that, as employed in subsection 848(q)(8), the terms “subsequent stage[s] of available judicial proceedings” and “competency proceedings and proceedings for executive or other clemency” encompass within their meanings proceedings before instrumentalities of the States. We reject both assumptions.
1. Proceedings Under Section 2254
The plain language of subsection 848(q)(4)(B) provides that a death-sentenced inmate is entitled to the assistance of a federally appointed attorney and a federally appointed psychiatrist “[i]n any post conviction proceeding under 2254....” In turn, section 2254 provides, in part:
(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
28 U.S.C.A. § 2254(b) (West 1985). The question presented by Lindsey’s argument is whether, in the meaning of subsection 848(q)(4)(B), one may be said to be “proceeding under section 2254” with respect to a claim for which he has not exhausted all available state remedies. We think not.
The words “proceeding under section 2254” must be read to comprehend all of section 2254 — especially the exhaustion requirement of subsection 2254(b). Although the exhaustion requirement is not jurisdictional, Strickland v. Washington, 466 U.S. 668, 104 S.Ct.2052, 80 L.Ed.2d 674 (1984), and can be waived by the State, Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the Supreme Court has held that the requirement is so important that even a mixed petition, one containing both exhausted and unexhausted claims, must be dismissed — leaving the petitioner with the choice between returning to state court to exhaust all his claims and amending the petition to delete the unexhausted claims. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Thus, the district court was barred from granting Lindsey’s petition, absent a waiver of exhaustion by the state. Lindsey v. Thigpen, 875 F.2d 1518 (11th Cir.1989). We conclude, therefore, that Lindsey has not yet initiated a “proceeding under section 2254” as that term is used in subsection 848(q)(4)(B) and that, consequently, his rights to the assistance of a federally appointed lawyer and a federally appointed expert under 21 U.S.C. § 848(q) have not attached.
2. State-Court Proceedings
Even if we were to assume arguen-do that Lindsey’s rights under subsection 848(q) were triggered by the district court’s decision to treat his March 8 filings as a new petition for habeas corpus, we still would deny Lindsey’s petition for mandamus, as we cannot agree that the terms “subsequent stage[s] of available judicial proceedings” and “competency proceedings and proceedings for executive or other clemency,” as used in subsection 848(q)(8), encompass within their meanings any proceedings convened under the authority of a State.
Acceptance of Lindsey’s view of a state prisoner’s rights under subsection 848(q) would have the practical effect of supplanting state-court systems for the appointment of counsel in collateral review cases. Adherence to petitioner’s view would encourage state prisoners to ignore, as Lindsey has here, the proper sequence, developed from concerns for federalism, for seeking collateral relief from state-court judgments in death-penalty cases. Like Lindsey, other state inmates, for no reason other than to gain the assistance of federally appointed counsel and experts throughout all stages of collateral review (both state and federal), would ignore the exhaustion requirement and, before seeking state remedies, futilely file for federal habeas relief. Only after procuring a federally appointed lawyer would state inmates have an incentive to set upon the right track in pursuit of state remedies. If Congress had intended so novel a result, we think it would have stated so in unmistakable terms, for example, by expressly providing for the appointment of counsel at federal expense for all inmates seeking collateral review of death sentences, regardless of whether such review was sought in state or federal court. Because Congress did not so state, we conclude that, unless and until he returns to federal court with a petition for habeas corpus setting forth only claims for which he has exhausted all state remedies, Lindsey has no entitlement under 21 U.S.C. § 848(q) to a federally-appointed lawyer or to a federally-appointed psychiatrist.
B. Assistance under 18 U.S. C. § 3006A
The district court originally appointed Braswell and Bagwell pursuant to 18 U.S.C. § 3006A, which authorizes the district courts to appoint counsel at federal expense on collateral review for a state prisoner who “is seeking relief under section ... 2254 ... of title 28.” 18 U.S.C.A. § 3006A(a)(2)(B) (West Supp.1989). Section 3006A also provides that such representation shall continue through “every stage of the proceedings from his initial appearance before the United States magistrate or the court through appeal, including ancillary matters appropriate to the proceedings,” id. at § 3006A(c), and that counsel so appointed may request and receive authorization to obtain “necessary” expert services. Id. at § 3006A(e)(l). We conclude, however, that this section no more entitles Lindsey to the assistance of a federally-appointed lawyer and psychiatrist in search of state-court remedies that does section 848, because, while in state court, Lindsey will be neither “seeking relief under” section 2254 nor pursuing “ancillary matters” as those terms are used in section 3006A.
1. Seeking Relief Under Section 2254
We decline to read the words “seeking relief under section ... 2254” so broadly as to encompass state collateral-review proceedings. Although federal habeas petitioners must exhaust all available state remedies as a prerequisite to obtaining federal habeas relief, that requirement is based in principles of federalism that belie the notion that an inmate pursuant state collateral review “is seeking relief under section ... 2254.” To hold otherwise would be to relegate state-court collateral proceedings to the status of meaningless procedural hurdles placed in the path to a federal writ of habeas corpus. Although we agree with the district court's implicit holding that Lindsey was “seeking relief under section ... 2254” and, therefore, eligible for discretionary assistance under 18 U.S.C. § 3006A(a)(2)(B) while contesting the exhaustion issue before the district court and while requesting CPC from this court, his search for relief under section 2254 necessarily will remain confined to the federal courts.
2. Ancillary Matters
Neither are state collateral-review proceedings matters which are “ancillary,” within the meaning of subsection 3006A(c), to any proceeding in which Lindsey was “seeking relief under section ... 2254.” The legislative history of subsection 3006A(c) suggests that “ancillary matters” are limited to proceedings comprehended within the action for which the appointment was made. Thus, the House Report accompanying Pub.L. 91-447, the bill which extended representation under section 3006A to include “ancillary matters,” stated:
[Subsection (c)] would not only provide for appointed counsel at every stage of the trial from initial appearance through appeal, but also for “ancillary matters appropriate to the proceedings.” This provision is necessary to insure that the rights of the person are fully protected. Many times remedies technically outside the scope of the trial proper may be necessary, such as using a habeas corpus ad testificandum to secure the presence or testimony of witnesses, or filing an application under 18 U.S.C. 4244 regarding competency to stand trial.... [T]he express inclusion of “ancillary matters appropriate to the proceedings” will insure that the attorney who spends time and effort to protect a right considered valuable in defending the principal criminal charge can be compensated under the act.
H.R.Rep. No. 1546, 91st Cong., 2d Sess., reprinted in, 1970 U.S.Code Cong. & Admin.News 3982, 3989. Unlike the trial-related examples enumerated in the House Report, the proceedings for which Lindsey seeks assistance are not procedural mechanisms employed within the context of a federal action to insure the protection of a person’s rights in that action. Because those proceedings will be convened under the authority of the State of Alabama, we conclude that they are not “ancillary matters” to which section 3006A extends the right to a federally-appointed lawyer and/or psychiatrist.
C. Conclusion
We do not suggest that indigent prisoners pursuing state-court collateral review should not be afforded the assistance of counsel and whatever experts are reasonably necessary to facilitate a full and fair hearing of their claims in state court. As the Supreme Court held in Ford, itself, the failure of state courts to provide such assistance sometimes would deprive their findings of the deference they would otherwise be due from federal courts in subsequent habeas proceedings. See Ford, 106 S.Ct. at 2604-06 (1986) (Marshall, J.) (plurality); id., 106 S.Ct. at 2609-11 (Powell, J., concurring); id., 106 S.Ct. at 2612-13 (O’Connor, J., concurring in part and dissenting in part). Neither do we suggest that the Congress could not, if it chose, fund lawyers and experts to assist state prisoners in the pursuit of state-court collateral review. We hold only that neither the language of 21 U.S.C. § 848(q) nor that of 18 U.S.C. § 3006A evinces an intent to provide such funding.
Accordingly, the petition for a writ of mandamus is DENIED.
. Section 7001(b) of the Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7001(b), 102 Stat. 4181, 4393-94 (1989), amended Section 408 of the Controlled Substances Act, 21 U.S.C. § 848, by adding, inter alia a new subsection (q), which provides, in pertinent part:
(4) ...
(B) In any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9).
(5) If the appointment is made before judgment, at least one attorney so appointed must have been admitted to practice in the court in which the prosecution is to be tried for not less than five years, and must have had not less than three years experience in the actual trial of felony prosecutions in that court.
(6) If the appointment is made after judgment, at least one attorney so appointed must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases.
(7) With respect to paragraphs (5) and (6), the court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.
(8) Unless replaced by similarly qualified counsel upon the attorney’s own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications, [sic] for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
(9) Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant’s attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore, under paragraph (10). Upon a finding that timely procurement of such services could not practicably await pri- or authorization, the court may authorize the provision of and payment for such services nunc pro tunc.
21 U.S.C.A. § 848(q) (West Supp.1989).
. The district court stated:
Based upon the showing made by the petitioner in this case, the Court does not find that expert services for psychiatric evaluation are reasonably necessary. As the sole grounds [sic] for this motion the petitioner filed an affidavit stating that he has had and continues to have “mental problems.” Furthermore, in response to this motion the State filed the prison medical records of the petitioner. Those records indicate that the petitioner is visited monthly by both a psychiatrist and a psychologist and that neither has noted any significant mental problems.
Lindsey v. Thigpen, No. 89-0253-CB-M, mem. op. at 2-3 (S.D.Ala. Apr. 12, 1989).
. Even if we agreed with Lindsey that § 848(q) entitles death-sentenced inmates to the assistance of federally-funded counsel in their pursuit of state-court collateral relief, we would not direct the district court to appoint someone other than Braswell and Bagwell to represent Lindsey.
As noted supra at pages 1504-05, the district court's April 13, 1989 order relied — as had its March 24, 1989 order — on the new subsection 848(q)(7), which provides that "the court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.” 21 U.S.C.A. § 848(q)(7) (West Supp.1989). The district court concluded that, although neither Braswell nor Bagwell has three years’ experience handling felony appeals, they possess the necessary legal skills and familiarity with this case to provide Lindsey with effective representation. Lindsey v. Thigpen, No. 89-0253-CB-M, mem. op. at 3 (S.D.Ala. Apr. 12, 1989).
Lindsey asserts that the district court erred by construing subsection 848(q)(7) to provide an exception to the requirement of three years’ experience handling felony appeals. He contends that, by the words "another attorney,” Congress meant that the court may appoint another attorney in addition to the one required by subsection 848(q)(6) to have three years’ appellate experience. In short, Lindsey argues that subsection (q)(7) does nothing to alter the absolute requirement of the subsection (q)(6) that one of the defendant’s lawyers have three years’ experience handling felony appeals.
We reject Lindsey’s reading of subsection 848(q)(7) and conclude that that subsection permits the appointment of counsel with less than three years’ appellate experience. The use of the words “another attorney” suggests that the court may appoint an attorney in lieu of one meeting the statutory requirements, rather than an attorney in addition to one meeting the standards. The legislative history of the statute supports this interpretation, as the proponent of this provision explained on the floor of the House of Representatives that subsection 848(q)(7) was intended to “creat[e] a small opening for the court to use its discretion and waive the experience requirements set out in [subsection 848(q)(6) 134 Cong.Rec. H7284, H7285 (daily ed. Sept. 8, 1988) (statement of Rep. Conyers). Consequently, we do not think that, had Lindsey been entitled to appointment of counsel under 21 U.S.C. § 848(q), the district court would have abused the discretion granted it by subsection 848(q)(7) by re-appointing Bras-well and Bagwell.
. Even if we agreed that § 848(q) authorizes appointment of federally-funded psychiatrists to assist death-sentenced inmates in their state-court pursuit of unexhausted claims, Lindsey has failed to show that the district court’s denial of his request to appoint a psychiatrist in this case was an abuse of discretion. Here, the district court found that Lindsey failed to make a threshold showing of mental deficiency sufficient to support a finding that appointment of a psychiatrist is "reasonably necessary.” See supra n. 2. Lindsey has done nothing to show this court that the district court’s finding is clearly erroneous.
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_circuit
|
A
|
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.
FLYNN ex rel. DEA TON v. WARD, Com’r of Immigration.
No. 3088.
Circuit Court of Appeals, First Circuit.
March 5, 1936.
Walter Bates Farr, of Boston, Mass. (Everett Flint Damon, of Boston, Mass., on the brief), for appellant.
Frank W. Tomasello, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
This is an appeal from an order of the United States District Court of Massachusetts dismissing a petition for a writ of habeas corpus.
The writ was sought to secure the release of the relator from the custody of the immigration authorities by whom he is held for deportation to China, his application for admission to this country having been denied by the immigration authorities and the Secretary of Labor.
The assignments of error are:
(1) That the District Court erred in denying the petition for the writ.
(2) That the District Court erred in ruling and adjudging in effect that the action of the immigration authoiities in denying the admission of Dea Ton to the United States was not arbitrary and unfair.
The law in such cases is well settled. The Immigration Inspector and Board of Special Inquiry and Board of Review created under the Immigration Act in passing on these cases are administrative officials, not courts. Their findings of fact are final and binding on the courts, if supported by any substantial evidence. The courts have before them in these proceedings only questions of law. If a fair hearing is granted the applicant and there is substantial evidence in support of the findings of the Inspector and the Board of Special Inquiry and of the Secretary of Labor, no issue of law is raised before the court. Ngai Kwan Ying v. Nagle (C.C.A.) 62 F.(2d) 166.
The Immigration Inspector in the first instance and the Special Board of Inquiry have an opportunity to see the witnesses and have before them statements made by them at other times; they have long familiarity with the various subterfuges by which Chinese immigrants seek to gain admission in this country as sons of acknowledged citizens.
The alleged father of the applicant, Dea Chung Wing, is an acknowledged citizen of this country. He has made a number of trips back to China over a period of fifty years, and has made statements as to his marriage, family, and place of residence on pre-investigations before departures and on his returns. He now claims to have been married in 1891 or in 1892, and is the father of eight sons. One applicant was admitted as his son in 1909. A second applicant, Dea Bow, applied in 1911 and was denied admission. In 1923 the alleged father returned from China accompanied by four of his alleged sons, including the present applicant, who applied for admission at San Francisco, all of whom were denied admission and were deported. Dea Hong et al. v. Nagle (C.C.A.) 300 F. 727.
The present applicant again came to this country, this time by, way of Vancouver, and entered at Boston and applied for admission at that port.
There can be no question but that the applicant was granted a full and fair hearing by the immigration authorities in that they received all the evidence he offered and he was notified of his rights of appeal to the Board of Inquiry and the Secretary of Labor, and his right to have a friend or relative present; and he and his witnesses stated that they understood all the questions asked them through the interpreter.
As to whether there was substantial evidence from which the Inspector and the Board could find that the applicant had not satisfied them that he was the son of the alleged father, it is not a question of what this court, or the District Court, would have found from the evidence, Flynn ex rel. Lum Hand v. Tillinghast (C.C.A.) 62 F.(2d) 308, or when measured by the rules governing courts of law, whether the decisions of the immigration boards were wrong. If there was any supporting evidence for the conclusion of the Board of Special Inquiry and the Board of Review, it must stand. Louie Lung Gooey v. Nagle (C.C.A.) 49 F.(2d) 1016, 1017.
There were numerous discrepancies in the testimony of the father and of the other alleged sons. The father testified in 1900 to an inquiry as to who was living in his house besides his mother in 1895, when another relative visited them in China, and answered, “No one else,” from which the immigration authorities held that the inference was that he was not married at that time. When inquired of in these proceedings as to the date of his marriage, he gave four different dates in the years 1891 and 1892. In 1903 he testified that he was married March 8, 1892; in 1909, on November 11, 1891; in 1912, on February 10, 1892; and in 1913, on February 29, 1892. He and the applicant or his brothers did not agree as to the house in which he lived in the village of Ai Gong, or the number of houses on the street or alley on which his house was located. The alleged father testified in 1909 in the case of the application of an alleged son, Dea Lee, that his house was in Ai Gong village and was the third house on the third alley. In 1900 he placed his house as the second house in the fifth alley. At the time of the application of the four alleged sons in 1923, Dea Ton testified that there were five houses and six vacant lots in his row in Ai Gong village, while Dea Chuck in 1923, one of the applicants at that time and an alleged brother of the applicant, testified there were six houses and four vacant lots, although the father testified that he had lived in only one house in the village of Ai Gong.
In fact, the credulity of the members of the Boards may have been considered strained by the father’s testimony that his four sons, Dea Bow, Dea Fong, Dea Hong, and Dea Chuck, were kept in school, without working, though married and having families, until they were respectively thirty, twenty-eight, twenty-six, and twenty-five years of age, the father testifying that he was supporting them and their families and paying their tuition of $20 at school, although the applicant stated their tuition was $40.
There were many other discrepancies in the statements of the sons and father made at different times, which, taken together, may well have had weight in the minds of the members of the Board of Special Inquiry and the Board of Review in arriving at their conclusions; and from all the evidence in the case and the fact that four of the brothers, including the applicant, were excluded by the immigration authorities at the port of San Francisco in 1923, and the order of deportation was sustained on petition for habeas corpus by the District Court for the Northern District of California, and the Circuit Court of Appeals for the Ninth Circuit makes it clear that there was no error of law in the District Court denying the writ in this instance, notwithstanding that many of the discrepancies may be attributed to faulty recollection or misunderstanding of the questions as put through an interpreter. No real effort, however, was made to explain the discrepancies, except to adhere to the statements of the witness and to say that he did not know why another witness had stated the contrary. In every instance, when asked if he understood the questions put ro him, the witness replied that he did.
The members of the several Boards, some of whom had an opportunity to hear the witnesses, were not satisfied with the proof of relationship of the applicant and the alleged father. We think, under the law laid down in the decisions, the writ was properly denied by the District Court. Dea Hong et al. v. Nagle, Commissioner, supra; U. S. ex rel. Tisi v. Tod, 264 U.S. 131, 44 S.Ct. 260, 68 L.Ed. 590; Chin Yow v. United States, 208 U.S. 8, 13, 28 S.Ct. 201, 52 L.Ed. 369; Low Wah Suey v. Backus, 225 U.S. 460, 32 S.Ct. 734, 56 L.Ed. 1165; Whitty v. Weedin (C.C.A.) 68 F.(2d) 127, 130; Hansen v. Haff (C.C.A.) 65 F.(2d) 94; Flynn ex rel. Woo Suey Hong v. Tillinghast (C.C.A.) 69 F.(2d) 93; United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560.
The order of the District Court is affirmed.
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".
HUSTEN v. UNITED STATES.
No. 10900.
Circuit Court of Appeals, Eighth Circuit.
Feb. 24, 1938.
WOODROUGH, Circuit Judge, dissenting.
Thomas W. McMeekin, of St. Paul, Minn. (McMeekin & Quinn, of St. Paul, Minn., George F. Callaghan and Myer H. Gladstone, both of Chicago, Ill., on the brief), for appellant.
Victor E. Anderson, U. S. Atty., of St. Paul, Minn. (George A. Heisey, Asst. U. S. Atty., of St. Paul, Minn., on the brief), for appellee.
Before STONE, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.
VAN VALKENBURGH, Circuit Judge.
An indictment returned in the District Court of the United States for the District of Minnesota charged that appellant, on the 9th day of September, 1936, “knowingly and unlawfully did transport in interstate commerce, to-wit: from the City of Freeport, or the vicinity thereof, in the state of Illinois, to the city of Minneapolis in the county of Hennepin in the state and district of Minnesota, and within the jurisdiction of this court, certain stolen goods, to-wit: jewelry, consisting of rings of the value of $5,000 or more, which jewelry theretofore on the date aforesaid shortly prior to the commencement of the unlawful interstate transportation aforesaid, at a point near said city of Freeport, Illinois, had been stolen from one John Kraus, President of the House of Kraus, ring manufacturers, Pittsburgh, Pennsylvania, defendant at the time and during the course of said unlawful interstate transportation then and there well knowing the goods aforesaid to have been so stolen.”
This indictment was based upon the provisions of the National Stolen Property Act, §§ 1-7, 48 Stat. 794, 18 U.S.C.A. § 413 et seq. Section 415, 18 U.S.C.A., provides :
“Whoever shall transport or cause to be transported in interstate or foreign commerce any goods, wares, or merchandise, securities, or money, of the value of $5,000 or more theretofore stolen or taken feloniously by fraud or with intent to steal or purloin, knowing the same to have been so stolen or taken, shall be punished 'by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both.”
It is shown without dispute that, September 9, 1936, John Kraus, partner in, and salesman for, a manufacturing house of jewelry located at Pittsburgh, Pa., was robbed of approximately 500 articles of jewelry, to wit, rings with diamond, cameo, and other settings. This jewelry was carried by Kraus principally as samples in calling upon the retail trade in the line of his business. The robbery took place near Freeport in the state of Illinois, and the robbers left with the jewelry at 1:30 in the afternoon'of the above date. The distance from Freeport, Ill., to Minneapolis, Minn., is approximately 325 miles. At 10:52 p. m. of the same day appellant registered at the Radisson Hotel in Minneapolis, Minn., under the name and address of “G. L. Brooks, Duluth,” and was assigned to room 1010 of that hotel. He had but one piece' of baggage, a bag of medium size. At about 11 o’clock p. m. the room-service department of the hotel received a telephone call from room 1010 for one sandwich and one malted milk. Five minutes later came a second cali to repeat the order. This double order was served about 11:30 p. m. on. the usual service table. The waiter found appellant and another man in the room. No outgoing telephone calls were registered from the room that night.
At 1:30 a. m., September 10, 1936, a group of men composed of three special agents of the Federal Bureau of Investigation Field Service for the District of Minnesota, two Minneapolis police detectives, and the Radisson Hotel house detective, together visited appellant’s room. This group was headed by the Special Agent in charge. The house detective rapped and requested admission. The rap was repeated and then appellant asked who was there. The house detective replied and demanded admittance. Appellant then asked for the manager of the hotel, and was told that the manager was present. At least two and one-half or three minutes elapsed before the door was opened, and during this interval officers testify that they heard a “thud” within the room which sounded “like two things coming together, like the dropping of the screen or the pulling down of a window.” An examination, made of the window and screen disclosed marks of recent disturbance, and the hands of the examining officer were covered with a dark dust similar to that appearing upon the hands of appellant, who claimed that this had resulted from his removal of the service table from his room to the hall. However, no dirt appeared upon this table nor upon the cloth with which it was covered. There was no dirt upon the bed clothes nor upon appellant’s pajamas, although he said he had been reading in bed after the removal of the table. Contemporaneously, one of the officers found the stolen jewelry in the alley beneath the window of room 1010. It was contained in two packages, one of which >had burst open, apparently in the fall, and the rings therefrom were scattered over the alley within a radius of 8 or 10 feet. The jewelry was positively identified as that stolen from Kraus September 9, 1936, near Freeport, Ill. It must necessarily have reached Minneapolis by interstate transportation. A search of the room resulted in finding a Ford ignition key, which appellant told the officers fitted a car belonging to a gambler friend in Chicago, where appellant said he' also lived. Appellant also told the officers that on the night of September 9th he had arrived from Chicago on the Burlington Zephyr, and came directly to the hotel. The Zephyr, however, did not arrive in Minneapolis until 10:59 p. m. He also said that a woman, not a man, as seen by the waiter, 'had been in his room that night, but he declined to reveal her name. He said he had come “to visit his folks in St. Paul,” and had assumed the name of Brooks because he feared his divorced wife might locate him and cause him embarrassment. He thought she was somewhere in the Twin Cities. Special Agent Stein asked him “why, if his folks lived in St. Paul, why did he register in a Minneapolis hotel.” He said: “I have nothing to say about that." "I asked him whether he came to Minneapolis' with someone on the night of September 9, 1936; he stated he came alone.” The appellant did not testify in his own behalf, and the trial resulted in conviction.
Two points are urged by appellant in this appeal: (1) There was no evidence to prove that the defendant transported the jewelry in interstate commerce or that he knew that it had been stolen. (2) The value of the property alleged to have been stolen and transported in interstate commerce was less than $5,000, within the intent and meaning of theNational Stolen Property Act.
1. That the property was stolen near Freeport in the state of Illinois stands without dispute, and that it was found in Minneapolis, Minn., establishes that it was transported across interstate borders. The theft was completed and the jewelry left the scene of the robbery at 1:30 p. m., September 9, 1936. Appellant registered at the Radisson Hotel in Minneapolis at 10:52 p. m. of the same day. Nine hours and twenty-two minutes had elapsed. The distance between Freeport and Minneapolis is 325 miles — a distance easily traversed by automobile within that time. We deem it unnecessary to make further analysis of the testimony adduced to establish appellant’s possession in Minneapolis. It speaks for itself. The rule limiting the application of presumptions in criminal cases cannot be invoked to destroy the force of legitimate and obvious inferences.
As said by this court: “It is well established that the unexplained possession of stolen property shortly after the theft is sufficient to justify the conclusion by ,a jury of knowledge by the possessor that the property was stolen.” Niederluecke v. United States, 8 Cir., 47 F.2d 888, 889; Bruce v. United States, 8 Cir., 73 F.2d 972. In the latter case this court cited Drew v. United States, 2 Cir., 27 F.2d 715, 716, in which it was said:
“The plaintiff in error argues that there was no evidence of transportation by him. It appears that the plaintiff in error was in possession of the stolen property in New York within 12 days after it had been stolen in New Jersey. This raised a presumption that he was the thief and had transported it to New York.”
It is true that such presumptions are subject to explanations, but we find in this record nothing to disturb the conclusion reached by the jury on this point. The court correctly declared the law, and no exception was taken to its charge except upon the question of the value of the property stolen, essential to federal jurisdiction. See, also, Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Degnan v. United States, 2 Cir., 271 F. 291, and Rosen v. United States, 2 Cir., 271 F. 651.
2. The scope and purpose of the act under which this prosecution is brought is revealed by its title: “An Act To extend the provisions of the National Motor Vehicle Theft Act to other stolen property.” 48 Stat. 794. The ease and rapidity with which stolen motor cars, from their inherent nature, might be conveyed across state boundaries, thereby greatly obstructing the processes of law enforcement, led 'to the adoption of the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408. The increasing employment of the same facilities to convey other stolen property speedily to distant markets led to the extension of the original act to cover stolen property of any description. Of course, in order that federal jurisdiction may attach, .interstate transportation must be present; and the value of $5,000 was fixed to confine that jurisdiction to larcenies of a substantial nature.
The contention of appellant that the value of the stolen jewelry is less than the jurisdictional amount is based largely upon the rule prevailing in civil eases where damages are sought for breaches of contract or similar defaults, and the objective is compensation for loss sustained. This depends largely upon the nature of the commodity and the relationship existing between the parties involved. Illinois Central R. R. Co. v. Crail, 281 U.S. 57, 50 S.Ct. 180, 74 L.Ed. 699, 67 A.L.R. 1423, is a case involving this civil rule. But the National Stolen Property Act has no relationship whatsoever to the loss of the party from whom the goods are stolen. The prosecution is in no sense for the purpose of directly or indirectly reimbursing the loser. It is for the punishment of an offense that has become so common and so serious that this action of Congress was demanded. This construction is “in harmony with the context and supports the policy and purposes of the enactment.” Donnelley v. United States, 276 U.S. 505, 48 S.Ct. 400, 401, 72 L.Ed. 676; Ash Sheep Company v. United States, 252 U.S. 159, 40 S.Ct. 241, 64 L.Ed. 507; Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522; Wilson v. United States, 8 Cir., 77 F.2d 236.
It is uniformly held that the value of the stolen property is the market value at the time and place of taking if it has a market value. People v. Gilbert, 163 Mich. 511, 128 N.W. 756, Ann.Cas.1912A, 894; Robinson v. State, 107 Neb. 591, 186 N.W. 977; Cunningham v. State, 90 Tex. Cr.R. 500, 236 S.W. 89; 17 Ruling Case Law 66, § 71; 36 Corpus Juris 883. The trial court charged that, in the present case, that would be the retail market value. These rings were of the same character and quality as those sold to jewelers upon them as samples. Mr. Kraus dealt with the retail trade, which bought his rings for the purpose of sale at retail. They had an individual retail market value, and the entire lot were susceptible of valuation as such, in such case the retail value should prevail over the wholesale or replacement value, and there is here presented no situation which would warrant consideration of the value at wholesale or for replacement. Mr. Kraus placed the retail value conservatively at $7,500. The witness Rotzler, a Freeport jeweler, testified that the rings had a retail market value at Freeport, Ill., at substantially the time and place of taking, and placed that value at $8,890.25. He says:
“I based my opinion as to the total value of these rings, from examining each one separately, and figuring what it would cost us and then what profit we would add to it; I arrived at the figures that I just gave you; I resorted -to my previous experience in connection with this same line of goods at Freeport.”
Mr. Gravender, employed in the retail jewelry business in Minneapolis, testified that rings of that quality had’ a general retail market in his city, where the stolen property was found, and arrived at the same valuation as Mr. Rotzler. For the defense, two St. Paul jewelers placed the retail value at between $4,000 and $5,000. Our conclusion is that the trial court correctly charged as to the proper basis of valuation, and that the jurors had before them evidence substantially supporting the verdict rendered. The judgment accordingly is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EASTERN CONNECTICUT HEALTH SERVICES, INC., d/b/a New London Convalescent Home, Respondent. New England Health Care Employees Union, District 1199, National Union of Hospital and Health Care Employees, AFL-CIO, Intervenor.
No. 1018, Docket 87-4004.
United States Court of Appeals, Second Circuit.
Argued March 24, 1987.
Decided April 8, 1987.
Barbara A. Atkin (Michael David Fox, of counsel, Rosemary M. Collyer, John E. Higgins, Jr., Robert E. Allens, Elliott Moore, Washington, D.C., on the brief), for petitioner.
Michael R. Miller (Kunkel & Miller, Sarasota, Fla., of counsel), for respondent.
Miriam L. Gafni (Freedman & Lorry, Philadelphia, Pa., of counsel), for inter-venor.
Before KAUFMAN, PIERCE and PRATT, Circuit Judges.
PER CURIAM:.
The National Labor Relations Board petitions for enforcement of its supplemental order dated September 30, 1986 requiring respondent Eastern Connecticut Health Services, Inc., owner of a nursing home in New London, Connecticut (the “employer”), to bargain with the entity now known as New England Health Care Employees Union, District 1199, National Union of Hospital and Health Care Employees, AFL-CIO (the “union”).
While the employer’s defenses to the petition are numerous, each of them is plainly lacking in merit under settled precedent. Certainly, the employer has adduced no reasons which would suffice for us to overturn the “wide degree of discretion” that the Board enjoys in resolving representation matters. See NLRB v. A.J. Tower Co., 329 U.S. 324, 330, 67 S.Ct. 324, 327, 91 L.Ed. 322 (1946); NLRB v. Semco Printing Center, Inc., 721 F.2d 886, 892 (2d Cir.1983).
At the time of the certification election, the union was affiliated with the AFL-CIO through the Retail, Wholesale, and Department Store Union and the nursing home was owned by a predecessor employer. Subsequently, the union changed its affiliation and is now affiliated with the AFL-CIO directly. The employer argues that as a result of this change there must be a new certification election.
Under the standards set forth by the Supreme Court in NLRB v. Financial Institution Employees Local 1182, 475 U.S. 192, 106 S.Ct. 1007, 89 L.Ed.2d 151 (1986) (“Sea-First”), the employer’s contention must be analyzed in two parts. First, there must be a finding that the union’s new affiliation “substantially change[d] a certified union’s relationship with the employees it represents.” If so, the second inquiry is whether “it is unclear whether a majority of employees continue to support the reorganized union,” id., 106 S.Ct. at 1013. In this case, the Board's detailed findings of fact following a hearing amply warrant its conclusion that the first part of this test has not been met here.
In any event, the facts alleged by the employer do not suffice to raise a substantial question as to the second part of the test. The employer complains that nonmembers of the union were not permitted to vote on the organizational changes. A union may properly limit voting on such questions to its members, Sea-First, 106 S.Ct. at 1014, 1017, and the fact that this may disenfranchise some of the employees of the bargaining unit is of no consequence; those employees were free to join the union if they wished to participate in its internal affairs.
Similarly, since the affiliation decision was primarily an internal matter for the union, id., 106 S.Ct. at 1015-16, no question of representation is raised by the union’s decision not to require unit-by-unit approval of the changes, or its delegation of parts of the process to its executive board. Neither these union procedures, nor any of the claimed irregularities in the way in which the referendum on the new affiliation was conducted, resulted in a denial of the essential elements of due process. Indeed, the record supports the finding of the Board that the union affirmatively sought to insure that all eligible workers wishing to vote had the opportunity to do so.
The employer’s next series of claims concerns its contention that “unusual circumstances”, in the form of alleged union misconduct, exist here and suffice to rebut the ordinary presumption that a union retains majority support for a year following certification. See Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 178, 99 L.Ed. 125 (1954); Glomac Plastics, Inc. v. NLRB, 592 F.2d 94, 98 n. 3 (2d Cir.1979). Particularly since the Board is entitled to view such claims with skepticism when made by employers rather than employees, see Retired Persons Pharmacy v. NLRB, 519 F.2d 486, 490 (2d Cir.1975), the instances of misconduct alleged by the employer — the brief occupation of an administrative office, and a single instance of assertedly illegal picketing — do not rise to the level of egregiousness which would warrant us in concluding that the Board abused its discretion in requiring the employer to bargain with the union.
The employer’s claim that there was such abuse is based on its contention that the instances of claimed union misconduct cost the union its majority support. Even if true, that allegation would not establish “unusual circumstances” justifying a refusal to bargain. See NLRB v. Lee Office Equipment, 572 F.2d 704, 706-07 (9th Cir. 1978).
The employer next makes several procedural attacks on the Board proceedings. None have merit. The Board’s decision to deny the employer intervention in the administrative proceedings while it was still only a prospective purchaser of the nursing home at issue was well within the Board’s authority.
Similarly, there was no abuse of discretion in holding that the employer was bound by a stipulation as to the appropriate bargaining unit entered into by its predecessor in interest. The bargaining obligations of successor employers are well established, see NLRB v. Cablevision Systems Development Co., 671 F.2d 737, 739 (2d Cir.1982), and the employer’s duties under an agreement voluntarily entered into by its predecessor are in no way diminished because the predecessor might arguably have litigated the matter successfully or because the employer assertedly could do so now. Accordingly, the Board was not required to provide an articulation of why the bargaining unit stipulated to by the employer’s predecessor met the standards laid down in contested cases.
Having examined each of the employer’s contentions, and finding all of them to be meritless, we hold that the Board is entitled to enforcement of its supplemental order.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_counsel1
|
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.
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
UNITED STATES of America v. Timothy Walter STINE, Appellant.
No. 80-1294.
United States Court of Appeals, Third Circuit.
Argued Nov. 4, 1980.
Decided April 24, 1981.
Rehearing and Rehearing In Banc Denied May 19, 1981.
Fern H. Schwaber (argued), Asst. Defender, Defender Ass’n of Philadelphia, Philadelphia, Pa., for appellant.
Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Robert E. Welsh, Jr. (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before ADAMS and SLOVITER, Circuit Judges, and KNOX, District Judge.
Honorable William W. Knox, United States District Judge for the Western District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This is an appeal from an order of the district court which revoked appellant’s probation for violation of one of the probation conditions. Appellant was sentenced to imprisonment for a term of one year. Appellant claims that the special probation condition requiring that he participate in a program of psychological counseling was unconstitutional.
I.
Appellant, Timothy Walter Stine, was charged with the illegal receipt of a firearm in violation of 18 U.S.C. § 922(h)(1) (1976) (unlawful for convicted felon to receive firearm transported in interstate commerce). During the course of the jury trial on the federal firearm charge, Stine dismissed his retained attorney and elected to proceed pro se. He was found guilty on April 17, 1979 and his pro se motions for judgment of acquittal or new trial were denied by the court. On June 25, 1979 Stine was sentenced to three years’ imprisonment; execution of the sentence was suspended and he was placed on probation for five years. Following filing of a timely notice of appeal, the appeal was withdrawn on Stine’s motion.
Stine commenced his period of probation on June 25. One of the conditions of his probation stated that:
Defendant shall be required to participate on a satisfactory basis within the sole discretion of the U.S. Probation Office in a program of psychological counselling, the nature and length of such program to be determined within the sole discretion of the U.S. Probation Office and for a minimum period of ONE (1) YEAR; any lack of cooperation or inability to participate successfully in such program as determined within the sole discretion of the U.S. Probation Office shall be deemed a violation of probation.
The court also directed the Probation Office to submit written reports every 90 days concerning Stine’s progress in participating in the counseling program.
On October 16, 1979 the Probation Office filed a petition for revocation of probation, alleging that Stine had not complied with the psychological counseling condition. At a hearing on this petition on October 30, 1979, Probation Officer Richard Gochnaur testified without contradiction that Stine had attended a counseling session on July 23, 1979, but had failed to attend subsequently scheduled sessions on July 30 and August 6. On August 9, Stine advised Gochnaur that he would not comply with the counseling requirement, and throughout September he refused to attend psychiatric evaluation sessions which he had previously agreed to attend. Stine stated that he would attend a final session at the Mental Health Treatment Center of the Reading Hospital. Gochnaur testified that Stine had not violated any other condition of his probation and had never been committed to a mental hospital.
At the conclusion of the October 30, 1979 hearing, the court continued the matter of probation violation and gave Stine six weeks to comply fully with the original requirement of counseling. On November 1, 1979, Stine met again with his probation officer and told him he would not cooperate in any testing or evaluation but agreed to one meeting with a doctor at the Mental Health Treatment Center. In response to Stine’s suggestion that the counseling condition might be unconstitutional, the officer advised Stine to comply until the condition was adjudicated unconstitutional. On seven subsequent meetings with Gochnaur in November and December, Stine persisted in his position that he needed no psychological counseling, but refused to undergo preliminary testing. He acknowledged that he was in violation of the condition and was informed that this might result in an order of incarceration. Stine also refused to cooperate with Gochnaur’s suggestion that Stine arrange for an evaluation by a doctor of his own choice. Thereafter, the Probation Office petitioned for a further hearing on violation of probation.
At a hearing on February 8,1980, Gochnaur testified that Stine was married, had a child, was employed and had never been evaluated by a physician as being a danger to himself or the community. Stine admitted that he was in violation of the condition. On February 8,1980 the district court revoked Stine’s probation and ordered him incarcerated for a period of one year. In Findings of Fact and Conclusions of Law entered February 13,1980, the district court held that Stine violated the conditions of his probation. The court did not address Stine’s constitutional challenge to the original imposition of a counseling requirement. Instead the court stated that its imposition of the counseling requirement was founded on, inter alia, reports from the Probation Office and the court’s own observation of Stine’s behavior during his two trials and in the course of in chambers conferences. The court later amended its Findings of Fact and Conclusions of Law to include the following specific indications of Stine’s “aberrant behavior”:
A. Stine appeared for his second trial wearing a T-shirt upon which was inscribed in large letters “My case is a cover up.”
B. Stine adamantly refused to remove the T-shirt, and finally agreed only to wear it inside out so as to obscure the lettering.
C. Stine was unable to retain private counsel after he dismissed his attorney from his first trial although he was willing to pay for one.
D. During the course of his second trial, Stine had frequent arguments with his court-appointed attorney and finally dismissed him in front of the jury while Stine was testifying from the witness stand.
E. Stine exhibited a consistent inability to interact maturely or harmoniously with his attorneys during his trials.
F. Throughout both of his trials Stine insisted that this case is part of a grand conspiracy on the part of certain persons in Reading to prevent him from exposing corruption in Reading. He also contended that his attorneys from both trials were involved in this conspiracy.
G. Stine’s testimony at the trials was often rambling and unintelligible, and not at all responsive to the questions posed.
United States v. Stine, No. 77-314 (E.D.Pa. March 25, 1980).
Further additions to the record were added by the trial court in response to Stine’s filing of a notice of appeal. The court noted that Stine had been convicted in state court in 1978 of “terroristic threats,” a charge stemming from his telephoning the Reading, Pennsylvania City Hall and “threaten[ing] to commit a crime of violence with intent to terrorize another and threatening] to kidnap a hostage from City Hall....” Stine’s other convictions from the same incident were for carrying firearms without a license (a.38 calibre pistol) and possession of marijuana. United States v. Stine, No. 77-314 (E.D.Pa. July 8, 1980). Stine was granted bail pending this appeal.
II.
On appeal Stine contends that the psychological counseling requirement imposed on him “interferes with [his] right of mentation and right of privacy” and that “[t]here has been no showing that the probation condition bears either a reasonable relationship to [his] treatment... or the protection of the community or that it is based on a compelling state interest.” Appellant’s Brief at 15. The government claims that notwithstanding Stine’s constitutional challenge to the probation condition, our review must be limited to determining whether the trial court abused its discretion by requiring psychological counseling and that the condition need only be “reasonably related” to the purposes of probation. Moreover, the government disputes the constitutional challenge on the merits, contending that the “right of privacy does not extend to protect Stine’s decision not to participate in a program of psychological counseling” because the decision to forego counseling sessions does not relate to a matter so “fundamental” as to be “ ‘implicit in the concept of ordered liberty’ and deserving of constitutional protection.” Appellee’s Brief at 10.
III.
The use of probation as an alternative to incarceration has a long history in this country, possibly dating back as far as 1681, and was statutorily authorized in Massachusetts in 1878. A. Campbell, Law of Sen tencing 52 (1978) [hereafter cited as Campbell, Sentencing]; S. Rubin, The Law of Criminal Correction 206 (2d ed. 1973). A federal statute authorizing the imposition of probation was passed in 1925, following a decision of the United States Supreme Court that probation ordered by a judge without statutory authority was an unconstitutional intrusion upon the prerogatives of the executive and legislature. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). The current statute granting federal judges the power to place defendants on probation provides:
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court... when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best
18 U.S.C. § 3651 (1976) (emphasis added).
The “essence” of probation is contained in the conditions imposed by the court on the probationer’s activities. See Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181, 181 (1967) [hereafter Note, Probation Conditions]. Probation is typically granted on certain standard conditions, such as periodic reporting to a probation officer, restrictions on leaving the jurisdiction, and compliance with all laws, as well as special conditions individually tailored to fit the defendant and the offense of which s/he was convicted.
Because the statute permits judges to impose such probation conditions as they “deem best,” the terms and conditions of probation, like the use of probation itself, are matters largely committed to the discretion of the trial court. Nonetheless, appellate courts have reviewed probation conditions to determine whether the conditions imposed are reasonably related to the purposes of punishment. In United States v. Consuelo-Gonzalez, 521 F.2d 259, 264 (9th Cir. 1975) (en banc), the court noted that the “guiding principle which has emerged in construing the Probation Act is that the only permissible conditions are those that, when considered in context, can reasonably be said to contribute significantly both to the rehabilitation of the convicted person and to the protection of the public.” Applying this standard, the court invalidated as overbroad the condition that probationer “submit to search of her person or property at any time when requested by a law-enforcement officer.” Id. at 261. Similarly, in Porth v. Templar, 453 F.2d 330 (10th Cir. 1971), the court invalidated a condition that the probationer not speak out against tax laws.
In the Consuelo-Gonzalez case, the court emphasized that probation conditions which infringe upon fundamental rights are not automatically impermissible but may be subject to “special scrutiny” to determine whether the limitation serves the dual objectives of rehabilitation and public safety. 521 F.2d at 265 & n.14. See also United States v. Pierce, 561 F.2d 735, 739 (9th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1486, 55 L.Ed.2d 516 (1978) (“reasonably related” test applies to conditions infringing on constitutional rights); United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979) (“probation condition is not necessarily invalid simply because it affects a probationer’s ability to exercise constitutionally protected rights”).
In the instant case, appellant claims that the probation condition that he participate in a program of psychological counseling unconstitutionally interferes with his mental process in violation of the First Amendment and his right of privacy. He relies on the increasing body of case law affirming the retention of constitutional rights by institutionalized mental patients, including in particular the right, in certain circumstances, to refuse treatment. See, e. g., Rogers v. Okin, 478 F.Supp. 1342 (D.Mass.1979), aff’d in relevant part and rev’d in part, 634 F.2d 650 (1st Cir. 1980), cert. granted,U.S.-, 101 S.Ct. 1972, 68 L.Ed.2d 293 (1981); Rennie v. Klein, 476 F.Supp. 1294 (D.N.J.1979) (awaiting rehearing en banc before this court, Nos. 79-2576/77).
Appellant’s challenge is unusual because psychological or psychiatric treatment is generally considered to be an acceptable sentencing option. The federal Probation Act specifically provides that persons on probation may be required to “reside in or participate in the program of a residential community treatment center.” 18 U.S.C. § 3651. Cases in both the Supreme Court and this court have presented situations where psychological counseling was a condition of probation or parole, Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); United States v. Buechler, 557 F.2d 1002, 1004 (3d Cir. 1977), although the condition itself was not under attack. See also Steinberg v. Police Court of Albany, 610 F.2d 449, 450-51 (6th Cir. 1979) (without discussing constitutionality of condition, court upheld parole revocation based on parolee’s violation of order that he seek outpatient mental therapy.)
In the only opinion we have found where the validity of a psychiatric counseling condition was discussed, In re Bushman, 1 Cal.3d 767, 463 P.2d 727, 83 Cal.Rptr. 375 (1970) (en banc), a pilot convicted of disturbing the peace for his actions in protesting the condition of a runway was sentenced to probation upon conditions which included the requirement that he seek psychiatric treatment at his own expense with a qualified psychiatrist approved by the court. The California Supreme Court, in an opinion by Chief Justice Traynor, invalidated the treatment requirement, finding no evidence to support the trial judge’s conclusion that the defendant needed psychiatric care. The court noted that there had been no expert witnesses, nor had the defendant been questioned about the subject. It also concluded that “without any showing that mental instability contributed to that offense, psychiatric care cannot reasonably be related to future criminality.” 83 Cal.Rptr. at 381, 463 P.2d at 733.
Under the circumstances of this case, we find it unnecessary to meet appellant’s challenge to the condition of psychiatric counseling attached to his probation. In the first place, it does not appear that he protested the entry of such a condition at the time of its imposition. Although he was unrepresented by counsel at that time, he does not now contend that he did not understand what was required of him; to the contrary, it is clear that appellant understood the condition and that considerable time and effort were expended by the Probation Office to facilitate his compliance. Nevertheless, appellant flatly refused to cooperate and persisted in that refusal over the course of several months, ignoring the advice from his probation officer that he should comply with the condition until his constitutional challenge could be resolved. It is clear, and appellant concedes, that at his final revocation hearing he was in violation of a court-imposed condition of probation. Accordingly, His only “defense” is his contention that the order itself was unconstitutional. In the second place, appellant failed to appeal the imposition of that sentence. Furthermore, he neither requested reduction of the sentence by deletion of that condition nor challenged it as illegal before the district court, as he could have under Rule 35 of the Federal Rules of Criminal Procedure.
It is fundamental to our legal system that “all orders and judgments of courts must be complied with promptly. If a person to whom a judge directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal.” Maness v. Meyers, 419 U.S. 449, 458, 95 S.Ct. 584, 590, 42 L.Ed.2d 574 (1975). A person who makes a private determination that an order is incorrect, or even unconstitutional, may properly be convicted of criminal contempt for violation of the order even if his or her private determination is later proven correct in the courts. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967); Howat v. Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550 (1922).
In Walker v. City of Birmingham, black ministers who wanted to protest Birmingham’s racial atmosphere by holding demonstrations on Good Friday and Easter Sunday were denied permits by city officials. Before the first of the scheduled demonstrations, they were served with copies of an injunction issued ex parte by a state court prohibiting them from carrying on any demonstrations without a permit. “Unable to believe that such a blatant and broadly drawn prior restraint on their First Amendment rights could be valid,” 388 U.S. at 327, 87 S.Ct. at 1835 (Warren, C. J., dissenting), petitioners disobeyed the injunction and demonstrated as planned. They were subsequently found guilty in the state court of criminal contempt, and their convictions were upheld by the Supreme Court of Alabama. The state courts refused to consider petitioners’ constitutional challenges to the indictment, holding on the basis of Howat v. Kansas, supra, that an order of a court must be obeyed until reversed.
The United States Supreme Court affirmed. Notwithstanding its recognition that petitioners’ constitutional challenges “unquestionably raise substantial constitutional issues,” 388 U.S. at 316, 317, 87 S.Ct. at 1829, 1830, the Court held that a defendant may not challenge the constitutionality of an underlying injunction on appeal from a contempt conviction. Id. at 320, 87 S.Ct. at 1831. The Court repeatedly noted that petitioners had made no attempt to have the injunction modified or dissolved by the state appellate courts under the procedures available for such actions. Id. at 311, 315, 317, 318, 319, 87 S.Ct. at 1827, 1829, 1830, 1831. Although vital First Amendment rights were involved and the injunction and the underlying ordinance were unquestionably suspect, the Court was unwilling to excuse petitioners’ failure to make any attempt to challenge the court order before disobeying it. Id. at 320-21, 87 S.Ct. at 1831-32.
An analogous principle emerges from the cases construing the statute which makes it unlawful for a convicted felon to receive or possess a firearm. 18 U.S.C. § 922, 18 U.S. C.App. § 1202. In Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), the Court held that an allegedly unconstitutional conviction could serve as the predicate for a conviction for unlawful receipt of a firearm. Where the defendant had not previously attacked his initial conviction, he had the status of a convicted felon at the time of his act and hence violated the statute. As the Court noted, “Congress clearly intended that the defendant clear his status before obtaining a firearm.... ” Id. at 64, 100 S.Ct. at 920 (emphasis in original). This court extended the rule in United States v. MacGregor, 617 F.2d 348 (3d Cir. 1980), where we held that a conviction under 18 U.S.C.App. § 1202(aXl) could be upheld on collateral attack even where the predicate felony conviction had since been reversed on appeal. An important factor in these eases was the availability to the convicted felon of methods for having cleared his record before purchasing a firearm. See United States v. Lewis, 445 U.S. at 64, 100 S.Ct. at 920.
The justification for permitting contempt convictions to stand despite a subsequent determination that the order disobeyed was invalid or unconstitutional stems from the system’s need for compliance with its mandates. The same policy considerations persuade us to hold that the alleged unconstitutionality of probation conditions cannot be raised as a defense to their violation in a probation revocation hearing where the conditions could have been challenged on direct appeal of the judgment of conviction or on an attack to the sentence through a Rule 35 motion. Probationers are convicted offenders who have been given a second chance to demonstrate that they are capable of living in the community as law-abiding citizens. To allow them to make an independent determination of which judicial orders to follow and which to ignore is simply inconsistent with the premises of probation.
Reliance on the contempt line of cases requires a reviewing court to insure that there were, in fact, procedures available to the defendant to challenge the condition. Under the common law of many jurisdictions, a convicted defendant who accepted probation was not permitted to appeal either the conviction or the probation terms unless and until probation was revoked and a “real” sentence imposed. See Note, Probation Conditions, 67 Col.L.Rev. at 193-96; Comment, Probationer’s Right to Appeal; Appellant’s Right to Probation, 28 U.Chi.L. Rev. 751 (1961). The practice was rationalized on the inconsistent theories that, by accepting the court’s offer of probation, the defendant waived his or her right to object, or that probation was an interim step between conviction and possible later imposition of a sentence, which meant that there was no final order from which to appeal. Although this rule of nonappealability has increasingly been rejected, the case law indicates some confusion as to the proper or available methods of challenging the validity of probation conditions. Where, as here, the defendant is only contesting the constitutionality of a probation condition, defendant can appeal directly from the judgment of conviction or file a Rule 35 motion.
In the case sub judice, appellant had an opportunity to challenge the constitutionality of the probation condition in the course of proceedings in which he was already involved. He filed a notice of appeal from the judgment of conviction but thereafter withdrew the appeal before filing a brief. In addition, he failed to seek relief from the trial court by filing a motion under Fed.R. Crim.P. 35 which permits correction at any time of an “illegal sentence,” essentially petitioner’s contention here. Therefore, he will not be heard to complain that the court’s denial of his continued release on probation is impermissible because based on his violation of an unconstitutional condition.
For the foregoing reasons, we affirm the judgment of the district court.
. Stine’s first conviction was set aside on his motion for a new trial. United States v. Stine, 458 F.Supp. 366 (E.D.Pa. 1978), aff’d mem., 591 F.2d 1337 (3d Cir. 1979).
. Mass.Laws of 1878, ch. 198. Currently all 50 states as well as the federal government have probation or similar “nonconfinement” systems. ABA Standards for Criminal Justice § 18-2.3 (Sentences not involving confinement), Commentary at 18.78 n.16 (2d ed. 1980).
. Act of March 4, 1925, ch. 521, § 1, 43 Stat. 1259 (current version at 18 U.S.C. § 3651 (1976) ). For a general discussion of the history of the Probation Act, see Roberts v. United States, 320 U.S. 264, 268-72, 64 S.Ct. 113, 115-17, 88 L.Ed. 41 (1943).
. Some jurisdictions have mandatory conditions detailed in their probation statutes. For example, both Michigan and West Virginia have codified the requirement that probationers not leave the state without the consent of the court. Mich.Comp.Laws Ann. § 771.3 (Cum.Supp. 1979-1980); W.Va.Code § 62-12-9 (1977).
. See A. Campbell, Law of Sentencing 79 (1978) (cardinal concept governing whether an eligible defendant gets probation is judicial discretion): R. Dawson, Sentencing: The Decision as to Type, Length, and Conditions of Sentence 378-405 (1969); Alschuler, Sentencing Reform and Parole Release Guidelines, 51 U.Colo.L. Rev. 237, 238 (1980) (even the most ambitious of the state determinate sentencing statutes leave critical “in-out” decision to the uncontrolled discretion of trial judge).
. Both the Model Penal Code and the ABA Standards for Criminal Justice advocate the incorporation into probation statutes of standards restricting the judge’s discretion. The Model Penal Code would permit the judge to attach conditions “reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” Model Penal Code § 301.1(1), (2)( I) (Proposed Official Draft 1962). Similarly, the ABA Standards recommend that: r
Conditions imposed by the court should be reasonably related to the purposes of sentencing, including the goal of rehabilitation, and should not be unduly restrictive of the probationer’s liberty or autonomy. Where fundamental rights are involved, special care should be taken to avoid overbroad restrictions or restraints which are so vague or ambiguous as to fail to give real guidance. ABA Standards for Criminal Justice § 18-2.3(e) (2d ed. 1980).
. See also United States v. Tonry, 605 F.2d 144, 147 (5th Cir. 1979), where the court adopted the Consuelo-Gonzalez-Porth test, but expanded it to recognize other purposes of punishment. The court held that a “condition of probation satisfies the statute so long as it is reasonably related to rehabilitation of the probationer, protection of the public against other offenses during its term, deterrence of future misconduct by the probationer or general deterrence of others, condign punishment, or some combination of these objectives.” Id. at 148 (upholding condition prohibiting violator of Federal Election Campaign Act from running for political office or engaging in political activity).
. The Model Penal Code would permit the court to require a defendant to “undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.” Model Penal Code § 301.1(2)(c) (Proposed Official Draft 1962). The ABA Standard is similar, allowing the court to require the defendant to “undergo [] available medical or psychiatric treatment, which treatment may include periodic testing for narcotics use.” ABA Standards for Criminal Justice § 18-2.3(f)(v). Unfortunately the commentary includes no discussion of this provision.
The power of a court under Pennsylvania law to impose probation conditioned on the probationer receiving inpatient psychiatric treatment is considered in Ludwig, Treatment and Sentencing: The Power of the Court, the Rights of the Defendant, and the Legal and Ethical Implications of Sentencing Alternatives, 8 Contemp. Drug Prob. 381 (1979). Judge Ludwig suggests that notwithstanding the salutary purposes served by such sentences, they might circumvent the procedures developed for mental health commitments. Id. at 384-85. These concerns are not implicated where the court only orders a program of outpatient counseling, as in this case.
. Defendant, an attorney and the president-elect of the airport’s board of directors, had dumped a bucketful of gravel and metal debris from the runway over the desk and papers of the chairman of the airport’s board of directors during a meeting.
. It appears that in this case also the original probation condition was imposed on the basis of the trial court’s observation, without any recent or previous medical opinion to support the need for psychological counseling. Furthermore, the sentence required counseling for a full year, without any provision that the length of time of such condition could be reduced if the counselors believed there was no longer any continued need for such treatment. In Addington v. Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 1809-10, 60 L.Ed.2d 323 (1979), the Court stated, “At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously such behavior is no basis for compelled treatment....” (emphasis added). The Court in that case recognized that “[w]hether the individual is mentally ill and dangerous... and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” id. at 429, 99 S.Ct. at 1811 (emphasis in original). On the other hand, a probation condition is not equivalent to confinement for treatment. Also, we recognize that district judges may acquire considerable experience in evaluating behavior, and that they are entitled to considerable discretion in imposing conditions of probation. Since we do not decide appellant’s challenge to the constitutionality of a probation condition of involuntary counseling because of our disposition of this case on other grounds, we need not decide whether expert opinion on the need for such treatment should always be sought.
In any event, appellant in this case is not in a position to complain about the absence of expert opinion because he was given ample opportunity by a very patient probation officer to submit to psychological evaluation, and he persistently refused to cooperate. Had such testing confirmed his contention that he did not require counseling, the court may have taken appropriate steps to modify the sentence or the duration of the required treatment. Under these circumstances, we refrain from considering whether the appellant’s courtroom behavior and his prior conviction for threats of violence were sufficient to justify the imposition of the counseling requirement.
. The obligation to obey judicial orders is to be distinguished from the right of a person convicted of violating a criminal statute to defend his or her conduct solely on the grounds of the statute’s unconstitutionality. See Walker v. City of Birmingham, 388 U.S. 307, 327, 87 S.Ct. 1824, 1835, 18 L.Ed.2d 1210 (1967) (Warren, C. J., dissenting).
. The injunction was based on a Birmingham city ordinance requiring permits and the City’s representation that the demonstrations, like those which had preceded them in the previous week, would threaten the safety, peace and tranquility of the city and imminently endanger the general welfare of the residents of the city.
. The underlying ordinance was in fact held unconstitutional by the Supreme Court in an appeal by one of these petitioners from his conviction for violation of the ordinance. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).
. See also Commonwealth of Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs (Appeal of Freedman), 552 F.2d 498, 505-06 (3d Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977) (on appeal of attorney’s criminal contempt for disobeying order of trial judge not to state reasons for objection on record, court refused to consider merits of order that was violated).
. See, e. g. Korematsu v. United States, 319 U.S. 432, 434, 63 S.Ct. 1124, 1125, 87 L.Ed. 1497 (1943); Berman v. United States, 302 U.S. 211, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204 (1937); Delaney v. State, 190 So.2d 578, 580 (Fla.1966); State v. Martin, 282 Or. 583, 580 P.2d 536, 538-39 (1978); Commonwealth v. Elias, 394 Pa. 639, 641, 149 A.2d 53, 54-55 (1959). See also ABA Standards for Criminal Justice § 18-2.3(b)(iv) (sentence of probation treated as final judgment for purposes of appeal and other procedural purposes); Model Penal Code § 301.6 (sentence of probation shall constitute final judgment for purposes including appeal).
. The judgment of conviction is required to set forth the sentence imposed. Fed.R.Crim.P. 32(b)(1). Despite the general rule that federal appellate courts will not review sentences within the bounds prescribed by the statute, the federal courts have uniformly permitted defendants sentenced to probation to challenge the validity of their probation conditions on direct appeal from the judgment of conviction. See, e. g., Fuller v. Oregon, 417 U.S. 40, 94 S.ct. 2116, 40 L.Ed.2d 642 (1974); United States v. Conforte, 624 F.2d 869 (9th Cir.), cert. denied,-U.S.-, 101 S.Ct. 568, 66 L.Ed. 470 (1980); United States v. Barrasso, 372 F.2d 136 (3d Cir. 1967); Whaley v. United States, 324 F.2d 356 (9th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 665, 11 L.Ed.2d 609 (1964); Berra v. United States, 221 F.2d 590 (8th Cir. 1955), aff’d, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956); Willis v. United States, 250 A.2d 569 (D.C.Ct.App.1969). See also United States v. Weber, 437 F.2d 1218 (7th Cir.), cert. denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430 (1971) (where defendant does not attack probation condition on direct appeal, foreclosed from attacking in probation revocation proceedings); In re Bushman, 1 Cal.3d 767, 463 P.2d 727, 733, 83 Cal.Rptr. 375, 381 (1970) (en banc) (court notes that probation condition may be attacked either on direct appeal of order granting probation or on petition for writ of habeas corpus).
. In some circumstances the courts have permitted a collateral challenge to the probation condition. In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975) (en banc), the probationer’s challenge to a condition requiring her to submit at any time to a search of her person or property by any law enforcement officer was raised in a suppression hearing at a unrelated criminal trial. The probationer sought to challenge the introduction of evidence which had been seized in a search pursuant to this condition.
. This case presents a different situation than that considered by the Supreme Court recently in Wood v. Georgia, - U.S. -, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). In Wood, petitioners had been convicted of distributing obscene materials and had been sentenced to fines and probation. Monthly installment payments on the fines were expressly made a condition of their probation. Id. at-, 101 S.Ct. at 1098. When petitioners failed to make any payments for three months, the trial court revoked their probation, notwithstanding “convincing evidence” of petitioners’ inability to pay the fines. Although they had not earlier challenged the fines, petitioners argued on appeal from the revocations that “imprison[ment of] a probationer solely because of his inability to make installment payments on fines” is unconstitutional under the Equal Protection clause. Id. at---, 101 S.Ct. at 1098-1100.
The procedural posture of the case at the time that the constitutional challenge was presented does not appear to have been raised before the Supreme Court. Several factors, however, distinguish this case from the Wood case. First
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_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 v. Paul B. MILLER and Mildred E. Miller, His Wife, Appellants.
No. 11716.
United States Court of Appeals Third Circuit.
Argued Jan. 13, 1956.
Decided Feb. 8, 1956.
Alan I. Baskin, Reading, Pa., for appellant.
G. Clinton Fogwell, Jr., Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellees.
Before GOODRICH, KALODNER and STALEY, Circuit Judges.
GOODRICH, Circuit Judge.
This case brings up the question of a Pennsylvania garnishment statute in a suit by the United States. The facts are simple and undisputed. Paul Miller and his wife borrowed money from the United States under the provisions of The Bankhead-Jones Farm Tenant Act. 50 Stat. 522 (1937), as amended, 7 U.S. C.A. §§ 1001 — 1005d, 1007, 1008-1029. They defaulted in their obligation to repay. After unsuccessful attempts to collect the remainder of the ' debt, the United States entered judgment for it. Subsequently, informal efforts to secure payment- having failed, an attachment execution issued and garnishment proceedings were served upon Paul Miller’s employer. The district judge denied defendants’ motion to quash the writ of execution and the defendants appeal.
The statute relied upon by the debtor in attacking the judgment of the district court is the act of Assembly of Pennsylvania relating to attachment of wages. Pa.Stat.Ann. tit. 42, § 886. The language important for us is the last clause of the statute, “[pjrovided however, [t]hat the wages'of any laborers, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer.” The appellants press the point that this statute represents the public policy of Pennsylvania. That argument is strengthened by reference to another statute providing against the assignment of a claim for the purpose of having it collected outside the state by the garnishment process. See Pa.Stat.Ann. tit. 12, §§ 2175, 2176. This, however, does not answer the question whether the statute is applicable to suits by the United States.
The argument for the government calls our attention to Federal Rule of Civil Procedure 69(a), 28 U.S.C. Rule 69(a) says that the procedure on execution “shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought * There is an exception in case there is a statute of the United States applicable. But there is no such statute applicable here so we may disregard the exception. In spite of this language the government suggests that the availability of the garnishment procedure is part of the government’s “right” and is not subject to the state rule excluding garnishment of wages from the means taken to collect its judgment.
This argument leaves us unimpressed. The well settled distinction in two-state cases is that matters of attachment, execution and the like are to be determined by the law of the forum and not the law of the place where judgment was rendered or a debt contracted. See Restatement, Conflict of Laws § 600 (1934); Goodrich, Conflict of Laws § 90 (3rd ed. 1949). The language from rule 69 sounds to this effect. There are a variety of situations where the rule has been held procedural and subject to state limitations. For example: a property exemption, the entry of a deficiency as a prerequisite to the issuance of a general execution, the setting aside of an execution sale, and the termination of supplementary proceedings. 7 Moore Federal Practice f[69.04[3], p. 2418 (1955), gives a whole series of instances of this type.
There is another argument urged by the United States which we think has more weight. It has been expressly held that the garnishment statute above cited does not apply to the state of Pennsylvania. In re Blum’s Estate, No. 3, 1940,. 38 Pa.Dist. & Co.R. 598. The reason given is that “legislative enactments presumptively affect only private rights and do not embrace the rights of a sovereign unless the sovereign is explicitly designated or clearly intended * *” This reason the learned judge found in earlier Pennsylvania decisions. And it has been reaffirmed in subsequent cases.
If the statute is not applicable to the state of Pennsylvania in its transactions with persons in the State’s field of activity, it is equally inapplicable to the United States dealing with persons in Pennsylvania within the federal government’s field of activity. The exemption from garnishment, therefore, is not available to the Millers. The proviso . exempting wages does not apply to the sovereign because of the interpretation of the legislative enactment in the state which passed the legislation.
The appellants make the further point that this garnishment order is invalid in so far as it applies to wages to be earned in the future. The order of the district court calls upon the garnishee to forward to the office of the United States Attorney “fifteen % of the net wages of said defendant, Paul B. Miller, in installment payments, until the debt, with interest and costs, is fully liquidated.”
The appellants’ point seems to be well taken. Rule 3108 of the Pennsylvania Rules of Civil Procedure 12 P.S.Pa. Appendix, directs us to look to the relevant statutes to determine what property is subject to attachment. The statute controlling the attachment of debts is cast in terms of “debts due.” Pa. Stat.Ann. tit. 12 § 2265. Rule 3106 provides for the attachment upon a garnishment writ of “all property of the defendant subject to attachment execution which is in the possession of the garnishee at the time of service and all such property which comes into his possession -thereafter until judgment is entered against him * * And judgment is defined in Rule 3101 to include any order requiring the payment of money. What is subject to garnishment in Pennsylvania is that which the garnishee has of the debtor’s at the time of the judgment or order. This rule is consistent -with that of other jurisdictions.
Why the appellant makes this point is mot clear to us. The provision made by the district judge called for withholding of only fifteen per cent of the wages ■earned. It will be easy enough .for successive garnishments to be served which may make the matter of collection much more uncomfortable for the debtor than the present arrangement.
The judgment for the plaintiff bearing date July 19, 1955, will be affirmed except that it is directed that paragraph (b) providing for the application of the garnishment to future amounts is to be deleted.
