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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. STATE OF MONTANA, Appellant v. William P. CLARK, Secretary of the Department of the Interior, et al. No. 83-1982. United States Court of Appeals, District of Columbia Circuit. Argued Sept. 25, 1984. Decided Nov. 20, 1984. As Amended Feb. 6, 1985. A. Raymond Randolph, Washington, D.C., with whom Christopher L. Varner, Washington, D.C., was on the brief, for appellant. Edward J. Shawaker, Atty., Dept, of Justice, Washington, D.C., with whom Robert L. Klarquist, Atty., Dept, of Justice, Washington, D.C., was on the brief, for federal appellees. Dale T. White, Boulder, Colo., with whom Robert S. Pelcyger, Boulder, Colo., was on the brief, for appellee Crow Tribe of Indians. Martin E. Seneca, Jr., Washington, D.C., entered an appearance for the Crow Tribe of Indians. Before WRIGHT and WALD, Circuit Judges, and McGOWAN, Senior Circuit Judge. Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT. J. SKELLY WRIGHT, Circuit Judge: The State of Montana appeals a District Court order upholding an Interior Department regulation, 30 C.F.R. § 872.11(b)(3) (1983), against a challenge that it is inconsistent with the organic statute, the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201 et seq. (1982). The Crow Tribe of Indians joins the federal government in defending the validity of the regulation. In addition to this substantive issue, the case presents the threshold procedural question whether Montana’s petition for judicial review of the regulation was timely. We hold that Montana’s petition for review satisfied the Act’s 60-day filing requirement, id. § 1276(1), and is properly before this court. On the merits, we agree with the District Court and find the challenged regulation a reasonable construction of the Act. I. Background A. General Provisions of the Act As its title indicates, the Surface Mining Control and Reclamation Act is designed to meet two related concerns. First, Congress wished to regulate current and future strip mining operations to “protect society and the environment from the adverse effect of surface coal mining operations.” 30 U.S.C. § 1202(a). Toward this end, Subchapter V, id. §§ 1251-1279, requires the Office of Surface Mining (OSM) to promulgate interim federal standards and provides that a state may take over the regulatory process by submitting a program that meets the approval of the Secretary of the Interior. See generally In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1350-1352 (D.C.Cir.1980). Second, Congress sought to provide for reclamation of land and water resources in mining areas abandoned prior to the Act’s enactment on August 3, 1977. Id. § 1202(h). Subchapter IV, id. §§ 1231-1243, sets up a reclamation fund to be held in trust by the Secretary of the Interior. Id. § 1231(a). Fees exacted from current operators of strip mining projects are pooled into the trust, which the Secretary is to distribute to any state or Indian tribe that has submitted an approved “abandoned mine reclamation program.” Id. §§ 1232(a) & 1235(k). Upon approval of such a program OSM must allocate funds to the state or tribe in a manner that “reflect[s] both the area from which the revenue was derived as well as the national program needs for the funds.” Id. § 1232(g)(1). In particular, Section 1232(g)(2) states that 50 percent of the funds “collected annually in any State or Indian reservation shall be allocated to that State or Indian reservation.” Nominally, at least, the Act draws a distinction between the role given to Indian tribes in the regulation of current mining operations and that allotted to them in the reclamation of abandoned mines. Subchapter V gives Indians no direct role in regulating current or prospective mining operations on Indian lands. Believing the jurisdictional status of those areas too unclear to permit effective allocation of the regulatory function, Congress directed the Secretary to submit a report within six months of the enactment of the Act on August 3, 1977 and propose “legislation designed to allow Indian tribes to elect to assume full regulatory authority over the administration and enforcement of regulation of surface mining of coal on Indian lands.” Id. § 1300(a)-(h). See H.R.Rep. 94-189, 94th Cong., 1st Sess. 79 (1975). In the interim Congress decided to protect Indian lands from the potential ravages of surface mining through federal perform-anee standards rather than state oversight. Id. Indians are, however, given some role in reclamation of abandoned mines on Indian territory. In the final conference session, and virtually without discussion, House and Senate conferees added Section 1235(k), which reads: “Indian tribes having within their jurisdiction eligible lands [as defined in § 1234] * * * shall be considered a ‘State’ for the purposes of [Subchapter IV].” See H.R.Rep. 95-493, 95th Cong., 1st Sess. 99 (1977). Thus Indian tribes, though denied,any participation in the regulation of current mining operations, may submit reclamation plans and, if approved by the Secretary, administer the funds earmarked for this purpose. Under current OSM policy, however, the practical import of permitting tribes to submit reclamation plans is minimal. Reading the Act to prohibit assignment of reclamation authority to an entity statutorily incapable of exercising full regulatory authority, the Secretary will not approve reclamation plans submitted by a tribe until Congress has clarified the status of Indian lands under the Act. See Memorandum in Support of Federal Defendants’ Cross-Motion for Summary Judgment at 13-14, reproduced in Appendix (App.) at 119-120; 47 Fed.Reg. 28580 (1982). Approval by the Secretary is a prerequisite to any distribution of funds. 30 U.S.C. § 1235. B. The Present Controversy This case requires us to review an OSM regulation promulgated to implement Section 1232(g)(2), the provision of Subchapter IV that sets out the allocation formula for distribution of the Abandoned Mine Reclamation Fund to eligible parties. That section mandates that 50 percent of the funds collected “in any State or Indian reservation shall be allocated to that State or Indian reservation” pursuant to an approved reclamation program. (Emphasis added.) The Act does not define “Indian reservation.” It does, however, define “Indian lands” as “all lands * * * within the exterior boundaries of any Federal Indian reservation * * * and all lands including mineral interests held in trust for or supervised by an Indian tribe.” Section 1291(9). In order to implement Section 1232(g)(2), in 1978 the Interior Department issued 30 C.F.R. § 872.11(b)(3) after notice and comment. The regulation, which was reenacted in identical form in 1982, largely tracked the language of Section 1232(g) but substituted “Indian lands” for “Indian reservation.” Thus under the regulation fees collected from mines beneficially owned by or for Indians, but outside their reservation, would go to the tribe rather than to the state, provided the Secretary approves its reclamation plan. The State of Montana challenges the regulation as “not in accordance with law.” 5 U.S.C. § 706(2)(A) (1982). The Secretary of the Interior and the Crow Tribe of Indians maintain that the regulation is a reasonable construction of the Act. At stake in the case is the right to administer approximately $700,000 a year collected from surface mining operations in a I. 13-million-acre tract in Montana known as the “ceded strip.” Under a 1904 treaty the Crow Tribe ceded the strip to the United States, but retained a beneficial interest in the substantial coal deposits in the area. See 30 U.S.C. § 357 (1982). Thus, though not within the “exterior boundaries of any Federal Indian reservation,” 30 U.S.C. § 1291(9), the parties do not seriously dispute that the ceded strip qualifies as “Indian land” as defined by the statute. Id. Accordingly, substitution of the phrase “Indian lands” for the statutory language “Indian reservation” has the effect of authorizing the Crow Tribe, rather than the State of Montana, to apply for the funds collected on the ceded strip. We note again that, although the challenged regulation has the effect of depriving Montana of funds derived from the ceded strip, it does not actually authorize any distribution to the Crow Tribe. Instead, under OSM’s current interpretation of the statute, monies collected from the ceded strip are held in escrow pending congressional clarification of regulatory jurisdiction over Indian lands. II. The Timeliness of the Petition foe Judicial Review If, as the federal appellees argue and the District Court found, Montana’s petition for review was not timely, we need not face the statutory question at all. We conclude, however, that the Act’s 60-day period for judicial review ran from June 30, 1982, the date of the challenged regulation’s republication, and not from October 25, 1978, the date of its original promulgation. Under controlling principles of administrative law, Montana’s petition for judicial review, filed 58 days after the regulation’s reissuance, was properly before the District Court. Section 1276(a)(1) of the Act requires that petitions for review of regulations promulgated by the Secretary of the Interior be filed within 60 days of issuance of the regulations. The Secretary initially issued the challenged regulation on October 25, 1978. 43 Fed.Reg. 49940, 30 C.F.R. Part 872. Montana does not dispute that, although it had notice of the regulation and full opportunity to challenge it at that time, it elected not to do so. On December 11, 1981 OSM published “proposed rules” in the Federal Register and solicited comments from the public. 46 Fed.Reg. 60778. One of those rules, the regulation at issue in this case, was identical to that published in 1978. Id. at 60781. Apparently, the Secretary’s primary motivation for initiating rulemaking procedures was to determine whether the OSM regulations complied with Executive Order 12291, which mandates a weighing of the costs and benefits of agency regulations. 47 Fed.Reg. 28574 (1982). But in “seeking early and meaningful public participation,” the Secretary did not limit comments to consideration of the bur-densomeness of the regulations. 46 Fed. Reg. 60779 (1981). Indeed, with reference to 872.11(b)(3) he took the opportunity expressly to explain the substitution of “Indian lands” for the statutory language “Indian reservation.” Id. at 60782. Two states, Montana and New Mexico, submitted comments objecting to 872.11(b)(3). On June 30, 1982 the agency announced final rules designed to “clarify the relationships and responsibilities of the States, Indian tribes, and Federal Government in implementing” the surface mining regulatory program. 47 Fed.Reg. 28574 (1982). The agency expressly considered, responded to, and rejected Montana’s comments. Id. at 28580, 28592. Fifty-eight days later Montana filed this petition for judicial review of the final rules. The law in this circuit is clear that an agency decision not to amend long-standing rules after a notice and comment period is reviewable agency action. See, e.g., Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216, 1221 (D.C.Cir.1983). Although acknowledging the general reviewability of a decision not to amend, the District Court believed that Natural Resources Defense Council v. NRC (NRDC), 666 F.2d 595 (D.C.Cir.1981), carved from this rule a broad exception for all petitioners who had failed to exercise a prior opportunity to seek judicial review. The rule of NRDC, however, does not cut so deeply into the general principle that all final agency action is presumptively reviewable. Natural Resources Defense Council v. SEC, 606 F.2d 1031, 1047 (D.C.Cir.1979). NRDC merely holds that a protestant, who could have but did not seek review, may not create the basis for a reviewable order by unilaterally petitioning for repeal or amendment of a regulation. To permit any complainant to restart the limitations period by petitioning for review of a rule, the NRDC court recognized, would eviscerate the congressional concern for finality embodied in time limitations on review. This concern is not present in the instant case. Montana did not contrive to restart the 60-day period by unilaterally seeking repeal of a long-standing regulation. Indisputably, the agency itself initiated rule-making procedures in 1981. It held out Section 872.11(b)(3) as a proposed regulation, offered an explanation for its language, solicited comments on its substance, and responded to the comments in promulgating the regulation in its final form. Given the affirmative indications that the agency evaluated the entire substance of the regulation, it matters little whether the agency’s primary focus was on bringing the comprehensive regulatory scheme in compliance with Executive Order 12291. Unless we are to consider the notice and comment process a meaningless gesture, the order of June 1982 reissuing Section 872.11(b)(3) constitutes final agency action and is reviewable under the Administrative Procedure Act, 5 U.S.C. § 704. Toilet Goods Ass’n v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 1523, 18 L.Ed.2d 697 (1967). The 60-day period for review began on June 30, 1982 and, accordingly, the petition was timely. III. The Statutory Question A. Standard of Review This case requires us to reconcile two superficially conflicting principles of statutory interpretation. Montana raises a pure question of law, whether the challenged regulation is inconsistent with the organic statute. Accordingly, it invokes the principle that the judiciary is uniquely responsible for the final determination of the meaning of statutes. FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385, 85 S.Ct. 1035, 1042, 13 L.Ed.2d 904 (1965). The federal appellees, on the other hand, acknowledge the purely legal nature of the question but insist that this court should afford substantial deference to the Department of the Interior’s construction of a statute it is entrusted to administer. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, — U.S. —, — & n. 14, 104 S.Ct. 2778, 2782 & n.14, 81 L.Ed.2d 694 (1984) (hereinafter cited as Chevron only to 104 S.Ct.) (collecting cases). The conflict between these two principles, both thoroughly entrenched in the case law, Trailways, Inc. v. ICC, 727 F.2d 1284, 1287 (D.C.Cir.1984), is more apparent than real. Beyond question, it is the unique province of the judiciary to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-178, 2 L.Ed. 60 (1803). But the exercise of this function does not preclude affording deference to an agency’s construction of its enabling statute. For, properly understood, deference to an agency’s interpretation constitutes a judicial determination that Congress has delegated the norm-elaboration function to the agency and that the interpretation falls within the scope of that delegation. Mona-ghan, Marbury and the Administrative State, 83 Colum.L.Rev. 1, 25-28 (1983); Trailways, Inc. v. ICC, supra, 727 F.2d at 1288. Thus the court exercises its constitutionally prescribed function as the final arbiter of questions of law when it evaluates the breadth of congressional delegation and, in so doing, determines the degree of deference warranted in the particular controversy before it. The recent decision in Chevron, supra, elaborates on these principles and sets out the appropriate methodology for ascertaining whether to afford deference to an agency construction of its governing statute. At the outset, “if the intent of Congress is clear, that is the end of the matter,” and contrary agency interpretations must be invalidated. 104 S.Ct. at 2781. To conclude otherwise would be to adopt the absurd position that Congress delegated authority to vitiate or disregard its intent. Isolating the intent of Congress, of course, is often easier said than done. Thus it has become axiomatic that we must assume that Congress expresses its intent through the ordinary meaning of the words it uses. Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983). But the language of a statute is not an inevitable proxy for legislative intent. Watt v. Alaska, 451 U.S. 259, 266 n. 9, 101 S.Ct. 1673, 1678, n. 9, 68 L.Ed.2d 80 (1981); Water Transport Ass’n v. ICC, 715 F.2d 581, 593 (D.C.Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 998, 79 L.Ed.2d 231 (1984). If the language of one statutory phrase, however “plain,” collides with the literal command of another or of the statute as a whole, the resulting ambiguity necessitates examination of extrinsic evidence of legislative intent to reconcile the conflict. Chemehuevi Tribe of Indians v. FPC, 420 U.S. 395, 403-405, 95 S.Ct. 1066, 1072-73, 43 L.Ed.2d 279 (1975). Similarly, if the “plain” language would lead to a patently “absurd” result, the assumption that the literal words embody legislative intent has considerably less force. Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117 (1978). If examination of the statutory language and, where appropriate, extrinsic evidence reveals that “Congress has not directly addressed the precise question at issue,” the court’s task is to determine whether to afford deference to an agency’s effort to explicate the ambiguous language or fill the statutory void. Chevron, supra, 104 S.Ct. at 2782. The cases divide into two categories, roughly paralleling the sometimes fuzzy distinction between legislative and interpretive rules. First, “[i]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute * * *.” Id. See also Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). In this context we are directed by the Administrative Procedure Act, 5 U.S.C. §706(2)(A), as well as the Supreme Court, Chevron, supra, 104 S.Ct. at 2782, to affirm the agency’s construction unless arbitrary, capricious, or manifestly contrary to law. Second, if “the legislative delegation to an agency * * * is implicit rather than explicit,” Chevron commands that the court affirm an agency’s interpretation of a statute it is entrusted to administer provided that it is “reasonable.” Id. See also Whirlpool Corp. v. Marshall, 445 U.S. 1, 11, 100 S.Ct. 883, 890, 63 L.Ed.2d 154 (1980). Deference in this context, no less than in the case of explicit delegation, reflects the deep institutional premise that it is for the agency in its capacity as delegate of the legislative branch, not the court, to make policy within the boundaries assigned to it by Congress. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1979). Applying these principles to the case at hand, we evaluate first whether the statutory language of Section 1232(g)(2) re-fleets a congressional intent that fees collected from mines on Indian lands outside the exterior boundaries of reservations be distributed to states rather than the tribe. The literal words of the statute are presumptively conclusive of legislative intent, but that presumption may be defeated by contrary indications of intent also evident on the face of the statute. In that event, examination of extrinsic evidence to ascertain the congressional purpose would be necessary. If we determine that Congress did not expressly foreclose the construction embodied in the challenged regulation, we must determine whether the agency’s construction warrants deference by measuring the breadth of delegation, if any, to the agency to fill gaps or resolve statutory ambiguities and by determining whether the agency’s interpretation fell within the boundaries assigned to it. On the one hand, as Montana correctly notes, the absence of several of the typical indicia of broad congressional delegation to the agency counsels against deference. Trailways, Inc. v. ICC, supra, 727 F.2d at 1288. In particular, the construction embodied in 30 C.F.R. § 877.11(b)(3) required no technical or specialized expertise, a circumstance ordinarily weighing against deference. Alexander v. FERC, 609 F.2d 543, 548 (D.C.Cir.1979). Similarly, the statutory language at the center of this controversy is not “of such inherent imprecision * * * that a discretion of almost legislative scope was necessarily contemplated.” Association of Data Processing Service Organizations, Inc. v. Board of Gov. of FRS, 745 F.2d 677, 697 (D.C.Cir.1984). On the other hand, one consideration weighs decisively in favor of deference. As will be developed more fully below, Congress expressly recognized that the jurisdictional status of Indian lands was too uncertain to permit effective allocation of regulatory authority for those regions. 30 U.S.C. §§ 1273, 1300. See also H.R.Rep. 94-189, 94th Cong., 1st Sess. 79 (1974). Accordingly, it provided that, within a matter of months, it would return to the legislative task and clarify the question. Over seven years have now passed and the promise of congressional clarification remains unfulfilled. In the meantime, the Secretary is under a present obligation to collect fees for and administer the reclamation fund. Given this rather remarkably mixed message, we can only conclude that, pending congressional clarification, Congress afforded the Secretary substantial discretion in the administration of the fund on Indian lands. Thus deference is appropriate, and we will uphold the agency’s interpretation provided only that it is not expressly foreclosed by congressional intent and that it is reasonable. Chevron, supra, 104 S.Ct. at 2782. B. The Plain Language Montana maintains that the plain meaning of the statute is controlling. It points out that Congress used the phrase “Indian reservation” throughout Subchapter IV, see, e.g., 30 U.S.C. § 1239(b-c), and that Congress clearly knew the difference between the phrase “Indian reservation” and the statutorily defined term “Indian lands,” which includes both reservations and lands beyond the exterior boundaries of reservations either owned by or beneficially held for an Indian tribe. See, e.g., id. §§ 1291(9) & 1300(h). Montana also finds relevant Section 1273, which specifically states that, except as provided in Section 1300, the provision that commissions a study on the question, the Act “shall not be applicable to Indian lands.” Thus, in its view, the only ambiguity in the statute was injected by the Secretary when he substituted “Indian lands” for “Indian reservation” in the challenged regulation. There can be no denying the initial appeal of Montana’s “plain meaning” argument. Ultimately, however, we are not persuaded. The fundamental, and in the end fatal, deficiency in Montana’s reading of the statute is its failure to acknowledge, much less account for, language that equally plainly compels the conclusion that Congress did not intend that funds derived from Indian lands be distributed to the states. Montana makes clear that the gravamen of its complaint is that the regulation deprives the State of funds needed to reclaim lands and water spoiled by coal mining. Brief for appellant at 22. The State also asserts that it intends to use the funds to reclaim abandoned mines on non-reservation Indian lands. Id. at 25. Yet the Act unambiguously denies the state the power to administer funds on any Indian lands, on or off the reservation. No state is eligible for funds under Section 1232(g)(2) until it has submitted, and the Secretary has approved, a “State reclamation program.” Id. § 1235. The Act defines “State program” to mean “a program established by a State pursuant to section 1253 of this title to regulate * * * reclamation operations on lands within such State.” Id. § 1291(25) (emphasis added). And, finally, the Act defines “lands within such State” to mean “all lands within a State other than Federal lands and Indian lands.” Id. § 1291(11). Because “Indian lands” include “mineral interests held in trust for * * * an Indian tribe,” id. § 1291(9), the Act explicitly denies Montana the power to administer federal funds to reclaim abandoned mines on the ceded strip. Thus granting Montana the funds generated by current mining operations on the ceded strip would violate the clear command of Section 1232(g)(1) that “[t]he geographic allocation of expenditures from the fund shall reflect * * * the area from which the revenue was derived.” Another “plain language” obstacle that Montana fails to confront, much less surmount, is the directive of Section 1235(k) that “Indian tribes having within their jurisdiction eligible lands pursuant to section 1234 of this title or from which coal is produced, shall be considered as a ‘State’ for the purposes of this subchapter.” Once this provision is read back into Section 1232(g)(2), also in Subchapter IV, the supposedly plain meaning of that provision’s allocation language becomes anything but clear. Section 1232(g)(2) provides, with emphasis added, that 50 percent of the “funds collected annually in any State or Indian reservation shall be allocated to that State or Indian reservation.” But Section 1235(k) requires that the Secretary treat as a “state” any tribe having jurisdiction over lands that produce coal. Thus, assuming that the Crow Tribe has “jurisdiction” over the ceded strip within the meaning of Section 1235(k), 50 percent of the funds derived from the region go to it, and not Montana, a result entirely consonant with the challenged regulation. Finally, Montana’s reliance on Section 1273 to “plainly” support its position fails to convince. Section 1273(a) states that “the provisions of this chapter shall not be applicable to Indian lands [except in accord with Section 1300].” This provision, of course, directly conflicts with Section 1235(k), which treats tribes having jurisdiction over coal-producing lands as states for purposes of Subchapter IV. More importantly, Section 1273(a) defeats Montana’s right to the funds collected on the ceded strip as much as it defeats that of the tribe. Somewhat surprisingly, Montana has elected to challenge 30 C.F.R. § 872.11(b)(3), which allocates funds from Indian lands to the tribes, rather than 30 C.F.R. § 872.11(b)(2), which exempts from funds allocated to the states fees collected from “Indian lands.” At bottom, however, as Montana admits, brief for appellant at 24, its complaint stems from its belief that it, not the Crow Tribe, is entitled to funds collected on the ceded strip. Indeed, were this not the injury that motivates the petition for review, we doubt Montana would have standing to challenge Section 872.11(b)(3) at all. But if the essence of Montana’s complaint is its view that the Act confers on it a right to funds generated by the ceded strip, Section 1273 stands “plainly” and squarely in its path. For the literal terms of that section say that the Act “is not applicable” to Indian lands at all. If that is the case, no more than the Crow Tribe does Montana have a present right to funds derived from mining operations either inside Indian reservations or beyond their exterior boundaries. 30 U.S.C. § 1291(11). In short, Montana’s focus on the “plain meaning” of the term “Indian reservation” in Section 1232(g) is far too narrow. The equally plain but conflicting command of other terms of the statute, though not independently dispositive, is more than sufficient to defeat even the strong presumption that the words of the statute, without more, embody Congress’ intent. Indeed, the ambiguities present on the face of the statute make an examination of the legislative history for evidence of that intent both necessary and appropriate. C. The Legislative History We are frank in admitting that our extensive review of the labyrinthine legislative history has yielded few certain conclusions. The long and convoluted path toward final enactment of the Act began in 1968. Hearings on S.3132, S.3126, and S.217 Before Senate Committee on Interior and Insular Affairs, 90th Cong., 1st Sess. (1968). The 93rd Congress passed an earlier version of the bill in 1974, S.425, 93d Cong., 2d Sess. (1974), but President Ford vetoed it. The 94th Congress passed a similar bill in 1975, H.R.25, 94th Cong., 1st Sess. (1975), but it too met with a presidential veto. The legislation as it now stands was enacted by the 95th Congress and signed into law by President Carter in 1977. Each Congress made revisions in the earlier draft, but often carried over language that the subsequent changes made obsolete or internally inconsistent. Especially obscure is the relationship between Sections 1232(g), 1273(a), 1235(k) and 1300(a-h). From this tangled skein, however, one aspect of the congressional purpose emerges with clarity. Believing that the jurisdictional status of non-reservation “Indian lands” was too unclear to permit effective allocation of regulatory authority in these regions, Congress expressly postponed resolution of the question and directed that the Secretary of the Interior submit a report within six months of the enactment of the Act and “propose[ ] legislation designed to allow Indian tribes to elect to assume full regulatory authority over the administration and enforcement of regulation of surface mining of coal on Indian lands.” 30 U.S.C. § 1300(a). No evidence supports Montana’s view that the language of Section 1232(g)(2) reflects a finely calibrated intent to permit states to reclaim non-reservation Indian lands pending congressional clarification, while limiting tribal jurisdiction to reservations. Nor does the legislative history support Montana’s assertion that Congress intended that non-Indians reclaim the surface in regions where a tribe controls the subsurface minerals. In sum, we find 30 C.F.R. § 872.11(b)(3), read in conjunction with the Secretary’s policy to suspend distribution of funds collected on non-reservation Indian lands, far more consonant with congressional objectives than the position asserted by Montana. 1. The Indian lands question in the 93rd, 94th, and 95th Congresses. In the 93rd Congress the bill that emerged from the House Committee on Interior and Insular Affairs would have given Indians full administrative authority over both reclamation and regulation of mines on “Indian lands.” H.R.11500, 93rd Cong., 2d Sess. §§ 301-311 (1974). The allocation language of current Section 1232(g) was not in the bill. But the House’s clear intent was to treat Indian tribes as states and to designate Indian lands, even those off the reservation, id. § 705(8), under the regulatory authority of the tribes that controlled them. H.R.Rep. 93-1072, 93d Cong., 2d Sess. 115-116 (1974). The Senate took a different approach. See S.425, 93d Cong., 2d Sess. §§ 115-116 (1973). Section 217(a) of the bill passed by the Senate stated that, except as provided in Section 403, “the provisions of this Act shall not be applicable to Indian lands.” Section 403, the progenitor of Section 1300 in the current Act, commissioned the Secretary of the Interior to produce and submit to Congress a study on regulatory authority over Indian lands. The Senate Report, S.Rep. 93-402, 93d Cong., 1st Sess. (1973) (hereinafter cited as Senate Report), makes explicit the intent to “exempt temporarily all Indian lands from the Act,” id. at 74, including lands controlled by a tribe but beyond the boundaries of its reservation. S.425, 93d Cong., 1st Sess. § 510(9) (1973). The Senate bill provided that the federal government, not the states, would oversee surface mining on Indian lands pending congressional clarification of the question. The Senate bill was far clearer about the mechanisms for interim federal control of regulation than of reclamation. See, e.g., Senate Report at 74. But there is no doubt that the Senate envisioned no role for the states on Indian lands. To be eligible to receive reclamation funds a state must have jurisdiction over “lands within such state,” S.425, 93d Cong., 2d Sess. § 204(1) (1973), a phrase defined to “insure that the States, through their State programs, will not assert any additional authority over * * * Indian lands.” Senate Report at 75. In conference the conferees largely acceded to the Senate’s approach to Indian regulatory authority. See H.R.Rep. 93-1522, 93d Cong., 2d Sess. (1974) (hereinafter Conference Report). The bill that emerged from conference gave Indians no authority to submit plans for either regulation or reclamation, and, like the original Senate bill, commissioned a study to investigate the subject of administrative jurisdiction over Indian lands. The study was to include proposed legislation that would “allow Indian tribes to elect to assume full regulatory authority over the * * * regulation of surface mining of coal on Indian lands.” Id. at 68 (§ 712(a)). The extent of state jurisdiction over non-reservation Indian lands was slightly less clear in the bill as it emerged from conference and later passed by both Houses than in the original Senate bill. The defined term “lands within such state,” which in S.425 had explicitly excluded all Indian land from the ambit of a state reclamation program, was dropped; compare S.425, 93d Cong., 1st Sess. § 204 (1973), with Conference Report at 20 (§ 503); and the language allocating 50 percent of the fees derived from an Indian reservation or a state to that reservation or state was added. Id. at 12 (§ 401(e)). One could plausibly draw from these changes the inference that the conferees, though wishing ultimately to give tribes regulatory authority over non-reservation Indian lands, id. at 68 (§ 712(a)), provided in the interim that states could administer reclamation plans on the off-reservation portions of those lands as long as the fees derived from reservations proper return to the reservation. For several reasons this inference is unconvincing. The conferees could not have been clearer that ultimately they wanted Indians to administer funds on non-reservation Indian lands, id.) and not a whit of evidence suggests an intent that the states oversee the funds in the interim period. Indeed, though Section 401(e), unlike the bill in final form, speaks only generally about the administrative vehicles through which the 50 percent allocation would be implemented, a state could only have direct control of the funds.if it had submitted an approved state reclamation program. The bill passed by the 93rd Congress, no less than either the original Senate or House bills, limited the jurisdiction of state programs to lands other than “Federal lands” and “Indian lands” both on and off the reservation. Id. at 60-61 (§ 701(7), (8), (9), & (11)). Thus no evidence supports the contention that the 93rd Congress intended that the states oversee reclamation on non-reservation Indian lands or otherwise benefit from funds collected in such areas during the interim period prior to enactment of clarifying legislation Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_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, Plaintiff-Appellee, v. Firouz YAMIN and Behroz Geramian, Defendants-Appellants. No. 88-3481 Summary Calendar. United States Court of Appeals, Fifth Circuit. March 7, 1989. Rehearing Denied April 5, 1989. Roma A. Kent, Federal Public Defender, New Orleans, La., for Yamin. Michael A. Unger, Chicago, Ill., for Gera-mian. Peter G. Strasser, Robert J. Boitmann, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for U.S. Before RUBIN, GARWOOD, and DAVIS, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: Two defendants convicted on various counts related to trafficking in counterfeit watches appeal their convictions. One defendant contends that the court’s jury instruction so misstated the law that it was plainly in error, and the other contends that (1) the evidence was insufficient to support his conviction on two counts and (2) the government was required to produce the actual watches sold as the best evidence that the defendants had trafficked in counterfeit goods. Finding these arguments to be without merit, we affirm. Special Agents of the U.S. Customs Service executed a search warrant on the premises of Geramian Collection II, a jewelry store owned and operated by Massoud Geramian and Firouz Yamin. They seized 324 replica Rolex, Piaget, Cartier, and Gucci watches from the closet and desks in the back office of the store. They also seized invoices indicating that during the past seventeen months the store had sold more than six thousand counterfeit watches. These invoices included sales made when the store was known as M & B Imports and was co-owned by Massoud Geramian and his brother, Behroz Geramian. Massoud and Yamin incorporated the business under the name Geramian Collection II, Inc. when Behroz sold his interest to Massoud. Both Massoud Geramian and Yamin were indicted on charges of trafficking in counterfeit watches. Both were found guilty and are now appealing their convictions. We consider separately each of the three issues raised. I. Geramian argues that the court gave an improper jury instruction by misstating the standard for conviction under 18 U.S.C. § 2320. That statute provides criminal penalties for anyone who “intentionally traffics or attempts to traffic in goods or services and knowingly uses a counterfeit mark on or in connection with such goods or services.” The statute defines counterfeit mark as a spurious mark “the use of which is likely to cause confusion, to cause mistake, or to deceive.” In explaining the definition of a counterfeit mark, the judge instructed the jury: The prosecution is not required to prove that the defendant ever had an intent to deceive or defraud anyone. The Government simply has to show that the use of the spurious trademark is likely in the future to cause either confusion, mistake, or deception of the public in general. ... The public in general includes persons who have no intent to purchase such as the recipient of a gift or the guest in the house who simply views goods as well as purchasers and potential purchasers. The intent here is an intent by the defendant to copy the trademark even if there is concededly no intention to deceive the purchaser. Geramian argues that this instruction permitted the jury to find the confusion element satisfied by the mere viewing of a counterfeit watch by a disinterested member of the public who has no intention of purchasing. He contends that such a construction is an erroneous interpretation of the statute. Because no objection was made to the instruction, the plain-error standard governs analysis of this issue. To constitute plain error, the error must have been so fundamental as to have resulted in a miscarriage of justice. The judge’s instruction made no such error. The statute’s application is not restricted to instances in which direct purchasers are confused or deceived by the counterfeit goods. “Section 2320(a) is ‘not just designed for the protection of consumers. [It is] likewise fashioned for the protection of trademarks themselves and for the prevention of the cheapening and dilution of the genuine product.’ ” As the Eleventh Circuit stated in United States v. Torkington, It is essential to the Act’s ability to serve this goal that the likely to confuse standard be interpreted to include post-sale confusion. A trademark holder’s ability to use its mark to symbolize its reputation is harmed when potential purchasers of its goods see unauthentic goods and identify these goods with the trademark holder. This harm to trademark holders is no less serious when potential purchasers encounter these goods in a post-sale context. Moreover, verbal disclaimers by sellers of counterfeit goods do not prevent this harm. Geramian argues that because all of the witnesses who had purchased watches from the defendants testified that they were never deceived into thinking that they were purchasing authentic goods and in turn deceived no subsequent purchasers, there was no evidence to support a finding by the jury of post-sale confusion. Gerami-an contends that the judge’s instruction permitted the jurors to find confusion on the part of some hypothetical disinterested members of the public, a finding that would run counter to the evidence. Geramian interprets “post-sale confusion” too narrowly. The jury need not find actual confusion. The statute expressly requires only likelihood of confusion. The jury heard testimony from experts that members of the public constantly bring counterfeits in for repair only to find out that they are not genuine. Those who purchased watches from the defendants testified to the similarity between the originals and the counterfeits they bought. The evidence was, therefore, sufficient to permit the jury to find that the watches sold had the potential to deceive or to cause confusion or mistake. II. Yamin argues that the evidence was insufficient to support the jury’s guilty verdict on Counts 1 and 12 of the superseding indictment. In evaluating the sufficiency of the evidence on appeal, the reviewing court must consider the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in support of the jury's verdict. The evidence is sufficient if a rational trier of fact -could have found the essential elements of the crime beyond a reasonable doubt. Count 1 of the indictment charges Yamin with conspiracy to traffic in counterfeit goods in violation of 18 U.S.C. §§ 371 & 2320. The essential elements of the offense of conspiracy under § 371 are an agreement between two or more persons to commit a crime against the United States and an overt act by one of them in furtherance of the agreement. The government must prove beyond a reasonable doubt that the defendant knew of the conspiracy and that he voluntarily became a part of it. The existence of a conspiracy may be proved by circumstantial evidence and may be inferred from concert of action. Yamin argues that the evidence showed no more than his mere association with co-defendants Massoud and Behroz Geramian. Yamin and Massoud Geramian, however, were joint owners of a corporation that sold thousands of counterfeit watches. While Massoud personally made most of the sales, the government presented ample evidence of Yamin’s knowing participation in a conspiracy to make the sales. Patti Fischer testified that over a period of several years she purchased counterfeit watches for the total sum of $31,122.87 and that on three separate occasions she purchased watches from Geramian at Yamin’s apartment. A number of witnesses testified either that they bought counterfeit Rolex and Gucci watches directly from Ya-min, or that Yamin produced watches for a prospective purchaser to examine, or that Yamin was present when Geramian was negotiating the sale of counterfeit watches under circumstances from which Yamin’s knowledge of the proceedings can be inferred. This evidence, which we need not recount in detail, was sufficient for the jury to find beyond a reasonable doubt that Yamin was an active and knowing participant in the conspiracy to traffic in counterfeit goods. Yamin also contends that the evidence was insufficient to support his conviction on Count 12 of the indictment which charged him with knowingly and intentionally trafficking in counterfeit goods in violation of 18 U.S.C. §§ 2 & 2320. This count refers to the sale of a counterfeit Rolex watch to an undercover agent. Yamin argues that because he did not actually take the money or write up the invoice, the sale was not made by him. Even if the sale had not been actively negotiated and closed by Yamin, Yamin could be found guilty as a principal for aiding and abetting Geramian in that sale. To convict a defendant as an aider and abetter, the government must show that the defendant committed an act that contributed to the execution of the criminal activity and that he intended to aid in its commission. The undercover agent testified that Yamin was present in the back room of the store when she bought a counterfeit Rolex and that Yamin brought her the watch that she purchased. He also called her bank to see if her check was good. From this testimony the jury could conclude beyond a reasonable doubt that Yamin had at least aided and abetted in the sale of a counterfeit watch. III. Count 9 charged Yamin and Geramian with violation of 18 U.S.C. §§ 2 and 2320 by the sale of watches to a particular customer (Patti Fischer), and Count 11 alleged violation of the same statutes by the sale of watches to another named customer. Yamin claims that the government failed to introduce the best evidence of the counterfeit marks, namely the watches themselves. He contends that Federal Rule of Evidence 1002, the best evidence rule, bars the admission of testimony about the marks absent proof of one of the unavailability exceptions. This novel argument appears plausible because it is, at least in part, the writing on the watch that makes it a counterfeit. Thus it may be argued that it is the content of that writing that must be proved. The purpose of the best evidence rule, however, is to prevent inaccuracy and fraud when attempting to prove the contents of a writing. Neither of those purposes was violated here. The viewing of a simple and recognized trademark is not likely to be inaccurately remembered. While the mark is in writing, it is more like a picture or a symbol than a written document. In addition, an object bearing a mark is both a chattel and a writing, and the trial judge has discretion to treat it as a chattel, to which the best evidence rule does not apply. Several witnesses, including the two identified in Counts 9 and 11, testified that they bought watches with the counterfeit trademarks. Furthermore, 324 counterfeit watches, seized from the defendants’ store, were admitted into evidence. These watches were discovered in the back office where every witness testified to having seen counterfeit watches. The seized watches were identified by experts as imitations of various models made by Piaget, Rolex, Cartier, and Gucci. The jury compared the seized watches with originals or pictures of the originals. In addition, the actual watch sold to the undercover agent was introduced into evidence. The inference that the seized watches that were entered into evidence were the same as, or substantially identical to, the watches sold to the various witnesses is too strong to be seriously questioned. And, in any event, Yamin did not properly preserve his “best evidence” contention. Rule 1002, Federal Rules of Evidence, is a rule governing the admissibility of evidence. However, relevant evidence admitted without objection may properly support a verdict, so far as it has probative value, even though its exclusion would have been required on appropriate objection. Here, Yamin did not object on the basis of the “best evidence” rule to the admission of any testimony or evidence proffered by the prosecution, but only raised the “best evidence” contention in argument in support of a motion for judgment of acquittal at the close of the prosecution’s case. Absent “plain error” — which is not shown here — this does not suffice to preserve the contention that the evidence in question should not have been admitted. See Fed.R.Evid. 103(a)(1). For the foregoing reasons, the judgment is AFFIRMED. . 18 U.S.C. § 2320(a) (1984). . Id. at (d)(l)(A)(iii). . United States v. Hernandez-Palacios, 838 F.2d 1346, 1350 (5th Cir.1988). . Id. at 1350-51. . United States v. Gantos, 817 F.2d 41, 43 (8th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 175, 98 L.Ed.2d 128 (1987) (quoting United States v. Gonzalez, 630 F.Supp. 894, 896 (S.D.Fla.1986)). . 812 F.2d 1347, 1353 (11th Cir.1987). See also United States v. Infurnari, 647 F.Supp. 57, 59-60 (W.D.N.Y.1986). . Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988). . Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff’d, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). . United States v. Graves, 669 F.2d 964, 969 (5th Cir.1982). . 18 U.S.C. § 2. . United States v. Stovall, 825 F.2d 817, 827 (5th Cir.1987). . Fed.R.Evid. 1001 (advisory committee notes). . See United States v. Duffy, 454 F.2d 809 (5th Cir.1972). .Id. at 812. . See, e.g., McCormick On Evidence § 54 (3rd ed.). 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:
songer_casetyp1_1-2
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal". PATTERSON v. UNITED STATES. KIMBALL v. UNITED STATES. Nos. 6115, 6116. United States Court of Appeals Fourth Circuit. Submitted on briefs July 3,1950. Decided July 6, 1950. W. R. Allcott, of Richmond, Va., for appellants. George R. Humrickhouse, U. S. Atty., and Robert N. Pollard, Jr., Asst. U. S. Atty., both of Richmond, Va., for appellee. Before PARKER, Chief Judge, and SO-PER and DOBIE, Circuit Judges. PER CURIAM. The appellants Patterson and Kimball were convicted in the court below of the crime of escaping from The Federal Reformatory at Petersburg, Virginia, in which they were confined. After conviction and sentence they moved that the judgment of the court be set aside and that they be granted a new trial on the ground that they had already been punished for the escape in that after their return to the reformatory they had been placed in soli iary confinement for a certain period and the “good time” which they had earned had been revoked. Aside from the fact that the granting of a new trial was a matter resting in the sound discretion of the trial court which may not be disturbed in the absence of abuse, it is perfectly clear that the motions here were absolutely lacking in merit. Criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the fifth amendment because a convict guilty thereof has upon his recapture been subjected to discipline by the prison authorities for the violation of prison discipline involved. Pagliaro v. Cox, Warden, 8 Cir., 143 F.2d 900. Affirmed on both Appeals. 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:
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. PIPER v. WILLCUTS, Collector of Internal Revenue. No. 9533. Circuit Court of Appeals, Eighth Circuit. April 11, 1933. Leland W. Scott, of Minneapolis, Minn. (Junell, Driseoll, Fletcher, Dorsey & Barker, of Minneapolis, Minn., on the brief), for appellant. Eldon O. Hanson, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (Lewis L. Drill, U. S. Atty., of St. Paul, Minn., and M. W. Goldsworthy, Sp. Asst, to U. S. Atty., C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Herbert E. Carnes, Sp. Atty., Bureau *of Internal Revenue, all of Washington, D. C., o-n the brief), for appellee. Before STONE, VAN VALKEN-BURGH, and BOOTH, Circuit Judges. VAN VALKENBURGH, Circuit Judge. The facts in issue in this appeal, as in the trial court, are thus succinctly stated by the trial judge: “Prom the stipulation of facts it appears that Mr. Piper, the plaintiff, purchased 300 shares of the capital stock of the Minneapolis Artificial Ice Rink, Inc., in the year'1924, for which he paid $30,000. He held this stock until 1927, when he sold it for $4.00. He therefore sustained a loss of $29,996, for which he was not compensated by insurance or otherwise. He did not acquire nor enter into a contract or option to acquire shares of the capital stock of the Minneapolis Artificial lee Rink, Inc., within thirty days before or after the sale of the shares purchased. In 1927 he did not sell or exchange any property held by him for more than two years, other than these shares. In his individual income tax return for the calendar year 1927, Mr. Piper deducted from gross income $29,996 as a loss sustained within the calendar year 1927, within the meaning of section 214(a) (4) and (5) of the Revenue Act of 1926, title 26, USCA § 955. “The Commissioner of Internal Revenue determined a deficiency in the plaintiff’s tax liability for the calendar year 1927 of $1,-528.82, holding that the loss from the sale of the stock in question constituted a ‘capital net loss’ within the meaning of Section 208 (а) (6) of the Revenue Act of 1926 (title 26, USCA § 939 note), and that it was therefore not a proper deduction from the plaintiff’s gross income. The computation of the plaintiff’s tax liability under Section 208(c) of the Revenue Act of 1926 resulted in a deficiency as determined by the Commissioner. Mr. Piper paid the deficiency, and brought this suit to recover the amount paid. “The only question involved is whether the plaintiff’s conceded loss is a ‘capital net loss’ within the .meaning of Section 208(a) (б) of the Revenue Act of 1926.” There is no dispute as to the facts, and the question presented is purely one of law. The contention of appellant is thus stated: “The capital net loss with which the statute deals can only exist when there have been sales or exchanges of capital assets at both gain and loss resulting in an amount of loss greater than the amount of gain. If there have been sales or exchanges of capital assets at a loss and no’sales or exchanges of capital assets at a gain the statute is inapplicable. In such a situation a taxpayer is entitled to the benefit of section 214(a) (4) and (5) .” At the outset it may be well to state some established rules of law which must govern our consideration and disposition of this issue. It may be conceded that, where in the language of a statute the legislative body’s intent clearly appears, it is to be presumed that it said what it meant to say; but courts should construe a statute in such manner as to avoid absurdity or injustice. Echols v. Commissioner (C. C. A. 8) 61 F.(2d) 191. A statute should be reasonably construed to carry out its purposes and objects where the meaning is not perfectly clear. Fidelity National Bank & Trust Co. v. Commissioner (C. C. A. 8) 39 F.(2d) 58. “A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.” Smythe v. Fiske, 23 Wall. 374, 380, 23 L. Ed. 47. “The rule of strict construction will not be pressed so far as to reduce a taxing statute to a practical nullity by permitting easy evasion.” Carbon Steel Co. v. Lewellyn, 251 U. S. 501, 40 S. Ct. 283, 64 L. Ed. 375. “The rule that tax laws shall be construed favorably for the taxpayers is not a reason for creating or exaggerating doubts of their meaning.” Irwin, Collector, v. Gavit, 268 U. S. 161, 45 S. Ct. 475, 69 L. Ed. 897. The intention of the lawmaker is the law, and must govern where it may be deduced reasonably from the language employed. With this in mind let us examine into the legislative and judicial history of this statute. Burnet v. Harmel, 287 U. S. 103, 108, 53 S. Ct. 74, 77 L. Ed. -. The pertinent provisions follow: Section 208, 1926 Revenue Act. Title 26 USCA § 939 note — Capital Gains and Losses. 44 Stat. at L., p. 19. Section 208. “(a) For the purposes of this chapter— “(1) The term ‘capital gain’ means taxable gain from the sale * * * of capital assets consummated after December 31, 1921; “(2) The term ‘capital loss’ means deductible loss resulting from the sale or exchange of capital assets; “(3) The term ‘capital deductions’ means such deductions as are allowed by section 955 [214] for the purpose of computing net income, and are properly allocable to or chargeable against capital assets sold or exchanged during the taxable year; “(4) The term ‘ordinary deductions’ means tlie deductions allowed by section 955 [214] other than capital losses and capital deductions; “(5) The term ‘capital net gain’ means iho excess of the total amount of capital gain over the sum of (A) the capital deductions and capital losses, plus (B) the amount, if any, by which the ordinary deductions exceed the gross income computed without including capital gain; “(6) The term ‘capital net loss’ means the excess of the sum of the capital losses plus the eapital deductions over the total amount of eapital gain. * * * “(b) In the ease of any taxpayer (other than a corporation) who for any taxable year derives a capital net gain, there shall (at the election of the taxpayer) be levied, collected and paid, in lieu of the taxes imposed by sections 951 [210] and 952 [211 of this title], a tax determined as follows: “A partial tax shall first be computed upon the basis of the ordinary net income at the rates and in the manner provided in sections 951 [210] and 952 [211], and the total tax shall be this amount plus 12% per cen-tum of the eapital net gain. “(e) In the ease of any taxpayer (other than a corporation) who for any taxable year sustains a capital net loss, there shall be levied, collected, and paid, in lieu of the taxes imposed by sections 951 [210] and 952 [211 of this title], a tax determined as follows : “A partial tax shall first be computed upon the basis of the ordinary net income at the rates and in the manner provided in sections 951 [210] and 952 [211], and the total tax shall be this amount minus 12% per centum of the capital net loss; but in no ease shall the tax under this subdivision be less than the taxes imposed by sections 951 [210] and 952 [211] computed without regard to the provisions of this section.” The first legislation upon this specific subject is to he found in section 20G of the Revenue Act of 1921, by the Sixty-seventh Congress, Stat. at L. vol. 42, pp. 232, 233. "Without quoting fully, it is sufficient to point out that this act permitted this same reduction of tax upon capital net gains as in the act of 1926 above set out. The provision of the latter act with respect to capital losses was not included in this act of 3921. The purpose of section 206 of the act of 1921 is thus stated in. Burnet v. Harmel, 287 U. S. loc. cit. 106, 53 S. Ct. 74, 75, 77 L. Ed. -: “Before the act of 1921, gains realized from tlie sale of property were taxed at the same rates as other income, with the result that capital gains, often accruing over long periods of time, were taxed in the year of realization at the high rates resulting from their inclusion in the higher surtax brackets. The provisions of the 1921 Revenue Act for taxing capital gains at a lower rate, re-enacted in 1924 without material change, were adopted to relieve the taxpayer from these excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions. House Report No. 350, Ways and Means Committee, 67th Cong., 1st Sess. on the Revenue Bill of 1921, p. 10; see Alexander v. King (C. C. A.) 46 F.(2d) 235, 74 A. L. R. 374.” In like manner we seek the intent and purpose of the Revenue Act of 1924, in section 208(a) (26 USCA § 939 note) of which provision was made for the deduction of 12% per centum of the eapital net loss, in computing income, instead of the full amount of said loss as theretofore. In the ascertainment of the intent of Congress and the purpose of the act we are again permitted to resort to legislative history. United States v. Great Northern Ry. Co. (C. C. A. 8) 57 F.(2d) 385; Burnet v. Harmel, supra. When the Revenue Act of 1924 was called up in the House of Representatives of the Sixty-eighth Congress, Mr. Green of Iowa, Chairman of the Ways and Means Committee in charge of the bill,, in explaining its provisions and purposes, said: “A very important provision in the bill relates to the allowance for capital losses. It is provided that the amount by which the tax is reduced on account of eapital losses shall not exceed 12% per cent of the losses, and the provision of the existing law, that the tax on the sale or disposition of capital assets shall bo limited to 12% por cent of the gain, is retained.” He then referred to the law of 1021 providing that capital gains should only be taxed at the rate of 12% per cent., and continued : “Unfortunately, we were not able to include in the Jaw, by reason of opposition in the other House, a similar provision with reference to eapital losses. It was included in the House bill, but was taken out in the Senate. As a result we have found that, in the language of the Secretary of the Treasury, the Government is continually being ‘whipsawed,’ because the large investors take their profits only when they really need them, but always take their losses and get full credit. They do that because, as the matter stands now, there is only a 12% per cent tax on the gains, and they get full credit for the losses. We have therefore inserted in this bill provisions similar to those contained in the amendment to the revenue act which passed the House last summer, providing that capital gains and capital losses shall both be placed on the same basis; that capital gains shall be taxed at 12% per cent, at the election of the taxpayer, and that capital losses shall only receive an allowance for deduction at the rate of 12% per cent. I really could imagine nothing that is fairer, and if this provision is retained in the bill, and I intend it shall' be if I am able to keep it there, it will result in the addition of a large amount of revenue to the Government out of which it is now being defeated, and sometimes in a very improper manner. I want to say in this connection that even as matters stand the government is getting far more revenue than it would if sales of capital assets were taxed at the full rate.” Vol. 65 Congressional Record, Part 3, 68th Congress, 1st Session, page 2428. The legislative intent and purpose is thus made clear, and should be preserved in construction if the language of the act permits. The pertinent provisions of the law of 1924 have been re-enacted in the Acts of 1926, 1928, and 1932. Section 268(e) of the Revenue Act of 1926 (26 USCA § 939 note) governs here. The Commissioner of Internal Revenue and the Board of Tax Appeals have consistently construed these revenue acts in conformity with the contention of the government and the decision of the trial court in the instant case. Dahlinger v. Commissioner, 20 B. T. A. 176; Gilbert and Chase, Petitioners, v. Commissioner, 21 B. T. A. 1245; Elkins v. Commissioner, 24 B. T. A. 572. The case of Nicoll v. Commissioner, 16 B. T. A. 868, upon which appellant places some reliance is, rather, an indirect ruling in appellee’s favor. The first syllabus holds that : “The term ‘capital net gain,’ as used in subdivision (b) of section 206 of the Revenue Act of 1921 [42 Stat. 233], comprehends the net result of all transactions during any taxable year, involving the sale or exchange of capital assets, provided such result represents a net gain to the taxpayer.” Long established departmental practice is entitled to much consideration. Commissioner v. Liberty National Bank (C. C. A. 10) 58 F.(2d) 57; Fidelity National Bank & Trust Company v. Commissioner (C. C. A. 8) 39 F.(2d) 58, loc. cit. 61. Much of the argument of counsel for appellant is based upon the use of the word “net” in describing capital gains and losses. It is contended that without exchanges of capital assets at a gain, there can be no net capital loss over gain within the meaning of section 208(c). The infirmity of this contention appears upon examination of the terms of the 1921 Revenue Act, in which no provision is made for capital loss deductions. Nevertheless, the capital gains dealt with are described as capital “net” gains, which mean “the excess of the total amount of capital gain over the sum of the capital deductions and capital losses”; and the reduced percentage of taxation was allowed whether or not there had been any capital loss due to the exchange of capital assets. So, under the act of 1926, “the term ‘capital net loss’ means the excess of the sum of the capital losses plus the capital deductions over the total amount of capital gain” — if any. If there is no such capital gain, the greater the capital loss. Rasp v. City of Omaha et al., 113 Neb. 463, 203 N. W. 588. Of course the act, in providing for these reduced taxes and deductions must, in terms, contemplate the striking of a balance if contemporaneous gains and losses exist. It is to be observed that there are other factors in the computation, to wit, capital and ordinary deductions in arriving at the net gain or loss. The term “net” has. no significance of the nature urged by appellant. This ease has been argued as depending entirely upon section 208 of the act of 1926 (26 USCA § 939 note). It is pertinent also to consider section 206(a) (2) of the same title. 44 Stat. at L. 17 (26 USCA § 937). Under the heading “net losses” we find: Sec. 206 (a). “As used in this section the term ‘net loss’ means the excess of the deductions allowed by section 955 [214] or 986 [234] of this title over the gross income, with the following exceptions and limitations: * * * “(2) In the case of a taxpayer other than a corporation, deductions for capital losses otherwise allowed by law shall be allowed only to the extent of the capital gains.” There were no capital gains in this year. The Commissioner of Internal Revenue determined a deficiency in the plaintiff’s tax liability!- for the year 1927 of $1,528..82, the computation being made under section 208 (c) of the Revenue Act of 1926 (26 USCA § 939 note). Tlis action was sustained by the trial court. The judgment was correct in any aspect of the ease and, accordingly, is affirmed. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_direct1
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Max M. JOHNSON, Appellant, v. John W. TURNER, Warden, Utah State Prison, Appellee. No. 287-69. United States Court of Appeals, Tenth Circuit. July 21, 1970. Phillip Pankoff, Denver, Colo., for appellant. Lauren N. Beasley, Chief Asst. Atty. Gen., Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., on the brief) for appellee. Before BREITENSTEIN, SETH and HOLLOWAY, Circuit Judges. HOLLOWAY, Circuit Judge. This appeal is taken from a denial of habeas corpus relief sought under 28 U. S.C. § 2254. Appellant Johnson is confined in the Utah State prison under an indeterminate sentence of one to ten years imposed in March, 1968, following a grand larceny conviction. He sought post-conviction relief in the State District Court by assertion of some issues raised here, but was denied such relief after a hearing at which appellant was present and represented by counsel. It appears that then both an appeal from the State trial court’s denial of post-conviction relief and an original petition for habeas corpus or coram nobis relief failed in the Utah Supreme Court. Appellant’s federal habeas corpus proceeding was then commenced in April, 1969. The trial court’s Memorandum Decision stated that the petition, transcripts and files had been examined; that no issues of substance involving the Constitution or laws of the United States were presented, the petition being without merit; that the Utah District Court had properly considered the questions and denied relief; and that as to State law questions involved, the State Court interpretation was conclusive. The writ was denied in April, 1969, without a hearing and this appeal followed. Appellant submitted his case in the State Court post-conviction proceeding on the basis of the original trial record and a stipulation as to testimony his trial attorney would have given. From that record, and the transcript of the post-conviction proceeding, the material facts are as follows. Appellant was tried on an information charging grand larceny by taking an electric guitar of a value in excess of $50. The principal prosecution witness, Newell, testified that he operated a music center in American Fork, Utah; that on January 14, 1968, he met with one Rudd and appellant ; that Rudd wanted to borrow an electromatic typewriter belonging to Newell; that Newell loaned them the key to his place of business for this purpose; and that appellant picked up the key as Rudd was returning after a short absence from the room. A few days later Newell found that two guitars, including the one in question, and an amplifier were missing from the store. Newell contacted Rudd and appellant about the loss and appellant denied any knowledge of it. When Newell contacted the Sheriff’s office a report of the guitar being pawned was found. The instrument was located at a pawnshop whose owner testified appellant pawned the guitar. Newell identified the guitar at trial and said its cost to him was $200. Unsavory facts about the case disturbed the Utah Courts and concern us. Newell admitted prior discussion with Rudd and Johnson about a money raising scheme. He conceded that it was a fraudulent plan involving the use of false identification and credit cards but said that he was not to know its details. Apparently Newell was to help raise funds to start the project by allowing use of his personalized checks which he signed. His testimony is unclear as to whether his balance was sufficient at the time to cover the amounts discussed, and he said at one point that his share of the proceeds from the scheme would enable him to cover the checks. Appellant’s counsel developed Newell’s involvement by cross-examination. The defense theory was that Newell consented to taking of the guitars, and also that Newell was an accomplice whose uncorroborated testimony could not support a conviction. Newell denied giving Rudd or appellant permission to take anything but the typewriter. The State Trial Court observed that Newell’s testimony was almost inconceivable, but that this was for the jury to decide. The pawnshop owner identified the guitar and said appellant had pawned it on January 16. The Sheriff confirmed Newell’s report of the loss. He testified that appellant came to his office as requested; that he said they had the key to get the typewriter but could not find it; and that later he went back and took the guitars and the amplifier. Rudd testified for appellant and detailed the money raising scheme. He said Newell was to put up $300 for obtaining fictitious identification. He said that Newell gave them his key to get the typewriter to type out the checks, but that there was no discussion in his presence about the guitars. The scheme involving the credit cards was not carried out. This was the substance of the defense proof. The jury rejected the defense and found appellant guilty. His post-conviction proceedings failed in the Utah State Courts and in the Federal District Court, and this appeal followed. First appellant argues that his trial by eight jurors under Art. I, § 10 of the Utah Constitution deprived him of his federal constitutional rights guaranteed by the Sixth and Fourteenth Amendments. He says that trial by jury carries the meaning recognized in this country and in England when the Constitution was adopted including, among other things, a jury of twelve men. See Patton v. United States, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854. It is now recognized that the Fourteenth Amendment guarantees jury trial in State Court trial of serious criminal cases which would come within the Sixth Amendment guarantee of trial by jury in the Federal Courts. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L. Ed.2d 491; Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522. From these propositions appellant contends that his trial by a jury of eight infringed his federal constitutional rights. The historical underpinning of appellant’s argument has been removed by the recent decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. There the Court sustained a robbery conviction by a jury of six in the Florida courts over the same objection made by appellant here. The opinion of the Court held that “ * * * the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.” Id. at 100, 90 S.Ct. at 1905. Thus the Sixth and Fourteenth Amendments did not bar use of the jury of eight as provided by the Utah Constitution for appellant’s trial. Secondly, it is argued that New-ell was an accomplice whose uncorroborated testimony could not support the conviction of appellant. See § 77-31-18, Utah Code Annotated. Insofar as the argument raises merely a point of procedure under Utah law, the issue is not cognizable in this federal habeas corpus proceeding where only claims of violation of federal law are heard. 28 U.S.C. § 2254(a). We see no constitutional issue raised by the contention. Third, appellant says that the guitar in evidence was not shown to be the one which was stolen as described in the information and that other essential proof was lacking. The sufficiency of the evidence to sustain a conviction is not subject to review in our federal habeas corpus proceedings unless the conviction is so devoid of evidentiary support as to raise a due process issue. Mathis v. Colorado, 425 F.2d 1165 (10th Cir.); Edmondson v. Warden, 335 F.2d 608, 609 (4th Cir.). We are satisfied that the record does not present such a constitutional problem. Fourth, appellant says the complaint and information were fatally defective by not stating the criminal statute alleged to have been violated, and by not alleging that the defendant intentionally committed the act. Again insofar as the argument raises merely issues of State law, the contentions are not cognizable in a federal habeas corpus proceeding. The State questions were decided adversely to appellant by the Utah Courts. Assuming that appellant also intends to argue lack of notice and of due process, we are not persuaded by such a constitutional contention. In substance the complaint and information accused appellant of grand larceny, charging that he stole a Mosrite Electric Guitar of a value over $50, belonging to Newell, on January 14, 1968, in Utah County. We are satisfied that appellant was fairly apprised of the nature of the charge and of the facts alleged by the State to constitute the offense so that due process was not infringed. Beauchamp v. United States, 154 F.2d. 413 (6th Cir.), cert. denied, 329 U.S. 723, 67 S.Ct. 66, 91 L.Ed. 626; Barber v. Gladden, 327 F.2d 101 (9th Cir.), cert. denied, 377 U.S. 971, 84 S.Ct. 1654, 12 L. Ed.2d 741. Fifth, appellant says that the proffered testimony of one Smith that Newell had stated to him that he gave appellant permission to take the guitars was improperly excluded so that appellant’s right to compulsory process was denied under principles recognized in Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L.Ed.2d 1019. The State objects to consideration by us of the issue because it was not presented to the State Courts. The record shows no assertion of this constitutional claim in the Utah Courts or in the Federal District Court and it may not be considered here, absent special circumstances. Garrison v. Patterson, 405 F.2d 696, 698 (10th Cir.); Lucero v. United States, 425 F.2d 172 (10th Cir., opinion filed April 27, 1970). The issue may involve significant interplay with State procedural law and we conclude that we should not consider the substance of the claim which has not been presented to the State Courts. We have examined the record and other contentions of appellant including an assertion of unconstitutionality of the Utah grand larceny statute, and none are supported by the authorities or by reason. None of appellant’s contentions show any infringement of his constitutional rights. Affirmed. . Appellant attempted to introduce testimony that Newell stated a few days after the loss that he had given permission for the guitars to be taken. The offer was excluded because of the manner of its attempted introduction. Similar proof was the basis of a motion for a new trial which was denied. . Under previous federal constitutional decisions State criminal trials by juries of less than twelve were upheld. See Maxwell v. Dow, 176 U.S. 581, 603-604, 20 S.Ct. 494, 44 L.Ed. 597; and Coates v. Lawrence, 46 F.Supp. 414, 423 (S.D.Ga. 1942), aff’d 131 F.2d 110 (5th Cir. 1942), cert. denied 318 U.S. 759, 63 S.Ct. 532, 87 L.Ed. 1132 (1943). Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_appbus
0
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Booker T. WASHINGTON v. John J. RAFFERTY, Warden, Rahway State Prison Irwin I. Kimmelman, Attorney General of New Jersey, Appellants. No. 86-5116. United States Court of Appeals, Third Circuit. Submitted Pursuant To Third Circuit Rule 12(6) June 22, 1987. Decided Sept. 30, 1987. Rehearing and Rehearing En Banc Denied Oct. 28,1987. W. Cary Edwards, Atty. Gen. of N.J., Richard J. Hughes Justice Complex, Gilbert G. Miller, Deputy Atty. Gen., Div. of Criminal Justice, Appellate Section, Trenton, N.J., for appellants. Richard Coughlin, Asst. Federal Public Defender, Dist. of N.J., Camden, N.J., for appellee. Before WEIS, BECKER and MARIS, Circuit Judges. OPINION OF THE COURT WEIS, Circuit Judge. Finding that the state failed to abide by the terms of a plea bargain, the district court granted a writ of habeas corpus. The issue before us is whether the prosecutor had agreed that he would not make a recommendation on sentencing to the trial court. We conclude that inconsistencies between a written agreement signed by defendant and the prosecutor’s oral representation at entry of the plea were resolved by the trial judge’s explanation during the guilty plea colloquy. For that reason, we find no breach of the plea bargain and will vacate the order granting the writ. Petitioner is a state prisoner who negotiated a plea bargain on charges arising from the stabbing death of Elbert Watson. On May 20, 1980, as a prelude to the entry of his guilty plea, defendant and his lawyer, an assistant public defender, both signed a form prepared by the Superior Court of New Jersey. The form provided spaces for listing the number of counts of the indictment, nature of the offense, maximum penalties, and terms of any plea bargain. The form contained printed instructions to “write out the specific sentence recommendation you were promised [by the prosecution].” In the space following this instruction was handwritten “prosecutor waives request for extended term (possible life sentence); maximum to be faced is 30 years with possible 15 year minimum. Prosecutor reserves right to speak at sentencing.” The next day, May 21, 1980, defendant and his counsel appeared before a state trial judge to enter a guilty plea in accordance with the bargain. The prosecutor opened the proceedings by stating the terms of the plea agreement. In return for a plea of guilty to one count, “the State would make no recommendation as to sentencing [on that conviction], other than the State would waive its right to ask for an extended term at the time of sentencing, but the State would reserve its right to comment at the time of sentencing.” In addition, the state would seek dismissal of the second count. The public defender replied that “the Prosecutor has accurately portrayed to the court the nature and substance of our plea agreement. I filled out the Statement by Defendant with Mr. Washington this morning and [have] gone over it with him____ I'm satisfied that he understands the nature and substance of the plea agreement.” The trial court then engaged in a lengthy colloquy with defendant, discussing his signed statement, his understanding of the questions, his narration of the details of the crime and his relationship with the victim. The judge also reviewed a statement by an eyewitness and, finally, questioned defendant about his waiver of the right to trial. After this extensive dialogue on the record, the trial judge said: “Your attorney advises me that she has made an agreement with the Prosecutor that in return for your guilty plea to the first count of this indictment, which charges murder, the Prosecutor is going to ask the Court to dismiss the second count____ The prosecutor is going to waive his right to move before the Court for an extended term of imprisonment for you, and is going to make no recommendation today with respect to what your sentence should be, but he has reserved the right to speak at the time of your sentence and to make a recommendation to the court at that time with respect to what your sentence should be. Do you understand all that?” Defendant replied, “Yes, sir.” The judge continued, “And do you understand, that under the terms of that agreement, the Court could sentence you to as much as thirty years in prison for this offense?” Defendant responded, “Yes, I do, Your Honor.” Two weeks later, the prosecutor sent a letter to the trial judge outlining the details of the crime and the defendant’s previous criminal record. The prosecutor closed by asking the court to impose a thirty-year sentence with a parole minimum of fifteen years. A copy sent to defense counsel sparked a four-page reply on July 11, 1980, pointing out various mitigating circumstances, including provocation. The letter concluded with an assertion that a term of years substantially less than “the maximum term available” would be a just sentence. The defense attorney’s letter to the judge made no reference to any agreement by the state to withhold a recommendation on sentence, nor did she object to the prosecutor’s letter on that basis. A copy of the letter was sent to defendant as well as to the prosecutor. The trial judge also received a letter from defendant himself which recited that he had agreed to submit a plea of guilty in keeping with a negotiated agreement “which stipulated that the sentencing would be exclusively reserved for your discretion. And that there would not be any arguments presented in efforts to persuade or influence your decision prior to sentencing. However, it is my understanding that the Prosecutor has thus far violated that particular clause in our agreement by already presenting biased information endeavoring to make his recommendations for sentencing all the more appealing, which is strictly out of accordance with our previous negotiations.” He then asked for “the fullest” consideration. The sentencing hearing took place on July 17, 1980. The judge acknowledged that he had received the three letters, and then heard argument. The prosecutor stated that he had “at the time of the plea reserved the right to comment at this time as to what the appropriate sentence should be.” He then described the murder and discussed the defendant’s record. Defense counsel spoke at some length, emphasizing mitigating circumstances and taking issue with several points raised by the state. She did not object to the prosecution’s action in making a recommendation at that time, nor did she suggest that the recommendation was contrary to the terms of the plea bargain. After allowing defendant an opportunity to speak, the judge imposed a sentence of thirty years with a ten-year parole minimum. Defendant appealed to the New Jersey Superior Court Appellate Division asserting, among other grounds, that the prosecution’s letter to the court before sentencing violated the plea agreement. The appellate court observed that the trial judge had stated on entry of the plea that the prosecution could comment on the sentence. Moreover, defense counsel did not argue otherwise when the prosecutor wrote to the court or when sentence was imposed. The judgment of the trial court was affirmed. The state supreme court denied certification. Defendant filed a petition for a writ of habeas corpus in the district court. After a careful review of the record, the district judge determined that the state prosecutor had breached the plea bargain and that petitioner was entitled to relief. The court found that the state had agreed “to ‘make no recommendation as to sentencing,’ other than to waive its right to an extended term, but reserved the ‘right to comment at the time of sentencing.’ ” As the district judge saw it, the plea agreement explicitly forbade the prosecutor to make any sentencing recommendation. The district court also concluded that the state judge’s restatement of the plea bargain did not relieve the state of compliance with the terms as the prosecutor had represented them at the beginning of the plea colloquy. The court observed, moreover, that petitioner had objected to the prosecutor’s recommendation in his letter to the state judge before sentencing. Accordingly, the district court granted the writ and remanded the matter to the state court to strike the plea or to order specific performance of the bargain. A stay was granted pending disposition of the case by this court. On appeal, the state contends that the district court failed to apply the presumption of correctness to the state court findings that the prosecutor had not agreed to forego a sentence recommendation. The state argues that the district court also erred in resolving an ambiguity in the agreement in the defendant’s favor rather than applying an objective standard. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971), observed that when a plea rests “in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement,” the promise must be fulfilled. Because the prosecution in that case breached its promise not to make a sentence recommendation, the Court granted habeas corpus relief. In United States v. Crusco, 536 F.2d 21, 23 (3d Cir.1976), the prosecutor had agreed to “take no position on sentencing.” At the time of sentencing, the United States attorney responded to the defendant’s plea for leniency by commenting on the defendant’s bad character without, however, requesting a specific sentence. See id. at 25. This court construed the prosecutor’s comments “as a transparent effort to influence the severity of [the defendant’s] sentence” and granted the petition for withdrawal of the plea. See id. at 26-27. In United States v. Miller, 565 F.2d 1273 (3d Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978), we emphasized that Crusco should not be interpreted expansively. In Miller the prosecutor had agreed to make no sentencing recommendation but reserved the right to comment on the defendant’s cooperation. At sentencing, in addition to addressing the defendant’s cooperation, the prosecutor adverted to counsel’s attempts to excuse the defendant’s criminal conduct. This court held that no breach of the agreement had occurred — “the government will be held only to what it has promised.” The prosecution had specifically agreed “only not to make recommendation as to the sentence.” It had not promised to waive any attempt to influence the sentence. See id. at 1275. In both Crusco and Miller this court urged caution and semantic specificity in arriving at the terms of a plea bargain. In United States v. Ligori, 658 F.2d 130, 132 (3d Cir. 1981), we stressed the “clear import of the Government’s promise, objectively assessed.” There, the government’s pledge to make no recommendation on sentence did not apply to a Rule 35 proceeding adjudicating a motion to reduce the period of incarceration. In United States v. Swinehart, 614 F.2d 853 (3d Cir.), cert. denied, 449 U.S. 827, 101 S.Ct. 90, 66 L.Ed.2d 30 (1980), we remanded so that the district court could ascertain the intent of the parties to a plea bargain. In that case, the defendant alleged that the government had changed the terms of the bargain by requiring him to “pass” a lie detector test rather than merely to “take” it as specified in the written agreement. The prosecution in Patrick v. Camden County Prosecutor, 630 F.2d 206, 207 (3d Cir.1980), agreed to make no recommendations as to the sentence but reserved the right to “comment and make remarks appropriate ... to the magnitude of the sentence imposed.” Nevertheless, at sentencing, the prosecutor argued that the defendant “should receive the maximum penalty dictated by law,” a statement this court held violated the plea bargain. In most of the cited cases the question was whether the prosecutor’s comments, viewed objectively, complied with the terms of the plea agreement. In the case at hand, the issue, more precisely, is: what in fact were the terms of the plea agreement? The state appellate court failed to resolve that issue, one not squarely raised in the state trial court. Although the defendant’s communication to the state judge before sentencing objected to the prosecutor’s letter, it did not specifically deny the state’s right to submit a recommendation, but focused on “biased information.” Interestingly, though, the defendant’s letter referred to the agreement of “May 20”, the date defendant signed the statement that had been filed with the court clerk the day before the plea colloquy. Presumably defendant was alluding to the statement that he had signed, a copy of which he may have retained. Three variations of the plea bargain can be discerned from the record. The first is the written statement of May 20 that defendant and his attorney signed in which blanks were completed. In this version the prosecutor waived the right to request a possible life sentence, agreed to a maximum term of thirty years with fifteen-year minimum before parole, and stipulated that “prosecutor reserves right to speak at sentencing.” It is crucial that this agreement — the only one reduced to writing— contains no prohibition against the state recommending a sentence. See the description of a similar proceeding in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 371, 88 L.Ed.2d 203 (1985) (White, J., concurring). When the prosecutor opened the plea colloquy the following day, he stated that under the agreement “the State would make no recommendation as to sentencing” other than to waive the life term, but would “reserve its right to comment at the time of sentencing.” This second version diverges somewhat from the written statement and is fairly ambiguous. The record does not reveal whether the trial judge noticed the discrepancies between the two versions or whether he simply wished to make sure that defendant comprehended the consequences of the plea bargain. In any event, the judge explicitly stated to defendant that the prosecutor “is going to make no recommendation today with respect to what your sentence should be, but he has reserved the right to speak at the time of your sentence and to make a recommendation to the Court at that time with respect to what your sentence should be.” Defendant personally acknowledged that he understood, and his counsel did not take exception to the court’s explanation of the prosecutor’s commitment. Obviously this third version of the prosecutor’s promise is consistent with the statement defendant signed and differs to some extent with the prosecutor’s oral comments at the beginning of the colloquy. The variations between the written statement, which did not bar the prosecutor from proposing a sentence, and the prosecutor’s representation that he would not make a recommendation, presented an ambiguity requiring clarification. That uncertainty was resolved by the trial judge’s explanation, which the defendant personally affirmed and to which his attorney did not dissent. At that point in the proceedings, the bargain was clearly set forth and left no room for doubt. We therefore determine that the ultimate agreement permitted the prosecutor to recommend a sentence. Consequently, the record does not support the district court’s conclusion that the state had violated the plea agreement. Accordingly, the order of the district court will be vacated and the case will be remanded for the entry of an order denying the writ of habeas corpus. . In United States v. Baylin, 696 F.2d 1030 (3d Cir.1982), this court held that the defendant's failure to object to a presentence investigation report did not waive his claim that the prosecution had violated a plea bargain. We treat the defendant’s letter to the state judge as marginally adequate to assert an objection to the prosecutor's comments. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_decisiontype
A
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. HOUSTON LAWYERS’ ASSOCIATION et al. v. ATTORNEY GENERAL OF TEXAS et al. No. 90-813. Argued April 22, 1991 Decided June 20, 1991 Julius LeVonne Chambers argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 90-813 was Charles Stephen Ralston. Susan Finkel-stein, Edward B. Cloutman III, E. Brice Cunningham, William L. Garrett, Rolando L. Rios, and David Hall filed a brief for petitioners in No. 90-974. Renea Hicks, Special Assistant Attorney General of Texas, argued the cause for respondents in both cases. With him on the brief for state respondents were Dan Morales, Attorney General, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Javier P. Guajardo, Special Assistant Attorney General. J. Eugene Clements filed a brief for respondent Wood. Robert H. Mow, Jr., David C. Godbey, and Bobby M. Rubarts filed a brief for respondent Entz. Together with No. 90-974, League of United Latin American Citizens et al. v. Attorney General of Texas et al., also on certiorari to the same court. Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Assistant Attorney General Dunne, Deputy So licitor General Roberts, Deputy Assistant Attorney General Clegg, Paul J. Larkin, Jr., Jessica Dunsay Silver, and Mark L. Gross; and for the Lawyers’ Committee for Civil Rights Under Law by Frank R. Parker, Robert B. McDuff, Brenda Wright, Robert F. Mullen, David S. Tatel, Norman Redlich, Samuel Rabinove, Richard T. Foltin, Antonia Hernandez, Judith Sanders-Castro, Laughlin McDonald, Neil Bradley, Kathleen L. Wilde, and Mary Wyckoff. Briefs of amici curiae urging affirmance were filed for the State of Georgia by Michael J. Bowers, Attorney General, Carol Atha Cosgrove, Senior Assistant Attorney General, and David F. Walbert; for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, John Knox Walkup, Solicitor General, and Michael W. Catalano, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Jimmy Evans of Alabama, Winston Bryant of Arkansas, Robert A. Butterworth of Florida, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Marc Racicot of Montana, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Robert H. Henry of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, and Ken Eikenberry of Washington; for the Florida Conference of Circuit Judges et al. by John F. Harkness, Jr., William F. Blews, Ronald A. Labasky, James Fox Miller, Benjamin H. Hill III, and Barry S. Richard; and for the Pacific Legal Foundation by Ronald A. Zumbrun and Anthony T. Caso. Edwin F. Hendricks filed a brief for the American Judicature Society as amicus curiae. Justice Stevens delivered the opinion of the Court. In Chisom v. Roemer, ante, p. 380, we held that judicial elections, and, more specifically, elections of justices of the Supreme Court of Louisiana, are covered by § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended in 1982, 42 U. S. C. § 1973. In these cases we consider whether the statute also applies to the election of trial judges in Texas. We hold that it does. I Petitioners in No. 90-974 are local chapters of the League of United Latin American Citizens, a statewide organization composed of both Mexican-American and African-American residents of the State of Texas, and various individuals. They brought this action against the attorney general of Texas and other officials (respondents) to challenge the existing at-large, countywide method of electing state district judges. Although the original challenge encompassed the entire State and relied on both constitutional and statutory grounds, the issues were later narrowed to include only a statutory challenge to the voting methods in just 10 counties. Petitioners in No. 90-813 are the Houston Lawyers’ Association, an organization of African-American attorneys who are registered voters in Harris County, and certain individuals; they are intervenors, supporting the position of the original plaintiffs. Because all of the petitioners have the same interest in the threshold issue of statutory construction that is now before us, we shall refer to them collectively as “petitioners.” Texas district courts are the State’s trial courts of general jurisdiction. Electoral districts for Texas district judges consist of one or more entire counties. Eight of the districts included in these cases include a single county; the other district includes two counties. The number of district judges in each district at issue varies from the 59 that sit in the Harris County district to the 3 that sit in the Midland County district. Each judge is elected by the voters in the district in which he or she sits pursuant to an at-large, district-wide electoral scheme, and must be a resident of that district. Although several judicial candidates in the same district may be running in the same election, each runs for a separately numbered position. Thus, for example, if there are 25 vacancies in the Harris County district in a particular year, there are 25 district-wide races for 25 separately numbered positions. In the primary elections, the winner must receive a majority of votes, but in the general election, the candidate with the highest number of votes for a particular numbered position is elected. Petitioners challenged the at-large, district-wide electoral scheme as diluting the voting strength of African-American and Hispanic voters. They cited the example of Harris County, which has a population that is 20% African-American but has only 3 of 59 district judges that are African-American. The petitioners alleged that alternative electoral schemes using electoral subdistricts or modified at-large structures could remedy the dilution of minority votes in district judge elections. Following a 1-week trial, the District Court ruled in favor of petitioners on their statutory vote dilution claim. It concluded that petitioners had sustained their burden of proving that under the totality of the circumstances “as a result of the challenged at large system [they] do not have an equal opportunity to participate in the political processes and to elect candidates of their choice,” App. to Pet. for Cert. 290a-291a (footnote omitted); id., at 300a-301a. Although the District Court made no findings about the appropriate remedy for the proven violation, it urged the state legislature to select and approve an alternative district judge election scheme. The District Court also announced that it would entertain motions to enjoin future district judge elections pending the remedy phase of the litigation, should the legislature fail to adopt an alternative election scheme. When the state legislature failed to act, the District Court granted interim relief (to be used solely for the 1990 election of district judges in the nine districts) that included the creation of electoral subdistricts and a prohibition against the use of partisan elections for district judges. Respondents appealed. A three-judge panel of the Fifth Circuit reversed the judgment of the District Court, 902 F. 2d 293 (1990), and petitioners’ motion for rehearing en banc was granted, 902 F. 2d 322 (1990). The en banc majority held that the results test in § 2 of the Voting Rights Act of 1965, as amended in 1982, is inapplicable to judicial elections. See 914 F. 2d 620 (1990). In essence, the majority concluded that Congress’ reference to the voters’ opportunity to elect “representatives” of their choice evidenced a deliberate decision to exclude the election of judges from scrutiny under the newly enacted test. For reasons stated in our opinion in Chisom, ante, at 391-403, we reject that conclusion. In a separate opinion, portions of which were joined by other judges, Judge Higginbotham expressed his disagreement with the majority’s conclusion that judges are not “representatives” within the meaning of the Act, but concurred in the judgment of reversal. His opinion relied on a distinction between state appellate judges and trial judges. Whereas the justices of the Louisiana Supreme Court have statewide jurisdiction, even though they are elected by voters in separate districts, and act as members of a collegial body, the Texas trial judge has jurisdiction that is coextensive with the geographic area from which he or she is elected and has the sole authority to render final decisions. Judge Higgin-botham’s opinion characterized trial judges “as single-office holders instead of members of a multi-member body,” 914 F. 2d, at 649 (opinion concurring in judgment), because each exercises his or her authority independently of the other judges serving in the same area or on the same court. Given the State’s “compelling interest in linking jurisdiction and elective base for judges acting alone,” id., at 651, and the risk that “attempting to break the linkage of jurisdiction and elective base . . . may well lessen minority influence instead of increase it,” id., at 649, by making only a few district court judges principally accountable to the minority electorate rather than making all of the district’s judges partly accountable to minority voters, he concluded that elections for single-member offices, including elections for Texas district court judgeships, are exempt from vote dilution challenges under § 2. Chief Judge Clark, while agreeing with the judgment of reversal on grounds “expressly limited to the facts of the present case,” id., at 631 (opinion concurring specially), disagreed with the analysis in both the majority and the opinion concurring in the judgment. He expressed the opinion that “it is equally wrong to say that section 2 covers all judicial elections as it is to say it covers none,” id., at 633 (emphasis in original). Characterizing Judge Higginbotham’s “function-of-the-office analysis” as “identical in concept to the majority view,” ibid., Chief Judge Clark would have held that whenever an officeholder’s jurisdiction and the area of residence of his or her electorate coincide, no vote dilution claims may be brought against at-large schemes for electing the officeholder, regardless of whether the “function” of the officeholder is to act alone or as a member of a collegial body. In a dissenting opinion, Judge Johnson argued that the Act applies to all judicial elections: “Several truths are self-evident from the clear language of the statute that had heretofore opened the electoral process to people of all colors. The Voting Rights Act focuses on the voter, not the elected official. The Act was intended to prohibit racial discrimination in all voting, the sole inquiry being whether the political processes are equally open to all persons, no matter their race or color. The Act is concerned only with the intent of persons of ‘race or color’ in casting a ballot; it has no interest in the function of the person holding the office.” Id., at 652 (emphasis in original). I — i I — i We granted certiorari in these cases, 498 U. S. 1060 (1991), and in Chisom v. Roemer, ante, p. 380, for the limited purpose of considering the scope of the coverage of § 2. As we have held in Chisom, the Act does not categorically exclude judicial elections from its coverage. The term “representatives” is not a word of limitation. Nor can the protection of minority voters’ unitary right to an equal opportunity “to participate in the political process and to elect representatives of their choice” be bifurcated into two kinds of claims in judicial elections, one covered and the other beyond the reach of the Act. Ante, at 398. It is equally clear, in our opinion, that the coverage of the Act encompasses the election of executive officers and trial judges whose responsibilities are exercised independently in an area coextensive with the districts from which they are elected. If a State decides to elect its trial judges, as Texas did in 1861, those elections must be conducted in compliance with the Voting Rights Act. We deliberately avoid any evaluation of the merits of the concerns expressed in Judge Higginbotham’s opinion concurring in the judgment because we believe they are matters that are relevant either to an analysis of the totality of the circumstances that must be considered in an application of the results test embodied in § 2, as amended, or to a consideration of possible remedies in the event a violation is proved, but not to the threshold question of the Act’s coverage. Even if we assume, arguendo, that the State’s interest in electing judges on a district-wide basis may preclude a remedy that involves redrawing boundaries or subdividing districts, or may even preclude a finding that vote dilution has occurred under the “totality of the circumstances” in a particular case, that interest does not justify excluding elections for single-member offices from the coverage of the § 2 results test. Rather, such a state interest is a factor to be considered by the court in evaluating whether the evidence in a particular case supports a finding of a vote dilution violation in an election for a single-member office. Thus we disagree with respondents that the “single-member office” theory automatically exempts certain elections from the coverage of § 2. Rather, we believe that the State’s interest in maintaining an electoral system — in these cases, Texas’ interest in maintaining the link between a district judge’s jurisdiction and the area of residency of his or her voters — is a legitimate factor to be considered by courts among the “totality of circumstances” in determining whether a § 2 violation has occurred. A State’s justification for its electoral system is a proper factor for the courts to assess in a racial vote dilution inquiry, and the Fifth Circuit has expressly approved the use of this particular factor in the balance of considerations. See Zimmer v. McKeithen, 485 F. 2d 1297, 1305 (1973), aff’d sub nom. East Carroll Parish School Bd. v. Marshall, 424 U. S. 636 (1976). Because the State’s interest in maintaining an at-large, district-wide electoral scheme for single-member offices is merely one factor to be considered in evaluating the “totality of circumstances,” that interest does not automatically, and in every case, outweigh proof of racial vote dilution. Two examples will explain why the “single-member office” theory, even if accepted, cannot suffice to place an election for a single-member-office holder entirely beyond the coverage of § 2 of the Act. First, if a particular practice or procedure, such as closing the polls at noon, results in an abridgment of a racial minority’s opportunity to vote and to elect representatives of their choice, the Act would unquestionably apply to restrict such practices, regardless of whether the election was for a single-member-office holder or not. Exempting elections for single-member offices from the reach of § 2 altogether can therefore not be supported. As we stated earlier, this statute does not separate vote dilution challenges from other challenges brought under the amended § 2. See supra, at 425-426. Second, if the boundaries of the electoral district — and perhaps of its neighboring district as well — were shaped in “an uncouth twenty-eight-sided figure” such as that found in Gomillion v. Lightfoot, 364 U. S. 339, 340 (1960), and if the effect of the configuration were to produce an unnatural distribution of the voting power of different racial groups, an inquiry into the totality of circumstances would at least arguably be required to determine whether or not the results test was violated. Placing elections for single-member offices entirely beyond the scope of coverage of § 2 would preclude such an inquiry, even if the State’s interest in maintaining the “uncouth” electoral system was trivial or illusory and even if any resulting impairment of a minority group’s voting strength could be remedied without significantly impairing the State’s interest in electing judges on a district-wide basis. Because the results test in §2 of the Voting Rights Act applies to claims of vote dilution in judicial elections, see Chisom, ante, at 404, and because the concerns expressed by Judge Higginbotham in distinguishing elections of Texas district court judges from elections of supreme court justices relate to the question whether a vote dilution violation may be found or remedied rather than whether such a challenge may be brought, we reverse the judgment of the Court of Appeals and remand these cases for further proceedings consistent with this opinion. It is so ordered. The counties at issue are: Harris, Dallas, Tarrant, Bexar, Travis, Jefferson, Lubbock, Crosby, Ector, and Midland. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_judgdisc
A
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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". JOHNSON v. MATSON. No. 6210. Circuit Court of Appeals, Ninth Circuit. Dec. 6, 1930. Ernest J. Torregano, Oliver Dibble, Robert L. McWilliams, all of San Francisco, Cal., and William Ritchie, Jr., of Omaha, Neb. (August B. Rothschild, of San Francisco, Cal., of counsel), for appellant. I. I. Brown, Jerome H. Bayer, Maxwell McNutt, and Marvin C. Hix, all of San Francisco, Cal., for appellee. Before RUDKIN and WILBUR, Circuit Judges, and NORCROSS, District Judge. WILBUR, Circuit Judge. The appellant filed a petition in involuntary insolvency against Walter J. Matson, who subsequently died, and whose executrix, Frances E. Matson, has been substituted. The appellee filed an answer denying, among other things, that Hale Company, a corporation, a bankrupt, was a creditor of Walter J. Matson. The case was tried upon this issue, among others, and the referee, acting as special master, found that Hale Company was not a creditor of the alleged bankrupt. This finding was approved by the district court, and the petition was denied and the bankruptcy proceeding dismissed. A review of the evidence thus passed on by the special master and by the District Court is sought on the ground that the evidence is undisputed, and the conclusion dedueible from the undisputed evidence is one of law which has been erroneously determined in the lower court. The evidence before the referee and before the District Court consisted largely of a transcript from the books of Hale Company, showing a balance due from Walter J. Mat-son, alleged bankrupt, of over $20,000 and a statement referred to as a confession made by the bankrupt in the presence of the officers and representatives of the Honolulu Plantation Company and the Mason ByProducts Company wherein the alleged bankrupt gave detailed information of the method by which he had swindled these two eompa^ nies, of each of which he had been the trusted secretary for many years, out of about $500,-000. This result has been brought about largely by reason of an agreement entered into by the alleged bankrupt with Hale Company -whereby he was to receive one-half the profit resulting from the sale by Hale Company of sugar turned over by him to Hale Company in violation of the authority vested in him as sales manager of the Honolulu Plantation Company which required him to sell sugar for cash on no more than seven days’ credit. In consideration of this unauthorized delivery of sugar to Hale Company, tho bankrupt was to receive one-half of the profits resulting from the sale of the sugar by Hale Company. It was understood by Hale Company and by Matson, the alleged bankrupt, that the agreement entered into between them involved a breach of trust on the part of Matson. To prevent tho officers of the Honolulu Plantation Company from discovering the fraud which had been perpetrated. upon tho company Matson made false entries in the books of the Honolulu Plantation Company, crediting payments for sugar so transferred by Halo Company when no such payments had been in fact made. Later, in connection with these transactions, and to prevent a discovery thereof, the alleged bankrupt, in his capacity as secretary of the Mason By-Products Company, issued trade acceptances in favor of Hale Company aggregating $114,000. In July or August, .1925, he caused 7,500 bags of sugar worth $42,647.-50 to be transferred to Hale Company in order to take care of an indebtedness of that company. At the time this was done, Hale Company was in financial distress, and the sugar was transferred to prevent a discovery of previous illegal transactions between Hale Company and the alleged bankrupt. From time to time during the period covered by these transactions the alleged bankrupt approached George Braun, who was managing tho Hale Company, and asked for loans of money. The various amounts claimed by the appellant as a debt owing from the alleged bankrupt to Hale Company consisted of these advances. Although it appears that Halo Company was in financial straits during almost the whole peiiod covered by these advancements, it never demanded repayment of the money from the alleged bankrupt, nor did it ever say when it would expect repayment or indicate in any way that it would expect repayment of them. The alleged bankrupt believed that those moneys would be advanced to him when he asked for them, as they were, and that repayment would not bo expected of him because of the dealings between them with relation to the sugar and denatured alcohol accounts of the Mason By-Products Company. It would seem clear that money paid by Hale Company to the secretary of the Honolulu Plantation Company on account of the sugar o-f that company, whicli he liad transferred to Hale Company under the guise of h, salo, would belong to' the company whose property had been used in this manner to obtain such payment. If the alleged bankrupt, while acting in a fiduciary capacity for tho company he had defrauded, received money because of his transfer of the property of these companies to Hale Company, it is entirely immaterial whether Hale Company was constrained to pay it to prevent the defrauded principal from ascertaining the larger indebtedness owed by them, or whether it was a bribe paid to the secretary to induce him to keep tho fraud from the knowledge of tho principal, or whether it was claimed or considered to be a loan brought about by the same consideration. In any event, the obligation of the employee would be to pay it to his employers and not to return it to líale Company. Furthermore, there was no express agreement to repay it to Hale Company, and, under the circumstances, the law would imply none. The referee in the court below decided the ease upon the theory that one joint feasor could not recover from another. This was no doubt correct, and would answer the contention that the appellant has a provable claim against the alleged bankrupt. We think, however, regardless of this contention, the evidence discloses that payments made by Halo Company to Matson belong to the companies ho represented, and that he had no right to apply them to his own purposes. It is contended that some of the advances made by Halo Company were made before the illegal agreement was entered into between that company and the alleged bankrupt, and that, this being true, they were creditors to that extent, regardless of the subsequent illegal agreement. The amount claimed to have been thus advanced is $3,-819.06, which is shown on the books of Halo Company as the balance due on January 1, 1923. In the confession above referred to, tho alleged bankrupt stated that originally he was an owner of a half interest in the stock of -a corporation known as the Hale Company; that at that time he gave his stock to Ira N. Moore as a gi ft to avoid tho stockholdor’s liability upon the stock of that company, knowing that the Hale Company was going to take a big loss by reason of some export sugar they had sold to some eastern jobbers; that the 'Halo Company was reorganized and became known as Hale Company organized under the laws of Nevada; that ever since he disposed of his half interest in the Hale Company about four years previously (January 31, 1922) he had an arrangement with Braun (manager of Halo Company) under which he has been, and would now be, entitled to one-half of the profits made from dealing in sugar obtained from the Honolulu Plantation Company. It thus appears that the illegal arrangement was contemporaneous with the organization of the new- company. As to any advances made before that time by Hale Company, there is nothing to indicate that it was the intention of the alleged bankrupt to pay the same to either the old or new company, other than entries in the books of Hale Company showing debits and credits in the personal account of W. J. Matson for the years 1921 to 1926, inclusive. These books, are objected to by the appellee upon the ground that they were incompetent to prove an indebtedness in favor of Hale Company against W. J. Matson. This objection should have been sustained. They were self-serving declarations not in the ordinary course of business of the company and purporting to show an indebtedness due from Matson to the company without any statement showing the reason for the obligation. With the exception of certain items for long-distance telephone calls, there is no indication in the books as to the nature of the indebtedness or the reason for the charge. Under the circumstances, these entries come under the head of self-serving declarations, and do not come within the exception of the rule with relation to books of account kept by merchants. It was stipulated that the bookkeeper of Hale Company would testify if he were present that ■ the entries were made in the regular course of business of the Hale Company, but the stipulation went no further, and was insufficient to justify the introduction of these accounts. In addition thereto, certain cheeks were introduced. These cheeks were drawn in favor of the alleged bankrupt by Hale Company, and were indorsed • by the alleged bankrupt,, and evidently he received the money called for by these cheeks. No testimony is offered explaining these cheeks, and the appellee relies upon the presumption that money thus paid is presumed to have been paid upon an obligation due from the payer to the payee. In view of the admissions of the alleged bankrupt, however, that he had received large sums of money from the Hale Company, our conclusion must be drawn'from the facts thus explained by him in his alleged confession, and, so explained, there was no obligation on his part to repay these amounts. Returning to a consideration of the advances claimed to have been made by Hale Company to the alleged bankrupt before transferring his stock in the Hale Company and the agreement made with the new Hale Company and the concurrent agreement with relation to the illegal transfer of property owned by the companies represented by the alleged bankrupt, it is a reasonable inference from the evidence that this was one transaction by which the alleged bankrupt surrendered his stock and the new company was organized and the agreement was made that thereafter the alleged bankrupt should receive one-half the profits derived from the sugar transferred by him to the new company, rather than as theretofore that he should receive half interest in the entire profits of the corporation in which he held one-half the stock. It is hardly consistent with the agreement entered into between the alleged bankrupt and George Braun, the co-owner of the old corporation, “The Hale Company,” that it was contemplated that, notwithstanding the reorganization and the surrender by the bankrupt of his entire interest in the corporation, he was still under obligation to repay amounts theretofore advanced him by the old company. There is no evidence that the old company transferred any indebtedness owed it by the alleged bankrupt. The evidence abundantly supports the finding of the trial court and the referee. The appellant also calls attention to the fact that the answer to the petition in involuntary insolvency filed by the appellee was verified of her own knowledge, and was filed before the referee under stipulation that it might be considered as' having been filed with the clerk, and that the propriety of leave to amend the petition should be considered by the court in connection with the referee’s report. When the matter came before the District Court, appellant sought to be relieved .from the stipulation on the ground that the evidence disclosed that the executrix knew nothing of the facts of her own knowledge, and therefore her verification of her answer was not in proper form. There was no abuse of discretion on the part of the trial court in declining to relieve the appellant from his stipulation with relation to the filing of the answer or in refusing to strike out the answer. Order affirmed. Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond2_7_2