. United States v. Miller, D.C.E.D.Pa. 1955, 134 E.Supp. 276.
. Rule 64 is also cited to us hut we do not think it has anything to do with this case. See 7 Moore, Federal Practice ¶64.04[1], p. 1508 (1955).
. United States v. Hackett, D.C.W.D.Mo. 1954, 123 F.Supp. 106.
. Reconstruction Finance Corp. v. Breeding, 10 Cir., 1954, 211 F.2d 385.
. Leeds Music Corp. v. Jones, D.C.E.D. Pa.1945, 6 F.R.D. 616, affirmed per curiam, 3 Cir., 1946, 159 F.2d 415.
. Rottenberg v. United States, 2 Cir., 1944, 142 F.2d 151.
. Moore also concludes that rule 69(a) subjects the United States, as a litigant, to stato limitations. 7 Moore, Federal Practice ¶ 69.04 [3], p. 2420 (1955). With this position we agree.
. The court also pointed out that the state is Hot bound by the $300 exemption provision. Pa.Stat.Ann. tit. 12, §§, 2161, 2166. Another court has taken the same position. Commonwealth v. Wilcox, 1942, 46 Pa.Dist. & Co.R. 435. This disposes of an alternative contention made by appellants here.
. Here are some of the principal decisions illustrating the variety of statutory materials to which this theory has been applied : Commonwealth v. Baldwin, 1832, 1 Watts 54 (the period for which a judgment shall continue as a lien); Baker v. Kirschnek, 1935, 317 Pa. 225, 176 A. 489 (a prohibition against the sale of intoxicating liquor) ; Commonwealth v. Dauphin County, 1939, 335 Pa. 177, 6 A.2d 870 (a municipal property tax); Culver v. Commonwealth, 1944, 348 Pa. 472, 35 A.2d 64 (the payment of interest on an .amount awarded in eminent domain proceedings); Hoffman v. City of Pittsburgh, 1950, 365 Pa. 386, 75 A.2d 649 (an acquisition of land by a municipality) ; Petition of City of Pittsburgh, 1954, 376 Pa. 447, 103 A.2d 721 (the divestiture-of liens).
. The rules specifically contemplate the possibility of subsequent proceedings against property coming into possession of the garnishee after judgment rules 3102, 1276(b), 1277(b). Decisions before the rules indicate clearly that additional proceedings were necessary to reach such property. Corbit Bros. Plumbing & Heating Co. v. Adams, C. P. Berks Co. 1927, 20 Berks 96; Tiers v. Woodruff, C. P. Montg. Co. 1900, 16 Mont. 36.
. See cases compiled in Annotation 1928, 56 A.B.B.. 601, 634.
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_crossapp
|
B
|
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.
OWEN OF GEORGIA, INC., Plaintiff-Appellee, Cross-Appellant, v. SHELBY COUNTY; Roy Nixon, Mayor of Shelby County; Pidgeon-Thomas Iron Company, Defendants-Appellants, Cross-Appellees.
Nos. 78-1013-1014.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 29, 1980.
Decided May 15, 1981.
As Amended June 17, 1981.
Leo Bearman, Jr., Memphis, Tenn., James McDonnell, Jr., Memphis, Tenn., for defendants-appellants, cross appellees.
Frierson M. Graves, Jr., Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, Tenn., for plaintiff-appellee, cross appellant.
Before KEITH and MARTIN, Circuit Judges, CELEBREZZE, Senior Circuit Judge.
CELEBREZZE, Senior Circuit Judge.
This diversity case deals with the ability of an unsuccessful bidder to challenge the decision by a municipality to award a public contract to another bidder. Owen of Georgia, Inc. submitted the low bid for the structural steel portion of a contract to build the Shelby County Criminal Justice Center for Shelby County, Tennessee. The contract was awarded to the second-lowest bidder for the steel package, PidgeonThomas Iron Company. Owen then filed this lawsuit seeking to have the contract between Pidgeon-Thomas and Shelby County declared null and void; to require Shelby County to award the contract to Owen; or to have Shelby County compensate Owen for expenses and lost profits resulting from the award of the contract to Pidgeon-Thomas instead of Owen. The district court concluded that Owen lacked standing to seek mandamus, injunctive relief, or damages, but did have standing to seek declaratory relief. Interpreting the bidding procedure requirements of the Shelby County Restructure Act, the district court proceeded to issue a declaratory judgment holding the award of the contract to Pidgeon-Thomas invalid and void. We reverse the district court’s decision that Owen lacks standing to sue, affirm the district court’s issuance of declaratory relief, dismiss as moot the claims for mandamus and injunctive relief, and remand for a determination of damages.
I.
The facts are virtually undisputed. In 1977, Shelby County, through its legislative branch, decided to construct a Shelby County Criminal Justice Center under the supervision of a construction manager who would supervise the erection of the complex. In due course, the county advertised for bids on the various components of the project which was budgeted at $38,000,000.00 and divided into about 90 “bid packages”. Bid package 0500 dealt with structural and miscellaneous steel. Five companies submitted bids on bid package 0500 in March, 1977; Pidgeon-Thomas submitted the lowest bid and Owen, the third lowest bid.
All of the bids exceeded the budgeted amount. Roy Nixon, Mayor of Shelby County, instructed his architect to review Pidgeon-Thomas’ bid with company officials in an effort to reduce the overall amount of the bid. The county’s architect and engineer negotiated with Pidgeon-Thomas, changing the specifications to reduce the cost of the steel package. Even after such reductions, however, the Mayor concluded that Pidgeon-Thomas’ bid was still too high, and, therefore, he rejected all bids on that package.
Shelby County then advertised for new bids with changed specifications, indicating that the negotiations with Pidgeon-Thomas would not put any other company at a competitive disadvantage. Bid package 0500 now included only structural steel, with the miscellaneous steel comprising a separate package. When the new bids were opened on May 11, 1977, Owen’s bid of $2,585,000.00 was the lowest bid. PidgeonThomas was the second lowest bidder at $2,625,625.00.
Shortly thereafter, Mayor Nixon instructed the county architect to award the 0500 contract to Pidgeon-Thomas even though Owen was the low bidder. Mayor Nixon purportedly rejected Owen’s bid in favor of Pidgeon-Thomas for two reasons. First, Shelby County was committed to an affirmative action program which included participation by disadvantaged minorities in the construction of the Criminal Justice Center. This policy was expressed in general terms to all bidders, and all bidders were required to submit statistical reports to Shelby County regarding the status of minority employment in their businesses. The reports filed by Owen and Pidgeon-Thomas reflected that Pidgeon-Thomas employed a higher proportion of minorities than did Owen. Second, it was allegedly the policy of Shelby County to encourage participation by local Shelby County firms in the construction of county projects. Pidgeon-Thomas is a local Shelby County firm; Owen is a Georgia firm. For these two reasons the Mayor rejected Owen’s bid and recommended to the County legislative body, the Quarterly Court, that Pidgeon-Thomas be awarded the contract for package 0500. Before this recommendation was forwarded to the Quarterly Court, however, PidgeonThomas agreed to reduce its bid to a figure identical to Owen’s bid. In addition, the specifications were changed to provide that the County would itself purchase the steel and make an adjustment for sales tax.
On May 16,1977, Mayor Nixon submitted a resolution to the Quarterly Court recommending that the bid for structural steel be awarded to Pidgeon-Thomas. At that time the Quarterly Court was not advised that Owen was originally the low bidder, that Pidgeon-Thomas had reduced its bid to match Owen’s low bid, or that PidgeonThomas was chosen because it was a local concern with the better minority employment record. The Quarterly Court proceeded to approve the contracts for the construction of the Criminal Justice Center. Among those contracts approved was that of Pidgeon-Thomas.
When Owen learned of the contract award to Pidgeon-Thomas, it objected and through its attorney contacted Mayor Nixon to request reconsideration since Owen was the low bidder. As a result of Owen’s objections, the issue was resubmitted to the Quarterly Court on June 23, 1977. Owen’s attorney appeared and challenged the May- or’s rationale for preferring Pidgeon-Thomas. Nevertheless, a motion to substitute Owen for Pidgeon-Thomas on bid package 0500 was rejected by the Quarterly Court. The Mayor subsequently executed a contract with Pidgeon-Thomas for the structural steel package.
On the above facts, the district court found that Owen lacked standing to seek or obtain mandamus, injunctive relief or damages because there was no evidence of fraud or bad faith on the part of the defendants. The trial court then decided that Owen did have standing to seek a judgment declaring the contract void. The applicable section of the Shelby County Restructure Act provides:
All open market purchase orders or contracts shall be awarded to the lowest bidder who is financially responsible, taking into consideration the qualities of the articles to be supplied, their conformity to specifications, their suitability to the requirements of the County government, and the delivery terms. Any and all bids may be rejected for good cause.
The trial court proceeded to hold that the term “good cause”, as set out in the second sentence of the Act, permits rejection of the low bid only in the circumstances delineated in the first sentence of the Act. Although the District Judge found no fraud or bad faith on the part of any of the defendants, and found no loss to the taxpayers of Shelby County, he held that the contract was awarded in violation of the competitive bidding procedures required under the Shelby County Restructure Act. He therefore held the contract award to Pidgeon-Thomas invalid. Owen now appeals the ruling that it lacks standing to seek or obtain preventive, specific or monetary relief. Defendants appeal the ruling that Shelby County’s award of the steel package to Pidgeon-Thomas was not authorized by the Shelby County Restructure Act.
II. STANDING
The district court, while recognizing a split of authority on the standing issue and the absence of any Tennessee decisions dealing with the issue raised in the present case, held that under the “unusual circumstances” of this case Owen lacked standing to challenge Shelby County’s award of the contract to Pidgeon-Thomas. To reach this result, the court relied upon the broad discretion conferred upon elected officials by Tennessee law and upon the absence of fraud, bad faith or surplus cost to the taxpayers. Although a few courts have proffered the absence of bad faith by the solicitor as a rationale for denying an aggrieved bidder standing, see Standard Engineers and Constructors, Inc. v. United States EPA, 483 F.Supp. 1163,1168 (D.Conn.1980); Menke v. Board of Education of West Burlington, 211 N.W.2d 601 (Iowa 1973), this factor is not dispositive of the question. Our role in this diversity action is to determine the ruling that we believe the highest Tennessee court would adopt.
The Tennessee courts have not directly addressed the issue of whether an unsuccessful bidder, such as Owen, has standing to challenge action of an awarding authority which is asserted to be in violation of a state or local statute. Several decisions, however, treat the issue of standing in related contexts. Particularly instructive is Knierim v. Leatherwood, 542 S.W.2d 806 (Tenn.1976), where the court held that a private citizen has standing to bring suits to protect public roads when that citizen has sustained special injury or damage. In Knierim the Tennessee Supreme Court overruled a case decided three-quarters of a century before which denied standing to private residents seeking to enforce the rights of the public in roads and bridges. The Knierim court rejected the older, narrow approach as being “in conflict with the rationale, reasoning and result of countless subsequent cases decided by our courts.” Id. at 810. Only when the complaining party has no special pecuniary or proprietary interest in the public road will he or she lack standing.
The court noted that the doctrine of standing in Tennessee law is essentially judge-made with no hard and fast rules, and the purpose of the doctrine is to make certain that the proper party is advancing the claim. Thus, property owners whose land abuts a public road have acute and compelling rights in a highway which are not common to the public generally. The focus in Knierim is thus on whether the plaintiff has a special interest defined in terms of potential, or realized, injury. Here, a private citizen would be hard pressed to demonstrate any monetary injury from the award of the contract to Pidgeon-Thomas, since Pidgeon-Thomas lowered its bid, after the bids were opened, to match the low bid of Owen. Having Pidgeon-Thomas provide the structural steel for the Criminal Justice Center worked no apparent financial harm to the taxpaying citizens of Shelby County. In stark contrast to this absence of injury is the situation of a low, qualified bidder — here Owen — which suffers serious adverse economic consequences from illegal action. Not only is the low bidder deprived of anticipated profits, but the deprivation “throws an undue overhead burden on the remainder of the contractor’s work and may cause the contractor to lose key field personnel that it cannot readily employ.” Funderburg Builders v. Abbeville City Memorial Hospital, 467 F.Supp. 821, 825 (D.S.C.1979). Under the Knierim rationale, Owen’s special pecuniary interest gives it standing to contest the contractual grant to PidgeonThomas as illegal under the bidding procedures of the Shelby County Restructure Act.
We believe this approach to the standing doctrine is consistent with the developments charted by the Tennessee courts. Indeed, it has long been the law in Tennessee that private citizens, as such, can maintain an action complaining of the wrongful acts of public officials if they aver a special interest or a special injury not shared by the public. Bennett v. Stutts, 521 S.W.2d 575, 576 (Tenn.1975); Badgett v. Broome, 219 Tenn. 264, 409 S.W.2d 354 (1966); Skelton v. Barnett, 190 Tenn. 70, 227 S.W.2d 774 (1950); Patton v. City of Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901).
The aim of these cases is to insure that the appropriate party, one uniquely positioned by virtue of status or injury, is cast in the role of plaintiff. Subsequent decisions confirm this interpretation. In Corporation of Collierville v. Fayette County Election Committee, 539 S.W.2d 334 (Tenn. 1976), the court, characterizing standing as a “perennial problem”, held that only a municipal body, not a private citizen, has standing to sue to invalidate the charter of a proposed city. Since the establishment of a city is an inherently public matter, it may only be redressed in an action brought by a representative of the state. In Payne v. Ramsey, 591 S.W.2d 434 (Tenn.1979), a Republican candidate in a general election was denied standing to contest his Democratic opponent’s eligibility to have been a candidate in the Democratic primary. The correct parties to prosecute such an action, the court noted, were designated by statute as the Democratic candidate’s primary opponents. See also Dobbins v. Crowell, 577 S.W.2d 190, 193 (Tenn.1979).
Even looking beyond Tennessee law to the recent restrictive decisions of the Supreme Court we would find that Owen would have standing. As a prospective, and here the low bidder for Shelby County business, Owen clearly has economic interests at stake which give it standing. Its injury in fact is loss of business and profits which is “fairly traceable to the defendants acts or omissions.” Village of Arlington Hts. v. Metropolitan Housing Development Corporation, 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977). Since Owen was qualified and capable of performing the work, its injury is a type “likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). A helpful analogy is the decision last term in Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), where several associations of construction contractors filed suit for declaratory and injunctive relief alleging that they had sustained economic injury due to enforcement of the Minority Business Enterprise (MBE) provisions of the Public Works Employment Act of 1977. The MBE provisions required that at least 10% of federal funds granted for local public works projects be used by the state or local grantee to procure services or supplies from businesses owned by minority group members even though they might not be the lowest bidders. Although the Supreme Court did not rule on the issue of standing, it apparently accepted as sufficient the petitioners’ allegations that in several instances they sustained economic injury because one of their members would have been awarded a public works contract but for enforcement of the MBE provisions. 448 U.S. at 480 n.71,100 S.Ct. at 2776 n.71. See also Central Alabama Paving, Inc. v. James, 499 F.Supp. 629 (M.D.Ala.1980). In the present Case, Owen alleges that it, as low bidder, would have received the structural steel contract but for the invocation of the minority employment and local concern policies by Shelby County. This loss of business is sufficient to convince us that the Tennessee courts would conclude Owen has standing.
Our conclusion that Owen has standing is also consistent with the majority of federal court decisions, which have held that unsuccessful bidders for government contracts have standing to invoke judicial review of adverse procurement decisions. Sea-Land Service, Inc. v. Brown, 600 F.2d 429, 432 (3rd Cir. 1979); Kinnett Dairy, Inc. v. Farrow, 580 F.2d 1260, 1265 (5th Cir. 1978); Cincinnati Electronics Corp. v. Kleppe, 509 F.2d 1080, 1086 (6th Cir. 1975); Airco, Inc. v. Energy Research and Development Administration, 528 F.2d 1294, 1296 (7th Cir. 1975); Armstrong & Armstrong v. United States, 514 F.2d 402, 403 (9th Cir. 1975); Wilke v. United States, 485 F.2d 180, 182-83 (4th Cir. 1973); Scan well Laboratories, Inc. v. Shaffer, 424 F.2d 859, 866-68 (D.C. Cir.1970); cf. Image Carrier Corp. v. Reame, 567 F.2d 1197, 1201 (2d Cir. 1977); contra, Edelman v. Federal Housing Association, 382 F.2d 594, 597.(2d Cir. 1967); Self-Powered Lighting, Ltd. v. United States, 492 F.Supp. 1267, 1272 (S.D.N.Y.1980).
Accordingly, we hold that Owen has standing to contest the award of the contract to Pidgeon-Thomas.
III. AUTHORITY UNDER STATE LAW
The Shelby County Restructure Act mandates that the contract “shall be awarded to the lowest bidder who is financially responsible... ”, but also provides that “Any and all bids may be rejected for good cause.” Owen of Georgia is, by the defendants’ own admission, financially responsible. The sole reasons given by Mayor Nixon for rejecting Owen’s low bid in favor of Pidgeon-Thomas were that Pidgeon-Thomas was a local concern, whereas Owen was an out-of-state firm, and Pidgeon-Thomas’ minority employment record was superior to that of Owen’s.
Shelby County contends that justification for its rejection of Owen is provided by that sentence in the Restructure Act which permits rejection of any and all bids for “good cause.” To the county, Owen’s status as an out-of-state contractor with a less impressive minority employment record constituted good cause for disqualifying Owen from receiving the contract. In support of this open ended reading of the statute, Section 1.01 of the Restructure Act is cited. That section provides that “limitations on the power of county government shall be strictly construed, and that grants of power to county government shall be liberally construed.” The District Court rejected the approach urged by the county and held that the term “good cause” referred solely to those reasons or circumstances delineated in the first sentence of the paragraph. Under this interpretation, the only grounds on which a bid may permissibly be rejected are that the bidder is not financially responsible; the bidder offers to furnish inferior quality merchandise or materials; the bidder’s proposal is not in conformity with the specifications; the bidder offers supplies or articles that are not suitable to the requirements; or the bidder’s delivery terms are objectively inferior or substantially less desirable than another acceptable bidder.
Both constructions are too extreme. Under Tennessee law a court should construe a statute so that no part will be inoperative, superfluous, void or insignificant and that one section will not destroy another. In re Gasteiger, 471 F.Supp. 13 (D.C.Tenn.1977); Tidwell v. Collins, 522 S.W.2d 674 (Tenn.1975). Where doubt exists, a statute is not to be extended by implication, or enlarged by construction so as to embrace matters not specifically covered therein. National Life & Ace. Ins. Co. v. United States, 381 F.Supp. 1034 (D.C. Tenn.), aff’d 524 F.2d 559 (6th Cir. 1974). Furthermore, the statute must be construed so that the intention or purpose of the legislature is ascertained and given effect. Jackson v. Tennessee Valley Authority, 462 F.Supp. 45 (D.C.Tenn.), aff’d 595 F.2d 1120 (6th Cir. 1979); State v. Doe, 588 S.W.2d 549 (Tenn.1979); Parkridge Hospital, Inc. v. Woods, 561 S.W.2d 754 (Tenn.1978); Dorrier v. Dark, 537 S.W.2d 888 (Tenn.1976). It is beyond cavil that the primary objective is to promote the public interest by obtaining the lowest possible price that competition among responsible bidders can secure. See State v. Dugger, 172 Tenn. 281, 111 S.W.2d 1032,1034 (1938); Johnson City v. Carnegie Realty Co., 166 Tenn. 655, 64 S.W.2d 507, 508 (1933). The overriding fiscal policy behind the Restructure Act demonstrates that the interpretation urged by Shelby County that it may arbitrarily reject a low bid by merely reciting the statutory language “good cause”, and injecting previously unannounced criteria to provide meaning to the phrase, would be contrary to the intent of the statute. This conclusion is reinforced by the express limitations imposed by the statute on the awarding authority’s ability to reject the lowest bid. These constraints should not be interpreted out of the statutory language. We do not believe that the Tennessee courts would construe the Act as granting unlimited discretion to the County to award contracts based upon some undefined and elusive concept of “good cause”.
A contrary conclusion would require us to ignore the mandatory language of the Restructure Act and would render the factors outlined in the Act as valid grounds for rejection mere surplusage. To accept Shelby County’s argument that it has an absolute right to reject the lowest responsible bidder based upon uncodified policies, and may do so merely by invoking the magic words “good cause”, would be to give no meaning to the statutory language that “all... contracts shall be awarded to the lowest bidder who is financially responsible, taking into consideration... (the enumerated factors).”
The narrow construction adopted by the District Court, allowing consideration of only the factors which are expressly codified, suffers from the same infirmity. Under such an interpretation the “good cause” provision is rendered inoperative, for if “good cause” is held to include only the enumerated factors, the phrase becomes superfluous. Our task is to construe the Restructure Act in a manner which preserves the integrity of each clause while keeping the statute internally consistent. Tidwell v. Collins, supra. Two canons of statutory construction provide a method for harmonizing the provisions of the Restructure Act. The ejusdem generis rule of statutory construction provides that where general words follow specific words in an enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. 2A Sutherland, Statutory Construction, (4th ed. C. Sands 1973) Sec. 47.17; see also City of Knoxville v. Brown, 195 Tenn. 501, 260 S.W.2d 264 (1953). Concomitantly, the maxim noscitur a sociis (“it is known from its associates,” Black’s Law Dictionary 1209 (Rev. 4th Ed. 1968)) acknowledges that general and specific words are associated with and take color from each other, restricting general words to a sense analogous less general. See e. g. Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961); Reed v. Long, 327 F.2d 611, 614-15 (6th Cir. 1964). For example, in Third National Bank v. Impac Limited, Inc., 432 U.S. 312, 97 S.Ct. 2307, 53 L.Ed.2d 368 (1977), the Supreme Court affirmed a decision of the Tennessee Supreme Court, citing the familiar principle that words grouped in a list should be given related meaning and applying it to an issue of statutory construction regarding a state court’s issuance of a temporary injunction against a national bank.
Applying these rules to the Restructure Act allows the meaning and boundaries of the term “good cause” to be gathered from context. In this respect, the “good cause” provision entitles the County to reject bids on grounds other than those specifically enumerated in the Restructure Act. However, the phrase “good cause” must be read ejusdem generis to refer to other factors of the same genre as those enumerated by the specific words. While a bid may be rejected for reasons other than those enumerated, the County must cite factors similar to the ones listed, i. e., factors which go to the heart of the contract. In order for rejection to be based on the “good cause,” the proffered reason must relate to something which affects the County’s bargain to substantially the same degree that, for example, inferior quality goods or non-conforming goods affect it. Poor workmanship on a previous job is one example of such a factor.
The reasons cited by the County in the present case — that Pidgeon-Thomas employs a higher proportion of minorities and is a local concern — do not constitute “good cause” for rejecting the other bid. These factors simply do not affect the County’s bargain to the same extent that factors such as those specifically enumerated affect it. They are important ancillary concerns; however, in considering them the County strays farther from the primary purpose of the Restructure Act than a proper construction of the Act permits. These concerns are not recognized in state or local statutes, but represent the County’s beliefs on controversial social and economic questions. The County’s affirmative action program, expressed in Sec. 7 of the Restructure Act, insures that prospective bidders comply with the fair employment practices specified by the EEOC. It also permits the County Department of Equal Opportunity Compliance to compile statistics regarding minority participation in the work forces of potential bidders. The statute does not provide that a bidder’s proportionate minority employment is a factor which will be taken into consideration when awarding a County contract. Rather, it operates as a qualifying mechanism; a finding of compliance with the Act renders a firm eligible to submit a bid. Both Owen and PidgeonThomas were found to be in compliance and that finding ends the role of Sec. 7 in contract awards. Even further astray from the legitimate reasons under the Act for rejecting Owen’s bid is the County’s “local concern” policy, which appeared only as an ex post facto justification for awarding the contract to Pidgeon-Thomas. The Restructure Act as well as the bid advertisements are silent as to any preference for local firms. Shelby County never notified prospective bidders of its intent to favor local businesses when awarding County contracts. Moreover, the defendants have not drawn our attention to any other of the 90 bid packages where these policies were enforced. The district court was correct in concluding that if two contractors furnish the requisite element of financial responsibility, and one contractor’s bid is lower than that of the other, the awarding authority may not disregard the low bid on the ground that the more expensive bidder has greater minority employment or is a local concern. The Shelby County Restructure Act does not embody a concept of “relative superiority” which allows award of the contract to some other bidder because he was “better qualified” than the lowest bidder. Our construction of the Act, however, allows the County the necessary flexibility by permitting rejection of a bid for “good cause” when the good cause is in the nature of the specific provisions.
While the County certainly has the authority to reject all bids, as it did when the first bids were submitted here, contracts subject to the provisions of the Restructure Act cannot properly be awarded to a party other than the lowest responsible and eligible bidder unless that bidder is disqualified on the basis of an enumerated criterion or similar “good cause” reason. See Associated General Contractors of Cali fornia v. San Francisco Unified School District, 616 F.2d 1381, 1385 (9th Cir.) cert. denied sub nom.; National Ass’n of Minority Contractors v. Ass’n of General Contractors, - U.S. -, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980); Funderberg Builders v. Abbeville City Memorial Hospital, 467 F.Supp. 821, 824-25 (D.S.C.1979); Ingelwood-Los Angeles County Civic Center Authority v. Superior Court, 7 Cal.3d 861, 103 Cal.Rptr. 689, 500 P.2d 601 (1972); Commonwealth v. Gill, 5 Mass.App. 337, 363 N.E.2d 267, 270 (1970). Since Shelby County did not justify its rejection of Owen on any permissible ground, that rejection was clearly wrong and the award of the contract to Pidgeon-Thomas invalid.
IV. REMEDIES
As a general rule, a declaratory judgment and an injunction are the only adequate means of protecting the public interest, the integrity of the competitive bidding process, and the rights of the individual bidder. Owen obtained declaratory relief in the court below, but was denied the preventative relief it sought — an injunction forbidding the award of the contract to Pidgeon-Thomas. It is now too late for injunctive relief to be effective because at oral argument we were informed that construction of the Criminal Justice Center was substantially complete. Accordingly, we dismiss as moot Owens’ claims for injunctive relief. For the same reason, we also dismiss as moot the claim for mandamus, without ruling on the availability of this type of relief.
Despite the unavailability of specific or preventative relief, there remains the question of damages. With a great degree of conviction but seemingly little theoretical acumen, Owen sought to recover the expenses it incurred in its unsuccessful participation in the competitive bidding process, the costs incurred in its litigation to set aside the award of the contract to PidgeonThomas, and the profits it allegedly lost by reason of its failure to obtain the award of the contract. Shelby County contends that such a cause of action against it cannot be recognized in view of the overwhelming authority that the competitive bidding requirements of contracts for public works exist to protect the public rather than the bidders. The County notes that Owen could not have compelled the Quarterly Court to award the contract to it because of the provision in the Restructure Act which permits rejection of all bids. We agree that, in line with the Act, Shelby County was not obligated to actually award the contract to a bidder regardless of the bid price. Owen, even as the lowest responsible bidder, had no vested or contractual right to the award of the contract. This absence of any entitlement to the contract compels us to conclude that Owen cannot recover anticipated profits as damages as it never entered into the contract, and could not command that it receive the contract under which it would have made such profits. See e. g. Excavation Construction, Inc. v. United States, 494 F.2d 1289, 1290, 204 Ct.Cl. 299 (1974); Funderburg Builders, supra, 467 F.Supp. at 825.
This conclusion, however, does not leave Owen without any remedy for the violation of the Act’s competitive bidding section by Shelby County. By virtue of those bidding procedures, the County invited bidders to respond. Those procedures protect the local government’s interest as well as the interests of those who respond to the County’s invitation. The public contracting authority is able to obtain the lowest price for its work from a pool of qualified bidders, and all contractors are placed on an equal footing in the competition to gain the contract. All bidders are assured by the Act that their bids will receive fair and honest consideration. This, too, serves the public interest. “The number of bidders, and thus the range of choice available to an awarding authority, may well be reduced if it were to be assumed by prospective bidders that such an authority would not abide by the applicable statutes in making its awards.” Paul Sardella Construction Co. v. Braintree Blousing Authority, 3 Mass.App. 326, 329 N.E.2d 762 (1975), aff’d 371 Mass. 235, 356 N.E.2d 249 (1976). Indeed, it is doubtful that many contractors would bid at all knowing the deck was stacked against them.
In its solicitation of bids pursuant to the Restructure Act, Shelby County clearly promised to award the contract to the lowest financially responsible bidder if it awarded the contract at all. Each prospective bidder could justifiably expect that his proposal would receive fair consideration consistent with this promise. We believe that the Tennessee courts would find that Owen’s reasonable and detrimental reliance upon this promise entitles it to damages under the theory of promissory estoppel. The elements of promissory estoppel are set forth in the decision of Foster & Creighton Co. v. Wilson Contracting, 579 S.W.2d 422 (Tenn.App.1978) where the court adopted the generally accepted definition:
Where one makes a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee, and where such promise does in fact induce such action or forebearance, it is binding if injustice can be avoided only by enforcement of the promise.
Shelby County promised to award the contract to the lowest financially responsible bidder in the event it awarded the contract at all, and in reliance on this promise Owen submitted its bid. This created a type of informal contract, requiring neither consent nor consideration, between Shelby County and Owen (as well as all the other bidders) to award the contract to Owen as the lowest responsible bidder unless it rejected all bids. Consequently, Owen became entitled to damages when Shelby County breached this informal contract by awarding the contract to Pidgeon-Thomas.
Owen may recover in promissory estoppel those damages it sustained by reason of its justifiable reliance upon the County’s promise — in other words, the expenses it incurred in its unsuccessful participation in the competitive bidding process as well as the costs incurred in its successful attempt to have the award to PidgeonThomas rescinded as having been made in violation of the statute. The initial determination of the amount of damages, however, must rest with the trial court. Accordingly, the case is remanded to the district court to conduct such proceedings as it deems proper for ascertaining the amount of damages which Owen shall receive from the County under the doctrine of promissory estoppel as outlined by this court.
The district court’s holding that Owen had no standing to sue is reversed, the declaratory judgment issued below is affirmed for the reasons stated above, the claims for an injunction and mandamus are dismissed as moot, and the case is remanded to the district court for a determination of the damages sustained by Owen in preparing and submitting its second bid for package 0500 and in challenging the award of the contract by Shelby County to PidgeonThomas.
Costs will be taxed to the defendant-appellants — cross-appellees.
. Both Owen and Pidgeon-Thomas were found to be in compliance with EEOC and OFCC regulations — a prerequisite for eligibility to bid for Shelby County Government contracts.
. The record does not reflect that this policy was published in order to notify the bidders.
. The County also agreed to indemnify Pidgeon-Thomas for any sales tax that might be assessed against Pidgeon-Thomas.
. The prevailing policy was to liberally construe municipal powers. The Shelby County Restructure Act, Article 1, Section 1.01 provides: It is the intent of this chapter that the limitations on the powers of the County government shall be strictly construed; and that grants of power to County government shall be liberally construed.
. We reject the boot-strap argument advanced by the defendants that any illegality in the bidding award procedures was rectified when Pidgeon-Thomas lowered its price to match that of Owen’s. While this action may insure that no additional costs are imposed upon the taxpayers, it destroys the nature of competitive bidding and circumvents the requirements of the Shelby County Restructure Act.
. As the issues are not before us, we refrain from deciding whether a taxpaying citizen or a qualified, unsuccessful bidder who is not the low bidder would have standing to challenge the award of a public contract under the circumstances present here.
. Cf. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818 (6th Cir. 1977) (term “good cause” as used in the Wisconsin Fair Dealership Law allowing cancellation of dealership agreements for good cause was not unconstitutionally vague because it was fully and precisely defined by statute so as to give the grantor of the dealership adequate notice as to when it would be violating the Act by attempting to cancel a dealership without good cause).
. The language in the advertisement and bidding document reserving the discretion to “reject any and all bids” and to award the contract regardless of by whom bid or how bid cannot change the result. The instructions to bidders contained the following language: “The qwner reserves the right to select an award of a contract on or to reject any package or grouping of packages by any bidder or bidders as the owner may choose regardless of by whom bid, how bid, time bid, or sequence of bid so long as any award falls within the valid bid time period set out herein.”
The advertisement for bids informed all prospective bidders that “the owner reserves the right to reject any or all proposals and to waive any informalities.” Insofar as these instructions are inconsistent with the Shelby County Restructure Act, they must be disregarded. The Act, not the bid advertisement, constitutes the law controlling the award of the contract.
. Section 7 provides that the County Department of Equal Opportunity Compliance shall:
(a) Review and implementation of fair employment practices, as specified by Equal Employment Opportunity Commission guidelines, in all departments of County Government under the jurisdiction of the County Commission or County Mayor, if there be one;
(b) Update and monitor and effective affirmative action program;
(c) Review all proposed contracts in which County funds are expended
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_state
|
36
|
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".
In re Clarence Oral CALHOUN fdba Bimbo’s Place, Debtor. Jo Ann LONG fka Jo Ann Calhoun, Plaintiff-Appellee, v. Clarence Oral CALHOUN fdba Bimbo’s Place, Defendant-Appellant.
No. 82-3180.
United States Court of Appeals, Sixth Circuit.
Argued March 22, 1983.
Decided Aug. 30, 1983.
Donald R. Little, Canton, Ohio, for defendant-appellant.
Thomas G. Bedall, Stark County Legal Aid Society, Canton, Ohio, for plaintiff-appellee.
Before KENNEDY, MARTIN and NIES, Circuit Judges.
Honorable Helen W. Nies, United States Court of Appeals for the Federal Circuit, sitting by designation.
CORNELIA G. KENNEDY, Circuit Judge..
Clarence Calhoun appeals the Bankruptcy Court’s summary judgment that his assumption of five loan obligations totaling $27,564.14 pursuant to a separation agreement between Calhoun and his former wife were “in the nature of” support or alimony and therefore nondischargeable debts under 11 U.S.C. § 523(a)(5). We reverse and remand for further proceedings consistent with this opinion.
Appellant filed for voluntary bankruptcy under Chapter 7, 11 U.S.C. § 701 et seq., on July 1, 1980. His former wife, appellee Jo Ann Long, was listed as the holder of unspecified unsecured claims. Appellee Long brought a complaint before the Bankruptcy Court to determine whether obligations of $21,611.32 assumed by the appellant in the parties’ separation agreement constituted alimony excepted from discharge under 11 U.S.C. § 523(a)(5).
Calhoun and Long were married, both for the second time, on October 2, 1976. No children resulted from their marriage. Each had children from their first marriages. On November 14, 1979 the couple entered into a separation agreement in which Calhoun, unrepresented by counsel, agreed to assume five debts jointly incurred during the marriage and to hold Long harmless for their payment. The agreement characterizes this assumption as alimony and support although it is found in the section of the document labeled Division of Property. Another section labeled Alimony states that there shall be no alimony other than that provided in the debts and obligation section. An Ohio Common Pleas Court subsequently incorporated this agreement into a divorce decree dissolving the marriage.
The five obligations assumed by Calhoun include:
(1) A note for $8,670 to the First National Bank of Massillon which financed a swimming pool at the home owned by the appellee Long;
(2) A note for $11,000 to Floyd Schalmo, the proceeds from which were used to consolidate the couple’s debts including $5,000 for Calhoun’s business, Bimbo’s Place, and $6,000 for utilities, car payment and prior debts;
(3) Visa card charges of $1,076.38 incurred to pay for Calhoun’s expenses at a truck driving school;
(4) Mastercharge card charges of $824.22 for Calhoun’s expenses while “on the road”;
(5) A note of $5,998.40 for the purchase of a 1977 Dodge Tradesman Van titled to Calhoun.
At the time of their separation Calhoun had sold his business and had been laid off from his job as a meat cutter. His earnings for the prior three years were approximately $10,000 to $15,000 in 1977, $7,500 in 1978, and a loss in 1979. His current income is approximately $950.00 per month from which he is required to pay approximately $300.00 per month for support of two children from his previous marriage and $707.00 per month on the debts he assumed in the parties’ separation agreement. Long has an income of approximately $500.00 per month (including $260.00 in ADC payments and $160.00 in child support from her first husband). She owns her own home (which she received on dissolution of her first marriage) on which she pays $95.00 per month in mortgage payments.
This case presents the issue of when a debtor’s assumption of joint debts and the undertaking to hold a former spouse harmless as part of a marriage separation agreement constitutes support or alimony payments to the former spouse resulting in non-dischargeable debts under 11 U.S.C. § 523(a)(5).
Section 523(a)(5) represents Congress’ resolution of the conflict between the discharge of obligations allowed by the bankruptcy laws and the need to ensure necessary financial support for the divorced spouse and children of the debtor. Accordingly» § 523 excepts from discharge payments:
(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of both spouse or child, in connection with a separation agreement, divorce decree, or property settlement agreement, but not to the extent that—
(A) such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act); or
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support(.)
The initial question is whether those obligations not payable directly to the former spouse are nondischargeable under § 523(a)(5). The Senate and House Reports contain conflicting language. At one point they seem to indicate payments must be made directly.
Paragraph (5) excerpts from discharge debts to a spouse, former spouse, or child of the debtor for alimony to, maintenance for, or support of, the spouse or child. This language, in combination with the repeal of section 456(b) of the Social Security Act (43 U.S.C. 656(b)) by section 327 of the bill, will apply to make nondischargeable only alimony, maintenance, or support owed directly to a spouse or dependent. See Hearings, pt. 2, at 942. (emphasis supplied)
H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 364 (1977) reprinted in [1978] U.S.Code Cong. & Ad.News, 5787, 6320; S.Rep. No. 95-989, 95th Cong., 2d Sess. 79, reprinted in [1978] U.S.Code Cong. & Ad.News 5865. The remaining portion of the report, however, refutes any direct payment requirement in the case of an agreement to hold a spouse harmless on joint debts.
This provision will, however, make nondischargeable any debts resulting from an agreement by the debtor to hold the debtor’s spouse harmless on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations that are similar to considerations of whether a particular agreement to pay money to a spouse is actually alimony or a property settlement. See Hearings, pt. 3, at 1287-1290.
Id.
The Second Circuit rejected a requirement of direct payment in In re Spong, 661 F.2d 6 (2nd Cir.1981). The court relied, in part, on a joint explanatory statement by the principal sponsors of the Act:
If the debtor has assumed an obligation of the debtor's spouse to a third party in connection with a separation agreement, property settlement agreement, or divorce proceeding, such debt is dischargeable to the extent that payment of the debt by the debtor is not actually in the nature of alimony, maintenance, or support of debtor’s spouse, former spouse, or child.
24 Cong.Rec. H11,096 (daily ed. Sept. 28, 1978) (remarks of Rep. Edwards); Id. at S17,412 (daily ed. Oct. 6, 1978) (remarks of Sen. DeConcini). See 661 F.2d at 10.
Bankruptcy court decisions have uniformly found hold harmless clauses to create nondischargeable obligations. E.g., In re Petoske, 16 B.R. 412 (Bkrtey.E.D.N.Y. 1982); Matter of Gentile, 16 B.R. 381 (Bkrtcy.S.D.Ohio 1982); In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981). We agree with these courts and hold that payments in the nature of support need not be made directly to the spouse or dependent to be nondischargeable.
In accordance with the express language of § 523(a)(5) the bankruptcy courts have uniformly required that joint obligations assumed by the debtor as a part of a separation or divorce settlement must be “actually in the nature of” alimony or support in order to be excepted from discharge. E.g., In re French, 9 B.R. 464, 466-67 (Bkrtcy.S.D.Cal.1981); In re Eisenberg, 18 B.R. 1001, 1003-004 (Bkrtcy.E.D.N.Y.1982); In re Dirks, 15 B.R. 775, 779 (Bkrtcy.N.M. 1981); In re French, 19 B.R. 255, 256 (Bkrtcy.M.D.Fla.1982). See also Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981). The issue of when an assumption of joint debts is “in the nature of alimony, maintenance, or support” as opposed to a division of communal property is to be determined by federal bankruptcy law. E.g., In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982); In re Daiker, 5 B.R. 348, 351-52 (Bkrtcy. Minn.1980). See In re Spong, 661 F.2d 6, 8-9 (2nd Cir.1981). See generally 3 Collier on Bankruptcy § 523.15(1) (15th Ed.1981). The legislative history of the provision is unequivocal on this point. Both the House and Senate Reports declare:
What constitutes alimony, maintenance, or support, will be determined under the bankruptcy law, not State law.
Thus, cases such as In re Waller, 494 F.2d 447 (6th Cir.1974), are overruled, and the result in cases such as Fife v. Fife, 1 Utah 2d 281, 265 P.2d 642 (1952) is followed. The Proviso, however, makes non-dis-chargeable any debts resulting from an agreement by the debtor to hold the debt- or’s spouse harmless, on joint debts, to the extent that the agreement is in payment of alimony, maintenance, or support of the spouse, as determined under bankruptcy law considerations as to whether a particular agreement to pay money to a spouse is actually alimony or a property settlement, (emphasis supplied)
S.Rep. No. 95-989, 95th Cong., 2d Sess., 79, reprinted in [1978] U.S.Code Cong. & Ad. News 5787, 5865. See also H.R. No. 95-595, 95th Cong., 1st Sess., 364 (1977), reprinted in [1978] U.S.Code Cong. & Ad.News 5963, 6320.
Yet, while it is clear that Congress intended that federal not state law should control the determination of when an assumption of joint debts is “in the nature of” alimony or support, it does not necessarily follow that state law must be ignored completely. It is unlikely that Congress could have intended such a result. The underlying obligation to provide support in the first place is necessarily determined by state law. The federal bankruptcy courts are obviously not empowered to create an obligation to support where it did not previously exist. Moreover, there is “no federal law of domestic relations.” DeSlyva v. Ballentine, 351 U.S. 570, 580, 76 S.Ct. 974, 980, 100 L.Ed. 1415 (1956). Divorce, alimony, support and maintenance are issues within the exclusive domain of the state courts. Boddie v. Connecticut, 401 U.S. 371, 389, 91 S.Ct. 780, 792, 28 L.Ed.2d 113 (1971) (Black, J., dissenting). We agree, therefore, with the Second Circuit’s reasoning in In re Spong, 661 F.2d at 9, that Congress could not have intended the bankruptcy courts to ignore well developed state law principles of domestic relations in determining whether a particular loan assumption is “in the nature of” alimony or support for purposes of the bankruptcy act.
Neither the case law nor legislative history, however, resolve the extent to which resort to state law would be appropriate. The rationale that has prevailed in varying degrees before most bankruptcy courts as well as the Second Circuit in In re Spong is that while state law is not binding, it nonetheless may provide a useful source of “guidance.” E.g., Id.; In re King, 15 B.R. 127, 129 (Bkrtcy.Kans.1981); In re Allen, 4 B.R. 617 (Bkrtcy.E.D.Tenn.1980); In re Pelikant, 5 B.R. 404 (Bkrtcy.N.D.Ill.1980); In re Dirks, 15 B.R. 775, 779 (Bkrtcy.N.M. 1981). Yet, there is little agreement as to what the vague term “guidance” actually means. Some bankruptcy courts have utilized state law to determine whether there is an underlying “obligation” to pay alimony or support in the first instance. See In re French, 9 B.R. 464, 468 (Bkrtcy.S.D.Cal. 1981); In re Miller, 8 B.R. 174, 3 Collier Bankr. Cas.2d 595, 598 (Bkrtcy.N.D.Ohio 1981); In re Warner, 5 B.R. 434, 440-41 (Bkrtcy.Utah 1980); In re Pelikant, 5 B.R. 404 (Bkrtcy.N.D.Ill.1980); In re Lowell, 3 B.R. 401, 404 (Bkrtcy.N.D.Ga.1980). Similarly, some courts have considered the amount of support a state court would have reasonably granted as a relevant factor in determining whether the loan assumption was actually in the nature of support. See, e.g., In re Jeffrey Lowell Williams, 3 B.R. 401, 404 (Bkrtcy.N.D.Ga.1980); In re French, 9 B.R. 464, 468 (Bkrtcy.S.D.Cal. 1981). A few bankruptcy courts have also considered whether some provision is made for termination of the debtor’s sole responsibility for the assumed obligation upon remarriage of the former spouse or age of majority in the children. See, e.g., Matter of Martin, 19 B.R. 367 (Bkrtcy.M.D.Fla. 1982); In re Dirks, 15 B.R. 775 (Bkrtcy.N.M. 1981) ; Matter of Taft, 10 B.R. 101, 4 Collier Bankr.Cas.2d 65 (Bkrtcy.Conn.1981).
Other bankruptcy courts have simply recited those factors most often considered relevant by state courts generally in determining whether to grant support without reference to any particular state’s law. See, e.g., In re Petoske, 16 B.R. 412, 414 (Bkrtcy.E.D.N.Y.1982); In re Eisenberg, 18 B.R. 1001, 1003-004 (Bkrtcy.E.D.N.Y.1982); Matter of Gentile, 16 B.R. 381, 383 (Bkrtcy. S.D.Ohio 1982). These courts have looked for factors from which they might discern either the underlying purpose of the state court decree or the actual intentions of parties in providing loan assumption by the debtor; that is, was the assumption meant to be in lieu of support payments or rather just a means of dividing property upon divorce? See, e.g., Hixson v. Hixson, 23 B.R. 492, 495 (Bkrtcy.S.D.Ohio 1982); Matter of Jensen, 17 B.R. 537, 540 (Bkrtcy.W.D.Mo. 1982) ; In re Petoske, 16 B.R. 412 (Bkrtcy.E.D.N.Y.1982).
Fairly divergent dispositions have resulted from utilization of the above factors. The initial difficulty is that every assumption of a joint loan obligation in a divorce settlement at least indirectly contributes to support. The former spouse is relieved of payments on that debt and thus has funds for other purposes including necessary support. Support in this broad sense results even if the assumption of joint marital debts is actually a division of property. It is clear from the statute and legislative history that Congress could not have intended that all assumptions of joint debts would be nondischargeable. Such assumptions of debt are discharged “to the extent that payment ... is not actually in the nature of alimony, maintenance or support .... ” 124 Cong.Rec. 4, 11, 096 (daily ed. Sept. 28, 1978) (Rep. Edwards) 517, 412 (daily ed. Oct. 6, 1978) (Sen. DeConcini). To interpret § 528 in this broad sense envisages results at odds with the “fresh start” concept which underlies the Bankruptcy Act. See In re Dirks, 15 B.R. 775, 779 (Bkrtcy.D.N.M.1981); In re King, 15 B.R. 127, 130 (Bkrtcy.D.Kan.1981). The federal bankruptcy common law of domestic relations which Congress has apparently charged the bankruptcy courts to fashion must give considerable weight to this important factor. This, and Congress’ mandate that federal bankruptcy law considerations must be determinative in discharge-ability issues, convinces us that a more searching inquiry is required than merely applying traditional factors borrowed from state law.
We believe that the initial inquiry must be to ascertain whether the state court or the parties to the divorce intended to create an obligation to provide support through the assumption of the joint debts. If they did not, the inquiry ends there. There is no basis for the bankruptcy court to create a non-dischargeable obligation for the debtor that the state court granting the divorce decree or the parties to that proceeding did not create. In making this determination the bankruptcy court may consider any relevant evidence including those factors utilized by state courts to make a factual determination of intent to create support.
This finding of intent does not, however, control the ultimate issue of whether the assumption of joint debts was actually in the nature of support for purposes of federal bankruptcy. If the bankruptcy court finds, as a threshold matter, that assumption of the debts was intended as support it must next inquire whether such assumption has the effect of providing the support necessary to ensure that the daily needs of the former spouse and any children of the marriage are satisfied. The distribution or existence of other property, for example, may make the continuing assumption of joint debts unnecessary for support, as might drastic changes in the former spouse’s capabilities for self-support. Substance must prevail over form. E.g., In Matter of Gentile, 16 B.R. 381, 383 (Bkrtcy. S.D.Ohio 1982); In re Miller, 8 B.R. 174, 3 Collier Bankr.Cas.2d 595 (Bkrtcy.N.D.Ohio 1981); Matter of Taft, 10 B.R. 101, 4 Collier Bankr.Cas.2d 65 (Bkrtcy.N.D.Ga.1980); In re Warner, 5 B.R. 434, 440-41 (Bkrtcy.Utah 1980). See also In re Spong, 661 F.2d 6, 9 (2nd Cir.1981); 3 Collier on Bankruptcy § 523.15(5) (15th Ed.1981). The bankruptcy court should also look to the practical effect of the discharge of each loan upon the dependent spouse’s ability to sustain daily needs. Discharge of a joint debt on the bankrupt’s automobile, for example, is unlikely to disrupt the dependent spouse’s ability to meet daily needs when the automobile itself is available to the creditor in satisfaction of the debt. If without the loan assumption the spouse could not maintain the daily necessities, such as food, housing and transportation, the effect of loan assumption may be found “in the nature of” support for purposes of the Bankruptcy Act. See, e.g., Inskeep v. Draper, 25 B.R. 518, 520 (Bkrtcy.S.D.Ohio 1982); Hixson v. Hixson, 23 B.R. 492, 496 (Bkrtcy.S.D. Ohio 1982); Matter of Painter, 21 B.R. 846, 848 (Bkrtcy.M.D.Ga.1982). If the loan assumption is not found necessary to provide such support, the inquiry ends and the debt- or’s obligation to hold the former spouse harmless must be discharged.
Having found that the loan assumption has the effect of providing necessary support, the Bankruptcy Court must finally determine that the amount of support represented by the assumption is not so excessive that it is manifestly unreasonable under traditional concepts of support. Such an excessive allowance is at odds with the fresh start concept underlying federal bankruptcy law. For this reason, the loan assumption should be treated, to the extent possible, the same as ordinary direct child support or alimony payments. A universal consideration of state courts in setting such direct support payments is the supporting spouse’s general ability to pay the support ordered. Under the mandate of Congress that the bankruptcy court fashion a common law of bankruptcy and the principle that one cannot contract away bankruptcy rights, the bankruptcy courts in the case of an obligation to hold the former spouse harmless on joint debts must, therefore, examine the ability to pay. If, at the time the debts were assumed, the assumption substantially exceeded a spouse’s present and foreseeable ability to pay, the amount of the assumption which exceeded that ability should not be characterized as in the nature of support. We recognize the difficulty of making such a factual inquiry. However, the alternative would be to permit the debtor to contract away the right to discharge in bankruptcy and the opportunity for a fresh start. The inquiry will be limited to whether the amount agreed to is manifestly unreasonable in view of the earning power and financial status of the debtor spouse.
If the bankruptcy court finds the loan assumption too excessive to be fairly considered “in the nature of” support it must then set a reasonable limit on the nondischargeability of that obligation for purposes of bankruptcy. Use of factors similar to those a state court would employ to formulate a reasonable limit on support may be used to serve that limiting function in the context of a dischargeability determination. In such cases the bankruptcy courts should consider such traditional state law factors as the relative earning powers of the parties, their financial status, prior work experiences or abilities, other means of support and other facts relevant to the substance of the result achieved by the loan assumption in order to determine how much of the debt assumed can be fairly considered “in the nature of” support for purposes of federal bankruptcy.
The bankruptcy court’s determination of whether a loan assumption constitutes a nondischargeable support obligation is a factual finding only reviewable in the court of appeals under the clearly erroneous standard of Fed.R.Civ.P. 52. See Matter of Coil, 680 F.2d 1170, 1172 (7th Cir.1982).
See also Melichar v. Ost, 661 F.2d 300, 303 (4th Cir.1981); In re Nelson, II, 20 B.R. 1008 (D.C.M.D.Tenn.1982) (the district court may overturn a factual finding by a bankruptcy court only if clearly erroneous. Bankr.R. 810). In this case, however, the Bankruptcy Court made two errors of law which require that the judgment be reversed and the case remanded for reconsideration without our review of the court’s factual findings.
The Bankruptcy Court first erred by applying an incorrect legal standard. The Court held, that the clear language of the parties’ separation agreement controlled the issue of dischargeability “unless the compelling weight of the evidence suggests that enforcement of the agreement would work a manifest injustice.” The language of the parties’ (or state courts’) characterization of the loan assumption does not control. Moreover, the Bankruptcy Court, in effect, shifted the burden of proof from the plaintiff spouse to the debtor to show that the agreement does not mean what it says or works a manifest injustice. Placing this degree of reliance upon the language of the parties’ agreement and placing the burden of persuasion on the debtor are legal errors which may not be separated from the court’s factual findings in this case. The contents of those findings were inextricably dependent upon the focus of the court’s inquiry.
The Bankruptcy Court also erred by not considering each loan obligation assumed individually. Many of the factors considered in determining dischargeability could vary depending upon the type of loan involved, its purposes and the circumstances of the parties. See, e.g., In re Nelson, 20 B.R. 1008 (D.C.M.D.Tenn.1982); Inskeep v. Draper, 25 B.R. 518 (Bkrtcy.S.D.Ohio 1982); Hixson v. Hixson, 23 B.R. 492 (Bkrtcy.S.D. Ohio 1982). On remand, therefore, the Bankruptcy Court should consider each of the appellant’s five assumed debts in light of the standards enunciated in this opinion.
Accordingly the judgment of the Bankruptcy Court is reversed and the case remanded for further proceedings consistent with this opinion.
. The summary judgment was based upon the parties’ stipulation of facts, the pleadings and arguments of counsel.
. The appellant Calhoun correctly notes that the Bankruptcy Court found $27,564.14 in nondischargeable debts even though the appellee only challenged $21,611.32 of the appellant’s claimed dischargeable debts. On remand the Bankruptcy Judge should reconcile and explain this discrepancy.
. Mr. Calhoun, although unrepresented, makes no claim that he misunderstood the nature of his obligations under the parties’ separation agreement. The parties agree that the terms of the agreement were explained to Calhoun by Long’s counsel and Calhoun’s consent to its terms voluntarily given. The absence of counsel is only relevant in cases in which the debtor did not understand the nature of his obligation created by the parties’ consent agreement. But see Matter of Gentile, 16 B.R. 381, 383 (Bkrtcy. S.D.Ohio 1982).
. There are two distinct obligations involved in an agreement to assume former joint marital debts — the underlying debt owed to the mutual creditor and the obligation owed directly to the former spouse to hold the spouse harmless on that underlying debt. It is only the discharge-ability of this latter obligation which is at issue in the present case.
. These remarks were offered jointly by sponsors from both houses of Congress in lieu of a conference report on the Act. As such they are of greater value in interpreting legislative intent than the statements of individual legislators ordinarily are. See National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 640, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357 (1967).
. The latter approach of evaluating the extent of any underlying state law duty to support is arguably in contradiction to Congress’ intent that state law not be controlling. The obvious temptation is to treat as conclusive any finding that a duty to support at a specific level would exist under state law. Succumbing to such a temptation would clearly circumvent the legislature’s intent that considerations particular to federal bankruptcy law shall be determinative of dischargeability issues.
. These factors include: the nature of the obligations assumed (provision of daily necessities indicates support); the structure and language of the parties’ agreement or the court’s decree; whether other lump sum or periodic payments were also provided; length of the marriage; the existence of children from the marriage; relative earning powers of the parties; age, health and work skills of the parties; the adequacy of support absent the debt assumption; and evidence of negotiation or other understandings as to the intended purpose of the assumption.
. See discussion on pp. 1107-1108.
. At issue in the present case is solely the dischargeability of a continuing obligation to hold the former spouse harmless on past marital debts. There has been no claim made that Calhoun is in arrears on past payments due under this obligation. The dischargeability of such unpaid past liabilities requires an analysis distinct from consideration of whether the continuing obligation to hold harmless may be discharged.
. We recognize that such inquiry may, in effect, modify a judgment or decree of a state court. In view of the congressional mandate to apply a federal standard, this cannot be avoided. Actual interference, however, will probably be minimal. In a contested case the likelihood that the state court would have awarded support where it was unnecessary is sufficiently remote that such interference by the bankruptcy court will seldom be necessary. When, as in the present controversy, the decree is not the result of a contested case but merely incorporates the parties’ agreement, the concern for comity is of less importance. To allow the parties’ characterization of a loan assumption in such cases to control pro forma would permit the debtor to agree to forego his rights under the bankruptcy laws.
. .If the circumstances of the debtor have changed from the time the obligation to the former spouse to pay joint debts was created so as to make such support now inequitable the bankruptcy court may consider the debtor’s current general ability to pay insofar as it relates to the continuing obligation to assume the joint debts.
. We emphasize that the nature of this final inquiry as to whether the loan assumptions would constitute an excessive degree of support beyond that which any state court would reasonably allow given the parties’ relative circumstances, is a limited one. It is not intended that the Bankruptcy Court sit as a “super-divorce” court. Rather, the purpose of such inquiry is to ensure that the degree of support represented by the loan assumptions, particularly in uncontested cases, does not clearly exceed that which might reasonably have been awarded as support by a state court after an adversarial proceeding.
. The parties here claim to have taken a direct appeal by agreement to the Sixth Circuit pursuant to 28 U.S.C. § 1293(b). Section 1293(b) is not actually effective until April 1, 1984. However, this section refers to the note preceding 28 U.S.C. § 1471 as controlling appeals during the transitional period. That note, Pub.Law 95-598, Title IV, § 405, 92 Stat. 2686, authorizes the same form of appeal by stipulation described in § 1293(b).
. Apart from consideration of whether the assumption of joint debts is so excessive as to be unreasonable, the bankruptcy court may not find an assumption dischargeable merely on general equitable considerations. This limitation on the court’s inquiry is apparent when § 523(a)(5) is compared to § 523(a)(8) which governs the dischargeability of student loans. The latter discharge exception specifically provides that the Bankruptcy Court may find a student loan debt dischargeable if equitable considerations so warrant even though otherwise defined as a nondischargeable debt. The former has no such provision. Because of Congress’ silence, as well as the undesirable increased potential for second guessing state Court decrees, we believe that § 523(a)(5) is limited to consideration of whether the assumed debt is actually in the nature of support as defined in this opinion. See In re Nelson, II, 20 B.R. 1008, 1011 n. 3 (D.C.M.D.Tenn.1982).
. It is the spouse’s burden to establish nondischargeability. See In re Daiker, 5 B.R. 348, 351-52 (Bkrtcy.Minn.1980).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_petitioner
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
CALIFORNIA v. GREENWOOD et al.
No. 86-684.
Argued January 11, 1988
Decided May 16, 1988
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, O’ConnoR, and Scalia, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 45. Kennedy, J., took no part in the consideration or decision of the case.
Michael J. Pear argued the cause for petitioner. With him on the briefs were Cecil Hicks and Michael R. Capizzi.
Michael Ian Garey, by appointment of the Court, 484 U. S. 808, argued the cause for respondents and filed a brief for respondent Greenwood. Richard L. Schwartzberg filed a brief for respondent Van Houten.
Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, Ronald E. Niver and Laurence K. Sullivan, Supervising Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Robert Butterworth of Florida, Warren Price III of Hawaii, Linley E. Pearson of Indiana, David L. Armstrong of Kentucky, Hubert H. Humphrey III of Minnesota, LeRoy S. Zimmerman of Pennsylvania, Travis Medlock of South Carolina, W. J. Michael Cody of Tennessee, Kenneth 0. Eikenberry of Washington, Donald J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, Courtney A. Evans, Daniel B. Hales, and Jack E. Yelverton.
Justice White
delivered the opinion of the Court.
The issue here is whether the Fourth Amendment prohibits the warrantless search and seizure of garbage left for collection outside the curtilage of a home. We conclude, in accordance with the vast majority of lower courts that have addressed the issue, that it does not.
h — 1
In early 1984, Investigator Jenny Stracner of the Laguna Beach Police Department received information indicating that respondent Greenwood might be engaged in narcotics trafficking. Stracner learned that a criminal suspect had informed a federal drug enforcement agent in February 1984 that a truck filled with illegal drugs was en route to the Laguna Beach address at which Greenwood resided. In addition, a neighbor complained of heavy vehicular traffic late at night in front of Greenwood’s single-family home. The neighbor reported that the vehicles remained at Greenwood’s house for only a few minutes.
Stracner sought to investigate this information by conducting a surveillance of Greenwood’s home. She observed several vehicles make brief stops at the house during the late-night and early morning hours, and she followed a truck from the house to a residence that had previously been under investigation as a narcotics-trafficking location.
On April 6, 1984, Stracner asked the neighborhood’s regular trash collector to pick up the plastic garbage bags that Greenwood had left on the curb in front of his house and to turn the bags over to her without mixing their contents with garbage from other houses. The trash collector cleaned his truck bin of other refuse, collected the garbage bags from the street in front of Greenwood’s house, and turned the bags over to Stracner. The officer searched through the rubbish and found items indicative of narcotics use. She recited the information that she had gleaned from the trash search in an affidavit in support of a warrant to search Greenwood’s home.
Police officers encountered both respondents at the house later that day when they arrived to execute the warrant. The police discovered quantities of cocaine and hashish during their search of the house. Respondents were arrested on felony narcotics charges. They subsequently posted bail.
The police continued to receive reports of many late-night visitors to the Greenwood house. On May 4, Investigator Robert Rahaeuser obtained Greenwood’s garbage from the regular trash collector in the same manner as had Stracner. The garbage again contained evidence of narcotics use.
Rahaeuser secured another search warrant for Greenwood’s home based on the information from the second trash search. The police found more narcotics and evidence of narcotics trafficking when they executed the warrant. Greenwood was again arrested.
The Superior Court dismissed the charges against respondents on the authority of People v. Krivda, 5 Cal. 3d 357, 486 P. 2d 1262 (1971), which held that warrantless trash searches violate the Fourth Amendment and the California Constitution. The court found that the police would not have had probable cause to search the Greenwood home without the evidence obtained from the trash searches.
The Court of Appeal affirmed. 182 Cal. App. 3d 729, 227 Cal. Rptr. 539 (1986). The court noted at the outset that the fruits of warrantless trash searches could no longer be suppressed if Krivda were based only on the California Constitution, because since 1982 the State has barred the suppression of evidence seized in violation of California law but not federal law. See Cal. Const., Art. I, § 28(d); In re Lance W., 37 Cal. 3d 873, 694 P. 2d 744 (1985). But Krivda, a decision binding on the Court of Appeal, also held that the fruits of warrantless trash searches were to be excluded under federal law. Hence, the Superior Court was correct in dismissing the charges against respondents. 182 Cal. App. 3d, at 735, 227 Cal. Rptr, at 542.
The California Supreme Court denied the State’s petition for review of the Court of Appeal’s decision. We granted certiorari, 483 U. S. 1019, and now reverse.
) — I I — C
The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable. O’Connor v. Ortega, 480 U. S. 709, 715 (1987); California v. Ciraolo, 476 U. S. 207, 211 (1986); Oliver v. United States, 466 U. S. 170, 177 (1984); Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring). Respondents do not disagree with this standard.
They assert, however, that they had, and exhibited, an expectation of privacy with respect to the trash that was searched by the police: The trash, which was placed on the street for collection at a fixed time, was contained in opaque plastic bags, which the garbage collector was expected to pick up, mingle with the trash of others, and deposit at the garbage dump. The trash was only temporarily on the street, and there was little likelihood that it would be inspected by anyone.
It may well be that respondents did not expect that the contents of their garbage bags would become known to the police or other members of the public. An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.
Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. See Krivda, supra, at 367, 486 P. 2d, at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,” United States v. Reicherter, 647 F. 2d 397, 399 (CA3 1981), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
Furthermore, as we have held, the police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public. Hence, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, supra, at 351. We held in Smith v. Maryland, 442 U. S. 735 (1979), for example, that the police did not violate the Fourth Amendment by causing a pen register to be installed at the telephone company’s offices to record the telephone numbers dialed by a criminal suspect. An individual has no legitimate expectation of privacy in the numbers dialed on his telephone, we reasoned, because he voluntarily conveys those numbers to the telephone company when he uses the telephone. Again, we observed that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Id., at 743-744.
Similarly, we held in California v. Ciraolo, supra, that the police were not required by the Fourth Amendment to obtain a warrant before conducting surveillance of the respondent’s fenced backyard from a private plane flying at an altitude of 1,000 feet. We concluded that the respondent’s expectation that his yard was protected from such surveillance was unreasonable because “[a]ny member of the public flying in this airspace who glanced down could have seen everything that these officers observed.” Id., at 213-214.
Our conclusion that society would not accept as reasonable respondents’ claim to an expectation of privacy in trash left for collection in an area accessible to the public is reinforced by the unanimous rejection of similar claims by the Federal Courts of Appeals. See United States v. Dela Espriella, 781 F. 2d 1432, 1437 (CA9 1986); United States v. O’Bryant, 775 F. 2d 1528, 1533-1534 (CA11 1985); United States v. Michaels, 726 F. 2d 1307, 1312-1313 (CA8), cert. denied, 469 U. S. 820 (1984); United States v. Kramer, 711 F. 2d 789, 791-794 (CA7), cert. denied, 464 U. S. 962 (1983); United States v. Terry, 702 F. 2d 299, 308-309 (CA2), cert. denied sub nom. Williams v. United States, 461 U. S. 931 (1983); United States v. Reicherter, supra, at 399; United States v. Vahalik, 606 F. 2d 99, 100-101 (CA5 1979) (per curiam), cert. denied, 444 U. S. 1081 (1980); United States v. Crowell, 586 F. 2d 1020, 1025 (CA4 1978), cert. denied, 440 U. S. 959 (1979); Magda v. Benson, 536 F. 2d 111, 112-113 (CA6 1976) (per curiam); United States v. Mustone, 469 F. 2d 970, 972-974 (CA1 1972). In United States v. Thornton, 241 U. S. App. D. C. 46, 56, and n. 11, 746 F. 2d 39, 49, and n. 11 (1984), the court observed that “the overwhelming weight of authority rejects the proposition that a reasonable expectation of privacy exists with respect to trash discarded outside the home and the curtilege [sic] thereof.” In addition, of those state appellate courts that have considered the issue, the vast majority have held that the police may conduct war-rantless searches and seizures of garbage discarded in public areas. See Commonwealth v. Chappee, 397 Mass. 508, 512-513, 492 N. E. 2d 719, 721-722 (1986); Cooks v. State, 699 P. 2d 653, 656 (Okla. Crim.), cert, denied, 474 U. S. 935 (1985); State v. Stevens, 123 Wis. 2d 303, 314-317, 367 N. W. 2d 788, 794-797, cert. denied, 474 U. S. 852 (1985); State v. Ronngren, 361 N. W. 2d 224, 228-230 (N. D. 1985); State v. Brown, 20 Ohio App. 3d 36, 37-38, 484 N. E. 2d 215, 217-218 (1984); State v. Oquist, 327 N. W. 2d 587 (Minn. 1982); People v. Whotte, 113 Mich. App. 12, 317 N. W. 2d 266 (1982); Commonwealth v. Minton, 288 Pa. Super. 381, 391, 432 A. 2d 212, 217 (1981); State v. Schultz, 388 So. 2d 1326 (Fla. App. 1980); People v. Huddleston, 38 Ill. App. 3d 277, 347 N. E. 2d 76 (1976); Willis v. State, 518 S. W. 2d 247, 249 (Tex. Crim. App. 1975); Smith v. State, 510 P. 2d 793 (Alaska), cert. denied, 414 U. S. 1086 (1973); State v. Fassler, 108 Ariz. 586, 592-593, 503 P. 2d 807, 813-814 (1972); Croker v. State, 477 P. 2d 122, 125-126 (Wyo. 1970); State v. Purvis, 249 Ore. 404, 411, 438 P. 2d 1002, 1005 (1968). But see State v. Tanaka, 67 Haw. 658, 701 P. 2d 1274 (1985); People v. Krivda, 5 Cal. 3d 357, 486 P. 2d 1262 (1971).