B
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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"). Frank P. SALISBURY, Appellant, v. Arnold TIBBETTS and George Sanford, Appellees. No. 5809. United States Court of Appeals Tenth Circuit. Aug. 15, 1958. Edward W. Clyde, Salt Lake City, Utah (J. Grant Iverson, Salt Lake City, Utah, on the brief), for appellant. Eli A. Weston, Boise, Idaho (Fabian, Clendenin, Moffat & Mabey, Salt Lake City, Utah, on the brief), for appellees. Before PHILLIPS, PICKETT and LEWIS, Circuit Judges. PHILLIPS, Circuit Judge. Salisbury has appealed from a judgment decreeing that Tibbetts and Sanford were each entitled to acquire by purchase 600 shares of the voting stock of the Reliance National Life Insurance Company; ordering Salisbury to forthwith deposit with the clerk of the court such 1,200 shares of stock; ordering that Tibbetts and Sanford might purchase such stock upon the payment of the purchase price within 30 days from the delivery thereof to the clerk; and further decreeing that in the event of the failure of Salisbury to deposit such stock with the clerk, he should pay Tibbetts and Sanford $200,000, with interest from the date of judgment. The controversy between the parties had its genesis in the circumstances which surrounded the promotion and organization of the Reliance Company. Salisbury, immediately prior to September, 1953, was employed by the Professional & Business Men’s Insurance Company as an agency supervisor and he was a member of the board of directors of the Professional Company. In September, 1953, he was discharged as agency supervisor. At the time of such discharge Sanford was employed by the Professional Company and was working under Salisbury’s supervision. Sanford testified that in a conversation he had shortly after such discharge, he suggested that they should organize a new life insurance company of their own and that Salisbury approved the idea. Sanford admitted there was no definite plan agreed upon, or any decision reached as to who would organize the company. Thereafter, at the request of Salisbury, Sanford contacted various insurance men in the western states in an effort to interest them in organizing a new insurance company, but with no definitive results. Salisbury owned 550 shares of the Professional Company stock when he was discharged by that company, a portion of which he desired to sell. An arrangement was entered into between Salisbury and Sanford, whereby the latter was to sell a portion of such stock and from the proceeds realized from such sales, Salisbury was to receive $35 per share and Sanford was to retain any excess over that amount which he obtained. Sanford went to the State of Washington, where he enlisted the aid of Tib-betts in selling such stock. They sold a large portion of the stock within approximately a two-month period, at an average price of $70 per share, out of which they received $12,000. Other shares of such stock were sold through other agents, under a similar arrangement. After further informal discussion among Salisbury, Sanford and other prospective promoters, a plan was evolved for the organization of an insurance company, with an organizational structure patterned after the Professional Company. However, no agreement was reached as to who should participate in the promotion and organization of the company. In January, 1954, Salisbury established an office in Salt Lake City. He obtained legal counsel, arranged for reinsurance contracts with other insurance companies, and began the formation of an insurance company office staff. On January 26, 1954, Salisbury proceeded to effectuate the incorporation of the Reliance Company, with authority to issue two classes of stock, namely, 2,500 shares of voting common stock and 15,000 shares of non-voting preferred stock. It was contemplated that the non-voting stock would be sold to the public and Salisbury obtained the necessary permits for the sale of the non-voting stock to the public in Utah, Nevada and Idaho. On February 17, 1954, Sanford and Tibbetts arrived in Salt Lake City and went to Salisbury’s office. Salisbury showed them the Reliance Company’s offering circular and they became cognizant of its contents. The circular recited that of the authorized 2,500 shares of voting stock, 1,900 shares had been subscribed ; that 600 shares had been issued to Salisbury; 600 shares to Edith G. Amos, Salisbury’s sister; 100 shares to Ella S. Salisbury, Salisbury’s wife; 200 shares each to Robert H. Petersen, Mark A. Stokes and Ray Smith, and that 600 shares remained in the treasury. Sanford testified that he objected to the distribution which had been made of the voting stock and inquired, “ * * * Where do I come in?” and Salisbury said, “Well, you don’t have to worry about that. The law required me to have all the voting stock sold or I couldn’t get a solicitation permit. Now, there is your solicitation permit. You don’t have to worry about that. Our agreement is on. We will go out and get this job done and get the stock sold, and when we get our charter and we hold our first board of directors meeting you will be put on as the officer according to our agreement, and on the board of directors and then you can buy your stock.” Sanford admitted, however, that there was no agreement as to the amount of stock that he and Tibbetts would be permitted to buy. Sanford testified that shortly thereafter Salisbury learned that certain persons with whom he had been negotiating had decided not to join with him in developing the Reliance Company and that in the presence of Petersen and Tibbetts Salisbury stated: “Well, * * *, the four of us can do the job. The four of us will do the job and the four of us will own and run this company.” Tibbetts testified to substantially the same effect. Sanford further testified it was then “I knew that it was a four-way proposition, or I thought it would be a four-way proposition.” Here again, it will be observed, there was no agreement as to the amount of the voting stock each might acquire. Salisbury denied the testimony-of Sanford and Tibbetts, upon which they predicate their claim, that there was an agreement between them and Salisbury for the purchase by them of voting stock. Petersen testified that he never heard either Sanford or Tibbetts make any protest or objection to the amount of stock purchased by Salisbury or his family and in other respects Petersen fully corroborated Salisbury’s testimony. Sanford and Tibbetts engaged in the sale of the non-voting stock. They received a commission of 12% per cent on all sales. Sanford testified that they sold '60 to 70 per cent of the non-voting stock. When the Reliance Company received $125,000 from the sale of non-voting stock, it became authorized to commence the writing of insurance. On August 30, 1954, Sanford and Tib-betts met with Salisbury in his office in Salt Lake City. Sanford and Tibbetts demanded that Salisbury sell to each of them 600 shares of the voting stock. Salisbury refused, telling them that such a demand was ridiculous. The dispute became heated and Sanford and Tibbetts left Salisbury’s office. Tljey returned again and after further discussion Salisbury offered to sell each of them 100 shares of the voting stock at $10 per ■share. Sanford and Tibbetts accepted the offer. Sanford testified that Salisbury made it clear that so far as he was concerned, that was the most that either of them would receive. Sanford and Tibbetts gave promissory notes to Salisbury for the purchase price, plus some other debts that they owed Salisbury. The notes were later paid and Sanford and Tibbetts each received 100 shares of the voting stock. Sanford and Tibbetts continued selling insurance for the Reliance Company. Further disagreements developed and in September, 1956, Salisbury discharged them as agents of the Reliance Company. They commenced the instant action February 15, 1957. The trial court found that two oral agreements were entered into between the parties; one, to organize and incorporate an insurance company; and two, a later agreement that Salisbury would be president of the corporation; that Petersen, Sanford and Tibbetts would be on the board of directors; that “the division and ownership of the property was to be on a one-fourth basis with one-fourth interest in the voting and controlling stock of the company to be in each of the individuals present at the meeting: Tibbetts, Sanford, Salisbury and Petersen;” that contrary “to the terms of the agreement and in an effort to def"aud” Sanford and Tibbetts, Salisbury “obtained control of the majority of the voting stock” and refused to comply with the terms of the agreement. The trial court then concluded, as a matter of law, that Salisbury, “contrary to the provisions of said agreement, purchased approximately 1,900 shares * * * in his own or his family’s name, thereby establishing a constructive trust under which the Defendant [Salisbury] became trustee for the benefit of the Plaintiffs [Sanford and Tibbetts] for the one-fourth share each * * * ”; that one-fourth interest was to be 600 shares of the voting stock; and, accordingly, entered judgment as above stated. We are of the opinion that the evidence and the inferences that may fairly be drawn therefrom, viewed in the light most favorable to Sanford and Tibbetts, do not support the finding of the trial court as to the second oral agreement with respect to the division of the voting stock among Sanford, Tibbetts, Petersen and Salisbury. Certainly, the evidence wholly failed to establish any understanding or agreement at any time as to any amount of the voting stock which Sanford and Tibbetts would be permitted to purchase. Therefore, one term essential to a definite and complete contract was lacking. A contract that is incomplete or indefinite in its material terms will not be specifically enforced in equity. Salisbury provided all of the initial capital. He looked after all the details of the organization and incorporation of the Reliance Company; organized an office staff; arranged for reinsurance agreements; secured necessary selling permits; and took care of the initial expenses. It is true that the services of Sanford and Tibbetts in selling a portion of Salisbury’s stock in the Professional Company and a portion of the non-voting stock of the Reliance Company were important, but they were fully compensated for those services. Under the circumstances, it would seem exceedingly doubtful that Salisbury would surrender a controlling interest in the voting stock of the corporation to third persons. A constructive trust must he established by evidence which is clear, definite, ' unequivocal, and satisfactory; which leaves no reasonable doubt as to the existence of the trust. The evidence on the present record, far from meeting those standards, is at best slight, contradictory, and loosely circumstantial, consisting of the uncorroborated testimony of two interested parties, indefinite as to substance, imaginative as to fact and precatory as to meaning. A careful examination of the entire evidence leaves us with the definite and firm conviction that there is no substantial basis for the court’s finding that Sanford, Tibbetts and Petersen entered into an agreement on September 17, 1954, or at any time, whereby Sanford, Tibbetts and Petersen were each to receive 600 shares, or any number of shares of the voting stock, and that such finding is clearly erroneous. Moreover, we are of the opinion that Sanford and Tibbetts are foreclosed as to their alleged claim against Salisbury by an accord and satisfaction, or a compromise of a disputed claim. The general rule established by many of the adjudicated cases and followed in Utah is that a discharge by accord and satisfaction must rest upon a contract, express or implied, and the essentials to a valid contract generally must be present, that is, “(1) A proper subject matter, (2) competent parties, (3) an assent or meeting of the minds of the parties, and (4) a consideration.” In Sullivan v. Beneficial Life Ins. Co., 91 Utah 405, 64 P.2d 351, 362, the court defined accord and satisfaction as follows: “The definition of an ‘accord and satisfaction’ is: ‘An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, liquidated or in dispute and arising either from contract or from tort, something other than or different from what he is or considers himself entitled to. And a satisfaction is the execution of such agreement.’ ” The evidence clearly established that Sanford and Tibbetts asserted that they were entitled to receive and demanded 1,200 shares of the voting stock. Salisbury denied that they were so entitled and stated that their demand was ridiculous. Even if we assume, although we have decided otherwise, that the inferences which the trial court drew from the conversations between the parties were permissible, there can be no doubt that such conversations fully warranted a good faith denial by Salisbury of the claims asserted by Sanford and Tibbetts. The evidence established a bona fide dispute between the parties. Salisbury made an unequivocal offer to settle the dispute by selling to Sanford and Tib-betts 100 shares each of the voting stock at $10 per share. Sanford and Tibbetts unequivocally accepted such offer. The compromise agreement was carried out and thereupon there was an accord and satisfaction. Sanford and Tibbetts assert that the principles of accord and satisfaction are inapplicable where the relationship of the parties is trustee and beneficiary. They cite no authority in support of that proposition. We express no opinion as to whether the contention would have validity if an express trust were present. We entertain no doubt that where one party asserts a claim predicated on facts, which, if true, would give rise to a constructive trust and the other party disputes the facts and denies the claim and a bona fide dispute is present, that the parties may enter into a valid and binding accord and satisfaction or compromise agreement. A constructive trust must never be confused with a real or express trust, which, in itself, contains a fiduciary relationship. The constructive trust lacks the attributes of a true trust and is only a fiction imposed as an equitable device to prevent injustice. It, unlike the express or true trust, is not a fiduciary relationship, although the circumstances which give rise to it may or may not involve a fiduciary relation. Such being the character of a constructive trust, we perceive no reason why a bona fide dispute with respect to a claim, which, if established, would give rise to a constructive trust, should not be settled and discharged by an agreement of accord and satisfaction. The judgment is reversed and the cause remanded, with instructions to enter judgment in favor of Salisbury. . Hereinafter called Reliance Company. . Hereinafter called Professional Company. . Van Dyke v. Norfolk Southern R. Co., 112 Va. 835, 72 S.E. 659, 664; Pomeroy, Specific Performance of Contracts, 3d Ed., § 159. . Jacoby v. Shell Oil Co., 7 Cir., 196 F. 2d 855, 858; National Waste Co. v. Spring Packing Corp., 7 Cir., 200 F.2d 14, 16, certiorari denied 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 ; 89 C.J.S. Trusts § 158, pp. 1079-1083. . Jacoby v. Shell Oil Co., supra; Marshall v. Amos, Okl., 300 P.2d 990; Collins v. Shive, Mo., 261 S.W.2d 58; 89 C.J.S. Trusts § 158, p. 3081. See also, Kitt v. Kitt, 4 Utah 2d 384, 294 P.2d 791, 792. . See United States v. Neel, 10 Cir., 235 F.2d 395, 399; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Wilcox Oil & Gas Co. v. Diffie, 10 Cir., 186 F.2d 683, 696. . Badger & Co. v. Fidelity Building & Loan Association, 94 Utah 97, 75 P.2d 669, 676. . See also, Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 10 Cir., 176 F.2d 73, 76. . Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 282-283, 73 S.Ct. 671, 97 L.Ed. 1007; Scott on Trusts, Vol. 3, § 462.1; 89 C.J.S. Trusts § 139 p. 1015. . Gendler v. Sibley State Bank, D.C.Iowa, 62 F.Supp. 805; In re Farmers State Bank of Amherst, 67 S.D. 51, 289 N.W. 75, 126 A.L.R. 619; Restatement of the Law of Restitution, § 160, Comment (a); Scott on Trusts, Vol. 3, § 462.1, p. 2316; 89 C.J.S. Trusts § 139 pp. 1018-1019. . See Scott on Trusts, Vol. 3, § 481.3. 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_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 Myron Ray ELY, Appellee, v. Earl BLEVINS, Cora Blevins, Appellants, and R.F. Sturgill, Joe Anderson, Defendants. No. 82-1848. United States Court of Appeals, Fourth Circuit. Argued March 10, 1983. Decided May 3, 1983. Wade W. Massie, Abingdon, Ya. (G.R.C. Stuart, Penn, Stuart, Eskridge & Jones, Abingdon, Va., on brief), for appellants. Mary Lynn Tate, Abingdon, Va. (Emmitt F. Yeary, Yeary, Tate, Detrick & Wright, P.C., Abingdon, Va., on brief), for appellee. Before WINTER, Chief Judge, ERVIN, Circuit Judge, and ALDRICH, Senior Circuit Judge. Of the First Circuit, sitting by designation. PER CURIAM: Plaintiff Ely and wife spent a night in July, 1979 at the Empire Motor Lodge, owned by defendants Blevins. After his wife had used the tub, plaintiff showered in the combination shower and bath. Finishing, he turned off the cold water, and immediately sought to turn off the hot. The handle, however, “just spun ... around without meshing.” Apparently the cap screw had loosened, and the splines were worn, and had disengaged. The water became extremely hot and, perhaps because of the temperature, or because he was 69 years old, plaintiff was not agile enough to avoid suffering second degree burns. The case was tried to a jury on two counts; the first for negligence, the second for breach of warranty. While the court charged the jury with respect to each, unfortunately it submitted only a single set of verdict forms, resulting in the jury’s returning a general verdict for the plaintiff. This means that if defendants’ motion for a directed verdict as to either count should have been sustained, there must be a new trial. “[T]o submit two counts for general verdict where the evidence does not justify recovery on both, constitutes error, since it cannot be told that the jurors did not take the wrong route. Sunkist Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19, 29-30, 82 S.Ct. 1130, 1136, 8 L.Ed.2d 305 (1962); Wilmington Star Mining Co. v. Fulton, 205 U.S. 60, 79, 27 S.Ct. 412, 419, 51 L.Ed. 708 (1907).” Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 662 (1 Cir., 1981). Defendants do not seriously complain with respect to the sufficiency of the evidence to justify a finding of negligence. There were no anti-skid strips or mat in the tub. The evidence warranted a finding that hot water could reach the shower at a temperature approximating 160°, and that, for personal use, this was excessively hot in case it emerged unmixed, as it could produce second degree burns in a matter of seconds. The plumbing fittings were old, and there were no procedures for inspection; defendants trusting to reporting by occupants or housemaids. The jury was warranted in finding that this was not reasonable care under the circumstances. The problem arises with respect to the warranty count. Having explained negligence with respect to Count 1, the court charged the jury, succinctly, as follows. “In order to recover for a breach of the implied warranty of suitability, the plaintiff must prove by a preponderance of the evidence as follows: One, that the fixtures or equipment were defective and unfit for ordinary purposes for which they were to be used, and, two, that as a proximate result the plaintiff was injured.” There was no requirement, in other words, of a showing of unreasonable conduct, or lack of care. Plaintiff would justify this submission by our holding in Schnitzer v. Nixon, 439 F.2d 940 (4 Cir.1971). There a motel guest sat in what proved to be a defective chair, and was injured when it collapsed. The case was tried without jury. The court found defendants were not negligent, and dismissed the complaint. In reversing we said, “Since this is a diversity case, we would follow the Supreme Court of Appeals of Virginia but unfortunately it has not explicitly expressed itself on warranty in the instant factual environment. “Certainly, however, nothing in Virginia’s jurisprudence, statutory or decisional, denies the availability of the implied warranty — devoid of negligence — for a guest’s recovery from his innkeeper for injuries caused by a weak fixture provided for the guest’s use. Such an action lies in Virginia, appellees concede, for breach of implied warranty of merchantability or suitability in the sale of goods, Gleason & Co. v. International Harvester, 197 Va. 255, 88 S.E.2d 904 (1955), and for the wholesomeness of food and drink in its sale, Levy v. Paul, 207 Va. 100, 147 S.E.2d 722 (1966). These doctrines in reason and logic dictate recognition of actionable implied warranty on the part of the innkeeper.” (Emphasis in orig.) 439 F.2d at 941. The Schnitzer court then discussed an English case holding an innkeeper to an implied warranty of fitness, and concluded that two Virginia cases were “[ijdentieal in principle”: Kirby v. Moehlman, 182 Va. 876, 30 S.E.2d 548 (1944), and Crosswhite v. Shelby Operating Corp., 182 Va. 713, 30 S.E.2d 673 (1944). With great respect, we cannot help noting that the Virginia court’s opinions in both of these cases spoke sufficiently in terms of negligence and reasonable care to leave its views on absolute liability not free from doubt. However, our question is not whether this court was correct in its estimation of Virginia warranty law in 1970, but whether there are indicia today that call for a different resolution. We start afield. Schnitzer was shortly followed by the Michigan court in Jones v. Keetch, 388 Mich. 164, 200 N.W.2d 227 (1972). Again a motel guest was injured by a defective chair. The court stated that it was irrelevant whether the plaintiff was to be considered a bailee or a lessee, and, following Schnitzer, held that there was a breach of implied warranty of fitness. It appears, however, that the Virginia court has not followed that route. In Leake v. Meredith, 221 Va. 14, 267 S.E.2d 93 (1980), plaintiff rented what proved to be a defective ladder from the defendant and the question of a lessor’s liability arose. Plaintiff’s suit for breach of warranty was dismissed. The court took the opposite view from Keetch, declining to align itself with those courts that apply the Uniform Commercial Code to leases. It is true that the court did not say, in so many words, that there was no common law implied warranty in addition to statutory warranties under the Code, but certainly its failure to find one would seem an eloquent omission. We do not feel, under these circumstances, that we should find that the Virginia court would make a special rule in favor of an innkeeper’s warranty. We are confirmed in this refusal by the realization that, while an innkeeper is often held to a specially high duty of care, the general rule, nationally, falls short of warranty. See, e.g., Truett v. Morgan, 153 Ga.App. 778, 266 S.E.2d 557 (1980); Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 250 S.E.2d 245 (1979); Bearse v. Fowler, 347 Mass. 179, 196 N.E.2d 910 (1964); Early v. Lowe, 119 W.Va. 690, 195 S.E. 852 (1938). Finally, there is no possible merit in defendants’ claim that plaintiff was contributorily negligent as matter of law. We have reviewed defendants’ other contentions, but find them not to require comment. We trust that plaintiff’s extreme jury argument will not be repeated; it was uncalled for to talk about great national hotel tragedies, and the need to teach motel keepers lessons. Reversed; new trial on Count 1. 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_weightev
D
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". S. Elaine HOWARD, et al., Plaintiffs-Appellants, v. The CITY OF GARLAND, Defendant-Appellee. No. 90-1020 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 23, 1990. Michael M. Daniel, Dallas, Tex., for plaintiffs-appellants. Charles M. Hinton, City Atty., Brad Neighbor, First Asst. City Atty., Garland, Tex., for defendant-appellee. Before KING, GARWOOD and DUHÉ, Circuit Judges. GARWOOD, Circuit Judge: Plaintiffs-appellants S. Elaine Howard (Howard), Alecia Spillman (Spillman) and Joy Wachendorfer (Wachendorfer) (collectively appellants) appeal the summary judgment dismissal of their 42 U.S.C. § 1983 claim challenging the constitutionality of a zoning ordinance of defendant-appellee the City of Garland (the city) prohibiting in residential districts the operation of a commercial day-care facility for more than four nonresident children without a special use permit. Because appellants have failed to demonstrate that the ordinance is not rationally related to a legitimate governmental interest, or that there is any genuine issue of material fact in that respect, we affirm. Facts and Proceedings Below Howard and Spillman (collectively operators) operated a home day-care facility in their residence in Garland, Texas. Wachendorfer’s child received day-care at the Howard/Spillman home. Operation of the facility was Howard and Spillman’s primary occupation. The operators charged a fee for each nonresident child enrolled, and provided day care, Monday through Friday, 7:30 a.m. to 6:00 p.m., for up to twelve (including three resident) children (none as old as fourteen) at the home. The residence is located within a single family zoned area of a Texas home-rule municipality. Zoning in the municipality is governed by a comprehensive land-use ordinance, adopted by the city council, which in various areas allows certain uses and excludes others. The zoning ordinance imposes no restrictions on any home day care for up to four nonresident children in the area where the Howard/Spillman residence is located. However, if commercial daycare providers wish to care for more than four nonresident children in a residential district, the zoning ordinance provides that they must obtain a special use permit and comply with certain performance standards such as state licensing, screening, off-street parking, and improved off-street loading. The zoning ordinance’s restrictions are intended to limit negative externalities such as increased non-local traffic that would be produced by such a home day-care facility. These restrictions long antedated operators’ interest in the residence and their operation of the day-care facility there. Operators requested a special use permit for their facility. A hearing on their application was held before the city’s Plan Commission, which recommended denial, as did the Planning Department staff. The city council thereafter denied operators’ request. The city then ordered operators to cease commercial child care for more than four nonresidents at that location and appellants filed a complaint in district court requesting a temporary restraining order and preliminary injunction against the city’s enforcement of the zoning ordinance. The court denied both motions. Thereafter operators opened a commercial day-care facility at another location in the city where they rented the space. The city moved for summary judgment that the zoning ordinance was constitutional. The district court granted the motion and dismissed appellants’ complaint with prejudice. Appellants timely appealed. Discussion Appellants claim that the city’s zoning ordinance violates their Fourteenth Amendment right to equal protection of the laws. Appellants dispute neither the nature of the regulatory classification nor the legitimacy of the city’s regulatory purpose, the first two elements of an equal protection challenge. Appellants focus instead on the third element: “the ‘fit’ between the classification and the purpose; that is, whether the state could rationally determine that by distinguishing among persons as it has, the state could accomplish its legitimate purpose.” Mahone v. Addicks Utility Dist. of Harris County, 836 F.2d 921, 933 (5th Cir.1988). The sole issue raised by this appeal, therefore, is whether the zoning ordinance’s regulation bears “a debatably rational relationship” to the city’s concededly legitimaté interests. Reid v. Rolling Fork Pub. Utility Dist., 854 F.2d 751, 753 (5th Cir.1988). Appellants argue that commercial home day care for more than four nonresident children does not interfere with municipal interests any more than do a number of other permitted business activities. Such permitted businesses include public and private schools, home instruction, home occupations, farms, ranches, orchards, gardening, livestock grazing, farm buildings, cemeteries and churches. Appellants claim that all of these activities create noise, increase traffic, or constitute commercial intrusion, yet they require no special use permit. Appellants rely principally on Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), in support of their claim. In Cleburne, a Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The group home, Cleburne Living Center, was intended to house thirteen retarded men and women. The city council classified the home as subject to the same zoning regulations as a “ ‘hospital for the feebleminded.’ ” Cleburne, 105 S.Ct. at 3252. The classification was not based on the number of occupants, but solely on their status as mentally retarded. The Living Center filed suit claiming, inter alia, that the ordinance was invalid on its face and as applied because it discriminated against mentally retarded persons in violation of their constitutional rights, as potential residents, under the equal protection clause. The Court observed that “some objectives — such as ‘a bare ... desire to harm a politically unpopular group’ [citation omitted] — are not legitimate state interests.” Id. at 3258. It noted that the city of Cleburne had failed to distinguish the Living Center from other housing arrangements unrestricted as to the number of persons who could freely occupy the identical structure without a permit, such as boarding houses, dormitories, fraternity houses, and nursing homes. Id. at 3259. See also id. at 3258, 3260. The Court ultimately held that the denial of the permit to the Living Center was based on “an irrational prejudice against the mentally retarded____” Id. at 3260. Appellants' reliance on Cleburne is misplaced. In Cleburne, the Supreme Court held that the zoning ordinance violated plaintiff’s constitutional rights on an as-applied basis; the Court’s ruling was limited to the city’s denial of plaintiff’s request for a special use permit. The Court noted that “[t]his is the preferred course of adjudication since it enables courts to avoid making unnecessarily broad constitutional judgments.” Id. at 3258. In the case at bar, ruling in favor of appellants’ challenge of the zoning ordinance as facially invalid under the Fourteenth Amendment would require exactly such a broad constitutional judgment. Plaintiff in Cleburne demonstrated that the city council’s denial of the special use permit was based on irrational prejudice against the class of persons to occupy the residence. Appellants in the instant case make no claim that the city was motivated by irrational prejudice toward home day care or the children served thereby, nor is there any evidence of any such prejudice. Indeed, we note that home day care is widely allowed — appellants assert there are some 250 home day care operations in Garland — and the ordinance requires a special use permit for day care only where more than four nonresident children are served and then only if a fee is charged and the operation is in a residentially zoned area. Finally, plaintiff in Cleburne demonstrated that similar persons were not being treated alike. The municipality allowed a wide range of home uses to go unregulated that were different from the use of the Living Center only because of the identity of its potential occupants. The uses cited by appellants in the instant case are either dissimilar to home day care or regulated to approximately the same degree for substantially the same purposes. Home instruction, for example, is subject to the same four-person limit as is commercial home day care. Home occupations (without nonfamily employees, sales, or signs) are allowable only if, inter alia, they do not increase traffic or noise. Farms, ranches, orchards, livestock grazing, and farm buildings do not raise the same traffic concerns raised by home day care for five or more nonresidents. Nor does the high occupancy of a cemetery. Churches are not commercial and are required to alleviate traffic concerns by providing a minimum of one parking space per four auditorium seats. And the city council might reasonably assume that the norm is not for there to be daily meetings at churches. Appellants concede that state law prohibits municipal interference with the location of public schools, and private schools are allowed without a special use permit only if they are accredited in accordance with standards of the Texas Education Agency. Nonaccredited private schools and commercial schools must obtain a special use permit. The city’s distinction between accredited and nonaccredited private schools suggests that the city believes that the value of accredited private schooling outweighs the attendant negative externalities, whereas the value of nonaccredited private schooling, commercial schooling, and commercial day care does not. And, accreditation standards require schools to be “well designed for instruction” and “free from safety and health hazards.” Tex. Admin. Code, Title 19, § 97.30. The city might also reasonably assume that accredited private schools will be far less likely to proliferate, a possibility buttressed by appellants’ statement that there are approximately 250 home day care operations in Garland. In any case, if the regulation at issue is rationally related to the city’s purpose, the regulation or nonregulation of marginally similar nonresidential uses, such as accredited private schools, is not dispositive of the relevant constitutional question. A “legislature is allowed to attack a perceived problem piecemeal____ Under-inclusivity alone is not sufficient to state an equal protection claim.” Jackson Court Condominiums v. City of New Orleans, 874 F.2d 1070, 1079 (5th Cir.1989) (citation omitted); See City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (“Legislatures may implement their program step by step____”). We shall generally “defer[] to legislative determinations as to the desirability of particular statutory discriminations”, for “[s]tates are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude____ [I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” Dukes, 96 S.Ct. at 2516-17 (citations omitted). Appellants present no evidence that the specific requirements of the zoning ordinance for the special use permit are irrational, arbitrary, or driven by invidious discrimination. Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment shall be granted when the movant shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Assuming opportunity to discover all relevant information, the burden is on nonmovant to “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Appellants in the instant case fail to raise any genuine issue of material fact. Indeed, their brief in this Court asserts that “[t]here is no dispute about the facts of the case.” Summary judgment disposition was clearly proper. Conclusion Appellants have not shown that the zoning ordinance, in requiring a special use permit for commercial home day care serving more than four nonresident children at one location in a residential district, had no debatably rational relationship to a legitimate governmental interest. Accordingly, the judgment in favor of the city is AFFIRMED. . This general rule does not apply to certain suspect classifications or when the classification impinges on personal rights protected by the Constitution. Mahone, 836 F.2d at 933 n. 12 (citing Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 3255, 87 L.Ed.2d 313 (1985)). It is not claimed, nor does it appear, that any of these exceptions to the general rule is applicable here. . See also id. 105 S.Ct. at 3262 (Stevens, J., concurring) ("through ignorance and prejudice the mentally retarded 'have been subjected to a history of unfair and often grotesque mistreatment’ ”). . See also id. at 3262 (Stevens, J., concurring) ("The record convinces me that this permit was required because of the irrational fears of the neighboring property owners”). Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. Dr. John NORTON, Appellant, v. Forrest H. LINDSAY, Appellee. No. 7947. United States Court of Appeals Tenth Circuit. Aug. 25, 1965. William R. Young, Denver, Colo. (Theodore J. Kuhlman, Denver, Colo., on the brief), for appellant. Frederic L. Kirgis, Denver, Colo. (Gor-such, Kirgis, Campbell, Walker & Grover, Denver, Colo., on the brief), for appel-lee. Before PHILLIPS, HILL and SETH, Circuit Judges. HILL, Circuit Judge. This diversity action was brought below to rescind a sale of a race horse on the ground of breach of warranty and to recover the amount paid for the horse and the expenses incurred in its maintenance. The appeal is from an order granting plaintiff’s motion for summary judgment. From the record before us we consider the following facts as being without dispute. Appellant, Norton, was the owner of a race horse named Pocket Valu, which he had purchased in Kentucky. At the end of the 1962 racing season, the horse developed an inflammation in its left front foot and was taken to the Veterinary Clinic of Colorado State University for diagnosis and treatment. Doctors Wolff and Adams of the Clinic diagnosed the condition as navicular disease of the horse’s front feet and Doctor Wolff performed an operation on the horse to correct the condition. A horse having had this particular operation performed upon it is thereafter referred to as having been “heel nerved”. Some months later soreness developed in the horse’s legs and a second operation was performed on it to remove some nerve tumors. After the operations the horse had a successful racing season in 1963. Toward the end of that season appellee, Lindsay, became interested in buying the horse and sent his trainer to Denver to negotiate with Norton. During the negotiations and before the sale was agreed upon, appellant stated that the horse was “sound” and that it had been “heel nerved”. Lindsay purchased the horse and paid Norton $40,000, with an oral agreement that if Lindsay retired the horse Norton was to receive stallion services from it. Within a few weeks after purchasing the horse, Lindsay entered it in a race at Aqueduct Race Track. However, the horse was barred from racing by the track veterinarian because in his opinion it had been “high nerved”. This term refers to an operation which is performed upon a horse, severing the main nerve before it enters the horse’s foot. The operation disqualifies the horse from racing. Other veterinarians in the East Coast area confirmed the opinion of the track veterinarian to the effect that the horse had been “high nerved”. Lindsay then notified Norton about the condition of the horse and by letter attempted to rescind the sale and made a demand for the return of the sale price and offered to return the horse to Denver. Norton refused the demand and this action was commenced. After the action was commenced an examination of and an operation on the horse at Norton’s request, pursuant to Rule 34, F.R.Civ.P., was had, which conclusively showed that the horse had been “high nerved”. After this fact had been established in the case, Norton received permission from the court to file a third-party complaint bringing Doctors Wolff and Adams and Colorado State University into the case as third-party defendants. On the basis of the pleadings, depositions, affidavits and exhibits on file in the case, the able trial judge concluded that there was no genuine issue of material fact left in the case and granted a summary judgment to the plaintiff on the theory of express warranty. Appellant attacks the granting of summary judgment upon three grounds: (1) That the summary judgment precluded the third-party defendants from asserting against the plaintiff any defenses they may have under Rule 14(a), F.R.Civ.P.; (2) that a determination of whether the words “sound” and “heel nerved” as spoken by Norton constitute an express warranty is a question of fact for a jury and cannot be disposed of as a matter of law; (3) the question of whether Lindsay relied upon the spoken words “sound” and “heel nerved” as a warranty is a question of fact for the jury. There is no merit to the first point because appellant has no standing to raise the point on behalf of the third-party defendants. They are in court, represented by separate counsel, and are not now here complaining about the summary judgment. At the outset of our consideration of points two and three, it should be pointed out that although appellant urges that the questions referred to in both points are matters to be determined by a jury, no jury demand was made by either side in the case and all questions of law and fact were left for determination by the court. Also, with reference to both points, we must keep in mind the general principles of law governing the granting of motions for summary judgment. That procedure may not be used as a substitute for a trial in the determination of genuine material factual issues. It should be used only in eases in which no issue of a material fact exists. See SMS Manufacturing Company v. U. S.-Mengel Plywoods, 10th Cir., 219 F.2d 606; Hunt v. Pick, 10th Cir., 240 F.2d 782 and Bolack v. Underwood, 10th Cir., 340 F.2d 816. With reference to appellant’s point-two, the trial court found, as undisputed, the fact that Norton made at least two affirmations of fact concerning the horse, both of which had a natural tendency to induce a purchase. Those statements were “that the horse was sound” and that “it had been heel nerved” and Norton admitted making both statements. The trial court relied upon the definition of express warranty as set out in Colorado’s Uniform Sales Act, C.R.S. 1963, § 121-1-12: “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.” We agree with the trial judge that the affirmation of fact here was the words that “the horse was sound”. No special form of words is necessary to constitute a warranty. Rudd v. Rogerson, 133 Colo. 506, 297 P.2d 533 (1956). Appellant puts some stress on the fact that appellee’s trainer carefully examined the horse before the sale. The fact that appellee’s trainer did inspect the horse but did not detect the defect is of no importance for the facts conclusively show the defect was not ascertainable by a layman. Investigation is compatible with the giving of an express warranty. Only where the buyer clearly relies only upon his own investigation and waives the warranty will it be rendered inoperative, see Rudd v. Rogerson, supra, and Williston on Sales, Revised Edition, Vol. I, § 208 at p. 540. The word “sound” when used with reference to many animals and especially a horse has a special and particular connotation. The statement that a horse is “sound” implies “the absence of any defect or disease which * * * will impair the animal’s natural usefulness for the purpose for which it is purchased * 77 C.J.S. Sales § 330. In other words, using the word “sound” in describing the horse in this case clearly constituted an express warranty of fitness as a race horse, which was the purpose for which it was purchased. If, as contended by appellant, the case had been tried to a jury, it would have been incumbent upon the trial judge to instruct the jury, as a matter of law, as to the meaning of the word “sound” under the particular facts of the case. The court was clearly correct in considering, as a matter of law that the use of the word “sound” in describing Pocket Yalu constituted an express warranty. Although there are some old cases to the contrary, this is the modern view. See Williston on Sales, supra, § 203. Appellant’s third point likewise is without merit. Williston on Sales, supra, § 206, succinctly disposes of the question in the following language: “There is danger of giving greater effect to the requirement of reliance than it is entitled to. * * * and as a general rule no evidence of reliance by the buyer is necessary other than the seller’s statements were of á kind which naturally would induce the buyer to purchase the goods and that he did purchase the goods.” And later in the same section he continues : “If a representation was evidently made for the purpose of inducing a sale, and was of a kind appropriate for that purpose and a sale followed, this should be enough.” Making even a stronger showing here, appellee affirmatively, and without contradiction, maintained that he did rely upon the affirmations of appellant. The trial court properly and judiciously made use of the procedure for summary judgment. Affirmed. . Appellant also stated that the horse was “heel nerved”. The trial court believed that this was tantamount to saying the horse was not high nerved. We do not pass on this contention for the statement the horse was sound establishes the warranty. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_state
21