Ill
We reject respondent Greenwood’s alternative argument for affirmance: that his expectation of privacy in his garbage should be deemed reasonable as a matter of federal constitutional law because the warrantless search and seizure of his garbage was impermissible as a matter of California law. He urges that the state-law right of Californians to privacy in their garbage, announced by the California Supreme Court in Krivda, supra, survived the subsequent state constitutional amendment eliminating the suppression remedy as a means of enforcing that right. See In re Lance W., 37 Cal. 3d, at 886-887, 694 P. 2d, at 752-753. Hence, he argues that the Fourth Amendment should itself vindicate that right.
Individual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution. We have never intimated, however, that whether or not a search is reasonable within the meaning of the Fourth Amendment depends on the law of the particular State in which the search occurs. We have emphasized instead that the Fourth Amendment analysis must turn on such factors as “our societal understanding that certain areas deserve the most scrupulous protection from government invasion.” Oliver v. United States, 466 U. S., at 178 (emphasis added). See also Rakas v. Illinois, 439 U. S. 128, 143-144, n. 12 (1978). We have already concluded that society as a whole possesses no such understanding with regard to garbage left for collection at the side of a public street. Respondent’s argument is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment. We do not accept this submission.
> h — I
Greenwood finally urges as an additional ground for affirmance that the California constitutional amendment eliminating the exclusionary rule for evidence seized in violation of state but not federal law violates the Due Process Clause of the Fourteenth Amendment. In his view, having recognized a state-law right to be free from warrantless searches of garbage, California may not under the Due Process Clause deprive its citizens of what he describes as “the only effective deterrent” to violations of this right. Greenwood concedes that no direct support for his position can be found in the decisions of this Court. He relies instead on cases holding that individuals are entitled to certain procedural protections before they can be deprived of a liberty or property interest created by state law. See Hewitt v. Helms, 459 U. S. 460 (1983); Vitek v. Jones, 445 U. S. 480 (1980).
We see no merit in Greenwood’s position. California could amend its Constitution to negate the holding in Krivda that state law forbids warrantless searches of trash. We are convinced that the State may likewise eliminate the exclusionary rule as a remedy for violations of that right. At the federal level, we have not required that evidence obtained in violation of the Fourth Amendment be suppressed in all circumstances. See, e. g., United States v. Leon, 468 U. S. 897 (1984); United States v. Janis, 428 U. S. 433 (1976); United States v. Calandra, 414 U. S. 338 (1974). Rather, our decisions concerning the scope of the Fourth Amendment exclusionary rule have balanced the benefits of détérring police misconduct against the costs of excluding reliable evidence of criminal activity. See Leon, 468 U. S., at 908-913. We have declined to apply the exclusionary rule indiscriminately “when law enforcement officers have acted in objective good faith or their transgressions have been minor,” because “the magnitude of the benefit conferred on . . . guilty defendants [in such circumstances] offends basic concepts of the criminal justice system.” Id., at 908 (citing Stone v. Powell, 428 U. S. 465, 490 (1976)).
The States are not foreclosed by the Due Process Clause from using a similar balancing approach to delineate the scope of their own exclusionary rules. Hence, the people of California could permissibly conclude that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law.
V
The judgment of the California Court of Appeal is therefore reversed, and this case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Kennedy took no part in the consideration or decision of this case.
The Court of Appeal also held that respondent Van Houten had standing to seek the suppression of evidence discovered during the April 4 search of Greenwood’s home. 182 Cal. App. 3d, at 735, 227 Cal. Rptr., at 542-543.
For example, State v. Ronngren, 361 N. W. 2d 224 (N. D. 1985), involved the search of a garbage bag that a dog, acting “at the behest of no one,” id., at 228, had dragged from the defendants’ yard into the yard of a neighbor. The neighbor deposited the bag in his own trash can, which he later permitted the police to search. The North Dakota Supreme Court held that the search of the garbage bag did not violate the defendants’ Fourth Amendment rights.
It is not only the homeless of the Nation’s cities^ who make use of others’ refuse. For example, a nationally syndicated consumer columnist has suggested that apartment dwellers obtain cents-off coupons by “mak[ing] friends with the fellow who handles the trash” in their buildings, and has recounted the tale of “the ‘Rich lady’ from Westmont who once a week puts on rubber gloves and hip boots and wades into the town garbage dump looking for labels and other proofs of purchase” needed to obtain manufacturers’ refunds. M. Sloane, “The Supermarket Shopper’s” 1980 Guide to Coupons and Refunds 74, 161 (1980).
Even the refuse of prominent Americans has not been invulnerable. In 1975, for example, a reporter for a weekly tabloid seized five bags of garbage from the sidewalk outside the home of Secretary of State Henry Kissinger. Washington Post, July 9, 1975, p. Al, col. 8. A newspaper editorial criticizing this journalistic “trash-picking” observed that “[e]vi-dently . . . ‘everybody does it.’” Washington Post, July 10, 1975, p. A18, col. 1. We of course do not, as the dissent implies, “bas[e] [our] conclusion” that individuals have no reasonable expectation of privacy in their garbage on this “sole incident.” Post, at 51.
Given that the dissenters are among the tiny minority of judges whose views are contrary to ours, we are distinctly unimpressed with the dissent’s prediction that “society will be shocked to learn” of today’s decision. Post, at 46.
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_appel1_1_3
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
RECONSTRUCTION FINANCE CORP. v. KAPLAN et al. In re WALTHAM WATCH CO.
No. 4523.
United States Court of Appeals First Circuit.
Dec. 21, 1950.
Rehearing Denied Jan. 8, 1951.
See also D.C., 92 F.Supp. 871.
Charles C. Cabot and Harry Bergson, Boston, Mass. (Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., on brief), for appellant.
Jacob J. Kaplan, Boston, Mass. (Daniel J. Lyne and C. Keefe Hurley, Boston, Mass., on brief), for trustees, appearing pro se, appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and FAHY, Circuit Judges.
MAGRUDER, Chief Judge.
There is pending in the court below a debtor’s petition for reorganization under Chapter X of the Bankruptcy Act, as amended, 52 Stat. 883, 11 U.S.C.A. § 501 et seq. The present appeal is by Reconstruction Finance Corporation, a secured creditor, from an order of the district court on a petition for authorization to the reorganization trustees to conduct the business of the debtor.
Waltham Watch Company, the debtor, is a Massachusetts corporation engaged in the business of manufacturing and selling jeweled watches, parts, and other timing instruments. It is an old and established concern, of considerable local importance. The company was in an earlier reorganization pursuant to a debtor’s petition under Chapter X filed in the court ibelow on December 28, 1948. A plan of reorganization thereunder was confirmed by the court on June 10, 1949, and consummated on September 23, 1949. As part of the plan, the debtor received from RFC a loan in the sum of $4,000,000, subject to security provisions which gave to this creditor pretty much of a strangle-hold on the life of the company. Thus, the debtor executed (1) a real estate mortgage covering all the real estate and plant of the company, (2) a chattel mortgage covering all of its machinery and equipment, (3) a factor’s lien agreement covering all its.merchandise inventory and its accounts receivable arising from the sale of said inventory, such agreement conforming to the provisions of C. 255, Mass.G.L.(Ter.Ed-), as amended by C. 273, Laws of Mass. 1947, and (4) an assignment of all notes and accounts receivable and trade acceptances owned by the debtor on September 21, 1949, or thereafter acquired.
By the terms of the factor’s lien agreement the debtor was permitted until default to sell its merchandise in the usual course of business. The RFC under the powers conferred collected the accounts receivable and placed the same in a so-called cash collateral account, from which it doled out or “reloaned” to the debtor from time to time certain sums as working cash.
In October, 1949, the debtor applied to RFC for an additional loan of $3,000,000, stating in its application that operating losses for 1950 were anticipated to be in excess of $1,000,000, and that without this further loan the company could not continue in business. The loan was not forthcoming, though notification of RFC’s refusal was not made until February 3, 1950, on which day the debtor shut down.
Meanwhile, on January 23, 1950, Waltham Watch Company failed to pay an installment of interest in the sum of $13,333.-33 on the note to RFC, and also failed to make a monthly tax deposit of $2,700 pursuant to the loan agreement. At this date RFC held in the cash collateral account the sum of $347,103.69. However, on February 3, 1950, it declared the loan in default and the entire indebtedness immediately due and payable, and took possession of all the debt- or’s plant, machinery, fixtures, equipment, inventory, materials and supplies. As above stated, RFC was already in possession of the cash proceeds arising from the collection of the debtor’s accounts and notes receivable.
Later on the same day, February 3, 1950, Waltham Watch Company filed in the court below the petition now pending for reorganization under Chapter X. On February 28, 1950, the district court entered an order approving the petition as properly filed, permitting RFC to continue in possession of the debtor’s property for the time being, and appointing three disinterested trustees of the debtor.
A plan of reorganization was filed by the trustees on May 15, 1950, and an amendment thereto on June 12, 1950. The plan came on for hearing on June 20, 1950', and on June 30 the district court filed a memorandum stating: “I find the Trustee’s plan to be fair, equitable, and feasible, and give it the Court’s approval.” It does not appear that this approval has yet been embodied in a formal order, nor does it appear what further steps have been taken toward confirmation and consummation of the plan. The detailed provisions of the plan need not be examined in the present appeal.
Also on June 20, 1950, the district court held a hearing on a petition, by the debtor and the voting trustee of all the common stock of the debtor, seeking interim authority in the trustees to take possession of the debtor’s property and to operate the business, “with special reference to the completion of the unfinished movements now on hand, the dialing and preparation for sale of the finished movements and the inspection, testing and further preparation for sale of the completed watches now in the possession of the Debtor”. On July 10, 1950, the court made its findings of fact and order granting this petition. The evidence produced at the hearing has not been included in the appellate record, and the findings of fact of the district court must be accepted by us. The court’s findings are as follows:
“The Debtor is solvent. While the amount by which the value of its assets fairly exceeds its liabilities cannot be determined with precision, it is abundantly dear that:
“(a) The value of these assets -exceeds by a substantial amount the Debtor’s secured indebtedness to the Reconstruction Finance Corporation (hereinafter called RFC) and the unsecured indebtedness of the Debtor.
“(b) The greater part of the assets consists of watches and watch movements. These assets are of a wasting and seasonal character in that,
“(1) continued retention of the watches and watch movements at the factory without the application of labor to oiling, testing and conditioning will probably result in deterioration of this inventory in quality and value, and would require the expenditure of a greater amount of labor in necessary conditioning of this inventory before sale at a future date than would otherwise be necessary.
“(2) The debtor’s inventory contains approximately 76,000 watch movements for which an equal number of watch cases are owned by the debtor. These as watch movements are worth in the neighborhood of $8.00 each. The watch cases as such have little value. By the expenditure of approximately $3.50 per movement, the movement can be conditioned, placed in a case, necessary attachments affixed, and the completed watch boxed. In such completed state the watch will have a value of from $18.00 to $23.00 according to the manner of selling the watches. Thus by the expenditure of about $260,000 in the aggregate, the value of the inventory of watch movements and related cases will be increased by about $760,000.00 o-r a net increase of $500,-000.
“(3) The sale of watches is highly seasonal. About two-thirds of the total sales of a watch factory are made in the fall and winter months for sale to the ultimate consumer during the Christmas season. In order that sales may be made for this Christmas season it is essential that the Debtor’s inventory be promptly conditioned, cased and marketed almost immediately. Otherwise the 1950 Christmas market will be missed, and there will be no substantial sales until early in 1951 when sales begin for the lesser Easter season which normally accounts for about one-third of a watch manufacturer’s volume. If the Debtor’s plant remains idle pending consummation of the plan of reorganization which has been approved, heavy overhead charges will be incurred, for which there will be no compensation, and net equity of the unsecured creditors and stockholders will be sharply diminished.
“(c) The order entered herewith can be carried out without impairing the position or security of RFC. On the contrary that position and security will be substantially improved.”
Following is the order of July 10, 1950, from which the present appeal was taken:
“1. The Trustees are authorized from time to time to take possession of and operate all the property, assets and plant of the Debtor including that mortgaged to RFC 'and upon which it has a lien or liens, including without restricting the preceding generality, inventory, supplies, cash, securities, accounts receivable, plant, machinery and equipment; to conduct the business of the Debtor and to sell from time to- time portions of the inventory at such prices and upon such terms as the Trustees deem prudent; and for such purpose to purchase for cash or on credit and use necessary materials, supplies and other assets and to employ operatives and other necessary assistance.
“2. The net proceeds of sales of the Debtor’s inventory by the Trustees shall be kept in a separate account, and shall be applied solely to the expense of operating the Debtor’s business as hereinbefore specified. Subject to the further orders of the Court, which may hereafter prove necessary to carry out the intent hereof, the RFC’s lien shall be transferred to the said net proceeds.
“3. The Trustees are authorized to employ Teviah Sachs to direct the operations of the Debtor’s business at the discretion and subject to the control of the Trustees, and to pay him compensation for such serv-. ices at the rate of $25,000 per year.
“4. If the Trustees hereafter from time to time deem it necessary that they borrow funds and issue Trustees certificates here-for for the purpose of conducting the Debt- or’s business, they may apply to the Court for leave to do so upon five days prior notice in writing to RFC; and the iCourt reserves the right to authorize borrowing upon such certificates upon such terms and with such priority as the Court shall upon such hearing determine.
“5. RFC is herewith directed as and when requested in writing so to do by the Trustees to deliver to them for the purposes and in accordance with this order any and all property of the Debtor which is now or may hereafter be in the possession of RFC.
“6. All persons are herewith enjoined from interfering in any manner with the possession by the Trustees of the Debtor’s property or the carrying on by the Trustees of the business of the Debtor in accordance with this order.”
On August 7, 1950, an application for a stay of this order pending appeal was denied by order of this court.
The chief point raised by appellant is as to the power of the district court to order the turnover to its reorganization trustees of the debtor’s merchandise inventory held in the possession of RFC as pledgee under the factor’s lien agreement.
In contrast with the provisions of law relating to straight bankruptcy, Chapter X, like its earlier counterpart § 77B, 48 Stat. 912, 11 U.S.C.A. § 207, contemplates the rehabilitation of financially ailing business corporations under plans of reorganization which may deal with claims of creditors, secured as well as unsecured, and embrace all of the debtor’s property, however encumbered with outstanding security interests. In keeping with this objective, appropriate broad powers are conferred upon the reorganization court. Section 111 provides that for the purposes of ¡Chapter X the reorganization court shall “have exclusive jurisdiction of the debtor and its property, wherever located.” Section 115 provides that, upon approval of a petition for reorganization, the court may, in addition to the powers elsewhere conferred upon it, “exercise all the powers, not inconsistent with the provisions of this chapter, which a court of the United States would have if it had appointed a receiver in equity of the property of the debtor on the ground of insolvency or inability to meet its debts as they mature.” Sections 256 and 257 read as follows:
Ҥ 256. A petition may be filed under this chapter notwithstanding the pendency of a prior mortgage foreclosure, equity, or other proceeding in a court of the United States or of any State in which a receiver or trustee of all or any part of the property of a debtor has been appointed or for whose appointment an application has been made.
“§ 257. The trustee appointed under this chapter, upon his qualification, or if a debtor is continued in possession, the debt- or, shall become vested with the rights, if any, of such prior receiver or trustee in such property and with the right to the immediate possession thereof. The trustee or debtor in possession shall also have the right to immediate possession of all property of the debtor in the possession of a trustee under a trust deed or a mortgagee under a mortgage.”
Section 256 and the first sentence of § 257 obviate for purposes of Chapter X the restrictive interpretation of old § 77B in Duparquet Huot & Moneuse Co. v. Evans, 1936, 297 U.S. 216, 56 S.Ct. 412, 80 L.Ed. 591. See In re Franklin Garden Apartments, Inc., 2 Cir., 1941, 124 F.2d 451, 453-454. The second sentence of § 257 may not specifically authorize a turnover order displacing the ordinary possessory lien of a pledgee of collateral or other personal property ; but it seems in substance to cover the kind of security interest which RFC had in the inventory under its statutory factor’s lien. In other words, RFC’s lien on the inventory had the characteristic of a chattel mortgage, with possession, and the right to possession, remaining in the borrower until default. But there is no- need to rest on the second sentence of § 257, which is not the broad basic section conferring upon the court jurisdiction over all the debtor’s property wherever located; it appears rather to be a specific provision inserted out of abundance of caution to make clear the inapplicability under Chapter X of Tuttle v. Harris, 1936, 297 U.S. 225, 56 S.Ct. 416, 80 L.Ed. 654, a case decided under § 77B.
Bearing in mind the objective of Chapter X proceedings, there is no a priori reason for supposing that Congress, in defining the powers of the reorganization court, would give a preferred status to secured creditors having possession of pledged collateral or other personal property, as against secured creditors who- have taken possession under a defaulted real estate or chattel mortgage. See 6 Collier, Bankruptcy (14th ed.) § 14.03(2). The authorities, though we have found none precisely on all fours, seem to indicate that no such distinction is taken. In Continental Illinois National Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 1935, 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110, which arose under § 77, 47 Stat. 1474, 11 U.S.C.A. § 205, dealing with railroad reorganizations, the Supreme Court affirmed an injunction which had been issued by the district court, forbidding secured creditors to sell or otherwise dispose of collateral securities held by them on pledge pending confirmation of a plan of reorganization, the purpose of the injunction being “to prevent the defeat or impairment of its jurisdiction”, 294 U.S. at page 675, 55 S.Ct. at page 606. Authority for issuing the injunction was found in the general equity powers of the court as conferred in § 2, 11 U.S.C.A. § 11, and in the “all writs” section of the Judicial Code, now 28 U.S.C.A. § 1651. Section 77(a), like § 111 of Chapter X, vests in the reorganization court “exclusive jurisdiction of the debtor and its property wherever located”. Under this broad language, the Supreme ¡Court declined to recognize any distinction between the power of the court to- control pledged collateral of the debtor and property subject to mortgage. “So far as constitutional power is concerned, there is no difference between an injunction restraining the enforcement of a real estate mortgage and one-restraining the enforcement of a pledge by the sale of collateral security. Such differences as exist affect not the power but the propriety of its exercise — that is to say, the discretion of the court.” 294 U.S. at page 677, 55 S.Ct. at page 606. It is true that in the Rock Island case, the Court merely issued an injunction and did not direct that the pledged collateral be turned over to the reorganization trustee. But this, we think, was not from lack of power in the Court to supplant the possession of a secured creditor, if, in its sound discretion, it deemed that possession by the trustee would best serve the purposes of the reorganization proceeding. The power to displace a mortgagee in possession is undoubted. This result was reached in Grand Boulevard Inv. Co. v. Strauss, 8 Cir., 1935, 78 F.2d 180, under the broad grant of jurisdiction in § 77B, without the aid of any specific provision such as is now found in the second sentence of § 257 of Chapter X. See also Dalton v. Peters, 8 Cir., 1941, 119 F.2d 494. There could be no constitutional difficulty with a similar displacement of a pledgee in possession. While the court, pending the working out of a reorganization, may interfere with and postpone the secured creditor’s remedy, it must be careful not to impair his substantive rights. That is the way it is expressed in the books, though we would not overplay the distinction between rights and remedies. No doubt the secured creditors in the Rock Island case felt that their “rights” had been impaired when they were forbidden to get clear of the transaction by exercising their contractual power of sale of the pledged collateral at a time which seemed to them most favorable to their interests. For the time being the secured creditors had to content themselves with getting out of the driver’s seat.
The Rock Island case was followed In re Prudence-Bonds Corp., 2 Cir., 1935, 77 F.2d 328, a reorganization proceeding under § 77B, in which the district court was upheld in enjoining the foreclosure of mortgage securities pledged as collateral for notes of the debtor. The court emphasized the extensive grant of jurisdiction which had been given the reorganization court under § 77B, as compared with the powers of the court in a straight bankruptcy proceeding. After pointing out that while a reorganization is proposed or pending, the collateral in the possession of the indenture trustees, including cash representing receipts derived from such collateral, “is in custodia legis, with full power in the court, in its administration of the estate of the debtor pending reorganization, to control and direct the administration of this collateral”, the court continued, 77 F.2d at page 330: “Pri- or to the enactment of section 77B, the property of a bankrupt was not considered as being in the custody of the bankruptcy court unless, at the time the petition was. filed, it was in the actual or constructive possession of the bankrupt. * * * Section 77B has amended the Bankruptcy Law so that now, by subdivision (a), if the petition or answer is approved, the court ‘shall,, during the pendency of the proceedings under this section, have exclusive jurisdiction of the debtor and its property wherever located for the purposes of this section.’ 11 U.S.C.A. § 207(a). Formerly, the court, while having jurisdiction of whatever equity a bankrupt might own in pledged property, did not have jurisdiction over the property itself. The property was in the possession of the pledgee, and the bankrupt having neither real nor constructive possession thereof, the bankruptcy court had no jurisdiction over it. Taubel, etc., Co. v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770. But the present grant of jurisdiction, under section 77B, contains no limitation which excludes property subject to a lien or mortgage.
“Subdivision (b) (1) of section 77B of the act, 11 U.S.C.A. § 207(b) (1), provides that a plan of reorganization shall include provisions modifying the rights of creditors generally whether secured or unsecured. The former bankruptcy act and section 77B differ fundamentally in the purposes sought to be accomplished. The former provided for liquidation, while the latter seeks a reorganization by means of rehabilitation Rehabilitation of a debtor demands that the court have possession of all the property of the debtor, no matter what may be nature of the debtor’s possession, or whether the debts are secured or unsecured.”
In re Moulding-Brownell Corp., 7 Cir., 1939, 101 F.2d 664, has a close bearing on the case at bar. There the debtor had pledged and assigned accounts receivable to a creditor as security for a loan. After a petition had been filed and approved under § 77B, the court in a summary proceeding, though the loan was in default, ordered the reorganization trustees to take over the collection of the accounts receivable, to deduct a percentage thereof as a fee for collection, and to retain the balance in a separate account to await the further order of the court. The order was affirmed on appeal, on the authority of the Rock Island ■case. Another case illustrating the wide power of the reorganization court is In re Philadelphia & Reading Coal & Iron Co., 3 Cir., 1941, 117 F.2d 976. In that case the debtor had given a mortgage covering substantially all of its properties to secure an issue of refunding bonds. Included in the property of the debtor covered by the mortgage were certain shares of corporate stock and corporate bonds owned by the debtor, which the debtor had pledged under mortgage provisions entitling the debtor to receive all dividends and interest paid thereon prior to default. The debtor filed a petition for reorganization under § 77B. The reorganization court denied a petition by the mortgage trustee for an order directing the debtor to pay over to it the amount of dividends and interest theretofore collected by the debtor and any future dividends and interest received on the pledged stocks and bonds. This order of denial was affirmed on appeal. At page 978 of 117 F.2d the court said: “We do not think that any distinction of legal significance may be drawn between the right of a pledgee to' recapture this income upon default and the similar right reserved by a mortgagee. Both must yield to the necessity of preserving intact the business and property of the debtor to the extent reasonably necessary to afford an opportunity for reorganization. Otherwise the effective administration of Section 77B (and its successor Chapter X, 11 U.S.C.A. § 501 et seq.) might depend upon whether the principal assets of a corporation seeking reorganization consisted of real or personal property.”
Fidelity-Philadelphia Trust Co. v. Weaver, 3 Cir., 1938, 98 F.2d 471, is not authority for the proposition that a debtor in reorganization under § 77B could not recover pledged stock and cash in the hands of a secured creditor. See the report of the case on the first hearing, sub nom. In re Pennsylvania Central Brewing Co., 3 Cir., 93 F.2d 1012, referring to the proceedings in the district court, 18 F.Supp. 458. From the opinion of the district court it appears that the attempted reorganization under § 77B had failed because the consent of the owners of two thirds of the outstanding bonds could not be obtained, and that the court had ordered the company liquidated.
Having satisfied ourselves of the power of the court below to deal with the pledged merchandise inventory in the hands of the secured creditor, in which personal property the debtor retains a substantial equity, we perceive no abuse of discretion in the terms of the turnover order, in view of the district court’s findings of fact. Pending the outcome of the reorganization proceedings, the preparation for market of the deteriorating inventory, and the sale thereof, would seem to be a prudent act of management, likely to improve the chances of success of whatever plan of reorganization is eventually confirmed. If the operations of the debtor were allowed to come to a standstill, and the debtor’s product should remain off the market for a substantial period of time pending reorganization, the good will of the business would be likely to be impaired, and the company would be likely to suffer the loss of much of its trained employee-personnel. Interim operation such as is contemplated in the order of July 10, 1950, is authorized by § 116(3) and § 189. The security interest of RFC in the inventory is safeguarded, indeed will be enhanced in value, by the transfer of its lien to the net proceeds of the sales, as provided in paragraph 2 of the order. Appellant claims that this is illusory, in that the authorization “is broad enough to justify the Trustees, not only in using the proceeds of the sales of inventory as working capital for the ordinary operation of Waltham, but also in using those proceeds for such matters as promotional schemes, advertising, extensive repairs or even new building construction.” The trustees disclaim any such broad interpretation of the order, and state that according to their understanding the order authorizes them to use the proceeds of the sales of inventory solely for the purpose of paying expenses of the processing and sale of such inventory, the net proceeds otherwise to be kept in a separate account subject to RFC’s lien. In affirming the order, we accept this interpretation of it by the trustees.
Of course RFC has a legitimate interest in being kept informed of the steps taken by the trustees in the disposition of the inventory. It might have been better if the order had specifically directed the trustees to make reports to the court from time to time of the specific steps taken, in order that the secured creditor might have an opportunity of challenging any action with reference to the inventory which it deemed unduly prejudicial to its security interests. However, the order is not challenged on this narrow ground. At the argument on appeal, counsel for the trustees stated that RFC has in fact been kept informed of the steps which were being taken to dispose of the inventory, and it has not been suggested by appellant that the trustees have in any way acted improvidently in this respect. We have no doubt that if in the future RFC should have need of further information along this line, the district court upon application will see that it is forthcoming.
Paragraph 5 of the order directs RFC, when requested by the trustees, “to deliver to them for the purposes and in accordance with this order any and all property of the Debtor which is now or may hereafter be in the possession of RFC.” This would include any moneys of the debtor ■held by RFC as collateral security. Since the value of the debtor’s assets “exceeds by a substantial amount” the debtor’s secured and unsecured indebtedness, and since RFC has a> lien on all the property of the debtor, it follows that the debtor’s equity, applied distributively, extends to every item of its property, including any cash held as collateral security. The trustees interpret the court’s order as not authorizing the use of the cash as working capital for a general business, but as merely permitting the trustees to use the same as a revolving fund to condition and sell the inventory. The lien, of RFC is to be transferred to the net proceeds from the sale of the inventory, thus enhanced in value by this use of the cash. From the findings of fact it appears that the net security position of RFC will be strengthened rather than impaired by the operation. Appellant contends that the proper way to finance interim operations of businesses in reorganization is by making use of § 116(2) of the Act, which empowers the court to authorize the issuance of trustee’s certificates “with such security and priority in payment over existing obligations, secured or unsecured, as in the particular case may be equitable”. On this suggestion, the trustees in their brief properly make the comment: “Just how RFC’s position would 'have been improved, had it been ordered that cash be obtained by the issue of Trustee’s certificates of indebtedness having priority over RFC, it is difficult to determine.”
We think cash held as collateral may be dealt with by the reorganization court as any other form of collateral. We do hot know of any case in which such cash collateral has actually been ordered turned over to the reorganization trustee over the objection of the creditor, but the power to order such turnover may be inferred from the numerous cases in which the court ordered the reorganization trustee to collect rents and profits from mortgaged realty, or dividends and interest from pledged stocks and bonds, all in derogation of the strict letter of the contract between the debtor and creditor. See In re Moulding-Brownell Corp., supra, 7 Cir., 101 F.2d 664; In re Prudence-Bonds Corp., supra, 77 F.2d 328; In re Philadelphia & Reading Coal & Iron Co., supra, 3 Cir., 117 F.2d 976; John Hancock Mutual Life Ins. Co. v. Casey, 1 Cir., 1943, 139 F.2d 207. See also In re Franklin Garden Apartments, Inc., 2 Cir., 1941, 124 F.2d 451.
In our foregoing comments on the power of the reorganization court to deal with moneys of the debtor held as collateral security, we do not mean to prejudge the status of the cash held by RFC in the so-called cash collateral account mentioned earlier in this opinion. We understand the claim of RFC to be that this cash belongs outright to it and is not in any sense “property of the Debtor” within the meaning of paragraph 5 of the order of the district court now under review. This issue is not now before us for determination.
The judgment of the District Court is affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_circuit
|
A
|
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.
Joseph J. HAYES, Plaintiff, Appellant, v. NEW ENGLAND MILLWORK DISTRIBUTORS, INC., Defendant, Appellee.
No. 79-1105.
United States Court of Appeals, First Circuit.
Argued June 7, 1979.
Decided July 10, 1979.
Frederick T. Golder, Boston, Mass., with whom Shulman & Golder, Boston, Mass., was on brief, for plaintiff, appellant.
Louis A. Rodriques, Boston, Mass., with whom Edward R. Lev, Boston, Mass., was on brief, for defendant, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
This is an appeal by an employee from the granting of his former employer’s motion for judgment on the pleadings in a suit brought pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, for alleged breach of the collective bargaining agreement. He appeals as well the district court’s refusal, both before and after judgment, to permit him to amend his complaint to add his union as a defendant, to add a count against the union for breach of its duty of fair representation, and to supplement the allegations he had made against his employer.
The dispute among the parties arose, in May of 1974, when appellant, a truckdriver for appellee for twenty years, failed to report to work for twenty days. According to the complaint, appellant had a “terrible argument” with his wife. He told one of his co-workers that he was ill and would not be going to work and then fell into an “alcoholic stupor”, remembering “very little of what happened until June 13, 1974 when he came to his senses.” In the interim, he received notice from appellee that due to his failure to report for work and to explain his whereabouts to the company, he had “voluntarily quit and abandoned his employment”.
Appellant then filed a grievance against appellee through his union, charging that he had been discharged in violation of that provision of the collective bargaining agreement which provides that terminations be “for cause”. Although the union originally agreed to process the grievance and met with appellee for that purpose, it eventually “upon advice of counsel and after careful consideration, . . . elected to withdraw for lack of merit the arbitration procedure concerning Mr. Joseph Hayes.” The union did negotiate a financial settlement on behalf of appellant, but he rejected it.
In June of 1976, appellant filed the instant suit. The case did not move forward, however, for approximately two years, when appellant initiated discovery. Shortly thereafter, in November of 1978, appellee filed a motion for judgment on the pleadings. Appellant responded with an opposition to that motion and moved as well to amend his complaint as described above. After a hearing on the merits and the proposed amendment, the court entered judgment for appellee and denied appellant the opportunity to amend his complaint. After judgment, appellant moved once again to amend, this time to add that “the defendant repudiated the grievance procedure of the Collective Bargaining Agreement and refused at all times to arbitrate the plaintiff’s discharge.” This motion was denied as well.
We turn first to appellant’s contention that the complaint in its original unamended form stated a cause of action and thus that judgment on the pleadings was entered improperly for appellee. Appellant’s suit was brought pursuant to § 301 of the Labor Management Relations Act, which enables an employee or his union to sue his employer for his failure to comply with the collective bargaining agreement. Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 183, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). There is, however, an important qualification to a plaintiff’s right to bring such a suit: “[sjince the employee’s claim is based upon breach of the collective bargaining agreement, he is bound by terms of that agreement which govern the manner in which contractual rights may be enforced.” Vaca v. Sipes, supra, 386 U.S. at 184, 87 S.Ct. at 914. Thus, if the contract provides for a grievance and arbitration procedure, as is the case here, a court ordinarily may not hear the § 301 suit of an employee who has not resorted to the remedies of his contract. Id.; Hines v. Anchor Motor Freight, supra, 424 U.S. at 562-63, 96 S.Ct. 1055; Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 329-30, 89 S.Ct. 458, 21 L.Ed.2d 519 (1969); Soto Segarra v. Sea-Land Service, Inc., 581 F.2d 291, 294 (1st Cir. 1978); Rabalais v. Dresser Industries, Inc., 566 F.2d 518, 519 (5th Cir. 1978).
Appellant maintains that because he filed a grievance with the union and thus did all he could to resort to his contractual remedies, he cannot be held to the exhaustion requirement. While he correctly recognizes that full exhaustion is not inevitably required by a court before it will exercise its jurisdiction under § 301, he fails to convince us that his complaint alleges facts which would bring him within any of the exceptions to the general rule of exhaustion. In Vaca v. Sipes, supra, the Supreme Court identified the “circumstances [under which] the individual employee may obtain judicial review of his breach-of-contract claim despite his failure to secure relief through the contractual remedial procedures.” 386 U.S. at 185, 87 S.Ct. at 914. The first is “when the conduct of the employer amounts to a repudiation of those contractual procedures”. Id. The second is if:
“the union has sole power under the contract to invoke the higher stages of the grievance procedure, and if, as is alleged here, the employee-plaintiff has been prevented from exhausting his contractual remedies by the union’s wrongful refusal to process the grievance.” Id. (emphasis in original).
Thus, absent an allegation in the complaint either that the employer repudiated the grievance procedures or that the union wrongfully refused to process the employee’s grievance through arbitration, the court “may not usurp those functions which collective-bargaining contracts have properly ‘entrusted to the arbitration tribunal.’ ” Hines v. Anchor Motor Freight, supra, 424 U.S. at 562-63, 96 S.Ct. at 1055; quoting Steelworkers v. American Manufacturing Co., 363 U.S. 564, 569, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).
After recounting the facts which led to his termination from the company, appellant’s complaint alleged that:
“As a result of his being discharged for cause, the plaintiff filed a grievance through his union. On or about February 10, 1975, the plaintiff’s union withdrew from arbitration. The plaintiff has exhausted his rights through the grievance procedure.
“The plaintiff believes and therefore avers that the defendant discharged him in violation of the Collective Bargaining Agreement and that the plaintiff was not discharged for cause.”
The complaint thus contains no allegation that the employer in any way frustrated the grievance process. And with respect to the union, the above allegations likewise are insufficient. As the district court correctly noted, neither Vaca v. Sipes, supra, nor the ensuing case law supports the position that “mere resort to the grievance procedure and a result unsatisfactory to the plaintiff is a sufficient predicate for his suing under Section 301.” For as the Supreme Court has held: “[A] union does not breach its duty of fair representation, and thereby open up a suit by the employee for breach of contract, merely because it settled the grievance short of arbitration.” Vaca v. Sipes, supra, 386 U.S. at 192, 87 S.Ct. at 918. Appellant’s complaint contains no allegation of bad faith, arbitrariness or discrimination by the union, nor does it allege that the union ignored his grievance or “processed the grievance in a perfunctory manner.” Hines v. Anchor Motor Freight, supra, 424 U.S. at 569, 96 S.Ct. at 1058, quoting Vaca v. Sipes, supra, 386 U.S. at 194, 87 S.Ct. 903, see Ruzicka v. General Motors Corporation, 523 F.2d 306, 309-310 (6th Cir. 1975); Lo-max v. Armstrong Cork Co., 433 F.2d 1277, 1280 — 81 (5th Cir. 1970). His complaint thus furnishes no basis whatsoever for the exercise of jurisdiction pursuant to § 301, and the district court properly granted appellee’s motion for judgment on the pleadings.
We next address appellant’s unsuccessful attempts to amend his complaint. The first such attempt, and the only one which receives attention in appellant’s brief, occurred over two years after the institution of suit. The district court denied leave to amend, citing undue delay as his reason. Although recognizing that the allowance of amendments after a responsive pleading has been filed rests in the sound discretion of the trial court, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Ondis v. Barrows, 538 F.2d 904, 909 (1st Cir. 1976); Farkas v. Texas Instruments, Inc., 429 F.2d 849, 851 (1st Cir. 1970), appellant argues that the court violated the mandate of Fed.R.Civ.P. 15(a) that “leave shall be freely given when justice so requires”. He further maintains that mere delay is not a ground for denying leave to amend.
While courts may not deny an amendment solely because of delay and without consideration of the prejudice to the opposing party, see Mercantile Trust Company National Association v. Inland Marine Products, 542 F.2d 1010, 1012 (8th Cir. 1976); Farkas v. Texas Instruments, Inc., supra, 429 F.2d at 851; 3 J. Moore, Federal Practice, If 15.08(4) at 15-102, it is clear that “undue delay” can be a basis for denial:
“In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be ‘freely given.’ ” Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. at 230 (emphasis added); see 3 J. Moore, supra, at 15 — 94 & n. 10.
And where, as here, a considerable period of time has passed between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some “valid reason for his neglect and delay”. Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967); see Doe v. McMillan, 566 F.2d 713, 720 (D.C.Cir.1977); Goss v. Revlon, Inc., 548 F.2d 405, 407 (2d Cir. 1976); Roorda v. American Oil Co., 446 F.Supp. 939, 947 (W.D.N.Y.1978).
Appellant has failed to meet that burden. He does not argue on appeal, as he did in his motion for reconsideration before the district court, that discovery led to previously unknown facts which altered the shape of his case, an argument that was not supported by the record. This is not a situation in which the delay in moving to amend can be attributed, even in part, to either appellee or the court. See Farkas v. Texas Instruments, Inc., supra, 429 F.2d at 851. Appellant simply allowed his case to lie fallow for more than two years, and apparently was prompted to amend only when appellee moved for judgment on the pleadings. The only excuse he offers for this delay is that because the duty of fair representation is an expanding concept, the law caught up with his theory of the case after the pleadings already had been filed. The allegations of appellant’s proposed amended complaint, however, belie this contention:
“[T]he defendant Union in breach of its statutory duty of fair representation owing to the plaintiff under the provisions of Title 29 U.S.C. Sections 141 et seq. conspired with the defendant Millwork to permit the plaintiff’s discharge to stand, although there was no just cause therefore; that the negotiations between the defendants with respect to the plaintiff’s grievance were spurious, carried on in bad faith, and deliberately designed to give the plaintiff the false impression that sincere effort was being made by the defendant Union to resolve the grievance by securing plaintiff’s reinstatement
These allegations, rather than representing a vanguard in the law, are fully encompassed by Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), decided nearly ten years before appellant filed his original complaint, and ignorance or misunderstanding of the law “has been held an insufficient basis for leave to amend.” Goss v. Revlon, Inc., supra, 548 F.2d at 407; Troxel Manufacturing Co. v. Schwinn Bicycle Co., 489 F.2d 968, 970-71 (6th Cir. 1973), cert. denied, 416 U.S. 939, 94 S.Ct. 1942, 40 L.Ed.2d 290 (1974); Head v. Timken Roller Bearing Co., 486 F.2d 870, 874-75 (6th Cir. 1973).
Furthermore, we cannot accept appellant’s argument that the appellee would suffer no prejudice from the addition of the union as a defendant and the charge that the union breached its duty of fair representation. As the above passage quoted from the proposed amendment indicates, the complaint as amended would charge the company with conspiring with the union to deprive appellant of his rights under the collective bargaining agreement, a charge not contemplated by the original complaint. Moreover, the parties had already engaged in and apparently had completed discovery when appellant sought to amend his complaint. Given the appellant’s failure to excuse in any way his delay in prosecuting his suit, we cannot describe this prejudice as insignificant.
We are not faced with a situation in which the district court has denied a motion to amend without explanation, see Foman v. Davis, supra, 371 U.S. at 182, 83 S.Ct. at 227. The parties were given an opportunity to present their respective positions on the motion to amend and did so both in writing and in oral argument. Finding no abuse of discretion by the district court, we affirm its denial of appellant’s motion to amend his pleadings.
It follows that the court likewise did not err in denying appellant’s motion to amend after judgment had entered on the pleadings. Not only was this motion made without moving for relief from judgment pursuant to Fed.R.Civ.P. 60, see 3 J. Moore, supra, H 15.10 at 15-144-45, it made essentially the same allegation against appellee as was contained in the first proposed amendment to the complaint. Given its finding that appellant’s “undue delay” barred him from filing the first amendment, the court committed no error in denying the second motion as well.
Accordingly, the judgment below is affirmed.
. In Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969), the Supreme Court recognized a third exception to the exhaustion requirement — “the situation where the effort to proceed formally with contractual or administrative remedies would be wholly futile.” Id. at 330, 89 S.Ct. at 551. This exception has been applied in “a line of cases . . . [involving] employees alleging racial discrimination”, id., and is not pertinent to the instant case.
. Appellant argues that his complaint should not be deemed insufficient because he did not join the union as a defendant. His argument is puzzling, for the district court did not suggest that the absence of the union was a defect in the complaint. Nor do we:
“Neither an employer nor a union is an indispensable party in an action against the other by an employee-union member when the action against the employer is based on a violation of the terms of the collective bargaining agreement and the action against the union is based on the statutory duty of fair representation.” Kaiser v. Local No. 83, 577 F.2d 642, 644 (9th Cir. 1978).
We fail to see how this proposition supports appellant’s contention that the allegations in his complaint were sufficient to overcome the requirement that an employee exhaust the remedies provided in the collective bargaining agreement.
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_casetyp1_7-3-1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
TECUMSEH CORRUGATED BOX COMPANY, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 90-1814.
United States Court of Appeals, Sixth Circuit.
Argued March 28, 1991.
Decided May 7, 1991.
Stephen M. Feldman, Michael P. Witzke, Sheldon A. Fealk (argued), Couzens, Lan-sky, Fealk, Ellis, Roeder & Lazar, Farming-ton Hills, Mich., for petitioner-appellant.
Abraham N.M. Shashy, Jr., Chief Counsel, Internal Revenue Service, Office of Chief Counsel, Washington, D.C., Gary R. Allen, Acting Chief, Richard Farber, Bruce R. Ellisen, Charles Bricken (argued), U.S. Dept, of Justice, Appellate Section Tax Div., Washington, D.C., for respondent-ap-pellee.
Before MERRITT, Chief Judge, GUY and NORRIS, Circuit Judges.
RALPH B. GUY, Jr., Circuit Judge.
Petitioner, Tecumseh Corrugated Box Company (petitioner, taxpayer, or Tecumseh), appeals from a Tax Court decision finding in favor of respondent, Commissioner of Internal Revenue (respondent or Commissioner). The Tax Court held that petitioner could not use the installment method to account for capital gains resulting from the sale of its properties. 94 T.C. 360.
Petitioner argues that the Tax Court erred because the sale of one of its properties took place under the threat of condemnation. Thus, petitioner was still entitled to account for its capital gains on an installment basis. Additionally, petitioner argues that because the purpose of its transactions was to resolve its labor problems, rather than to avoid paying taxes, it should be excepted from the general rule precluding installment write offs. We find petitioner’s arguments without merit and, accordingly, affirm.
I.
Tecumseh was a corporation with its principal place of business in Tecumseh, Michigan, at the time it filed its petition. Its stockholders and their corresponding percentages of ownership of Tecumseh during the years in issue were as follows: J.J. Robideau Living Trust (7.95%), G.E. Robi-deau Living Trust (.70%), J.A. Robideau Living Trust (13.49%), Margaret A. Robi-deau (13.49%), Jeffrey T. Robideau (13.49%), J.J. Robideau Irrevocable Trust Number One (39.09%), J.J. Robideau Irrevocable Trust # 2 (9.79%), and The Robideau Foundation (2%).
We adopt the Tax Court’s statement of the facts as set forth below. From its inception in 1963, Tecumseh has been engaged in the manufacturing and selling of corrugated- containers. Between 1972 and 1985, petitioner conducted paper milling and box manufacturing operations at its Jaite Mill plant located near Cleveland, Ohio. The paper mill manufactured cardboard from pulp and other raw materials. This cardboard was sold to petitioner’s other divisions and other box fabricators. The box operation produced boxes for sale.
The paper mill, which was constructed in 1905, was the anchor of the Jaite Mill Historic District. This mill, which originally produced paper sacks from rags and rope, recycled cardboard boxes into high quality kraft paper. Tecumseh’s other divisions molded the paper and used it for the middle layer of the corrugated cardboard boxes that it manufactured.
In 1979, the machinery and equipment comprising the Jaite Mill plant were entered in the National Register of Historic Places by the Heritage Conservation and Recreation Service, United States Department of the Interior. None of petitioner’s box plant equipment had any historical significance.
On December 27, 1974, Congress enacted Public Law 93-555 (the Act), which formally established the Cuyahoga Valley National Recreation Area (Cuyahoga). 16 U.S.C. § 460ff. Tecumseh’s Jaite Mill plant, including the box plant and certain other properties, was located within the boundaries of Cuyahoga.
Congress originally appropriated $34,-500,000 for the acquisition of lands within Cuyahoga but ultimately increased the appropriation to $70,100,000. See 16 U.S.C. § 460ff-5(a). The funds appropriated by Congress were not earmarked to purchase any specific properties. Rather, the Secretary of the Interior established an acquisition plan that indicated the order in which property would be acquired with the appropriated funds. 16 U.S.C. § 460ff-2(a).
Petitioner was aware of the Act and, at various meetings of its board of directors, discussed the possibility that its property would be condemned. As early as May 1974, petitioner was aware of the possibility that the Jaite Mill and Cleveland box plants and surrounding property would be acquired by the National Park Service for Cuyahoga. In May 1974, petitioner retained Ernest Genovese (Genovese), a local attorney, to advise petitioner regarding the possible acquisition of its real estate by the National Park Service.
In 1975, petitioner was contacted by William Birdsell (Birdsell), Park Superintendent of Cuyahoga. Birdsell informed petitioner of the government’s plan to acquire properties owned by petitioner in and around Cuyahoga, including the Jaite Mill and Cleveland box plants. Petitioner was also advised by the Army Corps of Engineers that the plan projected acquisition of the Jaite Mill and Cleveland box plants for 1980, the last year of acquisition.
The National Park Service established a priority list with respect to the order in which properties would be acquired. Petitioner knew that its properties were assigned a low priority in connection with the acquisition plan. Petitioner was also aware that acquisition of its properties was dependent upon congressional appropriations and that delays due to lack of funding could occur.
Petitioner was anxious to sell its Jaite Mill and Cleveland box plants. As early as 1975, petitioner looked for prospective purchasers for the Jaite Mill plant, but those contacted were not interested.
Beginning in 1975, Genovese attempted to get the National Park Service to acquire petitioner’s properties earlier than scheduled. In July 1976, Genovese contacted United States Congressman John F. Seiber-ling for assistance. Congressman Seiber-ling reviewed the reasons given by the National Park Service for delayed acquisition of petitioner’s properties and concurred with its position.
By letter dated December 15, 1977, Ge-novese attempted to persuade the National Park Service to provide for an early acquisition of Tecumseh’s properties due to the economic hardship of retaining the properties. Title 16 U.S.C. § 460ff-l(g) provides:
In exercising his authority to acquire property [for the Cuyahoga Valley National Recreation Area], the Secretary shall give prompt and careful consideration to any offer made by an individual owning property within the recreation area to sell such property, if such individual notifies the Secretary that the continued ownership of. such property is causing, or would result in, undue hardship.
In January 1978, appraisers and land acquisition officers for the National Park Service made a preliminary inspection of petitioner’s property prior to requesting bids for an appraisal. The appraisal was never ordered.
In March 1978, Tecumseh purchased land in Twinsburg, Ohio, with the intent of constructing a new building to replace the Cleveland box plant that was to be acquired by the National Park Service. During March, April, and May 1978, Genovese, on behalf of petitioner, vigorously attempted to get the National Park Service to acquire its properties as soon as possible.
In early 1978, Tecumseh retained counsel for a review and determination of the potential tax effects of the sale of its properties to the federal government. Specifically, petitioner requested advice on whether it could defer realizing income for federal income tax purposes from the receipt of the proceeds from the sale of its properties. Petitioner’s tax counsel suggested that petitioner obtain a private letter ruling for a determination of the possibility of electing to defer the realization of gain pursuant to section 1033, which allows deferral when properties are condemned. Petitioner did not pursue counsel’s advice.
By letter dated June 26, 1978, Park Superintendent Birdsell advised Genovese that, “[a]s discussed with you previously, our plans have not changed; when acquisition of this property will occur has not been finalized. However, it is unlikely that acquisition will take place before late in fiscal year 1980 (fiscal year 1980 begins October 1, 1979).”
In early 1979, the National Park Service developed a proposal to divide petitioner’s properties into five parcels. According to the terms of this proposal, the National Park Service would purchase the four small, unimproved parcels but not the more expensive parcel containing the Jaite Mill and Cleveland box plants. Petitioner objected to the acquisition of anything other than the entire property and declined the National Park Service’s proposal in 1979 and again in 1981. By July 1979, petitioner was aware that its properties were not scheduled to be purchased in 1980. By April 1980, petitioner was aware that the government had halted all purchases of property for Cuyahoga because it lacked funds.
In a letter to Genovese dated November 7, 1979, James J. Robideau (Robideau), Tecumseh’s president, explained that petitioner was having serious labor problems due to the uncertainty of acquisition by the National Park Service. These labor problems included high employee turnover, defective products, serious absenteeism, and unfavorable contract terms. Robideau also noted that regular, long-standing customers were beginning to turn elsewhere.
In December 1980, the Ohio Environmental Protection Agency (Ohio EPA) cited petitioner for violations with respect to the oil-fired boiler system and waste water treatment facilities at the Jaite Mill plant. Petitioner installed new gas-fired boilers in response to the Ohio EPA’s actions. To settle the matter with the Ohio EPA, petitioner signed a consent decree and paid a $4,500 fine.
By September 1981, the uncertainty of the acquisition was impeding petitioner’s ability to negotiate contracts of any duration with regular and potential customers. Due to these circumstances, petitioner intended to claim hardship again in an attempt to expedite the acquisition of its property by the National Park Service. In a letter dated November 4, 1981, the National Park Service confirmed its agreement to an acquisition strategy for petitioner’s properties. Pursuant to this strategy, the government intended to subdivide petitioner’s property into five parcels and to purchase the four unimproved parcels “on a one-per-year” basis “as soon as funds are available and the required surveys and appraisals are completed.” Acquisition of the fifth parcel, which included the mill and associated structures, would be “postponed until appropriations for that purpose are available.” The property was to be divided in order to facilitate government acquisition of the smaller, less expensive parcels.
By letter dated July 20, 1982, petitioner was advised that the National Park Service was ordering appraisals of the four small, unimproved parcels. These appraisals were in fact ordered. Because of continued economic problems during 1982, petitioner weighed the possibility of continuing the operations at the Jaite Mill facilities versus the cost of shutting down the paper mill and box plant.
In early 1983, petitioner began negotiating with the National Park Service with respect to the piecemeal acquisition strategy. By March 16, 1983, petitioner and the National Park Service had agreed that the four small parcels would be purchased in 1983. On the same date, petitioner and the National Park Service reached an agreement in principle that the remaining parcel containing the paper mill and box plant would be purchased in 1984, if funds were available.
In May 1983, Tecumseh began soliciting preliminary figures for construction of a replacement facility for the box plant on property it already owned in Twinsburg, Ohio. Also in May 1983, Tecumseh ordered an appraisal of the four small parcels by S.M. Dix & Associates, Inc. (Dix). In July 1983, National Park Service personnel toured the paper mill and box plant in preparation for the acquisition.
Prior to September 1, 1983, the National Park Service offered to purchase the four small parcels for a total price of $219,500. Despite Genovese’s recommendation to accept this offer, petitioner rejected the offer and made no counter offer. Petitioner, however, took action intended to force immediate condemnation of its properties. It executed a topsoil removal agreement with a commercial topsoil marketing company. Removal of topsoil would have required clear-cutting trees and other vegetation, causing extensive damage to the land. The Act prohibits removal of topsoil and cutting of timber to the detriment of the land. See 16 U.S.C. § 460ff-l(c); 16 U.S.C. § 460ff-3.
On September 15, 1983, the National Park Service petitioned Congress to authorize a declaration of taking of the four small, unimproved parcels to prevent removal of the topsoil and timber. Congress, however, denied the National Park Service the authority to file the requested declaration of taking.
Prior to September 17, 1983, petitioner was visited by an Ohio EPA inspector and received another citation regarding the paper mill operation. On September 17,1983, Genovese met with Congressman Seiber-ling and representatives of the National Park Service. The results of this meeting were reported to petitioner’s board of directors on September 2, 1983, and recorded in the corporate minutes as follows:
(a.) The Chairman and the Appropriation committee will introduce a special bill for the purchase of the property, stressing the fact that they needed to buy the land first.
(b.) That the agreement will be in writing and the Park Authority would do the following:
(1) Will provide [petitioner] with a time table (approximately 6 months)
(2) Put in motion a request to receive appraisals (30 days)
(3) An additional 30 days to pick the appraisal
(4) 120 days to get all the numbers together
(5) 30 days to make recommendation to Congress
(6) They would write the [Ohio] EPA and inform them that they are going to buy the land within sixty (60) days, providing [petitioner] agreed to sell the land right now.
On September 22, 1983, Tecumseh agreed to sell to the United States Department of the Interior the four small, unimproved parcels of land for a total price of $235,375. On the advice of Genovese, petitioner considered the sale an involuntary conversion. As of November 22,1983, petitioner considered that the four small, unimproved parcels had been sold to the government, although payment had not yet been received. As of that date, petitioner also anticipated that its remaining property would be sold by June 1984.
Petitioner’s labor problems were caused by employee uncertainty over the purchase of the plant by the National Park Service. Due to these continuing labor problems, petitioner consulted with Donald Lansky (Lansky), labor counsel, on potential methods to circumvent or eliminate the labor union and its collective bargaining agreement. In a memorandum from Lansky dated January 19, 1984, petitioner received advice concerning the basic principles of successorship and alter ego employers to be considered in evaluating the risks and methods of structuring the sale of a family business. The memorandum noted:
Normally, where assets are purchased, the issue is whether the buyer is a “successor employer” who is obligated to bargain with the seller’s union(s)_ The determination of the successorship issue is based on whether the identity of the employing enterprise remains intact. The result of being a successor is that the buyer is then required to recognize and bargain with the union that had represented the predecessor’s employees....
... The NLRB will find alter ego status “where the two enterprises ‘have substantially identical’ management, business purpose, operation, equipment, customers and supervision, as well as ownership....”
The threshold question to be determined in alter ego cases is whether there is common ownership or control. In this respect, the existence of a family relationship between the new and old owners has been considered by the NLRB as an important factor in finding common ownership and in denying the existence of an arm’s length transaction on the sale....
... To avoid the risks of being considered an alter ego, it is, therefore, imperative to maximize the differences between the new and old entities. In this respect, it may be helpful to have a complete cessation of operations of the existing company before the new entity is established to take over. Even here, however, where this is a mask for avoiding labor law obligations, the NLRB will not treat the transaction as béing at “arm’s length.”
Despite this advice, petitioner did not restructure its operations with new lines of production, injection of capital and equipment, and changes in management or supervision. Petitioner was subsequently advised by different labor counsel that it could not avoid or eliminate the collective bargaining unit by structuring a sale of its property to another related entity.
By letter dated February 8, 1984, the National Park Service advised petitioner that it had advertised for the services of an appraiser to appraise petitioner’s remaining property. The advertisement projected awarding the contract for appraisal by April 1, 1984, with a 120-day delivery schedule. At that time, the parties understood that a written appraisal would be delivered in August 1984.
Petitioner transferred the four small, unimproved parcels of land to the United States by warranty deed dated February 17, 1984, for $235,375.
After the February 1984 sale, petitioner still owned Tract No. 107-117, which contained the Jaite Mill plant, consisting of 59.59 acres of land. Prior to September 1983, all of the tracts were included in one large parcel of land owned by petitioner. The five tracts were interdependent, and the government intended to acquire all of them.
By letter dated March 16, 1984, the Ohio EPA gave petitioner an extension allowing it to operate the Jaite Mill plant until September 15, 1984, without curing its waste water violations. Subsequently, the Ohio EPA agreed to allow petitioner to operate the paper mill until November 15, 1984. Petitioner agreed to close permanently its paper mill operations at that time unless all its pollution problems were corrected. The Ohio EPA’s extension was based on its understanding that the National Park Service would deliver an appraisal of petitioner’s property by September 1, 1984, and would complete the purchase of petitioner’s property no later than January 1, 1985.
Petitioner retained Dix to provide an appraisal of its remaining property for sale to the government. On May 22, 1984, appraisers from Dix conducted an inspection of petitioner’s real and personal property within Cuyahoga. On July 13, 1984, the appraiser retained by the United States, Keystone Appraisal Company (Keystone), also inspected petitioner’s Cuyahoga property. The appraisers from Keystone were accompanied by representatives of petitioner during their inspection of petitioner’s property.
On May 31, 1984, petitioner entered into a land contract (the first disposition) to sell its remaining properties within Cuyahoga, including buildings, machinery, equipment, and trade fixtures, to the James J. Robi-deau Irrevocable Trust Number One and the James J. Robideau Irrevocable Trust Number Two (the Trusts). The Trusts were also shareholders in Tecumseh. As of May 31, 1984, petitioner did not have a written appraisal of its property. Under the terms of the contract, petitioner as seller and the Trusts as purchaser agreed:
(k) That the full consideration for the sale of the land to the Purchaser shall be the price at which the property is finally acquired by the United States Department of the Interior, National Park Services, Cuyahoga Valley National Recreation Area, of which the sum of Ten Thousand Dollars ($10,000) will be paid to the Seller at the time that such price is so determined. The balance of such purchase price shall be paid to the Seller with interest thereon from the date hereof at the rate of nine percent (9%) per annum while Purchaser is not in default, and at the rate of nine percent (9%) per annum during the period of any default in payment. Such additional purchase price shall be paid over a period of fifteen (15) years, in equal annual installments including interest at the aforesaid rate of nine percent (9%) per annum, commencing on the anniversary date hereof and annually thereafter until paid in full; such payments to be applied first upon interest and then the balance on principal. Provided, however, the Purchaser shall have the right to prepay all or any part of the unpaid principal balance with accrued interest at any time without penalty.
(n) In the event that there arises any Federal and/or State income tax liability to the Seller due to any subsequent disposition of the subject property by the Purchaser, Purchaser agree [sic] to make, in addition to any other required payments, a payment to Seller sufficient to cover said tax liability, and any interest and penalty thereon. Payment shall be made by Purchaser within the time limit specified by the appropriate taxing authority for payment of any such tax liability of the Seller.
(o) In addition to the land described in Paragraph 1, the herein contemplated sale shall include all machinery, equipment and trade fixtures located in, on, attached or appurtenant to the said land, buildings and improvements thereto, and all of the oil, gas and other minerals, and the constituents thereof, owned by the Seller in and under the said land, or wheresoever located....
Contemporaneously with execution of the land contract on May 31, 1984, the Trusts executed an assignment of the land contract to the JMJ Development Company (the partnership) for “the full consideration of One Dollar ($1.00) and no other consideration.” The partnership, as assignee, agreed to assume and to pay the indebtedness under the land contract. Also on May 31,1984, the partnership filed for recording a memorandum of land contract with the Summit County, Ohio, Registrar of Deeds.
The partnership was formed on June 5, 1980, retroactively effective as of November 30, 1979, by the J.J. Robideau Irrevocable Trust Number One and the James J. Robideau Irrevocable Trust Number Two. The James J. Robideau Irrevocable Trust Number One owned an 80-percent interest in the capital of the partnership, and the James J. Robideau Irrevocable Trust Number Two owned a 20-percent interest in the capital of the partnership.
By lease dated June 28, 1982, the partnership held oil and gas rights under the Jaite Mill and Cleveland box plants and surrounding property. The partnership agreement provides that distributions to the partners of net operating profits of the partnership shall be made at such times as the partners shall reasonably agree.
Pursuant to a lease dated May 31, 1984, the partnership leased the property, machinery, and equipment back to petitioner. On its U.S. Partnership Return of Income, the partnership reported gross rental income of $121,855 and $614,463 for 1984 and 1985, respectively.
By letter dated September 20, 1984, Ge-novese again attempted to persuade Congressman Seiberling that petitioner was suffering a severe hardship due to the delay by the National Park Service in acquiring the property. Genovese referred to petitioner as the owner of the property; the partnership was not mentioned.
Genovese represented both petitioner and the partnership in connection with the sale of the property. By letter dated November 13, 1984, Genovese, on behalf of petitioner, advised the National Park Service that “my client, Tecumseh Corrugated Box Company, is prepared to sell all of its assets... for the sum of $4,500,000.00, payable $2,000,000.00 this year, and the balance of $2,500,000.00 when the funds are available for said acquisition.” Sale of the property to the National Park Service was approved by Robideau, as petitioner’s president, and by petitioner’s board of directors.
By letter dated November 27, 1984, J.W. Blanton, Jr. (Blanton), Land Resource Officer, Cuyahoga Valley Land Acquisition Office, National Park Service, notified Ge-novese that petitioner’s offer was acceptable subject to an approved appraisal of not less than $4,500,000. Blanton also enclosed a corporate offer to sell real property requiring the signatures of all principals, including corporate officers of petitioner and the partnership. The National Park Service also required a corporate resolution by petitioner authorizing its officers to sell the property to the United States.
As. of December 1984, petitioner considered the remaining parcel of improved real estate as sold to the federal government. (The parties consistently refer to the sale as “the December 1984 sale,” although title did not pass until January 1985.) By corporate warranty deed dated January 16, 1985, petitioner and the partnership, as grantors, transferred title to the property to the United States (the second disposition) for the total sum of $4,500,000, with $2,000,000 payable at closing and $2,500,000 payable on or before December 1, 1985.
After the property was acquired by the United States, the paper mill operation was discontinued and only the box plant was continued in operation. By December 1984, petitioner was operating its box plant in new quarters. Approximately $1,460,-000 was expended to construct a building to replace the operations performed at the box manufacturing business. The employees of the box plant continued the same union representation.
At the time of the first disposition of the property on May 31, 1984, to the Trusts, petitioner, for accounting purposes, entered the sale of the property as a land contract receivable of $2,000,000 from the partnership. Subsequently, an adjusting journal entry was recorded on petitioner’s books and records for the fiscal year ending October 31, 1984, to reflect an additional land contract receivable from the partnership.
In the notes to its financial statements for the fiscal year ending October 31, 1984, petitioner disclosed the land contract and lease as follows:
NOTE 6: RELATED PARTY TRANSACTIONS
The Company is leasing or renting trailers, automobiles, computer equipment, and a maintenance facility from a corporation owned and operated by the immediate family of the President and major stockholder of the Company. The current monthly charge under these arrangements is $19,279. The total payments to this related party during the year amounted to $218,795. These leasing arrangements are classified as operating leases.
The Company has two land contracts receivable from a partnership whose partners are irrevocable trusts created for the benefit of the children of the President of the Company. The land contracts receivable are payable over the next six to fifteen years with interest at six to eleven percent per annum.
NOTE 9: EXTRAORDINARY ITEM
The Company sold its Jaite facility and equipment on May 31, 1984 to a partnership whose partners are irrevocable trusts as discussed in note 6. The total selling price of $4,050,000 [sic] is contingent upon the subsequent sale of the property by the partnership to the United States Department of the Interior. The amount has been reported as an extraordinary item since it is of an unusual nature and is not expected to occur again. The amount has been reported at the net of the applicable income taxes of $1,433,604.
The partnership received payments from the United States in the amounts of $2,000,000 and $2,500,000 on January 18, 1985, and May 3,1985, respectively. On its 1985 federal income tax return, the partnership reported a sale of the property on January 16, 1985, and reported a gain of $251,667. The gain reported by the partnership was equal to the depreciation on the property, machinery, and equipment claimed from May 31, 1984, through January 16, 1985.
On its 1985 income tax return, petitioner reported principal payments of $136,884 received from the partnership. Also on its 1985 income tax return, petitioner reported a net long-term capital loss of $14,950. Petitioner elected to carryback the net capital loss to its fiscal year ending October 31, 1985, and claimed a $4,186 decrease in tax.
NOTE 9: EXTRAORDINARY ITEM-DISCONTINUED OPERATIONS
In December of 1984 the Jaite Mill was sold to the National Park Service and at that time all paper mill operations ceased. The Jaite Mill Division had been a part of the corporation for seventeen years. The loss of $46,246 reflects the operations loss for approximately one and one half months of this current fiscal year plus expenses connected with closing the operation.
Subject to the availability of funds, the National Park Service is supposed to acquire every piece of land designated for Cuyahoga. As of the trial date in June 1989, however, there were numerous parcels of land within Cuyahoga that still had not been acquired by the National Park Service.
As a result of petitioner’s transactions, the Commissioner determined that the taxpayer was required to recognize all of its gain from the sale in 1985, the year in which the government paid the entire sales price to the trusts/partnership, even though the taxpayer had elected to recognize its gain in installments. The petitioner argued that its transactions fell within an exception to the Internal Revenue Code. The Tax Court ruled in favor of the Commissioner.
Petitioner appealed.
II.
Generally, the entire amount of gain from the sale of a property is taxed within the year of sale. 26 U.S.C. § 451. Title 26 U.S.C. § 453 provides, however, that certain sales may be accounted for in installments. 26 U.S.C. § 453(a). Such sales, called “installment sales,” occur “where at least 1 payment is to be received after the close of the taxable year in which the disposition occurs.” 26 U.S.C. § 453(b)(1). In an installment sale, “the income recognized for any taxable year from a disposition is that proportion of the payments received in that year which the gross profit (realized or to be realized when payment is completed) bears to the total contract price.” 26 U.S.C. § 453(c). “Thus, the installment method alleviates possible liquidity problems which might arise from bunching of gain in the year of sale when a portion of the selling price has not been actually received.” S.Rep. No. 1000, 96th Cong., 2d Sess. 7 (1980) U.S.Code Cong. & Admin. News 1980, pp. 4696, 4701.
Section 453 is not without exceptions, however. In particular, section 453(e)(1) provides:
(e) Second dispositions by related persons.—
(1) In general. — If—
(A) any person disposes of property to a related person (hereinafter in this subsection referred to as the “first disposition”), and
(B) before the person making the first disposition receives all payments with respect to such disposition, the related person disposes of the property (hereinafter in this subsection referred to as the “second disposition”),
then, for purposes of this section, the amount realized with respect to such second disposition shall be treated as received at the time of the second disposition by the person making the first disposition.
26 U.S.C. § 453(e)(1). As the Senate Finance Committee explained in a report discussing the 1980 amendments to the provision, “the amount realized upon certain resales by the related party installment purchaser will trigger recognition of gain by the initial seller, based on his gross profit ratio, only to the extent the amount realized from the second disposition exceeds actual payments made under the installment sale.” S.Rep. No. 1000, 96th Cong., 2d Sess. 14-15 (1980) U.S.Code Cong. & Admin.News 1980, pp. 4696, 4709. The change in legislation was prompted by “in-tra-family transfers of appreciated property [leading] to unwarranted tax avoidance by allowing the realization of appreciation within a related group without the current payment of income tax.” Id. at 14. U.S. Code Cong. & Admin.News 1980, pp. 4696, 4709.
Section 453(e)(1), an exception to section 453(a), also has exceptions. Section 453(e)(6)(B) provides that involuntary conversions are not treated as second dispositions for the purposes of section 453(e)(1) and, thus, the first party disposing of the property can still account for capital gains on an installment basis. The specific language of 26 U.S.C. § 453(e)(6)(B) is as follows: “A compulsory or involuntary conversion (within the meaning of section 1033) and any transfer thereafter shall not be treated as a second disposition if the first disposition occurred before the threat or imminence of the conversion.” Section 1033 addresses the ways in which property can be involuntarily converted: “If property (as a result of its destruction in whole or in part, [through] theft, seizure, or requisition or condemnation or threat or imminence thereof) is compulsorily or involuntarily converted... [,]” then various Internal Revenue Code provisions are triggered. 26 U.S.C. § 1033.
Petitioner acknowledges that the James J. Robideau Irrevocable Trust Number One, the James J. Robideau Irrevocable Trust Number Two, and JMJ Development Company are “related persons” within the meaning of sections 453(e)(1) and 453(f)(1). Thus, barring the application of some exception, petitioner would not be permitted to treat the sale of the Jaite Mill property under the installment method.
Petitioner argues, however, that one of the exceptions to 453(e)(1) applies, namely, section 453(e)(6). Petitioner argues that the sale of the property by the JMJ partnership in December of 1984 occurred under threat or imminence of condemnation by the federal government as part of the federal government's plan to acquire land for the Cuyahoga Valley National Recreation Area. We disagree and find, as respondent argues, that the sale was voluntary.
From the outset, we note that any factors indicating the government's intent to condemn which occurred before the first sale are discounted entirely for the purposes of section 453(e)(6)(B). The statute expressly provides that, before an exception for condemnation applies, "the first disposition [must have] occurred before the threat or imminence of the conversion." 26 U.S.C. § 453(e)(6)(B) (emphasis added). The first sale took place in May of 1984 and the second sale took place in December of 1984, although the Tax Court points out that the second sale was not recorded until January of 1985.
The Act providing for the creation of the Cuyahoga Valley National Recreation Area specifically enumerates the ways in which the Secretary of the Interior can acquire lands. The Secretary "may acquire lands, improvements, waters, or interest therein by donation, purchase with donated or appropriated funds, exchange, or transfer." 16 U.S.C. § 460ff-1(b). Condemnation is not listed as an option.
Even if we were to accept, arguendo, that the Secretary, via Congress, was empowered to condemn petitioner's property, •the Secretary's only attempt at condemnation failed. When the petitioner sought to expedite the federal government's acquisition of his property, he negotiated an agreement to remove the topsoil from his property, an action clearly incompatible with any ultimate use of the property as a recreation area. The Secretary then petitioned Congress to authorize a taking of petitioner's land, but Congress denied the Secretary authority to do so. Because the Act did not explicitly provide the Secretary of the Interior with the power to condemn and because the Secretary's only attempt to condemn petitioner's property failed, we find that the Secretary, on his own, could not condemn petitioner's property. Thus, petitioner's argument, that the second disposition of his property, i.e., the purchase by the federal government from the JMJ partnership was made under a threat of condemnation, is fundamentally flawed.
Even though the Secretary of the Interior could not have condemned petitioner's property under these circumstances, we will, nonetheless, address petitioner's arguments that condemnation of his property was threatened or imminent. The Tax Court has been liberal in defining the phrase "threat of condemnation" as employed in 26 U.S.C. § 1033. Rainier Co. v. Commissioner, 61 T.C. 68, 76 (1973), rev'd on other grounds, 538 F.2d 338 (9th Cir.1975). A threat of condemnation exists "if the taxpayer might reasonably believe from representations of government agents and from surrounding circumstances that condemnation was likely to take place if he did not sell his property." Id.
Petitioner does not argue, at least directly, that government agents told him that his property would be condemned if he did not sell it. Petitioner does, however, make an oblique reference to
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
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.
SECURITIES AND EXCHANGE COMMISSION, Plaintiff, Securities Investor Protection Corporation, Applicant-Appellee, v. F. O. BAROFF COMPANY, INC., Defendant-Appellee. Claim of Samuel LUBIN, Claimant-Appellant.
No. 720, Docket 73-2665.
United States Court of Appeals, Second Circuit.
Argued March 11, 1974.
Decided May 29, 1974.
Albert N. Proujansky, New York City (Jeffrey S. Tullman and Kane, Kessler, Proujansky, Preiss & Permutt, P. C., New York City, of counsel), for claimant-appellant.
James B. Kobak, Jr., New York City (James W. Giddens and Hughes, Hubbard & Reed, New York City, of counsel), for defendant-appellee Trustee of F. O. Baroff Co., Inc. t
Theodore H. Focht, Gen. Counsel, Securities Investor Protection Corp., Washington, D. C. (Wilfred R. Caron, Associate Gen. Counsel, and Michael E. Don, Atty., Securities Investor Protection Corp., Washington, D. C., of counsel), for appellee Securities Investor Protection Corp.
Before MANSFIELD and TIMBERS, Circuit Judges, and DAVIS, Judge.
Of the United States Court of Claims, sitting by designation.
DAVIS, Judge:
We are called upon to decide a relatively narrow point, but one of some significance, under the Securities Investor Protection Act of 1970, 15 U.S.C. § 78aaa et seq. The object of that statute, and the function of the Securities Investor Protection Corporation (SIPC) it created, is to protect the public customers of securities dealers from suffering the consequences of financial instability in the brokerage industry. Securities and Exchange Commission v. Alan F. Hughes, Inc., 461 F.2d 974, 977 (2d Cir. 1972); Securities Investor Protection Corporation v. Charisma Sec’s Corp., 352 F.Supp. 302, 306 (SDNY 1972). Once a broker or dealer is found to be on the brink of collapse or in danger of failing to meet its obligations to its customers, a trustee is appointed for liquidation of the business. The firm’s clients are cushioned (within limits) from personal loss through a special fund collected by SIPC from all securities dealers registered under the 1934 Securities Exchange Act (much in the way that the Federal Deposit Insurance Corporation protects the depositors of banks). But the Securities Investor Protection Act allows only those who meet its definition of a “customer” to share in this assurance. The question posed in this case is whether a voluntary lender of securities to a failing brokerage house, who made his loan to help out the company and not for a purpose related to securities trading or investments, qualifies under the Act’s scheme.
The case comes before us on facts assumed to be true by the parties, the Bankruptcy Judge, and the District Court. On November 30, 1971, appellant Lubin delivered 7,000 shares of the common stock of Electronic Transistor Corp. to F.O. Baroff Co., Inc., a broker-dealer. Baroff opened an account in Lu-bin’s name and issued him a stock record receipt memorializing the delivery. Lubin also gave the broker a hypothecation letter, saying:
This is .your authority to use the 6,000 [sic] shs. of Electronic Transistors Corp. in my account as collateral for F.O. Baroff Company, Inc. loans.
You understand that I may revoke this authority at any time and you will agree to deliver such securities to me, free of all loans and encumbranches, except monies which may be due to F.O. Baroff Company, Inc. upon such notice.
The record is barren of positive proof as to Lubin’s motive, but in a subsequent letter to the trustee of Baroff from Lubin’s attorneys, this explanation is made: “Mr. Lubin had theretofore done a considerable amount of business with the F.O. Baroff Co., Inc. firm. He was aware that Baroff was in a cash bind and that this loan of securities was intended to help Baroff alleviate that condition. It was understood that the securities would be returned in a short period of time as soon as Baroff as [sic] able to straighten out its situation.” It is not contended that this loan of securities was made in connection with any existing or anticipated securities transactions undertaken by Lubin or on his behalf. Nor is there any suggestion of a benefit or consideration passing to him from the company. Apparently he did not have a live account with the firm at the time he made the loan.
About five weeks after this transaction, Baroff consented to an adjudication that its customers were in need of the protection of the Securities Investor Protection Act, and its liquidation commenced under a trustee’s supervision.
Lubin made claim under the Act with respect to the 7,000 loaned shares, but the trustee resisted on the ground that as to those securities Lubin was not a “customer” entitled to protection. The Bankruptcy Judge agreed with the trustee’s conclusion, both initially and on rehearing. Lubin sought review by the District Court but lost , there as well.
Appellant’s contention is simply that he falls within the literal definition of a “customer” in the 1970 statute, and is therefore entitled to its protections. The term “customer” is spelled out at section 6(c) (2) (A) (ii) of the Act, 15 U.S.C. § 78fff(c) (2) (A) (ii):
(ii) “customers” of a debtor means persons (including persons with whom the debtor deals as principal or agent) who have claims on account of securities received, acquired, or held by the debtor from or for the account of such persons (I) for safekeeping, or (II) with a view to sale, or (III) to cover consummated sales, or (IV) pursuant to purchases, or (V) as collateral security, or (VI) by way of loans of securities by such persons to the debtor, and shall include persons who have claims against the debtor arising out of sales or conversions of such securities, and shall include any person who has deposited cash with the debtor for the purpose of purchasing securities, but shall not include any person to the extent that such person has a claim for property which by contract, agreement, or understanding, or by operation of law, is part of the capital of the debtor or is subordinated to the claims of creditors of the debtor.
Lubin relies on subpart VI of this definition, “by way of loans of securities * * * to the debtor.” In the literal sense, that is what happened here; Lu-bin made a loan to Baroff of his Electronic Transistor stock. The problem is whether that fact is sufficient and dis-positive.
Judge Learned Hand has vividly admonished us not to be caught in the trap of language which seems, literally, too broad or too narrow to accommodate the patent legislative purposes. Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion), aff’d sub nom Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945) ; Cabell v. Markham, 148 F.2d 737, 739-740 (2d Cir. 1945), aff’d, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). Securities legislation is no exception. See, e. g. Diskin v. Lomasney & Co., 452 F.2d 871, 874 (2d Cir. 1971). This court has already heeded the caution in reading another provision of the Securities Investor Protection Act (SEC v. Alan F. Hughes, Inc., supra, 461 F.2d at 980), and the present case supplies one more apt occasion.
The legislative history is clear that the 1970 Act was not designed to protect a lender in appellant’s class. Most of the definition of “customers”, including subpart VI, was taken from section 60e(1) of the Bankruptcy Act, 11 U.S.C. § 96(e)(1), added in 1938, which established special rules “[w]here the bankrupt is a stockbroker.” Both the legislative history of that provision and its use since enactment have stressed protection to, and equality of treatment of, the public customer who has entrusted securities to a broker for some purpose connected with participation in the securities markets. See Comment, The Bankrupt Stockbroker: Section 60e of the Chandler Act, 39 Col.L.Rev. 485 (1939); Tepper v. Chichester, 285 F.2d 309, 311 (9th Cir. 1960).
The 1970 Act carries through the same theme. The House Report states: “The primary purpose of the reported bill is to provide protection for investors if the broker-dealer with whom they are doing business encounters financial troubles.” H.Rep.No. 91-1613, 91st Cong., 2d Sess. (1970), 3 U.S. Code Congressional and Administrative News, 91st Cong., 2d Sess., p. 5255 (1970) (emphasis added). Throughout the report “investors” is used synonymously with “customers,” indicating that, in the eyes of Congress, the Act would protect capital markets by instilling confidence in securities traders. Earlier, at the hearings, Chairman Budge of the Securities and Exchange Commission pointed out that “this is not to be a bailout operation; it is to protect the public customers of the firms * * * ” (Hearings on H.R. 13308 [et al.] Before the Subcomm. on Commerce and Finance of the House Comm, on Interstate and Foreign Commerce, 91st Cong., 2d Sess. 369 (1970)). Speaking of possible losses of securities by customers, Philip A. Loom-is, then SEC General Counsel, now a Commissioner, gave examples showing that it was the trading customer who was to be protected. Similarly, a proponent of the measure on the House floor spoke of securities losses by customers of broker-dealers, obviously in the sense of trading customers. 116 Cong.Rec. 39343, 39344 (1970) (Cong. Latta).
This Congressional objective is underscored by contemporaneous events in the securities industry. The late 1960’s saw the collapse of several brokerage establishments, causing serious financial losses to their clients. Self-help efforts in the industry — such as the New York Stock Exchange Trust Fund — were either severely strained or ineffective. There was considerable concern that investors, particularly smaller ones would lose confidence in the stability of broker-dealers, and withdraw from the securities market. The President’s message endorsing the concept of insurance protection for investors in securities said that such a device “will assure the investor that the stability of the securities industry itself does not become cause for concern” (House Hearings, supra, at 345). The emphasis throughout was on the customer as investor and trader, not on others who might become creditors of the broker-dealer for independent reasons.
This is borne out by the last portion of the definition, excluding a person whose claimed property “by contract, agreement, or understanding, or by operation of law, is part of the capital of the debtor * * There is a dispute whether this exception applies to this case; appellees say that it does while the appellant urges that the securities never became part of Baroff’s “capital”. We need not decide that question, but we note that this exclusion, even if technically inapplicable in this instance, throws light on the preceding segments of the definition. To use Chairman’s Budge’s words, supra, Congress was intent on protecting “the public customers of the firms” and in avoiding “a bailout operation” for others, including those who contributed to the capital of the broker-dealer. There is no reason to think that non-investing, non-trading creditors — or gratuitous lenders acting through pure benevolence, family relationship, or friendship — were to be better off under the Act than capital-contributors.
Appellant's loan of the 7,000 Electronic Transistor shares to Baroff does not meet this criterion of intent to use the lent securities (or their proceeds if hypothecated) in some type of securities trading or investment activity. On the facts before us, the loan had nothing at all to do with conventional investment, trading or participation in the securities market. There was no actual or likely use of the shares as collateral for margin purchases by Lubin of other securities; nor were the proceeds of the American Bank and Trust loan used to facilitate securities trading by Lubin. On the contrary, his professed intention was to help Baroff out of a (hopefully temporary) cash bind. Thus, there was no reasonable expectation that the shares would be sold for Lubin’s account in the near future, and indeed, their immediate delivery to the American Bank and Trust Company as collateral for a pre-existing loan to Baroff put a formidable barrier in the way of any such sale or disposition. Consistently with Lubin’s intention, the proceeds of the American Bank and Trust loan were used, as the Bankruptcy Judge found, by Baroff without restriction in its day-today business. These are not the indicia of the fiduciary relationship between a broker and his public customer, but rather the characteristics of, at most, an ordinary debtor-creditor relationship.
Because appellant’s loan to the broker-debtor had no connection with his trading activity in the securities market, he cannot qualify by virtue thereof as a “customer” entitled to the benefits of the Securities Investor Protection Act. He is instead in the situation of a commercial bank, trade creditor, landlord, equipment lessor, or any other party who relies on the ability of a business enterprise to repay a business loan. If Lubin had chosen to support Baroff through a direct loan of cash, rather than taking the circuitous route of lending securities with permission to hypothecate so as to enable the broker to obtain cash, he would obviously be outside of the Act’s definition of “customers” which covers cash deposits only if they are “for the purpose of purchasing securities.” We can think of no reason why the Congress which passed the statute would desire to protect this loan of securities by appellant but not a straightforward cash loan made by him with the very same goal.
Accordingly, appellant is not entitled to the privileges of a “customer” under the Securities Investor Protection Act of 1970; the Bankruptcy Judge and the District Court were correct in so holding.
Affirmed.
. The trustee-appellee has reserved the right to question the accuracy of these facts if the occasion should arise.
. The Act contemplates that a person may be a “customer” with respect to some of his claims for cash or shares, but not with respect to others. This is made explicit in the definition of “cash customer”, but it is also implicit in the general pattern of the legislation and fits with the use of the plural in the definition of “customers” as “ * * * persons * * * who have claims on account of securities received, acquired, or held by the debtor [etc.] * * 15 U.S.C. § 78fff (c) (2) (A) (ii). .
. Counsel for SIPC argues that the District Court, and consequently this court, lack jurisdiction to review the Bankruptcy Judge’s order. It is undisputed that Lubin did not file for review within the ten-day time limit after the first adverse (and final) decision of the Bankruptcy Judge. Lubin did ask review in timely fashion after the order upon rehearing, and it is settled that a valid reconsideration by a bankruptcy referee reopens the appeal time limit. See In re Pottasch Bros., Co., 79 F.2d 613, 616 (2d Cir. 1935). SIPC attacks the rehearing as a sham designed to provide a vehicle for review, but the transcript of the hearing on reargument before the Bankruptcy Judge shows that Lubin’s attorney raised a new matter (although it was unpersuasive to the Bankruptcy Judge). The Bankruptcy Judge, in ruling on the motion, expressly adverted to this matter and specifically reconsidered his prior decision in the light of it. The presentation and evaluation of this new point satisfies the minimum requirements for a bona fide rehearing, and thus provides an independent reviewable order.
. The House bill was passed in lieu of the Senate version.
. “You asked how can a customer lose, as I understand it. As I understand it, he can lose in any one of three ways. * * * “Similarly, many customers leave their securities with broker-dealers in order that they may sell them readily and quickly, without having to come around with a certificate. Those securities, if they are fully paid for, are supposed to be there and be segregated. But there is a possibility, if the broker gets into trouble, that they may not be.
“Then there are customers who buy securities on margin. Their securities are necessarily left with the broker-dealer and used as collateral for the margin loan. But there may be a possibility that the customers’ equity is not properly protected, that the broker-dealer borrows too much or something of that kind, or even improperly diverts the securities.” Hearings on H.R. 13308 [et al.] Before the Subcomm. on Commerce and Finance of the House Comm, on Interstate and Foreign Commerce, 91st Cong., 2d Sess. 228 (1970).
. Appellant also raises the contention that he qualified as a “cash customer” under section 6(c) (2) (A) (iii) of the Act. But this term is a further refinement of the “customer” concept as defined by the Act, and our disposition of the main point disposes of this subsidiary argument as well. One cannot be a “cash customer” unless he is a “customer”.
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_circuit
|
L
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
ZENITH RADIO CORPORATION, Appellant, v. David L. LADD, Commissioner of Patents, Appellee.
No. 16820.
United States Court of Appeals District of Columbia Circuit.
Argued May 10, 1962.
Decided Nov. 8, 1962.
Mr. Francis W. Crotty, Chicago, 111., with whom Mr. Homer R. Montague, Washington, D. C., was on the brief, for appellant.
Mr. S. Wm. Cochran, Atty., U. S. Patent Office, with whom Mr. Clarence W. Moore, Sol., U. S. Patent Office, was on the brief, for appellee.
Before Edgerton, Washington and Burger, Circuit Judges.
WASHINGTON, Circuit Judge.
This is an appeal from a judgment of the District Court, entered in a suit brought under Section 145 of Title 35 of the United States Code (1958), refusing to grant relief from a determination of the Patent Office denying reissue of Patent No. 2,870,521, originally issued to Norman Rudnick.
Appellant, Zenith Radio Corporation, the plaintiff below, is assignee of the patent, which covers a method of adjusting the resonant frequency of a longitudinal-mode transducer. A transducer is a device that changes energy from one form to another. It is of the “longitudinal-mode” type when its operation involves, in effect, a periodic lengthening and shortening of the device in the direction of its longitudinal axis. While transducers may perform a variety of functions and are not necessarily of uniform shape or construction, the particular type involved in the present controversy consists of a cylindrical rod designed so that, when struck with a hammer or other instrument, it will emit ultrasonic waves at a precisely determined frequency. The chief commercial use of such transducers appears to be in connection with a system for remotely controlling the operation of a television receiver.
Appellant holds patents covering many of the important aspects of its remote control system, and a number of these have been held valid in litigation elsewhere. Zenith Radio Corp. v. Admiral Corp., 190 F.Supp. 41 (W.D.Okl.1960), affirmed, 296 F.2d 708 (10th Cir., 1961). One of the difficulties faced by appellant in developing its system, and overcome by the process described in the Rudnick patent, involved adjusting the resonant frequency of the transducers with the necessary degree of precision. The frequency of a longitudinal-mode transducer may be increased by reducing its length. Decreasing the frequency presents a more difficult problem. One of the solutions to the problem, which is embodied in the claim presently before us, involves “cutting at least one hole” at the longitudinal center, or nodal plane, of the rod, the resonant frequency decreasing in proportion to the number of holes and the amount of material removed.
This proceeding has a fairly complicated history, which will be summarized here very briefly. Zenith acquired the Rudnick patent shortly after it was issued. At that time, the scope of the patent was considerably broader than that of the present claims, encompassing the removal of material from the nodal plane by means of a groove as well as by means of a hole or holes, and also covering a method of raising the resonance frequency. For reasons not here material, Zenith applied for reissue of the patent with somewhat broadened claims. While this application was pending, however, it was discovered that much of what was disclosed by the Rudnick patent was already public information as a result of an article published in 1928 by Professor George W. Pierce. Pierce described his method of adjusting the frequency of magnetostrietive rods, which for our purposes are similar to longitudinal-mode transducers, as follows:
“A rod can be predetermined and cut in a lathe to 0.01 cm. so that the final frequency adjustment to a standard value requires very little grinding. The end is ground off to raise the frequency. If too much is ground off at the end, it can be cor-reeted by grinding away a little from the girth near the center of the rod.”
In light of the Pierce disclosure, Zenith submitted an amendment to its reissue application restricting the claim to that presently before us: “cutting at least one hole” at the nodal plane of the rod. The Patent Office Examiner rejected the reissue application for want of invention, relying mainly on the Pierce reference and on his conclusion that removal of material by means of drilling was obvious from the prior art and did not represent a method patentably different from removal by grinding. His determination was affirmed by the Board of Patent Appeals. Zenith elected to seek further review by means of a de novo proceeding in the District Court under the provisions of 35 U.S.C. § 145 (1958), seeking a decree that it was entitled to reissue of the Rudnick patent as amended.
The only witness appearing in the proceeding in the District Court was an expesrt called by Zenith, who testified that Rudnick’s teaching would not have been obvious to one skilled in the art. This conclusion was largely based on the witness’ opinion that the claim in question calls for the asymmetrical removal of material, whereas (he said) the art had previously understood, and Pierce’s article did not suggest otherwise, that material' must be removed symmetrically from a distributed-constant device lest the performance of the device be adversely affected. The witness further testified that experiments he had conducted demonstrated the impracticality of the technique described by Pierce and the simplicity and utility of Rudnick’s method. On cross-examination he stated that, as a general matter, if one were given the choice between grinding (the method mentioned by Pierce) and drilling as a way to remove precise small amounts of metal from a bar, drilling would be “more practical by a great margin.”
The District Judge, in dismissing the complaint, did not specifically advert to the expert testimony, but stated in his findings of fact that “No evidence has been presented which shows that the Patent Office was clearly in error in holding that it would fall within the skill of the art to effect the material removing operation in Pierce by the drilling or cutting of a round hole.” He further concluded, as a matter of law, that “An applicant for reissue is not in a favorable position to assert that there is patentable invention in one of several originally disclosed alternatives when the disclosure suggests that the alternatives are a mere matter of choice, and the asserted patentable distinction is, therefore, an afterthought.”
On this appeal, a threshold contention is made by Zenith that the District Court did not conduct the proceeding as a trial “de novo.” True it is that .a suit under Section 145 of Title 35 is to be “prepared and heard upon all competent evidence adduced and upon the whole merits.” See Butterworth v. United States ex rel. Hoe, 112 U.S. 50, 61, 5 S.Ct. 25, 30, 31, 28 L.Ed. 656 (1884); Hoover Co. v. Coe, 325 U.S. 79, 83, 65 S. Ct. 955, 957, 89 L.Ed. 1488 (1945). But the record before us does not indicate that the District Court departed from that standard.
There was no evidence offered by Zenith that was excluded by the trial judge. Zenith does not rely on anything indicating prejudice to its rights, but on a colloquy between the trial judge and counsel for the Patent Office (Mr. Cochran), in the course of which the judge indicated a reluctance to consider other legal grounds tendered by the Patent Office as additional reasons for denying reissue of the Rudnick patent, and Mr. Cochran acquiesced. We need not now decide whether the Patent Office may defend in a Section 145 proceeding on grounds other than those on which it relied in refusing to issue the patent. That is not involved in this case. Zenith had full opportunity to introduce its evidence bearing on the issue of patentability, and we find no basis for surmising that the trial judge disregarded his duty to make an independent evaluation of the evidence before him. If, in making this evaluation, the trial judge placed great weight on the findings of the Patent Office, this was in full accord with the directions of this court, at least in the absence of new evidence carrying “thorough conviction” that had not been considered by the Patent Office. Esso Standard Oil Co. v. Sun Oil Co., 97 U.S.App.D.C. 154, 157, 229 F.2d 37, 40, cert. denied, 351 U.S. 973, 76 S.Ct. 1027, 100 L.Ed. 1491 (1956).
Zenith’s point seems to be that because it introduced testimony which was consistent and uncontradicted, that testimony should control. However, as we have frequently stated, the findings of the Patent Office, an expert administrative body, especially when confirmed by the District Court, will not be overturned here unless clearly infected with error. See, e. g., Hendrix v. Ladd, 112 U.S.App.D.C. 203, 205, 301 F.2d 527, 529 (1962); Esso Standard Oil Co. v. Sun Oil Co., supra; Abbott v. Coe, 71 U.S.App.D.C. 195, 197-198, 109 F.2d 449, 451-452 (1939). And it is very commonly the case, in proceedings brought under Section 145, that the only live testimony given in the District Court directly supports the applicant’s claim and is not contradicted by other testimony in that proceeding. But that does not mean that the live testimony is controlling. It must still be weighed against the other materials in the case — most importantly, the record made in the Patent Office, the prior art, and the conclusions of the Primary Examiner and the Board of Patent Appeals, all of which are normally placed before the District Court in documentary form.
In this court, appellant relies most heavily on the expert’s testimony, summarized above, concerning the asymmetrical removal of material by Rudnick’s method. But the claim and specifications do not expressly teach or disclose that such removal is or must be asymmetrical'. In fact, drawings submitted with the application show what appears to be a symmetrical arrangement of holes around the girth of the transducer. Under the circumstances, appellant’s contention that the asymmetrical feature constitutes patentable invention is not persuasive. Cf. Schriber-Schroth Co. v. Cleveland Trust Co., 305 U.S. 47, 59 S.Ct. 8, 83 L.Ed. 34 (1938); O’Brien v. Watson, 104 U.S.App.D.C. 407, 262 F.2d 718 (1958).
It is to be noted also that the allegedly asymmetrical feature of Rudnick’s technique was apparently not relied on by Zenith before the Primary Examiner or in the initial proceedings before the Board of Patent Appeals. Mention of it seems to have been first made in an affidavit by J. Kelly Johnson, the expert who testified in the District Court, which was submitted to the Board together with a petition for reconsideration of its decision. The affidavit set forth substantially the same material as that contained in Johnson’s testimony before the District Court, and was fully considered by the Board. After canvassing the petition and the affidavit, the Board refused to change its holding, saying:
“In the light of the very filing of the petition, however, we have reviewed our decision, but upon such review we find our holding to be sound and that any variation therein would not be warranted. In this connection, to the extent that appellant’s comments contained in the petition paper may be taken as argument pertaining to the interpretation of the Pierce article, we regard the description in said article of ‘grinding away a little from the girth near the center of the rod’ as in no way restrictive to a circularly symmetrical removal of material, but essentially as constituting affirmative disclosure inclusive of circularly unsymmetrical removal of the material involved. In this respect, appellant’s assertions in the petition paper relating to lack of expectancy by one of ordinary skill in the art of other than a circularly symmetrical removal of materials would appear to find refutation in the Pierce article.”
We may add that asymmetry, whether or not in fact it is inevitably produced, would appear to be an incidental effect, and not the essence of the Rudnick process. At any rate, the point was raised before the Board of Patent Appeals in substantially the same terms as before the District Court, and rejected for reasons which are not arbitrary, capricious or unwarranted.
On the whole case, we are not convinced that the District Judge erred in his assessment that the method of manufacturing taught by Rudnick is not a patentable invention when set against the Pierce disclosure. For these reasons, the judgment of the District Court will be
Affirmed.
. The sole claim at issue is as follows: “The method of manufacturing a longitudinal-mode transducer having an accurately predetermined resonant fundamental frequency which comprises: fabricating an elongated cylindrical transducer element having an actual longitudinal-mode resonant fundamental frequency slightly higher than said predetermined fundamental frequency; and cutting at least one hole, of round cross-section and of a diameter small with respect to that of said element and with its axis lateral to the longitudinal axis of said element, into an intermediate portion of said element coincident with and substantially within a nodal plane for longitudinal-mode vibrations at said fundamental frequency to remove material in an amount substantially sufficient to reduce its resonance frequency from said actual fundamental frequency to said predetermined fundamental frequency.”
. Pierce, Magnetostriction Oscillators, Proceedings of the American Academy of Arts and Sciences, Vol. 63, No. 1, pp. 1, 8 (April, 1928).
. The transducer in question was said by the witness to be such a device.
. At an earlier stage, the following colloquy had occurred:
“Hr. Cochran: I think you should consider the case in the framework of all of the relevant evidence that we can bring to bear on the problem. This is a trial de novo.
“The Court: Yes, of course you are right as to that. Very well, you may proceed.’’
Reading the record as a whole, we think the District Judge clearly understood the nature of the proceeding and Ms own duties in relation to it.
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_circuit
|
I
|
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.
CERTAIN-TEED PRODUCTS CORPORATION v. LUKE.
No. 7446.
Circuit Court of Appeals, Ninth Circuit.
Dec. 21, 1934.
Charles A. Christin, of San Francisco, Cal., and Chalmers, Fennemore & Nairn and J. Early Craig, all of Phoeniz, Ariz., for appellant.
Alexander B. Baker, Louis B. Whitney, and Lawrence L. Howe, all of Phoenix, Ariz., for appellee.
Before WILBUE and GAEEECHT, Circuit Judges.
WILBUE, Circuit Judge.
From the decree of the District Court of the United States for the District of Arizona dismissing its amended bill of complaint in equity appellant brings this appeal.
It appears from the amended bill of complaint that the appellant’s elaim for $6,342.-51 against the estate of W. T. Smith, deceased, based upon decedent’s written guaranty, was presented to the administrator with the will annexed of said estate within the time allowed for such presentment; that no action was taken thereon, either allowing or rejecting the same within ten days after presentment, and no action was filed on said claim within three months thereafter.
Sections 3987 and 3989 of the Eevised Code of Arizona 1928 provide as follows:
“§ 3987. Allowance or rejection of elaim. When a claim is presented to the executor or administrator, he shall indorse thereon his allowance or rejection, with the day and date thereof; if he allows the elaim, he shall present it to the judge of the court for his approval, who may hear evidence concerning its validity, and who shall indorse upon it his allowance or rejection and the date thereof. If the executor or administrator or the judge refuse or neglect to indorse such allowance or rejection for ten days after the elaim has been presented to him, such refusal or neglect shall be deemed a rejection. If the elaim be presented to the executor or administrator before the expiration of the time limited for the presentation of claims, it is presented in time, though acted upon by the executor or administrator and by the judge, .after such time. (§ 1745, E. S. ’01; 885, E. S. ’13, rev.)”
3989. Action on rejected claims; claim barred by limitation. When a elaim is rejected, either by the executor or administrator or the judge, the holder may bring action thereon against the executor or administrator within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the elaim shall be forever barred. No elaim shall be allowed by the executor or administrator or by the judge which is barred by the statute of limitations. (§§ 1747-8, E. S. ’01; 887-8, E. S. ’13, cons. & rev.)”
Appellee contends that under these sections of the Eevised Code of Arizona the claim of appellant is barred, and that the administrator has the positive duty of interposing the nonelaim statute as a defense to the tardy suit. Appellant, on the other hand, contends that “a court of equity has power to grant relief and toll the statute of limitations in cases where the claimant is not guilty of culpable negligence in failing to file or bring suit on his claim and where the due administration of the estate will not be delayed by the court’s action.” Appellant claims to be free from culpable negligence in failing to bring suit on its claim within the three months’ period because of its reliance upon statements made in letters written to it and to its attorneys by the attorneys for the appellee. These letters are attached as exhibits to the amended bill of complaint, and the statement therein most strongly relied on by appellant is as follows: “We may say in this regard that our probate law and procedure is almost identical with that of California, and any procedure followed in California in such regard usually applies in this state.” In this same letter appellant was advised by appellee’s attorneys to turn the matter over to its attorneys which it did. Also appellant contends that in subsequent letters from appellee’s attorneys it was led to believe that it would be notified by the administrators or their attorneys if and when the claim was allowed or rejected. It is conceded by appellant that there was no fraudulent misrepresentation involved, but merely a misstatement of fact which was relied on by appellant to its detriment.
Appellant has cited numerous cases in support of its position, but, as pointed oul by appellee, they are all cases from jurisdictions (Iowa and Massachusetts) having a special statutory provision permitting relief in such cases. The Arizona law does not provide for any exceptions to its nonclaim statute (Eev. Code of Arizona 1928, §§ 3987, 3989, supra), and if suit is not brought on a claim within three months after'its rejection, even though such rejection is constructive under the statute, it is forever barred.
The general rule is stated in 24 C. J. § Í968 as follows: “As the usual effect of a failure to observe the requirements of statutes limiting the time for presenting claims against the estate of a decedent, or for bringing action against executors or administrators, is to bar the right as well as the remedy, the bar created by these statutes cannot be waived by the personal representatives.” In absence of a special statute making exceptions to the bar of the statute resulting from a failure to present a' claim or bring action upon a rejected claim within the time allowed, the courts are powerless to relieve the claimant who has failed to comply with the statute. See Notes in 11 A. L. R. 246; 66 A. L. R. 1415. As stated in Bancroft’s Probate Practice,' § 892: “Misleading statements, assurances, or conduct of the representative inducing a creditor to omit compliance with the statutes in presenting a claim or suing upon such claim do not es-top the representative from contesting the claim upon the ground of non-compliance with statutory requirements. A fortiori, the conduet of the representative’s attorney cannot operate to estop the representative in such matters.” To the same effect, see Vanderpool v. Vanderpool, 48 Mont. 448, 138 P. 772.
A federal court of equity cannot relieve a claimant from the consequences of his failure to comply with the nonclaim statutes of the state of the domicile of decedent unless there is also a statute of that state permitting an action against the personal representative, notwithstanding the statutory limitation, in case justice and equity require it. This rule was stated by the Supreme Court in Security Trust Co. v. Black River Nat. Bank, 187 U. S. 211, 227, 23 S. Ct. 52, 58, 47 L. Ed. 147, as follows:
“Another principle, equally well settled, is that the courts of the United States, in enforcing claims against executors and administrators of a decedent’s estate, afie administering the laws of the state of the domicil, and are bound by the same rules that govern the local tribunals. Aspden v. Nixon, 4 How. 467, 498, 11 L. Ed. 1059, 1074.
“ ‘The circuit courts of the United States, with full equity powers, have jurisdiction over executors and administrators, where the parties are citizens of different states, and will enforce the same rules in the adjustment of claims against them that the local courts administer in favor of their own citizens.’ Walker v. Walker’s Ex’r., 9 Wall. 743, 754, 19 L. Ed. 814.”
Decree affirmed.
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_usc2
|
18
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 18. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Appellee, v. Gad GILAN, Defendant-Appellant.
No. 1158, Dockets 91-1089, 91-1202.
United States Court of Appeals, Second Circuit.
Argued April 2, 1992.
Decided June 22, 1992.
Mark B. Gombiner, New York City (The Legal Aid Soc., Federal Defender Services Appeals Unit), for defendant-appellant.
Seth L. Marvin, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Malo-ney, U.S. Atty., E.D.N.Y., Peter A. Nor-ling, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee.
Before KEARSE and MAHONEY, Circuit Judges, and RESTANI, Judge.
Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
RESTANI, Judge:
This is an appeal from a judgment of the United States District Court for the Eastern District of New York, McLaughlin, Circuit Judge, sitting by designation, dated January 17, 1991 after a jury trial, convicting Gad Gilan and Offer Cohen of conspiring to steal goods moved in interstate commerce and to defraud (18 U.S.C. §§ 659, 1343 (1988)) in violation of 18 U.S.C. § 371 (1988), and stealing goods moved in interstate commerce, 18 U.S.C. § 659 (1988). Appellant Gilan argues that his conviction should be reversed because the district court improperly admitted evidence of an earlier uncharged theft pursuant to Rule 404(b) of the Federal Rules of Evidence (evidence of “other crimes, wrongs, or acts” admissible to prove, inter alia, intent, knowledge, identity or absence of mistake) and the evidence, if relevant, was unfairly prejudicial and not admissible under Rule 403.
We find that the district court erred in admitting evidence of the uncharged act. Accordingly, this case is remanded for a new trial.
Background
Appellant was charged, together with Offer Cohen, of theft and conspiracy to defraud and to steal from Opportunities Plus (“OP”), a company that liquidates inventory, of over $300,000. The government charged that in October 1988 appellant obtained 16,309 pairs of shoes from OP by using false names and companies, together with a fraudulent certified check. Gilan was alleged to have delivered the fraudulent check, picked up shoes on four separate occasions over a two day period, and then transferred the shoes to a warehouse. Gilan’s defense was lack of knowledge and intent; he claimed he was the innocent dupe of an unindicted individual, Simone Asseraf.
1. The charged crime — the Ciao shoe theft
In July 1988, Jack Eleven, President of the Footwear Division of OP, learned that a company named Lifestyle International was interested in liquidating 24,000 pairs of Ciao brand men’s shoes. Eleven contacted Simone Asseraf, whom he had met through a prior uncompleted deal, to discuss the possibility of Asseraf’s purchase of the shoes. Eleven and Asseraf agreed that Asseraf would buy the shoes and resell them, splitting the profit with OP. Asseraf informed Eleven that he had buyers for 17,000 pairs at $20 per pair; the buyers were identified as Azor International, a company owned by an Al Azor, and Neli Shoe Corporation, a shoe company located on Coney Island Avenue, Brooklyn. Based on this agreement, Eleven made a successful bid for the shoes at $16 per pair.
In the late summer of 1988, two men rented space in a Garnerville, New York, warehouse. The men indicated that they wanted to lease storage space for some shoes. The manager of the warehouse, William Decker, stated that the men introduced themselves as “Offer Comen” and “Simone.” Decker identified Offer Cohen as “Offer Comen.” These men took out a lease in the name of Nicole Importing Company and obtained an insurance policy for the premises in the name of a company called Azor International Incorporated.
On September .15, 1988, Eleven, Asseraf and Victor Ringel, an OP principal, met at M. Stoff, a Manhattan business, to discuss the sale. At this meeting, Asseraf placed a telephone call to a man he identified as A1 Azor. Ringel spoke with Azor and told him that OP wanted payment by wire transfer. After further discussion, they agreed that payment would be by certified check.
Asseraf later told Eleven that Azor’s portion of the shipment would be purchased by someone named Sam Rubin. As-seraf told Eleven that Rubin wished to look at the shoes. Accordingly, on October 3, 1988, Eleven met Asseraf and Rubin at the Boston Airport. The men drove to the Lifestyle warehouse and inspected the shoes. The shoes were found to be satisfactory, and it was arranged that the shoes would be shipped the following day to Azor International at 1410 69th Street, Brooklyn, and to Neli at 1601 Coney Island Avenue, Brooklyn.
On October 5, Malcolm Levy, an OP partner, received a certified check for $320,000 from a man who identified himself as a messenger for Asseraf. The check was drawn on the account of a company called A & T Juvenile Incorporated and was signed by Albert Fox. Before trial, Levy had not identified-either of the defendants as the messenger. On the day before he testified, Levy observed Gilan in the courthouse. Levy testified that when he saw Gilan, he recognized him as the messenger.
On October 6, 1988, Levy deposited the check at the bank. He asked the bank to wire funds to Lifestyle so that the shoes could be released to Neli and Azor International Incorporated.
Immediately after OP received the check, the purchasers made attempts to get the shoes. At this time the shoes were being held by PIE, a trucking company. Mark Ross, a supervisor at the New York PIE facility, stated that on October 7, he received several calls from a man who stated that he was a representative of Azor and wanted to know when the shoes could be delivered. Ross was told that Azor was “hot” to have the shoes and that they should be delivered to 1601 Coney Island Avenue, rather than to the 69th Street address. Later that day, a man who Ross identified as Gilan came to Ross and said he wanted the shoes immediately. Although it was against company policy, Ross permitted Gilan to take the first load of shoes in the truck Gilan had brought with him. Gilan said that he urgently needed the goods for a Columbus Day sale. Later that day, Gilan returned and took the second load of shoes.
On October 11, Gilan returned to obtain the third load. He gave Ross an envelope containing two $100 bills and said “my boss wants you to have this.” Ross refused to accept the money and stated that the shoes would have to be delivered by PIE. Thereafter, Gilan called several times to confirm that the goods would be delivered to 1601 Coney Island Avenue and to inform PIE that he had men waiting for the delivery. The driver, unable to locate the address, saw Gilan on the street. Gilan waved him over, told him that his warehouse was “pretty jammed up” and had the driver unload the goods directly into a rented truck. Gilan signed receipts for this delivery in the name of “Gary Golden.” Gilan again called the dispatcher and asked to pick up the fourth load rather than wait for its delivery.
That same day, October 11, Ringel received a call from Levy informing him that the $320,000 check was fraudulent. Rin-gel immediately called both PIE and the FBI and informed them about the fraudulent check. Agent Conlin of the FBI went to the PIE terminal the next day and followed the delivery truck as it delivered the fourth and final load of shoes.
The PIE truck drove to the same Coney Island Avenue location as before; once again Gilan signalled the truck to stop and unload the shoes into a rented truck. Several people, including Offer Cohen, helped unload the PIE truck. Gilan signed the delivery receipt “Gary Golden.” Agent Conlin followed Gilan’s truck to First Avenue in Manhattan, where Gilan met with Cohen and another person. Gilan and Cohen made calls from a pay telephone and then drove north to Westchester County. Agent Conlin pulled the truck over and found the shoes in the back. Cohen was arrested.
On October 26, 1988, Agent Conlin went to the Garnerville warehouse and opened it with a key he had recovered from Cohen’s jacket pocket at the time of arrest. Inside the warehouse were 900 cartons of stolen Ciao shoes and 115 cartons of stolen Suba brand sneakers.
Gilan was arrested on November 4, 1988. At the time of his arrest, the police found, among other things, a Diner’s Club credit card and an AT & T card issued to the Pitaría Restaurant, a Manhattan restaurant, in Gilan’s name. Records showed that telephone calls to the Pitaría, Eleven, Asseraf, the Garnerville warehouse and OP had been charged to Gilan’s home number.
2. The uncharged crime — the Suba sneaker theft.
By a letter dated June 14, 1990, the government notified the district court that it planned to introduce evidence regarding the September 1988 theft of the sneakers, also recovered in the Garnerville warehouse. The government claimed that David Kim, president of Suba, sold 375 cases of shoes to a man named “Jack” for $69,000 and the certified check used to pay for the goods turned out to be false.
Specifically, Jack told Kim that he was from a company called Azor, which was located at 1410 69th Street, Brooklyn. Kim agreed to sell Jack 9,000 pairs of Suba sneakers for $130,000. Jack left a telephone number where he could be reached; the number was for the Pitaría Restaurant. On September 2, the Friday of Labor Day weekend, Kim attempted to deliver the first shipment of sneakers to 1410 69th Street, Brooklyn, the address of the consignee. When Kim arrived at number 1410 he was met by two men who helped him unload the merchandise into a facility at 1412 69th Street. At some point, a man identifying himself as Jack arrived. Kim was given a certified check for $69,000 drawn on the account of Bloomsbury Fashion, Incorporated. Kim was told that this company was the same as Azor. The men showed Kim a second check for $50,000 and told him that he would receive this check when the second shipment was delivered. At this time, Kim and Jack signed a modified agreement concerning the remaining merchandise.
Several days later, Kim returned to 1412 69th Street with the remainder of the shoes. At that time he discovered that the building located at 1412 was empty and locked; Kim was unable to deliver the sneakers. The certified check was later returned for insufficient funds.
3. The Rule 404(b) Motion and Ruling.
The government’s June 14, 1990 letter outlined the basis for its contention that the Suba theft should be admitted as a similar act pursuant to Federal Rule of Evidence 404(b). The government stated that it intended to prove the following similarities between the Ciao shoe theft and the Suba sneaker theft: 1) the same address for the purported consignee (1410 69th Street, Brooklyn); 2) use of the Pita-ría restaurant as a contact point for discussions (Gilan had a Pitaría credit card, Decker of the Garnerville warehouse had been given this number as a contact location, and Kim had phoned “Jack” there many times); 3) companies named Azore International and Arzare were involved in both transactions; 4) Gilan and Cohen attempted to sell both shoes and sneakers to a fellow tenant at the warehouse facility; 5) recovery of both the Ciao shoes and the Suba sneakers in the same warehouse at the same time; and 6) payment was made with a false check drawn on a defunct company.
After substantial discussion, the court found the following similarities between the two crimes: 1) theft of sneakers and shoes both involved use of a fraudulent check; 2) the purchaser of the Suba sneakers gave the telephone number of the Pita-ría as a contact point and Cohen gave the same contact point to Decker (the manager of the Garnerville warehouse); 3) both the shoes and sneakers were recovered from the Garnerville warehouse at the same time; and 4) in both cases, 1410 69th Street, Brooklyn, was given as an address. The court stated that “[t]hose points of similarity are sufficiently startling to persuade me that a reasonable jury could find by a preponderance that the same people who took the sneakers took the shoes.” Transcript at 322. Accordingly, the trial court ruled that the evidence of the Suba sneaker theft was admissible to prove various elements of the case, including knowledge on Gilan’s part. The court noted that defendants could request a limiting instruction.
Discussion
The trial judge is given broad discretion in making its rulings under Rules 403 and 404(b). On appeal, a ruling involving similar act evidence will be overturned only for a clear abuse of discretion. United States v. Sappe, 898 F.2d 878, 880 (2d Cir.1990).
In Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court outlined the test for admission of other acts evidence under Rule 404(b). First, the evidence must be introduced for a proper purpose, such as proof of knowledge or identity. See id. at 691, 108 S.Ct. at 1502. Second, the offered evidence must be relevant to an issue in the case pursuant to Rule 402, as enforced through Rule 104(b). Id. Third, the evidence must satisfy the probative-prejudice balancing test of Rule 403. Id. Fourth, if the evidence of other acts is admitted, the district court must, if requested, provide a limiting instruction for the jury. Id. at 691-92, 108 S.Ct. at 1502. The Court held that the standard of proof under Rule 404(b) was whether the jury could “reasonably conclude that the act occurred and that the defendant was the actor.” Id. at 689, 108 S.Ct. at 1501. The standard applied by the district court is preponderance of the evidence. See United States v. Ramirez, 894 F.2d 565, 569 (2d Cir.1990) (similar act evidence not relevant unless court determines that a jury “could reasonably find by a preponderance of the evidence that the act occurred and that the defendant committed the act”).
In this case, the first prong of the Hud-dleston test is undeniably satisfied; a proper purpose for admitting similar acts is to show a defendant’s identity or knowledge.
The crux of appellant’s argument is that the district court misapplied the second prong of the Huddleston test. Appellant maintains that there was no evidence which would support a finding by the jury that appellant committed the similar act. The government argues that the district court’s mention of the four similarities between the crimes suffices to connect the uncharged crime to appellant. Essentially the government’s argument is that “[ojnce the jury concluded that Gilan’s undisputed acts in the Ciao events made it likely that he was involved in the Suva [sic] theft, it could then consider the impact of his acts in both thefts as bearing upon his knowledge in the charged offense.” Gov’t Brief at 20.
The problem with the government’s analysis is that there is no evidence tying appellant to the Suba theft. The two crimes might very well be linked because of their striking similarities; however, nothing indicates that Gilan forms any part of that link. See United States v. Gonzalez-Lira, 936 F.2d 184, 189-90 (5th Cir. 1991) (“the Government must at least provide some evidence that the defendant committed the prior bad act”). In both cases relied on by the government, Huddle-ston and United States v. Oshatz, 912 F.2d 534, 542 (2d Cir.1990), cert, denied, — U.S. -, 111 S.Ct. 1695, 114 L.Ed.2d 89 (1991), there was testimony which linked the defendant to the uncharged crime.
In the case before the court, there is nothing which would provide the proper link. Although the circumstances of the thefts are quite similar — a fraudulent certified check was used to purchase both types of footware, the deliveries took place in preparation for a holiday weekend, the 1410 69th Street address was provided as a delivery point, the merchandise was found in the same warehouse at the same time, and the Pitaría phone number was given as a contact point — absent from the equation is any evidence that Gilan was involved in the Suba theft. There was no credible evidence that Kim had ever seen or spoken with Gilan. The phone records did not link Gilan to either Suba or Kim. It is also important to note that in the Ciao shoe theft, Gilan’s role extended to delivering the check, urging rapid delivery of the merchandise, and then picking up several deliveries of the goods. The Ciao deal was set up by Asseraf, who was in close contact with Kleven in his role as negotiator. In the Suba sneaker theft “Jack,” whom the government argues is Gilan, set up the entire purchase, was present when Kim delivered the sneakers, and produced the fraudulent check. Thus, the role played by Gilan in the Ciao shoe theft differs from Jack’s role in the Suba sneaker theft; Gilan became involved in the Ciao theft only as a deliveryman ■ whereas Jack’s role extended to the negotiation stage. While the jury might reasonably conclude that the two crimes were planned and arranged by the same person, there was no evidence that Gilan was that person or that he played any particular role in the uncharged crime.
In Gonzalez-Lira, 936 F.2d at 190, the court noted that even using the generous standard of Huddleston, the government did not establish a proper basis for admission of testimony concerning a prior smuggling attempt. The court noted that there was no evidence at all that it was defendant who committed the earlier offense. The court then stated that: “Because there was no showing that the prior acts to be laid before the jury were the acts of Gonzalez, the evidence was not shown to meet the threshold relevancy requirements of Rule 404(b).” Id. Moreover, in United States v. Peterson, 808 F.2d 969 (2d Cir.1987), we indicated that there must be some link between the defendant and the uncharged crime. Id. at 975.
In this case, the district court apparently admitted the evidence of the uncharged crime because it was relevant to proving Gilan’s knowledge or identity in the charged crime. See supra, n. 7. Later in the trial, however, in explaining what type of limiting instruction he would give if asked, the judge stated: “I think I would charge that it’s admissible solely on the question of identity. That is, attempting to prove the identity of the persons who stole the sneakers and the shoes.” Transcript at 444. As to Gilan, however, knowledge was clearly the issue and the uncharged crime was not probative on the issue of identity as to the charged crime. That element was undisputed. The confusion regarding the purpose of the evidence is exacerbated by the absence of an expressed application of a balancing test between the probative value. and the prejudicial impact of the evidence. Although the district court “need not mechanically recite the Rule 403 formula as a prerequisite to admission,” Ramirez, 894 F.2d at 569, as to Gilan the possible prejudicial effect of the Suba theft does not appear to have been weighed against its probative value in a useful way.
The lack of evidence linking Gilan to the Ciao shoe theft and the absence of a proper Rule 403 balancing test necessitates reversal. Clearly the error here was not harmless. There was no direct evidence of Gilan’s knowledge. Knowledge might be inferred from the totality of his actions, but the admission of the evidence of the prior theft would certainly have figured prominently in the jury’s consideration of this issue.
Conclusion
Accordingly, we hold that the Rule 404(b) evidence should not have been admitted because there was no link between appellant and the Suba sneaker theft. The absence of this link means that in spite of the similarities of the crimes, the jury could not infer appellant’s knowledge and intent based on the Suba theft. This case is remanded for a new trial.
. The check for the insurance premium was later returned for insufficient funds, and the address of the company was found to be the address of an unconnected insurance company.
. The address was later shown to be nonexistent.
. A & T Juvenile turned out to be a defunct company. The former owner testified that his checkbook had been stolen and the check fraudulently certified.
. Apparently in both the shoe and sneaker thefts the company was Azor International.
. Gilan had other connections with the Pitaría: at the time of his arrest, he had a credit card bearing the name Pitaría and the FBI had observed him at the restaurant on several occasions.
.The government informed the court that although it had originally indicated otherwise, it would not offer any evidence that Gilan and Cohen had approached a warehouse tenant and attempted to sell him a quantity of shoes and sneakers.
. The court stated that while the evidence was clearly admissible against Cohen, it was not quite so clear with respect to Gilan. The ultimate conclusion, however, was that "[t]here has been enough evidence thus far in the record to support a finding of substantial evidence pointing towards the defendant! 1 Gilan's guilt of the shoe theft to support the inference that he was also hooked in to the sneaker theft.” Transcript at 317.
. A limiting instruction was not requested and this is not an issue on appeal.
.In Huddleston, defendant argued that the district court erred in admitting testimony that he had sold televisions because the government did not prove that the televisions were in fact stolen. The Court found that the district court must simply examine all the evidence in the case and decide whether the jury could reasonably find that the televisions were stolen by a preponderance of the evidence. Testimony existed which tied defendant into the earlier sale of televisions; the issue was whether the televisions were stolen.
Likewise, in Oshatz the defendants contended that the government had failed to show that they had participated in earlier fraudulent tax schemes with the knowledge and intent to defraud. Thus, the issue was not whether defendants had indeed participated in these similar acts, but whether they had participated with the knowledge that they were fraudulent.
. After testifying at trial, Kim told Agent Con-lin that Gilan was Jack. The trial court summarily precluded this last-minute “identification" testimony and the government does not challenge this ruling on appeal.
. At oral argument before this court, the government advised the court that an important link between Gilan and Suba was a series of four phone calls made on September 1, 1988 from (or billed to) Gilan’s home phone to the Pitaría, and a phone call seventy-two minutes later from (or billed to) the Pitaría to the Suba office. The government argued that this series of phone calls tended to show that Gilan was involved with the Suba theft. Shortly after oral argument, the court was informed that the four calls to the Pitaría were made more than six hours after the call from the Pitaría to Suba. The court is not convinced that a flurry of telephone calls to the Pitaría over six hours after a call from the Pitaría to Suba connects Gilan with the sneaker theft. Moreover, this connection was argued by the government only at oral argument; the government did not list it as a significant link before the district court or before this court prior to oral argument.
. Gilan’s attorney argued that “Jack" could have easily been Asseraf because of AsseraPs role as telephone negotiator in the Ciao crime. Moreover, on September 1, 1988, a phone call was made to Suba from M. Stoff, a place in which Asseraf was known to have conducted business.
. In Peterson, defendant appealed from a conviction for possessing a check stolen from the United States mail knowing it to have been stolen. The evidence showed that a check had been mailed to a Mr. Azapian. The check was deposited in a bank account belonging to defendant and her common-law husband, Mr. Whit-ted. No permission was ever given to defendant which would enable her to possess or deposit the check.
A post-office document analyst testified that the writing on the check endorsement was that of defendant. Whitted testified that he had received the check from a woman for whom he had done some auto repairs and that defendant had never seen the check. The government introduced evidence that on another occasion defendant had forged the endorsement of a Ms. Williams on an earlier check. The support for admitting this prior similar act was first, the actual Williams check (the physical exhibit), and second, the testimony of the document analyst that the endorsement was that of defendant. Although the government told the district judge that it had information that Ms. Williams had never received the check, no evidence was offered to that effect. Moreover, no evidence was offered that defendant had not been given authority to possess or endorse the check.
We concluded that the Williams check should not have been admitted because its "very slight probative value as evidence of knowledge that the Azapian check was stolen was so far outweighed by its potential for undue prejudice that its admission was an abuse of discretion." Id. at 973, 975-76. Although we rejected the evidence under the third prong of the Huddle-ston test, the logic is equally applicable to the case before us today.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_3_2
|
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 respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Appellee, v. Kevin DIXON a/k/a Kevin E. McElroy a/k/a Mac Attack, Appellant.
No. 89-2706.
United States Court of Appeals, Eighth Circuit.
Submitted Aug. 27, 1990.
Decided Dec. 21, 1990.
Lee Lawless, Public Defender, St. Louis, Mo., for appellant.
Steven Holtshouser, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.
WOLLMAN, Circuit Judge.
A jury convicted Kevin Dixon of one count of conspiracy to distribute cocaine and two counts of possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1). The district court imposed a sentence of 84 months’ imprisonment and four years’ supervised release. We affirm in part and reverse and remand in part.
I.
Dixon, with co-conspirators, set up a drug distribution operation in St. Louis. Police officers obtained search warrants for rooms 204 and 212 in the hotel from which Dixon and his cohorts conducted their enterprise. Before executing the warrant, the officers observed Dixon leave room 212, walk down an exterior hallway, and enter room 204. As Dixon later left the hotel, the officers stopped him and a co-conspirator and took them directly back to room 212. The officers found underneath the bed in room 204 numerous bags of white powder later identified as cocaine.The officers arrested Dixon in room 204 and searched him incident to his arrest. They recovered cocaine from his coat pocket.
Count II of the indictment charged Dixon and two others with possession of cocaine in excess of 500 grams with the intent to distribute, in reference to the cocaine found underneath the bed in room 204. Count III charged Dixon alone with possession with the intent to distribute an unspecified amount of cocaine, reflecting the drugs found in Dixon’s pocket. Dixon challenges the indictment as multiplicitous.
II.
The term “multiplicity” refers the charging of a single offense in several counts. The vice of this practice is that multiple sentences may result. Likewise, it may suggest to the jury that the defendant committed more than one crime. United States v. Kazenbach, 824 F.2d 649, 651 (8th Cir.1987). See 1 C. Wright, Federal Practice and Procedure § 142, at 469, 475-76 (1982).
The government argues that it charged Dixon separately for the cocaine in his pocket and the cocaine underneath the bed in compliance with our opinion in United States v. Rich, 795 F.2d 680, 682 (8th Cir.1986). In Rich, police found cocaine in the defendant’s suitcases at the airport and later in his home—at two separate and distinct locations and times, with different intended criminal transactions. Rich is not analogous to the facts of this case, where Dixon possessed separate packages of cocaine of the same purity, in the same hotel room location, at the same time.
We found in United States v. Wright, 704 F.2d 420, 423 (8th Cir.1983), that possession of two distinct quantities of illicit drugs, within the same room but in two different containers, constituted only one offense. We perceive Dixon’s situation to be equivalent to that in Wright. Dixon held one small quantity of cocaine in his pocket of the same purity as the bulk of the drugs. Dixon intended the sample in his pocket not as the object of an independent transaction, but as a specimen of the larger criminal enterprise. We agree with Dixon that his contemporaneous possession of both quantities of cocaine constituted only one offense and that the indictment should therefore have charged only one count of possession.
III.
Dixon challenges the sufficiency of the affidavit supporting the search warrant. Dixon argues the affidavit did not adequately report the reliability and veracity of the informant and lacked independent corroboration of the information. We disagree. The affidavit described the informant’s past reliability, demonstrated by information that “led to at least 3 felony narcotics arrests with warrants issued and a large amount of drugs seized.” This was sufficient. See United States v. Skramstad, 649 F.2d 1259, 1262 (8th Cir.1981). Moreover, the officers verified the registration of the conspirators at the hotel in the names the informant furnished and observed movement between the two rooms the informant implicated.
The order denying the motion to suppress evidence and the judgment entered on Count I are affirmed. The judgment entered on Counts II and III is reversed and the case is remanded with directions that the government be required to elect to dismiss either Count II or Count III of the indictment, following which the district court shall resentence Dixon on the remaining counts.
. The Honorable Edward L. Filippine, United States District Judge for the Eastern District of Missouri.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
sc_petitioner
|
009
|
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.
CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE
No. 06-1595.
Argued October 8, 2008
Decided January 26, 2009
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 280.
Eric Schnapper argued the cause for petitioner. With him on the briefs was Ann Buntin Steiner.
Lisa S. Blatt argued the cause for the United States as amicus curiae in support of petitioner. With her on the brief were former Solicitor General Clement, Solicitor General Garre, Acting Assistant Attorney General Becker, Dennis J. Dimsey, Angela M. Miller, Ronald S. Cooper, Carolyn L. Wheeler, and Jennifer S. Goldstein.
Francis H. Young argued the cause for respondent. With him on the brief was James L. Charles.
Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Marc Dann, Attorney General of Ohio, William P. Marshall, Solicitor General, Benjamin C. Mizer and Kimberly A. Olson, Deputy Solicitors, and Susan A Choe, Patrick M. Dull, and Duffy W. Jamieson, Assistant Attorneys General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Talis J. Colberg of Alaska, Terry Goddard of Arizona, Richard Blumenthal of Connecticut, Beau Biden of Delaware, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Tom Miller of Iowa, Jack Conway of Kentucky, Martha Coakley of Massachusetts, Michael A Cox of Michigan, Mike McGrath of Montana, Anne Mil-gram of New Jersey, Gary K. King of New Mexico, Andrew M. Cuomo of New York, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Darrell V. McGraw, Jr., of West Virginia; for the Leadership Conference on Civil Rights et al. by Michael L. Foreman and Michael B. de Leeuw; for the National Employment Lawyers Association et al. by Bruce B. Elfvin, Christina M. Royer, Mary L. Heen, Adele P. Kimmel, and Catherine K. Ruckelshaus; for the National Women’s Law Center et al. by Melissa Hart, Marcia D. Greenberger, Jocelyn F. Samuels, and Dina R. Lassow; and for the Tennessee Education Association et al. by Richard L. Colbert and Courtney L. Wilbert.
Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States of America by Catherine E. Stetson, Jessica L. Ellsworth, Robin S. Conrad, and Shane Brennan; for the Equal Employment Advisory Council et al. by Rae T. Vann, Alexandra Tsiros, Karen R. Harried, and Elizabeth G. Milito; and for the National School Boards Association by Francisco M. Negrón, Jr., Lisa E. Soronen, F. Damon Kitchen, Jack R. Wallace, and Robert J. Sniffen.
Justice Souter
delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (2000 ed. and Supp. V), forbids retaliation by employers against employees who report workplace race or gender discrimination. The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. We hold that it does.
I
In 2002, respondent Metropolitan Government of Nashville and Davidson County, Tennessee (Metro), began looking into rumors of sexual harassment by the Metro School District’s employee relations director, Gene Hughes. 211 Fed. Appx. 373, 374 (CA6 2006). When Veronica Frazier, a Metro human resources officer, asked petitioner Vicky Crawford, a 30-year Metro employee, whether she had witnessed “inappropriate behavior” on the part of Hughes, id., at 374-375, Crawford described several instances of sexually harassing behavior: once, Hughes had answered her greeting, “‘Hey Dr. Hughes, [wjhat’s up?/ ” by grabbing his crotch and saying “ ‘[Y]ou know what’s up’ he had repeatedly “ ‘put his crotch up to [her] window’ and on one occasion he had entered her office and “ ‘grabbed her head and pulled it to his crotch/ ” id., at 375, and n. 1. Two other employees also reported being sexually harassed by Hughes. Id., at 375. Although Metro took no action against Hughes, it did fire Crawford and the two other accusers soon after finishing the investigation, saying in Crawford’s case that it was for embezzlement. Ibid. Crawford claimed Metro was retaliating for her report of Hughes’s behavior and filed a charge of a Title VII violation with the Equal Employment Opportunity Commission (EEOC), followed by this suit in the United States District Court for the Middle District of Tennessee. Ibid.
The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees ... [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U. S. C. § 2000e-3(a). The one is known as the “opposition clause,” the other as the “participation clause,” and Crawford accused Metro of violating both.
The District Court granted summary judgment for Metro. It held that Crawford could not satisfy the opposition clause because she had not “instigated or initiated any complaint,” but had “merely answered questions by investigators in an already-pending internal investigation, initiated by someone else.” Memorandum Opinion, No. 3:03-cv-0996 (MD Tenn., Jan. 6,2005), App. C to Pet. for Cert. 16a-17a. It concluded that her claim also failed under the participation clause, which Sixth Circuit precedent confined to protecting “'an employee’s participation in an employer’s internal investigation . . . where that investigation occurs pursuant to a pending EEOC charge’ ” (not the case here). Id., at 15a (emphasis deleted) (quoting Abbott v. Crown Motor Co., 348 F. 3d 537, 543 (CA6 2003)).
The Court of Appeals affirmed on the same grounds, holding that the opposition clause “'demands active, consistent “opposing” activities to warrant... protection against retaliation,’” 211 Fed. Appx., at 376 (quoting Bell v. Safety Grooving & Grinding, LP, 107 Fed. Appx. 607, 610 (CA6 2004)), whereas Crawford did “not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing,” 211 Fed. Appx., at 376. Again like the trial judge, the Court of Appeals understood that Crawford could show no violation of the participation clause because her “ ‘employer’s internal investigation’ ” was not conducted “‘pursuant to a pending EEOC charge.’” Ibid, (quoting Abbott, supra, at 543).
Because the Sixth Circuit’s decision conflicts with those of other Circuits, particularly as to the opposition clause, see, e. g., McDonnell v. Cisneros, 84 F. 3d 256, 262 (CA7 1996), we granted Crawford’s petition for certiorari. 552 U. S. 1162 (2008). We now reverse and remand for further proceedings.
II
The opposition clause makes it “unlawful ... for an employer to discriminate against any... employe[e]... because he has opposed any practice made . . . unlawful ... by this subchapter.” §2000e-3(a). The term “oppose,” being left undefined by the statute, carries its ordinary meaning, Perrin v. United States, 444 U. S. 37, 42 (1979): “[t]o resist or antagonize ...; to contend against; to confront; resist; withstand,” Webster’s New International Dictionary 1710 (2d ed. 1957). Although these actions entail varying expenditures of energy, “resist frequently implies more active striving than OPPOSE.” Ibid.; see also Random House Dictionary of the English Language 1359 (2d ed. 1987) (defining “oppose” as “to be hostile or adverse to, as in opinion”).