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". Anna JENNINGS, Administratrix of the Estate of Stewart Earl Jennings, deceased; State of Maryland, to use of Anna Jennings, surviving wife, Anna Frances Jennings, a minor, Russell Earl Jennings, a minor, Gregory Stewart Jennings, a minor, and the unborn child or children, en ventre sa mere, of Stewart Jennings; Margaret M. Jennings, in her own right as mother and next friend of Donald S. Jennings and Donald S. Jennings in his right, Appellants and Cross-Appellees, v. UNITED STATES of America, Appellee and Cross-Appellant. No. 8117. United States Court of Appeals Fourth Circuit. Argued Oct. 11, 1960. Decided May 4, 1961. David L. Rose, Atty., Dept, of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and Morton Hollander, Atty., Dept, of Justice, Washington, D. C., on brief), for appellee and cross-appellant. Paul R. Connolly, Jr., Washington, D. C. (David N. Webster, and Hogan & Hartson, Washington, D. C., on brief), for appellants and cross-appellees. Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and STANLEY, District Judge. HAYNSWORTH, Circuit Judge. The tragedy out of which these cases arose occurred in Maryland on a highway constructed and maintained by the United States Government. On the morning of January 23, 1956, Stewart Earl Jennings, a civilian employee of the United States, was driving his automobile from his home in Maryland to his place of work in the District of Columbia. Stewart’s brother, Donald S. Jennings, was a passenger in the car. At about 7:30 a. m., while driving on Suitland Parkway in Maryland, a highway under the control of the National Capital Park Bureau, Department of the Interior, Stewart’s automobile skidded on a patch of ice on the road, went out of control, and collided with an oncoming automobile in the opposite lane of traffic. Stewart Jennings was killed and his brother, Donald, was seriously injured. Thereafter, based upon the alleged negligence of the United States, three suits were filed under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2674, in the United States District Court for the District of Maryland. The Administratrix of Stewart Jennings’ estate brought, an action for Stewart’s conscious pain and suffering before death, for loss of his automobile, and for funeral and burial expenses. An action was also-brought to the use of Stewart’s widow and four children under the Maryland Lord Campbell’s Act, Code 1957, art. 67, § 1 et seq., for damages resulting from his alleged wrongful death. There was-a third suit based on the injuries suffered by Stewart’s brother, Donald Jennings. In a lengthy trial, much evidence was-presented bearing on the construction of the road at the particular place, the-weather conditions preceding the time of the accident, the driving hazard at this point, the notice, actual or constructive, chargeable to the Government of the existence of the ice, the alleged contributory negligence of Stewart Jennings, and the amount of damages. The District Judge found the Government negligent and Stewart Jennings free from contributory negligence. The detailed evidence relating to these questions, together with the findings of the District Judge, are set forth in the Judge’s comprehensive opinion. Jennings v. United States, D.C.Md.1959, 178 F.Supp. 516. Damages in the sum of $850 were awarded in the Administratrix’s suit, $83,700 in the wrongful death action, and $21,978 in favor of Donald Jennings. The plaintiffs have appealed, contending that in several respects the District Court erroneously calculated damages, and the Government has cross-appealed, raising issues of liability and contributory negligence, and it also attacks the computation of damages. The principal issue is raised by the Government and concerns the extent of a defendant’s liability for injuries caused by icy conditions on a roadway under its control. As the accident happened in Maryland, the law of that state is to be applied. Suitland Parkway, built by the United States Army Engineers in 1944 as a military highway, runs in a generally east-west direction from Andrews Air Force Base on the East to South Capital Street in the District of Columbia on the West. On that portion of it where the accident occurred it has a concrete surface providing two traffic lanes, one for traffic moving in each direction. As modern highways are, it is banked on curves and, at the point where the accident occurred, there is a slight curve so that the northern edge of the highway is slightly higher than the southern edge. Necessarily, water from melting ice and snow piled on the shoulder of the high side of the roadway will drain across the highway surface. On Thursday, January 19, 1956, there had been a heavy snow. Plows had removed the snow from most of the road surface, piling it up on the edges of the road and on the shoulders. Sunday, January 22, was warm and the accumulated snow and ice was melting. In many places, water from melting snow was draining across the roadway. The thawing conditions continued in general throughout the night of the 22nd-23rd. The official temperatures at the Washington National Airport show that the temperature fell on the afternoon and evening of the 22nd from a high of 46° F. at 3:00 o’clock in the afternoon to 37° F. at midnight. The reading was 36° F. at 1:00 a. m. and at 2:00 a. m. on the morning of the 23rd. It dropped to a low of 35° at 3:00 a. m., and was back up to 37° at 4:00 a. m. on that morning. It was again 36° at 5:00 o’clock and at 6:00 o’clock, and climbed again to. 37° at 7:00 o’clock, and that reading was also recorded at 8:00 o’clock. The temperature fell again to 35° at 9:00 o’clock and to 32° at 10:00 o’clock on the morning of the 23rd. Despite the fact that the official records indicated that the temperatures at the Washington National Airport were above freezing throughout the night of January 22-23, one witness testified that between 10:00 and 11:00 o’clock on the evening of the 22nd, he saw a patch of ice at an unspecified point on the highway and felt his rear wheels slip as he passed over it. One of the officers who patrolled the highway that night felt his wheels spin when he passed over what he supposed to be patches of ice while on his way to work, but he testified that when he looked for it later, while on his official patrols, he found no ice. Mrs. Jennings’ brother and sister, in separate automobiles, each testified that a patch of ice was encountered on the parkway around midnight. A number of witnesses traveling on the highway between approximately 6:00 o’clock and 7:30 o’clock on the morning of the 23rd testified that they saw or felt themselves passing over a patch of ice at a point approximately seven-tenths of a mile east of Forestville Road, the point where the accident occurred. There was no specific testimony that ice was at that particular place at an earlier hour. Unquestionably, there was a patch of ice on the roadway, observed by many witnesses, shortly after the accident. One of the officers investigating the accident called for sand, but, inexplicably, when the sand truck arrived at approximately 8:15 o’clock there was no longer any ice though the surface of the highway was wet from the melting snow, and though the official weather reports indicate that the temperatures were falling after 8:00 o’clock that morning and reached 32° F. by 10:00 o’clock. Suitland Parkway is maintained by the National Capital Park Bureau. The officers on duty on the night of January 22-23, including the one who thought from the feel of his wheels that he had passed over patches of ice on his way to work prior to 11:00 o’clock on the evening of the 22nd, testified that they encountered no ice on their patrols, though they were looking for it and though they made some six or seven round trips over the entire length of the highway during the night. There were two places, not the scene of the accident, one at the intersection of an access road and another where there was an overpass, which they thought prone to become icy when the rest of the roadway was unfrozen. Those two places they particularly checked, and at one of them one of the officers got out of the car to make certain by the feel of his foot that the substance on the roadway was indeed water and not ice. Throughout the night of January 22-23, as on other similar nights in the wintertime, there was a loaded sand truck available on call to sand the roadway in the event of icing. The sand truck could have been summoned by the patrolling officers by use of their radio, but the official log disclosed no request for sand and the patrolling officers testified they requested no sand, for they encountered no ice. Nevertheless, and though there was only water on the roadway, shortly after 8:00 o’clock, as we have indicated, there clearly was a patch of ice on the roadway at or near the point where Stewart Jennings lost control of his automobile at approximately 7:30 o’clock on the morning of the 23rd, with the result that there was a head-on collision with a vehicle proceeding in the opposite direction. The District Judge found that the patch of ice, observed by many witnesses during the early hours of daylight on the 23rd, had formed sometime prior to midnight. He concluded that it was a dangerous condition which the patrolling officers discovered, or should have discovered, and that they should have taken steps to mitigate the danger it posed for traveling motorists. Since they had done nothing to eliminate the condition, he held that the United States was liable for the resultant injuries under the Tort Claims Act. The principle that a municipality is bound to abate nuisances in the highways under its control if it knows of them, or should have known of them, has been applied with a soft hand by the Maryland courts to snow and ice. As he indicates in his concurring opinion, Chief Judge Sobeloff construes the Maryland cases to impose absolutely no duty upon a municipality to remove even occasional ice or snow from a highway under its control, to sand it or to warn of its presence, unless its presence is attributable, at least in part, to some 'other fault or wrong of the municipality. As we read the Maryland cases, they do not go that far, but the Courts of that state have certainly been careful to impose no unreasonable burden upon municipalities with respect to the prevention or removal of natural snow or ice. In the early case of Mayor and City Council of Baltimore v. Marriott, 1856, 9 Md. 160, 66 Am.Dec. 326, it was established that the City permitted ice to remain upon a sidewalk for a long time. A pedestrian slipped upon it and injured himself. The municipality was held responsible because the condition amounted to a nuisance which the municipality should have abated. The duty of municipalities to remove snow and ice from sidewalks has been imposed in Maryland against a background of a municipality’s power to require the occupants of adjacent land to effect the removal of snow and ice from the sidewalks. Under such ordinances, the municipality, itself, is required only to remove snow and ice which the occupant of the adjacent land neglects to remove after a reasonable time, and this activity of the municipality may be done at the expense of the occupant who is required by the ordinance to clear the sidewalk. With respect to ice and snow in the streets, however, the Maryland courts have imposed no duty upon municipalities to remove general ice or snow, for to do so, they have thought, would have imposed unreasonable burdens upon the municipality. In Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832, 835, the Court of Appeals of Maryland declared emphatically : “ * * * In order that we may not be misunderstood, we desire to emphasize the fact, at the risk of repetition, that we do not mean to say that the appellee (a municipality) would be liable if this ice was simply the result of snow or rain, or both, falling and then freezing. If it had been, and if the ice thereby formed was in large quantities in the streets, it would be exacting too much to require the municipal authorities to remove it. * * * ” The case of Flynn v. Canton Co. of Baltimore, 1874, 40 Md. 312, 17 Am.Rep. 603, did not involve the liabilities of a municipality. The plaintiff there had slipped upon ice on a sidewalk in front of a market operated by the defendant. The suit was brought against the merchant on the theory that the city ordinance requiring the occupant of the store to remove ice from the sidewalk created a duty running to the general public. The court held, however, that the duty imposed by the ordinance upon the merchant ran only to the city, enforceable only by penalty or by exercise of the city’s right to remove the snow and ice and to charge the storekeeper for the cost of the work. Once the court concluded that the city ordinance imposed upon the occupant of the adjacent land no duty of care with respect to ice on the sidewalk running to passers-by using the sidewalk, there was no basis for imposing any civil liability upon the storekeeper for the injury sustained by the pedestrian unless, of course, the storekeeper had caused the ice to be present. Once the city ordinance was eliminated as a basis for recovery by the pedestrian, there remained no basis for imposing civil liability upon the occupant of adjacent land for ice or snow in a public way not under his control to any greater extent than there would be for any other defect in a highway adjacent to the occupant’s land. The holding that the occupant of adjacent land may not be held liable for injuries sustained by a member of the public using the public highway not under the control of the land occupant neither requires nor suggests the conclusion that a municipality which does have control of the highway in which a defect is permitted to exist for an unreasonable period of time may not be held civilly liable if injuries are sustained because of the defect. With respect to defects other than ice and snow, such liabilities are imposed in Maryland upon municipalities having control of the highways, though there would be no basis for imposing any such liability upon the occupant of adjacent land. The duties of a municipality with respect to ice and snow in the streets it maintains are not to be measured by the duties of adjacent landowners with respect to defects in the highways which they do not maintain and for which they are not responsible. That a municipality in Maryland does have some duty with respect to occasional ice and snow in the streets it maintains appears to have been the clear holding in Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832, a case subsequent to Flynn. There it appeared that ice had been formed of water discharged in the street from a saloon. Though the ice had been present for a long time the municipality made no effort to do anything about it. The court concluded that the long existing patch of ice in the street was a nuisance, and that the municipality was liable to the plaintiff for the damages he sustained when he was injured on the ice. It may be that the saloon keeper could also have been held responsible for the plaintiff’s injuries, for he discharged the water into the street, which, freezing, created the ice, but there is nothing in the case to suggest that an innocent occupant of adjacent land could have been held liable for the saloon keeper’s conduct, or for the municipality’s neglect over a long period to do anything to abate the nuisance. Maryland’s Court of Appeals seems to have been applying the usual rule with respect to defects in a public way permitted to remain for such length of time as to become a nuisance, for, with respect to this isolated patch of ice, the burden resulting from imposition of a duty of abatement was slight, thus distinguishing that case from the general rule that Maryland municipalities need do nothing about general ice or snow. Under the Maryland eases, the municipality is not required to do the impossible, to prevent snow from falling in the streets, as the court observed in Magaha, or even the very onerous. It is required to do what is reasonable and not burdensome to it. It need not remove general snow, but it may be required to remove, sand or warn an unsuspecting public of, a lone and isolated patch of ice long remaining in a public street, depending, in each instance, upon reasonableness. Though we think the Maryland cases do not require a conclusion that a municipality need do nothing at any time about occasional ice or snow naturally formed in its streets, the duties imposed with respect to ice or snow in the roadway, as distinguished from sidewalks which occupants of adjacent land may be required to clear, are minimal. The courts of that state have clearly indicated that the public should suffer the inconvenience and danger of ice and snow in the streets rather than having the municipalities burdened with duties of large and expensive operations to remove it. Though nothing in the Maryland law required it do so, the United States did remove the general snow of January 19, 1956 from most of the surface of the roadway, piling it on the edges of the road and on the shoulders. No one suggests that this substantial clearance of the highway required the United States to go further and remove the piles of snow from the edges of the road and from the shoulders or to take other steps to prevent drainage across the road from the piles of snow on the edges and shoulders, particularly snow on the high side of the banked curves. It was required only to inspect the road at reasonable intervals and to sand occasional patches of ice, or take other reasonable steps to diminish their danger, within a reasonable time after they were discovered or reported. The United States did all that was required of it and more. It patrolled the highway at frequent intervals throughout the day’and night. It maintained a loaded sand truck so that it might promptly respond at any hour to a call for sand. Except at the one place where one patrolman got out of the car to feel the surface of the road with his feet, the patrolmen did not examine the surface of the road more closely than could be done from their moving car. Bearing in mind the thawing conditions and the official temperature reports, however, no basis appears for a finding that due care required closer or more frequent inspections. In those Maryland cases in which occasional ice on sidewalks or in the streets has been held to be a nuisance which the municipality should have abated, the ice had been present for many days. Here, in contrast, the ice had formed only a few hours before the accident. The accident occurred shortly after daybreak. The fact that the ice was neither reported nor discovered during the early morning hours of darkness, under the conditions then prevailing, does not lead to the conclusion that the United States should have taken additional precautions. Maryland’s leniency with municipalities in snow and ice cases is not consistent with a requirement that occasional ice, naturally formed, must be discovered and dealt with under these circumstances in so short a period of time. We conclude that proof of the presence of the patch of ice that morning and of the fact that Jennings’ car skidded upon it was not enough to support the judgment. There was other evidence, however, which might support recovery upon a different theory. There was testimony that the roadway at this point is in a shallow cut and that beyond the northern shoulder of the highway was a slight swale or drainage ditch, constructed apparently for the purpose of diverting from the roadway water draining down the embankment. There was testimony that the swale was inadequate for that purpose, and, at least, a suggestion that the water on the roadway came not from the snow piled on the edge of the roadway and the shoulders, but from the embankment on the other side of the swale. The testimony about the construction and condition of the swale was accepted by the District Court only for the purpose of showing notice to the United States that water might be expected to drain across the roadway at this particular point and, in freezing weather, to freeze. He made no findings, and none were requested of him, as to what, if any, contribution the condition of the swale made to the formation of the ice patch with which we are concerned. Though there was testimony that water was draining across the highway at many places, the plaintiffs’ testimony may be susceptible of an inference that water drained across the roadway only at this particular place and at no other, and that the condition of the swale was the cause of the drainage. If it were the fact that because of the condition of the swale water drained across the roadway at this particular point, forming ice during freezing conditions, and that the patch of ice on the particular morning was attributable to that condition, it might be concluded that the United States in the exercise of due care should have deepened the swale to eliminate the drainage across the roadway and the formation of dangerous ice whenever thawing conditions were followed by freezing temperatures. In Maryland it has been held that there is no liability for injuries caused by a design defect in a highway, but if a defect, whether of design or not, creates a condition which would itself constitute a nuisance, reasonable care to abate it is not exercised and the condition is the effective cause of the injury, no reason presently appears why the agency charged with maintenance of the highway should not be responsible as for any other nuisance it unreasonably permitted to exist. The District Court has made no findings on the subject. Until the District Judge has sifted the proof heard by him, we need not consider its sufficiency to support hypothetical findings, or decide whether any hypothetical findings would be sufficient to bring the plaintiff within the rule permitting recovery on the theory that the swale created a nuisance which the United States in the exercise of due care should have abated, and that this nuisance was the cause of the accident. Instead, we think it appropriate to remand the case to the District Court for further proceedings and additional findings of fact, with leave, in his discretion, to receive additional testimony bearing upon the remaining questions. In its cross-appeal the Government also maintains that under the evidence Stewart Jennings was, as a matter of law, contributorily negligent. The issue of contributory negligence is normally for the trier of the facts, and, upon the evidence in this case, we cannot say that the District Judge was clearly wrong in finding Jennings’ conduct free of negligence. See: Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832; Canton Co. of Baltimore v. Seal, 1923, 144 Md. 174, 125 A. 63. Additionally, two questions relating to damages are raised by the United States. First, it is asserted that the Civil Service Retirement Act, 5 U.S.C.A. § 691 et seq., benefits received by Stewart Jennings’ dependents after his death should have been taken into consideration in determining damages in the wrongful death action. In United States v. Price, 4 Cir., 1961, 288 F.2d 448, we recently held that these civil service benefits are from a “collateral source,” and, therefore, under the law of Virginia, should not be offset against a tort claims award. The Maryland cases also recognize the rule that benefits from a “collateral source” should not be considered in fixing damages in a tort action, Plank v. Summers, 1954, 203 Md. 552, 102 A.2d 262, and cases therein cited. Thus, it was no error to disregard such benefits to Jennings’ dependents. The Government also insists that the District Court, in computing damages in the death action, should have deducted from the award prospective income taxes that the decedent would have had to pay on his future earnings. Without intending to express an opinion on the propriety of such deduction, we note that the District Judge stated that “the decedent’s liability for taxes has been considered as one of the relevant elements in fixing the award,” Since this item evidently was considered, the Government has no cause to complain. Finally, the plaintiff’s brief raised several questions relating to damages. While these were not pressed in oral argument, we have examined the contentions and find no reversible error. For the reasons stated, the judgments appealed from are Vacated and the case remanded for proceedings not inconsistent with this opinion. . The readings were actually taken at approximately twenty minutes after the hour. . Similar ordinances have received a similar construction. See, for instance, Smith v. District of Columbia, 89 U.S.App.D.C. 7, 189 F.2d 671, 39 A.L.R.2d 773. . Generally, the occupant of land has no duty to remove or warn the public of defects in a public highway adjacent to the land he occupies when the highway is neither maintained by him nor under his control, unless he creates the defect. See Restatement of Torts, § 349. . Mayor & City Council of Baltimore v. Pendleton, 1860, 15 Md. 12; Anne Arundel County Commissioners v. Duckett, 1864, 20 Md. 468; Eyler v. Allegany County Commissioners, 1878, 49 Md. 257; Taylor v. Mayor, etc., of the City of Cumberland, 1885, 64 Md. 68, 20 A. 1027; Hitchins v. Town of Frostburg, 1887, 68 Md. 100, 11 A. 826; Cochrane v. Mayor, etc., of City or Frostburgh, 1895, 81 Md. 54, 31 A. 703, 27 L.R.A. 728; Keen v. Mayor, etc., of City of Havre de Grace, 1901, 93 Md. 34, 48 A. 444; Mayor, etc., of City of Hagerstown v. Klotz, 1901, 93 Md. 437, 49 A. 836, 54 L.R.A. 940; Mayor, etc., of Baltimore City v. Beck, 1903, 96 Md. 183, 53 A. 976; Mayor and City Council of City of Havre de Grace v. Fletcher, 1910, 112 Md. 562, 77 A. 114; Mayor, Counselor, and Aldermen of City of Annapolis v. Stallings, 1915, 125 Md. 343, 93 A. 974; Commissioners of Delmar v. Venables, 1915, 125 Md. 471, 94 A. 89; Mayor, etc., of City of Hagerstown v. Crowl, 1916, 128 Md. 556, 97 A. 544; Mayor, etc., of Baltimore v. Bassett, 1918, 132 Md. 427, 104 A. 39; County Commissioners of Washington County v. Gaylor, 1922, 140 Md. 375, 117 A. 864; Mayor and City Council of Baltimore v. Eagers, 1934, 167 Md. 128, 173 A. 56; Mayor and City Council of Baltimore v. Thompson, 1937, 171 Md. 460, 189 A. 822; Neuenschwander v. Washington Suburban Sanitary Commission, 1946, 187 Md. 67. 48 A.2d 593; East Coast Freight Lines, Inc. v. Mayor & City Council of Baltimore, 1948, 190 Md. 256, 58 A.2d 290, 2 A.L.R.2d 386. . Unlike some other jurisdictions, Maryland imposes no greater liabilities upon municipalities for man-made piles of natural snow and ice than for ice and snow in their natural states. See Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832. . It would be expected to do that at every point at which snow was piled on the high side of the banked curve, and photographs made shortly after the accident show snow piled on the edge of the roadway and on the shoulders. . Mayor and City Council of Cumberland v. Turney, 1939, 177 Md. 297, 9 A.2d 561. 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_issuearea
G
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. BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES, AFL-CIO, et al. v. FLORIDA EAST COAST RAILWAY CO. No. 750. Argued April 20, 1966. Decided May 23, 1966. Neal Rutledge argued the cause for petitioners 'in No. 750. With him on the briefs were Lester P. Schoene and Allan Milledge. Paul Bender argued the cause for the United States in Nos. 782 and 783, pro hoc vice, by special leave of Court. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Douglas and David L. Rose. William B. Devaney argued the cause for respondent in Nos. 750 and 782, and for petitioner in No. 783. With him on the briefs was George B. Mickum III. Briefs of amici curiae, urging reversal, were filed by Gregory S. Prince, Jonathan C. Gibson and C. George Niebank, Jr., for the Association of American Railroads, and by Clarence M. Mulholland, Edward J. Hickey, Jr., and James L. Highsaw, Jr., for the Railway Labor Executives’ Association. Together with No. 782, United States v. Florida East Coast Railway Co., and No. 783, Florida East Coast Railway Co. v. United States, also on certiorari to the same court. Mr. Justice Douglas delivered the opinion of the Court. This controversy started with a union demand on behalf of the nonoperating employees for a general 25-cent-per-hour wage increase and a requirement of six months’ advance notice of impending layoffs and abolition of job positions. The demand was made of virtually all Class I railroads, including Florida East Coast Railway Co. (hereinafter called FEC). The dispute underwent negotiations and mediation as required by the Railway Labor Act. When those procedures proved unsuccessful, a Presidential Emergency Board was created under § 10 of the Act, which after hearings recommended a general pay increase of about 10 cents per hour and a requirement of at least five days’ notice before job abolition. In June 1962, this settlement was accepted by all the carriers except FEC. Thereupon, further mediation was invoked under the Act but again no settlement was reached. The Act makes no provision for compulsory arbitration. Section 5 First does, however, provide for voluntary arbitration at the suggestion of the National Mediation Board. The suggestion was made but both the unions and FEC refused. Further negotiations were unsuccessful and on January 23, 1963, the nonoperating unions struck. When that happened, most operating employees refused to cross the picket lines. FEC shut down for a short period; and then on February 3, 1963, resumed operations by employing supervisory personnel and replacements to fill the jobs of the strikers and of those operating employees who would not cross the picket lines. FEC made individual agreements with the replacements concerning their rates of pay, rules and working agreements on terms substantially different from those in the outstanding collective bargaining agreements with the various unions. Thereafter, FEC proposed formally to abolish all the existing collective bargaining agreements and to substitute another agreement -that would make rather sweeping departures in numerous respects from the existing collective bargaining agreements. Negotiations between FEC and the unions broke down. The unions then invoked the mediation services of the National Mediation Board relative to the proposed changes, but the carrier refused. The unions thereafter agreed to submit the underlying dispute — the one concerning wages and notice — to arbitration. But FEC refused arbitration and shortly thereafter established another new agreement by unilateral action and operated under it until the present action was instituted by the United States in 1964 — a suit charging that the unilateral promulgation of the new agreement violated the Act. The nonoperating unions intervened as plaintiffs and hearings were held. Meanwhile, the Court of Appeals decided Florida East Coast R. Co. v. Brotherhood of R. Trainmen, 336 F. 2d 172, a parallel injunctive suit brought against FEC by an operating union and similarly complaining of FEC’s unilateral promulgation of the new agreement. That court held that FEC had violated the Act by its unilateral abrogation of the existing collective bargaining agreements. It ruled, however, that FEC could unilaterally institute such changes in its existing agreements as the District Court found to be “reasonably necessary to effectuate its right to continue to run its railroad under the strike conditions.” 336 F. 2d, at 182. The District Court thereafter entered injunctions in the Trainmen case, and in the present case, requiring FEC to abide by all the rates of pay, rules, and working conditions specified in the existing collective bargaining agreements until the termination of the statutory mediation procedure “except upon specific authorization of this Court after a finding of reasonable necessity therefor upon application of the FEC to this Court.” Thereupon FEC filed an application for approval of some departures from its existing agreements with its nonoperating unions. The District Court, after hearings, granted some requests and denied others. Thus it permitted FEC to exceed the ratio of apprentices to journeymen and age limitations established by the collective bargaining agreements, to contract out certain work, and to use supervisory personnel to perform certain specified jobs where it appeared that trained personnel were unavailable. The District Court denied FEC’s request that it be permitted to disregard completely craft and seniority district restrictions, that it be allowed to use supervisors to perform craft work whenever it desired, that it be relieved of the duty to provide seniority rosters,, that it be permitted to contract out work whenever trained personnel were unavailable, and that the union shop be declared void and unenforceable as to employees hired after January 23, 1963. Both sides appealed. The Court of Appeals affirmed on the basis of its decision in the Trainmen case. 348 F. 2d 682. The unions, the United States, and FEC each petitioned for a writ of certiorari which we granted. 382 U. S. 1008. The controversy centers around § 2 Seventh of the Act, which provides: “No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.” The demand for a 25-cent-per-hour wage increase and for six months’ advance notice of impending layoffs and job abolitions was a major dispute covered by § 2 Seventh (Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 723) and it had proceeded through all the major dispute procedures required by the Act without settlement. The unions, having made their demands and having exhausted all the procedures provided by Congress, were therefore warranted in striking. For the strike has been the ultimate sanction of the union, compulsory arbitration not being provided. At that juncture self-help was also available to the carrier as we held in Locomotive Engineers v. Baltimore & Ohio R. Co., 372 U. S. 284; 291: “. . . both parties, having exhausted all of the statutory procedures, are relegated to self-help in adjusting this dispute . . . .” The carrier’s right of self-help is underlined by the public service aspects of its business. “More is involved than the settlement of a private controversy without appreciable consequences to the public.” Virginian Ry. v. Federation, 300 U. S. 515, 552. The Interstate Commerce Act, 24 Stat. 379, as amended, places a responsibility on common carriers by rail to provide transportation. The duty runs not to shippers alone but to the public. In our complex society, metropolitan areas in particular might suffer a calamity if rail service for freight or for passengers were stopped. Food and other critical supplies might be dangerously curtailed; vital services might be impaired; whole metropolitan communities might be paralyzed. We emphasize these aspects of the problem not to say that the carrier’s duty to operate is absolute, but only to emphasize that it owes the public reasonable efforts to maintain the public service at all times, even when beset by labor-management controversies and that this duty continues even when all the mediation provisions of the Act have been exhausted and self-help becomes available to both sides of the labor-management controversy. If all that were involved were the pay increase and the notice to be given on layoffs or job abolition, the problem would be simple. The complication arises because the carrier, having undertaken to keep its vital services going with a substantially different labor force, finds it necessary or desirable to make other changes in the collective bargaining agreements. Thus we find FEC in this case anxious to exceed the ratio of apprentices to journeymen and the age limitations in the collective bargaining agreements, to make changes in the contracting-out provisions, to disregard requirements for trained personnel, to discard craft and seniority restrictions, the union shop provision, and so on. Each of these technically is included in the words “rules, or working conditions of its employees, as a class as embodied in agreements” within the meaning of § 2 Seventh of the Act. It is, therefore, argued with force that each of these issues must run the same gantlet of negotiation and mediation, as did the pay and notice provisions that gave rise to this strike. The practical effect of that conclusion would be to bring the railroad operations to a grinding halt. For the procedures of the Act are purposely long and drawn out, based on the hope that reason and practical considerations will provide in time an agreement that resolves the dispute. If, therefore, § 2 Seventh is applicable after a lawful strike has been called and after lawful self-help has been invoked by the carrier, the right of self-help might well become unilateral to the workers alone, and denied the carrier. For when a carrier improvises and employs an emergency labor force it may or may not be able to comply with the terms of a collective bargaining agreement, drafted to meet the sophisticated requirements of a trained and professional labor force. The union remains the bargaining representative of all the employees in the designated craft, whether union members or not. Steele v. Louisville & N. R. Co., 323 U. S. 192. All these employees of the railroad are entitled to the benefits of the collective bargaining agreement, and the carrier may not supersede the agreement by individual contracts even though particular employees are willing to enter into them. See Telegraphers v. Ry. Express Agency, 321 U. S. 342, 347. But when a strike occurs, both the carrier’s right of self-help and its duty to operate, if reasonably possible, might well be academic if it could not depart from the terms and conditions of the collective bargaining agreement without first following the lengthy course the Act otherwise prescribes. At the same time, any power to change or revise the basic collective agreement must be closely confined and supervised. These collective bargaining agreements are the product of years of struggle and negotiation; they represent the rules governing the community of striking employees and the carrier. That community is not destroyed by the strike, as the strike represents only an interruption in the continuity of the relation. Were a strike to be the occasion for a carrier to tear up and annul, so to speak, the entire collective bargaining agreement, labor-management relations would revert to the jungle. A carrier could then use the occasion of a strike over a simple wage and hour dispute to make sweeping changes in its work-rules so as to permit operation on terms which could not conceivably have been obtained through negotiation. Having made such changes, a carrier might well have little incentive to reach a settlement of the dispute that led to the strike. It might indeed have a strong reason to prolong the strike and even break the union. The temptation might be strong to precipitate a strike in order to permit the carrier to abrogate the entire collective bargaining agreement on terms most favorable to it. The processes of bargaining and mediation called for by the Act would indeed become a sham if a carrier could unilaterally achieve what the Act requires be done by the other orderly procedures. While the carrier has the duty to make all reasonable efforts to continue its operations during a strike, its power to make new terms and conditions governing the new labor force is strictly confined, if the spirit of the Railway Labor Act is to be honored. The Court of Appeals used the words “reasonably necessary.” We do not disagree, provided that “reasonably necessary” is construed strictly. The carrier must respect the continuing status of the collective bargaining agreement and make only such changes as are truly necessary in light of the inexperience and lack of training of the new labor force or the lesser number of employees available for the continued operation. The collective bargaining agreement remains the norm; the burden is on the carrier to show the need for any alteration of it, as respects the new and different class of employees that it is required to employ in order to maintain that continuity of operation that the law requires of it. Affirmed. Mr. Justice Fortas took no part in the consideration or decision of these cases. § 6, 44 Stat. 582, as amended, 48 Stat. 1197, 45 U. S. C. § 156 (1964 ed.); § 5 First, 44 Stat. 580, as amended, 48 Stat. 1195, 45 U. S. C. § 155 First (1964 ed.). 44 Stat. 586, as amended, 48 Stat. 1197, 45 U. S. C. §160 (1964 ed.). 44 Stat. 580, as amended, 48 Stat. 1195, 45 U. S. C. § 155 First (1964 ed.). We have no doubt that the United States had standing to bring this action. Section 2 Tenth, 48 Stat. 1189, 45 U. S. C. § 152 Tenth (1964 ed.), makes it the duty of the United States attorney to “institute in the proper court and to prosecute ... all necessary proceedings for the enforcement” of § 2 (emphasis added) which FEC is here charged with violating. See United States v. Republic Steel Corp., 362 U. S. 482, 491-492. 48 Stat. 1188, 45 U. S. C. §152 Seventh (1964 ed.). 49 U. S. C. § 1 (4) (1964 ed.) provides in part: “It shall be the duty of every common carrier subject to this chapter to provide and furnish transportation upon reasonable request therefor, and to establish reasonable through routes with other such carriers, and just and reasonable rates, fares, charges, and classifications applicable thereto; . . .” 49 U. S. C. §1 (11) (1964 ed.) provides in part: “It shall be the duty of every carrier by railroad subject to this chapter to furnish safe and adequate car service and to establish, observe, and enforce just and reasonable rules, regulations, and practices with respect to car service; . . .” 49 U. S. C. §8 (1964 ed.) provides in part: “In case any common carrier subject to the provisions of this chapter shall do, cause to be done, or permit to be done any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter . . . .” In this connection, it bears emphasis that the District Court’s authorization to deviate in part from the collective bargaining agreement would, as FEC readily concedes, terminate at the conclusion of the strike. At that time, the terms of the earlier collective bargaining agreement, except as modified by any new agreement of the parties, would be fully in force. If FEC had precipitated the strike by refusing to arbitrate, then it would be barred by Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, from obtaining injunctive relief in the courts since it would have failed to make “every reasonable effort” to settle the dispute within the meaning of §8 of the Norris-LaGuardia Act, 47 Stat. 72, 29 U. S. C. § 108 (1964 ed.). And we assume that seeking relief from provisions of the collective bargaining agreements would have fallen under the same ban. But in the instant ease both FEC and the unions refused voluntary arbitration and the strike followed. Later the unions changed their mind and agreed to arbitration, FEC refusing. But by then the strike was on and the right to “self-help” had accrued. If an issue concerning the good faith of a party in refusing a pre-strike opportunity to arbitrate were presented, different considerations would apply. Moreover, since the justification for permitting the carrier to depart from the terms of the collective bargaining agreement lies in its duty to continue to serve the public, a district court called upon to grant a carrier’s relief from provisions of the collective bargaining agreement should satisfy itself that the carrier is engaged in a good-faith effort to restore service to the public and not, e. g., using the strike to curtail that service. 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_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. PROVIDENCE JOURNAL CO. v. BRODERICK, Collector of Internal Revenue. No. 3429. Circuit Court of Appeals, First Circuit. June 13, 1939. Harold B. Tanner, of Providence, R. I. (Tillinghast, Collins & Tanner, of Providence, R. I., on the brief), for appellant. John R. Gage, Sp. Asst, to Atty. Gen. (James W. Morris, Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and Lester L. Gibson, Sp. Assts. to Atty. Gen., and J. Howard McGrath, U. S. Atty., and George F. Troy, Asst. U. S. Atty., both of Providence, R. I., on the brief), for appellee. Before WILSON, Circuit Judge, and PETERS and SWEENEY, District Judges. PETERS, District Judge. The Providence Journal Company, plaintiff, appellant, brought a suit against the defendant, appellee, as Collector of Internal Revenue, to recover some nine thousand dollars assessed as a deficiency in the plaintiff’s income tax payment for the year 1933. The assessment resulted from the Commissioner’s refusal to permit the plaintiff to take as a loss the undepreciated value of certain buildings it voluntarily demolished- in 1933. Judgment for defendant was given in the District Court and the case is here on appeal from that judgment. The question presented is whether the plaintiff, appellant, under the circumstances shown, was entitled to the deduction it claimed. The applicable provisions of law are Section 23(f) of the Revenue Act of 1932, 26 U.S.C.A. § 23(f), and Article 172 of Regulations 77 promulgated under that Act. There is little or no dispute about the facts, which, in the main, were stipulated. The District Court made certain other findings, clearly warranted by the evidence, and the plaintiff asks us to consider still other alleged facts, not included in the District Court’s findings, which the plaintiff deems deducible from the evidence, and which we have considered in arriving at our conclusion. It appears that the plaintiff, publisher of a newspaper in the City of Providence, deeming its facilities inadequate, in October, 1925, bought certain land with buildings thereon in that city with the avowed and recorded purpose of clearing the land of the buildings and erecting a new structure adapted to requirements of the business, as soon as certain leases on the property had expired. The purpose that the officers . and directors of the company had in mind in making the purchase is clearly shown by written evidence. The minutes of the Board of Directors, under date of October 8, 1925, contain the following entry: “The future need of more ample space for our continued growth has long been recognized, and informally discussed at meetings of the directors. In line with this sentiment the president, after conference with the directors, purchased for the company the entire block with buildings thereon, bounded. * * * ” The action of the officers was approved on February 3, 1926, as shown by the vote of the Directors when express approval was voted, and a reserve of $100,000 was set up toward a new building. Additional reserves were set up from time to time, for the same purpose, up to and including 1931, and in May of that year the Treasurer of the Company made affidavit that, “This real estate was obtained for the express purpose of clearing the land and erecting a new building at the expiration of the lease then in force, which had a period of 104 months to run.” In June, 1931, in a letter by the Company protesting additional assessments, it was stated in substance that when the property was purchased it was decided, “To purchase the property but to postpone the erection of a new building until May 31, 1934, the date upon which the leases on the old buildings would expire.” Cancellation of the leases as a result of the business depression enabled the Company to begin demolition of the old buildings in May, 1933, somewhat earlier than anticipated. The Company paid for the buildings and land $535,000. Of this purchase price the Company allocated $129,491 to the buildings. This sum was increased by improvements to $132,274, and, at the time of the demolition of the buildings to make room for the new structure, the undepre-ciated balance of. the cost of the buildings was fairly represented by the $67,028 which the plaintiff company claimed was its actual loss sustained in 1933, “not compensated for by insurance or otherwise”. The property purchased, subject to certain leases, did not adjoin the newspaper plant operated by the company at the time of the purchase, but was several blocks removed therefrom. The following findings are included among those made by the District Court [25 F.Supp. 940, 942]: “(2) That the plaintiff, at the time of the purchase of the parcel of land known as the ‘Fountain Street property’, upon which were situated buildings varying in age from twenty to forty years, intended to demolish the said buildings, since the purchase was made for the primary purpose of erecting a new and' modern home for itself upon obtaining possession of the property. “(3) That the plaintiff carried out the purpose of the purchase and at the date of the demolition of the buildings the un-depreciated value thereof was $67,028.91.” The court held that — ■ “It is the intention of the taxpayer which governs. At the time the plaintiff purchased the property demolition of the buildings was contemplated. It acquired the site with the definite intention of removing the buildings. The undepreciated value of the buildings destroyed became a part of the plaintiff’s capital investment.” Article 172 of Regulations 77 is as follows : “Art. 172. Voluntary Removal of Buildings. — Loss due to the voluntary removal or demolition of old buildings, the scrapping of old machinery equipment, etc., incident to renewals and replacements will be deductible from gross income. When a taxpayer buys real estate upon which is located a building, which he proceeds to raze with a view to erecting thereon another building, it will be considered that the taxpayer has sustained no deductible loss by reason of the demolition of the old building, and no deductible expense on account of the cost of such removal, the value of the real estate,, exclusive of old improvements, being presumably equal to the purchase price of the land and building plus the cost of removing the useless building.” The Statute, Section 23(f) provides that “In computing net income there shall be allowed as deductions * * * losses sustained during the taxable year ‘ and not compensated for by insurance or otherwise.” The plaintiff argues that the word “intention” does not appear in either the statute or in the Article above quoted. That is true, but a dispute arose from the plaintiff’s claim that it sustained a loss. The loss claimed was in the destruction of buildings. A loss is “the unintentional parting with something of value”. (Webster.) Whether the plaintiff parted with its buildings intentionally or otherwise is necessarily the most important factor in determining whether it really sustained a loss. The intention at the time of the purchase fixes the nature of the transaction. The taxpayer here desired to buy a certain lot for the erection of a new building. To get the lot it was necessary to take the buildings on it. After the land had been cleared, at the commencement of the new construction which the taxpayer had in view from the beginning, the lot stood the taxpayer the cost of the land and buildings plus the cost of removing the then useless buildings. The presumption of the Regulation was an actuality. There is no conflict with the statute and no constitutional question involved. The earnest contention of the plaintiff that it is not the intention of the taxpayer that governs the question of loss in such a case cannot be sustained. Nor is it in harmony with other decisions. In interpreting this regulation the Circuit Court of Appeals in the Seventh Circuit, in the case of Union Bed & Spring Co. v. Commissioner, 39 F.2d 383, 385, uses, the following language, with which we agree: “We think the true test, in this and similar cases, is the intention of the taxpayer. If he intends, at the time of purchase, to demolish and rebuild, then the cost of so doing must be considered as part of capital investment, which is consistent with the statute and the regulation.” In Liberty Baking Co. v. Heiner, 37 F.2d 703, 704, the court in the Third Circuit says: “The court in its findings and conclusions held that this item was not a deductible loss. The court found that the property, as it stood, was bought for the purpose of enlarging the plant. That there was no loss sustained because the demolition which was in contemplation at the time the property was bought. The court concluded that this situation was directly covered by article 142 of Regulation 45, to the effect that, when a taxpayer buys real estate upon which is located a building which he proceeds to raze in view of erecting another, it will be considered that the taxpayer has sustained no deductible loss by reason of the demolition of the old building, and no deductible expenses on account of the cost of removal; that the value of the real estate, exclusive of old improvements, is presumably equal to the purchase price of the land and building, plus the cost of removal of the old. While the razing of the buildings in this case was somewhat deferred, we think the conclusion of the court was correct.” Louis Pizitz Dry Goods Co. v. Commissioner, 22 B.T.A. 161; Lansburg & Bro., Inc., v. Commissioner, 23 B.T.A. 66. Counsel for plaintiff points to the value allocated to these buildings when purchased and says that the court must not look beyond the consideration involved in the purchase and the extinction of value when the buildings were demolished. But the value of the buildings when purchased and’ the fact that they were producing a fair return on the allocated value is immaterial. They were nevertheless useless when the taxpayer carried out its intention involving their destruction. The remaining undepreciated value of the buildings, when destroyed, became a part of the plaintiff’s capital investment. Lansburgh & Bro., Inc., v. Commissioner, 23 B.T.A. 66; The plaintiff in a supplemental memorandum calls attention to an alleged untenable position of the defendant, mention-e«l in its brief to the effect that the unde-preciated balance of cost of the demolished buildings could be added to the cost of the new building and depreciated over its life. That, however, is not important in connection with this decision, which we have not based on any theory that the cost of the old buildings could be absorbed by depreciation of the new. Quite the contrary. We conclude that the ruling of the District Court was correct, and the judgment must be affirmed with costs. The judgment of the District Court is affirmed with costs. 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_genresp1