The statement Crawford says she gave to Frazier is thus covered by the opposition clause, as an ostensibly disapproving account of sexually obnoxious behavior toward her by a fellow employee, an answer she says antagonized her employer to the point of sacking her on a false pretense. Crawford’s description of the louche goings-on would certainly qualify in the minds of reasonable jurors as “resist[ant]” or “antagonistic]” to Hughes’s treatment, if for no other reason than the point argued by the Government and explained by an EEOC guideline: “When an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication” virtually always “constitutes the employee’s opposition to the activity.” Brief for United States as Amicus Curiae 9 (citing 2 EEOC Compliance Manual §§8-II-B(l), (2), p. 614:0003 (Mar. 2003)); see also Federal Express Corp. v. Holowecki, 552 U. S. 389, 399 (2008) (explaining that EEOC compliance manuals “reflect ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance’ ” (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998))). It is true that one can imagine exceptions, like an employee’s description of a supervisor’s racist joke as hilarious, but these will be eccentric cases, and this is not one of them.
The Sixth Circuit thought answering questions fell short of opposition, taking the view that the clause “ ‘demands active, consistent “opposing” activities to warrant. . . protection against retaliation/” 211 Fed. Appx., at 376 (quoting Bell, supra, at 610), and that an employee must “instigat[e] or initiat[e]” a complaint to be covered, 211 Fed. Appx., at 376. But though these requirements obviously exemplify opposition as commonly understood, they are not limits of it.
“Oppose” goes beyond “active, consistent” behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it “opposition” if an employee took a stand against an employer’s discriminatory practices not by “instigating” action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons. Cf. McDonnell, supra, at 262 (finding employee covered by Title VII of the Civil Rights Act of 1964 where his employer retaliated against him for failing to prevent his subordinate from filing an EEOC charge). There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.
Metro and its amici support the Circuit panel’s insistence on “active” and “consistent” opposition by arguing that the lower the bar for retaliation claims, the less likely it is that employers will look into what may be happening outside the executive suite. As they see it, if retaliation is an easy charge when things go bad for an employee who responded to enquiries, employers will avoid the headache by refusing to raise questions about possible discrimination.
The argument is unconvincing, for we think it underestimates the incentive to enquire that follows from our decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998). Ellerth and Faragher hold “[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with ... authority over the employee.” Ellerth, supra, at 765; Faragher, supra, at 807. Although there is no affirmative defense if the hostile environment “culminates in a tangible employment action” against the employee, Ellerth, 524 U. S., at 765, an employer does have a defense “[w]hen no tangible employment action is taken” if it “exercised reasonable care to prevent and correct promptly any” discriminatory conduct and “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise,” ibid. Employers are thus subject to a strong inducement to ferret out and put a stop to any discriminatory activity in their operations as a way to break the circuit of imputed liability. Ibid.; see also Brief for Petitioner 24-28, and nn. 31-35 (citing studies demonstrating that Ellerth and Faragher have prompted many employers to adopt or strengthen procedures for investigating, preventing, and correcting discriminatory conduct). The possibility that an employer might someday want to fire someone who might charge discrimination traceable to an internal investigation does not strike us as likely to diminish the attraction of an Ellerth-Faragher affirmative defense.
That aside, we find it hard to see why the Sixth Circuit’s rule would not itself largely undermine the Ellerth-Faragher scheme, along with the statute’s “‘primary objective’” of “avoiding] harm” to employees. Faragher, supra, at 806 (quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 417 (1975)). If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that “[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.” Brake, Retaliation, 90 Minn. L. Rev. 18, 20 (2005); see also id., at 37, and n. 58 (compiling studies). The appeals court’s rule would thus create a real dilemma for any knowledgeable employee in a hostile work environment if the boss took steps to assure a defense under our cases. If the employee reported discrimination in response to the enquiries, the employer might well be free to penalize her for speaking up. But if she kept quiet about the discrimination and later filed a Title VII claim, the employer might well escape liability, arguing that it “exercised reasonable care to prevent and correct [any discrimination] promptly” but “the plaintiff employee unreasonably failed to take advantage of . . . preventive or corrective opportunities provided by the employer.” Ellerth, supra, at 765. Nothing in the statute’s text or our precedent supports this catch-22.
Because Crawford’s conduct is covered by the opposition clause, we do not reach her argument that the Sixth Circuit misread the participation clause as well. But that does not mean the end of this case, for Metro’s motion for summary judgment raised several defenses to the retaliation charge besides the scope of the two clauses; the District Court never reached these others owing to its ruling on the elements of retaliation, and they remain open on remand.
Ill
The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Because this case arises out of the District Court’s grant of summary judgment for Metro, “we are required to view all facts and draw all reasonable inferences in favor of the nonmoving party, [Crawford].” Brosseau v. Haugen, 543 U. S. 194, 195, n. 2 (2004) (per curiam).
Metro suggests in passing that it was unclear whether Crawford actually opposed Hughes’s behavior because some of her defensive responses were “inappropriate,” such as telling Hughes to “bite me” and “flip[ping] him a bird.” Brief for Respondent 1-2 (internal quotation marks omitted). This argument fails not only because at the summary judgment stage we must “view all facts and draw all reasonable inferences in [Crawford’s] favor,” Brosseau, 543 U. S., at 195, n. 2, but also because Crawford gave no indication that Hughes’s gross clowning was anything but offensive to her.
Metro also argues that “[Requiring the employee to actually initiate a complaint. .. conforms with the employee’s ‘obligation of reasonable care to avoid harm’ articulated in Faragher and Ellerth.” Brief for Respondent 28 (quoting Faragher v. Boca Raton, 524 U. S. 775, 807 (1998)). But that mitigation requirement only applies to employees who are suffering discrimination and have the opportunity to fix it by “tak[ing] advantage of any preventive or corrective opportunities provided by the employer,” 524 U. S., at 807; it is based on the general principle “that a victim has a duty ‘to use such means as are reasonable under the circumstances to avoid or minimize . . . damages,’ ” id,., at 806 (quoting Ford Motor Co. v. EEOC, 458 U. S. 219, 231, n. 15 (1982)). We have never suggested that employees have a legal obligation to report discrimination against others to their employer on their own initiative, let alone lose statutory protection by failing to speak. Extending the mitigation requirement so far would make no sense; employees will often face retaliation not for opposing discrimination they themselves face, but for reporting discrimination suffered by others. Thus, they are not “victims” of anything until they are retaliated against, and it would be absurd to require them to “mitigate” damages they may be unaware they will suffer.
Question: 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_respond2_7_2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "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").
Alan F. McDONELL, M. Lee Curran; and Sally Phipps, Individually and on behalf of all others similarly situated, Appellees, v. Susan HUNTER; Jean Sebek; Russell Behrends and Harold Farrier, Appellants.
No. 85-1919.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 12, 1986.
Decided Jan. 12, 1987.
Rehearing and Rehearing En Banc Denied Feb. 24, 1987.
Mark Hunacek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.
Mark W. Bennett, Des Moines, Iowa, for appellees.
Before LAY, Chief Judge, and ROSS and WOLLMAN, Circuit Judges.
ROSS, Circuit Judge.
This is a class action challenging the constitutionality of an Iowa Department of Corrections policy under 42 U.S.C. § 1983. This policy subjects the correctional institution employees to searches of their vehicles and of their persons, including urine, blood, or breath testing, upon the request of Department officials. The named plaintiffs are Alan McDonell, Lee Curran, and Sally Phipps. The certified class consists of all individuals employed by the Iowa Department of Corrections at its various institutions who are covered by the Department’s search policy.
The district court enjoined Department of Corrections officials and their agents from enforcing this search policy except in certain limited circumstances, unless the search is based upon a reasonable suspicion. We affirm the district court’s order as herein modified.
I. Facts
Plaintiff McDonell was employed as a correctional officer first at the Men’s Reformatory at Anamosa (Anamosa) and later at another correctional institution. Plaintiffs Curran and Phipps, at all times material to this action, were employed at the Iowa Correctional Institution for Women at Mitchellville (Mitchellville).
Defendant Hunter is the Superintendent and chief executive officer of Mitchellville. Defendant Sebek is the Security Director of Mitchellville, and is responsible for the implementation and enforcement of the Department’s policy. Defendant Behrends is the Acting Deputy Warden of Anamosa, and is responsible for the implementation of the Department’s policy. Defendant Farrier is Director and chief administrative officer of the Iowa Department of Corrections, and is responsible for the supervision and operations of Anamosa, Mitchellville, and other correctional institutions.
When McDonell was employed at Anamosa in 1979, he signed a consent to search form. In January 1984 the supervisory personnel at Anamosa requested McDonell to undergo urinalysis because he had been seen with individuals who were being investigated for possible drug-related activities. McDonell refused and as a result his employment was terminated. Shortly thereafter he was reinstated with loss of ten days’ pay and was transferred to another institution.
In August of 1983, employees at Mitchellville were presented a search consent form to sign. Plaintiffs Curran and Phipps refused to sign. While there was disputed evidence that these employees were told that if they did not sign, they would not receive their paychecks, they did in fact receive paychecks and they have not been discharged or disciplined for refusing to sign.
Plaintiffs sought declaratory and injunctive relief on behalf of themselves and the class they represented, claiming the policy violates the fourth amendment to the United States Constitution and plaintiffs’ constitutional right to privacy.
A preliminary injunction was issued in February 1984. On appeal it was affirmed. McDonell v. Hunter, 746 F.2d 785, 787 (8th Cir.1984). In July 1985, the district court issued its final order 612 F.Supp. 1122. The district court held that searches of correctional employees, including urinalyses, and of their vehicles may be made only on the basis of reasonable suspicion, with certain specified exceptions. The district court found that the policy challenged here was designed to serve security requirements at the state’s correctional facilities, but that the employees had legitimate, although diminished, expectations of privacy while in the correctional institution. The court balanced the state’s interest in security against the infringement upon the individual employee’s right to privacy and determined that reasonable suspicion, rather than probable cause, was the appropriate standard for conducting strip searches and urinalyses of employees. The district court order allows vehicle searches within the confines of the institution to be conducted uniformly or by systematic random selection. Searches of employees’ vehicles within the institution’s confines, other than uniformly or by systematic random selection were permitted only on the basis of a reasonable suspicion.
II. Searches
The fourth amendment to the United States Constitution provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The basic purpose of the fourth amendment, which is enforceable against the states through the fourteenth amendment, New Jersey v. T.L.O., 469 U.S. 325, 334, 105 S.Ct. 733, 739-40, 83 L.Ed.2d 720 (1985), is “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 91967). The fourth amendment imposes a “standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). “The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). See also Illinois v. Lafayette, 462 U.S. 640, 644, 103 S.Ct. 2605, 2608, 77 L.Ed.2d 65 (1983); Delaware v. Prouse, supra, 440 U.S. at 654, 99 S.Ct. at 1396.
A. Strip Body Searches
Defendants argue that to maintain security and intercept contraband it is necessary that they be allowed to request strip searches of corrections officers based on mere suspicion. Defendants also argue that plaintiffs have no reasonable expectations of privacy within the institutions in light of their signing consent forms.
Correctional institutions are unique places “fraught with serious security dangers.” Bell v. Wolfish, supra, 441 U.S. at 559, 99 S.Ct. at 1884. Within the walls of the correctional institution, “a central objective of prison administrators is to safeguard institutional security.” Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982). To achieve this goal prison administrators have the responsibility “to intercept and exclude by all reasonable means all contraband smuggled into the facility.” Id.
In analyzing the intrusion on the individual’s fourth amendment interests, there must be a legitimate expectation of privacy. To determine if an individual’s expectation of privacy is legitimate, there must be both an actual subjective expectation and, even more importantly, Hudson v. Palmer, 468 U.S. 517, 525 n. 7, 104 S.Ct. 3194, 3199-3200 n. 7, 82 L.Ed.2d 393 (1984), that expectation must be one which society will accept as reasonable. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
While correction officers retain certain expectations of privacy, it is clear that, based upon their place of employment, their subjective expectations of privacy are diminished while they are within the confines of the prison. Security & Law Enforcement Employees, District Council 82 v. Carey, 737 F.2d 187, 202 (2d Cir.1984). We believe that society is prepared to accept this expectation of privacy as reasonable although diminished “in light of the difficult burdens of maintaining safety, order and security that our society imposes on those who staff our prisons.” Id.
The Supreme Court has held that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Katz, supra, 389 U.S. at 357, 88 S.Ct. at 514. Exceptions have been made “where a legitimate governmental purpose makes the intrusion into privacy reasonable.” Carey, supra, 737 F.2d at 203.
In light of the legitimate governmental interest in maintaining security at correctional institutions, it is our view, as it is that of the Second Circuit, that a reasonable suspicion standard should be adopted for strip searches of correction officers while working in correctional facilities. Id. at 204. As this court stated in Hunter v. Auger, supra, “[w]e believe that this standard is flexible enough to afford the full measure of fourth amendment protection without posing an insuperable barrier to the exercise of all search and seizure powers.” Hunter v. Auger, supra, 672 F.2d at 674.
A reasonable suspicion standard has been upheld as the appropriate standard for conducting body searches of (1) prison visitors: Thome v. Jones, 765 F.2d 1270, 1277 (5th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986); Hunter v. Auger, supra, 672 F.2d at 674; (2) persons at the country’s borders: United States v. Ogberaha, 771 F.2d 655, 658 (2d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 887, 88 L.Ed.2d 922 (1986); United States v. Asbury, 586 F.2d 973, 975-76 (2d Cir.1978); United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978); (3) arrestees: Jones v. Edwards, 770 F.2d 739, 741 (8th Cir.1985) (strip search conducted following arrest for animal leash law violation); Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir.1984), cert. denied, 471 U.S. 1053, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985) (strip search of one arrested for minor traffic offenses); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (strip search of women arrested for misdemeanor offenses, done while women were awaiting arrival of bail money); and (4) prison guards: Security & Law Enforcement Employees, District Council 82 v. Carey, supra, 737 F.2d at 203-04; accord Armstrong v. New York State Commissioner of Corrections, 545 F.Supp. 728, 731 (N.D.N.Y.1982) (requiring “articulable facts” supporting belief that employee was concealing contraband on his person; cf. Gettleman v. Werner, 377 F.Supp. 445, 452 (W.D.Pa.1974) (reasonable suspicion found, but a federal court should “be reluctant to intervene” in prison administration matters).
The reasonable suspicion standard requires officials to base strip searches on specific objective facts and rational inferences they are entitled to, draw from those facts in light of their experience. It requires individualized suspicion specifically directed to the person who is targeted for the strip search. Hunter v. Auger, supra, 672 F.2d at 674-75. Without reasonable, articulable grounds to suspect an individual employee of secreting contraband on his person, a strip search of that employee is unreasonable under the fourth amendment. We thus affirm the district court's order regarding strip searches of correctional facility employees.
B. Urinalysis
Urinalysis has been determined to be a search and seizure within the meaning of the fourth amendment. Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986); Jones v. McKenzie, 628 F.Supp. 1500, 1508-09 (D.D.C.1986); Allen v. City of Marietta, 601 F.Supp. 482, 488-89 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1217 (S.D.N.Y.1984); In re Patchogue-Medford Congress of Teachers v. Board of Education, 119 A.D.2d 35, 505 N.Y.S.2d 888, 889 (1986); City of Palm Bay v. Bauman, 475 So.2d 1322, 1325-27 (Fla.Dist.Ct.App.1985); cf. Everett v. Napper, 632 F.Supp. 1481, 1484 (N.D.Ga.1986) (no search occurred and there was no fourth amendment violation where employee refused to take urinalysis test). In addition, the Third Circuit has implicitly held that the fourth amendment applies to urinalysis. Shoemaker v. Handel, 795 F.2d 1136, 1142 (3d Cir.1986).
In Allen v. City of Marietta, supra, and Capua, supra, the courts compared urine testing to the involuntary taking of a blood sample. “Though urine, unlike blood, is routinely discharged from the body so that no actual [physical] intrusion is required for its collection,” both can be “analyzed in a medical laboratory to discover numerous physiological facts about the person from whom it came.” Capua, supra, 643 F.Supp. at 1513. The Supreme Court has held that the involuntary administration of a blood test “plainly involves” the fourth amendment, which provides that “ ‘the right of the people to be secure in their persons * * * shall not be violated.’ ” (Emphasis added). Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966) (quoting the fourth amendment in part). We agree with those courts which have held that urinalysis is a search and seizure within the meaning of the fourth amendment.
Having determined that urinalysis is a search and seizure, we look to a balancing of “the need to search against the invasion which the search entails.” Camara, supra, 387 U.S. at 537, 87 S.Ct. at 1735. Iowa Department of Corrections officials assert a strong need to see that prison guards are not working while under the influence of drugs or alcohol. Officials argue that prison security demands that those who have contact with inmates must be alert at all times. They also urge that the use of drugs by a correction officer is some positive indication that such officer may bring drugs into the prison for the use of the inmate.
Urinalysis properly administered is not as intrusive as a strip search or a blood test. While the prison officials have the same legitimate interest in maintaining prison security discussed supra, the infringement upon the privacy interest of correctional institution employees, already diminished, is lessened. Officials have a legitimate interest in assuring that the activities of those employees who come into daily contact with inmates are not inhibited by drugs or alcohol and are fully capable of performing their duties.
In Shoemaker v. Handel, supra, the Third Circuit upheld random selection by lot for urine testing of jockeys as well as daily breathalyzer testing. The court said the state had a “strong interest in assuring the public of the integrity of the persons engaged in the horse racing industry.” Shoemaker v. Handel, supra, 795 F.2d at 1142. In approving this administrative search exception to the warrant requirement, the court looked first to a strong state interest in conducting an unannounced search and second, to a reduction in the justifiable privacy expectation of the subject of the search. Id. We believe the state’s interest in safeguarding the security of its correctional institutions is at least as strong as its interest in safeguarding the integrity of, and the public confidence in, the horse racing industry. On December 1, 1986, the Supreme Court denied certiorari in this case, — U.S.-, 107 S.Ct. 577, 93 L.Ed.2d 580.
Warrantless searches of government employees have been found reasonable where the searches were directly relevant to the employee’s performance of his duties and the government’s performance of its duties. See United States v. Blok, 188 F.2d 1019, 1021 (D.C.Cir.1951); Allen v. City of Marietta, supra, 601 F.Supp. at 489-90, and cases cited therein. We agree with the Allen court that urinalyses are not unreasonable when conducted for the purpose of determining whether corrections employees are using or abusing drugs which would affect their ability to safely perform their work within the prison, “a unique place fraught with serious security dangers.” Bell v. Wolfish, supra,- 441 U.S. at 559, 99 S.Ct. at 1884. In our opinion the use of drugs by employees who come into contact with the inmates in medium or maximum security facilities on a regular day-to-day basis poses a real threat to the security of the prison. The only way this can be controlled in a satisfactory manner is to permit limited uniform and random testing. The least intrusive method of doing so is through use of urinalyses. In our opinion it is also logical to assume that employees who use the drugs, and who come into regular contact with the prisoners, are more likely to supply drugs to the inmates, although the trial court did not agree with this observation.
Because the institutional interest in prison security is a central one, because urinalyses are not nearly so intrusive as body searches, Shoemaker v. Handel, 608 F.Supp. 1151, 1158 (D.C.N.J.1985), aff'd, 795 F.2d 1136 (3d Cir.1986), and because this limited intrusion into the guards’ expectation of privacy is, we believe, one which society will accept as reasonable, we modify the district court’s order and hold that urinalyses may be performed uniformly or by systematic random selection of those employees who have regular contact with the prisoners on a day-to-day basis in medium or maximum security prisons. Selection must not be arbitrary or discriminatory.
Urinalysis testing within the institution’s confines, other than uniformly or by systematic random selection of those employees so designated, may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience that the employee is then under the influence of drugs or alcohol or that the employee has used a controlled substance within the twenty-four hour period prior to the required test. The demand for a urine, blood, or breath specimen should be made only on the express authority of the highest officer present in the institution, and the specific, objective facts should be disclosed to the employee at the time the demand is made. Strict guidelines should be established and followed to assure confidentiality of the results of urinalysis testing. Whether the testing is on the limited random basis approved above or on the basis of reasonable suspicion, the equipment and procedure to be used must provide sufficient guarantees of trustworthiness to permit the authorities to accurately determine the presence or absence of both drugs and alcohol in the urine. The equipment and procedure to be used shall conform to those described and approved by this court in Spence v. Farrier, 807 F.2d 753 (8th Cir.1986).
The trial court limited the right to test on reasonable suspicion to those employees who are “then under the influence of alcoholic beverages or controlled substances.” We do not agree with this limitation and hold that urinalyses testing should also be permitted where there is a reasonable suspicion (as defined herein) that controlled substances have been used within the twenty-four hour period prior to the required test.
There was evidence that employees may have been asked to strip before giving a urine specimen, and there was some evidence submitted as to the reason for this requirement but it was not conclusive. We hold that the search policy should not require an employee to strip in connection with giving a urine or blood specimen. Other less intrusive measures can be taken to insure the validity of the specimen. We affirm the district court’s order as to urine, blood, or breath specimens with the modifications set forth above.
C. Vehicle Searches
The motor vehicle parking lot for employees at Mitchellville is within the area where inmates are confined. The parking lots at other correctional facilities are on property outside the area within which inmates are confined. Defendants argue that they have a significant interest in assuring that inmates do not have access to contraband hidden in vehicles.
The search of a vehicle is much less intrusive than a search of one’s person. Almeida-Sanchez v. United States, 413 U.S. 266, 279, 93 S.Ct. 2535, 2542-43, 37 L.Ed.2d 596 (1973) (Powell, J., concurring). Cases involving vehicle searches have recognized that an individual’s expectation of privacy in his vehicle is less than in other property. United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); United States v. Michael, 645 F.2d 252, 257 (5th Cir.) (en banc), cert. denied, 454 U.S. 950, 102 S.Ct. 489, 70 L.Ed.2d 257 (1981). Likewise, any expecta tion of privacy as to packages or containers within a vehicle is diminished. See United States v. Ross, 456 U.S. 798, 820 n. 26, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572 (1982). By the same balancing of individual rights against the interests of the correctional institution in maintaining security, we find that it is not unreasonable to search vehicles that are parked within the institution’s confines where they are accessible to inmates. Such searches may be conducted without cause but must be done uniformly or by systematic random selection of employees whose vehicles are to be searched. It also is not unreasonable to search on a random basis, as described supra, employees’ vehicles parked outside the institution’s confines if it can be shown that inmates have unsupervised access to those vehicles. Any other vehicle search may be made only on the basis of a reasonable suspicion, based on specific objective facts and reasonable inferences drawn from those facts in light of experience, that the vehicle to be searched contains contraband. We believe this is reasonable in light of Hudson v. Palmer, supra, in which the Supreme Court granted prison officials “unfettered access” to prisoners’ cells as places where inmates can conceal contraband. Hudson v. Palmer, supra, 468 U.S. at 527, 104 S.Ct. at 3200. We affirm the district court’s order as to vehicle searches with the above modifications.
III. Consent Forms
Defendants argue that employees who signed consent forms have no legitimate expectation of privacy on correctional institution property.
If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968); Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1926). Armstrong v. New York State Commissioner of Corrections, supra, 545 F.Supp. at 731. A legal search conducted pursuant to voluntary consent is not unreasonable and does not violate the fourth amendment. Consent must be given voluntarily and without coercion determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973); United States v. Oyekan, 786 F.2d 832, 838 (8th Cir.1986). The district court here specifically made no finding as to the voluntariness of the signing of the consent forms. The district court did hold that “[ajdvance consent to future unreasonable searches is not a reasonable condition of employment.” McDonell v. Hunter, 612 F.Supp. 1122, 1131 (S.D.Ia.1985). We agree. The state may only use a consent form which delineates the rights of the employees consistent with the views of this opinion and which does not require the waiver of any of those rights.
For the above reasons, the district court’s order is affirmed as modified.
. The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.
. The policy in effect at the time of the district court's order is attached as Appendix A. The revised policy is attached as Appendix B.
. A copy of this form is attached to this opinion as Appendix C.
. A copy of this form is attached to this opinion as Appendix D.
. The district court found that there were approximately 1750 correctional institution employees of the Department who are within the certified class.
. The district court noted that, although the Department's policy as written did not expressly mention submission of blood, urine and breath samples, there was no dispute that the policy was considered to include submission of such samples. The revised version of the Department's policy does mention urinalysis and blood tests.
. The text of the district court’s order entered July 9, 1985, is included as Appendix E to this opinion.
. In describing constitutionally protected privacy interests, the Supreme Court uses the words "reasonable" and "legitimate" interchangeably. California v. Ciraolo, — U.S. -, -, 106 S.Ct. 1809, 1816 n. 4, 90 L.Ed.2d 210 (1986).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_genresp2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Alexander McDONALD, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellee, and Bethlehem Steel Company, Impleaded Respondent-Appellee.
No. 14086.
United States Court of Appeals Third Circuit.
Argued Feb. 5, 1963.
Decided Aug. 1, 1963.
Seymour Margulies, Jersey City, N. J. (Herbert Winokur, Levy, Lemken & Margulies, Jersey City, N. J., on the brief), for libelant-appellant.
M. E. DeOrehis, New York City (Connell & Corridon, Jersey City, N. J., Haight, Gardner, Poor & Havens, Stephen K. Carr, New York City, on the brief), for respondent-appellee.
John F. Lynch, Jersey City, N. J. (O’Mara, Schumann, Davis & Lynch, James Dorment, Jr., Jersey City, N. J., on the brief), for impleaded respondent-appellee, Bethlehem Steel Co.
Before KALODNER, STALEY and SMITH, Circuit Judges.
WILLIAM F. SMITH, Circuit Judge.
This suit in admiralty for personal injuries was brought against the United States of America under the Public-Vessels Act, 46 U.S.C.A. §§ 781-790, and against the American Export Lines under 28 U.S.C.A. § 1333(1). The alleged grounds of liability were breach of warranty of seaworthiness, and negligence. The suit against Export Lines was dismissed before answer filed, on consent of the libelant. The remaining respondent impleaded the Bethlehem Steel Company, the libelant’s employer. The present appeal is from a final decree dismissing the. libel and the impleading petition.
The libelant, an employee of Bethlehem Steel, was injured on April 1, 1959, while, employed as a painter on the S.S. Exochorda. This vessel was formerly owned by Export Lines and had been out of service for approximately one-year. It was acquired by the United States on March 16, 1959, under a contract, pursuant to the terms of which Export Lines, as General Agent, was required to have the vessel completely overhauled, put in a state of repair, and deactivated, preparatory to its being-placed in the reserve fleet, commonly known as the “moth ball” fleet. This, extensive work was to be done in accordance with NSA Order No. 64 (OPR-4Revised) and specifications prepared by-Export Lines. The contract for the work, was awarded to Bethlehem Steel,
The vessel was towed to the shipyard’ of Bethlehem Steel without steam or-power, and without a crew. It was delivered at the shipyard on March 16, and' on the following day was placed in dry-dock, where it remained until March 20, when it was refloated and moored at. pier side, where it remained until shortly - after noon on April 1, the date of the-accident. The work on the vessel was.. performed during the period from March. 17 until April 1, inclusive, during which time the vessel was in the exclusive;possession and control of Bethlehem Steel.
While the work was in progress there were several crew members, employed by Export Lines, on board from day to day, but their only responsibility was to inspect the work and to see that it was performed in accordance with the specifications; they exercised no control over the work or the manner of its performance. Export Lines also maintained an hourly security watch to protect the gear and equipment of the vessel against pilferage.
The accident occurred approximately four to five hours before the S.S. Exochorda was to be redelivered to Export Lines. The necessary repairs were near completion and the vessel had been completely deactivated. The trial judge found: “ * * * the vessel’s stern tube was disconnected and filled with preservative; her tail shaft was secured to prevent the turning of the propeller; her sea chests and all underwater overboard discharge lines were permanently blocked off; one shot of chain was disconnected from both the port and starboard anchor chains; the shaft alley drain well was cleaned out; the ship’s gangways were stowed in a lower hold; life boats were removed and stowed in a lower hold; the radar scanner was dismantled, and all storage lockers were permanently sealed off.” These findings are amply supported by the evidence.
It was on the basis of the facts herein-above outlined that the trial judge con•cluded that the S.S. Exochorda had been deactivated and withdrawn from navigation and that under the circumstances there was no implied warranty of seaworthiness. It is argued on behalf of the libelant that this conclusion was •erroneous. The argument is without .merit.
Claim Based on Warranty op Seaworthiness
We recognize at the outset, as we must, that under the implied warranty of seaworthiness the shipowner is under a duty to maintain the vessel, its gear and appurtenances, reasonably safe and suitable for the purposes intended. This duty, which is absolute and nondelegable, is owed not only to the members of the crew but also to the shore based employees of an independent contractor engaged aboard ship in work customarily performed by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). However, it has been authoritatively settled, if it was ever in doubt, that the implied warranty may not be invoked as a basis of liability where the vessel has been withdrawn from navigation and is undergoing extensive renovation and repairs. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Latus v. United States, 277 F.2d 264 (2d Cir., 1960), cert. den. 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960). It has been held that in these circumstances there is no warranty of seaworthiness. Ibid.
It is argued on behalf of the libelant that the cited cases are distinguishable because of their “converse fact situation [s].” The vessels involved in each of the cited cases had been withdrawn from the “moth ball” fleet and, at the time of the accidents in which the workmen were injured, were undergoing extensive repairs preparatory to their reactivation and return to maritime service. We fail to perceive any validity in this attempted distinction. The rule of the WEST case was applied in Noel v. Isbrandtsen Company, 287 F.2d 783 (4th Cir., 1961), cert. den. 366 U.S. 975, 81 S.Ct. 1944, 6 L.Ed.2d 1264 (1961), a case in which a workman sustained injury while the vessel was undergoing repairs and deactivation, as in the present case. The libelant’s argument, and the reasons advanced in support of it, are clearly without merit.
We should emphasize that the decision of the Supreme Court in the WEST case was predicated not only on the fact that the vessel had been withdrawn from maritime service but also on the further fact that it was “undergoing major repairs and complete renovation” at the time the workman sustained injury. Therein the Court stated, 361 U.S. at page 122, 80 S.Ct. at page 192, 4 L.Ed.2d 161: “This undertaking was not ‘ship’s work’ but a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to a ship repair contractor and docked at its pier for the sole purpose of making her seaworthy. It would be an unfair contradiction to say that the owner held the vessel out as seaworthy in such a case.” The rule of the case must be applied where, as here, the vessel has been withdrawn from maritime service and is undergoing extensive overhaul and repair preparatory to its deactivation. Noel v. Isbrandtsen Company, supra.
The shipowner’s liability under the warranty of seaworthiness is dependent upon not only the specific task being performed by the workman at the time of injury but also the nature and scope of the work in which he and other shore based employee’s are engaged. West v. United States, supra; United N. Y. & N. J. Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Desper v. Starved Rock Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205 (1952); Berryhill v. Pacific Far East Line, 238 F.2d 385 (9th Cir., 1956), cert. den. 354 U.S. 938, 77 S.Ct. 1400, 1 L.Ed.2d 1537; Raidy v. United States, D.C., 153 F.Supp. 777, affd. 252 F.2d 117 (4th Cir., 1958), cert. den. 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958). See also Latus v. United States, supra. The warranty of seaworthiness does not extend to a shore based employee who, at the time of injury, was engaged with others in the general overhaul and renovation of a vessel temporarily withdrawn from maritime service. Such work is customarily performed in a shipyard equipped for the purpose, and is not work traditionally performed by seamen. Ibid.
Claim Based on Negligence
The libelant charges that the respondent was negligent in that it failed to exercise reasonable care to furnish him with a safe place to work. The trial judge concluded, on findings of fact supported by substantial evidence, that the respondent owed no duty to the libelant. This conclusion is challenged as erroneous.
The accident occurred on the morning of April 1, shortly after 7:30 A.M., while the S.S. Exochorda was still in the possession and control of Bethlehem Steel. The libelant and another workman, accompanied by their foreman, descended from the main deck to the ’tween deck, where they made an inspection of painting work which had been completed in the laundry on the previous day. Then, intending to return to the main deck by way of a ladder located in a cargo hold, they walked along a lighted passageway into the hold, which was in semidarkness, the portable lights having been removed the previous day. As the libelant proceeded across a hatch cover, he fell through an opening which had been created by the removal of two boards. There was some conflict in the testimony as to who had removed the boards. However, the trial judge found that the boards had been removed during the night prior to the accident by employees of Bethlehem Steel on the orders of a job supervisor.
The shipowner in possession and control owes a duty of reasonable care to workmen who come aboard the vessel to make repairs. The duty is to exercise reasonable care to furnish the workmen with a safe place to work. Mesle v. Kea Steamship Corporation, 260 F.2d 747 (3rd Cir., 1958), cert. den. 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959); Brabazon v. Belships Co., 202 F.2d 904 (3rd Cir., 1953). However, the test of the shipowner’s responsibility is possession and control. Where, as here, possession and control of the vessel are relinquished to an independent contractor, the shipowner owes no duty to the contractor’s employees. West v. United States, and Latus v. United States, supra. It was said by the Supreme Court in the WEST case, 361 U.S. at page 123, 80 S.Ct. at page 193, 4 L.Ed.2d 161: “It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe.”
The libelant argues that possession and control of the S.S. Exochorda was retained by the respondent. The trial court found otherwise, and this finding, supported as it was by substantial evidence, cannot be held “clearly erroneous” under the rule of McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). The libelant’s argument rests on a rather tenuous factual basis which does not warrant discussion.
Exclusion of Deposition
At the conclusion of the respondent’s case the libelant offered in evidence, by way of rebuttal, portions of a deposition. This deposition was that of a mate employed aboard the S.S. Exochorda while the work of renovation and deactivation was in progress. The offer of proof was rejected, and thereupon the libelant withdrew the deposition and did not make it a part of the record. It has been established that under these circumstances we are not required to consider the assignment of error predicated on the exclusion of the deposition. Palmer v. Hoffman, 318 U.S. 109, 116, 63 S.Ct. 477, 87 L.Ed. 645 (1943). We have nevertheless considered the question raised on the merits.
The mate was in attendance throughout the trial but was not called as a witness by either party. However, the libelant argues that the deposition was that of a “managing agent,” and was therefore admissible under Rule 30A(d) (2) of the Rules of Practice in Admiralty and Maritime Cases, as amended, 28 U.S.C.A. We do not agree. The mate was not per se a “managing agent” within the meaning of the rule. The admission of his deposition would have been error. Naylor v. Isthmian S.S. Co., 187 F.2d 538, 540 (2d Cir., 1951); see also Santiago v. American Export Lines, Inc., 30 F.R.D. 372 (S.D.N.Y.1962). It appears from the undisputed testimony in the record that the position of the mate was that of an inferior officer who had no supervisory authority and acted under the supervision and direction of his superior, a port engineer in the employ of Export Lines. It is clear that under these circumstances it cannot be held that the mate was a “managing agent.” Ibid.
The judgment of the District Court will be affirmed.
. 32(a) C.F.R. 317, et seq. (1958 Revision).
. Ibid.
. Work in the hold had been completed on. March 31, and after its completion the portable lights were removed and the main hatch was covered by the employees of Bethlehem Steel.
. The brief of the appellant incorrectly cites as authority the Federal Rules of Civil Procedure.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_counsel1
|
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.
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
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL NO. 825, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Respondent, Burns and Roe, Inc., and White Construction Company, Intervenors.
No. 17180.
United States Court of Appeals Third Circuit.
Argued Dec. 5, 1968.
Decided April 25, 1969.
Fred R. Kimmel, N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Daniel H. Jacoby, Attys., N. L. R. B., on the brief), for petitioner.
Earl S. Aronson, Newark, N. J. (Thomas E. Durkin, Jr., Newark, N. J., on the brief), for respondent.
Vincent J. Apruzzese, Apruzzese & McDermott, Newark, N. J., for inter-venors.
Before HASTIE, Chief Judge, and KALODNER, Circuit Judge.
OPINION OF THE COURT
HASTIE, Chief Judge.
This case is before us on a petition of the National Labor Relations Board for enforcement of a cease and desist order based upon the Board’s finding that the respondent, Local 825, International Union of Operating Engineers, violated section 8(b) (4) (D) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4) (D), by coercing White Construction Co., an employer, with the object of compelling White to assign the starting and stopping of an electric welding machine to operating engineers represented by Local 825 rather than to the iron-workers who used the machine and were represented by Ironworkers Local 350. The Board also found that in connection with the same controversy Local 825 had violated section 8(b) (4) (B) of the Act by conduct in the nature of a secondary boycott against other employers in an effort to - compel them to cease doing business with White. This conduct also was interdicted by the cease and desist order.
The Board’s factual findings relevant to the alleged section 8(b) (4) (D) violation are adequately supported by the record. It appears that White undertook as a subcontractor to construct the reactor building for a projected nuclear power plant. In the course of the job White assigned to its ironworker employees the work of starting and stopping an electric welding machine that they used in welding structural steel. At that time White had no contract with Local 825 though White’s work force included two members of that union, an engineer and an oiler wlm operated a crane.
At this juncture a representative of Local 825 demanded that White employ a member of that Union to push the buttons that started and stopped the welding machine. When White failed to comply and to sign an agreement giving Local 825 jurisdiction that would include electric welding machines, the crane engineer and oiler stopped work for one day. More prolonged work stoppages by the engineers occurred during the ensuing weeks. The Board found the union responsible for these work stoppages and the record fully supports that conclusion.
Both Local 825 and the Ironworkers’ Union were obligated by contract with the Building Trades Employers’ Association to recognize the jurisdiction of the National Joint Board for the Settlement of Jurisdictional Disputes and “to be bound by all decisions and awards” made by that body in exercise of its agreed jurisdiction. Accordingly, the matter of the work claimed by Local 825 in connection with the use of electric welding equipment was referred to the Joint Board. That Board issued an award confirming White’s assignment of the work in question to the ironworkers.
Although in its answer to the complaint in this case Local 825 admitted that it was bound, as its contract with the Employers’ Association provided, by the award of the Joint Board, it refused to respect the award when it was made. Rather, it persisted in its demand that the disputed work be assigned to operating engineers and in its coercive tactics to enforce that demand. This unfair labor practice proceeding followed.
The union asserts two principal defenses; first, that there was no such claim by the ironworkers to the work in question as would create a jurisdictional dispute; and second, that the present unfair labor practice decision is invalid because it was not preceded by and grounded upon a Board award of the claimed work to a particular craft in a section 10 (k) proceeding, 29 U.S.C. § 160(k).
The contention that there were no conflicting claims creating a jurisdictional dispute is without merit. The employer’s original assignment of iron-workers to start and stop the electric welding machines they were to use may well have been made routinely without any demand by those employees or their union. However, they did accept this work as an incident of their job. This entire dispute grows out of that work assignment and its acceptance.
More important, the Ironworkers Union and the Union of Operating Engineers were opposing parties in the ensuing proceeding before the Joint Board to determine which craft should perform the work in question. The Iron-workers prevailed, thereby establishing their right to the work under the procedure agreed to by all of the parties. Thereafter, ironworkers performed the work as a matter of established right. And they have not disclaimed that right. In these circumstances, it is specious to argue that the persisting demand of the ■operating engineers that the work be assigned to them does not create a jurisdictional dispute. Cf. N. L. R. B. v. Local 1291, International Longshoremen’s Ass’n, 3d Cir. 1966, 368 F.2d 107; N. L. R. B. v. Local 25, International Brotherhood of Electrical Workers, 2d Cir. 1967, 383 F.2d 449. “The fact that one union has the jobs and holds on to them in a polite, non-belligerent manner while the other union uses the forbidden tactics in an effort to get them, or some of them, does not mean that what Congress regarded as the evils of a jurisdictional dispute are not present.” International Brotherhood of Carpenters v. C. J. Montag & Sons, Inc., 9th Cir. 1964, 335 F.2d 216, 221.
The respondent’s second contention is that this unfair labor practice proceeding is premature because the Board did not first utilize a proceeding under section 10 (k) of the Act to make a decisive award of the work to one craft or the other.
In most cases a Board award under section 10 (k) and a refusal to abide by that award must precede an unfair labor practice proceeding based on a jurisdictional dispute. N. L. R. B. v. Radio and Television Broadcast Engineers, Local 1212 (C.B.S.), 1961, 364 U.S. 573, 81 S.Ct. 330, 5 L.Ed.2d 302; N. L. R. B. v. United Ass’n of Journeymen, 3d Cir. 1957, 242 F.2d 722. However, we agree with the Board that in the circumstances of this case a section 10 (k) proceeding was not necessary. That section reads as follows :
“Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of Section 8(b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.”
It will be observed that the statute expressly provides for the discontinuance of a section 10 (k) proceeding where the parties show that they have “agreed upon methods for the voluntary adjustment of the dispute”. The present parties had agreed in advance upon a method of voluntary adjustment and did in fact utilize that method in this case. We cannot believe that Congress intended to require a section 10 (k) proceeding after a binding voluntary settlement of a dispute when the legislative scheme provides for the discontinuance of a section 10 (k) proceeding if such an adjustment shall occur during its pendency. Wood, Wire and Metal Lathers Union (Acoustical Contractors), 1958, 119 N.L.R.B. 1345, cited with approval, Carey v. Westinghouse Electric Corp., 1964, 375 U.S. 261, 264 n. 4, 84 S.Ct. 401, 11 L.Ed.2d 320. Indeed, in the present circumstances a section 10 (k) proceeding would be a pointless formality. For having agreed to the settlement of jurisdictional disputes by the Joint Board and having experienced an adverse ruling in this case, Local 825 is in no position to challenge the merits of that ruling before another tribunal. Cf. Electrical Workers Local 26 (McCloskey & Co.), 1964, 147 N.L.R.B. 1498.
Accordingly, we conclude that a violation of section 8(b) (4) (D) has been properly established.
Different issues arise under the charge of secondary boycott in violation of section 8(b) (4) (B). This charge involves contractors additional to White. Burns & Roe, Inc., was the general contractor for the entire nuclear power plant project. It subcontracted all of the construction work and thus had no construction employees. Chicago Bridge & Iron Co. and Poirier & McLane Corp., as well as White, were subcontractors working at the project site. The Board’s conclusion that section 8(b) (4) (B) had been violated was based on findings that the respondent had coerced Burns and its subcontractors other than White in an effort to force Burns to “cease doing business” with White.
The record amply justifies the conclusion that these contractors were subjected to coercion in the form of threats or walkouts, or both. The debatable issue is whether the object of this coercion was to force Burns to “cease doing business” with White within the meaning of section 8(b) (4) (B).
It was not the Board’s theory, nor does it seem seriously to be contended that the respondent sought to compel Burns to stop using the services of White or to terminate its contract with White. Indeed, such action would not have been advantageous to the respondent. Rather, it is said that the respondent undertook to “disrupt the business relation” between Burns and White so that the contractor would try to induce the subcontractor to comply with the respondent’s demands. The question is whether conduct so intended seeks to compel the one contractor to “cease doing business” with the other within the meaning of section 8(b) (4) (B).
We considered a similar situation in N. L. R. B. v. Local 825, International Union of Operating Engineers, 3d Cir. 1964, 326 F.2d 218, and concluded that the finding of a “cease doing business” objective was not warranted. It is now urged that this case is distinguishable from that one because in the earlier case the work stoppages, though to the neutral employer’s detriment, were not attended by any communication of the union with that employer. However, the disruption of the neutral employer’s business activity in connection with the primary employer and the objective of exerting pressure upon the primary employer through the neutral one was essentially the same there as here. Indeed, we quoted but did not approve the Board’s finding:
<«* * Even, assuming, arguen-do, that Respondent merely intended by its strike to force Selby and Elm-hurst to require Nichols to change its method of operation, this in itself would have disrupted or seriously curtailed the existing business relationship between Nichols and these two other contractors, which would have been tantamount to causing the latter employers to cease doing business with Nichols.” ’ 326 F.2d at 220.
Moreover, in neither case did the union admit a “cease doing business” objective but rather in both cases the circumstances compelled the inference that the union wanted the contractor to use its influence with the subcontractor to change the subcontractor’s conduct, not to terminate their relationship.
Accordingly, following our earlier decision, we hold that proof of coercive activity amounting to “disruption of a business relationship” and aimed at causing a neutral employer to put pressure on the primary employer is insufficient, without more, to establish an effort to compel the one employer to “cease doing business” with the other. The language of section 8(b) (4) (B) is apt to prohibit the classical secondary boycott where the attempt is made to coerce the primary employer by compelling others to stop trading or otherwise dealing with him. But we think the “cease doing business” language is not apt to cover the objective proved here, however objectionable or deserving of condemnation it may be. But cf. N. L. R. B. v. Carpenters District Council of New Orleans and Vicinity, AFL-CIO, 5th Cir., 407 F.2d 804, decided February 19, 1969. We think it is for Congress to broaden the language of section 8(b) (4) (B) if it desires to cover such situations as this.
Finally, we consider objections of the respondent to the breadth of the Board’s cease and desist order.
Paragraph 1(a) of the order restrains violations of section 8(b) (4) (B). That subparagraph will not be enforced because no violation of section 8(b) (4) (B) has been established.
An understanding of the controversy concerning the reach of paragraph 1(b) of the order requires quotation of that subparagraph in full. It prohibits the respondent from
“(b) Engaging in, or inducing or encouraging any individual employed by White Construction Company, Chicago Bridge & Iron Co., Poirier & McLane Corporation, or any other person engaged in commerce or an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to perform any services; or threatening, coercing, or restraining White Construction Company, Chicago Bridge & Iron Co., Poirier & McLane Corporation, Burns & Roe, Inc., or any other person, where, in either case, an object thereof is to force or require White Construction Company, or any other person engaged on the Oyster Creek, New Jersey, project, to assign any work to employees who are represented by the Respondent, rather than to employees who are represented by another labor organization, except insofar as any such action is permitted under Section 8(b) (4) (D) of the Act.”
We read this language as covering any jurisdictional dispute which may arise in connection with the performance of any contract or subcontract on the present nuclear power plant project, so long as the Board has not determined that members of a particular union craft are entitled to the work in question. To enforce this order would mean that, in any such case, the respondent would be guilty of contempt if by any coercive means it should seek a resolution of a jurisdictional dispute in its favor. The vice of this, the respondent argues, is that the union is forced to accept whatever work assignment the employer may make. For, under the scheme of the Act, the Board will not entertain a section 10 (k) proceeding to resolve a jurisdictional dispute unless it has reason to believe that a union is engaging in the very kind of activity which under the Board’s order would be contempt of court. See Local 478, International Union of Operating Engineers, 1968, 172 N.L.R.B. No. 221.
We think the union’s argument, whatever validity it might have in some cases, overlooks an important circumstance in this case. The contractors and the labor organizations in the building trades involved in this project have voluntarily agreed to the adjustment and resolution of jurisdictional disputes through resort to and decision by the Joint Board. Just as a contractor took the present dispute to the Joint Board, the respondent is free to take any similar future dispute concerning the assignment of work on the project to the Joint Board. The proposed decree would not in any way interfere with the utilization of that agreed method of settling jurisdictional disputes. Only if any employer should refuse to comply with a Joint Board award might the proposed order’s prohibition of coercive action unfairly restrain the respondent. Accordingly, we think appropriate language should be added at the end of the order to except from its prohibition coercive action aimed at enforcement of a Joint Board decision. Cf. Local 26, International Fur Workers, (Winslow Bro. & Smith Co.), 1950, 90 N.L.R.B. 1379. But, with that minor modification, we conclude that paragraph 1(b) of the Board’s order does not overstep that broad administrative discretion in fashioning appropriate remedies which we have repeatedly recognized. E. g. N. L. R. B. v. Local 542, International Union of Operating Engineers, 3d Cir. 1964, 329 F.2d 512; N. L. R. B. v. Highway Truck Drivers and Helpers, Local No. 107, 3d Cir. 1962, 300 F.2d 317. In reaching this conclusion we have considered the respondent’s persistent disposition to violate the provisions of section 8(b) (4) as demonstrated by the numerous cases in which this court has found it necessary to enforce Board orders against it and at least two cases in which we have found it necessary to invoke our contempt power to obtain the respondent’s compliance with our orders.
The order of the Board, modified and restricted in accordance with this opinion, will be affirmed.
. Whether this contention should fail here because it was not advanced before the Board, we do not decide.
. In an effort to avoid this conclusion the respondent has cited cases in -which a section 10 (k) hearing has been required after some third party has decided that one union rather than the other should be assigned the disputed work. B. g., International Union of Operating Engineers, Local 520 (Biebel Bros.), 1968, 170 N.L. R.B. No. 38; Plasterers Local Union 79, 1967, 167 N.L.R.B. No. 23; Albany Printing Pressmen, 1967, 166 N.L.R.B. No. 71; United Industrial Workers, Seafarers (Albin Stevedore Co.), 1967, 162 N.L.R.B. No. 96. But in none of these cases was the decision of the third parties one by which the parties were bound, whether by contractual agreement or otherwise.
. E. g., N.L.R.B. v. Weber, 3d Cir. 1967, 382 F.2d 387; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1964, 326 F.2d 213; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1963, 322 F.2d 478; N.L.R.B. v. Local 825, I.U.O.E., 3d Cir. 1963, 315 F.2d 695.
In addition, this court has found it necessary in one case to adjudge Local 825 in contempt for refusal to comply with our decree enforcing a Board order. N.L.R.B. v. Local 825, No. 14,331 Order of June 18, 1964. A second such proceeding is pending at Nos. 17,091 and 17,092.
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:
|
sc_declarationuncon
|
B
|
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.
NATIONAL LEAGUE OF CITIES et al. v. USERY, SECRETARY OF LABOR
No. 74-878.
Argued April 16, 1975
Reargued March 2, 1976
Decided June 24, 1976
RehNquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, and Powell, JJ., joined. BlackmuN, J., filed a concurring opinion, post, p. 856. BreNNAn, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 856. SteveNS, J., filed a dissenting opinion, post, p. 880.
Charles S. Rhyne and Calvin L. Rampton argued the cause for appellants in both cases on reargument. Mr. Rhyne argued the cause for appellants in No. 74 — 878, and Talmadge R. Jones, Deputy Attorney General of California, argued the cause for appellant in No. 74^879 on the original argument. With Mr. Rhyne on the briefs in the original argument were Milton H. Sitton, Alan Davidson, Richard Oebelein, State Solicitor of Delaware, and the Attorneys General for their respective States as follows: Bruce E. Babbitt of Arizona, Theodore L. Sendak of Indiana, Richard C. Turner of Iowa, Francis B. Burch of Maryland, Francis X. Bellotti of Massachusetts, A. F. Summer of Mississippi, John C. Danforth of Missouri, Robert L. Woodahl of Montana, Paul L. Douglas of Nebraska, Robert List of Nevada, Warren B. Rudman of New Hampshire, Larry D. Derryberry of Oklahoma, R. Lee Johnson of Oregon, Daniel R. McLeod of South Carolina, William Janklow■ of South Dakota, John L. Hill of Texas, Vernon B. Romney of Utah, and David B. Kennedy of Wyoming. With Mr. Jones on the brief in the original argument were Evelle J. Younger, Attorney General of California, and Willard A. Shank, Assistant Attorney General. With Mr. Rhyne on the brief on reargument in both cases were all of the above-named counsel. Francis B. Burch, Attorney General of Maryland, Henry R. Lord, Deputy Attorney General, and Glenn E. Bushel, Assistant Attorney General, filed a brief for appellant in No. 74A878.
Solicitor General Bork reargued the cause for appel-lee in both cases. With him on the briefs on reargument was Jacob I. Karro. With him on the brief on the original argument were Allan Abbot Tuttle and Mr. Karro.
Together with No. 74-879, California v. Usery, Secretary of Labor, also on appeal from the same court.
Briefs of amici curiae urging reversal were filed by Andrew P. Miller, Attorney General of Virginia./ Anthony F. Troy, Deputy Attorney General, D. Patrick Lacy, Jr., Assistant Attorney General, Louis J. Lefkowitz, Attorney General of New York, and C. Flippo Hicks for the Commonwealth of Virginia et al.; by Aloysius J. Suchy, P. Eugene Price, Jr., William F. Edwards, Norman A. Palermo, F. Lee Ruck, and David E. Engdahl for the National Association of Counties et al.; and by Eugene N. Collins, Conard B. Mattox, Jr., Thomas Emmet Walsh, Henry W. Underhill, Jr., N. Alex Bickley, Samuel Gorlick, Aaron A. Wilson, John Dekker, James B. Brennan, W. Bernard Richland, William R. Quinlan, S. G. Johndroe, Jr., J. LaMar Shelley, and Robert G. Dixon, Jr., for the National Institute of Municipal Law Officers; and by Sylvester Petro for the Public Service Research Council.
Briefs of amici curiae urging affirmance were filed by William J. Baxley, Attorney General of Alabama, John D. MacFarlane, Attorney General of Colorado, Frank J. Kelley, Attorney General of Michigan, and Warren R. Spannous, Attorney General of Minnesota, for the State of Alabama et al.; by Robert E. Nagle for Harrison A. Williams, Jr., et al.; by J. Albert Woll, Laurence Gold, Robert H. Chanin, and George Kaufmann for the American Federation of Labor and Congress of Industrial Organizations; by Mr. Kaufmann for the Coalition of American Public Employees; by Jerome K. Tankel for the International Conference of Police Assns.; and by Harry Lewis Michaels for the Florida Police Benevolent Assn.
Mr. Justice Rebcnquist
delivered the opinion of the Court.
Nearly 40 years ago Congress enacted the Fair Labor Standards Act, and required employers covered by the Act to pay their employees a minimum hourly wage and to pay them at one and one-half times their regular rate of pay for hours worked in excess of 40 during a workweek. By this Act covered employers were required to keep certain records to aid in the enforcement of the Act, and to comply with specified child labor standards. This Court unanimously upheld the Act as a valid exercise of congressional authority under the commerce power in United States v. Darby, 312 U. S. 100 (1941), observing:
"Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause.” Id., at 115.
The original Fair Labor Standards Act passed in 1938 specifically excluded the States and their political subdivisions from its coverage. In 1974, however, Congress enacted the most recent of a series of broadening amendments to the Act. By these amendments Congress has extended the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions. Appellants in these cases include individual cities and States, the National League of Cities, and the National Governors' Conference; they brought an action in the District Court for the District of Columbia which challenged the validity of the 1974 amendments. They asserted in effect that when Congress sought to apply the Fair Labor Standards Act provisions virtually across the board to employees of state and municipal governments it “infringed a constitutional prohibition” running in favor of the States as States. The gist of their complaint was not that the conditions of employment of such public employees were beyond the scope of the commerce power had those employees been employed in the private sector but that the established constitutional doctrine of intergovernmental immunity consistently recognized in a long series of our cases affirmatively prevented the exercise of this authority in the manner which Congress chose in the 1974 amendments.
I
In a series of amendments beginning in 1961 Congress began to extend the provisions of the Fair Labor Standards Act to some types of public employees. The 1961 amendments to the Act extended its coverage to persons who were employed in “enterprises” engaged in commerce or in the production of goods for commerce. And in 1966, with the amendment of the definition of employers under the Act, the exemption heretofore extended to the States and their political subdivisions was removed with respect to employees of state hospitals, institutions, and schools. We nevertheless sustained the validity of the combined effect of these two amendments in Maryland v. Wirtz, 392 U. S. 183 (1968).
In 1974, Congress again broadened the coverage of the Act, 88 Stat, 55. The definition of “employer” in the Act now specifically “includes a public agency,” 29 U. S. C. §203 (d) (1970 ed., Supp, IV). In addition, the critical definition of “[e]nterprise[s] engaged in commerce or in the production of goods for commerce” was expanded to encompass “an activity of a public agency,” and goes on to specify that
“[t]he employees of an enterprise which is a public agency shall for purposes of this subsection be deemed to be employees engaged in commerce, or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce.” 29 U; S. C. §203 (s)(5) (1970 ed., Supp. IV).
Under the amendments “[p]ublic agency” is in turn defined as including
“the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States (including the United States Postal Service and Postal Rate Commission), a State, or a political subdivision of a State; or any interstate governmental agency.” 29 U. S. C. § 203 (x) (1970 ed., Supp. IV).
By its 1974 amendments, then, Congress has now entirely removed the exemption previously afforded States and their political subdivisions, substituting only the Act’s general exemption for executive, administrative, or profession^l personnel, 29 U. S. C. §213 (a)(1), which is supplemented by provisions excluding from the Act’s coverage those individuals holding public elective office or serving such an officeholder in one of several specific capacities. 29 U. S. C. § 203 (e) (2) (C) (1970 ed., Supp. IV). The Act thus imposes upon almost all public employment the minimum wage and maximum hour requirements previously restricted to employees engaged in interstate commerce. These requirements are essentially identical to those imposed upon private employers, although the Act does attempt to make some provision for public employment relationships which are without counterpart in the private sector, such as those presented by fire protection and law enforcement personnel. See 29 U. S. C. §207 (k) (1970 ed., Supp. IV).
Challenging these 1974 amendments in the District Court, appellants sought both declaratory and injunc-tive relief against the amendments’ application to them, and a three-judge court was accordingly convened pursuant to 28 U. S. C. § 2282. That court, after hearing argument on the law from the parties, granted appel-lee Secretary of Labor’s motion to dismiss the complaint for failure to state a claim upon which relief might be granted. The District Court stated it was “troubled” by appellants’ contentions that the amendments would intrude upon the States’ performance of essential governmental functions. The court went on to say that it considered their contentions
“substantial and that it may well be that the Supreme Court will feel it appropriate to draw back from the far-reaching implications of [Maryland v. Wirtz, supra]; but that is a decision that only the Supreme Court can make, and as a Federal district court we feel obliged to apply the Wirtz opinion as it stands.” National League of Cities v. Brennan, 406 F. Supp, 826, 828 (DC 1974).
We noted probable jurisdiction in order to consider the important questions recognized by the District Court. 420 U. S. 906 (1975). We agree with the District Court that the appellants' contentions are substantial. Indeed upon full consideration of the question we have decided that the “far-reaching implications” of Wirtz should be overruled, and that the judgment of the District Court must be reversed.
II
It is established beyond peradventure that the Commerce Clause of Art. I of the Constitution is a grant of plenary authority to Congress. That authority is, in the words of Mr. Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1 (1824), “the power to regulate; that is, to prescribe the rule by which commerce is to be governed.” Id., at 196.
When considering the validity of asserted applications of this power to wholly private activity, the Court has made it clear that
“[e]ven activity that is purely intrastate in char^ acter may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.” Fry v. United States, 421 U. S. 542, 547 (1975).
Congressional power over areas of private endeavor, even when its exercise may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress, has been held to be limited only by the requirement that “the means chosen by [Congress] must be reasonably adapted to the end permitted by the Constitution.” Heart of Atlanta Motel v. United States, 379 U. S. 241, 262 (1964).
Appellants in no way challenge these decisions establishing the breadth of authority granted Congress under the commerce power. Their contention, on the contrary, is that when Congress seeks to regulate directly the activities of States as public employers, it transgresses an affirmative limitation on the exercise of its power akin to other commerce power affirmative limitations contained in the Constitution. Congressional enactments which may be fully within the grant of legislative authority contained in the Commerce Clause may nonetheless be invalid because found to offend against the right to trial by jury contained in the Sixth Amendment, United States v. Jackson, 390 U. S. 570 (1968), or the Due Process Clause of the Fifth Amendment, Leary v. United States, 395 U. S. 6 (1969). Appellants’ essential contention is that the 1974 amendments to the Act, while undoubtedly within the scope of the Commerce Clause, encounter a similar constitutional barrier because they are to be applied directly to the States and subdivisions of States as employers.
This Court has never doubted that there are limits upon the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce which are conferred- by Art. I of the Constitution. In Wirts, for example, the Court took care to assure the appellants that it had “ample power to prevent... 'the utter destruction of the State as a sovereign political entity/ ” which they feared. 392 U. S., at 196. Appellee Secretary in this case, both in his brief and upon oral argument, has agreed that our federal system of government imposes definite limits upon the authority of Congress to regulate the activities of the States as States by means of the commerce power. See, e. g., Brief for Appellee 30-41; Tr. of Oral Arg. 39-43. In Fry, supra, the Court recognized that an express declaration of this limitation is found in the Tenth Amendment:
“While the Tenth Amendment has been characterized as a 'truism/ stating merely that 'all is retained which has not been surrendered,' United States v. Darby, 312 U. S. 100, 124 (1941), it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system.” 421 U. S., at 547 n. 7.
In New York v. United States, 326 U. S. 572 (1946), Mr. Chief Justice Stone, speaking for four Members of an eight-Member Court in rejecting the proposition that Congress could impose taxes on the States so long as it did so in a nondiscriminatory manner, observed:
“A State may, like a private individual, own real property and receive income. But in view of our former decisions we could hardly say that a general non-discriminatory real estate tax (apportioned), or an income tax laid upon citizens and States alike could be constitutionally applied to the State’s capitol, its State-house, its public school houses, public parks, or its revenues from taxes or school lands, even though all real property and all income of the citizen.is taxed.” Id., at 587-588.
The expressions in these more recent cases trace back to earlier decisions of this Court recognizing the essential role of the States in our federal system of government. Mr. Chief Justice Chase, perhaps because of the particular time at which he occupied that office, had occasion more than once to speak for the Court on this point. In Texas v. White, 7 Wall. 700, 725 (1869), he declared that “[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” In Lane County v. Oregon, 7 Wall. 71 (1869), his opinion for the Court said:
“Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized.” Id., at 76.
In Metcalf & Eddy v. Mitchell, 269 U. S. 514 (1926), the Court likewise observed that “neither government may destroy the other nor curtail in any substantial manner the exercise of its powers.” Id., at 523.
Appellee Secretary argues that the cases in which this Court has upheld sweeping exercises of authority by Congress, even though those exercises pre-empted state regulation of the private sector, have already curtailed the sovereignty of the States quite as much as the 1974 amendments to the Fair Labor Standards Act. We do not agree. It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to the States as States. We have repeatedly recognized that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner. In Coyle v. Oklahoma, 221 U. S. 559 (1911), the Court gave this example of such an attribute:
“The power to locate its own seat of government and to determine when and how it shall be changed from one place to another, and to appropriate its own public funds for that purpose, are essentially and peculiarly state powers. That one of the original thirteen States could now be shorn of such powers by an act of Congress would not be for a moment entertained.” Id., at 565.
One undoubted attribute of state sovereignty is the States’ power to determine the wages which shall be paid to those whom they employ in order to carry out their governmental functions, what hours those persons will work, and what compensation will be provided where these employees may be called upon to work overtime. The question we must resolve here, then, is whether these determinations are “ 'functions essential to separate and independent existence,’ ” id., at 580, quoting from Lane County v. Oregon, supra, at 76, so that Congress may not abrogate the States’ otherwise plenary authority to make them.
In their complaint appellants advanced estimates of substantial costs which will be imposed upon them by the 1974 amendments. Since the District Court dismissed their complaint, we take its well-pleaded allegations as true, although it appears from appellee’s submissions in the District Court and in this Court that resolution of the factual disputes as to the effect of the amendments is not critical to our disposition of the case.
Judged solely in terms of increased costs in dollars, these allegations show a significant impact on the functioning of the governmental bodies involved. The Metropolitan Government of Nashville and Davidson County, Tenn., for example, asserted that the Act will increase its costs of providing essential police and fire protection, without any increase in service or in current salary levels, by $938,000 per year. Cape Girardeau, Mo., estimated that its annual budget for fire protection may have to be increased by anywhere from $250,000 to $400,000 over the current figure of $350,000. The State of Arizona alleged that the annual additional expenditures which will be required if it is to continue to provide essential state services may total $2.5 million. The State of California, which must devote significant portions of its budget to fire-suppression endeavors, estimated that application of the Act to its employment practices will necessitate an increase in its budget of between $8 million and $16 million.
Increased costs are not, of course, the only adverse effects which compliance with the Act will visit upon state and local governments, and in turn upon the citizens who depend upon those governments. In its complaint in intervention, for example, California asserted that it could not comply with the overtime costs (approximately $750,000 per year) which the Act required to be paid to California Highway Patrol cadets during their academy training program. California reported that it had thus been forced to reduce its academy training program from 2,080 hours to only 960 hours, a compromise undoubtedly of substantial importance to those whose safety and welfare may depend upon the preparedness of the California Highway Patrol.
This type of forced relinquishment of important governmental activities is further reflected in the complaint’s allegation that the city of Inglewoód, Cal., has been forced to curtail its affirmative action program for providing employment opportunities for men and women interested in a career in law enforcement. The Inglewood police department has abolished a program for police trainees who split their week between on-the-job training and the classroom. The city could not abrogate its contractual obligations to these trainees, and it concluded that compliance with the Act in these circumstances was too' financially burdensome to permit continuance of the classroom program. The city of Clovis, Cal., has been put to a similar choice regarding an internship program it was running in cooperation with a California state university. According to the complaint, because the interns’ compensation brings them within the purview of the Act the city must decide whether to eliminate the program entirely or to substantially reduce its beneficial aspects by doing away with any pay for the interns.
Quite apart from the substantial costs imposed upon the States and their political subdivisions, the Act displaces state policies regarding the manner in which they will structure delivery of those governmental services which their citizens require. The Act, speaking directly to the States qua States, requires that they shall pay all but an extremely limited minority of their employees the minimum wage rates currently chosen by Congress. It may well be that as a matter of economic policy it would be desirable that States, just as private employers, comply with these minimum wage requirements. But it cannot be gainsaid that the federal requirement directly supplants the considered policy choices of the States’ elected officials and administrators as to how they wish to structure pay scales in state employment. The State might wish to employ persons with little or no training, or those who wish to work on a casual basis, or those who for some other reason do not possess minimum employment requirements, and pay them less than the federally prescribed minimum wage. It may wish to- offer part-time or summer employment to teenagers at a figure less than the minimum wage, and if unable to do so may decline to offer such employment at all. But the Act would forbid such choices by the States. The only “discretion” left to them under the Act is either to attempt to increase their revenue to meet the additional financial burden imposed upon them by paying congressionally prescribed wages to their existing complement of employees, or to reduce that complement to a number which can be paid the federal minimum wage without increasing revenue.
This dilemma presented by the minimum wage restrictions may seem not immediately different from that faced by private employers, who have long been covered by the Act and who must find ways to increase their gross income if they are to pay higher wages while maintaining current earnings. The difference, however, is that a State is not merely a factor in the “shifting economic arrangements” of the private sector of the economy, Kovacs v. Cooper, 336 U. S. 77, 95 (1949) (Frankfurter, J., concurring), but is itself a coordinate element in the system established by the Framers for governing our Federal Union.
The degree to which the FLSA amendments would interfere with traditional aspects of state sovereignty can be seen even more clearly upon examining the overtime requirements of the Act. The general effect of these provisions is to require the States to pay their employees at premium rates whenever their work exceeds a specified number of hours in a given period. The asserted reason for these provisions is to provide a financial disincentive upon using employees beyond the work period deemed appropriate by Congress. According to appellee:
“This premium rate can be avoided if the [State] uses other employees to do the overtime work. This, in effect, tends to discourage overtime work and to spread employment, which is the result Congress intended.” Brief for Appellee 43.
We do not doubt that this may be a salutary result,.and that it has a sufficiently rational relationship to commerce to validate the application of the overtime provisions to private employers. But, like the minimum wage provisions, the vice of the Act as sought to be applied here is that it directly penalizes the States for choosing to hire governmental employees on terms different from those which Congress has sought to impose.
This congressionally imposed displacement of state decisions may substantially restructure traditional ways in which the local governments have arranged their affairs. Although at this point many of the actual effects under the proposed amendments remain a matter of some dispute among the parties, enough can be satisfactorily anticipated for an outline discussion of their general import. The requirement imposing premium rates upon any employment in excess of what Congress has decided is appropriate for a governmental employee’s workweek, for example, appears likely to have the effect of coercing the States to structure work periods in some employment areas, such as police and fire protection, in a manner substantially different from practices which have long been commonly accepted among local governments of this Nation. In addition, appellee represents that the Act will require that the premium compensation for overtime worked must be paid in cash, rather than with compensatory time off, unless such compensatory time is taken in the same pay period. Supplemental Brief for Appellee 9-10; see Dunlop v. New Jersey, 522 P. 2d 504 (CA3 1975), cert. pending sub nom. New Jersey v. Usery, No. 75-532. This, too, appears likely to be highly disruptive of accepted employment practices in many governmental areas where the demand for a number of employees to perform important jobs for extended periods on short notice can be both unpredictable and critical. Another example of congressional choices displacing those of the States in the area of what are without doubt essential governmental decisions may be found in the practice of using volunteer firemen, a source of manpower crucial to many of our smaller towns’ existence. Under the regulations proposed by appellee, whether individuals are indeed “volunteers” rather than “employees” subject to the minimum wage provisions of the Act are questions to be decided in the courts. See Brief for Appellee 49, and n. 41. It goes without saying that provisions such as these contemplate a significant reduction of traditional volunteer assistance which has been in the past drawn on to complement the operation of many local governmental functions.
Our examination of the effect of the 1974 amendments, as sought to be extended to the States and their political subdivisions, satisfies us that both the minimum wage and the maximum hour provisions will impermissibly interfere with the integral governmental functions of these bodies. We earlier noted some disagreement between the parties regarding the precise effect the amendments will have in application. We do not believe particularized assessments of actual impact are crucial to resolution of the issue presented, however. For even if we accept appellee's assessments concerning the impact of the amendments, their application will nonetheless significantly alter or displace the States' abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services. Indeed, it is functions such as these which governments are created to provide, services such as these which the States have traditionally afforded their citizens. If Congress may withdraw from the States the authority to make those fundamental employment decisions upon which their systems for performance of these functions must rest, we think there would be little left of the States’ “ ‘separate and independent existence.’ ” Coyle, 221 U. S., at 580. Thus, even if appellants may have overestimated the effect which the Act will have upon their current levels and patterns of governmental activity, the dispositive factor is that Congress has attempted to exercise its Commerce Clause authority to prescribe minimum wages and maximum hours to be paid by the States in their capacities as sovereign governments. In so doing, Congress has sought to wield its power in a fashion that would impair the States' “ability to function effectively in a federal system,” Fry, 421 U. S., at 547 n. 7. This exercise of congressional authority does not comport with the federal system of government embodied in the Constitution. We hold that insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, § 8, cl. 3.
Ill
One final matter requires our attention. Appellee has vigorously urged that we cannot, consistently with the Court’s decisions in Maryland v. Wirtz, 392 U. S. 183 (1968), and Fry, supra, rule against him here. It is important to examine this contention so that it will be clear what we hold today, and what we do not.
With regard to Fry, we disagree with appellee. There the Court held that the Economic Stabilization Act of 1970 was constitutional as applied to temporarily freeze the wages of state and local government employees. The Court expressly noted that the degree of intrusion upon the protected area of state sovereignty was in that case even less than that worked by the amendments to the FLSA which were before the Court in Wirtz. The Court recognized that the Economic Stabilization Act was “an emergency measure to counter severe inflation that threatened the national economy.” 421 U. S., at 548.
We think our holding today quite consistent with Fry. The enactment at issue there was occasioned by an extremely serious problem which endangered the well-being of all the component parts of our federal system and which only collective action by the National Government might forestall. The means selected were carefully drafted so as not to interfere with the States’ freedom beyond a very limited, specific period of time. The effect of the across-the-board freeze authorized by that Act, moreover, displaced no state choices as to how governmental operations should be structured, nor did it force the States to remake such choices themselves. Instead, it merely required that the wage scales and employment relationships which the States themselves had chosen be maintained during the period of the emergency. Finally, the Economic Stabilization Act operated to reduce the pressures upon state budgets rather than increase them. These factors distinguish the statute in Fry from the provisions at issue here. The limits imposed upon the commerce power when Congress seeks to apply it to the States are not so inflexible as to preclude temporary enactments tailored to combat a national emergency. “[Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.” Wilson v. New, 243 U. S. 332, 348 (1917).
With respect to the Court’s decision in Wirtz, we reach a different conclusion. Both appellee and the District Court thought that decision required rejection of appellants’ claims. Appellants, in turn, advance several arguments by which they seek to distinguish the facts before the Court in Wirtz from those presented by the 1974 amendments to the Act. There are undoubtedly factual distinctions between the two situations, but in view of the conclusions expressed earlier in this opinion we do not believe the reasoning in Wirtz may any longer be regarded as authoritative.
Wirtz relied heavily on the Court’s decision in United States v. California, 297 U. S. 175 (1936). The opinion quotes the following language from that case:
“‘[We] look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power. But there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.’ 297 U. S., at 185.” 392 U. S., at 198.
But we have reaffirmed today that the States as States stand on a quite different footing from an individual or a corporation when challenging the exercise of Congress’ power to regulate commerce. We think the dicta from United States v. California, simply wrong. Congress may not exercise that power so as to force directly upon the States its choices as to how essential decisions regarding the conduct of integral governmental functions are to be made. We agree that such assertions of power, if unchecked, would indeed, as Mr. Justice Douglas cautioned in his dissent in Wirtz, allow “the National Government [to] devour the essentials of state sovereignty,” 392 U. S., at 205, and would therefore transgress the bounds of the authority granted Congress under the Commerce Clause. While there are obvious differences between the schools and hospitals involved in Wirtz, and the fire and police departments affected'here, each provides an integral portion of those governmental services which the States and their political subdivisions have traditionally afforded their citizens. We are therefore persuaded that Wirtz must be overruled.
The judgment of the District Court is accordingly reversed, and the cases are remanded for further proceedings consistent with this opinion.
So ordered.
The Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U. S. C. §201 et seq. (1940 ed.).
§206 (a) (1940 ed.).
§ 207 (a)(3) (1940 ed.).
§211 (c) (1940 ed.).
§ 212 (1940 ed.).
Title 29 U. S. C. § 203 (d) (1940 ed.):
“ 'Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee but shall not include the United States or any State or political subdivision of a State....”
Appellants in No. 74^878 are the National League of Cities, the National Governors’ Conference, the States of Arizona, Indiana, Iowa, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Utah, Washington, and Wyoming, the Metropolitan Government of Nashville and Davidson County, Tenn., and the cities of Cape Girardeau, Mo., Lompoc, Cal., and Salt Lake City, Utah. The appellant in No. 74-879 is the State of California.
In view of the fact that the appellants include sovereign States and their political subdivisions to which application of the 1974 amendments is claimed to be unconstitutional, we need not consider whether the organizational appellants had standing to challenge the Act. See California Bankers Assn. v. Shultz, 416 U. S. 21, 44-45 (1974).
Pub. L. 87-30, 75 Stat. 65.
29 U. S. C. §§203 (r), 203 (s), 206 (b), 207 (a)(2) (1964 ed.).
80 Stat. 831, 29 U. S. C. §203 (d) (1964 ed., Supp. II).
When the cases were not decided in October Term, 1974, they were set down for reargument, 421 U. S. 986 (1975).
Mr. Justice Brennan’s dissent intimates, post, at 858, that guarantees of individual liberties are the only sort of constitutional restrictions which this Court will enforce as against congressional action. It reasons that “Congress is constituted of representatives in both Senate and House elected from, the States.... Decisions upon the extent of federal intervention under the Commerce Clause into the affairs of the States are in that sense decisions of the States themselves.” Post, at 876. Precisely what is meant by the phrase “are in that sense decisions of the States themselves” is not entirely clear from this language; it is indisputable that a common constituency of voters elects both a State’s Governor and its two United States Senators. It is equally indisputable that since the enactment of the Seventeenth Amendment those Senators are not dependent upon state legislators for their election. But in any event the intimation which this reasoning is used to support is incorrect.
In Myers v. United States, 272 U. S. 52 (1926), the Court held that Congress could not by law limit the authority of the President to remove at will an officer of the Executive Branch appointed by him. In Buckley v. Valeo, 424 U. S. 1 (1976), the Court held that Congress could not constitutionally require that members of the Federal Elections Commission be appointed by officers of the House of Representatives and of the Senate, and that all such appointments had to be made by the President. In each of these cases, an even stronger argument than that made in the dissent could be made to the effect that since each of these bills had been signed by the President, the very officer who challenged them had consented to their becoming law, and it was therefore no concern of this Court that the law violated the Constitution. Just as the dissent contends that “the States are fully able to protect their own interests... post, at 876, it
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_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Appellant, v. Thomas Michael GOLON, Defendant-Appellee.
No. 74-1299.
United States Court of Appeals, First Circuit.
Argued Dec. 4, 1974.
Decided Jan. 28, 1975.
Certiorari Denied May 27, 1975.
See 95 S.Ct. 1999.
Robert B. Codings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., and Benjamin Jones, Asst. U. S. Atty., were on brief, for appellant.
Norman S. Zalkind, Boston, Mass., with whom Eric D. Blumenson and Zalkind & Zalkind, Boston, Mass., were on brief, for defendant-appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
The facts of this case as found by the district court, United States v. Golon, 378 F.Supp. 516 (D.Mass.1974), are undisputed. Appellee Thomas Michael Golon was classified as a conscientious objector by his draft board in 1970, and was ordered to perform 24 months of alternate service in civilian work contributing to the national health, safety or interest. Appellee began work in late 1970 at the Metropolitan State Hospital in Waltham, Massachusetts, but continued his employment there only until April 4, 1971. The State Selective Service Headquarters wrote appellee on April 19 concerning this unauthorized termination of his employment, and appellee responded with a request for reassignment. The state headquarters sent two additional létters inquiring about appellee’s prospective civilian employment, but received no response to these. In July, 1971, appellee started a non-profit food store, relying, according to his testimony, on conversations with a Selective Service official and others which indicated that it might be possible to fulfill his service obligation in this way.
On August 23, 1972, the State Selective Service Board assigned appellee to work at Massachusetts General Hospital to complete his obligation, but he did not report. The State Selective Service Headquarters was notified on October 5 of the failure to report, and informed the United States Attorney of the alleged violation the next day. After having the FBI interview appellee, the U.S. Attorney’s office requested copies of relevant Selective Service documents on July 21, 1973. These documents were received in October, reviewed by an Assistant U. S. Attorney on December 10, and an indictment was obtained December 19 for failure to perform the alternate service. 50 U.S.C. Appendix §§ 456(j), 462. Appellee was arraigned on January 7, 1974, and pleaded not guilty. After a hearing, the district court dismissed the indictment on July 30 on the ground that the government’s prosecution of the case had not been conducted as expeditiously as mandated by 50 U.S.C. Appendix § 462(c) and that appellee had been prejudiced thereby.
Section 462(c), which was enacted as part of the Military Selective Service Act of 1967, provides:
“The Department of Justice shall proceed as expeditiously as possible with a prosecution under this section, or with an appeal, upon the request of the Director of Selective Service System or shall advise the House of Representatives and the Senate in writing the reasons for its failure to do so.”
The determination whether the “expeditiously as possible” requirement of the statute was brought into play in this case by a sufficient “request” by the Director of Selective Service requires reference to the letter sent to the U.S. Attorney by the State Selective Service Headquarters on October 6, 1972. Since appellee has pointed to no other letter or communication from Selective Service making the request required by § 462(c), this letter must be viewed as constituting whatever request was made. The letter was one reporting appellee for prosecution as a violator:
“This headquarters, having carefully reviewed the entire file folder of the subject registrant and finding no procedural errors, and having processed him under the provisions of section 1660.9 of the regulations herewith reports the subject for prosecution under Section 12 of the Military Selective Service Act for violation of the provisions of section 6(j) of that act . ..”
Appellee argues that this was the request for expeditious prosecution contemplated by the statute, while the government contends that a more specific invocation of § 462(c) by a special request from the Director is necessary to bring it into operation. Before proceeding to the merits of this issue, we shall deal with two preliminary points raised by appellee.
It is argued, first of all, that by failing to present to the district court the argument that there was no “request” the government has foreclosed that line of attack here. Incontestably, it would have been better and more fair to the district court to have enabled it to pass upon the issue directly, and sound policies often dictate that we refuse to consider issues raised in the first instance on appeal. Here, however, we think it inappropriate to halt at the threshold. In briefing the Motion to Dismiss below, neither party focused on the § 462(c) argument among the multiplicity of issues mentioned in the motion. The district court first denied the motion, United States v. Golon, 378 F.Supp. 513 (D.Mass.1974); this was done without discussion of the specific issues raised by appellee with regard to delay (due process, Sixth Amendment speedy trial, § 462(c)). After this initial disposition, the district court held a hearing on the matter, and dismissal was granted. The issue relating to the nature of the request required by § 462(c) was not discussed either in memoranda or at the hearing, which was limited to appellee’s testimony as to his conduct. We would be inclined to view this somewhat disorganized presentation of the issues to the district court as sufficient in itself to justify our consideration of the “request” issue. In addition, there are more salient factors which also support that re-suit. The issue is one which is presented on the face of the statute, which specifically requires a request. And we are loath to pass over a question, squarely before us, which is almost certain to be presented in identical terms in other cases.
Appellee contends, secondly, that the district court’s determination that § 462(c) was applicable is one of fact which cannot be overturned unless clearly erroneous, likening it to a finding of consent. We disagree. The issue is strictly a legal one, posing the question whether § 462(e) comes into play in every case where a state board reports a registrant for prosecution or is triggered only by a specific request from the national Director of Selective Service.
The parties put forward radically different conceptions of the “request” referred to in § 462(c). Appellee contends that Congress intended that the prosecution of all draft cases be speeded up, and that in reporting an alleged violator for prosecution the Selective Service System fulfills the requirements of the statute. This position draws support from statements such as that by the House Armed Services Committee that enactment of the provision would “create a sense of urgency in the Department of Justice in respect to violations of the Selective Service Act.” House Report No. 267, 90th Cong., 1st Sess., 1967 U.S.Code Cong. & Admin.News at p. 1333. The section was described in the House Report as a response to “the apparent failure of the Attorney General to prosecute many alleged violations of the Selective Service Act despite the requests of the Director of Selective Service.” Id. The government agrees, as it must, that Congress sought to give the Director greater control over the prosecution of alleged draft violators, but it argues that an across-the-board command that all alleged violators be speedily prosecuted was not the mechanism chosen. It argues that Congress was aware that all draft cases are referred to the Justice Department by the Selective Service System, and that therefore an interpretation which labels the initial referral a § 462(c) request has the effect of rendering the request requirement surplusage. All the provisions of the statute may be given effect, it is argued, if the section is interpreted as creating a two-stage procedure. After the referral or report, the U.S. Attorney investigates and decides whether to seek an indictment. If the Director of Selective Service is displeased with the handling of a particular matter, he may make a specific request for expeditious prosecution and thereby bring the section into play. The legislative history which most strongly supports this interpretation is found in the House Committee’s section-by-section analysis of the bill:
“The provisions . . . would require the Department of Justice to institute as expeditiously as possible prosecution and judicial proceedings of violations of the Draft Act in instances in which a specific request for such action has been made by the Director of Selective Service or in the absence of such prosecution by- the Attorney General, a complete report in writing to the House of Representatives and the Senate.” House Report No. 267, U.S.Code Cong. & Admin.News, 1967, at p. 1349. [Emphasis supplied.]
After carefully considering the language of § 462(c) and the policies underlying it as reflected in the legislative history of the 1967 Act, we have concluded that the section must be read to require a specific request beyond the standard referral for prosecution. Congress was well aware of the role of the Selective Service System as the originat- or of draft-violation investigations by U.S. Attorneys, and thus would have realized that considering the original violation report a “request” would have the effect of bringing all draft cases within § 462(c). Although foggy in some respects, the language of the section, the reports, and the commentary in the Senate and House make such prominent reference to the “request” requirement that the argument that § 462(c) applies to all alleged violations is seriously undermined.
There is no question but that Congress felt that draft cases should in general be more vigorously pursued. It took two steps to accomplish this purpose. Section 462(a) had given priority to prosecution of draft cases on court dockets where requested by the Attorney General. By deleting the prerequisite of such a request, Congress elevated all draft cases, after indictment, to a position of priority. And in § 462(c), it gave added authority to the Director to call for prosecution where he might feel there was untoward reluctance to seek indictment by the Justice Department. But there is no substantial support for the conclusion that Congress intended to strip away entirely the prosecutorial discretion reposed in the Justice Department and insist that an indictment be sought in every referred case, no matter what the result of the investigation of the case. It is true that even under § 462(c) final authority rests with the Justice Department, which may choose to report to Congress on its reasons for not prosecuting if that is its decision. But this fact is but another indication that the section is a remedy which must be specially invoked by the Director of Selective Service. In 1971, the U.S. Attorney for Massachusetts presented 84 referred cases to a grand jury, and declined prosecution on 220; in 1972, 99 were presented and 189 declined; and in 1973, 80 were presented and 236 declined. We cannot accept the suggestion that Congress anticipated or intended that a full report be made to the Senate and House of Representatives in each of the “declined” cases. Not only would such an interpretation indicate a massive and sustained violation of § 462(c) by the U.S. Attorney, but the apparent failure of Congress to respond to this flagrant nonfiling of explanatory letters would be inexplicable.
As our discussion above indicates, we believe that Congress intended to enhance the influence of the Director of Selective Service in prosecution matters by giving him the power to spotlight individual cases of possible Justice Department abuse, not by requiring the Department to prosecute all cases referred or explain its failure to do so. In addition to the House Report, cited above, and the Conference Report, 1967 U.S.Code Cong. & Admin.News at p. 1361, the amendment of § 462(a) in the 1967 Act defeats any suggestion that the imposition of the “request” requirement was inadvertent or viewed as inconsequential. Before 1967, as noted above, subsection (a) directed that courts advance draft cases for immediate hearing upon the request of the Attorney General. The 1967 amendment eliminated the requirement of a request and provided for the advancement of all selective service cases. The considered elimination of a request requirement from subsection (a) of § 462 is not easily reconciled with an interpretation of subsection (c) which has the effect of making meaningless another request provision inserted at the same session.
We have carefully examined the two published cases of which we are aware which shed any light on § 462(c). Appellee relies heavily upon United States v. Daneals, 370 F.Supp. 1289 (W.D.N.Y. 1974), in which a district court dismissed a number of indictments for selective service violations for reasons including what it found to be the failure of the government to comply with § 462(c). That court did measure delay for purposes of the statute from the time the cases were referred to the U.S. Attorney, but the underlying decision that the referrals constituted adequate requests for expeditious prosecution is only an implicit one. It is unarticulated and unexplained, and therefore offers no persuasive authority for the position argued for by appellee. Moreover, Daneals involved a number of grand jury abuses, and these figured in the district court’s decision to dismiss. And the court refused to dismiss the indictments with prejudice, leaving open the question “whether or not the failure of the government to proceed expeditiously in these cases was serious enough to prevent any indictment in particular cases.” 370 F.Supp. at 1301.
The other case relied upon by appellee, United States v. Dyson, 469 F.2d 735 (5th Cir. 1972), is of no more assistance to him. The case does not discuss any of the issues directly relevant here — it deals with post-indictment delay in applying § 462(a), and § 462(c) is mentioned but not explained or applied.
Since we have determined that the mandate of § 462(e) does not apply to this case due to the lack of an adequate request by the Director of Selective Service, we need not decide whether the section, when applicable, inures to the benefit of a defendant and justifies dismissal of the indictment when a prosecutor has failed to comply. Nor need we consider whether the statute requires greater expedition than that guaranteed by the Sixth Amendment or whether delay in selective services cases subject to the statute is measured from referral to the U.S. Attorney.
Although there was a delay of 32 months in this case between the alleged violation and indictment, and 14 months between referral to the U.S. Attorney and indictment, appellee has demonstrated no violation of his Sixth Amendment right to a speedy trial. Delay is measured for purposes of the Sixth Amendment from the time one is accused of a crime, United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and appellee became an “accused” when indicted on December 19, 1973. There has been no claim of unconstitutional delay since that time.
Reversed.
. We are advised that a number of cases involving the interpretation of § 462(c) have been decided or are now pending in the District of Massachusetts.
. Because of our resolution of the other issues, we need not decide whether a specific request made by the State Selective Service Headquarters is that of the Director of Selective Service for purposes of § 462(c).
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_circuit
|
G
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
SAVE THE DUNES COUNCIL et al., Appellants, v. Clifford L. ALEXANDER, Secretary of the Army, Appellee.
No. 77-1760.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 19, 1978.
Decided Aug. 21, 1978.
Marshall Patner, Chicago, Ill., for appellants.
Anne S. Almy, Asst. U. S. Atty., Department of Justice, Washington, D. C., for appellee.
Before PELL and TONE, Circuit Judges, and EAST, Senior District Judge.
Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.
EAST, Senior District Judge.
The Appeal:
The appellants Save the Dunes Council, Inc. and several individuals (Council) appeal the adverse summary judgment entered by the District Court on May 10, 1977 in their causes for a Writ of Mandamus and a Declaratory Judgment with mandatory injunc-tive relief from the action or non-action of the Secretary of the Army (Secretary) under 33 U.S.C. § 426i (prevention or mitigation of shore damage). We note jurisdiction under 28 U.S.C. § 1291 and affirm.
Proceedings in the District Court:
On August 7, 1973, the Council brought suit to compel the Secretary, and through him, the Chief of the Corps of Engineers (Corps) to take remedial action concerning the Corps’ harbor improvements at Michigan City, Indiana. The Council’s complaint in Count I alleged that the Secretary and the Corps had the duty to prevent and rectify shore erosion damage to the Indiana Dunes National Lakeshore (Dunes) allegedly caused by the harbor structures at Michigan City and that the Council was entitled to a Writ of Mandamus, pursuant to 28 U.S.C. § 1361, to compel the Secretary to modify the harbor structures in prevention of unreasonable shore erosion.
In Count II of the complaint, the Council alleged that the harbor improvements constituted a nuisance under federal common law and that the Secretary abused his discretion, granted under various Acts of Congress, by failing to stop or alleviate the shore erosion of the Dunes caused by the harbor structures. They further alleged that the District Court held jurisdiction to abate the nuisance under the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 and 706(1), as well as under federal question jurisdiction, 28 U.S.C. § 1331.
On November 2,1973, the Corps moved to dismiss, or in the alternative, for summary judgment. On May 10, 1976, the District Court granted the Corps’ motion for summary judgment under the provisions of Ped.R.Civ.P. 56 and entered judgment for the Corps on the Council’s Count I. The District Court did not deal with the issues under Count II any further than to find:
“[T]he Secretary is currently considering the serious problem of erosion along the [shoreline of the Dunes] in a manner well within the parameters of Title 33.
“[T]he Secretary has properly exercised his discretion by adopting a position with respect to the matter expressed in [Council’s] complaint. Since the court is without jurisdiction to order a course of action more favorable to [Council], this cause must be dismissed.”
Facts:
Michigan City Harbor is located at the mouth of Trail Creek at Lake Michigan, to the east of the Dunes. Development of the Michigan City Harbor (Harbor) began in 1836. Modified several times during the Nineteenth Century, the harbor structures as they now exist were completed about 1910. The structures were rehabilitated in the late 1960’s, without modifications. The Harbor has become a major recreational boating center for the southeastern portion of Lake Michigan.
The shoreline to the east of the Harbor experienced accretion in the period 1870-1940. A Michigan City municipal park, containing a public beach and zoo, is located on the accreted area, immediately to the east of the Harbor. The shoreline to the west of the harbor structures, however, has receded over the years. The erosion above referred to in rather extreme proportion extended into the Dunes through the development of the record before us.
The Dunes was created in 1966 under 16 U.S.C. §§ 460u, et seq., “to preserve for the educational, inspirational, and recreational use of the public certain portions of the Indiana dunes and other areas of scenic, scientific, and historic interest and recreational value in the State of Indiana .
In 1970, the Town of Beverly Shores, Indiana, located within the Dunes, and the Port Authority of Michigan City requested the Corps to study and take remedial action concerning the erosion experienced along the Dunes pursuant to Section 111 of the Rivers and Harbors Act of 1968, 33 U.S.C. § 426i. The Corps undertook a preliminary study of the erosion occurring to the Dunes and the relationship of such erosion to the harbor structures.
The report on this study, called Section 111 Reconnaissance Report, was issued on October 20, 1971. The report concluded that the harbor structures have contributed to approximately 60 percent of the erosion of the Dunes by interfering with the littoral movement of beach building materials to that shore, with high lake levels and steep waves accounting for the remainder. The Reconnaissance Report recommended preparation of a Detailed Project Report to develop plans for mitigation of the shore damage attributable to the harbor structures. The Corps pursued this recommendation and contracted with the engineering firm of Moffatt and Nichol of Long Beach, California, to conduct a study on the Indiana shoreline erosion.
Meanwhile, pursuant to a National Park Service request, the Corps prepared a plan of interim protection for an area where erosion threatened to undermine an access road several miles west of the Harbor. This project consisted of a rock revetment and called for beach nourishment with some 230,000 cubic yards of sand. In 1973, Congress appropriated 3.1 million dollars to the National Park Service for construction of the emergency protection works. The Corps, acting as agent for the Park Service, contracted for the construction of the interim, emergency shore protection works, and construction commenced in the Fall of 1973.
The Corps has, pursuant to resolutions of congressional committees as late as April 11, 1974, issued a final feasibility report, entitled “Interim Report on Indiana Shoreline Erosion,” which recommends authorization of a shore protection project to rebuild the beach west of the Harbor from the Northern Indiana Public Service Company (NIPSCO) property to the existing rock revetment (miles 524 to 526) and to replenish the beach periodically. This plan is designed to mitigate only the erosion caused by harbor structures.
In developing the proposed plan, the Corps considered modification of the harbor structures as an alternative. At the minimum, a detached breakwater and most of the east pier would have to be removed. The Harbor would then lose its function as a harbor of refuge, and increased dredging of the channel would be required. The report states that more extensive removal of improvements would probably be required. The maximum removal plan would result in the loss of a portion of the municipal park to the east of the Harbor and the Harbor outer basin. The NIPSCO power plant, located between the Harbor and the Dunes, would have to be modified.
Construction of the recommended project requires congressional authorization and funding. A draft environmental impact statement for the project has been filed with the Council on Environmental Quality. The report on the recommended project is expected to be submitted to Congress in the next year (1979-80).
Issues:
The issues on review are:
1. Whether the Secretary, acting through the Corps, has any peremptory duty under § 426i to take immediate- structural modification action to remedy the shore erosion on the Dunes when that erosion is primarily caused by federal navigation improvements, and if so, whether that duty may be enforced through mandamus (Count I); and
2. Whether the Secretary’s exercise of discretion is subject to declaratory judgment and mandatory injunctive relief under the APA (Count II).
Discussion:
The Council, as private parties, seeks to compel the Corps, by judicial decree, to remedy a situation causing severe damage to a National Park. No issue is raised as to legal standing of the Council.
It is manifest that the judiciary cannot compel through a writ of mandamus a federal official to perform any function unless the official is clearly directed by law to perform such a duty. This Court has held that mandamus jurisdiction is present only when a clear, plainly defined, and peremptory duty on the federal defendant is shown and there is a lack of an adequate remedy other than mandamus. Vishnevsky v. United States, 581 F.2d 1249 (7th Cir. 1978), citing City of Highland Park v. Train, 519 F.2d 681, 691 (7th Cir. 1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), and City of Milwaukee v. Saxbe, 546 F.2d 693, 700 (7th Cir. 1976). The peremptory duty must be either a ministerial one or an obligation to act within a specified range of discretion. Davis Associates, Inc. v. Secretary, HUD, 498 F.2d 385, 389 (1st Cir. 1974); Miller v. Ackerman, 488 F.2d 920, 921-22 (8th Cir. 1973). Finally, mandamus jurisdiction does not lie to direct the exercise of administrative discretion within its lawful boundaries. Wilbur v. United States, ex rel. Kadrie, 281 U.S. 206, 218-19, 50 S.Ct. 320, 74 L.Ed. 809 (1930).
Before delving further into the Council’s entitlement to a writ of mandamus, it is first necessary to meet the prerequisite for any writ of mandamus, namely: is there a lack of an adequate remedy for the Council’s grievances other than mandamus? The Council suggests in their Count II such a remedy by way of declaratory and mandatory injunctive relief under the provisions of the APA, §§ 701, et seq. The Council contends that the Corps’ interim protection work (rock revetment and beach nourishment) was miniscule, and its delay by conducting studies and recommending what to do, rather than taking positive action to modify the harbor structures to prevent further erosion, constitutes unreasonable delay and hence an abuse of the Secretary’s discretion authorized under § 426i. The Council relies upon the holding in Secretary of Labor v. Farino, 490 F.2d 885, 888-93 (7th Cir. 1973). In fact, the Council contends that the District Court did not reach and deal with the issues under Count II (review under APA) in its memorandum opinion. We and the Council read the memorandum with different sights. It is true that the memorandum does not deal with the issues under Counts I and II separately in an A, B topical fashion; however, we read the memorandum as an ultimate finding of fact and conclusion of law that the Council has just simply not presented on the record any cause upon which relief can be granted under either Count II or Count I.
The Council has misplaced its trust in Farino under the facts presented here. In Farino, an employer sought APA review of the Secretary’s denial of an Alien Employment Certification so that he could continue to employ an alien. Congress had provided that before the Secretary could issue such an employment certificate, the Secretary must find and certify that the alien’s entry into the labor market would not adversely affect American labor in various particu.lars. Id. at 887. The Secretary denied the Alien Employment Certification and contended that Congress had committed such certification to his discretion and that judicial review was forbidden under § 701(a) which provides in part:
“This chapter applies, . . . except to the extent that—
“. . .; or
“(2) agency action is committed to agency discretion by law.”
Farino recognizes that the Secretary’s decision did not fall within the very narrow exception and held that under the test and standard of Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), and the “law to apply” (8 U.S.C. § 1182(a)(14)), the Secretary’s decision was subject to judicial review under the provisions of the APA. Farino then adopts the Overton Park standard and procedures for review by the District Court which are:
“[T]he district court is first required to find whether the Secretary acted within the scope of his authority. As mandated by Section 10(e)(2)(A) of the Administrative Procedure Act, supra, his determination must not be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ To make such a finding the district court must consider whether the Secretary’s decision ‘was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ Nevertheless, ‘the ultimate standard of review is a narrow one,’ and the district court may not ‘substitute its judgment for that of the agency.’ 401 U.S. at 415-416, 91 S.Ct. at 823.” 490 F.2d at 889.
There ends Farino’s succor to the Council. Farino puts the Secretary’s decision to that test or standard and does not fault the decision, but only deals with a “procedural issue, viz., whether plaintiffs were afforded an adequate opportunity to be heard before the [Secretary].” Id. at 890. Because of an unclear record, Farino remanded the cause to the District Court for a determination of that issue.
Furthermore, in this case the District Court did review the Secretary’s decision and substantially complied with the Over-ton Park standard and procedure for APA review. It goes without saying that the Council was granted a full due process hearing on its claims before the District Court. The evidence of record was fully considered by the District Court which made the following pertinent findings of fact and conclusions of law:
“[Although the Secretary has authority to perform the acts stated [in § 426i], he is under no obligation to take such action.
“Having determined that the Secretary’s duties are discretionary in nature, the next question is whether the court may compel the performance of such acts. Although district courts are equipped to command discretionary conduct, the federal official remains the ultimate decision-maker. That is, he may decide to take some form of action prescribed by statute, or he may decide to do nothing at all. A court may interfere only when the official’s actions [decision] or inactions [no decision] constitute an abuse of discretion. . . . ”
See Delaware River Joint Toll Bridge Commission v. Resor, 273 F.Supp. 215, 218 (E.D.Pa.1967), citing Paramount Pictures v. Rodney, 186 F.2d 111 (3d Cir. 1951). “The record 3 shows that the Secretary is
“3 Since the court has considered materials outside the pleadings themselves, Rule 56, F.R. C.P., shall govern the disposition of this motion.”
currently considering the serious problem of erosion along the [shoreline of the Dunes] in a manner well within the parameters of Title 33. In 1970, the Town of Beverly Shores, Indiana, and the Port Authority of Michigan City, Indiana, requested the Army Corps of Engineers to study and remedy the erosion dilemma. The following year the Corps prepared a report entitled, ‘Section 111 Reconnaissance Report, Michigan City Harbor, Indiana.’ The report was a preliminary study of the effects of harbor structures on the shorelines of Michigan City and Beverly Shores. The study concluded that ‘[f]urther detailed studies will be required to develop a precise plan of improvement and determine the extent of actual shore damage attributable to the Federal navigation structure.”
We agree. The Secretary, acting through the Corps, rather than taking ill-advised precipitous affirmative action in tearing out the harbor structures, has complied with statutory and administrative requirements for well-advised decision-making.
The provisions of the National Environmental Policy Act, 42 U.S.C. §§ 4331, et seq., (NEPA) require the Corps to “utilize a systematic, interdisciplinary approach . in planning and in decisionmaking . ..” 42 U.S.C. § 4332(2)(A). NEPA further provides for the preparation of an environmental impact statement which, inter alia, includes a discussion of alternatives to the proposed action, 42 U.S.C. § 4332(2)(C)(iii); and in cases involving unresolved conflicts concerning alternate uses of available resources, it mandates study and development of appropriate alternatives. 42 U.S.C. § 4332(2)(E). NEPA, of course, applies to erosion mitigation projects undertaken pursuant to the authority of § 426i. 33 C.F.R. § 209.410(e)(2)(vii).
The Council’s allegations of unwarranted delay on the part of the Secretary are unfounded. The delay was in fact not only warranted but required by the above-mentioned procedures in reaching a decision as whether to demolish or reconstruct the harbor structures. We are satisfied from the record that the Secretary, acting through the Corps, is acting within his discretion without delay and abuse; and that he is proceeding in a reasonable and responsible manner to develop a feasible plan for the prevention of the extreme Lake Michigan water erosion threat to the Dunes. See Chromcraft Corp. v. United States EEOC, 465 F.2d 745, 748 (5th Cir. 1972); and Buckeye Cablevision, Inc. v. United States, 438 F.2d 948, 954 (6th Cir. 1971).
Furthermore, the Corps’ action to date is not subject to our review as unreasonably delayed or arbitrary and capricious under § 706(1) and (2)(A). Pursuant to 5 U.S.C. § 704, only final agency actions are subject to judicial review. In 1974, the Corps’ decision-making and planning processes were still ongoing, and as of this date, no recommendation for project authorization has been sent to Congress. The Council’s suggestion that the harbor structures be modified is being considered by the Corps as an alternative remedial measure. Hence, there is no final agency action, in the literal sense, upon which review can be predicated.
Seven-Up Co. v. FTC, 478 F.2d 755 (8th Cir.), cert. denied, 414 U.S. 1013, 94 S.C.t. 379, 38 L.Ed.2d 251 (1973), recognizes exceptions to the finality requirement regarding interim agency actions that violate constitutional immunities or rights and statutory requirements. Manifestly no statutory requirements or constitutional immunities or rights of the Council have been violated by the ongoing action of the Corps in the premises, nor can reasonable delay in a final decision concerning the proper remedy for the erosion be considered a final denial of all relief. Compare Environmental Defense Fund, Inc. v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093 (1970).
The Council’s cause under federal common law of nuisance has been abandoned on appeal.
We conclude that the record produced in support of the allegations of Count II present no genuine issues as to any material fact and that the Secretary is entitled to a judgment as a matter of law. The District Court did not err in granting the summary judgment.
We return to the consideration of the Council’s prayer for Writ of Mandamus under the allegations of Count I.
The Council speaks of § 426i with a forked tongue. Under its Count II (APA review), they speak of the statute as authorizing discretionary decisions to the Secretary, while at the same time and citing a series of statutes they contend under their Count I (Mandamus) that the section imposes a peremptory duty and obligation to decide to modify the harbor structures. None of the statutes cited governing the activities of the Corps nor other federal statutes of general applicability creates such a simplistic, peremptory duty. All statutes cited by Council, except § 426i are inapposite to the erosion problem at issue in this litigation. 33 U.S.C. § 540 merely vests continuing jurisdiction over improvements in navigable waters in the Secretary and the Corps. 33 U.S.C. § 577 authorizes an emergency fund for flood protection works. 33 U.S.C. §§ 426, 426e and 426g do authorize the Corps to undertake small shore and beach restoration projects in conjunction with local governments. But these statutes expressly leave the determination of whether to proceed with such projects to the discretion of the Corps.
The House Committee Report states that the purpose of § 426i is to enable the Corps to take remedial action if an existing navigation project creates erosion damage. H.Rept.No.1709, 90th Cong., 2d Sess. 58-59 (1968). The report expressly approves the Corps’ policy of including erosion mitigation measures in plans for new navigation projects, and describes the bill as a measure to extend that policy to existing projects. Thus, the legislative history shows that § 426i was not enacted to limit the Corps’ discretion, but, on the contrary, to permit the Corps to apply its expertise and discretion to the problem of erosion damage caused by existing navigational structures.
Section 426i is applicable to the erosion problem of the Dunes, but Council must bear in mind that the Secretary is limited to the first costs of less than One Million Dollars in any action he may decide to direct in alleviating the erosion problem. The Corps estimates the cost of any reasonably effective erosion prevention course of action at many times that limit. Congress bears the brunt of the problem with well considered expertise and advice of the Corps.
The parties have cited no judicial interpretation or construction of § 426i nor has our independent search found any. We hold that the language of § 426i and the congressional intent in enactment grant and authorize only discretionary decision of action or non-action on the part of the Secretary, acting through the Corps, in the premises. No clear, plainly defined and peremptory duty on the part of the Secretary is spelled out or, by any stretch, to be garnered inf eren tially upon which a Writ of Mandamus to comply can be predicated.
We conclude from the record presented that there are no genuine issues as to any material fact and the Secretary is entitled to a judgment as a matter of law. The District Court did not err in granting the summary judgment on Count I.
The memorandum opinion of the District Court entered on May 10, 1977, granting the Secretary’s motion for summary judgment and the judgment entered thereon are each affirmed.
AFFIRMED.
. 33 U.S.C. § 426i provides:
“The Secretary of the Army, acting through the Chief of Engineers, is authorized to investigate, study, and construct projects for the prevention or mitigation of shore damages attributable to Federal navigation works. The cost of installing, operating, and maintaining such projects shall be borne entirely by the United States. No such project shall be constructed without specific authorization by Congress if the estimated first cost exceeds $1,000,000.” (Emphasis added.)
The term “first cost” is defined as all costs for investigation, design, and construction incurred subsequent to transmittal of a Reconnaissance Report to the Office of the Chief of Engineers for approval. 33 C.F.R. 263.15(b)(1).
. The lengthy delay between submission of the Corps’ motion and decision was apparently occasioned by retirement of the judge originally assigned to the case and reassignment of the case.
. Michigan City Harbor is located at approximately mile 523 on the shoreline; the border of the Dunes is at approximately mile 524, one mile west. The base point for these mile figures is undisclosed. A Northern Indiana Public Service Company installation is located on the intervening land.
. Section 702 in its pertinent part provides:
“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. . . . Provided, That any mandatory or injunctive decree shall specify the Federal officer . . . (by name or by title) . .
Section 706 in its pertinent part provides:
“The reviewing court shall—
“(1) compel agency action unlawfully withheld or unreasonably delayed; and
“(2) hold unlawful and set aside agency action, findings and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
“(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;”
. See Holmes v. United States Board of Parole, 541 F.2d 1243, 1247 n.5 (7th Cir. 1976); Lovallo v. Froehike, 468 F.2d 340, 343 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973).
. For this reason, the question of whether the Corps’ proposed plan for remedial action is in accordance with Corps’ regulations should be postponed until final action is taken. It should be noted, however, that one of the regulations cited by Council applies to Small Beach Erosion Control Projects, 33 U.S.C. § 426g, and not to § 426i. Projects undertaken pursuant to § 426g involve cost sharing with local governmental units.
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_fedlaw
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
ESTATE of Mary Z. BRYAN, deceased, Byron E. Bryan, Executor, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent (three cases). ESTATE of James E. BRYAN, deceased, First Citizens Bank & Trust Co., Executor, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. ESTATE of Mary Z. BRYAN, deceased, Byron E. Bryan, Executor, Respondent.
Nos. 9675-9679.
United States Court of Appeals Fourth Circuit.
Argued June 30, 1965.
Decided July 22, 1966.
Scott P. Crampton and Stanley Worth, Washington, D. C. (Korner, Doyle, Worth & Crampton, Washington, D. C., on brief), for petitioners in Nos. 9675, 9676, 9677 and 9678, and respondent in No. 9679.
Thomas L. Stapleton, Attorney, Department of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson and David O. Walter, Attorneys, Department of Justice, on brief), for respondent in Nos. 9675, 9676, 9677 and 9678, and petitioner in No. 9679.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.
HAYNSWORTH, Chief Judge:
These petitions for review of decisions of the Tax Court of the United States present but two issues for consideration.
James E. Bryan and Mary Z. Bryan were husband and wife residing in North Carolina. They owned Bryan Sand and Rock Company, which was engaged in the quarrying of sand, rock and gravel. Until May 1952 Bryan Rock was a corporation of which James and Mary were the only shareholders. On April 30, 1952, the corporation was liquidated and the business was continued under the same name, but as a partnership with James and Mary as co-partners. Upon James’ death in 1953, the partnership was dissolved and, pursuant to James’ will, a limited partnership was formed with Mary as general partner and James’ executor as limited partner. Each had an equal share in the profits of the enterprise.
The life of the limited partnership was cut short, after only Í1/2 years, by the death of Mary on July 9, 1957. The business was continued until July 31, 1957, when liquidation was completed and a sale to a corporation controlled by the executors was consummated. Several years later a sale of the stock of this corporation was made to an unrelated corporation.
The Commissioner assessed deficiencies in income taxes paid for the years 1955, 1956, 1957 and 1958. The taxpayers questioned these assessments in the Tax Court and, by amended petition there, presented a claim for additional depreciation deductions for the tax years 1955, 1956 and 1957. The Tax Court determined deficiencies for the years challenged by the Commissioner and disallowed the deductions for additional depreciation claimed by the taxpayers.
Review in this Court has been sought by the taxpayers on only two of the issues in controversy below, both of which concern years in which the business was operated as a limited partnership.
I.
During the taxable periods in controversy Bryan Rock owned over 300 pieces of depreciable property, including power shovels, cranes, bulldozers, trucks and the like, as well as several structures. The depreciation basis for all items acquired prior to May 1, 1952, was the fair market value of the assets on that date as determined by one F. Lee Heidenreieh when the corporation was liquidated on April 30 of that year.
All items were depreciated on a straight-line basis over useful lives determined by D. T. Bailey, managing executive and long-time key employee of the company, and the certified public accountants who prepared the tax returns in question. Bailey was familiar with each item and the particular use to whien it was put. No salvage value was deducted from the basis of the assets in figuring annual depreciation, for the partnership’s excellent maintenance and repair policies permitted it to use property until the end of its physical life. It was then sold as scrap and the receipts therefrom returned as ordinary income.
Bailey was unaware that the useful lives he assigned the items were generally longer than those set forth for the construction industry by the Internal Revenue Service depreciation guide known as Bulletin F, and that the depreciation rates were correspondingly lower. His estimates were based on his considerable experience in the industry, and on the repair and maintenance experience of the partnership. It is not contended that the useful lives set by Bailey were unreasonable in view of the then known circumstances. In fact, the taxpayers experienced no dissatisfaction with the depreciation deductions until after the death of Mary in 1957.
At that time another appraisal of the assets was made by Heidenreieh. Between the two appraisals the replacement cost, new, of the portable equipment used by the partnership had increased, due to inflation, almost thirty per cent. The taxpayers contend that when they deduct this “inflationary element” from the 1957 appraised value, the net, non-inflated market value of the portable property is almost $500,000 lower than the depreciated basis. This, they assert, conclusively indicates that the rates of depreciation utilized were too low. They now seek to claim, retroactively, the generally shorter useful lives suggested for comparable equipment in Bulletin F, thereby increasing the total depreciation deductions for the years in question by an amount approximately sufficient to reduce the unrecovered cost to the calculated 1957 market value without the inflation increment.
The Tax Court, after hearing the testimony of Bailey, the accountants and others, and after studying the exhibits offered, foünd that the original useful life estimates were more accurate than those sought to be retroactively substituted. As this finding is amply supported by the evidence, we affirm the Tax Court’s disallowance of the additional deductions.
Preliminarily, we note that the taxpayer’s reliance on Bulletin F is misplaced. Bulletin F merely represents the average experience in various designated industries, and sets forth the average useful lives of specified assets employed in each. Its use is restricted to those taxpayers who have inadequate industrial experience to make independent estimates, and it does not purport to promulgate lives which supersede the experience of a particular taxpayer. Bryan Rock’s use of property until the end of its physical life dissociates it from industrial averages. Its maintenance is said to have been quite superior.
Bryan Rock, acting through Mr. Bailey, had the capacity to, and did, estimate reasonable useful lives for its own assets.
Bailey, who had been with the company since 1941, and in a managerial capacity since 1946 or 1947, was personally familiar with each piece of equipment, as well as its use and maintenance. It had been his responsibility to replace property that did wear out. Moreover, Bailey had the advice of professional accountants who were familiar with the industry. They apparently relied on his expertise, for at no time did they suggest using the shorter lives suggested in Bulletin F. We conclude that in light of Bryan Rock’s actual experience, the partnership is not now entitled to adopt the lives set forth in Bulletin F; we doubt that it ever was.
Nor do we agree with the taxpayers’ contention that inadequate depreciation is shown by the fact that the 1957 depreciated basis was higher than the then market value of the assets. The decline in actual value of an asset rarely, if ever, coincides exactly with the straight-line basis decline. The mere fact that, at midlife of an asset, its basis is either higher or lower than its market value indicates nothing, so far as we can see, about the accuracy of the useful life estimate. Such a variance could, and probably would, frequently occur even if the useful life could be predicted with absolute accuracy. A finding that a useful life estimate was excessive could not be based on this variance.
What this variance does suggest, if it is substantial and continuing, is that a more reasonable method of depreciation might have been selected. The Congress had in mind just this objection to the “rough and imperfect” straight-line method when it approved optional methods permitting larger deductions in the earlier years of use. Portable equipment acquired after December 31, 1953 could have been written off by one of the accelerated methods, but the partners elected in the returns to write them off on a straight-line basis.
We hold, in summary, that the taxpayers have failed to prove that the useful lives, as originally estimated by Mr. Bailey, approved by the partnership’s accountants and accepted by the Commissioner, are too long. On this issue the Tax Court will be affirmed.
II.
In the second issue there is a firmer foundation for the taxpayers’ claim.
During the taxable period ending January 1, 1955, an air compressor and certain conveyor equipment belonging to the partnership were destroyed when a defectively manufactured explosive malfunctioned. The equipment was replaced at a cost of $22,425.82, which amount the partnership debited to expense on company books. Later, apparently, that amount was included on the partnership tax return in the deductions for business expense. After the damaged property had been replaced, the company received $22,500 from the manufacturer of the explosive as payment for part of the damage done. This amount was credited to expense when received and, presumably, returned as income in that year, or reduced the expense deduction by that amount. The Commissioner disallowed the deduction, characterizing the cost of the replacement of the equipment as a capital expenditure, without any compensating adjustment for the amount received in reimbursement.
In the Tax Court the taxpayers’ principal argument was that the expenditure was one for repairs, and was properly deducted as an expense. In the opening statement of counsel below, however, it was contended that the two items offset each other, and in their brief filed below, the taxpayers argued that the replacement cost, offset by the reimbursement, could reasonably be treated as a casualty loss under § 165 or as an involuntary conversion under § 1033.
The argument that the cost of the new equipment was properly expensed has been abandoned in this Court.
The Tax Court recognized that “in all likelihood there should have been some adjustment if the cost of the replacements must be capitalized,” but declined to consider the casualty loss and involuntary conversion arguments, because they were raised for the first time on brief. It refused to hold that the erroneous expense item was corrected by the offsetting credit because there was “no evidence showing when the $22,500 was received, what year it was credited to expense, whether the destroyed equipment had any remaining basis and, if so, the amount thereof, or whether a loss was claimed as a result of the destruction on the old equipment.” We think the Tax Court judge’s own awareness of important, unresolved questions of fact requires a remand for further inquiry.
We are puzzled at the Tax Court’s inability to determine, from the returns in evidence, whether a casualty loss was claimed as a result of the accident. We also think that the depreciation records of the company should reveal the basis, if any, of the destroyed property. If no such property is listed thereon, this fact, plus the partnership’s attempted tax treatment of the replacement costs, would indicate that the replaced property was either expensed in the year of acquisition, or had a zero basis through depreciation. This can be determined on remand.
The destruction of property, followed by reimbursement and replacement, can be treated as an involuntary conversion, upon which gain is realized only to the extent the reimbursement exceeds the replacement cost. The replacement property assumes a basis equal to that of the destroyed asset. We perceive no reason why the destruction and replacement, followed immediately, or soon, by reimbursement, should not have been so treated.
The case will be remanded to the Tax Court for further consideration of this contention. Otherwise, the Tax Court’s decision is affirmed.
Affirmed in part and remanded in part for further proceedings not inconsistent with this opinion.
. Tlie executors of the two partners.
. Covered by returns filed for periods ending January 1, 1955, January 1, 1956, January 1, 1957 and July 1, 1957.
. This practice was questioned by the Commissioner, who sought to require deduction of a salvage value, but approved by the Tax Court. No review has been requested on this issue.
. The Tax Court did not hold that under no circumstances may a taxpayer retroactively shorten his estimate of the useful life of a depreciable asset. Though the Commissioner urged that in this Court, the case does not present that issue for decision; we are required only to review the Tax Court’s finding that the original estimates were the more reasonable. Prospective changes in remaining useful life are allowed only when there is a “clear and convincing basis for the redetermination.” Treasury Regulations § 1.167 (a)-1(b). A retroactive change for “open” years, if allowed, would, at least, have to meet this test.
. Massey Motors v. United States, 364 U.S. 92, 102, 80 S.Ct. 1411, 4 L.Ed.2d 1592. See also Treasury Regulations § 1.167 (b).
. Johnson v. Commissioner of Internal Revenue, 4 Cir., 302 F.2d 86, 88.
. 26 U.S.C.A. § 167(b).
. If the original use of the property commenced with the partners, and commenced after December 31, 1953. 26 U.S.C.A. § 167(c) (2).
. The partners recognized income at least, of course, to the extent the reimbursement exceeded the loss.
. 26 U.S.C.A. § 165.
. 26 U.S.C.A. § 1033.
. Citing Eleanor C. Shoemaker, 38 T.C. 192. As noted above, however, there was adversión to the contention in counsel’s opening statement.
. 26 U.S.C.A. § 1033(a) (3) (A).
. See 3 Mertens, Law of Federal Income Taxation, § 20.173 at 774 and the legislative history to § 1033(a) (3) (B) of the Internal Revenue Code of 1954, cited therein at footnote 66.
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:
|
sc_authoritydecision
|
A
|
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.
REGAN, SECRETARY OF THE TREASURY, et al. v. TAXATION WITH REPRESENTATION OF WASHINGTON
No. 81-2338.
Argued March 22, 1983
Decided May 23, 1983
Rehnquist, J., delivered the opinion for a unanimous Court. Black-mun, J., filed a concurring opinion, in which Brennan and Marshall, JJ., joined, post, p. 551.
Solicitor General Lee argued the cause for appellants in No. 81-2338. With him on the briefs were Assistant Attorney General Archer, Deputy Solicitor General Wallace, Stuart A. Smith, Richard Farber, and Robert S. Pomerance.
John Cary Sims argued the cause for appellee in No. 81-2338. With him on the brief were Alan B. Morrison and Thomas F. Field.
Together with No. 82-134, Taxation With Representation of Washington v. Regan, Secretary of the Treasury, et al., also on appeal from the same court.
Briefs of amici curiae urging reversal were filed by Sheldon S. Cohen, Julie Noel Gilbert, Dennis B. Drapkin, George H. Gangwere, and Wilmer S. Schantz, Jr., for the Veterans of Foreign Wars of the United States; by Joseph C. Zengerle and Zachary R. Karol for the Disabled American Veterans et al.; and by Mitchell Rogovin and George T. Frampton, Jr., for the American Legion.
Thomas A. Troyer, H. David Rosenbloom, Albert G. Lauber, Jr., and John G. Milliken filed a brief for the American Association of Museums et al. as amici curiae urging affirmance.
Justice Rehnquist
delivered the opinion of the Court.
Appellee Taxation With Representation of Washington (TWR) is a nonprofit corporation organized to promote what it conceives to be the “public interest” in the area of federal taxation. It proposes to advocate its point of view before Congress, the Executive Branch, and the Judiciary. This case began when TWR applied for tax-exempt status under § 501(c)(3) of the Internal Revenue Code, 26 U. S. C. § 501(c)(3). The Internal Revenue Service denied the application because it appeared that a substantial part of TWR’s activities would consist of attempting to influence legislation, which is not permitted by § 501(c)(3).
TWR then brought this suit in District Court against the appellants, the Commissioner of Internal Revenue, the Secretary of the Treasury, and the United States, seeking a declaratory judgment that it qualifies for the exemption granted by § 501(c)(3). It claimed the prohibition against substantial lobbying is unconstitutional under the First Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause. The District Court granted summary judgment for appellants. On appeal, the en banc Court of Appeals for the District of Columbia Circuit reversed, holding that § 501(c)(3) does not violate the First Amendment but does violate the Fifth Amendment. 219 U. S. App. D. C. 117, 676 F. 2d 715 (1982). Appellants appealed pursuant to 28 U. S. C. §1252, and TWR cross-appealed. We noted probable jurisdiction of the appeal, 459 U. S. 819 (1982).
TWR was formed to take over the operations of two other nonprofit corporations. One, Taxation With Representation Fund, was organized to promote TWR’s goals by publishing a journal and engaging in litigation; it had tax-exempt status under § 501(c)(3). The other, Taxation With Representation, attempted to promote the same goals by influencing legislation; it liad tax-exempt status under § 501(c)(4). Neither predecessor organization was required to pay federal income taxes. For purposes of our analysis, there are two principal differences between § 501(c)(3) organizations and § 501(c)(4) organizations. Taxpayers who contribute to § 501(c)(3) organizations are permitted by § 170(c)(2) to deduct the amount of their contributions on their federal income tax returns, while contributions to § 501(c)(4) organizations are not deductible. Section 501(c)(4) organizations, but not § 501(c)(3) organizations, are permitted to engage in substantial lobbying to advance their exempt purposes.
In these cases, TWR is attacking the prohibition against substantial lobbying in § 501(c)(3) because it wants to use tax-deductible contributions to support substantial lobbying activities. To evaluate TWR’s claims, it is necessary to understand the effect of the tax-exemption system enacted by Congress.
Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual’s contributions. The system Congress has enacted provides this kind of subsidy to nonprofit civic welfare organizations generally, and an additional subsidy to those charitable organizations that do not engage in substantial lobbying. In short, Congress chose not to subsidize lobbying as extensively as it chose to subsidize other activities that nonprofit organizations undertake to promote the public welfare.
It appears that TWR could still qualify for a tax exemption under § 501(c)(4). It also appears that TWR can obtain tax-deductible contributions for its nonlobbying activity by returning to the dual structure it used in the past, with a § 501(c)(3) organization for nonlobbying activities and a § 501(c)(4) organization for lobbying. TWR would, of course, have to ensure that the § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.
TWR contends that Congress’ decision not to subsidize its lobbying violates the First Amendment. It claims, relying on Speiser v. Randall, 357 U. S. 513 (1958), that the prohibition against substantial lobbying by § 501(c)(3) organizations imposes an “unconstitutional condition” on the receipt of tax-deductible contributions. In Speiser, California established a rule requiring anyone who sought to take advantage of a property tax exemption to sign a declaration stating that he did not advocate the forcible overthrow of the Government of the United States. This Court stated that “[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Id., at 518.
TWR is certainly correct when it states that we have held that the government may not deny a benefit to a person because he exercises a constitutional right. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). But TWR is just as certainly incorrect when it claims that this case fits the Speiser-Perry model. The Code does not deny TWR the right to receive deductible contributions to support its non-lobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise a constitutional right.
This aspect of these cases is controlled by Cammarano v. United States, 358 U. S. 498 (1959), in which we upheld a Treasury Regulation that denied business expense deductions for lobbying activities. We held that Congress is not required by the First Amendment to subsidize lobbying. Id., at 513. In these cases, as in Cammarano, Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for TWR’s lobbying. We again reject the “notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.” Id., at 515 (Douglas, J., concurring).
TWR also contends that the equal protection component of the Fifth Amendment renders the prohibition against substantial lobbying invalid. TWR points out that § 170(c)(3) permits taxpayers to deduct contributions to veterans’ organizations that qualify for tax exemption under §501(c)(19). Qualifying veterans’ organizations are permitted to lobby as much as they want in furtherance of their exempt purposes. TWR argues that because Congress has chosen to subsidize the substantial lobbying activities of veterans’ organizations, it must also subsidize the lobbying of § 501(c)(3) organizations.
Generally, statutory classifications are valid if they bear a rational relation to a legitimate governmental purpose. Statutes are subjected to a higher level of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech, or employ a suspect classification, such as race. E. g., Harris v. McRae, 448 U. S. 297, 322 (1980). Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes. More than 40 years ago we addressed these comments to an equal protection challenge to tax legislation:
“The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized .... [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom.in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Madden v. Kentucky, 309 U. S. 83, 87-88 (1940) (footnotes omitted).
See also San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 40-41 (1973); Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356, 359-360 (1973).
We have already explained why we conclude that Congress has not violated TWR’s First Amendment rights by declining to subsidize its First Amendment activities. The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to “ ‘ai[m] at the suppression of dangerous ideas.’” Cammarano, supra, at 513, quoting Speiser, 357 U. S., at 519. But the veterans’ organizations that qualify under §501(c)(19) are entitled to receive tax-deductible contributions regardless of the content of any speech they may use, including lobbying. We find no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect. The sections of the Internal Revenue Code here at issue do not employ any suspect classification. The distinction between veterans’ organizations and other charitable organizations is not at all like distinctions based on race or national origin.
The Court of Appeals nonetheless held that “strict scrutiny” is required because the statute “affect[s] First Amendment rights on a discriminatory basis.” 219 U. S. App. D. C., at 130, 676 F. 2d, at 728 (emphasis supplied). Its opinion suggests that strict scrutiny applies whenever Congress subsidizes some speech, but not all speech. This is not the law. Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures. Under Cammarano, such a statute would be valid. Congress might also enact a statute providing public money for an organization dedicated to combating teenage alcohol abuse, and impose no condition against using funds obtained from Congress for lobbying. The existence of the second statute would not make the first statute subject to strict scrutiny.
Congressional selection of particular entities or persons for entitlement to this sort of largesse “is obviously a matter of policy and discretion not open to judicial review unless in circumstances which here we are not able to find. United States v. Realty Co., [163 U. S. 427,] 444 [(1896)].” Cincinnati Soap Co. v. United States, 301 U. S. 308, 317 (1937). See also, id., at 313; Alabama v. Texas, 347 U. S. 272 (1954). For the purposes of these cases appropriations are comparable to tax exemptions and deductions, which are also “a matter of grace [that] Congress can, of course, disallow . . . as it chooses.” Commissioner v. Sullivan, 356 U. S. 27, 28 (1958).
These are scarcely novel principles. We have held in several contexts that a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny. Buckley v. Valeo, 424 U. S. 1 (1976), upheld a statute that provides federal funds for candidates for public office who enter primary campaigns, but does not provide funds for candidates who do not run in party primaries. We rejected First Amendment and equal protection challenges to this provision without applying strict scrutiny. Id., at 93-108. Harris v. McRae, supra, and Maher v. Roe, 432 U. S. 464 (1977), considered legislative decisions not to subsidize abortions, even though other medical procedures were subsidized. We declined to apply strict scrutiny and rejected equal protection challenges to the statutes.
The reasoning of these decisions is simple: “although government may not place obstacles in the path of a [person’s] exercise of. . . freedom of [speech], it need not remove those not of its own creation.” Harris, 448 U. S., at 316. Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution “does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” Id., at 318. As we said in Maher, “[constitutional concerns are greatest when the State attempts to impose its will by force of law . . . .” 432 U. S., at 476. Where governmental provision of subsidies is not “ ‘aimed at the suppression of dangerous ideas,’ ” Cammarano, 358 U. S., at 513, its “power to encourage actions deemed to be in the public interest is necessarily far broader.” Maher, supra, at 476.
We have no doubt but that this statute is within Congress’ broad power in this area. TWR contends that § 501(c)(3) organizations could better advance their charitable purposes if they were permitted to engage in substantial lobbying. This may well be true. But Congress — not TWR or this Court — has the authority to determine whether the advantage the public would receive from additional lobbying by charities is worth the money the public would pay to subsidize that lobbying, and other disadvantages that might accompany that lobbying. It appears that Congress was concerned that exempt organizations might use tax-deductible contributions to lobby to promote the private interests of their members. See 78 Cong. Rec. 5861 (1934) (remarks of Sen. Reed); id., at 5959 (remarks of Sen. La Follette). It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying.
It is also not irrational for Congress to decide that, even though it will not subsidize substantial lobbying by charities generally, it -will subsidize lobbying by veterans’ organizations. Veterans have “been obliged to drop their own affairs to take up the burdens of the nation,” Boone v. Lightner, 319 U. S. 561, 575 (1943), “‘subjecting themselves to the mental and physical hazards as well as the economic and family detriments which are peculiar to military service and which do not exist in normal civil life.’” Johnson v. Robison, 415 U. S. 361, 380 (1974) (emphasis deleted). Our country has a longstanding policy of compensating veterans for their past contributions by providing them with numerous advantages. This policy has “always been deemed to be legitimate.” Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279, n. 25 (1979).
The issue in these cases is not whether TWR must be permitted to lobby, but whether Congress is required to provide it with public money with which to lobby. For the reasons stated above, we hold that it is not. Accordingly, the judgment of the Court of Appeals is
Reversed.
Section § 501(c)(3) grants exemption to:
“Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition ... , or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office” (emphasis supplied).
The Due Process Clause imposes on the Federal Government requirements comparable to those that the Equal Protection Clause of the Fourteenth Amendment imposes on the States. E. g., Schweiker v. Wilson, 450 U. S. 221, 226, n. 6 (1981).
Appellants contend that we lack jurisdiction of the cross-appeal because 28 U. S. C. § 1252 refers only to appeals, and this Court’s Rule 12.4 only establishes a procedure for taking a cross-appeal. Section 1252 provides:
“Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action ... to which the United States or any of its agencies ... is a party” (emphasis supplied). This language is broad enough to encompass appellee’s cross-appeal. We hold that it does. Therefore, we deny the appellants’ motion to dismiss, and decide the cross-appeal together with the appeal.
Unless otherwise indicated, all citations to statutes in this opinion refer to the Internal Revenue Code, 26 U. S. C.
Section 501(c)(4) grants exemption to:
“Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, . . . and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.”
In stating that exemptions and deductions, on the one hand, are like cash subsidies, on the other, we of course do not mean to assert that they are in all respects identical. See, e. g., Walz v. Tax Comm’n, 397 U. S. 664, 674-676 (1970); id., at 690-691 (BRENNAN, J., concurring); id., at 699 (opinion of Harlan, J.).
TWR and some amici are concerned that the IRS may impose stringent requirements that are unrelated to the congressional purpose of ensuring that no tax-deductible contributions are used to pay for substantial lobbying, and effectively make it impossible for a § 501(c)(3) organization to establish a § 501(e)(4) lobbying affiliate. No such requirement in the Code or regulations has been called to our attention, nor have we been able to discover one. The IRS apparently requires only that the two groups be separately incorporated and keep records adequate to show that tax-deductible contributions are not used to pay for lobbying. This is not unduly burdensome.
We also note that TWR did not bring this suit because it was unable to operate with the dual structure and seeks a less stringent set of bookkeeping requirements. Rather, TWR seeks to force Congress to subsidize its lobbying activity. See Tr. of Oral Arg. 37-39.
Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U. S. 290 (1981), upon which TWR relies, is not to the contrary. In that case the challenged ordinance regulated First Amendment activity by limiting individuals’ expenditures of their own money on political speech.
TWR contends that Congress has overruled Cammarano by enacting § 162(e), which permits businesses to deduct certain lobbying expenses that are “ordinary and necessary [business] expenses.” See Brief for Ap-pellee 13. It is elementary that Congress’ decision to permit deductions does not affect this Court’s holding that refusing to permit them does not violate the Constitution.
The rules governing deductibility of contributions to veterans’ organizations are not the same as the analogous rules for § 501(c)(3) organizations. For example, an individual may generally deduct up to 50% of his adjusted gross income in contributions to § 501(c)(3) organizations, but only 20% in contributions to veterans’ organizations. Compare § 170(b)(1)(A) with § 170(b)(1)(B). Taxpayers are permitted to carry over excess contributions to § 501(c)(3) organizations, but not veterans’ organizations, to the next year. § 170(d). There are other differences. If it were entitled to equal treatment with veterans’ organizations, TWR would, of course, be entitled only to the benefits they receive, not to more.