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 first listed respondent. KLABER et al. v. LAKENAN et al. No. 9584. Circuit Court of Appeals, Eighth Circuit. March 2, 1933. Rehearing Denied March 25, 1933. Leland Hazard, of Kansas City, Mo. (Maurice H. Winger, Joseph T. Owens, and Winger, Reeder, Barker, Gumbiner & Hazard, all of Kansas City, Mo., on the brief), for appellants. Ellison A. Noel, of Kansas City, Mo. (A. L. Cooper, Frank J. Rogers, and Cooper, Neel, Kemp & Sutherland, all of Kansas City, Mo., on the brief), for appellees. Before KENYON, GARDNER, and SANBORN, Circuit Judges. KENYON, Circuit Judge. This is a suit in equity, commenced by -one Samuel Marcus Fechheirner against Robert F. Lakenan and Kansas City Operating Corporation, to enjoin the maintenance of a metal canopy and signs claimed to be obstructions to plaintiff’s right to light, air, and the view to and from his business property in the city of Kansas City, Mo. Since the submission of the case appellant (plaintiff in the trial court) has died, and his administrator, Fred W. Klaber, and his widow, Alice S. Feehheirner, have been substituted as appellants. Parties will be designated as in the trial court. Plaintiff ivas the owner of a lot and a two-story business building thereon abutting on the west side of Main street about one-half block north of Eleventh street in Kansas City, Mo. This property is in the retail district. Main street runs in a northerly and southerly direction. Defendant Lakenan is the fee owner of a plot of ground and a theater building thereon south of and adjacent to plaintiff’s property, known as the Royal Theater. The Kansas City Operating Corporation holds the property under a ninety-nine year lease. It operates a motion picture theater in the premises. Plaintiff’s property is leased to the Robinson Shoe Company for the purpose of a retail shoe store under a lease dated July 1, 1923, running for twenty years. This suit was instituted on September 30, 1927, and at that time defendants were maintaining a marquee or metal canopy extending the entire width of the frontage of their property, and projecting into the street a distance of several inches beyond the outer edge of the sidewalk. This canopy was constructed of' heavy iron work, supported by chains. Its height' above the sidewalk was about ten feet, and its vertical section is about three feet in depth. Also defendants were maintaining a large electric sign projecting at right angles from the front of defendants’ property above the canopy fifteen feet or more, with a height from top to bottom of approximately six feet. There was another electric sign of approximately the same size projecting at right angles from the front of the building into the street about the same distance, which was above the first-mentioned sign, and was used to advertise the name of the motion picture theater, while the lower sign was used to advertise current attractions at the theater. Prior to the institution of the suit the Kansas City Operating Corporation erected upon and above the permanent canopy at various times temporary signs advertising .current attractions. This practice the court found had ceased before the institution of this suit. During the pen-dency of this suit defendants removed the two signs and replaced them with a single large vertical sign bearing the name of the theater, “Royal,” which arose to a height of some fifty-six feet above the street. The sign is thirty-three feet high and five feet and one inch wide, and projects out from the face of the building a distance of some nine feet. Defendants also placed some permanent metal signs to be used for advertising attractions upon the three faces of the permanent canopy. The vertical sign and the other signs on the faces of the canopy are illuminated by éleetrie lighting ' devices, while flood lights are maintained in the top of the canopy for the illumination of the entire front of the theater building. The Kansas City Operating Corporation purchased the theater and leasehold interest July 15,1926, paying therefor $250,000. The canopy and horizontal electric signs had been erected ten years before with permission of the city of Kansas City. The fact of their existence entered into the consideration for the purchase of the leasehold interest. There is some question as to just what authority was granted for the change in the signs. Feehheimer purchased his property in May, 1923. He paid therefor some $297,000, and immediately leased the same to the Robinson Shoe Company a.t an annual rental of $18,456. At the time of his purchase Feehheimer was holding the property under a lease from the owner, which ran until 1928, and was paying a rental of $13,680 per year. For seven years before Feehheimer purchased this property defendants’ predecessor in title was operating the Royal Theater and maintaining the canopy and the original electric sign under authority of a city ordinance and building permit. No complaint was made concerning the erection or maintenance of the canopy or sign prior to Kansas City Operating Corporation’s purchase of the theater or in fact until March, 1927. The first floor of the Feeh-heimer Building has show windows and some signs indicating the nature of the tenant’s business. Above the first floor are two signs laid flat against the building. The • first, which is at the dividing line between the first and second floors, is in the words, “Robinson Shoe Company.” • The second is in the words, .“The Big Shoe Store.” These are large lettered signs extending across the- entire front of the building. There are no window displays on the second floor. The Robinson Shoe Company maintains a wooden canopy and a canvas awning, which awning when extended “completely shuts off the view of-adjacent' building fronts from persons 'under or approaching the awning.” The Robinson Shoe Company ha.d two lighted show eases that extended out on the sidewalk two and one-half to three feet, and were about four and one-half feet high. They were removed just prior to the trial. Plaintiff’s complaint was that the canopy and signs obstructed a view of his store building from the street, especially from the intersection at Eleventh and Main-streets, yhich is known as the heart of the retail shopping district in Kansas City; that as owner of the building he was entitled to an easement or right to light, air, and view from-, the street appurtenant to the property; and that defendants are interfering therewith". The trial court filed an opinion (2 F. Supp. 785) -and made findings of fact and announced a conclusion of law. It held that plaintiff was not entitled to the equitable relief demanded and dismissed the bill. The court found that the canopy and signs had no effect whatever in intercepting a view of the first floor of plaintiff’s building from the street so far as its display windows were concerned; that the only direct effect caused by the canopy and signs upon the view of anything on plaintiff’s building which advertised the business carried on therein was with respect to the two signs, and as to that stated : “As to the two upper signs on plaintiff’s building the view of them is cut off by the canopy and signs above and around the canopy from only a few points from which otherwise they would he visible. Being flat against the building it is obvious that they aro best seen from in front or from across the street. This view is in no way or only to the very slightest extent obstructed. The pedestrian proceeding northward on the same side of the street as plaintiffs building could not seo tho two signs on that building if the theater canopy and signs were entirely absent until he was within a few feet of the building. For a short distance after otherwise he could see these signs his view of them is cut off by the canopy, but in that distance in which his view is ini ereepted he has a full and uninterrupted view of the plaintiffs first floor show windows, of the displays therein, and of ihe.electric and metal signs on and about ihe windows.” He refers to the fact that such pedestrian could have seen the lighted showcases advertising the business conducted in the plaintiff’s building set out in front of the plaintiff’s building by the tenant. The court also refers to the fact that there are many canopies of similar nature on Main street, which have electric signs around them and above them; that nearly every place of business on the street has an a.wning reaching out over about one-third of the width of the sidewalk. There was conflicting evidence in the ease as to tho effect of the alleged obstruction of view upon the rental value of plaintiff s property. Of course, rentals have increased in Kansas City since the canopy and signs were erected, and as the court says, “Since many elements enter into rental value, that fact may not be said conclusively to negative plaintiffs contention in this regard.” There was evidence that from the second floor of plaintiff’s building the prospect outward and southward was intercepted somewhat by the corporate defendant’s canopy and sign. As to this the court said: “It was quite clear, however, that that fact was of no practical at least of no present practical significance.” Many pictures were introduced in evidence showing the situation at various times with reference to the canopy and signs temporary and permanent. The trial court made findings of fact. We hero set out some of them: “7. I find the fact to be that the northward view of that part of the Robinson Shoo Store which is above the show windows on the first floor thereof of pedestrians on Main street who may be south of the Robinson Shoo Store arid of others than pedestrians who may be south of the Robinson Shoe Store to some extent is interfered with and obstructed by tho canopy and signs in front of the Royal Theater. And I find the fact to be that the view southward along the west side of Main street of persons on the second floor thereof also to some extent is interfered with and obstructed by the canopy and signs aforesaid. And f find the fact to he that the canopy and signs do not at all obstruct the view of the first floor show windows of the Robinson Shoe Store. “8. I find the fact to be that while the view of persons on Main street who are south of the Robinson Shoe Store is as to the second story of that store and signs thereon somewhat and from certain points intercepted as aforesaid by the canopy and signs in front of the Royal Theater that interception of view is immaterial and insubstantial. I find also that the prospect from the second floor of plaintiff’s building is intercepted only immaterially and insubstantially. The view of the second floor signs on plaintiff’s building from the sidewalk on the opposite side of the street is not intercepted except to a most immaterial extent, nor is the view of persons on the roadway intercepted except also to tho most immaterial extent. The view of persons on tho sidewalk on the same side of the street as the plaintiff’s building is intercepted by the canopy and signs, as such persons proceed northward on that sidewalk, for a distance of noL more than one hundred and fifty feet or as they immediately approach and as they pass under the canopy. During all the time that tho view of upper signs on plaintiff’s building is thus intercepted ibe first floor show windows in plaintiff’s building and the signs thereon and thereabout are in full and unobstructed view. “9. I find tho fact to be that the rental value of plaintiff’s property has not boon and is not decreased by reason of the canopy and signs on the theater building referred to in evidence.” The findings of fact seem to give a very clear picture of the situation. The trial court evidently gave very close attention to the facts in this ease, and made a personal inspection of the property and its surroundings in the daytime and at night to study the extent of the obstruction to the view of plaintiff’s building caused by the signs and the canopy. The findings of fact made in an equity proceeding are of course not conclusive on an appellate court, hut where there is conflicting evidence they are regarded as presumptively correct and will not be disturbed unless a serious mistake of fact appears. That is the rule of this court. Fay v. Hill (C. C. A.) 249 F. 415; Ridge v. Healy (C. C. A.) 251 F. 798; Hamlin v. Grogan (C. C. A.) 257 F. 59; Conklin v. Tom C. Mining Co. (C. C. A.) 277 F. 807; Public Ledger Co. v. Post Printing & Publishing Co. (C. C. A.) 294 F. 430; Coats v. Barton (C. C. A.) 25 F.(2d) 813; Karn v. Andresen (C. C. A.) 60 F.(2d) 427. Upon and in accordance with the findings of fact the court made the following conclusion of law: “I declare the law to be that the owner of a building abutting on a public street and used for retail business purposes has. an easement of light, air, view, and prospect which may not lawfully be impaired by an adjoining owner through the erection in the street for private purposes of a canopy or sign and that he is entitled to relief in equity by injunction against the continued maintenance of any such canopy or sign, whether or not permitted by the municipal authorities, which seriously or materially interferes with the free access of light or air or obstructs the view of or prospect from his building to his damage, but that he is not entitled to equitable relief by injunction against an obstruction of the nature mentioned which only insubstantially and immaterially intercepts light, air, view, or prospect without present pecuniary damage to him and I declare that under these principles and upon the facts of this ease the plaintiff is not entitled to the equitable relief of injunction.” That the abutting owner of a lot on a public street has an easement of light and air therefrom and unimpeded egress from and access to it is unquestioned. Not all the courts or writers agree that he has the same easement as to view of his property. In 13 Ruling Case Law, p. 234, § 196, it is said: “There is conflict as to whether or not the view of a building from the street on which it stands, when considered with reference to its value as the means of attracting the attention of passers-by in the street to goods displayed in the windows, is an easement of such nature as to entitle the owner or tenant of the building to the protection of a court of equity. Some courts, hold that interference with the easement of view under such circumstances constitutes special damage which will entitle the owner of the building to an injunction while others deny the right to injunctive relief.” The question of light, air, egress, or access easement is not in this case. The question is one of the right to view. Probably the most quoted ease on the subject is First National Bank of Montgomery v. Tyson, 133 Ala. 459, 32 So. 144, 59 L. R. A. 399, 91 Am. St. Rep. 46; Id. 144 Ala. 457, 39 So. 560, where it is held that an easement or view from every part of the public street belongs to one owning property abutting on the street and will be protected by the courts against illegal encroachments. Another leading case on the subject is Bischof v. Merchants National Bank, 75 Neb. 838, 106 N. W. 996, 5 L. R. A. (N. S.) 486, where the court takes the same position as to an easement. In a note to this case in 5 L. R. A. (N. S.) 486 the commentator states: “Whether or not the view of a building from the street on which it stands, when considered with reference to its value as the means of attracting the attention of passers-by in the street to goods displayed in the windows, is an easement of such nature as to entitle the owner or tenant of the building to the protection of a court of equity, is a question upon which there is an irreconcilable difference of opinion. Nor can it be said that the weight of authority is with either side, though there would seem to be a growing tendency, at least among the latest decisions of the courts in this country, to hold with Bischof v. Merchants Nat. Bank. Accordingly, it has been held that an easement of -view from every part of a public street into a building on the street, affording the opportunity of attracting customers by a display of goods, is a valuable right, and even one implied in the dedication of the street, or which the owner cannot be deprived by an encroachment on the street by an adjoining proprietor, and that an injunction would lie to prevent such encroachment.” As sustaining the theory of easement as to view from a public street as well as light and air, see Dill v. Board of Education of Camden, 47 N. J. Eq. 421, 20 A. 739, 10 L. R. A. 276; Village of Port Clinton v. Fall, 99 Ohio St. 153, 124 N. E. 189; Anthony Carlin Co. v. Halle Bros. Co. et al., 23 Ohio App. 115, 155 N. E. 398; World Realty Co. v. City of Omaha, 113 Neb. 396, 203 N. W. 574, 40 A. L. R. 1313; Davis v. Spragg, 72 W. Va. 672, 79 S. E. 652, 48 L. R. A. (N. S.) 173; Field v, Barling, 149 Ill. 556, 37 N. E. 850, 24 L. R. A. 406, 41 Am. St. Rep. 311; Townsend v. Epstein, 93 Md. 537, 49 A. 629, 52 L. R. A. 409, 86 Am. St. Rep. 441; Brown-Brand Realty Co. v. Saks & Co., 126 Misc. 336, 214 N. Y. S. 230; Williams v. Los Angeles Ry. Co., 150 Cal. 592, 89 P. 330; Perry v. Castner, 124 Iowa 386, 100 N. W. 84, 66 L. R. A. 160, 2 Ann. Cas. 363. Oases practically holding' that there is no casement as to view from the street of the building and that no damages can he recovered for its obstruction are Garrett v. Janes, 65 Mo. 260, 3 A. 597 (which is criticized in Dillon on Corporations [5th Ed.] vol. 3, § 1184); Stroup v. Rauschelbach, 217 Mo. App. 236, 261 S. W. 346. The decided weight of authority as well as sound reason is in favor of the proposition that an abutting owner of propei-ly on a public highway has the easement, not only of light, air, and access, but of a reasonable view of his property from such public street. The permission of a city council to erect an obstruction thereto is no defense where the rights of a property owner have been infringed. A city cannot consent that the owner of one lot may appropriate portions of the street in front of his neighbor’s property, or so use the street in front of his own property as l.o substantially injure his neighbor’s prop-arty. The real question here is whether the circumstances presented are such as to warrant equitable relief by injunction. To grant it in case of a public nuisance there must he some special injury to the plaintiff peculiar to him aside from and independent of the general injury to the public. Lewis v. Pingree Nat. Bank, 47 Utah, 35, 151 P. 558, L. R. A. 1916C, 1260; Coombs v. Fuller (Mo. App.) 228 S. W. 870; Lademan v. Lamb Const. Co. (Mo. App.) 297 S. W. 181; Bischof v. Merchants Nat. Bank, 75 Neb. 838, 106 N. W. 996, 5 L. R. A. (N. S.) 486; Field v. Barling, supra; Townsend v. Epstein, supra; Newman v. City of Marceline, 222 Mo. App. 980, 6 S.W.(2d) 659: Elliott Roads & Streets (3d Ed.) § 850. The special injury claimed is the obstruction of the view of plaintiffs building from the street. Not every obstruction to view from a highway would bring; a case within equitable jurisdiction and warrant the issu.meo of the extraordinary writ of injunction, it must appear that the obstruction to view is not merely slight, but that it is so substanial as to result in serious injury and damage to the property. Close in point is Davis v. Spragg, 72 W. Va. 672, 79 S. E. 652, 48 L. R. A. (N. S.) 173, a carefully considered case, and somewhat similar to the ease at bar. Titere the court says, page 655 of 79 S. E., 72 W. Va. 672, 48 L. R. A. (N. S.) 173: “Wo are inclined to think that these casus determine the law correctly, and that, if plaintiffs in this ease had proven that the obstruction of the view from the street to the front of their buildings seriously and injuriously affected their actual or rental value, they would have been entitled to relief. But, upon careful reading of the evidence, we think the chancellor correctly decided that they had. failed to prove any such damages. In view of the character of the nuisance complained of and the nature of the view interfered with, it being only a view from the upper window upon a portion of the sidewalk, it is an injury which we think is more fanciful than real. The maintenance by plaintiffs themselves of a similar porch over the front of their buildings, though extending not so far over the sidewalk as defendant’s poreh, is a circumstance clearly indicating that their alleged injury is without real foundation. They have no right to a view which can he enjoyed only from their own verandas, because they are unlawfully maintained and constitute a public nuisance as well as defendant’s poreh. If the obstruction of the upper windows from the view of a pedestrian in the street below is the ground of complaint, it would seem that plaintiffs are more injured by the maintenance of their own porticoes than they are by that of defendant, because a pedestrian on the sidewalk, standing in front of the Spragg building, could not read a sign in the upper windows of rather of plaintiffs’ buildings even if Spragg’s porch were not there. He would be viewing it at too great an angle; and the view from the sidewalk, immediately in front of plaintiffs’ buildings, is obstructed by their own verandas. The Spragg porch, in our opinion, does not obstruct the view of a person in the street from any point therein, from which a sign so placed could he read.” See, also, Talbott v. King, 32 W. Va. 6, 9 S. E. 48; Jenks v. Williams, 115 Mass. 217; World Really Co. v. City of Omaha, supra; Hellinger v. City of New York, 181 App. Div. 254, 168 N. Y. S. 271; Brown-Brand Realty Co. v. Saks & Co., supra; Lewis v. Pingree Nat. Bank, supra; Williams v. Los Angles Ry. Co., supra; Mint Realty Co. v. Wanamaker, 231 Pa. 277, 79 A. 514; Hay v. Weber, 79 Wis. 587, 48 N. W. 859, 24 Am. St. Rep. 737. There is no possible ground for disturbing the finding by the District Court that such obstruction as did exist had no effect on the rental value of plaintiff’s premises. The opinion testimony on this matter was of little value, but such as there was was squarely in conflict, and the District Court’s finding-should be conclusive. Plaintiff himself did not elect to testify in the matter, and there was no evidence that his tenant had asked for a reduction in rent or threatened to leave, or was complaining in any way. Such facts are of significance, see Davis et al. v. Spragg, supra, and in First Nat. Bank of Montgomery v. Tyson, supra, constituted an element of injury in the ease as made by the pleadings that is thus not present here. There was also no evidence of a decline in the volume of business done by plaintiff’s tenant since the erection of the canopy and signs, which fact would also have been of significance in determining the extent of injury. See Lewis v. Pingree Nat. Bank, supra. On the other hand, there was undisputed evidence that after the canopy and signs in their original form had been maintained a matter of several years, plaintiff first acquired the adjoining property and immediately leased it to his present tenant at a rental of $4,776 per year in excess of what it had been producing up to that time, and that such increased rental is still being paid. As plaintiff points'out, the fact of the increased rental is no doubt not due to the existence of defendants’ canopy and signs, but it is nevertheless of some significance as bearing upon the absence of any injurious effect of the canopy and signs upon the rental value of plaintiff’s premií es. It must he borne in mind that the burden of showing decreased rental value was on plaintiff, and we would clearly not be justified in reversing the District Court’s finding purely on the basis of the contradicted opinion testimony of plaintiff’s expert witnesses, which was all the evidence plaintiff adduced in the matter. In Brown-Brand Realty Co. v. Saks & Co., supra, the decision was by a court of orginal jurisdiction in which the writer of the opinion was also the trier of fact. On the basis of all the evidence and also a personal inspection of the premises that judge was of the opinion that substantial injury, including a decrease in rental value, was proved. On an exactly similar acquaintance with the facts the trial judge in the case at bar was of the opinion that substantial injury was not proved; that there was no adverse effect on rental value. Aside, therefore, from the facts of the two eases being materially different, that ease presents no controlling authority requiring reversal of the court below in the case at bar. The same may also be said of World Realty Co. v. City of Omaha et al. (Orkin et al., Interveners), supra, and Anthony Carlin Co. v. Halle Bros. Co. et al., 23 Ohio App. 115, 155 N. E. 398, which are the only other eases which seem to us at all to support plaintiff’s contention in this ease. Though the decisions therein were made on appeal, the court in each instance was clearly of the opinion that substantial injury was proved, and in the World Realty Company Case the court explicitly conceded the requirement of such injury and approved such eases as Davis et al. v. Spragg, Hay v. Weber and Mint Realty Co. v. Wanamaker, supra, all of which tend strongly to support the conclusion of the District Court in the case at bar. We deem this case a close one. As long, however, as the trial court found as a question of fact that there was no obstruction at •all to the view of the first floor show windows of the Robinson Shoe Store and that the prospect from the second floor of the building was intercepted only immaterially and insubstantially, and as we cannot say the court was clearly mistaken, the conclusion of law of the court that plaintiff was not entitled to equitable relief necessarily follows. The court was evidently impressed somewhat by the contention that even were there no present damage the situation could change, that another building might be erected by plaintiff on this site as an office building, an:l the matter of prospect become of particular significance, and that then plaintiff might be held to have lost some rights by the lapse, of time. . The court states, however, that in his judgment plaintiff would then have the right to equitable relief, and that it will not have been lost because of any claim of not being timely urged. Obviously the District Court was right in its conclusion that the mere fact of this suit having been brought will he sufficient to defeat a claim of laches greater than such as already exists. Laches is an equitable doctrine entirely distinct from the acquisition of title by prescription or limitations; and the fact of this suit having been brought is evidence that plaintiff is not now sleeping on his rights. And it is somewhat difficult to see how defendants will gain prescriptive rights, as distinguished from a defense of laches, in a public street. To avoid any misapprehension as to the scope of this decision we desire to say that the ease is determined upon the facts as to the situation existing at the time the trial court made its findings, and this opinion may be expressly stated to be without prejiidice to the bringing of another suit whenever circumstances so change that plaintiff is able to show substantial injury. Under'ehanged circumstances, the present determination will not be res adjudieata. It would be most unreasonable to enjoin an obstruction not resulting in present substantial injury because of the mere possibility that circumstances ma,y so change as to bring about, at a later time, such injury. Having considered the ease on the merits, we pass such other questions as defendants’ present claim of laches, the right of plaintiff, having leased the premises under long-term lease, to sue as owner of the reversion, and partial defenses raised by defendants that would be of significance only in the event of our having found for plaintiff on the merits. The decree of the District Court is hereby affirmed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
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. BOSTIC v. UNITED STATES No. 5250. Argued April 21, 1971 Decided May 24, 1971 Thomas C. Binkley argued the cause for petitioner. With him on the brief was Philip M. Carden. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Jerome M. Feit. Per Curiam. We granted the writ of certiorari in this case to consider whether the Court of Appeals for the Sixth Circuit had erred in holding that the petitioner had properly been convicted of conspiracy to commit murder in order to avoid apprehension for the robbery of a federally insured bank. The Court of Appeals purported to uphold a conviction for this offense, though there was no evidence that the petitioner knew of the plan to commit murder, and he had been confined in prison for several months prior to the date the murder was committed. The memorandum for the United States in opposition to the granting of the writ urged that the petitioner was “responsible for the actions of his co-conspirators in killing one member of the group/’ and as to this issue, relied on the opinion of the Court of Appeals. It now appears that these statements in the opinion of the Court of Appeals and in the memorandum of the United States were erroneous, and that the facts are not as we believed them to be at the time we granted the writ. The record shows that the petitioner was neither charged with nor convicted of the offense of conspiracy to commit murder. The conspiracy count on which the petitioner was convicted did not include any charge of conspiracy to murder. Indeed, in his closing argument to the jury the prosecutor stated that the petitioner had left the conspiracy prior to the murder, when he was returned to the penitentiary. Inasmuch as our grant of the writ of certiorari in this case was predicated on the mistaken representation that the petitioner had been convicted of the offense of conspiracy to commit murder, we now dismiss the writ as improvidently granted. It is so ordered. 400 U. S. 991. 424 F. 2d 951. The opinion recites that the conspiracy count on which the petitioner was convicted “alleged a conspiracy to rob federally insured banks with dangerous weapons and to commit murder to avoid apprehension for same.” 424 F. 2d, at 953. The court went on to say, “As to Bostic, although he had been returned to the penitentiary sometime before Ferguson’s murder, there is no evidence that he had renounced or withdrawn from the conspiracy.” 424 F. 2d, at 964. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
sc_caseorigin
094
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. MONROE v. STANDARD OIL CO. No. 80-298. Argued March 4, 1981 Decided June 17, 1981 Stewart, J., delivered the opinion of the Court, in which White, Marshall, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Brennan, Blackmun, and Powell, JJ., joined, post, p. 566. Alan I. Horowitz argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Daniel, Robert E. Kopp, Beate Bloch, Lois G. Williams, Kerry L. Adams, and William Taylor. Paul S. McAuliffe argued the cause and filed a brief for respondent. Martin J. Klaper and David L. Gray filed a brief for Cummins Engine Co., Inc., as amicus curiae urging affirmance. Justice Stewart delivered the opinion of the Court. The Court of Appeals for the Sixth Circuit concluded that 38 U. S. C. § 2021 (b) (3), a provision of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, does not require an employer to provide preferential scheduling of work hours for an employee who must be absent from work to fulfill his military reserve obligations. 613 F. 2d 641. We granted certiorari to consider the petitioner’s contention that an employer has a statutory duty to make work-scheduling accommodations for reservist-employees not made for other employees, whenever such accommodations reasonably can be accomplished. 449 U. S. 949. I In 1975 and 1976, the years pertinent to this litigation, the petitioner was a full-time employee in the respondent’s continuous process refinery in Lima, Ohio. The refinery was operated 24 hours a day, 7 days a week, 365 days a year. To insure that the burdens of weekend and shift work would be equitably divided among its employees over the course of a year, the respondent scheduled its employees to work five 8-hour days in a row weekly, but in a different 5-day sequence each week. Under the respondent’s collective agreement with its union, however, an employee could, with.the acquiescence of his foreman and if the change did not require the payment of overtime, exchange shifts with another employee. During the same period, the petitioner was a military reservist, and had to attend training with his unit one weekend a month and for two weeks each summer. On a number of weekends, the petitioner was required to attend training on days when he was scheduled to work at the refinery. Although the petitioner was able on four of these occasions to exchange shifts with other employees, he was unable to make such an exchange in most instances. The respondent provided him with leaves of absence to attend training, as 38 U. S. C. § 2024 (d) required it to do, but it did not pay him for the hours he did not work, nor did it take steps to permit him to make up those hours by working outside his normal schedule. When the petitioner was on a leave of absence and could not arrange a switch with another employee, the respondent would make arrangements to fill the vacancy created by the petitioner’s absence, arrangements often requiring the payment of overtime wages to the substitute. In 1976, the petitioner brought this action against the respondent alleging that it had violated the provisions of 38 U. S. C. §§2021 (b)(3) and 2024(d). Noting that the first of these sections provides that an employer may not deny a military reservist in his employ any “incident or advantage of employment” because of the employee’s obligations to the Reserves, and finding that “being scheduled for a full forty hour week at the [respondent’s] refinery constitutes an incident or advantage of employment,” the District Court for the Northern District of Ohio granted summary judgment to the petitioner. 446 F. Supp. 616, 618, 619. The court awarded petitioner $1,086.72 for wages lost on those “work dates when an accommodation should have been made.” Id., at 619. The Court of Appeals for the Sixth Circuit reversed. 613 F. 2d 641. First, it determined that the respondent had met the requirements of § 2024(d). It noted that this section “guarantees terms and conditions of reemployment to reservists returning from inactive duty training,” but found that “[i]t does not, however, protect reservists from discrimination by their employers between training assignments.” Id., at 643-644. Next, the Court of Appeals rejected the District Court’s interpretation of §2021 (b)(3). It held that this section “merely requires that reservists be treated equally or neutrally with their fellow employees without military obligations.” Id., at 646. The appellate court then concluded that the respondent had taken no discriminatory action that is proscribed by § 2021 (b)(3): “The requirement of equal treatment was met in the present case. The parties agreed that appellee was regularly scheduled for forty-hour workweeks, as were his fellow employees. Further, Monroe was scheduled for weekend work in accordance with Sohio’s established practice of rotating shifts to insure that all employees would work approximately an equal number of weekend days. Finally, he was treated the same as his coworkers with regard to the right to exchange shifts with other employees.” Id., at 646. II This case presents the first occasion this Court has had to address issues arising from the statutory provisions, codified at 38 U. S. C. § 2021 et seq., specifically dealing with military reservists. We have, however, frequently interpreted the somewhat analogous statutory provisions entitling the returning regular veteran to reinstatement with his “seniority, status and pay” intact, 38 U. S. C. § 2021 (a), most recently in Coffy v. Republic Steel Corp., 447 U. S. 191, and Alabama Power Co. v. Davis, 431 U. S. 581. A Statutory re-employment rights for veterans date from the Nation’s first peacetime draft law, passed in 1940, which provided that a veteran returning to civilian employment from active duty was entitled to reinstatement to the position that he had left or one of “like seniority, status, and pay.” 38 U. S. C. § 2021 (a). In 1951, in order to strengthen the Nation’s Reserve Forces, Congress extended reinstatement rights to employees returning from training duty. See Pub. L. 51, ch. 144, § 1 (s), 65 Stat. 75, 86-87. Thereafter, the Reserve Forces Act of 1955, Pub. L. 305, ch. 665, § 262 (f), 69 Stat. 598, 602, provided that employees returning from active duty of more than three months in the Ready Reserve were entitled to the same employment rights as inductees, with limited exceptions. In 1960, these re-employment rights were extended to National Guardsmen, Pub. L. 86-632, 74 Stat. 467. See 38 U. S. C. § 2024 (c). In addition, a new section, now codified at 38 U. S. C. § 2024 (d), was enacted in 1960 to deal with problems faced by employees who had military training obligations lasting less than three months. This section provides that employees must be granted a leave of absence for training and, upon their return, be restored to their position “with such seniority, status, pay, and vacation” as they would have had if they had not been absent for training. Section 2024 (d) closely paralleled 38 U. S. C. § 2021 (a), the latter section ensuring the reinstatement of regular veterans returning from active duty. But § 2024 (d) did not provide reservists with protection against discharges, demotions, or other discriminatory conduct once reinstated. Section 2021 (b)(2), on the other hand, provided regular veterans returning from active duty one year’s “protection... against certain types of discharges or demotions that might rob the veteran’s reemployment of its substance.” Oakley v. Louisville & Nashville R. Co., 338 U. S. 278, 285. The legislative history of § 2021 (b) (3) indicates that it was designed to provide similar protection to employee-reservists. B Section 2021 (b)(3) provides in pertinent part: “Any person who [is employed by a private employer] shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” The Senate Report on the bill that became §2021 (b)(3), stated that the purpose of the enactment was “to prevent reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership....” S. Rep. No. 1477, 90th Cong., 2d Sess., 1-2 (1968). The Report explained that “[e]mployment practices that discriminate against employees with Reserve obligations have become an increasing problem in recent years. Some of these employees have been denied promotions because they must attend weekly drills or summer training and others have been discharged because of these obligations.... [T]he bill is intended to protect members of the Reserve components of the Armed Forces from such practices.” Id., at 2. The protection was to be accomplished by entitling reservists “to the same treatment afforded their coworkers not having such military obligations....” Ibid. The House Report announced the same motivation. The bill was described as providing “job protection for employees with obligations as members of a reserve component.” H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3 (1968). The House Report elaborated as follows: “Section (1) amplifies existing law to make clear that reservists not on active duty, who have a remaining Reserve obligation, whether acquired voluntarily or involuntarily, will nonetheless not be discriminated against by their employees [sic] soley [sic] because of such Reserve affiliation. “It assures that these reservists will be entitled to the same treatment afforded their coworkers u)ithout such military obligation. “The law does not now protect these reservists against discharge without cause, as it does with inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months’ protection.” Ibid, (emphasis added). The legislation was originally proposed by the Department of Labor. Accordingly, the testimony of Hugh W. Bradley, Director of the Office of Veterans’ Reemployment Rights of the Labor Department, who was the chief administration spokesman for the provision, is instructive. He described the relevant portions of the legislation to the House Committee on Armed Services: “The first provision of the bill deals with a problem that has been increasingly difficult in the past few years. It is designed to enable reservists and guardsmen who leave their jobs to perform training in the Armed Forces, to retain their employment and to enjoy all of the employment opportunities and benefits accorded their coworkers who do not have military training obligations. The law does not now protect them against discharge without cause as it does inductees and enlistees, who have 1-year protection, and initial active duty for training reservists, who have 6 months’ protection.” 1966 House Hearings, at 5312 (emphasis added). See also 1968 House Hearings, at 7471. Testimony by Rear Admiral Burton H. Shupper, U. S. N., appearing on behalf of the Department of Defense, also reflected the purposes behind the enactment: “The other aspect of H. R. 11509 is the provision that employees shall not be denied retention in employment or advantages of employment because of any obligation as a member of a Reserve component of the Armed Forces. After the Berlin and Cuba callups, we received information from our Reserve community that a significant number of reservists were receiving indications that opportunities for advancement and retention in civilian employment would favor those who appear to offer their employers more continuity of services, namely those in the Standby Reserve or those with no Reserve status. In fairness, we must emphasize that this reaction on the part of employers appears to be the exception not the rule and, we believe, is generally not based upon unpatriotic motives but rather on the competitive spirit of business.” 1966 House Hearings, at 5315. The legislative history thus indicates that § 2021 (b)(3) was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status. Congress wished to provide protection to reservists comparable to that already protecting the regular veteran from “discharge without cause” — to insure that employers would not penalize or rid themselves of returning reservists after a mere pro forma compliance with § 2024 (d). And the consistent focus of the administration that proposed the statute, and of the Congresses that considered it, was on the need to protect reservists from the temptation of employers to deny them the same treatment afforded their co-workers without military obligations. The petitioner’s contention that his employer was obliged to provide work-schedule preferences not available to other employees must be considered against this legislative background. C The petitioner’s argument is that the respondent corporation was obligated to make special efforts to schedule his work hours so he would avoid any lost time by reason of his reserve obligations. He does not allege that the respondent singled him out unfairly, or in any other way discriminated against him vis-á-vis other employees in the scheduling of work. Indeed, the petitioner’s argument would require work-assignment preferences not available to any nonreservist employee at the respondent’s refinery. The problem with the petitioner’s position is that there is nothing in § 2021 (b) (3) or its legislative history to indicate that Congress ever even considered imposing an obligation on employers to provide a special work-scheduling preference. Indeed, the legislative history, set out above, strongly suggests that Congress did not intend employers to provide special benefits to employee-reservists not generally made available to other employees. Congress, and the administration spokesman for the legislation, stated explicitly that reservists were to be entitled “to the same treatment afforded their coworkers not having such military obligations....” S. Rep. No. 1477, 90th Cong., 2d Sess., 2 (1968); see also H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966); 1968 House Hearings, at 7471 (testimony of Hugh W. Bradley). The strongest language culled by the petitioner from the legislative history to support his argument is a single passage in the 1966 House Report on H. R. 11509: “If these young men are essential to our national defense, then certainly our Government and employers have a moral obligation to see that their economic well being is disrupted to the minimum extent possible.” H. R. Rep. No. 1303, 89th Cong., 2d Sess., 3 (1966). But this generalized statement appears only in the 1966 House Report; it is not contained in either the House or the Senate Report that accompanied the bill as finally enacted in the 90th Congress. Compare ibid, with H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 8 (1968), and S. Rep. No. 1477, 90th Cong., 2d Sess., 3 (1968). Moreover, language in the same 1966 House Report specifically indicated that only a nondiscrimination measure was intended: “It should be noted that the only substantive changes in existing law relate to... the prohibition against employer discrimination against reservists who participate in the Reserve or National Guard programs.” H. R. Rep. No. 1303, 89th Cong., 2d Sess., 4 (1966). It appears that the origin of the passage the petitioner relies on is a statement by Hugh W. Bradley before the House Committee in 1966. See 1966 House Hearings, at 5313. Yet this passage disappeared from Bradley’s presentation to both the House and Senate Committees in the subsequent Congress. See 1968 House Hearings, at 7471, 7472; 1968 Senate Hearings, at 2, 3. And in all three of his congressional appearances, Bradley made it abundantly clear that the purpose of the legislation was to protect employee reservists from discharge, denial of promotional opportunities, or other comparable adverse treatment solely by reason of their military obligations; there was never any suggestion of employer responsibility to provide preferential treatment. In any case, the language relied on by the petitioner hardly supports a finding that Congress intended §2021 (b)(3) to convert a generalized moral obligation into a specific legal duty. D Aside from a lack of support in legislative history, the petitioner’s argument suffers other flaws. While the present case involves absences for weekend duty, the statutory language is not so limited; it refers to “any obligation as a member of a Reserve component....” Section 2021 (b)(3) has been applied, for example, to 2-week summer camps, Carney v. Cummins Engine Co., 602 F. 2d 763 (CA7); 6-week training sessions, Carlson v. New Hampshire Dept. of Safety, 609 F. 2d 1025 (CA1); and 2-month training sessions, Peel v. Florida Dept. of Transportation, 443 F. Supp. 451 (ND Fla.), aff’d, 600 F. 2d 1070 (CA5). Accordingly, there is no principled way of distinguishing between an employer’s obligation to make scheduling accommodations for weekends as opposed to, for example, annual 2-week training periods, or even longer periods of training or duty. And certainly there is nothing in the legislative history that would indicate Congress intended that reservists were to be entitled to all “incidents and advantages of employment” accorded during their absence to working employees, including regular time and overtime pay. The petitioner concedes that it might be impossible, or at least unduly burdensome, to accommodate a reservist’s absences for periods as long as the mandatory 2-week summer training session. Perhaps for this reason, he attempts to limit the obvious implications of his theory by arguing that “the statute only requires an employer to take reasonable steps to accommodate the reservists.” But, as is true of the petitioner’s more general affirmative obligation theory, there is nothing in the statute or its history to support such a notion. Indeed, a “reasonable accommodation” to employee-reservists because of missed worktime has already been made by Congress in § 2024 (d). There, Congress decided what allowance employers should make to reservists whose duties force them to miss time at work: provide them a leave of absence. If Congress had wanted to impose an additional obligation upon employers, guaranteeing that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay that they would have earned without absences attributable to military reserve duties, it could have done so expressly. By contrast, there is no evidence that the Congress that enacted § 2021 (b)(3) showed any concern with the problem of missed work hours, let alone imposed any duty to “take reasonable steps to accommodate the reservists” in this or any other respect. The petitioner makes no suggestion why his theory of “reasonable accommodation” should apply only to “incidents or advantages of employment,” and not to the other provisions of §2021 (b)(3): retention and promotion. Presumably, if it applies to one provision of the section, it should apply to them all. But if an employer could, for example, defend a denial of promotion to an employee-reservist because the promotion could not be “reasonably accommodated,” the protection afforded by § 2021 (b)(3) would clearly be reduced, if not altogether eliminated. Finally, the petitioner suggests that §2021 (b)(3) must have the meaning he attributes to it, because the section would otherwise be of little significance. But the nondiscrimination requirements of the section impose substantial obligations upon employers. The frequent absences from work of an employee-reservist may affect productivity and cause considerable inconvenience to an employer who must find alternative means to' get necessary work done. Yet Congress has provided in § 2021 (b) (3) that employers may not rid themselves of such inconveniences and productivity losses by discharging or otherwise disadvantaging employee-reservists solely because of their military obligations. Ill This Court does not sit to draw the most appropriate balance between benefits to employee-reservists and costs to employers. That is the responsibility of Congress. If Congress desires to amend § 2021 (b) (3) to require special work-hour scheduling for military reservists where it is reasonably possible, it is free to do so. But we must deal with the law as it is. The respondent did not deny the petitioner anything that he would have received had he not been a reservist; He was scheduled for 40 hours work a week, as all other employees in the refinery were. He was assigned the same burden of weekend and shift work as were his fellow employees. And he was allowed to exchange shifts in the manner accepted by his union and the respondent, just as all other employees were. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. There is an apparent intercircuit conflict on this issue. Compare the case under review with West v. Safeway Stores, Inc., 609 F. 2d 147 (CA5). In oral argument, counsel for the respondent indicated that the petitioner was a member of the Ohio National Guard. This is not apparent in the record, but both Ready Reservists and National Guardsmen are equally entitled to the protection of 38 U. S. C. §2021 (b)(3). See S. Rep. No. 1477, 90th Cong., 2d Sess., 1, 5 (1968); H. R. Rep. No. 1303, 90th Cong., 2d Sess., 3, 6 (1968). Title 38 U. S. C. §2024 (d) provides in pertinent part: “Any employee... shall upon request be granted a leave of absence by such person’s employer for the period required to perform active duty for training or inactive duty for training in the Armed Forces of the United States. Upon such employee’s release from a period of such active duty for training or inactive duty for training,... such employee shall be permitted to return to such employee’s position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes....” The Department of Justice represents the petitioner pursuant to 38 U. S. C. § 2022. Section 2021 (b)(3) provides: “Any person who holds a position described in clause (A) or (B) of subsection (a) of this section shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.” The petitioner does not urge here that he had to be paid for hours not worked. There is no dispute that the respondent has complied with all relevant requirements of § 2024 (d). See n. 3, supra. This section compels employers to grant leaves of absence to employees who must attend reserve training, and entitles a reservist who has been absent for inactive reserve training to benefits upon his return, such as wage rates and seniority, which automatically would have accrued if he had remained in the continuous service of his employer. See Aiello v. Detroit Free Press, Inc., 570 F. 2d 145, 148 (CA6). It does not entitle a reservist to benefits that are conditioned upon work requirements demanding actual performance on the job. See ibid. See also Foster v. Dravo Corp., 420 U. S. 92. Thus, it is not contended that § 2024 (d) requires employers to pay absent reservists for hours not worked. Before their recodification in 1974, the veterans’ re-employment rights provisions were codified at 50 U. S. C. App. § 459 (1970 ed.) (§ 9 of the Military Selective Service Act of 1967). See Coffy v. Republic Steel Corp., 447 U. S. 191, 194, n. 2. Section 2021 (a) provides as follows: “In the case of any person who is inducted into the Armed Forces of the United States under the Military Selective Service Act [50 U. S. C. App. §§451-473] (or under any prior or subsequent, corresponding law) for training and service and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service; and (1) receives a certificate described in section 9 (a) of the Military Selective Service Act [50 U. S. C. App. §459 (a)] (relating to the satisfactory completion of 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. 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songer_origin
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. HORN & HARDART COMPANY, Appellant v. NATIONAL RAILROAD PASSENGER CORPORATION. No. 85-5722. United States Court of Appeals, District of Columbia Circuit. Argued Feb. 20, 1986. Decided June 17, 1986. J. Skelly Wright, Senior Circuit Judge, dissented and filed an opinion. Allen R. Snyder, Washington, D.C., with whom Robert J. Elliott and Stephen A. Goldberg, Washington, D.C., were on brief, for appellant. John C. Morland, with whom Christopher M. Klein, Washington, D.C., was on brief, for appellee. Before: STARR and BUCKLEY, Circuit Judges, and WRIGHT, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge STARR. Dissenting opinion filed by Senior Circuit Judge WRIGHT. STARR, Circuit Judge: This appeal is taken from the District Court’s grant of summary judgment in favor of the National Railroad Passenger Corporation, more commonly known as “Amtrak.” The issue presented is whether the trial court erred in its interpretation of termination provisions contained in three 1980 leases between Amtrak, as owner of the Pennsylvania Station in New York City, and The Horn & Hardart Company, the proprietor of several commercial establishments situated within Penn Station. Horn & Hardart contends that the District Court improperly granted summary judgment in the face of a need for further factual development both as to the meaning of the termination provisions and as to whether the facts, as ultimately adduced, would have warranted Amtrak’s invocation of these clauses. While Horn & Hardart’s arguments are not without force, we are persuaded in the end that the District Court’s disposition of this case is correct. We therefore affirm. I Horn & Hardart is a familiar corporate face in New York. Its operations extend underground, as it were, to include within the confines of Penn Station three restaurant and cocktail lounge operations each of which is the subject of a separate lease. The three leases contain identical provisions in respect of termination, permitting that power to be invoked by Amtrak: in the event that [Amtrak] shall require the demised premises for its Corporate purposes ..., or in case of the proposed re-construction or demolition of the terminal building in which the demised premises are located (resulting thereafter in the re-construction or demolition thereof)____ In November 1984 Amtrak dispatched to Horn & Hardart termination notices with respect to all three leases. Amtrak’s stated reason for displacing its long-standing lessee was to permit construction of an ambitious project, duly approved by Amtrak’s board of directors, to modernize Penn Station pursuant to a master plan. As represented to the court below, “Amtrak’s current intention is to reconstruct the portion of Pennsylvania Station in which the demised premises are located so that a new ticket facility can be installed on the premises ... occupied by [Horn & Har-dart].” Amtrak’s Statement of Material Facts As To Which There Is No Genuine Dispute 117. Horn & Hardart challenged Amtrak’s use of the termination clause, repairing to United States District Court here in Washington, Amtrak’s corporate situs and the jurisdiction whose law governs the three leases in accordance with' applicable federal law. 45 U.S.G. § 546(d) (1982). Horn & Hardart averred that since the Penn Station operations commenced in 1967 the Company had expanded substantial sums to improve the leased premises, as most recently evidenced by the conversion in 1980 of a “Horn & Hardart” coffee shop to an “Arby’s” and the modernization of its two other premises, the “Iron Horse” and the “Dolphin Bar,” in which approximately $1 million had previously been invested. To protect its sizable investments, Horn & Hardart argued, the Company had not only negotiated long-term leases but had succeeded in limiting substantially Amtrak’s powers of termination. Specifically, the parties had agreed to the language, which we have quoted above, only after Horn & Hardart had fended off in negotiations a considerably more sweeping termination clause advanced by Amtrak which would have empowered the latter to terminate the leases (upon ninety days’ written notice) in case [Amtrak] shall desire to use the demised premises, or any portion thereof, either for itself or through agreement with others for transportation or public service purposes, or for construction, reconstruction ... of that portion of the building of which the demised premises constitute a part____ The upshot of this successful negotiation effort, Horn & Hardart maintained, was to restrict Amtrak’s right to terminate the leases to situations which would “require” termination because of activities affecting Amtrak as a corporate entity, and to situations involving reconstruction or demolition of the entire “terminal building” in which the leased premises were located, as compared with reconstruction or demolition “of that portion of the building” of which the leased premises were a part. Verified Complaint 1111, at 5-6. Arguing that Amtrak’s purported terminations were entirely inadmissable under the express terms agreed to by the parties, Horn & Hardart sought a declaration that the terminations were unlawful, an injunction prohibiting Amtrak from seeking to evict or otherwise remove Horn & Hardart from the premises, and compensatory damages of not less than $2.5 million. Amtrak promptly moved to dismiss the complaint or, alternatively, for summary judgment. Inasmuch as Amtrak submitted evidence outside the pleadings, the District Court treated the motion as falling into the latter category, see Fed.R.Civ.P. 12(b)(6). The court ruled in favor of Amtrak, concluding, in brief, that the operative words of the termination clause, namely “require[d] ... for Corporate purposes” were unambiguous and thus amendable to authoritative judicial construction. As to the term “require,” the court determined that “[bjoth the plain meaning of the word [“require”] as used in the leases and case law supports Amtrak’s position.” Memorandum Opinion at 6. In so concluding, the trial court rejected Horn & Hardart’s argument that, as evidenced by the Declaration of one of its officers who had conducted the lease negotiations on behalf of the Company, the term “require” was substituted for the term “desire” in order “to reflect the fact that the leases could be terminated only if termination was mandatory or indispensible.” Id. at 8. See Horn & Hardart’s Opposition to Defendant’s Motion to Dismiss at 12 (“[T]he Leases use ‘require,’ which in this context clearly means ‘to demand as necessary or essential’ or ‘to make indispensable.’ ”) (citation omitted). So too, the District Court eschewed the Company’s interpretation of “Corporate purposes,” which Horn & Har-dart construed to mean “that Amtrak may take Horn & Hardart’s space only when such space is indispensable for Amtrak’s continued existence as an entity which provides ‘intercity and commuter rail service.’ ” Opposition at 19 (citation omitted). In the trial court’s view, this proffered construction was “unduly narrow.” Memorandum Opinion at 8. Invoking “plain meaning,” the court determined: [I]t is obvious that Amtrak’s use of Horn and Hardart’s space for expanding ticket counter and waiting room facilities is for Amtrak’s corporate purposes of providing modern, cost-efficient, intercity passenger rail transportation service. Id. at 9. Looking to the uncontradicted evidence as to the use to which the leased premises would in fact be put, the court concluded that “Amtrak has the right to terminate the leases in order to expand its ticket counter and waiting area because Amtrak ‘requires’ the demised premises for its ‘Corporate purposes.’ ” Id. at 9. In so doing, the court construed what it viewed as the critical term, “require,” as “necessary or needed,” not, as Horn & Hardart vigorously argued, “mandatory or indispensable.” Id. II On appeal, Horn & Hardart’s principal argument is that the lease terms were infected by “patent ambiguity.” Brief for Appellant at 10, thus rendering the contract dispute unsuitable for summary judgment. To compound this threshold legal error, the Company contends, the District Court’s summary disposition resurrected Phoenix-like the sweeping, pro-Lessor termination clause that the parties, by virtue of Horn & Hardart’s effective negotiation efforts, had discarded. That is to say, “[t]he trial court’s interpretation is tantamount to construing the word ‘require’ to mean ‘desire.’ ” Id. at 14. This fundamental legal error, the Company asserts, had the effect of cutting off, without warrant, the development of “relevant facts” through “essential discovery,” id. at 15, all in derogation of the orderly procedures contemplated by the Federal Rules of Civil Procedure, especially Rule 56(f). The Company suggests that the court below, remaining as it did on high legal ground instead of delving into the facts, ignored the incongruence of its legal pronouncements with the facts themselves. Such facts include facial alterations to the Arby’s lease and Horn & Hardart’s acceptance of Amtrak’s sweeping termination clause in a contemporaneously executed lease for retail space (aside from the three leases at issue here). What is more, the Company argues, the pivotal term, “Corporate purposes,” is not only ambiguous but is clearly less expansive than Amtrak’s proffered interpretation, which would encompass any corporate activity that does not stray beyond the outer perimeter of the ultra vires doctrine. This extraordinary sweep, the Company maintains, could not possibly have been intended by the parties inasmuch as the parties in their negotiations modified the termination provision so as to substitute “Corporate purposes” for “transportation or public service purposes.” Taken together, the pro-Horn & Hardart modifications to the lease provisions were meant, as the Company sees it, to restrict Amtrak’s right to terminate. The District Court’s pre-trial disposition, Horn & Hardart argues, permits Amtrak unfairly to claim victory in the courthouse despite its defeat at the negotiating table. To exacerbate matters, the Company goes on, Amtrak is thereby permitted to effect a forfeiture of Horn & Hardart’s valuable leasehold interests, a result disfavored by the more merciful principles animating courts of justice in construing contracts. Finally, in Horn & Hardart’s view, the District Court’s interpretation has rendered surplusage the “re-construction” provision in the termination clause, which limits Amtrak’s right to abrogate the leases to when the terminal building — not just the portion of the building of which the leased premises are a part — is reconstructed. Ill Notwithstanding the able arguments of counsel for the Company, we find ourselves in full agreement with the District Court’s pivotal determination that the contract language is properly amenable to dispositive interpretation as a matter of law. Consistent with applicable law, see, e.g., Clayman v. Goodman Properties, Inc., 518 F.2d 1026,1034 (D.C.Cir.1974), the District Court turned to the language of the contract itself to determine whether the provision was ambiguous. As the District Court rightly said, the construction of unambiguous contractual language is a matter of law entrusted to the court. Washington Metropolitan Area Transit Authority v. Mergentime Corporation, 626 F.2d 959, 961 (D.C.Cir.1980). The issue, then, is whether the language that has so sharply divided the parties is, in truth, reasonably susceptible of different construction or interpretations. Papago Tribal Utility Authority v. FERC, 723 F.2d 950, 955 (D.C.Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984). We conclude that the District Court’s interpretation of the language, based upon its plain meaning, is unimpeachable. Horn & Hardart’s construction of the contract, whether it is based on the term “corporate purpose” alone or on the juxtaposition of the terms “require” and “corporate purpose,” is not yielded by a fair examination of the language itself. The sole interpretation advanced by the Company before the District Court and on appeal is, as we have seen, that Amtrak can lawfully trigger the clause “only if termination was mandatory or indispensable” for Amtrak’s corporate purposes. Opposition at 8; see also Reply Brief for Appellant at 4-5. This is a reading to which the actual language does not reasonably admit. Corporate life and death does not have to be on the line to “require [space] ... for Corporate purposes.” We concur fully with the able District Judge’s view that the Company’s strained interpretation “would render the termination provision virtually useless and would be inconsistent with Amtrak’s mandate from Congress to provide modern, efficient, rail passenger service.” Memorandum Opinion at 6. Contrary to Horn & Hardart’s assertions, our rejection of its corporate life-and-death standard does not render the termination provision operable at the whim of the landlord. The undisputed evidence shows that Amtrak did not terminate the Company’s lease in order to secure a more lucrative leasehold arrangement. Rather, Amtrak, pursuant to a broad plan of substantial improvements to Penn Station, sought to employ the precise space occupied by Horn & Hardart for expanded ticket counter space and other, non-leasehold purposes. Those specific purposes, under the undisputed facts presented here, suffice to bring the lessor’s reason for termination within the plain meaning of the lease’s termination provision. That the use of the demised premises by Amtrak in this instance is “reasonably necessary” to give life to one of its general corporate purposes is further supported by Horn & Hardart’s acknowledgment that Amtrak could have terminated the leases pursuant to the leases’ condemnation clause, a provision which incorporates Amtrak’s right to acquire or take property when “required for intercity rail passenger service.” 45 U.S.C. § 545(d)(1) (1982). Horn & Hardart’s remaining concerns need not detain us. There is, fairly viewed, no “forfeiture” at work here since the leases either did (Arby’s) or could have contained a cancellation premium clause. Indeed, pursuant to the Arby’s cancellation premium clause, Horn & Hardart in August 1985 received $180,000 from Amtrak; what is more, the original 1967 lease likewise contained a cancellation premium clause. The disincentive of a cancellation premium clause constituted the specific protective mechanism to which the parties agreed. We are similarly unpersuaded that the District Court’s reading of Part 1 of the termination clause (“require ... for Corporate purposes”) renders surplusage the provisions of Part 2 of the clause (“re-construction”). The clauses do indeed overlap in this particular setting, but overlap in one situation cannot properly be equated with the unhappy condition of “surplusage.” For it appears to us that the latter Part— the “reconstruction” portion of the clause — may have efficacy in other settings, such as where reconstruction might be forced on Amtrak by, say, Madison Square Garden which sits atop the subterranean provinces of Penn Station. Finally, we observe merely in passing that the acceptance of Horn & Hardart’s plea that this case move beyond the summary-judgment station and onto the tracks of discovery and trial would likely lead to a highly extensive factual undertaking as to the “indispensability” of the substantial improvements project now underway and approved by the Amtrak board of directors. The unlikelihood that the parties contemplated such a result fortifies us in our conclusion, reached independently for the reasons heretofore stated, that the plain language of this provision reasonably admits only of the construction discerned by the District Court. Affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
sc_issuearea
I
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. MURPHY BROTHERS, INC. v. MICHETTI PIPE STRINGING, INC. No. 97-1909. Argued March 1, 1999 Decided April 5, 1999 Ginsburg, J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scaua and Thomas, JJ., joined, post, p. 357. Deborah Alley Smith argued the cause for petitioner. With her on the briefs was Rhonda Pitts Chambers. Pugh argued the cause for respondent. With him on the brief was James F. Archibald III Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, Kent L. Jones, Barbara'L. Herwig, and Robert D. Kamenshine; for the American Federation of Labor and Congress of Industrial Organizations by Laurence Gold, Jonathan P. Hiatt, and Marsha S. Berzon; and for the Product Liability Advisory Council, Inc., by Patrick W. Lee and Robert P. Charrow. David C. Lewis filed a brief for the Defense Research Institute as amicus curiae. Justice Ginsburg delivered the opinion of the Court. This ease concerns the time within which a defendant named in a state-court action may remove the action to a federal court. The governing provision is 28 U. S. C. § 1446(b), which specifies, in relevant part, that the removal notice “shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the [complaint].” The question presented is whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run. Or, may the 30-day period start earlier, on the named defendant’s receipt, before service of official process, of a “courtesy copy” of the filed complaint faxed by counsel for the plaintiff? removal in light of a bedrock principle: An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court’s authority, by formal process. Accordingly, we hold that a named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, “through service or otherwise,” after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service. I On January 26, 1996, respondent Michetti Pipe Stringing, Inc. (Michetti), filed a complaint in Alabama state court seeking damages for an alleged breach of contract and fraud by petitioner Murphy Bros., Inc. (Murphy). Michetti did not serve Murphy at that time, but three days later it faxed a “courtesy copy” of the file-stamped complaint to one of Murphy’s vice presidents. The parties then engaged in settlement discussions until February 12,1996, when Michetti officially served Murphy under local law by certified mail. On March 13,1996 (30 days receiving the faxed copy of the complaint), Murphy removed the case under 28 U. S. C. § 1441 to the United States District Court for the Northern District of Alabama. Michetti moved to remand the case to the state court on the ground that Murphy filed the removal notice 14 days too late. The notice of removal had not been filed within 30 days of the date on which Murphy’s vice president received the facsimile transmission. Consequently, Michetti asserted, the removal was untimely under 28 U. S. C. § 1446(b), which provides: “The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.” (Emphasis added.) The District Court denied the remand motion on the ground that the 30-day removal period did not commence until Murphy was officially served with a summons. The court observed that the phrase “or otherwise” was added to § 1446(b) in 1949 to govern removal in States where an action is commenced merely by the service of a summons, without any requirement that the complaint be served or even filed contemporaneously. See App. A-24. Accordingly, the District Court said, the phrase had “no field of operation” in States such as Alabama, where the complaint must be served along with the summons. See ibid, On interlocutory appeal permitted pursuant to 28 U. S. C. § 1292(b), the Court of Appeals for the Eleventh Circuit reversed and remanded, instructing the District Court to remand the action to state court. 125 F. 3d 1396, 1399 (1997). The Eleventh Circuit held that “the clock starts to tick upon the defendant’s receipt of a copy of the filed initial pleading.” Id., at 1397. “By and large,” the appellate court wrote, “our analysis begins and ends with” the words “receipt ... or otherwise.” Id., at 1397-1398 (emphasis deleted). Because lower courts have divided on the question whether service of process is a prerequisite for the running of the 30-day removal period under § 1446(b), we granted certiorari. 525 U. S. 960 (1998). II Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant. At common law, the writ of capias ad respondendum directed the sheriff to secure the defendant’s appearance by taking him into custody. See 1 J. Moore, Moore’s Federal Practice ¶0.6[2.~2], p. 212 (2d ed. 1996) (“[T]he three royal courts, Exchequer, Common Pleas, and King’s Bench ... obtained an in personam jurisdiction over the defendant in the same manner through the writ of capias ad respondendum.”). The requirement that a defendant be brought into litigation by official service is the contemporary counterpart to that writ. See International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (“[T]he capias ad respondendum has given way to personal service of summons or other form of notice.”). In the absence of service of process by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant. See Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co,, 484 U. S. 97, 104 (1987) (“Before a... court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied.”); Mississippi Publishing Corp. v. Murphree, 326 U. S. 438, 444-445 (1946) (“[S]ervice of summons is the procedure by which a court... asserts jurisdiction over the person of the party served.”). Accordingly, one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend. See Fed. Rule Civ. Proc. 4(a) (“[The summons] shall . . . state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant.”); Rule 12(a)(1)(A) (a defendant shall serve an answer within 20 days of being served with the summons and complaint). Unless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights. Ill When Congress enacted § 1446(b), the legislators did not endeavor to break away from the traditional understanding. Prior to 1948, a defendant could remove a case any time before the expiration of her time to respond to the complaint under state law. See, e. g., 28 U. S. C. §72 (1940 ed.). Because the time limits for responding to the complaint varied from State to State, however, the period for removal correspondingly varied. To reduce the disparity, Congress in 1948 enacted the original version of § 1446(b), which provided that “[t]he petition for removal of a civil action or proceeding may be filed within twenty days after commencement of the action or service of process, whichever is later.” Act of June 25, 1948, 62 Stat. 939, as amended, 28 U. S. C. § 1446(b). According to the relevant House Report, this provision was intended to “give adequate time and operate uniformly throughout the Federal jurisdiction.” H. R. Rep. No. 308, 80th Cong., 1st Sess., A135 (1947). soon recognized, however, that § 1446(b), as first framed, did not “give adequate time and operate uniformly” in all States. In States such as New York, most notably, service of the summons commenced the action, and such service could precede the filing of the complaint. Under § 1446(b) as originally enacted, the period for removal in such a State could have expired before the defendant obtained access to the complaint. ensure that the defendant would have access to the complaint before commencement of the removal period, Congress in 1949 enacted the current version of § 1446(b): “The petition for removal of a civil action or proceeding shall be filed within twenty days [now thirty days] after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” Act of May 24, 1949, § 83(a), 63 Stat. 101. The accompanying Senate Report explained: “In some States suits are begun by the service of a summons or other process without the necessity of filing any pleading until later. As the section now stands, this places the defendant in the position of having to take steps to remove a suit to Federal court before he knows what the suit is about. As said section is herein proposed to be rewritten, a defendant is not required to file his petition for removal until 20 days after he has received (or it has been made available to him) a copy of the initial pleading filed by the plaintiff setting forth the claim upon which the suit is based and the relief prayed for. It is believed that this will meet the varying conditions of practice in all the States.” S. Rep. No. 303,81st Cong., 1st Sess., 6 (1949). See also H. R. Rep. No. 352, 81st Cong., 1st Sess., 14 (1949) (“The first paragraph of the amendment to subsection (b) corrects [the New York problem] by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff’s initial pleading.”). Nothing in the legislative history of the 1949 amendment so much as hints that Congress, in making changes to accommodate atypical state commencement and complaint filing procedures, intended to dispense with the historic function of service of process as the official trigger for responsive action by an individual or entity named defendant. IV The Eleventh Circuit relied on the “plain meaning” of § 1446(b) that the panel perceived. See 125 F. 3d, at 1398. In the Eleventh Circuit’s view, because the term “ '[Receipt’ is the nominal form of 'receive,’ which means broadly 'to come into possession of or to ‘acquire,’” the phrase '“[receipt] through service or otherwise’ opens a universe of means besides service for putting the defendant in possession of the complaint.” Ibid. What are the dimensions of that “universe”? The Eleventh Circuit’s opinion is uninformative. Nor can one tenably maintain that the words “or otherwise” provide a clue. Cf. Potter v. McCauley, 186 F. Supp. 146, 149 (Md. 1960) (“It is not possible to state definitely in general terms the precise seope and effect of the word 'otherwise’ in its context here because its proper application in particular situations will vary with state procedural requirements.”); Apache Nitrogen Products, Inc. v. Harbor Ins. Co., 145 F. R. D. 674, 679 (Ariz. 1993) (“[I]f in fact the words ‘service or otherwise’ had a plain meaning, the cases would not be so hopelessly split over their proper interpretation.”). The interpretation tradition, makes sense of the phrase “or otherwise,” and assures defendants adequate time to decide whether to remove an action to federal court. As the court in Potter observed, the various state provisions for service of the summons and the filing or service of the complaint fit into one or another of four main categories. See 186 F. Supp., at 149. In each of the four categories, the defendant’s period for removal will be no less than 30 days from service, and in some categories, it will be more than 30 days from service, depending on when the complaint is received. As summarized in Potter, the possibilities are as First, if the summons and complaint are served together, the 30-day period for removal runs at once. Second, if the defendant is served with the summons but the complaint is furnished to the defendant sometime after, the period for removal runs from the defendant’s receipt of the complaint. Third, if the defendant is served with the summons and the complaint is filed in court, but under local rules, service of the complaint is not required, the removal period runs from the date the complaint is made available through filing. Finally, if the complaint is filed in court prior to any service, the removal period runs from the service of the summons. See ibid. Notably, Federal Rule of Civil Procedure 81(c), amended in 1949, uses the identical “receipt through service or otherwise” language in specifying the time the defendant has to answer the complaint once the case has been removed: “In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based.” Rule 81(c) sensibly has been interpreted to afford the defendant at least 20 days after service of process to respond. See Silva v. Madison, 69 F. 3d 1368, 1376-1377 (CA7 1995). In Silva, the Seventh Circuit Court of Appeals observed that “nothing... would justify our concluding that the drafters, in their quest for evenhandedness and promptness in the removal process, intended to abrogate the necessity for something as fundamental as service of process.” Id., at 1376. In reaching this conclusion, the court distinguished an earlier decision, Roe v. O’Donohue, 38 F. 3d 298 (CA7 1994), which held that a defendant need not receive service of process before his time for removal under § 1446(b) begins to run. See 69 F. 3d, at 1376. But, as the United States maintains in its amicus curiae brief, the Silva court “did not adequately explain why one who has not yet lawfully been made a party to an action should be required to decide in which court system the case should be heard.” Brief for United States as Amicus Curiae 13, n. 4. If, as the Seventh Circuit rightly determined, the “service or otherwise” language was not intended to abrogate the service requirement for purposes of Rule 81(c), that same language also was not intended to bypass service as a starter for § 1446(b)’s clock. The fact that the Seventh Circuit could read the phrase “or otherwise” differently in Silva and Roe, moreover, undercuts the Eleventh Circuit’s position that the phrase has an inevitably “plain meaning.” Furthermore, the so-called “receipt rule” — starting the time to remove on receipt of a copy of the complaint, however informally, despite the absence of any formal service— could, as the District Court recognized, operate with notable unfairness to individuals and entities in foreign nations. See App. A-24. Because facsimile machines transmit instantaneously, but formal service abroad may take much longer than 80 days, plaintiffs “would be able to dodge the requirements of international treaties and trap foreign opponents into keeping their suits in state courts.” Ibid. * * * In sum, it would take a clearer statement than Congress has made to read its endeavor to extend removal time (by adding receipt of the complaint) to effect so strange a change — to set removal apart from all other responsive acts, to render removal the sole instance in which one's procedural rights slip away before service of a summons, i. e., before one is subject to any court’s authority. Accordingly, for the reasons stated in this opinion, the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the ease is remanded for further proceedings consistent with this opinion. It is so ordered. Murphy invoked the jurisdiction of the Federal District Court under 28 U. S. C. § 1332 based on diversity of citizenship. Michetti is a Canadian company with its principal place of business in Alberta, Canada; Murphy is an Illinois corporation with its principal place of business in that State. Compare Reece v. Wal-Mart Stores, Inc., 98 F. 3d 839, 841 (CA5 1996) (removal period begins with receipt of a copy of the initial pleading through any means, not just service of process); Roe v. O’Donohue, 38 F. 3d 298, 303 (CA7 1994) (“Once the defendant possesses a copy of the complaint, it must decide promptly in which court it wants to proceed.”), with Bowman v. Weeks Marine, Inc., 986 F. Supp. 329, 333 (SC 1996) (removal period begins only upon proper service of process); Baratt v. Phoenix Mut. Life Ins. Co., 787 F. Supp. 333, 336 (WDNY 1992) (proper service is a prerequisite to commencement of removal period). Congress extended the period for removal from 20 days to 30 days in 1965. See Act of Sept. 29, 1965, 79 Stat. 887. The second half of the revised removal shall be filed “within twenty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter,” 183(b), 63 Stat. 101, was added to address the situation in States such as Kentucky, which required the complaint to be filed at the time the summons issued, but did not require service of the complaint along with the summons. See H. R. Rep. No. 352, 81st Cong., 1st Sess., 14 (1949) (“Th[e first clause of revised § 1446(b)], however, without more, would create further difficulty in those States, such as Kentucky, where suit is commenced by the filing of the plaintiff’s initial pleading and the issuance and service of a summons without any requirement that a copy of the pleading be served upon or otherwise furnished to the defendant. Accordingly ... the amendment provides that in such cases the petition for removal shall be filed within 20 days after the service of the summons.”). . It ievident, too, that Congress could not have foreseen the situation posed by this case, for, as the District Court recognized, “[i]n 1949 Congress did not anticipate use of faesmile Isic] transmissions.” App. A-23, n. 1. Indeed, even the photocopy machine was not yet on the scene at that time. See 9 New Encyclopaedia Britannica 400 (15th ed. 1985) (noting that photocopiers “did not become available for commercial use until 1950”). Contrary to a suggestion made at oral argument, see Tr. of Oral Arg. 6-7, 28 U. S. C. § 1448 does not support the Eleventh Circuit’s position. That section provides that “[i]n all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal... such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court.” Nothing in § 1448 requires the defendant to take any action. The statute simply allows the plaintiff to serve an un-served defendant or to perfect flawed service once the action has been removed. In fact, the second paragraph of §1448, which provides that “[t]his section shall not deprive any defendant upon whom process is served after removal of his right to move to remand the case,” explicitly reserves the unserved defendant’s right to take action (move to remand) after service is perfected. See, e. g., Fed. Rule individuals in a foreign country). 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_treat
D
What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. S. S. SILBERBLATT, INC. and The Sterling Company, Appellants, v. The RENEGOTIATION BOARD, Appellee. No. 517, Docket 33613. United States Court of Appeals, Second Circuit. Argued April 20, 1970. Decided May 5, 1970. Charles H. Tuttle, New York City (Breed, Abbott & Morgan, Edward J. Ross and Miriam C. Feigelson, New York City, of counsel), for appellants. Ronald R. Glancz, Atty., Dept, of Justice, Washington, D. C. (William D. Ruckelshaus, Asst. Atty. Gen., Alan S. Rosenthal, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellee. Before MOORE and SMITH, Circuit Judges, and WEINFELD, District Judge. Of the Southern District of New York, sitting by designation. PER CURIAM. The decision of the Tax Court, holding (1) the provisions of the Renegotiation Act of 1951, as amended (50 U.S.C. App. § 1211 et seq.) to be applicable to excessive profits realized under a Capehart Act housing contract (42 U.S.C §§ 1594-1594k; 12 U.S.C. §§ 1748-1748h-3) and (2) such application to be constitutional, is affirmed on the opinion of Judge Mulroney, reported at 51 T.C. No. 89 (March 4, 1969). Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_state
33
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". KASTEL v. UNITED STATES. Circuit Court of Appeals, Second Circuit. December 19, 1927. No. 8. 1. Criminal law <§=295 — Defendant, on plea of double jeopardy, has burden of proof. On a plea of double jeopardy, defendant has the burden of proof, and must make out his case. 2. Criminal law <§=295 — Proof jury requester bailiff for additional 15 minutes held, as to former jeopardy, not to affirmatively show discharge before hope of agreement abandoned. Where judge, at 4 o’clock in the afternoon, instructed clerk to discharge jury if they had not agreed at 9:30, and jury, on bailiff’s inquiry at such time, requested another 15 minutes, at which time they stated they could not agree, there was no affirmative proof that jury was discharged before giving up hope of agreement, so as to authorize subsequent plea of former jeopardy. 3. Criminal law <§= 1174(0 — Judge's action in leaving jury without means of communicating with him, when instructing clerk to discharge them at certain time, did not require reversal. Action of .trial judge in leaving jury at about 4 o’clock in the afternoon, and instructing clerk to discharge them if they had not agreed at 9:30, without means of communicating with him, held not to require reversal, though improper, since time fixed for discharge was reasonable, and judge is under no duty to keep jury out all night. 4. Indictment and information <§=140(2) — Defendant’s affidavit on information and belief held insufficient to sustain motion to quash indictment. Defendant’s affidavit, on information and belief, that grand jury had no competent evidence on which to indict him, held insufficient to sustain motion to quash indictment. 5. Post office <§=50 — Failure of charge, in prosecution for using mails to defraud, to limit jury’s consideration to certain representations alleged, held not erroneous. In prosecution for using the mails to defraud, by soliciting customers to buy stocks by falsely representing that shares would be kept for them, charge held not erroneous for failing to limit jury’s consideration to representations of inducing defendant’s customers to pay interest, and other charges on debit balances as alleged held not erroneous, since such allegation was merely an incident, and to confine charge thereto would defeat plain intendment of indictment as a whole. 6. Criminal law <§=784(2) — Trial judge need not characterize evidence as direct or circumstantial. Trial judge, in prosecution for using mails to defraud, by soliciting customers to buy stocks by false representations, need not characterize the evidence either as direct or circumstantial. In Error to tbe District Court of the United States for the Southern District of New York. Phil Kastel was convicted for using the mails to defraud, and he brings error. Affirmed. The fraudulent scheme laid was that the defendant and -two accomplices should solicit customers to buy stocks, by falsely representing to them that they, would buy and keep for them their shares, when in faet, though they bought, they at once sold, “thereby inducing such customers to pay interest and other charges” upon their unpaid debit balances. These representations were meant to induce the customers to. part with their money, which the defendants might then convert. Four questions arise upon this writ: First, a plea of former jeopardy; second, a motion to quash the indictment; third, an error in tho charge; fourth, iho refusal of a request to charge. The first point arises from a former trial upon the same indictment, which resulted in a disagreement of the jury. Upon that trial, at the conclusion of the evidence, the judge charged the jury and sent them out at 1 p. m. He then waited until about 4 o’clock without word from them, and called the assistant district attorney and one of the counsel for the defendant to his chambers, where he asked them whether “we wanted to keep the jury here all night.” Neither party expressing any such wish, the judge instructed the clerk to discharge the jury if they had not agreed at 9:30 p. m. He thereupon left the building, and in his absence the jury asked for certain exhibits and to hear read the testimony of a witness. As the clerk’s efforts to reach the judge were unsuccessful, this could not he granted, and they sent no other message. At 9:30 a bailiff opened the door of the jury room and asked if they had been able to agree. They asked for 15 minutes more, at the end of which the bailiff again asked them if they had been able to agree, and they again said, “No,” whereupon they were discharged. The second point arises upon the denial of a motion to quash the indictment because tho grand jury had no competent evidence before it upon which to indict. This motion was supported by an affidavit of the defendant, alleging on information and belief that one Keyes Winter, tho receiver in bankruptcy of the defendant, was the only witness sworn by the grand jury, and that it was impossible that he should have given competent proof of the facts. Tho third point is that the judge, in charging the jury, did not limit their consideration to such representations as induced the defendant’s customers to pay interest and other charges upon their debit balances. On the contrary, he allowed them to convict if they found that the defendant had procured any money by falsely assuring them that he would buy and hold their shares. The fourth point was a refusal by the judge to charge that there was only circumstantial evidence of the crime. Vincent T. Follmar, of New York City, for plaintiff in error. Charles H. Tuttle, U. S. Atty., of New York City (David W. Peck and Laurens Hastings, Asst. U. S. Attys., both of New York City, of counsel), for the United States. Before MANTON, L. HAND, and SWAN, Circuit Judges. L. HAND, Circuit Judge (after stating tho facts as above). Upon the plea of double jeopardy the defendant has the burden of proof, and must make out his case. Com. v. Wermouth, 174 Mass. 74, 54 N. E. 352; People v. Schepps, 231 Mich. 260, 203 N. W. 882; State v. Ackerman, 64 N. J. Law, 99, 45 A. 27; State v. Williams, 43 Wash. 505, 86 P. 847; Harlan v. State, 190 Ind. 322, 130 N. E. 413; Price v. State, 104 Miss. 288, 61 So. 314; Barber v. State, 151 Ala. 56, 43 So. 808; Territory v. West, 14 N. M. 546, 99 P. 343; State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L. R. A. (N. S.) 977; Jacobs v. State, 100 Ark. 591, 141 S. W. 489; Storm v. Territory, 12 Ariz. 109, 99 A. 275; 1 Bishop, New Crim. Proc. § 816 (2). Three questions arise under the plea at bar: First, whether the judge exercised a proper discretion in instructing the clerk to discharge the jury at 9:30 and then absenting himself; next, whether the discharge interrupted the jury’s deliberations before they had come to a permanent deadlock; last, whether, if it did, this operates as an acquittal. The last question, as we view it, is not presented, and we may pass it. Some of the eases turn upon local statutes. People ex rel. Stabile v. Warden, 202 N. Y. 138, 95 N. E. 729; People v. Greene, 100 Cal. 140, 34 P. 630; State v. Klauer, 70 Kan. 384, 78 P. 802; State v. Shuchardt, 18 Neb. 454, 25 N. W. 722. The common-law doctrine in Pennsylvania (Com. v. Fitzpatrick, 121 Pa. 109, 15 A. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757), and originally in California (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436), has been carried to lengths that would scarcely be followed elsewhere. On the other hand, the original rule in New York apparently was that breaking up the jury’s deliberations did not effect an acquittal. People v. Green, 13 Wend. 55. Cullen, C. J., dissenting, in People ex rel. Stabile v. Warden, so announced, and nothing in the majority opinion suggests the opposite. Whatever the right doctrine, we will assume arguendo that the jury must not bo interrupted, at least until they themselves wish to be discharged. In the case at bar it appears to us that the defendant has not shown that they were so interrupted. We must concede that, had the bailiff merely discharged them at 9:30, this would have been proved; prima facie, they have hope of agreeing till they say the contrary. Yet it was not a strain upon their request to read it as meaning that, if they could not agree in 15 minutes, they could not agree at all. Indeed, the probabilities are that this is what they did mean; else it is hard to see why they put a period to their further consultation. At best, we think that the defendant has failed affirmatively to prove that they were discharged before they themselves gave up, or even that they had not in substance announced that they did give up. Coming next to the question of the judge’s discretion, it is at least debatable whether, if exercised at all, it can be reviewed by writ of error. Winsor v. Queen, L. R. 1 Q. B. 289. But we may pass the point, because the period set of 8hours was so plainly long enough that no objection could be taken to it, and, indeed, none has been, as we understand it. What the defendant complains of is that the judge, by absenting himself at 4 o’clock, could not, and, indeed, never did, discharge them himself, but rigidly bound the clerk to do so when the time arrived, regardless of what might meanwhile happen. He thus cut himself off from revising his original decision, which, though perhaps proper enough when made, he might have seen fit to change later. That the judge was not justified in leaving the jury without means of communicating with him we entirely agree. He should have been always accessible to them, for the trial was still on. Nevertheless, he had in fact fixed the time for their discharge, reasonable in that he was under no duty to.keep them out all night, and at most the defendant lost nothing but the chance that he might change his mind, and that further confinement might result in an acquittal. Such straws will not outweigh proven guilt, nor need we be to-day ridden by such nebulous possibilities. There must always be a compromise between the convenience of the jury and the protection of the accused, or we should revert to archaic barbarities, though now committed with an opposite purpose. While, therefore, we concede the possibility and the impropriety, we decline to make them an excuse. The next point requires little discussion. The only evidence to support the motion to quash was the defendant’s affidavit on information and belief that the grand jury had no competent evidence upon which to indict him. If this were enough, we should be obliged to try over the proceedings before the grand jury in every ease. If it turned out that there was competent evidence, the accused would none the less have the prosecution’s case in advance to contrive against at his leisure. In any event the trial would be complicated to an inordinate extent, and our criminal procedure become even more unwieldy, dilatory, and uncertain. We agree with the rulings in the Eighth Circuit, never insensitive to the protection of personal rights. McKinney v. U. S., 199 F. 25; Murdick v. U. S., 15 F.(2d) 965. See, also, U. S. v. Morse (D. C.) 292 F. 273, 278; U. S. v. Reed, Fed. Cas. No. 16, 134; U. S. v. Cobban (C. C.) 127 F. 713. As to the third point, the indictment was for a scheme to defraud customers of their money by falsely saying that their shares would be kept for them. The allegation that thus they would be induced to pay interest on their debit balances was merely an incident. To confine the charge to that feature would have defeated the very plain intendment of the indictment as a whole. Finally, the judge was not called upon to characterize the evidence as direct or circumstantial. In the ease relied on, People v. De Martini, 218 N. Y. 561, 112 N. E. 542, there had been an error in describing circumstantial evidence as direct, and that, too, upon a trial for murder. Judgment affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_numappel
99
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of 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. FITKIN et al. v. CENTURY OIL CO. (MARYLAND) et al. GUARANTY TRUST CO. OF NEW YORK v. LA PORTE OIL & REFINING CORPORATION (MARYLAND). (Circuit Court of Appeals, Second Circuit. December 6, 1926.) No. 87. 1. Mortgages <§=>209 — Trustee under mortgage held not entitled to tile claim against corporation after appointment of receiver. Trustee under mortgage to secure notes issued by corporation held not such creditor as entitled it to file claim after appointment of receiver for corporation. 2. Mortgages <§=>209 — Trustee in deed of trust has no right to tile claim therefor, in absence of express authority. In absence of authority granted to trustee in deed of trust by terms of mortgage, right to file claim therefor resides in note or bondholders only. 3. Action <§=>! — Right to maintain suit is matter of Jaw. Right to maintain suit is matter of law, and not subject to be controlled by private conventions of parties. 4. Parties <§=>6(l) — Real parties In interest must bring suit. Suits must be in name of real parties in interest. 5. Mortgages <§=>209 — Trustee is not creditor because holding legal title to security. Mere f aqt that trustee holds legal title to security does not make it in equity a creditor with respect to deed itself. Appeal from the District Court of the United States for the Southern District of New York. Proceeding in equity by A. E. Fitkin and others against the Century Oil Company (Maryland) and others. Order allowing in part the claim filed by the Guaranty Trust Company as trustee under a mortgage for unpaid secured notes against the La Porte Oil & Refining Corporation, and E. Bright Wilson, as receiver, appeals. Order reversed. Gilman & Unger, of New York City, for appellant. Davis, Polk, Wardwell, Gardiner & Reed, of New York City (William C. Cannon, of New York'City, of counsel), for appellees. Before HOUGH, MANTON, and HAND, Circuit Judges. MANTON, Circuit Judge. By order of the District Court, a receiver was appointed for the La Porte Oil & Refining Corporation in a proceeding in equity to conserve its assets. That corporation had a mortgage upon its property, and the’ Guaranty Trust Company was named as trustee in the mortgage. . The corporation authorized and issued 5-year first lien and collateral trust 7 per cent, convertible gold notes giving the mortgage on its property as security therefor. The order appointing the receiver enjoined creditors from instituting or prosecuting claims or suits and further decreed that notice should be sent to the creditors to file their claims with the receiver within 90 days of the date of the order. The statement of claim must be duly sworn to by the creditor and the publication of notice for presentation of claims was ordered for a period of 90 days in a newspaper. The appellee filed a claim for the principal amount of the bonds authenticated, interest thereon, its commissions and expenses. At the hearing before the special master, it was conceded that the amount of the bonds outstanding at the time were of the face value of $467,412. All of the holders of these bonds had filed their claims excepting those of the face value of $122,857, and as to this latter sum, the court below allowed the claim of the appellee. The appellee in its claim stated that it was a creditor of the corporation, and that the consideration for the bonds issued was moneys loaned to it (the La Porte corporation), “and in consideration of the acceptance or purchase of said notes by the holders or registered owners thereof.” The claim stated that the appellee could not attach the original notes issued on which the claim was based, because the notes were in the possession of the owners or holders thereof, and the claimant could not obtain the same in order that they might be made part of the claim. It referred to the copy of the notes set forth in the debenture or deed of trust in lieu of the original notes issued thereunder. It further stated that, in filing the claim, the appellee did not surrender or release whatever rights it may hold for said debt under the terms of the trust indenture, but filed its claim for the purpose of securing the notes and right to share in dividends in case the security which it held under the deed of trust was insufficient for the payment of the debts, and expressly reserved its right to enforce such security in the same manner and to the same extent as if the claim had not been filed with the receiver. As the claim was finally presented, it was referred to a special master, who held that the appellee could not maintain its claim; but this was reversed by the District Judge, and the receiver seeks a review of that ruling. The mortgage by its terms in no way confers upon the appellee rights, other than those usual, to enforce payment of the notes, in the event of default, out of the security held by it as trustee. The appellee was not a creditor of the La Porte corporation, nor did it become assignee, by reason of the terms of the mortgage or otherwise, or attorney in fact for the owners or holders of the outstanding notes, with respeet to anything except the mortgaged property. The notes aré payable to the bearer thereof, or, if the notes be registered, to the registered holder thereof on the due date. We are referred to article 6 of the mortgage, the clause with reference to what may be done in ease of default. Section 3 thereof provides that the trustee in such event may proceed to protect and enforce its rights and the rights of the note holders “under this indenture” by suit in equity or action at law, either for the specific performance of any covenant or agreement contained or in aid of the execution of any power granted, or to foreclose under. the indenture for the interest or for principal or both, and “for the enforcement of any other appropriate legal or "equitable right as the trustee shall deem most effectual in support of its rights or duties hereunder.” It thus appears that the trustee, in representing the note holders and enforcing their rights as such trustee, is restricted to the rights conferred under this indenture “with reference to the mortgaged property.” The purpose of this clause was to permit the foreclosure of the lien held by the trustee for the benefit of the note holders in the event of default, or to take such other action as may be necessary to make valid the lien granted upon the securities and the property transferred to the appellee as security for the payment of the notes. Article 6, § 4, required the trustee “to take all steps needful for the protection and enforcement of the rights of the trustee and the rights of the holders of the notes hereby secured.” The same clause provides such action be taken upon proper indemnity and upon receiving the written request of 20 per cent, of the note holders outstanding. It is no): alleged or contended that 20 per cent, or more of the note holders made such a request or that proper indemnity was given. This provision gives the trustee no right to file a claim. The evidence of indebtedness is the note — not the instrument of mortgage. The consent of the appellee to reduce its claim when note holders actually filed their claims individually is an admission against the contention made that the sole and exclusive right resides with the appellee to file a claim for note holders. Without the original notes accompanying the mortgage as part of the proof of claim, the order of the District Court was not complied with in the matter of filing claims. As stated by the appellee, it could not do so, for the notes were in possession of the owners and holders. It was said below that the practice in the District Court.has been to permit the trustee to file the claims of bond, or note holders under the mortgage. Pintsch Compressing Co. v. Buffalo Gas Co. (C. C. A.) 280 F. 830, and Penn. Steel Co. v. N. Y. City Ry. et al., 216 F. 458, 132 C. C. A. 518, are referred to as authorities for such practice. The cited eases do not support such a practice or rule of law. In the Pintseh Case, it was not contended that the trustee could not prosecute its claim on its deficiency judgment. It was claimed that, as the bonds were not in default at the time of the appointment of sequestration receivers, the trustee was not entitled to share in the funds of the sequestration receivership. We held that the bonds were provable at the time of the appointment of the receivers without it being necessary for the trustee or bondholders to first resort to the security given for .the bonds. No question was presented as to whether the trustee or bondholders were the proper parties to prosecute the claim. The question presented was whether it was necessary to first resort to the collateral security. In the opinion there delivered, the writer quoted from the opinion of the special master in Penn. Steel Co. v. N. Y. City Ry. Co., supra, where the special master said: “The claimant trustee under the two Metropolitan mortgages have an unquestionable right under the authorities, federal and state, to prove claims to the extent of the face value of bonds secured, against general assets of the insolvent Metropolitan Company, subject only to the limitation that the amount-of the deficiency decrees to be hereafter entered will suggest a maximum amount to be paid on the claims allowed.” There the master was considering two mortgages which contained provisions other than those in the case at bar, one of which contained a covenant that the railway company would pay to the trustee, for the benefit of the holders of the bonds and coupons that may be secured and then outstanding, the whole sum due and payable on all such bonds and coupons for the principal or interest, or both. And, in case the railway company failed to pay the sum, “the trustee in its own name, and as trustee of an express trust, shall be entitled to recover judgment against the railway company for the whole amount so due and unpaid,” and the master held that, by virtue of such express authority, the other claimant was authorized to file and approve the claims on behalf of all the owners and holders of bonds as trustees of the express trust. The master’s report was approved by the District Judge. There the trustee was a payee of the bonds, and by virtue of the express authority conferred by the mortgage, was duly authorized to file and. approve the claim on behalf of the owners and holders of the bonds. The cases are distinguishable. Here the appellee is not the payee named in the notes, nor is it made such a creditor under the terms of the mortgage. It has been judicially recognized that a provable debt under a deed of trust is represented by the bonds secured thereby, and, in the absence of authority granted to the trustee by the. terms of the mortgage,, the right to file a claim resides in the note or bond holders only. United States-Trust Co. v. Gordon, 216 F. 929, 133 C. C. A. 117; Mackay v. Randolph Macon Coal Co., 178 F. 881, 102 C. C. A. 115; In re U. S. Leatheroid & Rubber Co. (D. C.) 285 F. 884. Under the mortgage here considered, since the trustee is neither the holder nor the payee of the note, it could not maintain an action at law for the collection of any of the notes. Its authority to proceed under the mortgage to collect the principal and interest of the bonds has reference to the collection of or the enforcement of the security. The right to maintain a suit is a matter of law, and not subject to be controlled by private conventions of the parties. Suits must be in the name of the real parties in interest. The only exception to this rule is where a trustee of an express trust may maintain an action in his own' name on behalf of the beneficiaries. There the trustee must be the holder of the property or obligation out of which the action arises, or a person with whom or in whose name a contract is made-for the benefit of another may maintain an action upon the contract. A trustee under a mortgage comes within this exception as to the security, but not as to the bonds or notes, for they are not payable to the trustee. Mackay v. Randolph Macon Coal Co., supra. The mere fact that a trustee holds legal title to security does not make it in equity a creditor with respect to the debt itself. United States Trust Co. v. Gordon, 216 F. 929, 133 C. C. A. 117. A distinction is to be noted between allowing a deficiency judgment in foreclosure proceedings and filing a claim as a creditor in either equity or - bankruptcy proceedings. Where there is a mere foreclosure, affecting a portion only of the corporation’s property, it is advisable, in order to avoid multiplicity of suits arising out of the deficiency judgment and number of note holders, that the-trustee collect and distribute pro rata the entire deficiency. But, where an equity receivership or bankruptcy intervenes, there is-no longer a reason for allowing the trustee to act for the benefit of the note holders. Particularly is this true where there has been no foreclosure, and where the' claim is based solely upon the obligation represented by the notes, which were not owned or held by the trustee, other than the rights conferred by the terms of the deed of trust. Order reversed. Question: What is the total number of appellants in the case? Answer with a number. Answer:
songer_respond1_1_3
I
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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. GIMBEL BROTHERS, INC., Appellant, v. WILLIAM H. VANDERHERCHEN, INC., Appellee v. BELGRADE WAGON WORKS, Third-Party Defendant. No. 71-1790. United States Court of Appeals, Third Circuit. Submitted Under Third Circuit Rule 12(6) Sept. 7, 1972. Decided Oct. 20, 1972. Richard W. Hopkins, White & Williams, Philadelphia, Pa., for appellant. John T. Quinn, McEldrew, Hanamirian, McWilliams, Quinn & Bradley, Philadelphia, Pa., for appellee. Before SEITZ, Chief Judge, and VAN DUSEN and ALDISERT, Circuit J udges. OPINION OF THE COURT VAN DUSEN, Circuit Judge. Gimbel Brothers, Inc. (Gimbel) appeals from the district court’s entry of summary judgment in favor of the defendant, William H. Vanderherchen, Inc. (Vanderherchen). Gimbel’s complaint alleged that Vanderherchen had contracted to erect various tents for a two-week period at Gimbel’s Cheltenham branch. After the tents were úp, there was a rainstorm and the tents leaked, resulting in about $40,000 worth of damage to Gimbel’s goods stored in the tents. Gimbel alleged that this injury was due to Vanderherchen’s negligence in supplying or erecting the tents. Jurisdiction was based on diversity. The district court granted Vanderherchen’s motion for summary judgment, which incorporated the lease, because the following provision appeared in such lease prepared by Vanderherehen: “3. Lessee [Gimbel Brothers, Inc.] hereby indemnifies and agrees to save and keep Lessor [William H. Vanderherehen, Inc.] harmless of and from any loss, damage, liability, costs, claims or charges whatsoever arising as a result of any claim for damage to property, or injury to person, from, during or because of the use of the leased property by Lessee, or the erection or taking down thereof, or storing thereof upon the premises, or otherwise, while the same are in the custody or possession of Lessee, except injuries to any employees of Lessor not caused through Lessee’s negligence. Without limiting the generality thereof, it is agreed that lessor shall not be liable for and is hereby indemnified against, any damage to property or injury to person suffered by anyone whatsoever through or because of the said leased property while the same is in Lessee’s possession or custody due to any fire, no matter how arising in the said leased property or any breakage defect or failing thereof or to any strikes, picketing, labor disturbances or acts of anyone arising from any labor controversy whether the persons committing the same be at the time employees of Lessor or not.” The test of the effectiveness of such a provision has been set forth in Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 436, 192 A.2d 682, 688 (1963) : “[W]here a person claims that, under, the provisions and terms of a contract, he is rendered immune from and relieved of any liability for negligent conduct on his part or the part of his employees, the burden is on such person to prove (a) that such contractual provisions and terms do not contravene public policy and (b) that the provisions and terms of the contract clearly and ■ unequivocally spell out the intent to grant such immunity and relief from liability.” (Emphasis in original.) See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1216-1221 (3d Cir. 1970); Warren City Lines, Inc. v. United Refining Co., 220 Pa.Super. 308, 287 A.2d 149 (1971). The question this case presents is how the provision in Yanderherchen’s contract is to be construed. As stated above, Dilks requires that to relieve a party of his own negligence, language must be clear and unequivocal, and the burden of proof falls on the party seeking such relief. This burden is even greater where, as here, such party drafted the agreement. See Pennsylvania Railroad Co. v. Erie Avenue Warehouse Co., 302 F.2d 843, 849 (3d Cir. 1962). The cases have distinguished situations where the indemnity clause explicitly referred to liability for a party’s own negligence from situations where there was “an obligation to indemnify for ‘all liability’ or ‘all loss.’ ” Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166 at 173, 228 A.2d 656 at 660. See also Neville Chemical Co. v. Union Carbide Corp., 422 F.2d at 1220 (“The clause that Carbide relies on does not include the word negligence or any of its cognates and is essentially a clause of ‘general import.’ ”). The language here, while broad, does not specifically state that Vanderherchen is to be indemnified against liability arising out of Vanderherchen’s own negligence. Consequently, we hold that the clause is not an effective defense to the allegations in Gimbel’s complaint. The district court’s entry of summary judgment will be vacated and the case remanded for proceedings consistent with this opinion. . In regard to validity, we doubt that Gimbel can plausibly maintain that its bargaining position was such as to make this a contract of adhesion. Nor can it be said that it would have been unreasonable for Gimbel to bear alone the risk that the tents would cause damage if the lease so provided. In such circumstances, indemnification clauses are valid. See Jamison v. Ellwood Consolidated Water Co., 420 F.2d 787 (3d Cir. 1970); Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 228 A.2d 656 (1967). 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_geniss
B