See, e. g., Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979) (veterans’ preference in civil service employment); Johnson v. Robison, 415 U. S. 361 (1974) (educational benefits).
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_respond1_1_4
|
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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
R. H. MACY &. CO., Inc., v. MACY’S DRUG STORE, Inc., et al.
No. 6044.
Circuit Court of Appeals, Third Circuit.
May 29, 1936.
Sterling & Willing, of Philadelphia, Pa. (Leon Lauterstein, Melbourne Berger-man, and Emanuel Dannett, all of New York City, of counsel), for appellant.
Albert M. Cohen and Harry Langsam, both of Philadelphia, Pa., for appellees.
Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.
BUFFINGTON, Circuit Judge.
This is an appeal from a decree of the District Court for the Eastern District of Pennsylvania, which counsel agree be heard here as if on final hearing. Suit was brought against Macy’s Drug Store, Inc., Irving H. Bernett, and Irvin Rosenfeld, by R. H. Macy & Co., Inc., for an injunction to restrain them from using the name “Macy” in their business.
In its own extensive business the plaintiff company conducts a retail department store in New York City, and does a large volume of interstate business in the United States and very considerable business in the city of Philadelphia. One of its departments deals in drugs, medicines, cosmetics, toilet preparations, cigars, cigarettes, and other articles commonly sold in drug stores. The plaintiff is commonly referred to as “Macy’s,” and its drug department is operated under the name Macy’s Drug Department.
The defendants, whose names are Bernett and Rosenfeld, operate a drug store in the city of Philadelphia, and have registered the name “Macy’s Drug Store” under the Fictitious Names Act (54 P.S. § 21 et seq.). They also use signs on their store stating it is Macy’s Drug Store. No one connected with the defendants store is named Macy. The defendants’ explanation is that they innocently used the last two syllables of the word “pharmacy” in their slogan,. “The last word in pharmacy” as the basis for their use of the name “Macy.” This contention does not deceive this court as to what their real purpose is; namely, to appropriate the good will and trade of the Macy Company.
The District Court refused to find that the defendants were guilty of unfair competition and, therefore, denied the injunction. We think, however, that the word “Macy’s” had acquired a secondary meaning and referred to the plaintiff’s business ; that its application to the defendants’ business was misleading; that its use was intended to, and had a tendency to, mislead and deceive the public into the belief that the defendants’ business was connected with that of the plaintiff. Indeed, the entire atmosphere surrounding the acquisition of the name “Macy’s” by the defendants justifies a conclusion that there was a palpable attempt to make use of the plaintiff’s reputation and good will, acquired through many years of advertising, and appropriate it to the benefit of the defendants and deceive the public. Such holding is in accord with Macy & Co. v. Colorado Clothiftg Mfg. Co. (C.C.A.) 68 F.(2d) 690, and Wall v. Rolls-Royce, 4 F.(2d) 333, 334, where this court said: “We feel the court below, sitting in equity, was justified in preventing the defendant from veiling his business under the name of ‘Rolls-Royce,’ for he had, and could have had, but one object in view, namely, to commercially use as his own a commercial asset that belonged to others, the continued use and abstraction of which is so fraught with such possibilities of irremediable injury that the only way to remedy it is to stop it at the start.”
So holding, the decree below is vacated and the .record remanded, with instructions to reinstate the bill and grant a permanent injunction.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
songer_usc2sect
|
158
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LLOYD A. FRY ROOFING COMPANY, INC. OF DELAWARE, Respondent.
No. 78-1537.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 20, 1980.
Decided June 10, 1981.
Elliott Moore, Jay E. Shanklin, Deputy Associate General Counsel, Barbara J. Kraft, N.L.R.B., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, Michael R. White, Washington, D. C., for petitioner.
John D. O’Brien, Jones, Day, Reavis & Pogue, Frank C. Heath, James A. Rydzel, Cleveland, Ohio, for respondent.
Before MARTIN and JONES, Circuit Judges, and REED, District Judge.
The Honorable Scott Reed, District Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.
NATHANIEL R. JONES, Circuit Judge.
The National Labor Relations Board (the Board) petitions for enforcement of its order that the Lloyd A. Fry Roofing Company (Fry) violated section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq. by constructively discharging an employee because he filed complaints respecting the safety of Fry’s equipment. For the reasons set forth below, we grant enforcement.
I.
Fry is a multistate manufacturer and distributor of asphalt roofing products. At its Medina, Ohio plant, Fry employs approximately 25 production workers, and four over-the-road (OTR) truck drivers who are not represented by a union. On May 21, 1975, Carl Bauer, Fry’s office manager at Medina, hired James L. Varney as an OTR driver. Because Varney was a close personal friend, Bauer waived Fry’s established policy requiring two years experience as an OTR driver. In December of 1975, Varney was laid off for lack of work. Although Varney had been reprimanded for improperly securing loads and had one accident, Fry recalled Varney in January 1976.
In November 1975, Fry entered into a one-year truck leasing agreement with Jo-ban Leasing Company. Immediately thereafter, each of the OTR drivers complained to numerous Fry officials about the safety of Joban’s trucks. Varney also questioned James Beliles, Joban’s owner, about the condition of its trucks. In response, Beliles threatened to “see to it that Varney was fired.”
As a result of the OTR drivers’ complaints, on January 13, 1976, plant manager Dorsch convened a meeting with Beliles and OTR drivers James Wade and Varney to seek a solution to the truck maintenance problems. Varney complained of the condition of the trucks and compared them unfavorably with Fry’s prior equipment. Wade agreed. Beliles promised that new equipment would be provided in the spring. Dorsch stated that no driver need operate an unsafe vehicle, but that they would have to continue to use Joban’s trucks. Beliles agreed to make repairs provided the complaints were in writing. As a consequence, Dorsch instituted an “Equipment Complaint Report” to be completed by the OTR drivers after each trip. After the meeting, Beliles again threatened Varney to “see to it that he is fired.”
The Equipment Complaint Report proved ineffective. Beliles ignored Equipment Complaint Reports listing defective lights, faulty transmissions, faulty steering wheels, maladjusted or inoperative brakes, and broken speedometers. On one occasion, Beliles tore up several forms. At Varney’s instigation, Dorsch was told of Beliles’ disregard for the Equipment Complaint Report.
In addition to filing Equipment Complaint Reports, Varney used the “Driver Vehicle Condition Report” on the back of the daily log form required by regulations of the Federal Highway Administration to note mechanical problems with Joban’s trucks. Driver Vehicle Condition Reports provide for certification by the mechanic that the defect has been repaired before further use of the vehicle. Though Varney submitted several such reports, the required repairs were not made.
Varney also asked Dorsch to have Joban’s trucks inspected by the Ohio Public Utilities Commission or by the Federal Highway Administration. Varney agreed to stop complaining if the trucks were inspected. Dorsch refused.
In early March, 1976, three of the four OTR drivers complained orally to Dorsch about Joban’s trucks. Varney threatened not to drive the trucks unless they were fixed. Shortly thereafter, an OTR driver quit because he was tired of driving Joban’s trucks.
On April 14, Varney was assigned to deliver a load in Pennsylvania. Joban’s mechanic told Varney that the truck had new brakes. During Varney’s trip, the brakes on the truck failed and he had a three-vehicle accident. In a telephone conversation with office manager Bauer, an emergency road service mechanic stated that the brakes were defective. Bauer and Dorsch told Varney that the accident was not his fault.
The day after the accident, Beliles called Dorsch and threatened to “pull all of his equipment out unless they get rid of Var-ney.” On April 19, Dorsch convened another meeting. Varney complained about the condition of Joban’s trucks. Beliles accused Varney of deliberately abusing Joban’s trucks. Beliles reiterated his oft-repeated threat that Varney be fired. Dorsch “refused,” but gave Varney an “ultimatum.” Dorsch then presented to Varney for his signature a statement, already prepared, putting him on probation for six months. Dorsch read the statement aloud. Bauer advised Varney that if he signed it he would be admitting to the violations set forth in it. Varney refused to sign. Dorsch told Varney to sign the statement or be terminated. After the meeting, Bauer conferred privately with Varney and told him that he would be foolish to sign the statement. Varney again refused to sign the statement and was fired.
Varney filed an unfair labor practice charge with the Board alleging that he was discharged for exercising rights protected by section 7 of the Act. After a hearing, an Administrative Law Judge held that Var-ney’s participation in meetings convened by Fry, use of the Equipment Maintenance Report, and efforts to enforce compliance with governmental safety regulations were related to a common concern of all OTR drivers. As a consequence, the ALJ held that Varney was engaged in protected concerted activities within the meaning of section 7 of the Act.
The ALJ concluded that Varney was subjected to “excessively harsh and unwarranted probationary status” because of his concerted activity respecting the safety of Jo-ban’s trucks. Fry’s proffered justification that Varney was discharged because he failed to tie down cargo, was tardy in deliveries, had poor customer relations, and drove carelessly were found to be pretextual.
II.
Section 7 of the Act provides that “employees shall have the right ... to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Employees may engage in concerted activities protected by section 7 regardless of whether the employees are members of a union. Vic Tanny International, Inc. v. NLRB, 622 F.2d 237, 241 (6th Cir. 1980).
An individual employee’s complaint is “concerted” if it is related to group action for the mutual aid or protection of other employees. Signal Oil & Gas Co. v. NLRB, 390 F.2d 338, 342-43 (9th Cir. 1968). Either the individual employee “is in fact acting on behalf of, or as a representative of, other employees,” NLRB v. Guernsey-Muskingum Electric Cooperative, Inc., 28 F.2d 8, 12-13 (6th Cir. 1960), or his claim “must be made with the object of inducing or preparing for group action,” Aro, Inc. v. NLRB, 596 F.2d 713, 718 (6th Cir. 1979). It is not necessary that the individual employee be appointed or nominated by other employees to represent their interests.
Protests of wages, hours, other working conditions and the presentation of job-related grievances are for the mutual aid and protection of employees. NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); Vic Tanny, supra, 622 F.2d at 241; NLRB v. Elias Brothers Restaurants, 496 F.2d 1165 (6th Cir. 1974). Additionally, an employee’s presentation of job-related grievances aimed at achieving employer compliance with governmental regulations affecting working conditions is for the mutual aid and protection of employees. Socony Mobil Oil Co. v. NLRB, 357 F.2d 662 (2d Cir. 1966). Alleluia Cushion Co., 221 NLRB No. 999 (1975). Applying these principles, we hold that Varney was engaged in concerted activity protected by section 7 of the Act.
Varney was. engaged in numerous discussions with other OTR drivers regarding their personal safety, which was a major issue at Fry. Varney expressed his concern to Fry’s management that Joban’s trucks were unsafe. Varney articulated his and the other drivers’ concerns at meetings between the OTR drivers and Fry’s management. Varney’s continued use of the Equipment Complaint Report and the Federal Highway Administration’s Driver Vehicle Condition Report to eliminate safety hazards on Joban’s trucks was for the mutual aid or protection of other employees. His attempt to enforce federal safety and state inspection regulations is protected concerted activity. Such regulations are intended to provide all employees with a safe job environment and the means to protect themselves against job hazards.
III.
Section 8(a)(1) of the Act makes it an unfair labor practice to “interfere with, restrain, or coerce employees in the exercise of ...” their section 7 rights. 29 U.S.C. § 158(a)(1). In this Circuit, if a discharge is motivated “in part” by an employee’s protected concerted activities the discharge violates section 8(a)(1) of the Act. Vic Tanny, supra, 622 F.2d at 241; NLRB v. Retail Store Employees Union, Local 876, Retail Clerks International Association, AFL-CIO, 570 F.2d 586, 590 (6th Cir. 1978). Elias Brothers Restaurants, supra, 496 F.2d at 1167. But see, NLRB v. Ogle Protection Service, 375 F.2d 497 (6th Cir.) cert. denied, 389 U.S. 843 (1967). In Wright Line, 251 NLRB No. 150 (1980), the Board has reexamined its use of the “in part” test in light of the decision in Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1979). The Supreme Court in Mt. Healthy fashioned a “test of causation which distinguishes between a result caused by [protected concerted activity] and one not so caused.” 429 U.S. at 286, 97 S.Ct. at 575. The Court reasoned that “[t]he [section 7 right of an employee] is sufficiently vindicated if such an employee is placed in no worse a position than if he had not engaged in the conduct,” Id. at 285-86, 97 S.Ct. at 575. Wright Line adopts a test of causation parallel to that set forth in Mt. Healthy:
The general counsel establishes a prima facie case that protected concerted activity was a “motivating factor” in the employer’s decision; then, the burden shifts to the employer’s decision; then, the burden shifts to the employer to prove that the same action would have taken place in the absence of the protected concerted activity.
251 NLRB at 20. Applying these principles to this case, we hold that the facts compel the conclusion that Varney would not have been discharged but for his protected activity-
It is beyond peradventure that Varney was constructively discharged on April 19. Beliles vigorously opposed Varney’s concerted activity to improve Joban’s equipment. He told Dorsch that Varney’s April 14 accident was “the last straw.” Though Dorsch stated Varney was not at fault for the accident, Dorsch adopted Beliles’ opposition to Varney’s concerted efforts by requiring him to sign a probationary statement which suggested that Varney was guilty of its detailed provisions.
Fry claims that Varney was discharged because of his careless driving, tardy departures and deliveries, treatment of customers and abuse of Joban’s equipment. However, substantial evidence supports the Board’s finding that Fry has failed to demonstrate that it would have discharged Varney in the absence of his engaging in protected concerted activities.
Varney had only one accident prior to his accident on April 14, which Dorsch admitted was not Varney’s fault. He received two tickets for traffic violations in the summer of 1975, but Fry took no action at that time. Most of the truck breakdowns were due to equipment failures. Tardy departures and deliveries were related to equipment defects. There is no evidence that Varney abused Joban’s trucks. A customer once reported that a young driver wearing cowboy boots was rude. Though Dorsch testified that he concluded Varney was the driver in question, the AU specifically discredited Dorsch’s testimony.
Varney was repeatedly reprimanded because he failed to properly stack and tie down the loading pallets and temporary plywood sides of the flat bed trucks after making a delivery. However, after each reprimand, Varney would comply with the proper procedures. Additionally, the ALJ held that nothing unusual occurred immediately preceding April 19 to make Varney’s conduct a crucial matter. Consequently, Varney’s disregard for the condition of his truck after making deliveries was not, standing alone, a crucial matter for which he would have been discharged.
Accordingly, the Board’s order is ENFORCED.
. This statement is as follows:
STATEMENT
I, James I. Varney, Hereby acknowledge that, effective April 19, 1976, I shall begin a driver’s probationary period of six months, with the Medina Plant of Lloyd A. Fry Roofing Company of Delaware, Inc. During the period April 19, 1976 through October 19, 1976, I fully understand that I will be subject to the closest scrutiny by plant management, and plant employees and agents, of my driving ability (speeding (sic) tickets, accidents, breakdowns) and my treatment of the Equipment provided me by my plant management. In addition, I understand that' I will be judged on my ability to take loads out of the plant at the time scheduled by plant management I will also be judged on my ability to deliver these loads at the time promised. My treatment of customers and their employees will be scrutinized. The time required for me to return to the plant and be ready for another trip will be monitored. The condition of my returned empty trailer with regard to its convenient re-loading by the plant shipping department will be reported to plant management. I shall promptly report, in writing, all equipment deficiencies to the agents of our leasing company, who are responsible for vehicle maintenance. I understand that these same agents will report to my plant management all equipment defects not reported by me, or reported by me late, causing a scheduled trip to be delayed. I completely understand that I am subject to immediate dismissal by plant management during my probation period.
X....................... X....................... Signature James L. Varney Date of Signature
X.......................
Witness
Copy: R. W. Manges - Ass’t MGR. (West)
G. O. Galloway - Ass’t MGR. (East)
M. S. Queen - Plant Supt.
W. E. Barnes - Ass’t Supt.
C. W. Bauer - Office Mgr.
V. C. Spires - Trans. Clerk
E. Bailey - Foreman
J. M. Myers - Foreman
R. R. Streck - Shipping Clerk
D. A. Triplett - Ass’t Shipper
E. L. Chapman - Pers, Clerk
J. Beliles - Joban Leasing, Inc.
D. Biddle - Joban Leasing, Inc.
R. L. Lantz - Senior Driver
D. Mathers - Fry Driver
E. Miller - Fry Driver
J. L. Varney - Fry Driver
J. R. Dorsch - Plant MGR.
. Additionally, the ALJ held that the agreement between Fry and the OTR drivers to institute the “Equipment Complaint Reports” was analogous to a limited collective bargaining agreement which the OTR drivers were entitled to enforce. Because of our resolution of the other issues on appeal, we do not reach this issue.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
songer_appel1_3_3
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
BRAST v. WINDING GULF COLLIERY CO.
No. 4189.
Circuit Court of Appeals, Fourth Circuit.
Jan. 4, 1938.
S. Dee Hanson, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., and ‘■Sewall Key and Norman D. Keller, Sp. Assts. to Atty. Gen., on the brief), for appellant.
E. L. Greever, of Tazewell, Va. (Chas. P. Gillespie, of Tazewell, Va., on the brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
NORTHCOTT, Circuit Judge.
This is an action at law instituted in October, 1931, in the District Court of the United States for the Northern District of West Virginia, by the appellee, Winding Gulf Colliery Company, a corporation, here referred to as the plaintiff, against Edwin A. Brast, individually and as collector of internal revenue for the collection district of West Virginia, here referred to as the defendant. The object of the suit was to recover excess corporation income and profits taxes for the years 1919, 1920, and 1926. (The defendant, however, does not question the recovery for the year 1926, only the recovery for the years 1919 and 1920 are involved). The defendant filed a special plea to which the plaintiff replied specially, and in March, 1933, a stipulation was filed submitting the case to the judge, in lieu of a jury, to decide and determine all issues of fact, as well as law. A hearing was had at which a number of witnesses were examined. On February 21, 1936, the trial judge filed a written opinion finding for the plaintiff, 13 F.Supp. 743, and on May 28, 1936, an order was entered giving judgment for the plaintiff for excess taxes paid for the years 1919 and 1920, in the amount of $27,224.34, with interest. From this action of the court below this appeal was brought.
There is no dispute as to the facts as stipulated and found by the court. The plaintiff is a West Virginia corporation owning and operating coal mines in the state of West Virginia and the defendant was, at the time the action was instituted, collector of internal revenue for the collection district of West Virginia.
The plaintiff duly filed its returns and amended returns of corporation income and profits taxes for the years 1919 and 1920, and the Commissioner of Internal Revenue, as a result of an audit of the returns, on August 24, 1925, made a determination that there was a deficiency for the year 1919 in the sum of $18,400.10 and for the year 1920, in the sum of $36,847.-76. The Commissioner in making his determination disallowed as expenses certain items for plant equipment and structures which the taxpayer had treated as expenses in its amended returns.
In September, 1925, the plaintiff filed a petition before the United States Board of Tax Appeals, asking for a review of the determination of the deficiencies by the Commissioner, and the case was set down for hearing before the Board of Tax Appeals on December 8, 1926. Before the case was reached the Board of Tax Appeals decided the same question, involved in the petition of the plaintiff, in two cases, Appeal of Union Collieries Company, 3 B. T.A. 540, and Appeal of Kirk Coal Company, 3 B.T.A. 755. After some correspondence a conference was held between the attorneys representing the taxpayer and the government, as a result of which the following stipulation was entered into:
“It is hereby stipulated and agreed by and between the above-named parties, by their respective counsel, that the deficiencies for the years 1919 and 1920 are $14,-225.84 and $29,024.84, respectively, and that a computation of the tax for the year 1921 is as follows:
Correct tax liability............ $2,362.35
Tax assessed (paid)............ 3,631.00
Overpayment to be refunded.... $1,268.65
“It is further stipulated and agreed that the Board may enter an order of redetermination accordingly.
“E. C. Conley,
“Attorney for Petitioner.
“A. W. Gregg,
“General Counsel, Bureau of Internal Revenue.”
On December 8, 1926, the Board of Tax Appeals entered its final order of redetermination as agreed on in the stipulation. No appeal was taken from this order, and the plaintiff, in accordance with the order, paid the additional taxes for the years 1919 and 1920. On November 8, and 18, 1929, respectively, the plaintiff filed a claim with the Commissioner for a refund of the additional taxes thus paid for the years 1919 and 1920, which claim was rejected by the Commissioner on a schedule dated March 7, 1930, and, as stated above, in October, 1931, the plaintiff instituted this action.
No question is raised on this appeal as to the correctness of the finding of the court below on the merits of the case, the only question presented by the defendant being whether the plaintiff was estopped from maintaining this action for the refund of taxes under the stipulation entered into and by the order of the Board of Tax Appeal based on said stipulation.
The contention of the defendant is that the plaintiff was estopped by the stipulation entered into from maintaining this action; that the stipulation was in the nature of a compromise and settlement; and that the order of the Board of Tax Appeals, entered pursuant to the stipulation, was a final adjudication of the matter here in controversy.
The plaintiff contends that the stipulation was entered into through a mistake of law; that it was in no sense a compromise, for the reason that the taxpayer received no consideration; and that the court below in the exercise of a sound discretion had a right to relieve the plaintiff from the stipulation.
The trial judge sustained the contention of tlie plaintiff, and we think properly did so. After'the plaintiff had filed its petition before the Board of Tax Appeals for a redetermination of the Commissioner’s findings of deficiencies, the Board decided the precise point raised contrary to the contention of the taxpayer, and it is apparent from the correspondence and the evidence given below that it was the intention of the taxpayer to submit to the finding of the Board. Afterwards, this court in the case of Marsh Fork Coal Company v. Lucas, 4 Cir., 42 F.2d 83, decided the same questions against the contention of the Commissioner, reversing the Board of Tax Appeals in its decisions under which the stipulation here was made. The decision in the Marsh Fork Casé has been accepted as the established law. Under these circumstances, the stipulation entered into was evidently an agreement made under a mistake of law and did not partake of the nature of a compromise. The plaintiff by the stipulation merely agreed to pay what it was not, under the law as finally determined, required to pay, and, when it discovered its mistake, had the unquestioned right to ask that it be relieved.
Had the stipulation in question been in the nature of a compromise, it was essential to its validity that it have the consent of the Secretary of the Treasury. U.S.Rev.Stat. § 3229, 26 U.S.C.A. § 1661. There is no contention that this consent was obtained. The government gave nothing to the plaintiff in the way of compromise, and the plaintiff received no benefit in the settlement of its taxes for the years 1919 and 1920 by reason of the stipulation. It simply paid what the government claimed. Under these circumstances it is well settled “that trial courts may, in the exercise of a sound judicial discretion and in the furtherance of justice, relieve parties from stipulations which they have entered into in the course of judicial proceedings, and that on appeal the determination of the trial court will not ordinarily be interferred with, except where a manifest abuse of discretion is disclosed.” 25 R.C.L. pp. 1099, 1100.
Chief Justice Marshall early laid down this principle, in the case of The Hiram, 1 Wheat. 440, 444, 14 U.S. 440, 4 L.Ed. 131, where he said: “But this court is also of opinion that if the agreement was made under a clear mistake, the claimants ought to be relieved from it, where it could be done without injury to the'opposite party. If a judgment be confessed under a clear mistake, a court of law will set that judgment aside.”
Where facts subsequently developed show, with respect to a particular matter, that a stipulation was inadvertently signed, the party may be relieved where there is no prejudice to the opposite party. Carnegie Steel Co. v. Cambria Iron Company, 185 U.S. 403, 22 S.Ct. 698, 46 L.Ed. 968.
“If we have any power at all to réverse an order of the District Court relieving a party from a stipulation, we see no reason to do so in this instance. Such stipulations are not as irrevocable as other contracts, and courts will not hold the parties to them when they are given inadvertently and are oppressive, and when the other side will suffer no unfair prejudice if they are set aside. [Citations.]” Dalton v. Bowers, 2 Cir., 53 F.2d 373, 374.
In Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 132, 73 L.Ed. 379, is found a discussion of this principle as applied to a tax case. There, after a thorough discussion, the court said: “We therefore conclude that the Mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled.”
In the case of George S. Colton Elastic Web Company v. White, D.C., 16 F.Supp. 726, will also be found a discussion of this question, and the holding in that case was in accord with the Botany Mills Case, supra.
The case of Backus v. United States, Ct.Cl., 59 F.2d 242, certiorari denied 288 U. S. 610, 53 S.Ct. 402, 77 L.Ed. 984, is relied upon by the defendant to support his contention, but an examination of that case shows that it is distinguishable from the case here. This same distinction was pointed out in the Colton Elastic Web Company Case, supra. In the Backus Case a compromise was involved and the consent of the Secretary of the Treasury to the settlement was expressly received. The other cases relied upon by the defendant were either cases of compromise where the party entering into the stipulation received some benefit or cases where the relief from the stipulation would prejudice the opposite party. In the case of White Oak Coal Company v. United States, 4 Cir., 15 F.2d 474, also relied upon by the defendant, the coal company had the right to pursue one of two courses and, having decided which course it would pursue, this court held that it was bound by that decision. This case is not in point here.
The government collected taxes which it had no right to collect. The plaintiff, under a mistake of law, believing the government had a right to collect these taxes, entered into the stipulation which was the basis of the order entered by the Board of Tax Appeals. When this mistake was discovered, the plaintiff applied to the Commissioner of Internal Revenue for a refund and, upon a refusal, brought this action. The trial court in the exercise of what we hold to be a sound discretion, and in the furtherance of justice, relieved the plaintiff from the stipulation. By this action the government suffered no prejudice. It was only required to refund the sum it' had collected, which it had no right to collect. There was no error in the action of the judge below, and the judgment is accordingly affirmed.
At the conclusion of the oral argument before this court the attorneys for the appellant presented a written motion asking, in the event the decision was affirmed, that the excess cost of printing the record, caused by the inclusion, at the instance of attorneys for the appellee, of immaterial and irrelevant matter not necessary to a decision of the issue raised on this appeal, be assessed against the appellee. The appellee filed a written answer to this motion.
Upon consideration of the motion and answer we find that the record was a needlessly long one of over 500 pages, when it should have consisted of not more than 200 pages. We also find that the attorneys for both parties were to blame for this inexcusable situation. The attorneys for the appellee were at fault in causing, by objections before the judge below, the inclution of a vast amount of useless matter in the record. The attorneys for the appellant were at fault for not bringing the matter to the attention of this court before the record was printed and the unnecessary expense incurred.
In The Nichiyo Maru, 4 Cir., 89 F.2d 539, we warned attorneys practicing in this court that a failure to comply with subsection 6(a) of rule 14, of this court, requiring the elimination from records of immaterial matter, testimony, etc., would be severely dealt with. We find the rule to have been flagrantly and inexcusably violated in this case. The clerk of the court is directed to assess $1,000 of the cost of printing the record herein against the prevailing party, the appellee. This is approx-' imately one-half of the unnecessary cost incurred as a result of the violation of the rule.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer:
|
songer_casetyp1_7-2
|
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 "economic activity and regulation".
UNITED STATES v. RAKICH.
No. 10636.
Circuit Court of Appeals, Eighth Circuit.
June 8, 1937.
Keith L. Seegmiller, of Washington, D. C. (Clinton R. Barry, U. S. Atty., of Fort Smith, Ark., G. W. Hendricks, Sp. Asst, to U. S. Atty., of Little Rock, Ark., John E. Harris and Duke Frederick, Asst. U. S. Attys., both of Fort Smith, Ark., Julius C. Martin, of Washington, D. C., and Wilbur C. Pickett, Sp. Asst, to the Atty. Gen., on the brief), for appellant.
V. James Ptak, of Fayetteville, Ark. (John Mayes, of Fayetteville, Ark., on the brief), for appellee.
Before STONE, SANBORN, and TLIOMAS, Circuit Judges.
SANBORN, Circuit Judge.
This action at law was commenced May 24, 1932, to recover on a policy of war risk insurance issued to Tony Rakich, who was in the United States Army from February 22, 1918, to May 17, 1919. The policy lapsed, for nonpayment of premiums, July 1, 1919. In his complaint the insured alleged that before its lapse the policy had matured by reason of his total and permanent disability due to pulmonary tuberculosis. This the government denied. The issues were tried to a jury. At the close of the evidence, the government moved for a directed verdict. Its motion was denied. The jury returned a verdict for the insured, upon which judgment was entered, and this appeal followed. The government insists that the trial court should have directed a verdict in its favor on the ground that there was no substantial evidence to sustain a verdict against it.
The burden was upon the insured to prove: (1) That he was totally disabled by July 1, 1919; and (2) that his disability was then permanent, that is, based upon conditions then existing which made it reasonably certain that the disability would continue throughout his life. This burden was enhanced by reason of the fact that the insured’s long and unexplained delay in bringing his action was “strong evidence that he was not totally and permanently disabled before the policy lapsed.” Lumbra v. United States, 290 U.S. 551, 560, 561, 54 S.Ct. 272, 276, 78 L.Ed. 492.
Since there is in the record before us no competent medical evidence to warrant a finding that the disease with which the insured is now afflicted had by July 1, 1919, reached the incurable stage, it is obvious that there was no substantial evidence to sustain the finding of the jury that the disability was then permanent. It is therefore unnecessary to discuss other questions.
Whether the insured had tuberculosis on July 1, 1919, and whether, if he had it, it had then progressed to the incurable stage, were strictly medical questions. United States v. Clapp (C.C.A.2) 63 F.(2d) 793, 795; Aetna Life Ins. Co. of Hartford v. Kelley (C.C.A.8) 70 F.(2d) 589, 593, 93 A.L.R. 471; Mutual life Ins. Co. of New York v. Still (C.C.A.8) 78 F.(2d) 748, 750; London Guarantee & Accident Co. v. Woelfle (C.C.A.8) 83 F.(2d) 325, 337.
The only competent evidence indicating that the insured had pulmonary tuberculosis at all prior to July 1, 1919, is a government report of a physical examination of the insured on September 30, 1919, which contains a diagnosis of chronic pulmonary tuberculosis, and a prognosis of “favorable with treatment.” If the word “chronic” be taken to mean that the disease was of more than three months’ duration, it would justify the inference that the disease existed on July 1, 1919; and we shall assume, without deciding, that that was the meaning of the word. There is no evidence, however, that the disease had by July 1, 1919, progressed beyond its early or incipient stages. Of the three doctors who testified for the plaintiff, none expressed or attempted to express any opinion either as to the existence of the disease prior to July 1, 1919, or as to the pathological conditions upon which the insured’s disability was then based.
The nearest approach to an opinion that the insured had tuberculosis on July 1, 1919, which had then reached the incurable stage, was the following testimony given by Dr. McNaughton: “Basing my conclusion upon the examinations I made in 1931 and September of this year [1935], I would say that his condition was permanent July 24, 1919." It seems probable that the doctor meant to say July 1st, instead of July 24th, and we shall so assume. It appears that Dr. McNaughton had examined the insured in August, 1931, and diagnosed the case as active advanced tuberculosis with cavitation; that he had no personal knowledge of the insured’s case prior to 1931; that in his judgment the insured’s tuberculosis “was not curable although it may be arrested”; and that he was of the opinion that “with proper climate, selected diet, rest, proper treatment in every way * * * the plaintiff’s case might have become arrested but not cured.” The opinion of Dr. McNaughton that the insured’s “condition was permanent” by July 1, 1919 — which was without adequate foundation — was not substantial evidence that the insured’s disability .on July 1, 1919, was based upon pathological conditions then existing which rendered it reasonably certain that he would never recover. United States v. Hill (C.C.A.8) 62 F.(2d) 1022, 1025; United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 276, 79 L.Ed. 617; Svenson v. Mutual Life Ins. Co. of New York (C.C.A.8) 87 F.(2d) 441, 445.
The insured’s case was not helped by the evidence introduced by the government. This evidence consisted almost entirely'of reports of physical examinations of the insured made by government physicians between September 30, 1919, and March 12, 1935. These reports indicate nothing more than the. existence of the disease between those dates, and that it was sometimes active and sometimes arrested, and that prognoses were sometimes favorable and sometimes unfavorable. The last four.reports — those of November 27, 1931, December 22, 1932, August 23, 1933, and March 12, 1935 — indicate that the insured had at those times an arrested case of tuberculosis.
The evidence of the government also shows that the insured left a government hospital, where he was being treated, on June 10, 1920, contrary to the advice of the ward surgeon; and that he voluntarily left a government hospital in 1921 after he had applied for and had been refused a furlough. According to his own testimony, he has had no hospital treatment since 1923.
The following language from the case of Eggen v. United States (C.C.A.8) 58 F. (2d) 616, 620, is pertinent: “No one could determine from the evidence whether there were, during the life of the policy, conditions not disclosed which then placed the insured in the class of incipient tuberculars who cannot be cured, or whether, subsequent to lapse, such conditions developed during the natural progress of the disease, or because of the failure of the insured to take treatment, or as the combined result of both the disease and such failure.”
The government, under the evidence in this case, was entitled to a directed verdict. Eggen v. United States (C.C.A.8) 58 F.(2d) 616; Proechel v. United States (C.C.A.8) 59 F.(2d) 648; United States v. Peters (C.C.A.8) 62 F.(2d) 977, 980; Grate v. United States (C.C.A.8) 72 F. (2d) 1, certiorari denied 294 U.S. 706, 55 S.Ct. 352, 79 L.Ed. 1241; United States v. Cameron (C.C.A.8) 87 F.(2d) 61; United States v. Clapp (C.C.A.2) 63 F.(2d) 793; Nicolay v. United States (C.C.A.10) 51 F.(2d) 170; Hirt v. United States (C.C.A.10) 56 F.(2d) 80; Roberts v. United States (C.C.A.10) 57 F.(2d) 514; United States v. Rentfrow (C.C.A.10) 60 F.(2d) 488; United States v. McShane (C.C.A.10) 70 F.(2d) 991, certiorari denied 293 U.S. 610, 55 S.Ct. 141, 79 L.Ed. 700; Falbo v. United States (C.C.A.9) 64 F.(2d) 948, affirmed per curiam 291 U.S. 646, 54 S.Ct. 456, 78 L.Ed. 1042; United States v. Hammond (C.C.A.5) 87 F.(2d) 226; Robinson v. United States (C.C.A.2) 87 F.(2d) 343.
The judgment is reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_respond2_3_2
|
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 second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
MCI TELECOMMUNICATIONS CORPORATION, Microwave Communications, Inc., and N-Triple-C Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, United States Independent Telephone Association, Data Transmission Company (DATRAN), and Southern Pacific Communications Company, Intervenors.
No. 75-1635.
United States Court of Appeals, District of Columbia Circuit.
Argued April 28, 1977.
Decided July 28, 1977.
Kenneth A. Cox, Washington, D.C., with whom Michael H. Bader, William J. Byrnes, and Raymond C. Fay, Washington, D.C., were on the brief; for petitioners.
John E. Ingle, Counsel, F.C.C., Washington, D.C., with whom Werner K. Hartenberger, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., and Carl D. Lawson, Atty., Dept. of Justice, Washington, D.C., were on the brief, for respondents.
Ashton R. Hardy, Gen. Counsel for the F.C.C., Washington, D.C., at the time the record was filed, entered an appearance for respondent F.C.C.
James F. Ponsoldt, Atty., Dept. of Justice, Washington, D.C., entered an appearance for respondent United States of America.
Michael Boudin, Washington, D.C., with whom Craig D. Miller, Washington, D.C., and Alfred C. Partoll, and F. Mark Garling-house, New York City, were on the brief, for intervenor Am. Tel. and Tel. Co.
Thomas J. O’Reilly, Washington, D.C., was on the brief for intervenor United States Independent Tel. Ass’n.
John M. Scorce and Kevin H. Cassidy, Vienna, Va., were on the brief for interve-nor Data Transmission Co.
Herbert E. Forrest, Washington, D.C., entered an appearance for intervenor Southern Pacific Communications Co.
Before J. SKELLY WRIGHT, TAMM and WILKEY, Circuit Judges.
Opinion for the court filed by J. SKELLY WRIGHT, Circuit Judge.
J. SKELLY WRIGHT, Circuit Judge:
This is a petition to review two orders of the Federal Communications Commission, each of which requires petitioner MCI Telecommunications Corporation to cease and desist from offering and operating its “Ex-ecunet” telephone service. Finding that the Commission has not taken the steps required by the Communications Act of 1934, 47 U.S.C. § 151 et seq. (1970), to restrict the services MCI may offer over its existing facilities, we reverse.
I. BACKGROUND
MCI Telecommunications Corporation, Microwave Communications, Inc., and N-Triple-C Inc. (hereinafter, collectively, MCI) are affiliated communications common carriers which operate a transcontinental point-to-point microwave system catering to business and data communications markets. In the vernacular of the trade MCI is a “specialized common carrier.”
The present dispute has its roots in MCI’s September 1974 filing of revisions to its tariffs F.C.C. No. 1 — the tariff under which MCI furnishes all its interstate services. Those revisions, which became effective October 10, 1974, established rates for a class of “metered use” services, among which was Execunet. With Execunet a subscriber using any push-button telephone (or rotary dial phone and tone generator) can reach any telephone in a distant city served by MCI simply by dialing a local MCI number followed by an access code and the number in the distant city. Execunet customers are billed for each call on a time and distance basis, subject to a monthly minimum.
In the spring of 1975 intervenor AT&T, after subscribing to Execunet and procuring Execunet marketing brochures, complained orally to the Commission that MCI was offering interstate long distance message telephone service (MTS) under the guise of Execunet and that no such service could properly be tariffed by MCI. Apparently AT&T representatives approached individual commissioners and various Commission staff personnel with this complaint and even held a demonstration of Execunet in the Commission’s offices. Subsequent to the ex parte complaints, AT&T filed with the Commission a letter which repeated the allegations previously made.
The Commission forwarded AT&T’s letter to MCI and indicated that MCI’s “comments on this matter would be appreciated.” MCI wrote a series of letters in return. In the first it took the position that AT&T’s complaint was untimely and should be rejected, but that in any case Execunet was a “private line” service which MCI was authorized to offer. By a further letter MCI complained of AT&T’s ex parte “lobbying” and asked for an opportunity to present its side of the dispute to the Commission. In a third letter MCI pointed out that its licenses were not limited by anything in Section 21.705 of the Commission’s rules pursuant to which point-to-point microwave radio licenses are issued to communications common carriers. It also called the Commission’s attention to AT&T’s comments in Rulemaking Docket 19117, in which AT&T had taken the position that the Commission had no statutory authority to require prior approval of new services that were to be offered over existing facilities of a domestic carrier, but instead could regulate such services, if at all, only under the tariff provisions of the Communications Act. In MCI’s view, AT&T’s position in Docket 19117 denies the authority asserted by the Commission in the instant proceeding on AT&T’s behalf. MCI also pointed out that the report in Docket 19117 states that new service offerings could be proposed by merely filing a tariff.
Without holding a hearing or even disclosing the details of AT&T’s arguments concerning the unlawfulness of Execunet, the Commission on July 2, 1975 wrote a letter to MCI which stated: “[Y]our tariff F.C.C. No. 1 is hereby rejected insofar as it purports to offer Execunet service, but without prejudice to MCI’s offering any other service which you are authorized to provide.” The rationale for this order was explained in the body of the letter.
First, the Commission concluded that MCI could offer only “private line” communications services over its existing facilities:
In the various Commission orders granting the Section 214 applications of the MCI carriers to construct and operate facilities (e. g., 32 F.C.C.2d 36 (1971), FCC 72-456 (May 26, 1972), FCC 72-832 (September 22,1972), FCC 72-852 (September 29, 1972)), appears language similar to the following:
The service proposed is essentially private line for the transmission of data, facsimile, control, remote metering, voice and other communications.
Each grant refers to the paragraph which incorporates the above language as conditioning the grant of construction and operating authority. As a result, MCI is only permitted to operate its facilities for private line services.
Further, in our Second Report on domestic satellites, which followed the Specialized Common Carrier decision, we pointed out (35 F.C.C.2d 844, 853 (1972)):
In encouraging multiple entry and the development of competition in the supply of domestic communications, we have maintained a distinction between the so-called monopoly switched telephone services now being furnished by AT&T and all other classes of existing and potential specialized services.
It is thus clear that MCI sought authorization to offer only private line services, and that it was granted authority to offer only such services.
The Commission then rejected MCI’s arguments that Execunet was a private line service like AT&T’s “foreign exchange” (FX) service, deciding instead that “the combination of * * * similarities” between Execunet and AT&T’s MTS made Execunet “essentially a switched public message telephone service * *
MCI immediately filed a petition for review in this court and sought a stay of the Commission’s order, arguing that the Commission had failed to comply with Section 4 of the Administrative Procedure Act, its own rules governing informal complaints, its own rules governing ex parte contacts, Sections 204 and 205 of the Communications Act, 47 U.S.C. §§ 204-205 (1970), and the Due Process clause. The request for a stay was granted. Subsequently the Commission, which had previously refused to allow MCI any kind of hearing, moved to have the proceedings remanded so that it could consider matters more fully than it had previously. This motion was granted, although jurisdiction was retained.
In December 1975 the Commission issued an order commencing the proceedings on remand. MCI Telecommunications Corp., 57 FCC2d 271 (1975), SA 49. It announced that comments and reply comments would be accepted and that oral argument or an evidentiary hearing might be held if warranted by the written submissions. The issue to be resolved was said to be “whether or not Execunet is a service which MCI is authorized to offer pursuant to its facility authorizations and policies set forth by this Commission.” On March 26, 1976 the Commission announced that it would hold oral argument and designated the issues to be addressed at that time. The issues the Commission identified as having been raised by the comments and reply comments were the following:
a. What class or classes of service is MCI permitted to offer pursuant to its facility authorizations and Commission policies?
b. What changes, if any, were made to the permitted classes of service by our Report and Order in Docket 19117, 39 FCC2d 131 (1973)?
c. Is Execunet service, as presently offered, a private line service?
d. Were any communications between parties to this proceeding and the Commission, as developed by filings herein, in violation of any applicable statute or regulation?
e. If any prohibited contacts occurred, what effect have they had on the substance of this proceeding?
f. Whether any further proceedings are required to comport with the requirements of due process of law.
MCI Telecommunications Corp., 58 FCC2d 962, 963 (1976), SA 812.
Prior to oral argument the Commission issued yet a third order responding to procedural motions made by MCI at various points during the comment period. MCI Telecommunications Corp.,-FCC2d-(FCC 76-441, May 17, 1976), SA 892. In this order the Commission rephrased the primary issue before it as “whether MCI’s facility authorizations and Commission policies restrict in any way the broad categories of service which MCI may offer.” It also stated that the proceedings would not be expanded to include consideration of “whether it is in the public interest for MCI to offer Execunet regardless of whether it is within the class of services it may offer.” Finally, the Commission for the first time mentioned the statutory authority for its actions: “th[is] proceeding is an investigation into the lawfulness of MCI’s Execunet service offering, conducted pursuant to Sections 4(i), 4(j), 201, 204, 205, 208 and 403 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 201, 204, 205, 208 and 403.”
After oral argument the Commission issued an extensive opinion, again finding that MCI was not authorized to offer Exe-cunet. MCI Telecommunications Corp., 60 FCC2d 25 (1976). The approach taken in that opinion is materially different from that taken in the July 1975 letter order, however. Whereas the letter order had relied on express restrictions written into MCI’s facilities authorizations (the certificates of public convenience and necessity issued pursuant to Section 214(a) of the Communications Act, 47 U.S.C. § 214(a) (1970)), the opinion on remand stated:
As MCI points out, however, not all of its authorizations contain similar language [/. e., restrictions], some contain no such restrictions, and thus it is necessary to look further, to our expressed policies and to judicial statements, to ascertain the limits on [specialized common carrier] services.[]
The Commission’s “further look” began with a review of the seminal Specialized Common Carrier decision, pursuant to which most specialized carrier facilities authorizations have been issued. The purpose of that decision was to facilitate the Commission’s handling of Section 214 applications by determining by rulemaking “[w]hether as a general policy the public interest would be served by permitting the entry of new carriers in the specialized communications field * * * ” While the Commission apparently concedes that it did not define the boundaries of the “specialized communications field,” it asserts that the services to be offered over the facilities covered in some 1,700 Section 214 applications before it provided a touchstone for its analysis and that all such services were “private line.” Accordingly, it is the Commission’s position that it did not consider services other than private line services in determining the public interest ramifications of competition. As an example of this the Commission points to its analysis of “cream-skimming,” the argument that specialized carriers will upset the established rates of general carriers (such as AT&T) by siphoning off high-profit business. The Commission’s interpretation here of its discussion of cream-skimming in Specialized Carriers is that it found allegations of cream-skimming to be unfounded only because the specialized carriers were not proposing to compete “to any substantial degree” with AT&T’s monopoly service offerings, MTS and WATS
Having concluded that the Specialized Common Carrier decision makes no reference to competition in other than private line areas, the Commission turned next to MCI’s allegations concerning the meaning of the Commission’s Rule 21.705, 47 C.F.R. § 21.705 (1976), and its orders in Docket 19117.
Rule 21.705 governs the scope of licenses granted carriers in the point-to-point microwave service. Its operative language is that a carrier may offer any service “provided for in the legally applicable tariffs of the carrier, unless otherwise directed in the applicable instrument of authorization * * * ” (emphasis added). MCI, focusing on the second phrase, had argued that the absence of any directions in its instruments of authorization indicated that it was free to offer by tariff any communications service that could physically be provided on its existing system. The Commission, on the other hand, took the position that the italicized language is the key and that tariffs exceeding the bounds of the Specialized Carrier decision can never become “legally applicable.” Thus in the Commission’s view Rule 21.705 merely “expresses the truism that a carrier need not generally file an application [under Section 214] for each new service it wishes to offer, [and therefore] it cannot be used to reverse a clearly defined Commission policy.”
The Commission takes a similarly narrow view of the effect of its Report and Order in Docket 19117. That docket was started to consider whether domestic carriers should be required to get Commission approval before filing tariffs proposing services not previously provided or set out in a Section 214 application. The purpose of the proposed rules was threefold: to decide the public interest ramifications of a service before it was commenced, thereby protecting the public from service disruptions that might be caused if the service were allowed to go into effect and later enjoined; to put general domestic carriers (such as AT&T and Western Union), which could theretofore start a new service simply by filing a tariff, on an equal footing with international' and domestic miscellaneous carriers whose facilities authorizations were always restricted so that new services required further Section 214(a) proceedings; and to protect entrants to the specialized carrier field who also needed prior approval of entry under Section 214(a) from unfair competition from the generalized carriers. The proposed rules were never adopted, and restrictions in facilities authorizations which had worked a result similar to the proposed rules were expressly declared “null and void” in the order terminating the docket.
MCI argued before the Commission that the result of Docket 19117 was that any express restrictions in its facilities authorizations were lifted and that it should be free as a result of the order terminating the docket to propose new services simply by filing a tariff, even if it was not free before. The Commission’s response was that Docket 19117 was not concerned with competition except in the specialized carrier field — the only field in which competition was allowed at the time of the Report and Order in that docket. Thus the Commission’s view apparently is that existing specialized carriers are allowed to offer private line services free of any prior approval requirement as a result of Docket 19117, but are required to proceed by Section 214 application with respect to all other services.
In the remainder of the opinion below the Commission again concluded that Execunet was not a private line service. It also concluded that no facts were in dispute which required an evidentiary hearing and denied MCI’s motion for one. The Commission for a second time refused to consider whether Execunet should be permitted regardless of the scope of the Specialized Common Carrier decision, and further indicated that it had intended to confer on AT&T a monopoly over MTS and WATS by its ruling in Specialized Carriers, a decision that could not be changed absent a demonstration of changed circumstances. Finally, the Commission refused to inquire further into the ex parte contact problem on the ground that all such contacts had occurred before commencement of formal proceedings and were, therefore, proper under both court and Commission rulings.
On this petition for review MCI has challenged virtually every ruling of the Commission in the proceeding on remand and has renewed its attack on the July 1975 letter order.
II. ANALYSIS A.
The implicit restrictions argument advanced by the Commission in its opinion on remand represents a substantial departure from prior administrative practice. As the Commission’s letter order suggests, the usual way in which a carrier becomes restricted in the services it may offer is for the Commission to write restrictions into the facilities authorizations that must be obtained pursuant to Section 214 of the Communications Act before any communications line may be built, operated, or extended. Accordingly, a carrier can usually tell if it is subject to service restrictions simply by examining the instruments of authorization issued to it by the Commission. Section 21.705 of the Commission’s rules, 47 C.F.R. § 21.705 (1976), which governs the manner in which point-to-point microwave radio licenses can be used by specialized carriers such as MCI, similarly recognizes that the usual place to find restrictions on services is in the “applicable instrument of authorization.” See also 47 U.S.C. § 309(h)(1) (1970) (which indicates that restrictions will usually be found in the license instrument); 47 C.F.R. § 21.903(b) (1976) (instrument of authorization controls in part services that may be offered on a multi-point distribution system).
The Commission’s discussion of its administrative practice in Docket 19117 is also instructive. There the Commission explained that in the absence of restrictions imposed under Section 214 in the facilities authorizations, carriers could offer any service which could physically be provided over their existing systems simply by filing a tariff. This discussion clearly indicates that the Commission’s understanding of Section 214 of the Act has until now been that explicit action is necessary to restrict a carrier to the service offerings it proposed when it sought authority to build, operate, or extend its communications lines.
Finally, as evidenced by the decision in Press Wireless, Inc,, 25 FCC 1466 (1958), aff’d, sub nom, Press Wireless, Inc. v. FCC, 264 F.2d 372 (D.C. Cir. 1959) (per curiam), the Commission has from time to time exercised its express authority under Section 303(b) of the Act, 47 U.S.C. § 303(b) (1970), to “[prescribe the nature of the service to be rendered by each class of licensed stations and each station within any class” by promulgating rules setting out limitations on services to be offered over radio facilities. See, e. g., 47 C.F.R. §§ 21.509, 21.606, 21.903 (1976). In this regard it is instructive to note that the Commission has not enacted any comparable service restrictions for point-to-point microwave licensees and in particular it has not made the definition of “private line service” set out in 47 C.F.R. § 21.2 (1976) applicable to such licenses, although this would certainly seem to be the natural thing to have done had the Commission sought to restrict specialized carriers to private line service offerings.
The fact that an administrative practice is novel does not, of course, mean that it is wrong. However, novelty is a warning signal that all may not be well, especially in the instant case in which the Commission has itself failed to discuss the statutory warrant for the new course it has adopted. When the Communications Act is considered in detail, it becomes apparent that novelty has led to error in this case.
B.
To frame our analysis, we sketch at the outset some principles which are either uncontested or uncontestable. First, it is settled that “a tariff [may] be rejected if it is unlawful without prior agency approval and approval has not been obtained.”
Associated Press v. FCC, 145 U.S.App.D.C. 172, 448 F.2d 1095, 1103 (1971); accord, Press Wireless, Inc. v. FCC, supra. Yet the power to require prior agency approval is itself circumscribed, for it is well recognized that the tariff provisions of the Communications Act (Sections 203-205, 47 U.S.C. §§ 203-205), like the cognate sections of the Interstate Commerce Act (49 U.S.C. §§ 15(1), 15(7) (1970)), embody a considered legislative judgment that carriers should in general be free to initiate and implement new rates or services over existing communications lines unless and until the Commission, after hearing, determines that such rates or practices are unlawful, subject only to a limited period of suspension set out in the statute. AT&T v. FCC, 487 F.2d 865, 870-881 (2d Cir. 1973); see United States v. SCRAP, 412 U.S. 669, 697, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (interpreting Interstate Commerce Act); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 662-669, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963) (same). As the Second Circuit explained in the AT&T case in overturning a Commission requirement that AT&T obtain approval prior to filing tariff revisions:
In enacting Sections 203-05 of the Communications Act, Congress intended a specific scheme for carrier initiated rate revisions. A balance was achieved after a careful compromise. The Commission is not free to circumvent or ignore that balance. Nor may the Commission in effect rewrite this statutory scheme on the basis of its own conception of the equities'of a particular situation.[]
The Second Circuit, moreover, rejected the Commission’s argument that the general grants of procedural authority in Sections 4(i), 4(j), and 403 of the Act, 47 U.S.C. §§ 154(i), 154(j), 403 (1970), empowered the Commission to erect prior approval requirements like that imposed on AT&T, although it recognized that the Commission would have the power to reject a tariff whenever a section of the Act expressly establishes or authorizes a prior approval requirement.
Applying these principles to the instant case, the issues to be resolved are two: whether and to what extent Section 214 of the Communications Act expressly authorizes the Commission to impose prior approval requirements through the facilities authorization mechanism, and whether the Commission has properly exercised whatever authority it may have under Section 214.
Section 214 establishes the Commission’s regulatory charter over entry into the common carrier communications field and states that no carrier shall construct, extend, or acquire a line unless the Commission has first affirmatively determined that such entry would be in the public interest, The primary purpose of Section 214(a) is prevention of unnecessary duplication of facilities, not regulation of services. Because of this, Section 214 would appear to have a limited office with respect to regulation of service offerings on existing lines. We have held as much, and this view is confirmed by the final proviso to Section 214(a) which states expressly that
nothing in this section [214] shall be construed to require a certificate or other authorization from the Commission for any * * * changes in plant, operation, or equipment, other than new construction, which will not impair the adequacy or quality of service provided!!
Moreover, we do not agree with the suggestion of Commission counsel in brief that Judge Wilkey’s opinion in Hawaiian Telephone Co. v. FCC, 162 U.S.App.D.C. 229, 498 F.2d 771 (1974), somehow transmogrifies Section 214(a) so that carriers must now obtain Commission approval before they implement new services. In Hawaiian Telephone this court reversed a grant of Section 214 authority to RCA Global Communications, Inc. on the ground that the Commission was allowing competition merely for competition’s sake in direct violation of the teaching of the Supreme Court in FCC v. RCA Communications, Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470 (1953). In stating the proper standard to be applied under Section 214(a) Judge Wilkey wrote: “When the FCC considers an application for certification of a new line, it must start from the situation as it then exists, and must * * * determine whether indeed the public convenience and necessity requires more or better service.” 498 F.2d at 776 (emphasis added). We do not read this statement to suggest that every time a carrier seeks to start a new service over existing facilities it must petition the Commission under Section 214(a), but rather it is merely a matter of fact observation that it is analytically impossible to determine the need for a new facility without considering the services to be provided over it. In addition, the reading suggested by the Commission would nullify the final proviso of Section 214(a) by requiring a “certificate [and] other authorization from the Commission” prior to changes in carriers’ operations even if such changes did not affect the “adequacy or quality” of the carriers’ preexisting services. There is no indication that the Hawaiian Telephone court contemplated such a remarkable result. Nor, indeed, can such a result be justified by reference to the primary purpose of Section 214 because, so long as the “adequacy or quality” of the service proposed in a Section 214(a) application is not impaired by provision of other services, the public need that justified construction of facilities will still be met and there is no sense in which those facilities would have become needlessly du-plicative.
Notwithstanding the proviso to Section 214(a), Section 214(c) gives the Commission authority to
issue such certificate [facility authorization] as applied for * * * or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. * * *
(Emphasis added.) Used to condition the services an individual carrier may offer, Section 214(c) would provide a power over individual carriers in all respects identical to its power over classes of carriers under Section 303(b), which was held in Press Wireless, Inc. v. FCC, supra, to give the Commission authority to create a prior approval requirement. For this reason Section 214(c) does, in our judgment, authorize the Commission to restrict the services that may be offered over a communication line once it is built, acquired, or extended. Cf. Western Union Telegraph Co. v. FCC, 541 F.2d 346, 355 (3d Cir. 1976). However, since any prior approval requirement is in derogation of the legislative compromise embodied in Sections 203-205, the Commission must strictly follow the terms of Section 214(c) and it cannot impose any such restriction unless it has affirmatively determined that “the public convenience and necessity [so] require.”
C.
With the framework of our inquiry in mind, we turn next to the question whether the Commission was correct in concluding that the Specialized Common Carrier decision was a lawful exercise of Section 214(c) authority. As we understand the Commission’s opinion on remand, there are two considerations supporting its view that the Specialized Common Carrier decision restricted the services specialized carriers can offer — first, the fact that only private line services were before the Commission in Section 214 applications and, second, that the Commission’s analysis of cream-skimming assumed that specialized carriers would be restricted to private line services. We consider these in turn.
We ca-n assume, without deciding, that a service like Execunet was not within the contemplation of the Commission when it made the Specialized Carrier decision. Nonetheless, it is readily apparent that failure to consider the public interest ramifications of a service — either pro or con — during resolution of a Section 214(a) application is simply not the same thing as an affirmative determination that the “public convenience and necessity may require” a restriction on a facility authorization limiting a carrier to provision solely of those services proposed in its Section 214(a) application.
The Commission’s analysis of cream-skimming in the Specialized Common Carrier decision similarly gives no evidence that the Commission made an affirmative finding that revenue diversion would be a problem if specialized carriers were allowed to compete on the fringes of the message telephone service market as MCI allegedly proposes to do. No such issue was before the Commission in that proceeding. As it has repeatedly asserted here, all it had to consider was whether the competition proposed in the Section 214 applications before it raised serious revenue diversion problems threatening the public interest. This is all it apparently did decide:
[W]e do not see how there could be any diversion of revenues of a magnitude to have the impact claimed by AT&T, in view of the very small percentage of AT&T’s existing total market that is vulnerable to competition of the kind proposed here, the growth rate of Bell’s basic services, and the likelihood that AT&T would obtain a very substantial share of the potential market for specialized services.l!
Moreover, the Commission’s staff report, which formed the basis for the Specialized Carrier decision, ruminated more broadly on the issues posed by revenue diversion and it appeared highly skeptical of the validity of AT&T’s overall argument. Thus there is simply nothing in Specialized Carriers that would support a conclusion that revenue diversion required restrictions on MCI’s facility authorizations.
Finally, it should also be noted that the Commission staff, in its report adopted by the Commission, dealt explicitly with the question of how the Commission ought to deal with possible adverse impacts of service offerings other than those which were before the Commission in the Specialized Common Carrier decision:
In the event that adverse consequences to the public should develop, the Commission can take such action on the relevant tariff filings as may be necessary to protect the public. We think that in the context of the matters now before the Commission involving proposed new and different services, a question of this nature is more appropriately considered in connection with the tariffs rather than upon authorization of the facilities.[]
And, again, the staff wrote:
The results of any authorizations would be the object of close and continuous scrutiny by the Commission. Should adverse consequences develop or appear imminent, the Commission can take such remedial action or precautionary measures as may be necessary to protect the public. As indicated, appropriate action can be taken in connection with the tariffs. In addition, any renewal of license for the proposed facilities would require a public interest finding and could be subject to any needed conditions. Moreover, the Commission’s broad rule making powers are always available. * * *[]
The undeniable import of the staff’s analysis is that questions related to the future impact of specialized carrier service offerings other than those immediately at hand in the Specialized Common Carrier case should be resolved in other proceedings — in tariff proceedings, upon license renewal, or by further rulemaking. Strikingly absent from this list is a mention of further Section 214 proceedings.
For the reasons stated above the Commission’s Specialized Common Carrier decision cannot reasonably be read to have made an affirmative determination that the public convenience and necessity required “private line” restrictions on the facilities authorizations of specialized common carriers. Instead, it appears that the Commission saw benefits accruing to the public from the services which were before it. In granting the facilities authorizations on the basis of that public interest finding, the Commission did not perhaps intend to open the field of common carrier communications generally, but its constant stress on the fact that specialized carriers would provide new, innovative, and hitherto unheard-of communications services clearly indicates that it had no very clear idea of precisely how far or to what services the field should be opened. As indicated in the staff report, a decision was apparently made to consider the consequences of future developments in appropriate future proceedings. There being no affirmative determination of public interest need for restrictions, MCI’s facility authorizations are not restricted and therefore its tariff applications could not properly be rejected.
D.
As a final and somewhat collateral point, we are concerned with a thread running through the Commission’s analysis— that the Specialized Carrier decision granted AT&T a de jure monopoly over MTS and WATS service which would be undermined were MCI allowed to provide Execunet— because any such assertion is plainly incorrect and may have influenced the Commission’s disposition of the instant case.
As the Commission staff explained in Specialized Carriers, absence of competition in the “general domestic common carrier service field * * * is due primarily to the fact that until the filing of [MCI’s first Section 214 applications] the Commission had no occasion to consider applications for competitive service in this area.” The question whether AT&T should be granted a de jure monopoly was not among those proposed to be decided in Specialized Carriers, and nowhere in that decision can justification be found for continuing or propagating a monopoly that, according to the staff, had theretofore just grown like Topsy. Of course, there may be very good reasons for according AT&T de jure freedom from competition in certain fields; however, one such reason is not simply that AT&T got there first. Indeed, the Commission’s attempt here to imbue AT&T’s existence with public interest significance represents a retrenchment from the position it took in passing on a proposal to enter the MTS field via domestic communications satellites: “[W]e should not reject any proposal that might prove feasible and beneficial to the public simply because it represents some departure from the established scheme.” Domestic Communications-Satellite Facilities, 35 FCC2d 844, 854 (1972).
Because the Commission has not so far determined that the public interest would be served by creating an AT&T monopoly in the interstate MTS field, it may not properly draw any inferences about the public interest from the bare fact that another carrier’s proposed services would compete in that field.
III. CONCLUSION
We have today decided that the Commission erred in rejecting MCI’s Execunet tariff as unauthorized. The Commission has no general authority to insist that carriers receive its approval before filing tariffs proposing new services or rates. Only if the Commission has determined that the public convenience and necessity may require that new services receive advance approval can it then reject a tariff as unauthorized. In so holding we have not had to consider, and have not considered, whether competition like that posed by Execunet is in the public interest. That will be the question for the Commission to decide should it elect to continue these proceedings. In that eventuality the Commission must be ever mindful that, just as it is not free to create competition for competition’s sake, it is not free to propagate monopoly for monopoly’s sake. The ultimate test of industry structure in the communications common carrier field must be the public interest, not the private financial interests of those who have until now enjoyed the fruits of de facto monopoly
Reversed and remanded.
. The orders are a letter order of July 2, 1975 (FCC 75-799) and the Decision in MCI Telecommunications Corp., 60 FCC2d 25 (July 13, 1976). The letter order is set out at Appendix B of the second order, 60 FCC2d at 62-64.
. Apparently the tariffs do not themselves define Execunet service, but define only certain “modular” services and rates therefor. Putting these modular services together in a particular way results in the Execunet service package. The term “metered use” refers to the fact that charges for some services are set on a usage basis.
. Execunet’s characteristics are summarized as follows.
A customer in the calling city calls the local MCI office via local exchange telephone service from any push-button telephone in the local exchange area. A rotary-dial telephone can also be used if the caller has a touch-tone pad (tone generator). This device can be purchased in the open market from numerous sources. He then pulses his customer code and the area code and calling number
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CLARK v. PIGEON RIVER IMPROVEMENT SLIDE & BOOM CO.
No. 9138.
Circuit Court of Appeals, Eighth Circuit.
Aug. 27, 1931.
Edward L. Boyle, of Duluth, Minn. (Fryberger, Eulton & Boyle, of Duluth, Minn., on the brief), for appellant.
John D. Jenswold, of Duluth, Minn. (Jenswold, Jenswold & Dahle, of Duluth, Minn., on the brief), for appellee.
Before KENYON and BOOTH, Circuit Judges, and DEWEY, .District Judge.
KENYON, Circuit Judge.
Appellant is a citizen of Canada. Appellee is a corporation exercising under the laws of Minnesota certain alleged rights on the Pigeon river, which is an international boundary line between the northeast corner of Minnesota and the province of Ontario.
Appellant is the owner of a large tract of timber on the Canadian side of the Pigeon river. Large amounts of timber are cut and piled on this land yearly, and the operation of producing pulpwood for the market has been carried on by him for many years. This pulpwood is floated down the Pigeon river to Pigeon Bay in Lake Superior and then towed or moved in boats to the mills at Port Arthur and Fort Williams, Ontario. Appellant is under contract to furnish to a Canadian corporation for a series of years large quantities of said pulpwood to be delivered each year during the month of May. Appellant hired a firm to conduct the driving of the wood. Appellee was organized as a boom corporation in 1898 under the General Statutes of Minnesota. It claims to have made improvements in the Pigeon river in aid of driving logs, and that it is authorized under state laws to obstruct the river and to collect a toll upon each cord of wood which floats down the river and to seize such wood as appellant’s and hold it for the payment of the tolls. That appellee obstructed the stream by laying a boom across the main channel from the Minnesota shore to an island on the Canadian side and held back large quantities of appellant’s pulpwood is without dispute. Appellant therefore was unable to carry out its contract of sale and will in the future be unable so to do if these obstructions remain in the river unless it pay to appellee the toll demanded. Whatever improvements appellee claims to have were constructed some thirty years ago. They have deteriorated and are of little, if any, value, and it is alleged in the complaint that they are a hindrance and not an aid to any one using the river for driving pulpwood. Any questions as to the years 1930 and 1931 are moot. The course of business during succeeding years is involved.
The trial court dismissed upon motion the complaint for the reason that the same did not state that the Pigeon river was a üavigable stream. For the purpose of the motion, therefore, the allegations of the complaint are taken as true.
The dispute involves the construction and application of certain parts of the WebsterAshburton Treaty between the United States and Great Britain ratified August 22, 1842 (8 U. S. Slat. 572) which established the international boundary line between the United States and Canada. At the place involved (article 2) it provides the boundary line shall run: “Through the middle of the sound between He Royale and the northwestern main land, to the mouth of Pigeon river, and up the said river, to and through the north and south Fowl Lakes, to the lakes of the height of land between Lake Superior and the Lake of the Woods; thence, along the water communication to Lake Saisaginaga, and through that lake; thence, to and through Cypress Lake, Lae du Bois Blanc, Lac la Croix, Little Vermilion Lake, and Lake Nameean, and through the several smaller lakes, straits, or streams, connecting the lakes hero mentioned, to that point in Lae la Pluie, or Rainy Lake, at the Chaudiere Falls, from which the commissioners traced the line to the most northwestern point of the Lake of the Woods.” After describing the boundary it is further provided: “That all the water communications and all the usual portages along the line from Lake Superior to the Lake of the Woods, and also Grand Portage, from the shore of Lake Superior to the Pigeon river, as now actually used, shall be free and open to the use of the citizens and subjects of both countries.”
It is the theory of appellant that he is entitled, as a citizen of Canada, to have this water communication, to wit, the Pigeon river, open and free to his use as well as the use of other citizens of Canada and the United States, and is entitled to drive his pulpwood down the Pigeon river without payment of tolls and without interference from appellee, regardless of any action of the Legislature of Minnesota, and that the attempt of the Legislature to give rights along the Pigeon river that would obstruct the use of the same by appellant in floating his pulpwood results in a violation of section 8, article 1, of the Constitution of the United States, which provides : “The Congress shall have Power * * to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
These questions arise: (a) Is navigability of the Pigeon river an essential element of appellant’s cause of action? (b) If so, is the complaint sufficient to cover said question ? (e) Is the Pigeon river one of the water communications referred to in the Webster-Ashburton Treaty? (d) Does the floating of pulpwood thereon constitute the free and open use which the treaty provides?
Assuming that under the terms of the treaty the water communications referred to must he navigable streams, what is the situation presented by the complaint? Navigability in law is dependent upon navigability in fact. The old doctrine of the common law that the ebb and flow of the tide establishes navigability has no application in this country. The decisions of the Supreme Court make clear the test of navigability. In Economy light Co. v. United States, 256 U. S. 113, 41 S. Ct. 409, 412, 65 L. Ed. 847, it is laid down as follows: “Whether the river, in its natural state, is used, or capable of being used as a highway for commerce, over whiefc trade and travel is or may be conducted in-the customary modes of trade and travel on water. Navigability, in the sense of the law,, is not destroyed because the water course is. interrupted by occasional natural obstructions or portages; nor need the navigation-be open at all seasons of the year, or at alii stages of the water.” State of Oklahoma v. Texas, 258 U. S. 574, 42 S. Ct. 406, 66 L. Ed. 771; The Daniel Ball, 10 Wall. 557, 19 L. Ed. 999. It would serve no useful purpose to enter into any discussion of the numerous cases that have arisen in this country over the question of navigability. Here it is one to be determined by federal law and not by-local standards. The Minnesota rule as to navigability seems té be that the floatage of logs and timber down a stream in substantial quantities at proper seasons therefor is sufficient to establish navigability. Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A. (N. S.) 638, 7 Ann. Cas. 1182; Rainy Lake River Boom Corp. v. Rainy River Lumber Co. (C. C. A.) 162 F. 287. The same rule applies in many other states. In re Southern Wisconsin Power Co., 140 Wis. 245, 122 N. W. 801; Drainage District No. 3 v. Machias Mill Co., 104 Wash. 493,177 P. 326; Logan v. Spaulding Logging Co., 100 Or. 731, 190 P. 349. Farnham on Waters and Water Rights, § 25, says: “But if the general character of the stream is such that it will float logs without aid from the banks, the mere fact that persons using it find it convenient to go upon the banks, and, in fact, do so, will not destroy the navigable character of the stream.” It appears that the Pigeon river was used for the kind of commerce natural to a timber country — the floating of logs and timber. As to whether there was sufficient of such float-age of logs to show the stream to be navigable under all the circumstances would have to be developed on the trial of the ease. It may be noted that Congress 'through a series of years declared some twenty-seven streams .in sthe United States not to be navigable. Pigeon river was not among them. Title 33, sections 21 to 47, USCA.
If the question of navigability is continuing in appellant’s claim, is the complaint sufficient to present it? It does not allege that the Pigeon river was navigable. It does allege that appellant’s rights were based on that part of the Webster-Ashburton Treaty providing that the water communications be free and open to the use of the citizens and subjects of both countries, and that appellant has the right under such treaty to drive his pulpwood down the Pigeon river without the payment of tolls and without interference from appellee. Pleading that appellant’s rights were based upon the treaty would we think entitle him to' a judicial determination of whatever facts might be found by the court essential to its application. This is of course open to the suggestion that this is in the nature of pleading a conclusion of law, but that objection was not made. While the pleading is lacking in clearness, if it can be construed in any way to present the question of navigability, we think the case should not have been dismissed on that ground. The questions here are too important to be determined by technical matters of pleading.
What we have so far said would require •a reversal of this ease, but it seems proper, 'in view of another trial, to state our views as ;to other questions involved.-
Possibly our discussion of the sufficiency of the complaint is somewhat superfluous, in view of our opinion that appellant was not compelled, in order to secure- injunctive relief, to plead or prove that Pigeon river was a navigable stream. The WebsterAshburton Treaty was drawn by experts skilled in such affairs, who must be supposed to have known exactly what they were doing. If they were referring only to navigable water communications being kept free and open, it would have been very easy to have so stated, but the treaty does not so state. Where it was considered important in the treaty to refer to navigable streams, that course was followed. Article 3 provided for the “navigation” of the St. John river between Maine and New Brunswick being free and open. In a letter to Mr. Webster dated July 11, 1842, found in Senate Documents, 3d Session, 27th Congress, vol. 1, pp. 51, 55, Lord Ashburton speaks of the floating of logs down this river as “this navigation.” The references to the St. John river or the St. Lawrence river in the treaty are not the same as are those to the Pigeon river. We have referred to “navigation” being used as to the St. John river, and in article 7 the words “ships, vessels and boats” are used as to the St. Lawrence river. As to the Pigeon river it was not said that navigation should be free and open, but that “all water communications” shall be “free and open.” In establishing the boundary of the St. John river the Thalweg theory of boundary is adopted, i. e., that the line is to run along “the middle of the main channel.” They did not do this as to the Pigeon river, but used the term “up the river.” If Daniel Webster and Lord Ashburton had intended to confine the clause in question here to navigable waters, they would have used such term. It is significant that they did not do so. Why should the court write into their language something they evidently intentionally omitted. It was presumably known to them in dealing with the subjects covered by the treaty that the traffic on the Pigeon river was merely a part of the land water trek, and that these waters were used to transfer by canoes and along portages supplies for the trapper and were outlets for the products of the trappers. Counsel for appellant quotes in his brief some extracts from writers on the subject of this early Minnesota history, which shows the general nature of the commerce which was being carried on along the Pigeon river. Prom Dr. Buck, Professor of History of the University of Minnesota, in his book, “Story of the Great Portage-,” as follows: “The Pigeon River, which now forms the international boundary at Lake Superior, was in the days of water transportation, the best natural highway between the Great Lakes or the St. Lawrence system and the great northwestern section of the continent, with its thousands of lakes and streams draining into Hudson Bay or the Arctic Ocean.” Again, from Baker’s Historical Collections: “Henry records that he met 40 canoes on the Pigeon River loaded with furs from Athebasca Lake and bound for Grand Portage.”
Tlio Canadian courts have had before them similar questions as to the right of the state of Minnesota to interfere with the free use of Pigeon river where it constitutes part of the international boundary, and it is interesting to note their attitude. In Rainy Lake River Boom Corporation v. Rainy River Lumber Co., 27 Ontario Law Reports, 131, the court said:
“The legislation of the State of Minnesota is tho only legislative authority upon which the plaintiff company relies as authorizing it to impose tolls. Had the State Legislature power to grant such authority?
“Under the Ashburton Treaty, the citizens of tho two countries became entitled to the free use of the river. Tho legislature of the State of Minnesota has purported to deprive them of that right by granting permission to tho plaintiff company to exact tolls. The undisputed evidence is, that the State Legislature had no jurisdiction so to repeal that clause in the treaty.
“I, therefore, think that the provision in tho plaintiff company’s charter purporting to entitle it to impose tolls or other charges is ultra vires the State Legislature and null and void.”
In Arrow River and Tributaries Slide and Boom Co., Ltd., 39 Ont. Weekly Notes 434, 66 Ontario Law Reports, 577, the Canadian Court said:
“The objection of the appellants is substantially that owing to the Ashburton Treaty of 1842, this River was to be ‘free and open’ for the nationals of the two contracting parties, Britain and the United States. * * *
“To put it simply, placing His Majesty in the position of an honorable man, who had agreed that another should have the right to pass over his land under the water, could it bo oven imagined that he would either himself build such structures as are in question here or authorize another to do so? To my mind, to ask this question is to answer it.
“I think that the Statute was not intended to and does not confer upon this Company the right to build upon the bed of the Pigeon River anything which may interfere with the enjoyment of free and open use of it by the citizens of the United States. That what the Arrow Company has done has such effect is perfectly obvious from the evidence.”
“The appeal should be allowed with costs here and below, and the fixing of tolls for any part of the Pigeon River should be prohibited”
We are not advised as to the result of an appeal in this case to the Supreme Court of the Dominion at Ottawa. This court had before it the question of the construction of this provision of the Ashburton Treaty in Rainy Lake River Boom Corp. v. Rainy River Lumber Co., 162 F. 287, 293. The Rainy Lake Boom Corporation there involved was organized under the same Minnesota statute as appellee in the ease at bar, and claimed the right to collect tolls on logs driven on the Rainy river. It had seized logs of the lumber company and held the same for tolls. The lumber company raised the same question as here that by the terms of the Webster-Ashburton Treaty tho river was open and free to the citizens and subjects of the United States and Great Britain, that there was no authority in the state o£ Minnesota over the traffic and commerce thereon, and that the Minnesota statute conflicted with the treaty. The eourt discussed this article of the treaty we are considering and pointed out that the right to the free and open use of the river under the treaty by a citizen of Canada cannot he limited hv local regulations of a state. Its view of the free use of a stream was exemption from-duties imposed or exacted by either of the countries to the compact. Interesting is this language of the court: “But the state of Minnesota had no right to authorize this Boom Company (which we hold it did not do under the legislative act in question) to so extend its boom by sheers across the river, beyond the channel to the Canadian shore, within the jurisdiction of Canada, so as to obstruct the free and open use of the river for floating logs thereon by a citizen of Canada.” The only difference apparent between the Rainy River Case and this ease is that the Rainy river was eoneededly a navigable stream. In that ease the boom company extended its operations across the river to the Canadian side. Here the boom was attached to an island on the Canadian side. That the construction of appellee’s boom and the levying of tolls on floating timber amounted to an obstruction in the stream would of course not be disputed.
Was the floating of pulpwood down the Pigeon river within the free and open use provided by the treaty? At tho time of the treaty there had been little development in the great northwest timber country. Whether that possible development was taken into consideration in the drawing of the treaty we do not of course know. Appellee’s theory is-that the words of the article, “as now actually used,” limit water communications and the-usual portages to such traffic as they were used, for at that time, i. e., as a fur trader’s route, and have no reference to the floating of logs, and do not impair the power of the state of Minnesota to permit the collection of proper tolls and charges for benefits conferred upon the users of appellee’s improvements. As a matter of grammatical construction, an argument might be made that the term “as now actually used” applies to all the water connections and early portages and not merely to Grand Portage, but it appears from the record that Grand Portage alone of all the portages is not “along the line,” and we think therefore the words, “as now actually used,” refer only to Grand Portage. Any other theory would give the treaty a narrow and apparently distorted construction. Good faith between nations requires carrying out treaty obligations according to the intentions of the contracting parties. The Canadian courts seem to have done this.
Treaties are to be fairly and liberally construed to carry out the intention of the parties thereto at the time the treaty was written and adopted. Treaties, with the Constitution and the Laws of the United States, are the Supreme Law of the land. Article 6 of the Constitution. In Jordan v. Tashiro, 278 U. S. 123, 127, 49 S. Ct. 47, 48, 73 L. Ed. 214, the eourt said: “The principles which should control the diplomatic relations of nations, and the good faith of treaties as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. * * * Upon like ground, where a treaty fairly admits of two constructions, one restricting the rights that may be claimed under'it and the other enlarging them, the more liberal construction is to be preferred.” And in Nielsen, Administrator v. Johnson, Treasurer, 279 U. S. 47, 52, 49 S. Ct. 223, 73 L. Ed. 607, the court says: “As the treaty-making power' is independent of and superior to the legislative power of the states, the meaning of treaty provisions so construed is not restricted by any necessity of avoiding possible conflict with state legislation and when so ascertained must prevail over inconsistent state enactments.” The court in Sullivan et al. v. Kidd, 254 U. S. 433, 439, 41 S. Ct. 158, 160, 65 L. Ed, 344, said: “Writers of authority agree that treaties are to be interpreted upon the principles which govern the interpretation of contracts in writing between individuals, and are to be executed in the utmost good faith, with a view to making effective the purposes of the high contracting parties; that all parts of a treaty are to receive a reasonable construction with a view to giving a fair operation to the whole.” It certainly would not be a liberal interpretation of this treaty to hold that the parties intended only to preserve water communications and portages for fur traders operating in canoes. Such lack of any vision as to the future is inconceivable. We are not impressed with the argument that the Root-Bryce Treaty of 1909 (36 Stat. 2141) amounted to an abrogation of the Webster-Ashburton Treaty as to the article in question.
The other question is that of obstruction to foreign commerce by a corporation organized under the law of the state of Minnesota. By article 1, § 8, of the Constitution, Congress is given plenary power to regulate commerce with foreign nations, and the states cannot interfere therewith. There is no limitation to such power except as may be prescribed in the Constitution. The government of the United States is the only authority authorized to regulate commerce with foreign nations. Buttfield v. Stranahan, 192 U. S. 470, 24 S. Ct. 349, 48 L. Ed. 525. States do not make treaties and cannot by legislative act interfere with the proper observation of treaties nor destroy rights created thereby. It may well be inquired where the state of Minnesota acquired any authority to burden commerce passing from one point in Canada down an international boundary to another point in Canada, and as is suggested in brief of counsel for appellant, if the Mounted Police of Canada should dynamite part of the boom tied to the island on the Canadian side what could the state of Minnesota do about it? The state of Minnesota was not a party to the treaty. What business had the boom on the Canadian side in any event without permission from the Canadian government, which does not appear as far as the motion is concerned. Neither party to the treaty authorized its construction. This court said in Rainy Lake River Boom Corp. v. Rainy River Lumber Co., 162 F. 287, 292: “The right to the free and open use of this river by a citizen of Canada is not referable to any local regulation of a state of the United States that chances to be erected contiguous to the river, but it is established by said treaty. * * * As applied to this river, it is perhaps not too much to say that the term 'state and interstate commerce’ has no exact relation. While logs were driven from points on the Minnesota side to other points on the same side, and some were destined beyond tlie limits of the state, and this was true of shipments on the Canadian side of the river, the commerce partook of the character of foreign commerce, because citizens of the United States and their property necessarily come in contact with citizens and subjects of Great Britain and their property on an international highway, declared by treaty between the two countries to ho free and open to the use of the subjects and citizens of each.” If appellant is entitled to use the Pigeon river by virtue of the treaty to float this pulpwood, an obstruction to such use is an interference with foreign commerce.
Other questions are presented which we deem unnecessary to consider, such as whether appellee received any authority at all under the Minnesota statute to assume management and control of logs of other parties floating on public highways, and whether appellee was aiding in the use of water communications or retarding the same. All of these important questions suggest that appellant is entitled to a trial on the merits of his claims.
The remaining point urged by appellee is that appellant has a complete remedy at law — hence cannot maintain this suit in equity, and that the bill was therefore properly dismissed, even if this question was not raised. Section 267 of the Judicial Code (title 28, USCA § 384) provides that suits in equity shall not he sustained in United States courts where there is a plain, adequate, and complete remedy at law. That remedy, however, must be one that is adequate, speedy, plain, and complete, not an impracticable or theoretical remedy whieh does not reasonably and fairly meet the situation to accomplish the purposes of justice. Appellee contends that appellant can bring an action for damages every year, or, if the logs are held by appellee, it can bring an action of replevin. It suggests that, if judgment were recovered, “defendant would presumably conform its future action to such judgment.” It is true that year after year an action for damages could be brought of replevin could be undertaken upon the appellant furnishing sufficient bonds for possession. Such relief would not be adequate to meet the situation presented. Appellant was under agreement to deliver its pulpwood in Pigeon Bay during May of each year. It does not seem to ns that it can reasonably he contended that under the circumstances the remedy of injunction was not available to appellant. It is apparent that, if appellant had the right to float its pulpwood on the boundary stream in order to carry out contracts made for its delivery covering a series of years, and if appellee persisted in obstructing the same, continuous actions for damages or in replevin to secure his properties would not constitute adequate and sufficient legal remedy to protect his rights. We think the learned trial court should not have dismissed tlie complaint, and its judgment ■and decree must be reversed. It is so ordered.
Reversed and remanded.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_issuearea
|
B
|
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.
GRUTTER v. BOLLINGER et al.
No. 02-241.
Argued April 1, 2003
Decided June 23, 2003
O’Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of Thomas, J. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 344. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined, post, p. 346. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined as to Parts I-VII, post, p. 349. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy, and Thomas, JJ., joined, post, p. 378. Kennedy, J., filed a dissenting opinion, post, p. 387.
Kirk 0. Kolbo argued the cause for petitioner. With him on the briefs were David F Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader, and Kerry L. Morgan.
Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement.
Maureen E. Mahoney argued the cause for respondent Bollinger et al. With her on the brief were John H. Pickering, John Payton, Brígida Benitez, Craig Goldblatt, Terry A. Maroney, Marvin Krislov, Jonathan Alger, Evan Camin-ker, Philip J. Kessler, and Leonard M. Niehoff.
Miranda K. S. Massie and George B. Washington filed a brief for respondent James et al.
Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist, Attorney General of Florida, Christopher M. Rise, Solicitor General, Louis F. Hubener, Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A Levy, Timothy Lynch, James L. Swanson, and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bolick, William H. Mellor, and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi, and Keith A Noreika; for the Pacific Legal Foundation by John H. Findley; for Law Professor Larry Alexander et al. by Erik S. Jaffe; and for the Reason Foundation by Martin S. Kaufman.
Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, Andrew H. Baida, Solicitor General, Mark J. Davis and William F. Brock-man, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pan-dya, Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Rickard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A Madrid of New Mexico, Roy Cooper of North Carolina, W A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A Stridiron of the Virgin Islands, Christine 0. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and Peggy A Lautenschlager of Wisconsin; for the State of New Jersey by David Samson, Attorney General, Jeffrey Burstein, Assistant Attorney General, and Donna Arons and Anne Marie Kelly, Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A Bolden and Nelson A Diaz; for the American Bar Association by Paul M. Dodyk and Rowan D. Wilson; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Si-nensky, Kara H. Stein, and Richard T Foltin; for the American Law Deans Association by Samuel Issacharojf; for the American Psychological Association by Paul R. Friedman, William F. Sheehan, and Nathalie F. P. Gilfoyle; for the American Sociological Association et al. by Bill Lann Lee and Deborah J. Merritt; for Amherst'College et al. by Charles S. Sims; for the Arizona State University College of Law by Ralph S. Spritzer and Paul Bender; for the Association of American Law Schools by Pamela S. Karlan; for the Association of American Medical Colleges et al. by Robert A. Burgoyne and Joseph A. Keyes, Jr.; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the Clinical Legal Education Association by Timothy A. Nelsen, Frances P. Kao, and Eric J. Gorman; for Columbia University et al. by Floyd Abrams and Susan Buckley; for the Graduate Management Admission Council et al. by Stephen M. McNabb; for the Harvard Black Law Students Association et al. by George W. Jones, Jr., William J. Jefferson, Theodore V. Wells, Jr., and David W. Brown; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin, and Wendy S. White; for the Hispanic National Bar Association et al. by Gilbert Paul Carrasco; for Howard University by Janell M. Byrd; for Indiana University by James Fitzpatrick, Lauren K. Robel, and Jeffrey Evans Stake; for the King County Bar Association by John Warner Widell, John H. Chun, and Melissa O’Lough-lin White; for the Law School Admission Council by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Lawyers’ Committee for Civil Rights Under Law et al. by John S. Skilton, David E. Jones, Barbara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger, and Judith L. Lichtman; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the Mexican American Legal Defense and Educational Fund et al. by Antonia Hernandez; for the Michigan Black Law Alumni Society by Christopher J. Wright, Timothy J. Simeone, and Kathleen McCree Lewis; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Theodore M. Shaw, Norman J. Chachkin, Robert H. Stroup, Elise C. Boddie, and Christopher A. Hansen; for the National Center for Fair & Open Testing by John T. Affeldt and Mark Savage; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Lorry P. Weinberg, and John C. Dempsey; for the National Urban League et al. by William A Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for the New Mexico Hispanic Bar Association et al. by Edward Benavidez; for the NOW Legal Defense and Educational Fund et al. by Wendy R. Weiser and Martha F. Davis; for the School of Law of the University of North Carolina by John Charles Boger, Julius L. Chambers, and Charles E. Daye; for the Society of American Law Teachers by Michael Selmi and Gabriel J. Chin; for the UCLA School of Law Students of Color by Sonia Mercado; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Michigan Asian Pacific American Law Students Association et al. by Jerome S. Hirsch; for the University of Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Judith Areen et al. by Neal Katyal and Kumiki Gibson; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A Seitz, Joseph R. Reeder, Robert P. Charrow, and Kevin E. Stern; for Hillary Browne et al. by Gregory Alan Berry; for Senator Thomas A. Daschle et al. by David T Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; for Glenn C. Loury by Jeffrey F. Liss and James J. Halpert; and for 13,922 Current Law Students at Accredited American Law Schools by Julie R. O’Sullivan and Peter J. Rubin.
Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A Goldsmith; for Members and Former Members of the Pennsylvania General Assembly et al. by Mark B. Cohen and Eric S. Fillman; for the American Council on Education et al. by Martin Michaelson, Alexander E. Dreier, and Sheldon E. Stein-bach; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt, and Daniel W. Sherrick; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for the Boston Bar Association et al. by Thomas E. Dwyer, Jr., and Joseph L. Kociubes; for the Carnegie Mellon University et al. by W. Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan, and Edward N. Stoner II; for the Coalition for Economic Equity et al. by Eva J. Paterson and Eric K. Yamamoto; for the Committee of Concerned Black Graduates of ABA Accredited Law Schools et al. by Mary Mack Adu; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Equal Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman; for Exxon Mobil Corp. by Richard R. Brann; for General Motors Corp. by Kenneth S. Getter, Eileen Penner, and Thomas A. Gottschalk; for Human Rights Advocates et al. by Constance de la Vega; for the Massachusetts Institute of Technology et al. by Donald B. Ayer, Elizabeth Rees, Debra L. Zumwalt, and Stacey J. Mobley; for the Massachusetts School of Law by Lawrence R. Velvet; for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman, Karen K. Narasaki, Vincent A Eng, and Trang Q. Tran; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins; for the New York State Black and Puerto Rican Legislative Caucus by Victor Goode; for Veterans, of the Southern Civil Rights Movement et al. by Mitchell Zimmerman; for 3M et al. by David W. DeBruin, Deanne E. Maynard, Daniel Mach, Russell W. Porter, Jr., Charles R. Watt, Martin J. Barrington, Deval L. Patrick, William J. O’Brien, Gary P. Van Graafeiland, Kathryn A Oberly, Randall E. Mehr-berg, Donald M. Remy, Ben W. Heineman, Jr., Brackett B. Denniston III, Elpidio Villarreal, Wayne A Budd, J. Richard Smith, Stewart S. Hudnut, John A Shutkin, Theodore L. Banks, Kenneth C. Frazier, David R. Andrews, Jeffrey B. Kinder, Teresa M. Holland, Charles W Gerdts III, John L. Sander, Mark P. Klein, and Stephen P. Sawyer; for Ward Connerly by Manuel S. Klausner and Patrick J. Manshardt; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful.
A
The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others.” App. 110. More broadly, the Law School seeks “a mix of students with varying backgrounds and experiences who will respect and learn from each other.” Ibid. In 1992, the dean of the Law School, charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court’s most recent ruling on the use of race in university admissions. See Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). Upon the unanimous adoption of the committee’s report by the Law School faculty, it became the Law School’s official admissions policy.
The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” App. 111. The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. Id., at 83-84,114-121. In reviewing an applicant’s file, admissions officials must consider the applicant’s undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id., at 112. The policy stresses that “no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems.” Id., at 111.
The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Id., at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School’s educational objectives. Id., at 114. So-called “‘soft’ variables” such as “the enthusiasm of reeommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection” are all brought to bear in assessing an “applicant’s likely contributions to the intellectual and social life of the institution.” Ibid.
The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” Id., at 118. The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” Id., at 118,120. The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” Id., at 120. By enrolling a “ ‘critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.” Id., at 120-121.
The policy does not define diversity “solely in terms of racial and ethnic status.” Id., at 121. Nor is the policy “insensitive to the competition among all students for admission to the [L]aw [S]chool.” Ibid. Rather, the policy seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession.” Ibid.
B
Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law School from 1991 until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981.
Petitioner further alleged that her application was rejected because the Law School uses race as a “predominant” factor, giving applicants who belong to certain minority groups “a significantly greater chance of admission than students with similar credentials from disfavored racial groups.” App. 33-34. Petitioner also alleged that respondents “had no compelling interest to justify their use of race in the admissions process.” Id., at 34. Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. Id., at 36. Petitioner clearly has standing to bring this lawsuit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 666 (1993).
The District Court granted petitioner’s motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as “ ‘all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.’” App. to Pet. for Cert. 191a-192a.
The District Court heard oral argument on the parties’ cross-motions for summary judgment on December 22,2000. Taking the motions under advisement, the District Court indicated that it would decide as a matter of law whether the Law School’s asserted interest in obtaining the educational benefits that flow from a diverse student body was compelling. The District Court also indicated that it would conduct a bench trial on the extent to which race was a factor in the Law School’s admissions decisions, and whether the Law School’s consideration of race in admissions decisions constituted a race-based double standard.
During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School’s use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant’s race along with all other factors. Id., at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called “daily reports” that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id., at 207a. This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students. Ibid.
Erica Munzel, who succeeded Shields as Director of Admissions, testified that “ ‘critical mass’ ” means “ ‘meaningful numbers’” or “‘meaningful representation,’” which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Id., at 208a-209a. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Id., at 209a. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores. Ibid.
The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did not quantify critical mass in terms of numbers or percentages. Id., at 211a. He indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman’s testimony, an applicant’s race may play no role, while in others it may be a “ ‘determinative’ ” factor. Ibid.
The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id., at 213a. When asked about the policy’s “ ‘commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,’ ” Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups Which have not been the victims of such discrimination. Ibid. Lemp-ert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid.
Kent Syverud was the final witness to testify about the Law School’s use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud’s testimony indicated that when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no “ ‘minority viewpoint’ ” but rather a variety of viewpoints among minority students. Id., at 215a.
In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner’s expert, Dr. Kinley Larntz, generated and analyzed “admissions grids” for the years in question (1995-2000). These grids show the number of applicants and the number of ad-mittees for all combinations of GPAs and LSAT scores. Dr. Larntz made “ ‘cell-by-cell’ ” comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups “‘is an extremely strong factor in the decision for acceptance,’ ” and that applicants from these minority groups ‘“are given an extremely large allowance for admission’” as compared to applicants who are members of nonfavored groups. Id., at 218a-220a. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School’s admissions calculus. 12 Tr. 11-13 (Feb. 10, 2001).
Dr. Stephen Raudenbush, the Law School’s expert, focused on the predicted effect of eliminating race as a factor in the Law School’s admission process. In Dr. Raudenbush’s view, a race-blind admissions system would have a “‘very dramatic,’” negative effect on underrepresented minority admissions. App. to Pet. for Cert. 223a. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, underrepresented minority students would have constituted 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid.
In the end, the District Court concluded that the Law School’s use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School’s asserted interest in assembling a diverse student body was not compelling because “the attainment of a racially diverse class... was not recognized as such by Bakke and it is not a remedy for past discrimination.” Id., at 246a. The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner’s request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal.
Sitting en banc, the Court of Appeals reversed the District Court’s judgment and vacated the injunction. The Court of Appeals first held that Justice Powell’s opinion in Bakke was binding precedent establishing diversity as a compelling state interest. According to the Court of Appeals, Justice Powell’s opinion with respect to diversity constituted the controlling rationale for the judgment of this Court under the analysis set forth in Marks v. United States, 430 U. S. 188 (1977). The Court of Appeals also held that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law School’s program was “virtually identical” to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. 288 F. 3d 732, 746, 749 (CA6 2002).
Four dissenting judges would have held the Law School’s use of race unconstitutional. Three of the dissenters, rejecting the majority’s Marks analysis, examined the Law School’s interest in student body diversity on the merits and concluded it was not compelling. The fourth dissenter, writing separately, found it unnecessary to decide whether diversity was a compelling interest because, like the other dissenters, he believed that the Law School’s use of race was not narrowly tailored to further that intérest.
We granted certiorari, 537 U. S. 1043 (2002), to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas, 78 F. 3d 932 (CA5 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School, 233 F. 3d 1188 (CA9 2000) (holding that it is).
II
A
We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U. S. 265 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to “remedy disadvantages cast on minorities by past racial prejudice.” Id., at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds. Id., at 408 (opinion of Stevens, J., joined by Burger, C. J., and Stewart and Rehnquist, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court’s injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Id., at 320. Thus, we reversed that part of the lower court’s judgment that enjoined the university “from any consideration of the race of any applicant.” Ibid.
Since this Court’s splintered decision in Bakke, Justice Powell’s opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell’s views on permissible race-conscious policies. See, e. g., Brief for Judith Areen et al. as Amici Curiae 12-13 (law school admissions programs employ “methods designed from and based on Justice Powell’s opinion in Bakke”); Brief for Amherst College et al. as Amici Curiae 27 (“After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell’s opinion... and set sail accordingly”). We therefore discuss Justice Powell’s opinion in some detail.
Justice Powell began by stating that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” Bakke, 438 U. S., at 289-290. In Justice Powell’s view, when governmental decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Id., at 299. Under this exacting standard, only one of the interests asserted by the university survived Justice Powell’s scrutiny.
First, Justice Powell rejected an interest in “ ‘reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession’” as an unlawful interest in racial balancing. Id., at 306-307. Second, Justice Powell rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Id., at 310. Third, Justice Powell rejected an interest in “increasing the number of physicians who will practice in communities currently underserved,” concluding that even if such an interest could be compelling in some circumstances the program under review was not “geared to promote that goal.” Id., at 306, 310.
Justice Powell approved the university’s use of race to further only one interest: “the attainment of a diverse student body.” Id., at 311. With the important proviso that “constitutional limitations protecting individual rights may not be disregarded,” Justice Powell grounded his analysis in the academic freedom that “long has been viewed as a special concern of the First Amendment.” Id., at 312, 314. Justice Powell emphasized that nothing less than the “ ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Id., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967)). In seeking the “right to select those students who will contribute the most to the ‘robust exchange of ideas,’ ” a university seeks “to achieve a goal, that is of paramount importance in the fulfillment of its mission.” 438 U. S., at 313. Both “tradition and experience lend support to the view that the contribution of diversity is substantial.” Ibid.
Justice Powell was, however, carefiil to emphasize that in his view race “is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” Id., at 314. For Justice Powell, “[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” that can justify the use of race. Id., at 315. Rather, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Ibid.
In the wake of our fractured decision in Bakke, courts have struggled to discern whether Justice Powell’s diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U. S., at 193 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, “[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke].” Nichols v. United States, 511 U. S. 738, 745-746 (1994). Compare, e. g., Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CA11 2001) (Justice Powell’s diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F. 3d 256, 274-275 (CA5 2000) (Hopwood II) (same); Hop-wood I, 78 F. 3d 932 (CA5 1996) (same), with Smith v. University of Wash. Law School, 233 F.
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
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
ROBERT DOLLAR CO. v. WENTWORTH SECURITIES CORPORATION.
Circuit Court of Appeals, Ninth Circuit.
January 14, 1929.
No. 5579.
Hugh Montgomery, of San Francisco, Cal., for appellant.
Gavin McNab, Schmulowitz, Wyman, Aikins & Brune, Nat Schmulowitz, and Frederick T. Hyde, all of San Francisco, Cal., for appellee.
Before GILBERT and DIETRICH, Circuit Judges, and NORCROSS, District Judge.
DIETRICH, Circuit Judge.
On June 27, 3923, the appellant entered into a written contract with the appellee, under the terms of which the latter agreed to sell, and the former agreed to buy, 2,000 shares of the preferred capital stock of the Dollar Portland Lumber Company, a corporation. The agreed purchase price was $200,000, “payable in four (4) annual installments of fifty thousand dollars ($50,000) each, on the first days of May, in each of the years 3924 to 1927 inclusive, plus in the ease of each payment to be made hereunder, a sum equal to all unpaid accrued cumulative dividends upon the stock.” Pursuant to the terms of the agreement, the appellee deposited the four certificates for 500 shares each with the Central Trust Company of Illinois, with instructions to deliver one to the appellant when and as each payment was made to it for the account of appellee.
The contract also contains the following provisions: “In the event that default be made in any payment by the purchaser, and said default shall continue for the period of ten (10) days, then and in that event said Bank (the trust company) shall, upon the demand of the Seller, return to the Seller all certificates of stock not theretofore delivered, or as to which said Buyer shall not then be entitled to deliver, but otherwise said Seller shall not be entitled to the redelivery of said stock. * * * Prior to the delivery of any of said stock the Seller shall be entitled to receive any and all dividends declared and paid thereon and to exercise any and all rights of stockholders in connection therewith. * * * In the event that the Buyer default in any payment made on account of the purchase price, the Seller may, at its election, terminate this contract as to the purchase and sale of stock not theretofore delivered and paid for, or at its election may continue this agreement in full force and effect and declare the entire balance of the purchase price immediately duo, owing and unpaid, and sue to collect the balance of the purchase price as declared due.”
Appellant paid the first three installments, but on the 1st day of May, 3.927, refused payment of the last one. Such refusal having continued for a period of ten days, by letter appellee demanded of appellant the sum of $50,000, plus $7,000, which latter amount represented the unpaid accrued cumulative dividends. By the letter appellee further advised appellant that it elected to continue the contract in force and effect and to declare the entire balance of the purchase price immediately due and payable, and further that the remaining certificate for 500 shares would remain on deposit with the trust company under the agreement subject to appellant’s order. No further payment having been made, the seller brought this suit, and from a judgment for $57,000 defendant appeals.
The only contention of appellant was and is that the contract was merely an option whereby it could purchase the stock in controversy at its will. We are of the opinion that a proposition so clearly devoid of merit does not warrant discussion. The contract definitely expresses an absolute obligation to sell and an absolute obligation to buy, and the appellant could not by its own default convert such an agreement into a mere option, without the consent of the appellee.
Affirmed.
The opinion not only failed to include the essential finding, but indicated that the evidence did not justify.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_record
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision. 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".
Michael Ray ORNDORFF, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. James William HOLMES, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Hoyt Franklin CLINES, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Darryl V. RICHLEY, Appellant, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellee. Michael Ray ORNDORFF, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. James William HOLMES, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Hoyt Franklin CLINES, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant. Darryl V. RICHLEY, Appellee, v. A.L. LOCKHART, Director, Arkansas Dept. of Correction, Appellant.
Nos. 88-2344, 88-2405.
United States Court of Appeals, Eighth Circuit.
Submitted April 13, 1989.
Decided June 19, 1990.
Gerald A. Coleman, West Memphis, Ark., for appellants.
Jack Gillean, Little Rock, Ark., for appel-lees.
Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
BOWMAN, Circuit Judge.
Michael Ray Orndorff, James William Holmes, Hoyt Franklin Clines, and Darryl V. Richley (petitioners) appeal, and A. L. Lockhart cross-appeals, from the judgment of the District Court granting petitioners partial habeas corpus relief. We affirm in part, vacate in part, and remand for further proceedings.
In October 1981 petitioners were found guilty of the murder of Don Lehman in Rogers, Arkansas and were sentenced to death. The convictions were affirmed on direct appeal, Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984), and post-conviction relief was denied, Clines v. State, 282 Ark. 541, 669 S.W.2d 883 (1984). Petitioners filed petitions for habeas corpus relief in the District Court pursuant to 28 U.S.C. § 2254 (1988) in June 1984, and the cases were consolidated for joint disposition. After conducting an evidentiary hearing, the District Court issued a thorough memorandum and order from which the parties now appeal.
Although petitioners raised a number of grounds for habeas relief in the District Court, the principal issue below, and the ground upon which the District Court granted relief, concerned the state trial court’s admission into evidence of the testimony of Vickie Lehman, the victim’s daughter and a key prosecution witness. Unbeknownst to petitioners or to their trial counsel, Vickie and her mother Virginia Lehman had been placed under hypnosis by one Gene Peters roughly one month after the murder at the behest of the prosecutor. As the District Court found:
During the sessions Peters would try to get his subjects to revisualize and relive the events of January 8 [1981] and, following each session, he and the Lehmans would report to the prosecutor’s office. Peters took notes of each session but no electronic recording devices were used. His notes were never turned over to the prosecutor and have since been destroyed. Neither Peters [n]or the prosecutor have any record of the questions asked and the responses given.
Orndorff v. Lockhart, 707 F.Supp. 1062, 1066 (E.D.Ark.1988). Petitioners’ attorneys did not learn that Vickie Lehman had been hypnotized prior to trial until after they had filed the direct appeal in the Arkansas Supreme Court. Id.
The District Court ruled that the prosecutor’s failure to apprise opposing counsel that Vickie Lehman had undergone hypnosis violated the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, and that the use of her testimony at trial was not harmless error. In fashioning its remedy, however, the District Court permitted the state, as an alternative to retrying petitioners, to commute their death sentences to life imprisonment without the possibility of parole. Petitioners appeal from this ruling, claiming that the District Court erred in permitting the state the option of commutation. Lockhart concedes that the use of Vickie Lehman’s testimony without disclosure of her hypnosis was constitutional error, but cross-appeals from the District Court’s finding that the error was not harmless.
Given the scope of the cross-appeal, we assume without deciding that the District Court was correct in holding that the use of Vickie Lehman’s post-hypnotic testimony violated the Confrontation Clause. In the District Court, petitioners sought to establish that the use of this testimony was not harmless error by demonstrating that Vickie Lehman’s trial testimony differed significantly from statements she had given the police shortly after the crime occurred; the state sought to show that any variations were not material and that the error was therefore harmless. At issue were some 137 instances of such variations. Our difficulty with the District Court’s treatment of the hypnosis issue stems from the fact that, although it purported to make a harmless-error inquiry, the District Court did not analyze these variations but rather held that the prosecutor’s failure to disclose that Vickie Lehman had been hypnotized was “inherently prejudicial.” Orndorff, 707 F.Supp. at 1069. The District Court reasoned that Vickie Lehman’s testimony at trial was “inherently prejudicial” because post-hypnotic testimony may, generally speaking, appear more credible than ordinary testimony since the witness, through hypnosis, may gain a heightened conviction that what he or she believes to be the truth actually represents reality. See id. We believe this resolution of the harmless error inquiry to be unsound.
Assuming that the prosecutor’s nondisclosure of Vickie Lehman’s hypnosis ran afoul of the Confrontation Clause, that error is not harmful simply because the jury might have found her testimony less credible had defense counsel been able to probe the issue of her hypnosis on cross-examination. The fact that defense counsel was denied use of a legitimate means of cross-examining an adverse witness is not in and of itself grounds for disturbing a guilty verdict. See Delaware v. Van Arsdall, 475 U.S. 673, 680-81, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986). The District Court’s view of the matter, we believe, amounts to the contrary view, since it premises a finding of harmful error on little more than the (presumptively) enhanced credibility of Vickie Lehman’s testimony and defense counsel’s inability to counteract it. As the Supreme Court stated in Van Arsdall:
The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors ... including] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. 475 U.S. at 684, 106 S.Ct. at 1438 (citations omitted).
We believe that the inquiry into the issue of harmless error in this case must begin with a comparison of Vicki Lehman’s pre-hypnosis statements with her trial testimony in light of Van Arsdall. The District Court should make this comparison with an eye toward sorting those things about which Vicki Lehman could testify without aid of hypnosis (that is, from actual memory) from those things about which she could testify only after being hypnotized. Unless this sorting process reveals significant variations, the error should be deemed harmless.
We therefore vacate the judgment of the District Court in part and remand the matter to the District Court for further proceedings. The District Court already has determined that, beyond a reasonable doubt, the error here (if indeed there was harmful error) affected only the penalty phase of the trial, not the jury verdict finding petitioners guilty as charged.
The court’s review of the entire record does reveal, beyond a reasonable doubt, that the petitioners were responsible for the robbery homicide for which they were tried. Their activities in preparation for the armed break-in and the events which later lead to their apprehension were fully documented through the testimony of thirty four prosecution witnesses. However, even though there is no question of their guilt for the crimes charged, the court is unable to say with confidence that the jury would have recommended the death penalty for each and every petitioner had defense counsel been informed of Vicki Lehman’s hypnosis. Critical portions of her testimony may have been disregarded by the jury had they known of the effects of hypnosis, or the trial court may have deemed some testimony inadmissible altogether. Cf. Little v. Armontrout, [835 F.2d 1240 (8th Cir.1987)], supra (trial court’s refusal to appoint an expert in hypnosis for an indigent defendant violated due process and rendered the trial fundamentally [unjfair).
Orndorff v. Lockhart, 707 F.Supp. at 1070. Having reviewed the record, we are thoroughly satisfied, as was the District Court, that the harmful error here (if any) goes only to the imposition of the death penalty and not to the jury verdict finding petitioners guilty of capital felony murder. The evidence of petitioners’ guilt, even without Vicki Lehman’s testimony, is overwhelming.
Lockhart argues that, because the District Court found error affecting only the penalty phase of the trial, the court erred in ordering that the writ of habeas corpus issue unless the state either retries petitioners or commutes their death sentences to life without parole. We agree. In a habeas case, no less than any other, the remedy must be commensurate with the harm. Accordingly, if in light of this opinion the District Court finds on remand that the use of Vicki Lehman’s testimony was not harmless error insofar as its effect upon the jury's recommendation that petitioners receive the death penalty is concerned, the court’s order granting habeas relief should give the state the option of either conducting a new sentencing proceeding or reducing the sentences to life without parole. See Pickens v. Lockhart, 714 F.2d 1455, 1469 (8th Cir.1983).
We have considered petitioners’ additional claims of error and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is affirmed in part, vacated in part, and the matter remanded for further proceedings consistent with this opinion.
. The Honorable Henry Woods, United States District Judge for the Eastern District of Arkansas.
. For example, in Byrd v. Armontrout, 880 F.2d 1 (8th Cir.1989), we stated that any error with regard to the admission of post-hypnosis testimony fell short of constitutional magnitude where the record showed that the hypnosis did not affect the witness's testimony on any major point. 880 F.2d at 10, n. 10. We made this observation despite defendant's contention that the witness's belief in her post-hypnosis testimony had been enhanced by the hypnosis. See Byrd, 686 F.Supp. 743, 771 (E.D.Mo.1988). Similarly, in Williams v. Armontrout, 877 F.2d 1376 (8th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990), we concluded that even though hypnosis had rendered a witness’s in-court identification of the defendant unreliable, habeas relief was not warranted because this identification "did not contribute to the conviction." Id. at 1380-81.
. Having adjudicated the issue of the use of Vickie Lehman's testimony within the context of the Confrontation Clause, we need not consider whether the use of her testimony offends due process, as resolution of the due process claim would not affect in any way our disposition of this appeal.
. In its cross-appeal the state also argues that the District Court erred in granting habeas relief to defendants Orndorff and Clines because they had requested the District Court not to consider any claim that would result only in the commutation of their death sentences to life imprisonment without parole, and to defendant Richley, who had moved the District Court to dismiss his habeas petition. However, in the joint reply brief filed by all four petitioners, they argue that the District Court did not err in granting habeas relief to all of them. We take this to constitute an abandonment by Orndorff, Clines, and Richley of the positions they took in this regard in the District Court, which abandonment renders the issue moot and thus not properly before us in this appeal.
Question: Did the agency fail to develop an adequate record? For example, if the court was unable to determine what doctrine was used for the decision or unable to determine the basis of the decision.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_issuearea
|
B
|
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.
SANTOSKY et al. v. KRAMER, COMMISSIONER, ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES, et al.
No. 80-5889.
Argued November 10, 1981
Decided March 24, 1982
Blackmun, J., delivered the opinion of the Court, in which Brennan, Marshall, Powell, and Stevens, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and White and O’Connor, JJ., joined, post, p. 770.
Martin Guggenheim argued the cause for petitioners. With him on the briefs was Alan N. Sussman.
Steven Domenic Scavuzzo argued the cause pro hac vice for respondents. With him on the brief was H. Randall Bixler. Wilfrid E. Marrin and Frederick J. Magovem filed a brief for respondents Balogh et al.
Briefs of amici curiae urging reversal were filed by Marcia Robinson Lowry, Steven R. Shapiro, and Margaret Hayman for the American Civil Liberties Union Children’s Rights Project et al.; and by Louise Gruner Gans, Catherine P. Mitchell, Norman Siegel, Gary Connor, and Daniel Greenberg for Community Action for Legal Services, Inc., et al.
Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, Shirley Adelson Siegel, Solicitor General, and Lawrence J. Logan and Robert J. Schack, Assistant Attorneys General, for the State of New York; and by Dave Frohnmayer, Attorney General, William F. Gary, Solicitor General, and Jan Peter Londahl, Assistant Attorney General, for the State of Oregon.
Justice Blackmun
delivered the opinion of the Court.
Under New York law, the State may terminate, over parental objection, the rights of parents in their natural child upon a finding that the child is “permanently neglected.” N.Y. Soc. Serv. Law §§384 — b.4.(d), 384-b.7.(a) (McKinney Supp. 1981-1982) (Soc. Serv. Law). The New York Family Court Act § 622 (McKinney 1975 and Supp. 1981-1982) (Fam. Ct. Act) requires that only a “fair preponderance of the evidence” support that finding. Thus, in New York, the factual certainty required to extinguish the parent-child relationship is no greater than that necessary to award money damages in an ordinary civil action.
Today we hold that the Due Process Clause of the Fourteenth Amendment demands more than this. Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.
I
A
New York authorizes its officials to remove a child temporarily from his or her home if the child appears “neglected,” within the meaning of Art. 10 of the Family Court Act. See §§ 1012(f), 1021-1029. Once removed, a child under the age of 18 customarily is placed “in the care of an authorized agency,” Soc. Serv. Law §384-b.7.(a), usually a state institution or a foster home. At that point, “the state’s first obligation is to help the family with services to... reunite it....” §384-b.l.(a)(iii). But if convinced that “positive, nurturing parent-child relationships no longer exist,” §384-b.l.(b), the State may initiate “permanent neglect” proceedings to free the child for adoption.
The State bifurcates its permanent neglect proceeding into “fact-finding” and “dispositional” hearings. Fam. Ct. Act §§ 622, 623. At the factfinding stage, the State must prove that the child has been “permanently neglected,” as defined by Fam. Ct. Act § § 614.1. (a> — (d) and Soc. Serv. Law §384-b.7.(a). See Fam. Ct. Act §622. The Family Court judge then determines at a subsequent dispositional hearing what placement would serve the child’s best interests. §§623, 631.
At the factfinding hearing, the State must establish, among other things, that for more than a year after the child entered state custody, the agency “made diligent efforts to encourage and strengthen the parental relationship.” Fam. Ct. Act §§ 614.1.(c), 611. The State must further prove that during that same period, the child's natural parents failed “substantially and continuously or repeatedly to maintain contact with or plan for the future of the child although physically and financially able to do so.” §614.1.(d). Should the State support its allegations by “a fair preponderance of the evidence,” §622, the child may be declared permanently neglected. §611. That declaration empowers the Family Court judge to terminate permanently the natural parents’ rights in the child. §§ 631(c), 634. Termination denies the natural parents physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child.
New York’s permanent neglect statute provides natural parents with certain procedural protections. But New York permits its officials to establish “permanent neglect” with less proof than most States require. Thirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a “fair preponderance of the evidence.” The only analogous federal statute of which we are aware permits termination of parental rights solely upon “evidence beyond a reasonable doubt.” Indian Child Welfare Act of 1978, Pub. L. 95-608, § 102(f), 92 Stat. 3072, 25 U. S. C. § 1912(f) (1976 ed., Supp. IV). The question here is whether New York’s “fair preponderance of the evidence” standard is constitutionally sufficient.
B
Petitioners John Santosky II and Annie Santosky are the natural parents of Tina and John III. In November 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under Fam. Ct. Act § 1022 and removed Tina from her natural home. About 10 months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed. When Jed was only three days old, respondent transferred him to a foster home on the ground that immediate removal was necessary to avoid imminent danger to his life or health.
In October 1978, respondent petitioned the Ulster County Family Court to terminate petitioners’ parental rights in the three children. Petitioners challenged the constitutionality of the “fair preponderance of the evidence” standard specified in Fam. Ct. Act §622. The Family Court Judge rejected this constitutional challenge, App. 29-30, and weighed the evidence under the statutory standard. While acknowledging that the Santoskys had maintained contact with their children, the judge found those visits “at best superficial and devoid of any real emotional content.” Id., at 21. After deciding that the agency had made “ ‘diligent efforts’ to encourage and strengthen the parental relationship,” id., at 30, he concluded that the Santoskys were incapable, even with public assistance, of planning for the future of their children. Id., at 33-37. The judge later held a dispositional hearing and ruled that the best interests of the three children required permanent termination of the Santoskys’ custody. Id., at 39.
Petitioners appealed, again contesting the constitutionality of § 622’s standard of proof. The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance-of-the-evidencé standard “proper and constitutional.” In re JohnAA, 75 App. Div. 2d 910, 427 N. Y. S. 2d 319, 320 (1980). That standard, the court reasoned, “recognizes and seeks to balance rights possessed by the child... with those of the natural parents....” Ibid.
The New York Court of Appeals then dismissed petitioners’ appeal to that court “upon the ground that no substantial constitutional question is directly involved.” App. 55. We granted certiorari to consider petitioners’ constitutional claim. 450 U. S. 993 (1981).
J — I > — I
Last Term, in Lassiter v. Department of Social Services, 452 U. S. 18 (1981), this Court, by a 5-4 vote, held that the Fourteenth Amendment’s Due Process Clause does not require the appointment of counsel for indigent parents in every parental status termination proceeding. The case casts light, however, on the two central questions here— whether process is constitutionally due a natural parent at a State’s parental rights termination proceeding, and, if so, what process is due.
In Lassiter, it was “not disputed that state intervention to terminate the relationship between [a parent] and [the] child must be accomplished by procedures meeting the requisites of the Due Process Clause.” Id., at 37 (first dissenting opinion); see id., at 24-32 (opinion of the Court); id., at 59-60 (Stevens, J., dissenting). See also Little v. Streater, 452 U. S. 1, 13 (1981). The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U. S. 246, 255 (1978); Smith v. Organization of Foster Families, 431 U. S. 816, 845 (1977); Moore v. East Cleveland, 431 U. S. 494, 499 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974); Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Prince v. Massachusetts, 321 U. S. 158, 166 (1944); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Meyer v. Nebraska, 262 U. S. 390, 399 (1923).
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
In Lassiter, the Court and three dissenters agreed that the nature of the process due in parental rights termination proceedings turns on a balancing of the “three distinct factors” specified in Mathews v. Eldridge, 424 U. S. 319, 335 (1976): the private interests affected by the proceeding; the risk of error created by the State’s chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure. See 452 U. S., at 27-31; id., at 37-48 (first dissenting opinion). But see id., at 59-60 (Stevens, J., dissenting). While the respective Lassiter opinions disputed whether those factors should be weighed against a presumption disfavoring appointed counsel for one not threatened with loss of physical liberty, compare 452 U. S., at 31-32, with id., at 41, and n. 8 (first dissenting opinion), that concern is irrelevant here. Unlike the Court’s right-to-counsel rulings, its decisions concerning constitutional burdens of proof have not turned on any presumption favoring any particular standard. To the contrary, the Court has engaged in a straightforward consideration of the factors identified in Eldridge to determine whether a particular standard of proof in a particular proceeding satisfies due process.
In Addington v. Texas, 441 U. S. 418 (1979), the Court, by a unanimous vote of the participating Justices, declared: “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’” Id., at 423, quoting In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). Addington teaches that, in any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.
Thus, while private parties may be interested intensely in a civil dispute over money damages, application of a “fair preponderance of the evidence” standard indicates both society’s “minimal concern with the outcome,” and a conclusion that the litigants should “share the risk of error in roughly equal fashion.” 441 U. S., at 423. When the State brings a criminal action to deny a defendant liberty or life, however, “the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment.” Ibid. The stringency of the “beyond a reasonable doubt” standard bespeaks the “weight and gravity” of the private interest affected, id., at 427, society’s interest in avoiding erroneous convictions, and a judgment that those interests together require that “society impos[e] almost the entire risk of error upon itself.” Id., at 424. See also In re Winship, 397 U. S., at 372 (Harlan, J., concurring).
The “minimum requirements [of procedural due process] being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action.” Vitek v. Jones, 445 U. S. 480, 491 (1980). See also Logan v. Zimmerman Brush Co., ante, at 432. Moreover, the degree of proof required in a particular type of proceeding “is the kind of question which has traditionally been left to the judiciary to resolve.” Woodby v. INS, 385 U. S. 276, 284 (1966). “In cases involving individual rights, whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.'” Addington v. Texas, 441 U. S., at 425, quoting Tippett v. Maryland, 436 F. 2d 1153, 1166 (CA4 1971) (opinion concurring in part and dissenting in part), cert. dism’d sub nom. Murel v. Baltimore City Criminal Court, 407 U. S. 355 (1972).
This Court has mandated an intermediate standard of proof — “clear and convincing evidence” — when the individual interests at stake in a state proceeding are both “particularly important” and “more substantial than mere loss of money.” Addington v. Texas, 441 U. S., at 424. Notwithstanding “the state’s ‘civil labels and good intentions,’” id., at 427, quoting In re Winship, 397 U. S., at 365-366, the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with “a significant deprivation of liberty” or “stigma.” 441 U. S., at 425, 426. See, e. g., Addington v. Texas, supra (civil commitment); Woodby v. INS, 385 U. S., at 285 (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization); Schneiderman v. United States, 320 U. S. 118, 125, 159 (1943) (denaturalization).
In Lassiter, to be sure, the Court held that fundamental fairness may be maintained in parental rights termination proceedings even when some procedures are mandated only on a case-by-case basis, rather than through rules of general application. 452 U. S., at 31-32 (natural parent’s right to court-appointed counsel should be determined by the trial court, subject to appellate review). But this Court never has approved case-by-case determination of the proper standard of proof for a given proceeding. Standards of proof, like other “procedural due process rules[,] are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases, not the rare exceptions.” Mathews v. Eldridge, 424 U. S., at 344 (emphasis added). Since the litigants and the factfinder must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance. Retrospective case-by-case review cannot preserve fundamental fairness when a class of proceedings is governed by a constitutionally defective evidentiary standard.
Ill
In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight. Evaluation of the three Eldridge factors compels the conclusion that use of a “fair preponderance of the evidence” standard in such proceedings is inconsistent with due process.
A
“The.extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss.’” Goldberg v. Kelly, 397 U. S. 254, 262-263 (1970), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). Whether the loss threatened by a particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the factfinder turns on both the nature of the private interest threatened and the permanency of the threatened loss.
Lassiter declared it “plain beyond the need for multiple citation” that a natural parent’s “desire for and right to ‘the companionship, care, custody, and management of his or her children’ ” is an interest far more precious than any property right. 452 U. S., at 27, quoting Stanley v. Illinois, 405 U. S., at 651. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. “If the State prevails, it will have worked a unique kind of deprivation.... A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” 452 U. S., at 27.
In government-initiated proceedings to determine juvenile delinquency, In re Winship, supra; civil commitment, Addington v. Texas, supra; deportation, Woodby v. INS, supra; and denaturalization, Chaunt v. United States, supra, and Schneiderman v. United States, supra, this Court has identified losses of individual liberty sufficiently serious to warrant imposition of an elevated burden of proof. Yet juvenile delinquency adjudications, civil commitment, deportation, and denaturalization, at least to a degree, are all reversible official actions. Once affirmed on appeal, a New York decision terminating parental rights is final and irrevocable. See n. 1, supra. Few forms of state action are both so severe and so irreversible.
Thus, the first Eldridge factor — the private interest affected — weighs heavily against use of the preponderance standard at a state-initiated permanent neglect proceeding. We do not deny that the child and his foster parents are also deeply interested in the outcome of that contest. But at the factfinding stage of the New York proceeding, the focus emphatically is not on them.
The factfinding does not purport — and is not intended — to balance the child’s interest in a normal family home against the parents’ interest in raising the child. Nor does it purport to determine whether the natural parents or the foster parents would provide the better home. Rather, the fact-finding hearing pits the State directly against the parents. The State alleges that the natural parents are at fault. Fam. Ct. Act §614.1.(d). The questions disputed and decided are what the State did — “made diligent efforts,” § 614.1.(c) — and what the natural parents did not do — “maintain contact with or plan for the future of the child.” §614.1.(d). The State marshals an array of public resources to prove its case and disprove the parents’ case. Victory by the State not only makes termination of parental rights possible; it entails a judicial determination that the parents are unfit to raise their own children.
At the factfinding, the State cannot presume that a child and his parents are adversaries. After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam. Ct. Act § 631 (judge shall make his order “solely on the basis of the best interests of the child,” and thus has no obligation to consider the natural parents’ rights in selecting dispositional alternatives). But until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. Thus, at the factfinding, the interests of the child and his natural parents coincide to favor use of error-reducing procedures.
However substantial the foster parents’ interests may be, cf. Smith v. Organization of Foster Families, 431 U. S., at 845-847, they are not implicated directly in the factfinding stage of a state-initiated permanent neglect proceeding against the natural parents. If authorized, the foster parents may pit their interests directly against those of the natural parents by initiating their own permanent neglect proceeding. Fam. Ct. Act § 1055(d); Soc. Serv. Law §§384-6.3(b), 392.7.(c). Alternatively, the foster parents can make their case for custody at the dispositional stage of a state-initiated proceeding, where the judge already has decided the issue of permanent neglect and is focusing on the placement that would serve the child’s best interests. Fam. Ct. Act §§623, 631. For the foster parents, the State’s failure to prove permanent neglect may prolong the delay and uncertainty until their foster child is freed for adoption. But for the natural parents, a finding of permanent neglect can cut off forever their rights in their child. Given this disparity of consequence, we have no difficulty finding that the balance of private interests strongly favors heightened procedural protections.
B
Under Mathews v. Eldridge, we next must consider both the risk of erroneous deprivation of private interests resulting from use of a “fair preponderance” standard and the likelihood that a higher evidentiary standard would reduce that risk. See 424 U. S., at 335. Since the factfinding phase of a permanent neglect proceeding is an adversary contest between the State and the natural parents, the relevant question is whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.
In New York, the factfinding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. Cf. Lassiter v. Department of Social Services, 452 U. S., at 42-44 (first dissenting opinion); Meltzer v. C. Buck LeCraw & Co., 402 U. S. 954, 959 (1971) (Black, J., dissenting from denial of certiorari). See also dissenting opinion, post, at 777-779 (describing procedures employed at factfinding proceeding). The Commissioner of Social Services charges the parents with permanent neglect. They are served by summons. Fam. Ct. Act §§ 614, 616, 617. The factfinding hearing is conducted pursuant to formal rules of evidence. § 624. The State, the parents, and the child are all represented by counsel. §§ 249, 262. The State seeks to establish a series of historical facts about the intensity of its agency’s efforts to reunite the family, the infrequency and in-substantiality of the parents’ contacts with their child, and the parents’ inability or unwillingness to formulate a plan for the child’s future. The attorneys submit documentary evidence, and call witnesses who are subject to cross-examination. Based on all the evidence, the judge then determines whether the State has proved the statutory elements of permanent neglect by a fair preponderance of the evidence. §622.
At such a proceeding, numerous factors combine to magnify the risk of erroneous factfinding. Permanent neglect proceedings employ imprecise substantive standards that leave determinations unusually open to the subjective values of the judge. See Smith v. Organization of Foster Families, 481 U. S., at 835, n. 36. In appraising the nature and quality of a complex series of encounters among the agency, the parents, and the child, the court possesses unusual discretion to underweigh probative facts that might favor the parent. Because parents subject to termination proceedings are often poor, uneducated, or members of minority groups, id., at 833-835, such proceedings are often vulnerable to judgments based on cultural or class bias.
The State’s ability to assemble its case almost inevitably dwarfs the parents’ ability to mount a defense. No predetermined limits restrict the sums an agency may spend in prosecuting a given termination proceeding. The State’s attorney usually will be expert on the issues contested and the procedures employed at the factfinding hearing, and enjoys full access to all public records concerning the family. The State may call on experts in family relations, psychology, and medicine to bolster its case. Furthermore, the primary witnesses at the hearing will be the agency’s own professional caseworkers whom the State has empowered both to investigate the family situation and to testify against the parents. Indeed, because the child is already in agency custody, the State even has the power to shape the historical events that form the basis for termination.
The disparity between the adversaries’ litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no “double jeopardy” defense against repeated state termination efforts. If the State initially fails to win termination, as New York did here, see n. 4, supra, it always can try once again to cut off the parents’ rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.
Coupled with a “fair preponderance of the evidence” standard, these factors create a significant prospect of erroneous termination. A standard of proof that by its very terms demands consideration of the quantity, rather than the quality, of the evidence may misdirect the factfinder in the marginal case. See In re Winship, 397 U. S., at 371, n. 3 (Harlan, J., concurring). Given the weight of the private interests at stake, the social cost of even occasional error is sizable.
Raising the standard of proof would have both practical and symbolic consequences. Cf. Addington v. Texas, 441 U. S., at 426. The Court has long considered the heightened standard of proof used in criminal prosecutions to be “a prime instrument for reducing the risk of convictions resting on factual error.” In re Winship, 397 U. S., at 363. An elevated standard of proof in a parental rights termination proceeding would alleviate “the possible risk that a factfinder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or]... idiosyncratic behavior.” Addington v. Texas, 441 U. S., at 427. “Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate” terminations will be ordered. Ibid.
The Appellate Division approved New York’s preponderance standard on the ground that it properly “balanced rights possessed by the child... with those of the natural parents....” 75 App. Div. 2d, at 910, 427 N. Y. S. 2d, at 320. By so saying, the court suggested that a preponderance standard properly allocates the risk of error between the parents and the child. That view is fundamentally mistaken.
The court’s theory assumes that termination of the natural parents’ rights invariably will benefit the child. Yet we have noted above that the parents and the child share an interest in avoiding erroneous termination. Even accepting the court’s assumption, we cannot agree with its conclusion that a preponderance standard fairly distributes the risk of error between parent and child. Use of that standard reflects the judgment that society is nearly neutral between erroneous termination of parental rights and erroneous failure to terminate those rights. Cf. In re Winship, 397 U. S., at 371 (Harlan, J., concurring). For the child, the likely consequence of an erroneous failure to terminate is preservation of an uneasy status quo. For the natural parents, however, the consequence of an erroneous termination is the unnecessary destruction of their natural family. A standard that allocates the risk of error nearly equally between those two outcomes does not reflect properly their relative severity.
C
Two state interests are at stake in parental rights termination proceedings — a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.. A standard of proof more strict than preponderance of the evidence is consistent with both interests.
“Since the State has an urgent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision” at the factfinding proceeding. Lassiter v. Department of Social Services, 452 U. S., at 27. As parens patriae, the State’s goal is to provide the child with a permanent home. See Soc. Serv. Law § 384-b. l.(a)(i) (statement of legislative findings and intent). Yet while there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds. § 384 — b. l.(a)(ii). “[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” Stanley v. Illinois, 405 U. S., at 652.
The State’s interest in finding the child an alternative permanent home arises only “when it is clear that the natural parent cannot or will not provide a normal family home for the child.” Soc. Serv. Law §384-b.l.(a)(iv) (emphasis added). At the factfinding, that goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.
Unlike a constitutional requirement of hearings, see, e. g., Mathews v. Eldridge, 424 U. S., at 347, or court-appointed counsel, a stricter standard of proof would reduce factual error without imposing substantial fiscal burdens upon the State. As we have observed, 35 States already have adopted a higher standard by statute or court decision without apparent effect on the speed, form, or cost of their factfinding proceedings. See n. 3, supra.
Nor would an elevated standard of proof create any real administrative burdens for the State’s factfinders. New York Family Court judges already are familiar with a higher evidentiary standard in other parental rights termination proceedings not involving permanent neglect. See Soc. Serv. Law §§384-b.3.(g), 384-b.4.(c), and 384-b.4.(e) (requiring “clear and convincing proof” before parental rights may be terminated for reasons of mental illness and mental retardation or severe and repeated child abuse). New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings. See, e. g., N. Y. Veh. & Traf. Law §227.1 (McKinney Supp. 1981) (requiring the State to prove traffic infractions by “clear and convincing evidence”) and In re Rosenthal v. Hartnett, 36 N. Y. 2d 269, 326 N. E. 2d 811 (1975); see also Ross v. Food Specialties, Inc., 6 N. Y. 2d 336, 341, 160 N. E. 2d 618, 620 (1959) (requiring “clear, positive and convincing evidence” for contract reformation). We cannot believe that it would burden the State unduly to require that its factfinders have the same factual certainty when terminating the parent-child relationship as they must have to suspend a driver’s license.
IV
The logical conclusion of this balancing process is that the “fair preponderance of the evidence” standard prescribed by Fam. Ct. Act § 622 violates the Due Process Clause of the Fourteenth Amendment. The Court noted in Addington: “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” 441 U. S., at 427. Thus, at a parental rights termination proceeding, a near-equal allocation of risk between the parents and the State is constitutionally intolerable. The next question, then, is whether a “beyond a reasonable doubt” or a “clear and convincing” standard is constitutionally mandated.
In Addington, the Court concluded that application of a reasonable-doubt standard is inappropriate in civil commitment proceedings for two reasons — because of our hesitation to apply that unique standard “too broadly or casually in noncriminal cases,” id., at 428, and because the psychiatric evidence ordinarily adduced at commitment proceedings is rarely susceptible to proof beyond a reasonable doubt. Id., at 429-430, 4324433. To be sure, as has been noted above, in the Indian Child Welfare Act of 1978, Pub. L. 95-608, § 102(f), 92 Stat. 3072, 25 U. S. C. § 1912(f) (1976 ed., Supp. IV), Congress requires “evidence beyond a reasonable doubt” for termination of Indian parental rights, reasoning that “the removal of a child from the parents is a penalty as great [as], if not greater, than a criminal penalty....” H. R. Rep. No. 95-1386, p. 22 (1978). Congress did not consider, however, the evidentiary problems that would arise if proof beyond a reasonable doubt were required in all state-initiated parental rights termination hearings.
Like civil commitment hearings, termination proceedings often require the factfinder to evaluate medical and psychiatric testimony, and to decide issues difficult to prove to a level of absolute certainty, such as lack of parental motive, absence of affection between parent and child, and failure of parental foresight and progress. Cf. Lassiter v
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:
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.