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". Eric DAHLBERG, Plaintiff-Appellant, v. Carl F. BECKER; Govern, McDowell & Becker; Ellen M. Dahlberg; and Harvey E. Stoddard, Jr., Defendants, Carl F. Becker; Govern, McDowell & Becker; and Ellen M. Dahlberg, Defendants-Appellees. No. 1374, Docket 84-7219. United States Court of Appeals, Second Circuit. Argued June 20, 1984. Decided Nov. 9, 1984. Herbert Jordan, Roxbury, N.Y. (Randlett Walster, Rural Legal Rights Foundation, Inc., Roxbury, N.Y., of counsel), for plaintiff-appellant. John E. Hunt, Utica, N.Y., (Andrea Lynch, Kernan and Kernan, P.C., Utica, N.Y., of counsel), for defendants-appellees Carl F. Becker and Govern, McDowell and Becker. Before MESKILL, CARDAMONE and ROSENN, Circuit Judges. Honorable Max Rosenn, United States Circuit Judge for the Third Circuit, sitting by designation. CARDAMONE, Circuit Judge: This appeal from an order, dismissing plaintiff’s complaint for failure to state a claim, made by the United States District Court for the Northern District of New York (Miner, J.), 581 F.Supp. 855, presents a question of first impression that involves the well-known litany of Title 42 U.S.C. § 1983, which states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities, secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Despite our familiarity with the refrain, the scope and meaning of the words have not proved easy to define. This case provides yet another opportunity to explore the contours of § 1983. In venturing into the unplumbed depths of “state action,” a sense of the strong yet uncertain cross-currents in this area of the law leads us to hug the known legal shore as closely as possible. I The facts in this case stem from a dispute between plaintiff, Eric Dahlberg, and defendant, Ellen Dahlberg, his former wife. A matrimonial proceeding between them ended in a default divorce and a stipulation of settlement which was executed by the parties and later incorporated in a June 1982 decree. When the plaintiff failed to make the payments required by the stipulation, his wife’s attorneys — co-defendants in the present litigation — prepared an order to show cause why he should not be held in contempt. The order stated that plaintiff owed defendant $1,785 for maintenance and $800 in costs and fees to her attorneys and that he had neglected to execute certain documents, including a promissory note for $8,000 and security instruments covering certain machinery. The show cause order, presented ex parte on November 23, 1982 to an Acting New York State Supreme Court Justice for Delaware County, was made returnable in December at Special Term. When neither plaintiff nor his attorney appeared on the return date, the Special Term Justice found Dahlberg guilty of contempt and signed an order which provided that he could purge himself of contempt by paying the maintenance arrearage and signing the requisite promissory notes and financing statements. The order also stated that further noncompliance on Dahlberg’s part would cause an order of commitment to issue. When Dahl-berg again failed to respond, Special Term signed a commitment order that resulted in Dahlberg’s arrest on June 7, 1982 by the Sheriff of Schoharie County. After plaintiff was transported to the county jail, he was advised that to obtain his release he would have to pay $300 in maintenance, $2500 in attorneys’ fees, plus the sheriff’s fees. Upon reading the order of commitment, the Schoharie County Court Judge who conducted the arraignment told Dahl-berg that he had no alternative but to hold him without bail. Later that same afternoon Dahlberg’s friends provided him with the necessary funds, promissory notes and financing statements. Despite plaintiff’s willingness to meet these obligations, the County Court Judge refused to order plaintiff’s release absent authorization from either a State Supreme Court Justice or Ellen Dahlberg’s attorneys. Plaintiff was therefore confined overnight in the Scho-harie County jail. The next morning, June 8, defendant’s attorneys telephoned the County Court Judge and authorized plaintiff’s release, contingent on his signing the requisite documents and paying the maintenance and attorneys’ fees. Shortly before noon Dahlberg was again before the county court where he signed the documents, paid the fees and obtained an order releasing him from jail. Based on these events, plaintiff commenced the present action in district court pursuant to 42 U.S.C. § 1983. In his complaint he alleges that Ellen Dahlberg and her attorneys acted under color of state law to cause his unlawful arrest and imprisonment violating his Fourteenth Amendment rights. Specifically, Dahlberg asserts that defendants, intentionally and/or negligently: (a) prepared a false affidavit and submitted it to the New York State Supreme Court in support of the show cause order as a basis for obtaining a promissory note and financing statements to which, he alleges, defendants were not entitled; (b) omitted from the order to show cause the notice and warning required by section 756 of the New York Judiciary Law; (c) violated section 761 of the New York Judiciary Law by serving an order to show cause for contempt upon an attorney whose authority had expired; and (d) failed to include with the commitment order either the actual promissory note and financing statements or a satisfactory description of those documents so that the County Court Judge could assess plaintiffs compliance and thereby avoid his needless incarceration. As a result, Dahlberg claims to have suffered damages from lost work, work improperly performed by unsupervised employees, injury to business reputation, as well as extreme shock, outrage, degradation and humiliation. Ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), Judge Miner concluded that Dahlberg’s complaint failed to state a claim upon which relief can be granted. He found it clear that neither Ellen Dahlberg nor her attorneys acted under color of state law. Plaintiff has not appealed the dismissal of his suit against Ellen Dahlberg. In his appeal of the dismissal of his suit against defendant attorneys, plaintiff renews his contention that through their joint participation with a state official as well as their independent exercise of power allegedly ceded to them by a state official they acted under color of state law. Although we affirm the result reached by the district court jduge, we do so for somewhat different reasons. II Since the judgment below was premised on Fed.R.Civ.P. 12(b)(6), we note at the outset that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). Moreover, in passing on a motion to dismiss, the allegations of the complaint must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975). Even accepting Dahlberg’s allegations as true, his complaint does not state a cause of action under 42 U.S.C. § 1983. We start with the words of the Fourteenth Amendment that no State shall deprive any person of life, liberty or property without due process of law. By enacting 42 U.S.C. § 1983 Congress provided a remedy for a claimed violation of this constitutional guarantee. The statute permits suit upon deprivation under color of any state statute, ordinance, regulation, custom or usage of one’s life, liberty or property without due process of law. • Section 1983 protects an individual’s rights against governmental action, as distinct from private action, whether the government is state or municipal. As a corollary, individuals are also protected against acts of private parties who act in concert with government officials. In order to allege a good cause of action, plaintiff must charge first that the conduct complained of has deprived him of a constitutionally-protected right; and second, that the conduct allegedly causing the deprivation was fairly attributable to the State. The Supreme Court has set forth a two-part analytical approach to this question of “fair attribution.” Plaintiff must show that the allegedly wrongful action occurred as a result of the exercise of a state-created right or privilege, or by a state-imposed rule of conduct. Plaintiff must also show that the party charged with the deprivation is a person who is a state official or someone whose conduct is otherwise chargeable to the State. In other words, to establish deprivation of a federally-protected right there must be both “state action” and a “state actor.” Since both parties to this appeal rely on Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 78 L.Ed.2d 482 (1982), to support their opposing conclusions, we undertake to analyze it in some depth. The facts are relatively simple. A truckstop operator in Virginia indebted to his supplier was sued in state court on the debt. Simultaneously, the supplier sought prejudgment attachment of the debtor’s property pursuant to Virginia law. Acting upon the supplier’s ex parte petition, a state court clerk issued a writ of attachment that was executed by the county sheriff. As a result, the debtor’s property was sequestered for 34 days, at which time the attachment was dismissed due to the supplier’s failure to establish a statutory basis for the issuance of the writ. The debtor thereupon sued under § 1983 alleging that the supplier, a private party, had acted jointly with the State to deprive him of his property without due process of law. Id. at 924-25, 102 S.Ct. at 2747-48. Lugar proceeded to outline a standard for determining the presence of state action. The Court held that the conduct causing the deprivation of a federal right must be fairly attributable to the State and, accordingly, proposed a two-pronged approach to determining “fair attribution.” First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible . . . . Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State. Id. at 937, 102 S.Ct. at 2754. Lugar then examined the two counts of plaintiff’s complaint in light of its test. Count one asserted that Virginia’s prejudgment attachment statute was constitutionally defective. Count two simply alleged plaintiff’s deprivation came about by defendant’s unlawful acts. The Court considered count two first and held that it failed to satisfy the first prong because it did not charge conduct that could fairly be attributed to any state governmental decision or rule. Rather, the Court specifically asserted that defendants invoked the state statute in abuse of and in direct contravention to relevant state policy. Id. at 940,102 S.Ct. at 2755. Thus, the Court held that count two failed to assert a valid § 1983 claim because it did not satisfy the state action or first prong of the fair attribution test. The Court then examined count one and found that it met the first prong of the fair attribution standard. As the Court noted: “While private misuse of a state statute [i.e., count two] does not describe conduct that can be attributed to the State, the procedural scheme created by the statute [i.e., count one] obviously is the product of state action.” Id. at 941, 102 S.Ct. at 2756. It next applied the second prong of the test to the allegations in count one. It observed that a private party’s “joint participation” with state officials in the seizure of disputed property will suffice to characterize that party as a state actor. Id. at 941, 102 S.Ct. at 2756. Lugar held that defendants were such joint participants and, therefore, state actors because they “in-vok[ed] the aid of state officials to take advantage of state-created attachment procedures.” Id. at 942, 102 S.Ct. at 2756. Ill Eric Dahlberg likens his case to Lugar and urges that the Court’s holding there supports his § 1983 claim. The deprivation of Dahlberg’s federally-protected right to liberty by his overnight imprisonment is not questioned. Accordingly, we turn to the two part “fair attribution” test to determine whether his rights were deprived under color of state law. As the ensuing analysis demonstrates, neither prong of the “fair attribution” test has been satisfied. As previously stated, the state is responsible for violation of plaintiff’s constitutional rights whenever that deprivation is caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible. 457 U.S. at 937, 102 S.Ct. at 2754. The Supreme Court read count one of Lugar’s complaint to allege that Virginia’s prejudgment attachment statute was procedurally defective under the Fourteenth Amendment. Id. at 941, 102 S.Ct. at 2756. The deprivation of Dahlberg’s federally-protected rights is not “caused” by the exercise of some right created by the State in the same sense as was Lugar’s. A private party’s misuse of New York’s Judiciary Law that causes plaintiff to be imprisoned overnight is not fairly attributable to New York State. In Lugar the state statute was itself constitutionally defective. Since a State is charged with the responsibility of assuring that its laws are constitutional, a constitutionally defective statute is plainly a product of state action. As such, it was deemed in Lugar to have “caused” or “permitted” defendant to seize plaintiff’s property. Plaintiff has not here alleged that New York’s procedure for notice and adjudication of contempt is constitutionally defective. Thus, the present case does not fall within the Lugar rationale for state action. In fact, the instant case is more closely related to count two of Lugar’s complaint that asserted that the deprivation of property resulted from private party defendants’ “ ‘malicious, wanton, willful, opres-sive [sic], [and] unlawful acts.’ ” Id. at 940, 102 S.Ct. at 2756. This allegation did not ascribe conduct to any state governmental decision or action. Instead, it implicitly legitimized the state statute and complained only that the private party defendants had run afoul of the statute. In the words of the Court: “That respondents invoked the statute without the grounds to do so could in no way be attributed to a state rule or a state decision . . . . [P]rivate misuse of a state statute does not describe conduct that can be attributed to the State . . . .” Id. at 940-41, 102 S.Ct. at 2756. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (abuse of authority doctrine). Private misuse of a state statute is precisely what plaintiff has alleged here. Dahlberg’s complaint accuses his ex-wife’s lawyers of intentionally or negligently violating the notice provisions of New York Judiciary Law § 756 and thereby causing his subsequent arrest and imprisonment. It is one thing to hold a State accountable for the unconstitutional acts of its legislature, but quite another to charge that State with responsibility where private parties abuse an otherwise valid state law. In the latter case, the State does not sanction such abuse, nor can it prevent it any more than it can stop a private party from committing a crime or tort. Thus, the deprivation of Dahlberg’s rights was not caused by the exercise of some right or privilege created by the State. Nor can the conduct complained of subject defendants to Section 1983 liability for their actions based upon a rule of conduct imposed by New York. See Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964) (custom alone is insufficient to turn private conduct into state action). As the Supreme Court held in Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the decision to discriminate must be ascribed to a governmental decision, so a private club’s racially restrictive policies do not constitute state action subjecting the club to constitutional restraint. Thus, since defendants’ actions were not encouraged by any rule of New York — regardless of whether they were intentional or malicious — they may not be viewed as caused by a rule of conduct imposed by the State or a person for whom the State is responsible. Therefore, they are not attributable to the State. Plaintiff challenges this conclusion by asserting that there are other ways of establishing state responsibility. Specifically citing numerous cases including Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980), and Howerton v. Gabica, 708 F.2d 380 (9th Cir.1983), he attempts to characterize his situation as indistinguishable from them. We agree that state responsibility, the first prong of the fair attribution test, does not inevitably turn on the presence or absence of an unconstitutional state law. Lugar makes this clear. Nonetheless, we reject Dahlberg’s contention that this case satisfies the state responsibility requirement in some other form. Dennis v. Sparks is quite different from the case at bar. There the “action under color of state law” requirement of § 1983 was met where plaintiff’s complaint alleged a conspiracy between the private party defendants and a state official. 449 U.S. at 28, 101 S.Ct. at 186. Dennis never discussed Fourteenth Amendment state action or fair attribution of state responsibility. In fact, it was decided nearly two years prior to Lugar, which Dahlberg concedes controls. Even assuming that the Court in Dennis implicitly found state action and state responsibility, such a finding does not mandate a similar result here. The Lugar test for state responsibility is satisfied where the deprivation of plaintiff’s rights is caused “by a rule of conduct imposed by the State or by a person for whom the State is responsible.” 457 U.S. at 937, 102 S.Ct. at 2754. In Dennis, the judge who allegedly accepted a bribe and conspired with private parties was obviously a “person for whom the State is responsible.” This is also true with respect to the state judges involved in the Dahlberg contempt proceedings. The difference is the presence in Dennis and the absence here of an alleged bribe and conspiracy, before such intentional misconduct can be considered a “rule of conduct.” Where a state judge’s single, isolated error in signing a defective order was due to oversight or negligence, such nonfeasance may hardly be characterized as a rule. A series or pattern of similar negligent acts might arguably establish a rule of conduct for which the State would be responsible. But Dahlberg has not alleged a pattern of behavior, and we do not assume that a state court judge in this or any other case makes a practice of signing defective orders. Moreover, plaintiffs in § 1983 cases need not allege a pattern of behavior in cases like Dennis where the state official acts intentionally rather than negligently. The reason is plain. Given an actor’s presumed control over his intended actions, one intentional act can signify the presence of a “rule of conduct,” even though in its infancy. Thus, there is good reason for an actor to be held responsible for his intentional behavior, as opposed to his mere inadvertence. And, responsibility is of course a touchstone of fair attribution. A more difficult problem is presented by the Ninth Circuit’s decision in Howerton v. Gabica, supra, 708 F.2d 380. There, defendant landlords undertook to evict plaintiff tenants from a rented trailerhouse. In the process defendants prepared a three-day eviction notice that was allegedly defective under state law. They subsequently sought the aid of local police who, together with defendants, evicted the plaintiffs, despite plaintiffs’ assertion to the police that the eviction notice unlawfully failed to state the amount of rent due and permit payment of that amount as an alternative to vacating. Plaintiffs also contended that the eviction did not comply with the state’s unlawful detainer statute that requires a court order prior to eviction. The Ninth Circuit ruled that plaintiffs ■ had stated a cause of action against the landlords under § 1983. In particular, it held that the action taken by the landlords was “under color of state law” since it involved significant state involvement. 708 F.2d at 382. Taking note of Lugar, the Howerton court determined that where “police involvement becomes increasingly important, repossession by private individuals assumes the character of state action.” Id. at 383. Consequently where private individuals invoke the authority of state officials, such as the police, to put the weight of the State behind their decision to evict, they fall within the “abuse of authority” doctrine. Id. at 384 n.9 (citing Lugar v. Edmondson Oil Co., 457 U.S. at 940, 102 S.Ct. at 2756). See Monroe v. Pape, supra. While the circumstances in Howerton and the instant case are similar, we observe that although the Howertons called the police officer’s attention to the defects in the notice, the police proceeded to enforce the eviction anyway, even to the extent of one officer visiting the Howertons’ residence to tell them the defendant’s eviction procedures were proper and that they should quit the premises. Id. at 381. That is quite unlike the conduct of a judge who unknowingly signs a defective order that has been prepared and submitted to him by an attorney. Hence, regardless of their similarities, we perceive factual distinctions in the circumstances of the two cases. Again, the question of state involvement is always a factual inquiry and, “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961). ÍV Despite the conclusion that here there is no state action, we think it necessary in light of the alluded to uncertain cross-currents that envelope state action to discuss our reasons for also concluding that defendants are not state actors. Bearing in mind that it requires both state action and a state actor for.plaintiff to state a viable cause of action under § 1983, a failure sufficient to allege either defeats plaintiff’s cause. While Ellen Dahlberg’s lawyers are not state officials, the question nonetheless remains whether under any one of several theories they may still be considered state actors. Aside from the field of prejudgment attachment, several theories have evolved that when properly- alleged suffice to tie a private person so closely to governmental actions that a court will hold the private actor’s conduct subject to suit for violating another’s constitutional rights. Thus, a private party may be held a state actor when the complained of conduct results from a state agent’s encouragement or command, the state and private actor jointly participate in depriving plaintiff of his rights, the granting of benefits to a private actor by the state inseparably links them together, or the private actor undertakes to perform activities ordinarily exclusively engaged in by government. As the ensuing discussion demonstrates none are applicable to the claims before us. First, nothing before us suggests that the state judicial officers commanded or encouraged defendants in their decision to invoke state process against plaintiff. Second, the joint participation theory — adopted as the rationale in Lugar — does not fit this case when it is compared to those cases finding state action on that theory. For example, the government agent and the thugs laying in wait for the victims in United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1965), carried out a deliberate, previously agreed upon plan. In Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), the state agent’s joint participation with Kress employees was found to constitute a conspiracy or meeting of the minds. The complaint in this case simply alleges that Ellen Dahlberg and her attorneys acted “in concert with state and county officials” to imprison plaintiff. No claim is made — and on the facts in the record none could be — that the different state judges actually entered into a conspiracy or had a meeting of the minds with the attorney defendants as in Price and Adickes to deprive plaintiff of his liberty. See Dennis v. Sparks, supra, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185. Further, the mere invocation by defendants of New York's legal procedures does not constitute joint participation so as to satisfy the statutory requirement under § 1983 that there be a state actor. Lugar at 939 n.21, 102 S.Ct. at 2755 n.21. While entanglement by the private actor with the State may lead to a conclusion that there is a conspiracy or meeting of the minds between private parties and state officials to engage in conduct to deprive a plaintiff of constitutional rights, the action of the state court judges and the sheriff in this case do not establish any meeting of the minds or intent to conspire with defendants to imprison plaintiff. Third, there is no basis for finding an inseparable linking or symbiotic relationship arising from any benefits granted by the state to these defendants as in Burton v. Wilmington Parking Authority, supra, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Finally, the exclusivity doctrine has no application here. That doctrine applies where the private party undertakes to perform a function exclusively performed by government, for example, elections, see Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), or running a company-owned town, see Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). More traditional business activities, like the operation of a public utility, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), are not so exclusive. Thus, in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), the use of state law patterned on the Uniform Commercial Code as a method of dispute resolution between a debtor and creditor was private activity. In Flagg Brothers the defendant warehouseman who had a lien on plaintiff’s goods in his possession arising from unpaid storage charges sold plaintiff’s property. The Supreme Court held it unnecessary to examine whether the law itself or the actions of the warehouseman violated due process because defendant’s actions were entirely private. Similarly, the parties’ matrimonial dispute in New York involving unpaid alimony and attorneys’ fees are not matters exclusively relegated to the State. On the contrary, this kind of dispute is ordinarily resolved by institution of an action between private parties. Therefore, the exclusivity theory does not transform defendants into state actors. Since none of these theories provides a ground for holding defendants to be state actors, we conclude that they are not. V In concluding that plaintiff failed to state a cause of action under 42 U.S.C. § 1983 because there was no demonstration either of state action or a state actor, we do not mean to suggest that plaintiff is without a remedy. The incidents alleged may well support a tort action in state court. We simply conclude that the events recounted here do not provide a basis for a federal claim. . Section 756 states, in pertinent part: An application to punish for a contempt punishable civilly may be commenced by notice of motion returnable before the court or judge authorized to punish for the offense, or by an order of such court or judge requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense. ... The application shall contain on its face a notice that the purpose of the hearing is to punish the accused for a contempt of court, and that such punishment may consist of fine or imprisonment, or both, according to law together with the following legend printed or type written in a size equal to at least eight point bold type: WARNING: YOUR FAILURE TO APPEAR IN COURT MAY RESULT IN YOUR IMMEDIATE ARREST AND IMPRISONMENT FOR CONTEMPT OF COURT N.Y.Jud. Law § 756 (McKinney Supp.1983). . “An application to punish for contempt in a civil contempt proceeding shall be served upon the accused, unless service upon the attorney for the accused be ordered by the court or judge." N.Y.Jud. Law § 761 (McKinney Supp. 1983). . We recognize that the concept encompassed by "state action” and "state actor” overlap. They collapse into each other when the claim of a constitutional deprivation is directed against a public official. The two requirements diverge only when the claim is directed against a private party. . The use of the word "responsibility” does not imply that actions taken pursuant to state authority will impose legal liability upon the State, but the term means, as Webster’s first definition states, only that the deprivation of plaintiffs federally-protected rights is "caused” by the exercise of some right or privilege created by the State. . Sheriff Stoddard is no longer a party to this action since the cause of action against him, pursuant to Fed.R.Civ.P. 41(a), was dismissed by stipulation and order filed February 2, 1984. 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_concur
1
What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who either wrote a concurring opinion, joined a concurring opinion, or who indicated that they concurred in the result but not in the opinion of the court. Anna JENNINGS, Administratrix of the Estate of Stewart Earl Jennings, deceased; State of Maryland, to use of Anna Jennings, surviving wife, Anna Frances Jennings, a minor, Russell Earl Jennings, a minor, Gregory Stewart Jennings, a minor, and the unborn child or children, en ventre sa mere, of Stewart Jennings; Margaret M. Jennings, in her own right as mother and next friend of Donald S. Jennings and Donald S. Jennings in his right, Appellants and Cross-Appellees, v. UNITED STATES of America, Appellee and Cross-Appellant. No. 8117. United States Court of Appeals Fourth Circuit. Argued Oct. 11, 1960. Decided May 4, 1961. David L. Rose, Atty., Dept, of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Leon H. A. Pierson, U. S. Atty., Baltimore, Md., and Morton Hollander, Atty., Dept, of Justice, Washington, D. C., on brief), for appellee and cross-appellant. Paul R. Connolly, Jr., Washington, D. C. (David N. Webster, and Hogan & Hartson, Washington, D. C., on brief), for appellants and cross-appellees. Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and STANLEY, District Judge. HAYNSWORTH, Circuit Judge. The tragedy out of which these cases arose occurred in Maryland on a highway constructed and maintained by the United States Government. On the morning of January 23, 1956, Stewart Earl Jennings, a civilian employee of the United States, was driving his automobile from his home in Maryland to his place of work in the District of Columbia. Stewart’s brother, Donald S. Jennings, was a passenger in the car. At about 7:30 a. m., while driving on Suitland Parkway in Maryland, a highway under the control of the National Capital Park Bureau, Department of the Interior, Stewart’s automobile skidded on a patch of ice on the road, went out of control, and collided with an oncoming automobile in the opposite lane of traffic. Stewart Jennings was killed and his brother, Donald, was seriously injured. Thereafter, based upon the alleged negligence of the United States, three suits were filed under the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2674, in the United States District Court for the District of Maryland. The Administratrix of Stewart Jennings’ estate brought, an action for Stewart’s conscious pain and suffering before death, for loss of his automobile, and for funeral and burial expenses. An action was also-brought to the use of Stewart’s widow and four children under the Maryland Lord Campbell’s Act, Code 1957, art. 67, § 1 et seq., for damages resulting from his alleged wrongful death. There was-a third suit based on the injuries suffered by Stewart’s brother, Donald Jennings. In a lengthy trial, much evidence was-presented bearing on the construction of the road at the particular place, the-weather conditions preceding the time of the accident, the driving hazard at this point, the notice, actual or constructive, chargeable to the Government of the existence of the ice, the alleged contributory negligence of Stewart Jennings, and the amount of damages. The District Judge found the Government negligent and Stewart Jennings free from contributory negligence. The detailed evidence relating to these questions, together with the findings of the District Judge, are set forth in the Judge’s comprehensive opinion. Jennings v. United States, D.C.Md.1959, 178 F.Supp. 516. Damages in the sum of $850 were awarded in the Administratrix’s suit, $83,700 in the wrongful death action, and $21,978 in favor of Donald Jennings. The plaintiffs have appealed, contending that in several respects the District Court erroneously calculated damages, and the Government has cross-appealed, raising issues of liability and contributory negligence, and it also attacks the computation of damages. The principal issue is raised by the Government and concerns the extent of a defendant’s liability for injuries caused by icy conditions on a roadway under its control. As the accident happened in Maryland, the law of that state is to be applied. Suitland Parkway, built by the United States Army Engineers in 1944 as a military highway, runs in a generally east-west direction from Andrews Air Force Base on the East to South Capital Street in the District of Columbia on the West. On that portion of it where the accident occurred it has a concrete surface providing two traffic lanes, one for traffic moving in each direction. As modern highways are, it is banked on curves and, at the point where the accident occurred, there is a slight curve so that the northern edge of the highway is slightly higher than the southern edge. Necessarily, water from melting ice and snow piled on the shoulder of the high side of the roadway will drain across the highway surface. On Thursday, January 19, 1956, there had been a heavy snow. Plows had removed the snow from most of the road surface, piling it up on the edges of the road and on the shoulders. Sunday, January 22, was warm and the accumulated snow and ice was melting. In many places, water from melting snow was draining across the roadway. The thawing conditions continued in general throughout the night of the 22nd-23rd. The official temperatures at the Washington National Airport show that the temperature fell on the afternoon and evening of the 22nd from a high of 46° F. at 3:00 o’clock in the afternoon to 37° F. at midnight. The reading was 36° F. at 1:00 a. m. and at 2:00 a. m. on the morning of the 23rd. It dropped to a low of 35° at 3:00 a. m., and was back up to 37° at 4:00 a. m. on that morning. It was again 36° at 5:00 o’clock and at 6:00 o’clock, and climbed again to. 37° at 7:00 o’clock, and that reading was also recorded at 8:00 o’clock. The temperature fell again to 35° at 9:00 o’clock and to 32° at 10:00 o’clock on the morning of the 23rd. Despite the fact that the official records indicated that the temperatures at the Washington National Airport were above freezing throughout the night of January 22-23, one witness testified that between 10:00 and 11:00 o’clock on the evening of the 22nd, he saw a patch of ice at an unspecified point on the highway and felt his rear wheels slip as he passed over it. One of the officers who patrolled the highway that night felt his wheels spin when he passed over what he supposed to be patches of ice while on his way to work, but he testified that when he looked for it later, while on his official patrols, he found no ice. Mrs. Jennings’ brother and sister, in separate automobiles, each testified that a patch of ice was encountered on the parkway around midnight. A number of witnesses traveling on the highway between approximately 6:00 o’clock and 7:30 o’clock on the morning of the 23rd testified that they saw or felt themselves passing over a patch of ice at a point approximately seven-tenths of a mile east of Forestville Road, the point where the accident occurred. There was no specific testimony that ice was at that particular place at an earlier hour. Unquestionably, there was a patch of ice on the roadway, observed by many witnesses, shortly after the accident. One of the officers investigating the accident called for sand, but, inexplicably, when the sand truck arrived at approximately 8:15 o’clock there was no longer any ice though the surface of the highway was wet from the melting snow, and though the official weather reports indicate that the temperatures were falling after 8:00 o’clock that morning and reached 32° F. by 10:00 o’clock. Suitland Parkway is maintained by the National Capital Park Bureau. The officers on duty on the night of January 22-23, including the one who thought from the feel of his wheels that he had passed over patches of ice on his way to work prior to 11:00 o’clock on the evening of the 22nd, testified that they encountered no ice on their patrols, though they were looking for it and though they made some six or seven round trips over the entire length of the highway during the night. There were two places, not the scene of the accident, one at the intersection of an access road and another where there was an overpass, which they thought prone to become icy when the rest of the roadway was unfrozen. Those two places they particularly checked, and at one of them one of the officers got out of the car to make certain by the feel of his foot that the substance on the roadway was indeed water and not ice. Throughout the night of January 22-23, as on other similar nights in the wintertime, there was a loaded sand truck available on call to sand the roadway in the event of icing. The sand truck could have been summoned by the patrolling officers by use of their radio, but the official log disclosed no request for sand and the patrolling officers testified they requested no sand, for they encountered no ice. Nevertheless, and though there was only water on the roadway, shortly after 8:00 o’clock, as we have indicated, there clearly was a patch of ice on the roadway at or near the point where Stewart Jennings lost control of his automobile at approximately 7:30 o’clock on the morning of the 23rd, with the result that there was a head-on collision with a vehicle proceeding in the opposite direction. The District Judge found that the patch of ice, observed by many witnesses during the early hours of daylight on the 23rd, had formed sometime prior to midnight. He concluded that it was a dangerous condition which the patrolling officers discovered, or should have discovered, and that they should have taken steps to mitigate the danger it posed for traveling motorists. Since they had done nothing to eliminate the condition, he held that the United States was liable for the resultant injuries under the Tort Claims Act. The principle that a municipality is bound to abate nuisances in the highways under its control if it knows of them, or should have known of them, has been applied with a soft hand by the Maryland courts to snow and ice. As he indicates in his concurring opinion, Chief Judge Sobeloff construes the Maryland cases to impose absolutely no duty upon a municipality to remove even occasional ice or snow from a highway under its control, to sand it or to warn of its presence, unless its presence is attributable, at least in part, to some 'other fault or wrong of the municipality. As we read the Maryland cases, they do not go that far, but the Courts of that state have certainly been careful to impose no unreasonable burden upon municipalities with respect to the prevention or removal of natural snow or ice. In the early case of Mayor and City Council of Baltimore v. Marriott, 1856, 9 Md. 160, 66 Am.Dec. 326, it was established that the City permitted ice to remain upon a sidewalk for a long time. A pedestrian slipped upon it and injured himself. The municipality was held responsible because the condition amounted to a nuisance which the municipality should have abated. The duty of municipalities to remove snow and ice from sidewalks has been imposed in Maryland against a background of a municipality’s power to require the occupants of adjacent land to effect the removal of snow and ice from the sidewalks. Under such ordinances, the municipality, itself, is required only to remove snow and ice which the occupant of the adjacent land neglects to remove after a reasonable time, and this activity of the municipality may be done at the expense of the occupant who is required by the ordinance to clear the sidewalk. With respect to ice and snow in the streets, however, the Maryland courts have imposed no duty upon municipalities to remove general ice or snow, for to do so, they have thought, would have imposed unreasonable burdens upon the municipality. In Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832, 835, the Court of Appeals of Maryland declared emphatically : “ * * * In order that we may not be misunderstood, we desire to emphasize the fact, at the risk of repetition, that we do not mean to say that the appellee (a municipality) would be liable if this ice was simply the result of snow or rain, or both, falling and then freezing. If it had been, and if the ice thereby formed was in large quantities in the streets, it would be exacting too much to require the municipal authorities to remove it. * * * ” The case of Flynn v. Canton Co. of Baltimore, 1874, 40 Md. 312, 17 Am.Rep. 603, did not involve the liabilities of a municipality. The plaintiff there had slipped upon ice on a sidewalk in front of a market operated by the defendant. The suit was brought against the merchant on the theory that the city ordinance requiring the occupant of the store to remove ice from the sidewalk created a duty running to the general public. The court held, however, that the duty imposed by the ordinance upon the merchant ran only to the city, enforceable only by penalty or by exercise of the city’s right to remove the snow and ice and to charge the storekeeper for the cost of the work. Once the court concluded that the city ordinance imposed upon the occupant of the adjacent land no duty of care with respect to ice on the sidewalk running to passers-by using the sidewalk, there was no basis for imposing any civil liability upon the storekeeper for the injury sustained by the pedestrian unless, of course, the storekeeper had caused the ice to be present. Once the city ordinance was eliminated as a basis for recovery by the pedestrian, there remained no basis for imposing civil liability upon the occupant of adjacent land for ice or snow in a public way not under his control to any greater extent than there would be for any other defect in a highway adjacent to the occupant’s land. The holding that the occupant of adjacent land may not be held liable for injuries sustained by a member of the public using the public highway not under the control of the land occupant neither requires nor suggests the conclusion that a municipality which does have control of the highway in which a defect is permitted to exist for an unreasonable period of time may not be held civilly liable if injuries are sustained because of the defect. With respect to defects other than ice and snow, such liabilities are imposed in Maryland upon municipalities having control of the highways, though there would be no basis for imposing any such liability upon the occupant of adjacent land. The duties of a municipality with respect to ice and snow in the streets it maintains are not to be measured by the duties of adjacent landowners with respect to defects in the highways which they do not maintain and for which they are not responsible. That a municipality in Maryland does have some duty with respect to occasional ice and snow in the streets it maintains appears to have been the clear holding in Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832, a case subsequent to Flynn. There it appeared that ice had been formed of water discharged in the street from a saloon. Though the ice had been present for a long time the municipality made no effort to do anything about it. The court concluded that the long existing patch of ice in the street was a nuisance, and that the municipality was liable to the plaintiff for the damages he sustained when he was injured on the ice. It may be that the saloon keeper could also have been held responsible for the plaintiff’s injuries, for he discharged the water into the street, which, freezing, created the ice, but there is nothing in the case to suggest that an innocent occupant of adjacent land could have been held liable for the saloon keeper’s conduct, or for the municipality’s neglect over a long period to do anything to abate the nuisance. Maryland’s Court of Appeals seems to have been applying the usual rule with respect to defects in a public way permitted to remain for such length of time as to become a nuisance, for, with respect to this isolated patch of ice, the burden resulting from imposition of a duty of abatement was slight, thus distinguishing that case from the general rule that Maryland municipalities need do nothing about general ice or snow. Under the Maryland eases, the municipality is not required to do the impossible, to prevent snow from falling in the streets, as the court observed in Magaha, or even the very onerous. It is required to do what is reasonable and not burdensome to it. It need not remove general snow, but it may be required to remove, sand or warn an unsuspecting public of, a lone and isolated patch of ice long remaining in a public street, depending, in each instance, upon reasonableness. Though we think the Maryland cases do not require a conclusion that a municipality need do nothing at any time about occasional ice or snow naturally formed in its streets, the duties imposed with respect to ice or snow in the roadway, as distinguished from sidewalks which occupants of adjacent land may be required to clear, are minimal. The courts of that state have clearly indicated that the public should suffer the inconvenience and danger of ice and snow in the streets rather than having the municipalities burdened with duties of large and expensive operations to remove it. Though nothing in the Maryland law required it do so, the United States did remove the general snow of January 19, 1956 from most of the surface of the roadway, piling it on the edges of the road and on the shoulders. No one suggests that this substantial clearance of the highway required the United States to go further and remove the piles of snow from the edges of the road and from the shoulders or to take other steps to prevent drainage across the road from the piles of snow on the edges and shoulders, particularly snow on the high side of the banked curves. It was required only to inspect the road at reasonable intervals and to sand occasional patches of ice, or take other reasonable steps to diminish their danger, within a reasonable time after they were discovered or reported. The United States did all that was required of it and more. It patrolled the highway at frequent intervals throughout the day’and night. It maintained a loaded sand truck so that it might promptly respond at any hour to a call for sand. Except at the one place where one patrolman got out of the car to feel the surface of the road with his feet, the patrolmen did not examine the surface of the road more closely than could be done from their moving car. Bearing in mind the thawing conditions and the official temperature reports, however, no basis appears for a finding that due care required closer or more frequent inspections. In those Maryland cases in which occasional ice on sidewalks or in the streets has been held to be a nuisance which the municipality should have abated, the ice had been present for many days. Here, in contrast, the ice had formed only a few hours before the accident. The accident occurred shortly after daybreak. The fact that the ice was neither reported nor discovered during the early morning hours of darkness, under the conditions then prevailing, does not lead to the conclusion that the United States should have taken additional precautions. Maryland’s leniency with municipalities in snow and ice cases is not consistent with a requirement that occasional ice, naturally formed, must be discovered and dealt with under these circumstances in so short a period of time. We conclude that proof of the presence of the patch of ice that morning and of the fact that Jennings’ car skidded upon it was not enough to support the judgment. There was other evidence, however, which might support recovery upon a different theory. There was testimony that the roadway at this point is in a shallow cut and that beyond the northern shoulder of the highway was a slight swale or drainage ditch, constructed apparently for the purpose of diverting from the roadway water draining down the embankment. There was testimony that the swale was inadequate for that purpose, and, at least, a suggestion that the water on the roadway came not from the snow piled on the edge of the roadway and the shoulders, but from the embankment on the other side of the swale. The testimony about the construction and condition of the swale was accepted by the District Court only for the purpose of showing notice to the United States that water might be expected to drain across the roadway at this particular point and, in freezing weather, to freeze. He made no findings, and none were requested of him, as to what, if any, contribution the condition of the swale made to the formation of the ice patch with which we are concerned. Though there was testimony that water was draining across the highway at many places, the plaintiffs’ testimony may be susceptible of an inference that water drained across the roadway only at this particular place and at no other, and that the condition of the swale was the cause of the drainage. If it were the fact that because of the condition of the swale water drained across the roadway at this particular point, forming ice during freezing conditions, and that the patch of ice on the particular morning was attributable to that condition, it might be concluded that the United States in the exercise of due care should have deepened the swale to eliminate the drainage across the roadway and the formation of dangerous ice whenever thawing conditions were followed by freezing temperatures. In Maryland it has been held that there is no liability for injuries caused by a design defect in a highway, but if a defect, whether of design or not, creates a condition which would itself constitute a nuisance, reasonable care to abate it is not exercised and the condition is the effective cause of the injury, no reason presently appears why the agency charged with maintenance of the highway should not be responsible as for any other nuisance it unreasonably permitted to exist. The District Court has made no findings on the subject. Until the District Judge has sifted the proof heard by him, we need not consider its sufficiency to support hypothetical findings, or decide whether any hypothetical findings would be sufficient to bring the plaintiff within the rule permitting recovery on the theory that the swale created a nuisance which the United States in the exercise of due care should have abated, and that this nuisance was the cause of the accident. Instead, we think it appropriate to remand the case to the District Court for further proceedings and additional findings of fact, with leave, in his discretion, to receive additional testimony bearing upon the remaining questions. In its cross-appeal the Government also maintains that under the evidence Stewart Jennings was, as a matter of law, contributorily negligent. The issue of contributory negligence is normally for the trier of the facts, and, upon the evidence in this case, we cannot say that the District Judge was clearly wrong in finding Jennings’ conduct free of negligence. See: Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832; Canton Co. of Baltimore v. Seal, 1923, 144 Md. 174, 125 A. 63. Additionally, two questions relating to damages are raised by the United States. First, it is asserted that the Civil Service Retirement Act, 5 U.S.C.A. § 691 et seq., benefits received by Stewart Jennings’ dependents after his death should have been taken into consideration in determining damages in the wrongful death action. In United States v. Price, 4 Cir., 1961, 288 F.2d 448, we recently held that these civil service benefits are from a “collateral source,” and, therefore, under the law of Virginia, should not be offset against a tort claims award. The Maryland cases also recognize the rule that benefits from a “collateral source” should not be considered in fixing damages in a tort action, Plank v. Summers, 1954, 203 Md. 552, 102 A.2d 262, and cases therein cited. Thus, it was no error to disregard such benefits to Jennings’ dependents. The Government also insists that the District Court, in computing damages in the death action, should have deducted from the award prospective income taxes that the decedent would have had to pay on his future earnings. Without intending to express an opinion on the propriety of such deduction, we note that the District Judge stated that “the decedent’s liability for taxes has been considered as one of the relevant elements in fixing the award,” Since this item evidently was considered, the Government has no cause to complain. Finally, the plaintiff’s brief raised several questions relating to damages. While these were not pressed in oral argument, we have examined the contentions and find no reversible error. For the reasons stated, the judgments appealed from are Vacated and the case remanded for proceedings not inconsistent with this opinion. . The readings were actually taken at approximately twenty minutes after the hour. . Similar ordinances have received a similar construction. See, for instance, Smith v. District of Columbia, 89 U.S.App.D.C. 7, 189 F.2d 671, 39 A.L.R.2d 773. . Generally, the occupant of land has no duty to remove or warn the public of defects in a public highway adjacent to the land he occupies when the highway is neither maintained by him nor under his control, unless he creates the defect. See Restatement of Torts, § 349. . Mayor & City Council of Baltimore v. Pendleton, 1860, 15 Md. 12; Anne Arundel County Commissioners v. Duckett, 1864, 20 Md. 468; Eyler v. Allegany County Commissioners, 1878, 49 Md. 257; Taylor v. Mayor, etc., of the City of Cumberland, 1885, 64 Md. 68, 20 A. 1027; Hitchins v. Town of Frostburg, 1887, 68 Md. 100, 11 A. 826; Cochrane v. Mayor, etc., of City or Frostburgh, 1895, 81 Md. 54, 31 A. 703, 27 L.R.A. 728; Keen v. Mayor, etc., of City of Havre de Grace, 1901, 93 Md. 34, 48 A. 444; Mayor, etc., of City of Hagerstown v. Klotz, 1901, 93 Md. 437, 49 A. 836, 54 L.R.A. 940; Mayor, etc., of Baltimore City v. Beck, 1903, 96 Md. 183, 53 A. 976; Mayor and City Council of City of Havre de Grace v. Fletcher, 1910, 112 Md. 562, 77 A. 114; Mayor, Counselor, and Aldermen of City of Annapolis v. Stallings, 1915, 125 Md. 343, 93 A. 974; Commissioners of Delmar v. Venables, 1915, 125 Md. 471, 94 A. 89; Mayor, etc., of City of Hagerstown v. Crowl, 1916, 128 Md. 556, 97 A. 544; Mayor, etc., of Baltimore v. Bassett, 1918, 132 Md. 427, 104 A. 39; County Commissioners of Washington County v. Gaylor, 1922, 140 Md. 375, 117 A. 864; Mayor and City Council of Baltimore v. Eagers, 1934, 167 Md. 128, 173 A. 56; Mayor and City Council of Baltimore v. Thompson, 1937, 171 Md. 460, 189 A. 822; Neuenschwander v. Washington Suburban Sanitary Commission, 1946, 187 Md. 67. 48 A.2d 593; East Coast Freight Lines, Inc. v. Mayor & City Council of Baltimore, 1948, 190 Md. 256, 58 A.2d 290, 2 A.L.R.2d 386. . Unlike some other jurisdictions, Maryland imposes no greater liabilities upon municipalities for man-made piles of natural snow and ice than for ice and snow in their natural states. See Magaha v. Mayor, etc., of City of Hagerstown, 1902, 95 Md. 62, 51 A. 832. . It would be expected to do that at every point at which snow was piled on the high side of the banked curve, and photographs made shortly after the accident show snow piled on the edge of the roadway and on the shoulders. . Mayor and City Council of Cumberland v. Turney, 1939, 177 Md. 297, 9 A.2d 561. Question: What is the number of judges who concurred in the result but not in the opinion of the court? Answer:
sc_caseorigin
160
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York. MICHAEL M. v. SUPERIOR COURT OF SONOMA COUNTY (CALIFORNIA, REAL PARTY IN INTEREST) No. 79-1344. Argued November 4, 1980 Decided March 23, 1981 Rehnquist, J., announced the judgment of the Court and delivered an opinion, in which Burger, C. J., and Stewart and Powell, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 476. Blackmun, J., filed an opinion concurring in the judgment, post, p. 481. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 488. Stevens, J., filed a dissenting opinion; post, p. 496. Gregory F. Jilka argued the cause and filed a brief for petitioner. Sandy B. Kriegler, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were George Deukmejian, Attorney General, Robert H. Phili-bosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and William R. Pounders, Deputy Attorney General. Briefs of amici curiae urging reversal were filed by Bruce J. Ennis, Jr., for the American Civil Liberties Union et al; and by John W. Karr for the Women’s Legal Defense Fund. Solicitor General McCree, Assistant Attorney General Heymann, and Sara Criscitelli filed a brief for the United States as amicus curiae urging affirmance. Justice Rehnquist announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Stewart, and Justice Powell joined. The question presented in this case is whether California’s “statutory rape” law, § 261.5 of the Cal. Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as “an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years.” The statute thus makes men alone criminally liable for the act of sexual intercourse. In July 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17%-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16%-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner’s initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner’s request for relief and petitioner sought review in the Supreme Court of California. The Supreme Court held that “section 261.5 discriminates on the basis of sex because only females may be victims, and only males may violate the section.” 25 Cal. 3d 608, 611, 601 P. 2d 572, 574. The court then subjected the classification to “strict scrutiny,” stating that it must be justified by a compelling state interest. It found that the classification was “supported not by mere social convention but by the immutable physiological fact that it is the female exclusively who can become pregnant.” Ibid. Canvassing “the tragic human costs of illegitimate teenage pregnancies,” including the large number of teenage abortions, the increased medical risk associated with teenage.pregnancies, and the social consequences of teenage childbearing, the court concluded that the State has a compelling interest in preventing such pregnancies. Because males alone can “physiologically cause the result which the law properly seeks to avoid,” the court further held that the gender classification was readily justified as a means of identifying offender and victim. For the reasons stated below, we affirm the judgment of the California Supreme Court. As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U. S. 268 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are “inherently suspect” and thus we do not apply so-called “strict scrutiny” to those classifications. See Stanton v. Stanton, 421 U. S. 7 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat “sharper focus” when gender-based classifications are challenged. See Craig v. Boren, 429 U. S. 190, 210 n." (1976) (Powell, J., concurring). In Reed v. Reed, 404 U. S. 71 (1971), for example, the Court stated that a gender-based classification will be upheld if it bears a “fair and substantial relationship” to legitimate state ends, while in Craig v. Boren, supra, at 197, the Court restated the test to require the classification to bear a “substantial relationship” to “important governmental objectives.” Underlying these decisions is the principle that a legislature may not “make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.” Parham v. Hughes, 441 U. S. 347, 354 (1979) (plurality opinion of Stewart, J.). But because the Equal Protection Clause does not “demand that a statute necessarily apply equally to all persons” or require “ 'things which are different in fact... to be treated in law as though they were the same/ ” Rinaldi v. Yeager, 384 U. S. 305, 309 (1966), quoting Tigner v. Texas, 310 U. S. 141, 147 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). As the Court has stated, a legislature may “provide for the special problems of women.” Weinberger v. Wiesenfeld, 420 U. S. 636, 653 (1975). Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct. Precisely why the legislature desired that result is of course somewhat less clear. This Court has long recognized that “[¿Inquiries into congressional motives or purposes are a hazardous matter,” United States v. O’Brien, 391 U. S. 367, 383-384 (1968); Palmer v. Thompson, 403 U. S. 217, 224 (1971), and the search for the “actual” or “primary” purpose of a statute is likely to be elusive. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265 (1977); McGinnis v. Royster, 410 U. S. 263, 276-277 (1973). Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of “chastity,” and still others about promoting various religious and moral attitudes towards premarital sex. The justification for the statute offered by the State, and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. Reitman v. Mulkey, 387 U. S. 369, 373-374 (1967). And although our cases establish that the State’s asserted reason for the enactment of a statute may be rejected, if it “could not have been a goal of the legislation,” Weinberger v. Wiesenfeld, supra, at 648, n. 16, this is not such a case. We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the “purposes” of the statute, but also that the State has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, have significant social, medical, and economic consequences for both the mother and her child, and the State. Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion. And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State. We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe. The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female. We hold that such a statute is sufficiently related to the State’s objectives to pass constitutional muster. Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly “equalize” the deterrents on the sexes. We are unable to accept petitioner’s contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. Kahn v. Shevin, 416 U. S., at 356, n. 10. In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report violations of the statute if she herself would be subject to criminal prosecution. In an area already fraught with prose-cutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement. We similarly reject petitioner’s argument that § 261.5 is impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant. Quite apart from the fact that the statute could well be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, see Rundlett v. Oliver, 607 F. 2d 495 (CA1 1979), it is ludicrous to suggest that the Constitution requires the California Legislature to limit the scope of its rape statute to older teenagers and exclude young girls. There remains only petitioner’s contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that as between two persons under 18, the male is the culpable aggressor We find petitioner’s contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is instead an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant since young men are as capable as older men of inflicting the harm sought to be. prevented. In upholding the California statute we also recognize that this is not a case where a statute is being challenged on the grounds that it “invidiously discriminates” against females. To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made “solely for... administrative convenience,” as in Frontiero v. Richardson, 411 U. S. 677, 690 (1973) (emphasis omitted), or rests on “the baggage of sexual stereotypes” as in Orr v. Orr, 440 U. S., at 283. As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male. Accordingly the judgment of the California Supreme Court is Affirmed. The lower federal courts and state courts have almost uniformly concluded that statutory rape laws are constitutional. See, e. g., Rundlett v. Oliver, 607 F. 2d 495 (CA1 1979); Hall v. McKenzie, 537 F. 2d 1232 (CA4 1976); Hall v. State, 365 So. 2d 1249, 1252-1253 (Ala. App. 1978), cert. denied, 365 So. 2d 1253 (Ala. 1979); State v. Gray, 122 Ariz. 445, 446-477, 595 P. 2d 990, 991-992 (1979); People v. Mackey, 46 Cal. App. 3d 755, 760-761, 120 Cal. Rptr. 157, 160, cert. denied, 423 U. S. 951 (1975); People v. Salinas, 191 Colo. 171, 551 P. 2d 703 (1976); State v. Brothers, 384 A. 2d 402 (Del. Super. 1978); In re W. E. P., 318 A. 2d 286, 289-290 (DC 1974); Barnes v. State, 244 Ga. 302, 303-304, 260 S. E. 2d 40, 41-42 (1979); State v. Drake, 219 N. W. 2d 492, 495-496 (Iowa 1974); State v. Bell, 377 So. 2d 303 (La. 1979); State v. Rundlett, 391 A. 2d 815 (Me. 1978); Green v. State, 270 So. 2d 695 (Miss. 1972); In re J. D. G., 498 S. W. 2d 786, 792-793 (Mo. 1973); State v. Meloon, 116 N. H. 669, 366 A. 2d 1176 (1976); State v. Thompson, 162 N. J. Super. 302, 392 A. 2d 678 (1978); People v. Whidden, 51 N. Y. 2d 457, 415 N. E. 2d 927 (1980); State v. Wilson, 296 N. C. 298, 311-313, 250 S. E. 2d 621, 629-630 (1979); Olson v. State, 588 P. 2d 1018 (Nev. 1979); State v. Elmore, 24 Ore. App. 651, 546 P. 2d 1117 (1976); State v. Ware, - R. I. -, 418 A. 2d 1 (1980); Roe v. State, 584 S. W. 2d 257, 259 (Tenn. Crim. App. 1979); Ex parte Groves, 571 S. W. 2d 888, 892-893 (Tex. Crim. App. 1978); Moore v. McKenzie, 236 S. E. 2d 342, 342-343 (W. Ya. 1977) ; Flores v. State, 69 Wis. 2d 509, 510-511, 230 N. W. 2d 637, 638 (1975). Contra, Navedo v. Preisser, 630 F. 2d 636 (CA8 1980); United States v. Hicks, 625 F. 2d 216 (CA9 1980); Meloon v. Helgemoe, 564 F. 2d 602 (CA1 1977) (limited in Rundlett v. Oliver, supra), cert. denied, 436 U. S. 950 (1978). The statute was enacted as part of California’s' first penal code in 1850, 1850 Cal. Stats., ch. 99, § 47, p. 234, and recodified and amended in 1970. In 1976 approximately one million 15-to-19-year-olds became pregnant, one-tenth of all women in that age group. Two-thirds of the pregnancies were illegitimate. Illegitimacy rates for teenagers (births per 1,000 unmarried females ages 14 to 19) increased 75% for 14-to-17-year-olds between 1961 and 1974 and 33% for 18-to-19-year-olds. Alan Guttmacher Institute, 11 Million Teenagers 10, 13 (1976); C. Chilman, Adolescent Sexuality In a Changing American Society 195 (NIH Pub. No. 80-1426, 1980). The risk of maternal death is 60% higher for a teenager under the age of 15 than for a women in her early twenties. The risk is 13% higher for 15-to-19-year-olds. The statistics further show that most teenage mothers drop out of school and face a bleak economic future. See, e. g., 11 Million Teenagers, supra, at 23, 25; Bennett & Bardon, The Effects of a School Program On Teenager Mothers and Their Children, 47 Am. J. Orthopsychiatry 671 (1977); Phipps-Yonas, Teenage Pregnancy and Motherhood, 50 Am. J. Orthopsychiatry 403, 414 (1980). This is because teenagers are disproportionately likely to seek abortions. Center for Disease Control, Abortion Surveillance 1976, pp. 22-24 (1978). In 1978, for example, teenagers in California had approximately 54,000 abortions and 53,800 live births. California Center for Health Statistics, Reproductive Health Status of California Teenage Women 1, 23 (Mar. 1980). The policy and intent of the California Legislature evinced in other legislation buttresses our view that the prevention of teenage pregnancy is a purpose of the statute. The preamble to the Pregnancy Freedom of Choice Act, for example, states: “The legislature finds that pregnancy among unmarried persons under 21 years of age constitutes an increasing social problem in the State of California.” Cal. Welf. & Inst. Code Ann. §16145 (West 1980). Subsequent to the decision below, the California Legislature considered and rejected proposals to render § 261.5 gender neutral, thereby ratifying the judgment of the California Supreme Court-. That is enough to answer petitioner’s contention that the statute was the “ 'accidental byproduct of a traditional way of thinking about females.’” Califano v. Webster, 430 U. S. 313, 320 (1977) (quoting Califano v. Goldfarb, 430 U. S. 199, 223 (1977) (Stevens, J., concurring in judgment)). Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is “current” and what is “outmoded” in the perception of women. Although petitioner concedes that the State has a “compelling” interest in preventing teenage pregnancy, he contends that the “true” purpose of § 261.5 is to protect the virtue and chastity of young.women. As such, the statute is unjustifiable because it rests on archaic stereotypes. What we have said above is enough to dispose of that- contention. The question for us — and the only question under the Federal/Constitution — is whether the legislation violates the Equal Protection Clause of the Fourteenth Amendment, not whether its supporters may have^endorsed it for reasons no longer generally accepted. Even if the preservation of female chastity were one of the motives of the statute, and even if that motive be impermissible, petitioner’s argument must fail because “[i]t is a familiar practice of constitutional law that this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U. S. 367, 383 (1968). In Orr v. Orr, 440 U. S. 268 (1979), for example, the Court rejected one asserted purpose as impermissible, but then considered other purposes to determine if they could justify the statute. Similarly, in Washington v. Davis, 426 U. S. 229, 243 (1976), the Court distinguished Palmer v. Thompson, 403 U. S. 217 (1971), on the grounds that the purposes of the ordinance there were not open to impeachment by evidence that the legislature was actually motivated by an impermissible purpose. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 270, n. 21 (1977); Mobile v. Bolden, 446 U. S. 55, 91 (1980) (Stevens, J., concurring in judgment). We do not understand petitioner to question a State’s authority to make sexual intercourse among teenagers a criminal act, at least on a gender-neutral basis. In Carey v. Population Services International, 431 U. S. 678, 694, n. 17 (1977) (plurality opinion of Brennan, J.), four Members of the Court assumed for the purposes of that case that a State may regulate the sexual behavior of minors, while four other Members of the Court more emphatically stated that such regulation would be permissible. Id., at 702, 703 (White, J., concurring in part and concurring in result); id., at 705-707, 709 (Powell, J., concurring in part and concurring in judgment); id., at 713 (Stevens, J., concurring in part and concurring in judgment); id., at 718 (Rehnquist, J., dissenting). The Court has long recognized that a State has even broader authority to protect the physical, mental, and moral well-being of its youth, than of its adults. See, e. g., Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 72-74 (1976); Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); Prince v. Massachusetts, 321 U. S. 158, 170 (1944). Petitioner contends that a gender-neutral statute would not hinder prosecutions because the prosecutor could take into account the relative burdens on females and males and generally only prosecute males. But to concede this is to concede all. If the prosecutor, in exercising discretion, will virtually always prosecute just the man and not the woman, we do not see why it is impermissible for the legislature to enact a statute to the same effect. The question whether a statute is substantially related to its asserted goals is at best an opaque one. It can be plausibly argued that a gender-neutral statute would produce fewer prosecutions than the statute at issue here. See Stewart, J., concurring, post, at 481, n. 13. Justice Brennan’s dissent argues, on the other hand, that “even assuming that a gender-neutral statute would be more difficult to enforce,... [cjommon sense... suggests that a gender-neutral statutory rape law is potentially a greater deterrent of sexual activity than a gender-based law, for the 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. 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songer_genresp1
C
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America, Plaintiff-Appellee, v. Joseph C. GALLO; Frederick Graewe; Hartmut Graewe, Kevin Joseph McTaggart; Angelo A. Lonardo, Defendants-Appellants. Nos. 83-3288 to 83-3290, 83-3292, 83-3339, 83-3803 and 83-3804. United States Court of Appeals, Sixth Circuit. Argued Nov. 8, 1984. Decided May 29, 1985. Alan P. Caplan (argued), Cleveland, Ohio, for Joseph C. Gallo and Kevin Joseph McTaggart. Donna M. Congini, Cleveland, Ohio, William C. Bryson (argued), Washington, D.C., Steven R. Olah, Donna M. Congeni, Gregory B. English, Asst. U.S. Attys., Cleveland, Ohio, for the U.S. Edward F. Marek (argued), Public Defender, Cleveland, Ohio, for Frederick Graewe. Paul Mancino, Jr. (argued), Cleveland, Ohio, for Hartmut Graewe. Leonard W. Yelsky (argued), Cleveland, Ohio, for Angelo Lonardo. Before MERRITT, WELLFORD and MILBURN, Circuit Judges. WELLFORD, Circuit Judge. On appeal from their convictions on Racketeer Influenced and Corrupt Organization Act (“RICO”), Continuing Criminal Enterprise (“CCE”), and related counts, Joseph Gallo, Frederick (“Fritz”) Graewe, Hartmut (“Hans”) Graewe, Kevin McTaggart, and Angelo Lonardo, raise a total of thirty-five issues in the four appellant briefs filed. There are overlapping issues, however, and we will address how the issues relate to each of the appellants. Following a jury trial in the United States District Court for the Northern District of Ohio (Manos, J.), the five appellants were convicted on a variety of charges relating to their participation in murder, narcotics distribution, and gambling in the Cleveland, Ohio area. The jury found appellants Gallo, Hans Graewe, and McTaggart guilty of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (count 1). The jury also found those three appellants and Lonardo guilty of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (count 2). The jury further found all of the appellants, including Fritz Graewe, guilty of aiding racketeering through interstate travel, in violation of 18 U.S.C. § 1952 (counts 3 through 21), possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (count 35), and using the telephone to facilitate a narcotics offense, in violation of 21 U.S.C. § 843(b) (counts 40 through 48, 50 through 51, 53 through 55, and 57 through 58).I. Gallo, Hans Graewe, McTaggart, and Lonardo all were sentenced to life imprisonment on the continuing criminal enterprise count. In addition, Gallo, Hans Graewe, and McTaggart received concurrent sentences of 20 years’ imprisonment on the racketeering conspiracy count. On each of the Travel Act counts, the district court sentenced each appellant to consecutive terms of five years’ imprisonment. On the cocaine possession count, the court imposed a consecutive sentence of 15 years’ imprisonment on appellants Gallo, Hans Graewe, and McTaggart, and 10 years’ imprisonment on appellant Fritz Graewe. For the unlawful use of the telephone counts, the court imposed consecutive four year terms on Gallo, Hans Graewe, McTaggart, and Lonardo; two years’ imprisonment on Fritz Graewe. All five defendants appeal their convictions and the denial of their motions for new trial, which they filed while the appeal was pending. I. FACTUAL BACKGROUND We set out the facts in the light offered by the government and as apparently believed by the jury in reaching its verdicts. Between 1978 and 1982, appellants and others conspired to control the businesses of gambling and narcotics distribution in the city of Cleveland, Ohio. During that period, they fashioned an agreement between rival criminal factions on the east and west sides of the city, whereby they would jointly control and profit from their control of criminal activities. The evidence indicates that Lonardo was one of the leading directors and investors in the profitable but illicit joint enterprise, that Gallo was a high-level supervisor, and that Hans Graewe, McTaggart, and Fritz Graewe were regular participants in various criminal activities of the enterprise. The chief witness for the government was Carmen Zagaria, a co-conspirator and coordinator of the enterprise’s business activities. He testified in detail about the roles played by defendants and others in narcotics and gambling activities, as well as in violence and intimidation on behalf of the enterprise, which included at least seven murders during the four-year period covered by the indictment. The government called other co-conspirators as witnesses who testified about the criminal activities of the enterprise. The government introduced surveillance evidence and physical and wiretap evidence, which corroborate these witnesses’ testimony concerning murders and defendants' roles in gambling and narcotics activities. In January, 1978, Zagaria started dealing in marijuana. He began with small quantities, buying marijuana in one pound lots and selling it by the ounce, utilizing his tropical fish store on Lorain Avenue in Cleveland as a base of operations. Early in 1978, Zagaria met with Keith Ritson, another marijuana dealer; Zagaria and Ritson agreed to cooperate by supplying each other with marijuana as needed. Ritson told Zagaria that McTaggart was selling cocaine and marijuana for him. In May 1978, Zagaria sought to expand his marijuana business by finding investors for the business and by purchasing large quantities of marijuana in Florida. He agreed with Ritson to obtain marijuana in large lots, from which he would supply a portion of each shipment to Ritson for local distribution. At about the same time, Hans Graewe told another co-conspirator, James Coppola, that he was looking for a place to invest some money to make a quick profit. Graewe told Coppola that he had succeeded in “ripping off” one Orville Keith for $20,-000 in a narcotics transaction. When Keith realized that he had been “ripped off,” he began trying to force Graewe to return his money. Graewe told Coppola that he intended not only to keep the money but also to kill Keith to prevent any further bother about it. At Coppola’s suggestion, Graewe then invested $14,000 of the stolen funds in Zagaria’s marijuana business, and Zagaria agreed to pay him $1500 per week on this investment. In addition, Graewe’s brother, Fritz Graewe, agreed to sell marijuana for Zagaria. For the next four years, Fritz regularly purchased marijuana from Zagaria’s operation for resale; Hans also sold some of Zagaria’s marijuana, and he found other drug salesmen for Zagaria’s expanding marijuana business. Several months later, Zagaria repaid $8000 to Hans who said that he was going to buy a farm with the money; in fact, he subsequently acquired a nearby farm. Several months later, Zagaria made another repayment on Graewe’s investment by supplying him an ounce of cocaine and an amount of cash. In addition to these payments, Zagaria paid regular installments to Hans as originally agreed. Between 1974 and 1978, James Coppola worked as the overseer of a Barboot game located on Broadview Road in Cleveland. In that capacity, Coppola testified, he was working for the “west side” group, which included Ritson, Brian O’Donnell, McTaggart, and Danny Greene. The game came to an end in 1978 shortly after Danny Greene was killed in a bombing incident. In the summer of 1978, Thomas Sinito aproached Coppola and proposed to start a Barboot game that would be jointly sponsored by the rival groups of the east and west sides of Cleveland. Sinito proposed to “split the money and try to stop all this fighting between the east side and the west side.” Sinito was a member of the “east side” group, which controlled gambling on the east side of Cleveland. The representatives of the west side group, including Zagaria, Ritson, and Hans Graewe, agreed to go along with Sinito’s proposal to “end all the fighting and have a mutual gambling.operation which would benefit both sides of town, keep everybody happy, and split [sic] the profits.” Accordingly, Zagaria, Coppola, Hans Graewe, Ritson, and three other men arranged one night to close down the two competing games. They closed the first game without difficulty, and they took over a second game, which was then being run in downtown Cleveland. Zagaria and Ritson had sledge hammers with them when the group went to close the competing games, but Coppola told them, “We don’t need no sledge hammers. These are all old guys.” Coppola let the operator of the second game continue to run the game for the next week in order to try to recoup some of his expenses. He told the man, however, that “next week it is ours.” After Coppola’s group took over the downtown Barboot game, the two groups split the profits from the game evenly; in addition, Sinito directed Coppola to give 10 percent of the proceeds to Carmen Basile, the owner of a bar on Cleveland’s west side. When Coppola questioned that decision, Sinito replied, “Don’t ask questions; just out of respect for the old man, we will give him 10 percent.” In compliance with Sinito’s instructions, Coppola began giving Basile 10 percent of the receipts from the Barboot game. Basile, however, regularly charged that he was being cheated, and he and Coppola constantly bickered over the amount of Basile’s share. Ultimately, Sinito arranged a meeting to resolve the dispute. Appellant Gallo attended the meeting and told Coppola that Basile was going to supervise Coppola, and that Coppola would be Basile’s “underboss.” Basile subsequently referred to Gallo and Sinito as “two of my close associates from the east side.” After Coppola, Zagaria, Hans, and their associates took over the Barboot game, Coppola met with Sinito each week to divide up the proceeds from the game. Soon, McTaggart began delivering the “east side’s” share of the Barboot money to Sinito. Although McTaggart was not a full partner in the Barboot game, he was regularly given a share of the Barboot receipts. In August of 1978, Sinito asked Coppola if he knew someone who could handle a “contract” to kill one Harvey Rieger. Sinito said, “We have to get rid of this guy because he knows too much and he is getting ready to go to trial.” Coppola then checked with Keith Ritson, who said that he could handle the contract. Coppola reported Ritson’s willingness to perform the contract, and Sinito gave Coppola a $2500 advance to give to Ritson for the job. Ritson, however, made no effort to kill Rieger, and as a result, Coppola had to pay back the $2500 advance that Sinito had given him. Sinito then told Coppola that Ritson had defaulted on the contract, and that Coppola “ought to take care of that situation.” During the same period, Ritson told Zagaria that he wanted to attend a clam bake that was being held by members of the east side group, so that he could “kill a few of his old enemies.” In particular, Ritson said he wanted to kill James Licavoli and Angelo Lonardo. At about the same time, Ritson suggested that Hans and Zagaria should kill Sinito, but Zagaria refused. Zagaria, Coppola, and Hans met on a number of occasions to discuss their problems with Ritson. They suspected that Ritson was an informant and feared retaliation if he tried to kill Sinito. In addition, Hans wanted to eliminate Ritson because he wanted to take over Ritson’s share in the Barboot game, and because Ritson had “beat him” in a cocaine deal the previous spring. Ultimately, the three men decided to kill Ritson, and they made plans accordingly. On November 16, 1978, Ritson was invited to Zagaria’s pet store on a pretext. Hans and Zagaria were waiting for him there, and Hans shot and killed Ritson after his arrival. After shooting Ritson, Hans commented, “It looks like I’m back in the Barboot game.” Hans then called his brother Fritz to borrow a truck to move Ritson’s body. Hans and Zagaria dumped Ritson’s body in a local quarry. Hans later told Zagaria that he and his brother Fritz had run a file through the handgun that Hans had used to kill Ritson to avoid identification of the gun as the murder weapon. Coppola assured Sinito that the murder of Ritson had been carried out. Sinito subsequently told Zagaria that he had informed Lonardo that Zagaria was responsible for Ritson’s killing. When Zagaria later met Lonardo at a party, Lonardo told him, “I heard a lot of good things about you,” and advised him to “be careful.” In 1979, the conspirators arranged to open a craps game on the west side of town. As in the case of the Barboot game, they agreed to split the proceeds between the west side and east side groups. Zagaria, Hans, McTaggart, and Coppola agreed to take one-half of the game proceeds on behalf of the west side, while Sinito and Gallo agreed to sponsor the game on behalf of the east side. This new gambling operation was run out of a house in Linndale, Ohio, as arranged by Fritz and others. Gallo arranged for parking in the area with an associate. This game, however, was closed by the police shortly after it began operations. One of the operators of the game was Billy Bostic, a west side gambler. Bostic made $2500 on the game while it was in operation, but he claimed to have spent a large sum on the improvements to the house. He therefore refused to share the proceeds with the partners in the game. Zagaria subsequently discussed Bostic's actions with Gallo and Sinito, who also recounted problems with Bostic and several of his associates; Gallo commented that “maybe they are getting their little organization bigger than we thought.” Several of Bostic’s associates from the east side, they said, were making accusations about Licavoli and Lonardo and causing trouble. Sinito and Gallo then told Zagaria that Bostic was “a west side problem” and that Zagaria should “take care of your west side problems... contact your people and take care of this problem.” When Zagaria asked about Bostic’s three associates from the east side, Gallo and Sinito said that they would take care of their part of the problem, which was an east side problem. Gallo then said that he would offer $50,000 to anyone on the west side who would kill the three men associated with Bostic. Zagaria later discussed Bostic with Hans, and in June of 1980, Hans and McTaggart lured Bostic into the basement of Zagaria’s pet fish store, where they shot and killed him. At Hans’ direction, Fritz then brought Hans his “surgical tools” — a meat cleaver and a large knife — which were used to dismember Bostic’s body before disposal of his remains. Following the failure of' the Linndale gambling effort, Zagaria began to suspect that the operators of the Barboot game were cheating him and his partners. With the blessing of Gallo and Sinito, and with the assistance of Hans and McTaggart, Zagaria reorganized and directed the operation of the game. From June 1980 to early 1981, Zagaria ran the game, meeting with McTaggart, Hans, and Coppola on a daily basis, during which period the game was highly profitable.. Out of these gambling proceeds, Zagaria paid operating expenses and 10 percent of the gross receipts to Carmen Basile. Remaining profits were divided with representatives of the east side, Gallo and Sinito. In addition, Zagaria regularly gave McTaggart $50 to $100 per week from the Barboot receipts. In the fall of 1980, Sinito and Gallo asked Zagaria to let an east side representative, Phil Bonadonna, work at the Barboot game. Zagaria and Hans agreed to put Bonadonna to work at the game, if Bonadonna could bring in customers. Basile opposed it, and complained to Lonardo about Bonadonna. Zagaria spoke with Sinito and Lonardo about the matter, and Sinito told Zagaria to “respect Carmen Basile,” even though Basile was giving them “a headache over the Barboot game.” Lonardo later reiterated this instruction, directing Zagaria to “just respect Carmen Basile and don’t pay him no attention and at this time just respect him,” but told Zagaria to “keep the kid [Bonadonna] working.” Prior to his death, Ritson told Zagaria that McTaggart was one of his marijuana and cocaine “customers.” After Ritson’s murder, McTaggart obtained his cocaine and marijuana from Coppola, supplied by Zagaria. Ultimately, McTaggart arranged to obtain his supply of drugs directly from Zagaria, for distribution to his own customers. Zagaria then regularly delivered substantial quantities of marijuana and cocaine to McTaggart. As the drug business expanded, Zagaria began to use a crew of assistants to obtain drugs in Florida and to deliver them to Cleveland. One of Zagaria’s assistants testified that he began working for Zagaria in the fall of 1978, and that he soon became a regular “runner” for Zagaria, obtaining marijuana and cocaine in Florida and driving the loads back to Cleveland. In November 1978, Zagaria agreed to buy 100,-000 Quaalude (methaqualone) tablets from Sinito, paying $175,000 for them upon resale. Sinito subsequently arranged to sell bottles of illegally obtained prescription pills to Zagaria for $100 per bottle. The pills included Quaalude and Dilaudid tablets as well as a variety of barbiturates. Zagaria continued purchasing the pills on a regular basis for the next two years. He met with Sinito each week to make satisfactory arrangements. In February of 1979, Sinito asked Zagaria whether he was interested in purchasing a large amount of marijuana. Sinito then arranged a meeting between Zagaria and appellant Gallo. Following the meeting, Zagaria had one of his assistants pick up the marijuana and deliver it to a “stash house” he operated on the west side of Cleveland. About a week later, Zagaria paid Gallo and Sinito approximately $60,000 for the marijuana thus supplied. Shortly thereafter, Gallo and Sinito offered to sell a larger quantity of marijuana to Zagaria. Zagaria purchased the marijuana for approximately $225,000. At that time, Gallo and Sinito proposed to Zagaria that they had some “connections” in Florida from who Zagaria could obtain marijuana. Following that discussion, Sinito and Zagaria, together with several of Zagaria’s associates, traveled to Florida to buy marijuana, but were unable to consummate a deal. In May of 1979, Gallo and Sinito agreed to invest $25,000 in Zagaria’s marijuana business; they agreed that in exchange for their investment, Gallo and Sinito would share in the profits from the venture. That night or the next day, Zagaria sent one of his runners to Florida to purchase marijuana with $35,000 of his own money and the $25,000 Gallo investment. That transaction was followed by a series of marijuana purchases by Zagaria and his associates, using funds provided by Gallo and Sinito. Every week for the next two years, Zagaria met with Gallo and Sinito to discuss their marijuana operations and to divide the profits from this ongoing venture. By August of 1979, Zagaria was paying Sinito and Gallo between $2000 and $2500 per week on their investment. Gallo and Sinito then invested another $25,000 in the venture with Zagaria. In September 1979, Zagaria sent his assistant, Donn Newman, to Florida on three or four occasions to acquire marijuana. Zagaria would have a runner assistant pick up the marijuana and deliver it to one of his “stash houses.” Zagaria would then break the marijuana down into one-pound bags for delivery to his dealers. In October, Newman took $100,000 to Florida to buy marijuana, but $85,000 of the money was stolen by a drug supplier there. When told, Gallo suggested sending McTaggart to Florida to find and to kill the thief. The stolen money, however, was never recovered, and Zagaria looked to Gallo and Sinito for refinancing the narcotics business. Gallo and Sinito agreed to invest more money in the business, but they explained that while the first $25,000 investment had belonged to them personally, the second $25,000 investment had belonged to “the old timers,” indicating (to Zagaria) Lonardo. Since Zagaria was responsible for the loss of the $25,000 investment, he was required to pay interest of five percent per week on that money. For their further investment in his marijuana business, they required collateral. The new funds were stolen in a Florida rip-off as well. Zagaria reported the loss to Gallo and Sinito and told them, “We’re out of business.” The next month, Zagaria went to a Cleveland restaurant frequented by Lonardo. Inside, Zagaria encountered Sinito and Lonardo, and spoke with Sinito, who indicated that with collateral, Lonardo would lend him $50,000. When Zagaria offered diamonds as collateral, Sinito returned to and consulted Lonardo; by a nod to Zagaria, Lonardo indicated agreement. Zagaria then was directed to Gallo’s office; Gallo told him that Sinito was “next door picking up the money.” Shortly thereafter, Sinito arrived carrying $50,000 in a paper bag. Gallo and Sinito explained that a condition of the loan was that a representative of the “east side” would travel to Florida with Zagaria’s agent for the marijuana, and would handle the money. Zagaria paid interest of five percent per week on this new loan, in addition to that due on the prior loans, totalling about $5,000 in interest each week, and in addition to a share of the profits earned. Zagaria began making interest payments to Gallo and Sinito shortly after the new infusion of funds. Between November 1979 and May 1981, he paid them approximately $340,000 in interest alone, and more than $1,000,000 as their share of the profits from the drug distribution operation, all in periodic cash payments. Often Zagaria would be. accompanied by his associates, McTaggart and Hans when he made these payments. Zagaria was responsible for buying and selling the marijuana, but Gallo and Sinito provided him with marijuana suppliers in Florida and dealers in the Cleveland area. Zagaria followed the procedure of sending a “runner” to Florida to purchase the marijuana, accompanied by an “east side” representative on the trip. Zagaria would arrange to pick up the marijuana and place it in a “stash house,” where it would be weighed and packaged for distribution to the local dealers. Zagaria had as many as 30 runners working for him on various marijuana trips, each paid about $1,000 per trip. Gallo was monitored in a phone conversation in December, 1980 with an associate. Gallo discussed selling 1,000 pounds of high-quality marijuana, which “we can pick up in Miami.” In the same conversation, Gallo commented that “We need a landing strip of about 6500 feet to import a load of about 12,000 pounds.” Zagaria, Gallo, and Sinito did not limit themselves to marijuana dealing; in addition, Zagaria paid Sinito between $90,000 and $100,000 for prescription items. He also paid Sinito and Gallo some $200,000 for Quaalude tablets and over $150,000 for cocaine. In January of 1980, Zagaria traveled to Florida to try to reclaim some of the money that had been stolen from his drug runners. Gallo and Sinito donated Ronnie Anselmo, one of their associates, to serve as “muscle” for Zagaria’s efforts. Although Zagaria failed to get the money back, he was able to arrange additional large shipments of marijuana, both from Florida and from Atlanta, Georgia. Early in 1980, Zagaria, Gallo, and Sinito flew to Jamaica and contacted a pilot who could fly marijuana into the United States. In addition, they arranged for access to an airstrip at which both marijuana and cocaine could be imported. Zagaria arranged to use an airstrip in Tennessee, where he said the local sheriff “was on our side,” adding “we could pay him and land a plane there just about any time we wanted: September of 1980, one of Zagaria’s runners had possession of a rental car used on one of the drug supply trips. Because the car had not been returned to the rental agency, the police seized the car and discovered that it contained narcotics, paraphernalia, and cocaine. In McTaggart, who continued to obtain large amounts of marijuana and cocaine from Zagaria, had a number of dealers who worked under him, and whom he contacted on an almost daily basis. A McTaggart associate testified at trial that McTaggart regularly supplied cocaine and barbiturates to members of the Hell’s Angeles motorcycle group. Timothy Lindow, a McTaggart dealer, testified that he was looking for work when he got out of prison in early 1979, and that he had asked Coppola about any prospects. Coppola referred him to McTaggart, who agreed to let Lindow sell cocaine and Quaaludes for him. Lindow obtained cocaine and Quaaludes from McTaggart regularly until January 1980, when he was jailed for burglary. During the summer of 1979, however, McTaggart and Hans complained to Zagaria that Lindow owed money for drugs purchased and advised Zagaria they had to “put a little pressure” on Lindow. After Lindow’s release from jail in 1980, Hans and McTaggart met with him, not knowing that Lindow had agreed to cooperate with the FBI. Although Lindow did not tell them about his FBI relationship, McTaggart nonetheless searched Lindow for a hidden recording device when they met, and threatened him by a reminder about “what would happen to people like Keith Ritson.” Hans added to those threats by reference to Lindow’s wife and children. Allan Wysocki, involved with William Laszlo, one of Zagaria’s dealers in cocaine, was arrested without having paid Laszlo. When released in December 1980, Wyoscki was visited by Laszlo along with Hans. Laszlo demanded that Wysocki pay the cocaine debt. When Wysocki said he did not have the money, Hans informed Wysocki that he “definitely wouldn’t be walking around the next day” if he failed to find it. In addition to his services as an “enforcer,” Hans also recruited drug dealers for Zagaria’s operation, including in 1978, Larry Turner operator of a Zagaria “drug house.” Hans introduced Zagaria to Gary Young, who became a substantial marijuana dealer for Zagaria. Like McTaggart, Hans also had frequent conversations with Zagaria concerning drug customers. For instance, Hans and McTaggart spoke to Zagaria about allowing a barmaid named “Utah” to purchase marijuana; Hans subsequently advised Zagaria about another customer who would purchase small amounts of marijuana and LSD. Gallo and Sinito asked Zagaria in late 1979 if he were interested in joining “the Mafia.” Gallo and Sinito then described the organization of the group; that the head of the local Mafia had admitted no new members for 15 years, except themselves. Zagaria said that he had learned Basile was a “made member” of the Mafia, and that other members in Cleveland were Licavoli, the “boss”; Lonardo the under-boss; Gallo and Sinito; Anthony Liberatore; and a sixth member then living in Florida. JJasile had said he was the controller of the west side Mafia family, sponsored by Lonardo with respect to his 10 percent interest in the Barboot gambling. When Zagaria mentioned Lonardo’s name, Sinito and Gallo warned against ever using the name, but rather suggested that he refer to Lonardo and Licavoli as “the old-timers, the other guys, the old men, anything but their names.” In the fall of 1980, Gallo and Sinito spoke with Zagaria once again about joining the Mafia; Sinito intended to take Lonardo’s place, and they promised Zagaria that he would be put in charge of all the “soldiers.” Curtís Conley was a competing cocaine distributor, resisting McTaggart’s and Hans’ pressures to join them. In April 1980, Ronnie Starks, a cocaine dealer for McTaggart and Zagaria reported that Conley wanted to kill them both. In June, Gallo told McTaggart about a contract on his life; at that point Zagaria and McTaggart decided to confront this serious threat. They pretended to purchase cocaine from Conley, but instead shot him to death and stole a pound of cocaine Conley then possessed. Zagaria advised Hans and Gallo about Conley’s elimination. Zagaria also learned that another competitor, David Hardwicke, was trying to sell a kilogram of cocaine in the Cleveland area. Zagaria had dealt previously with Hardwicke. Zagaria and his associates decided to steal the kilogram. At a meeting with the Graewes and McTaggart, Fritz suggested choking Hardwicke with a coathanger. Zagaria agreed to share the proceeds from the sale of the stolen cocaine. The conspirators, under the pretext of purchasing the cocaine, lured Hardwicke into a car where Fritz strangled him with a coathanger, and the Graewes and McTaggart shot him. Zagaria took Hardwicke’s cocaine and sold it; he later shared the proceeds with each of the murder participants, as agreed. One of Hardwicke’s former partners subsequently gave Zagaria a $5,000 discount on a kilogram of cocaine for his service in disposing of Hardwicke. In November of 1980, one of Zagaria’s associates suggested stealing two kilograms of cocaine from Kenny Odom, suspected of a previous substantial theft from Zagaria’s organization. Zagaria talked with Hans and McTaggart about this proposal, and they agreed. Fritz and Robert Dumas, another of their associates, would pose as narcotics officers, and would then steal the cocaine in the course of a pretended arrest. McTaggart, Zagaria, and Hans supported Fritz and Dumas at the scene of the subsequent theft. Zagaria paid each of the participants a substantial sum for their efforts in eliminating Odom. In September 1980, Sinito and Gallo discussed with Zagaria another proposal to steal drugs from a principal supplier, Joseph Giaimo. Zagaria did not initially agree to go along with the plan since Giaimo was supplying large amounts of marijuana, cocaine and Quaaludes for him. Later Gallo and Sinito again discussed with Zagaria “ripping off” Giaimo. They finally agreed to steal a huge quantity of drugs from Giaimo and to kill him in the process. Accordingly, they arranged a marijuana purchase from Giaimo to occur at about the end of the year. They then sent a number of people to Florida to pick up a load of Giaimo’s marijuana. On the first trip, the runners returned from Florida with almost 800 pounds of marijuana. Gallo and Sinito told Zagaria that from the proceeds of the sale of Giaimo’s drugs, Zagaria would be able to pay the entire $124,500 that he still owed to the two “old timers” and would be able to make an additional profit on the transaction. Zagaria contacted Hans and explained the plan to him. On the night of January 17, 1981, Zagaria and Hans lured Giaimo into Zagaria’s pet fish store and killed him, bricking the body into a basement wall. The Giaimo theft enabled the conspirators to obtain marijuana worth more than $500,000, which was shared by the principal participants, including Zagaria, Sinito, Gallo, McTaggart, and the Graewes. Zagaria stored some of the marijuana at Fritz’s home until it could be distributed. In December 1980, Sinito asked Zagaria if he “had room in the pond to put someone,” referring to one of Zagaria’s drug dealers, David Perrier, who was challenging Lonardo and Licavoli. According to Sinito, Perrier was claiming that he had “buried a lot of people for Lonardo and Licavoli” and wanted payment. Later the same month, Zagaria saw Sinito and Lonardo together at the same restaurant. Sinito approached Zagaria, recounted the problems with Perrier, and asked if Zagaria would help. Sinito told Zagaria that Lonardo was so angry at Perrier that he wanted to kill him personally. In response, Zagaria replied that he would help. Sinito returned to Lonardo, who then nodded to Zagaria. Sinito later reported to Zagaria that with the assistance of an east side “muscle” man, he had killed Perrier. In February 1981, Zagaria met with Basile, who indicated he would tell Lonardo what good work Zagaria had been doing; “you should become a member, and Angelo would be proud.” Lonardo later congratulated Zagaria personally for his services; he told Zagaria, “I heard a lot of good things about you. You are doing a good job, and be careful.” Later that spring, Gallo again talked with Zagaria about joining the Mafia. If Gallo and Sinito were to be “bosses”, when Zagaria joined, he would be an “underboss.” Zagaria later told Hans about this conversation; Hans replied that Zagaria should join the group to learn “where everything is coming from.” On May 12, 1981, law enforcement authorities conducted warrant-authorized searches of Zagaria’s premises and those 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_juryinst
B
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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". Daniel Harold GRIEGO, Appellant, v. UNITED STATES of America, Appellee. No. 6826. United States Court of Appeals Tenth Circuit. Jan. 10, 1962. Eugene Deikman, Denver, Colo., for appellant. Lawrence M. Henry, U. S. Atty. for District of Colorado, Denver, Colo., for appellee. Before LEWIS and BREITENSTEIN, Circuit Judges, and CHRISTENSON, District Judge. BREITENSTEIN, Circuit Judge. Appellant-defendant Griego appeals from a judgment entered on a jury verdict finding him guilty on all four counts of an indictment charging the receipt, concealment, and sale of unlawfully imported narcotic drugs in violation of 21 U.S.C.A. § 174. The sole ground urged for reversal is that the trial court erred in its instructions to the jury. So far as pertinent Section 174 reads: “Whoever * * * knowingly * * * receives, -conceals, buys, sells, * * * any such narcotic drug after being imported * * * knowing the same to have been imported * * * contrary to law * * * shall be imprisoned * * *. “Whenever * * * the defendant is shown to * * * have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.” Evidence for the government was that defendant told a federal narcotics agent that he could obtain heroin for the agent and did so on four occasions with money furnished by the agent. On each occurrence the defendant withheld some of the heroin to use in /the satisfaction of his own addiction. The defendant took the stand in his own defense, admitted the transactions in question, and denied knowledge of the unlawful importation of the heroin. In his instructions the trial judge, after referring to the second-paragraph of Section 174, told the jury that denial of knowledge of unlawful importation, standing alone, was not a defense and that the only sufficient explanation was one which convinced the jury that the defendant came into possession of the heroin legally. Timely and adequate objections were made by defense counsel to this portion of the charge. The constitutionality of Section 174 has consistently withstood challenge. The government urges that denial of knowledge, standing alone, is not sufficient as a matter of law to require submission of the question of knowledge to the jury because it is not accompanied by an assertion of legal possession. Additionally the government contends that the Narcotic Control Act of 1956 by declaring all heroin to be contraband makes lawful possession impossible and hence precludes the possibility of a satisfactory explanation. The essential elements of the crime charged are: (1) receipt, concealment, or sale of heroin by the defendant; (2) unlawful importation of the heroin by some one; and (3) the defendant’s knowledge of such unlawful importation. Receipt, concealment and sale of the heroin were established by the prosecution’s evidence and are not controverted by the defendant. To sustain the presence of the other two elements the government relies on the second paragraph of Section 174. While the provisions of that paragraph have been referred to as a statutory presumption, actually they do no more than make proof of possession prima facie proof of the elements of the crime. Such was our holding in Velasquez v. United States. Prima facie proof is always rebuttable. The effect of the second paragraph is to insulate the prosecution against the. hazard of a directed verdict when nothing more than possession is proved and to authorize, but not require, conviction when possession, not satisfactorily explained, is established. If, as the government contends, the satisfactory explanation provision of that second paragraph requires evidence of lawful possession which cannot be made because heroin is contraband, then proof of knowing possession with dominion and control over the heroin is conclusive, not prima facie, proof of the commission of the crime. Such construction involves constitutional difficulties. Congress no doubt has broad powers pertaining to the receipt of evidence in federal courts and may make proof of one fact prima facie proof of another fact as a matter of public policy when there is a rational connection between the fact proved and the fact inferred. Still, by the use of that power, Congress may not go beyond the powers delegated to the federal government under the Constitution of the United States. Congress may control traffic in narcotic drugs in accordance with its power over interstate and foreign commerce and under its tax power but its ability to declare mere possession of a narcotic drug unlawful is doubtful. In this connection it should be noted that the Narcotic Control Act of 1956, while declaring heroin to be contraband, imposes penalties only for border crossings and the use of communication facilities. The acceptance of the government’s position would make it impossible for a defendant, in a case such as this, to controvert one of the essential elements of the crime. The due process implications are apparent. To avoid constitutional problems the second paragraph of Section 174 must not be construed as denying to a defendant the right to contest an essential element of the crime with which he is charged. Such we believe to be the effect of holdings of the Supreme Court. In Harris v. United States, the Court, in considering a conviction under Section 174, said that the “ * * * petitioner could, by offering evidence tending to controvert one presumption or the other as to the ultimate facts, have earned an acquittal * * Yee Hem v. United States, supra, quotes with approval Mobile, Jackson & Kansas City R. R. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78, wherein the Court, after referring to a statutory presumption said: “ * * * it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.” The defense here is that the defendant had no knowledge of the unlawful importation of the heroin. The subjective character of knowledge is such that the statement of the individual accused of having particular knowledge is substantial evidence. ’ At the same time it is probable that many narcotic offenders can testify truthfully that they had no knowledge of unlawful importation. Those so engaged are not concerned with the primary sources of the contraband commodity. It is a reasonable inference from the testimony of the defendant in this case that he neither knew nor cared to know the source of the heroin. While negligence is not sufficient to charge a person with knowledge, one may not wilfully and intentionally remain ignorant of a fact, important and material to his conduct, and thereby escape punishment. The test is whether there was a conscious purpose to avoid enlightenment. The instant situation is comparable to that presented in Spurr v. United States, 174 U.S. 728, 735, 19 S.Ct. 812, 43 L.Ed. 1150, where a bank officer was charged with violation of the banking laws and asserted in defense that he lacked knowledge of the status of certain accounts. The Court, after pointing out that the accused may not remain “grossly indifferent in his duty in respect to the ascertainment” of the facts, held in effect that he was entitled to have his defense of no knowledge considered by the jury under proper instructions. This conforms to the general rule that in a criminal case instructions are erroneous if they exclude from jury consideration an affirmative defense as to which evidence has been received. As the instructions given in the ease at bar violate this rule, the judgment must be reversed. This disposition of the case does not mean that upon retrial the court should exclude from the instructions all reference to the second paragraph of Section 174. In the circumstances of this case the jury should be instructed on the tendered defense of no knowledge and told that the defense is not available if the jury finds from all the evidence beyond a reasonable doubt that the defendant had a conscious purpose to avoid learning the source of the heroin. Further, to be effective as a defense the denial of knowledge must be believed by the jury. If the jury finds the defense available and believes the denial, the defendant should be acquitted. If the jury finds the defense not available or disbelieves the denial, then, in accordance with the second paragraph of Section 174, the jury may convict if it is satisfied beyond a reasonable doubt that the defendant had possession. Reversed and remanded for a new trial. . The material portions of the instructions were these: “ * * * So, if you find beyond a reasonable doubt that the defendant so had possession, knowingly and fraudulently of the heroin described in the indictment, or any substantial portion thereof, then you will be warranted in giving effect to the statutory presumption, and you may presume that the narcotic had been imported and brought into the United States contrary to law, and you may presume that the defendant knew it had been brought into the United States unlawfully. And in such cases, it is not necessary that the Government otherwise prove the unlawful importation or that the defendant knew the heroin was unlawfully imported. “Now, this presumption would follow as a matter of law, if you are satisfied beyond a reasonable doubt that the defendant had possession of the heroin as I have defined such possession to you. “Now, this presumption may be overcome if the defendant explains to your satisfaction that the possession of the heroin came to him legally. In the absence of an explanation by the defendant which satisfies you that the defendant did come into possession of the heroin legally, that is, in accordance with law, you are authorized to convict the defendant. The fact, if it be a fact, that the defendant did not know that the heroin was imported or brought into the United States contrary to law, is not standing alone a defense if you find from the evidence beyond a reasonable doubt that the defendant had possession of the heroin.” . See Velasquez v. United States, 10 Cir., 244 F.2d 416, 418-419, and cases there cited. . See United States v. Feinberg, 7 Cir., 123 F.2d 425, certiorari denied 315 U.S. 801, 62 S.Ct. 626, 86 L.Ed. 1201, and United States v. Moe Liss, 2 Cir., 105 F,2d 144. Cf. Yee Hem v. United States, 268 U.S. 178, 182, 45 S.Ct. 470, 471, 69 L.Ed. 904, affirming a conviction under statutes now superseded by 21 U.S.C.A. §§ 174 and 181 in a case where the court instructed the jury that it devolved on the defendant to explain “that he was rightfully in possession,” and Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632, affirming the constitutionality of that portion of the Harrison Narcotic Act now found at 26 U.S.C. § 4704 and saying that it was reasonable to call on a person possessing narcotics to show that he obtained them in a mode permitted by law. . 18 U.S.C. §§ 1401-1407. . Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 3 L.Ed.2d 597. . See note 2, supra. . Cf. Guevara v. United States, 5 Cir., 242 F.2d 745, 746-747. . Cf. United States v. Malfi, 3 Cir., 264 F.2d 147, 150, certiorari denied 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; and Bergedorff v. United States, 10 Cir., 37 F.2d 248, 249. . Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 603, 72 L.Ed. 632; Yee Hem v. United States, 268 U.S. 178, 184, 45 S.Ct. 470, 69 L.Ed. 904. . See note 5, supra. . United States v. Erie R. R. Co., 3 Cir., 222 F. 444, 450, 451. . United States v. General Motors Corporation, 3 Cir., 226 F.2d 745, 749. . Smith v. United States, 6 Cir., 230 F.2d 935, 939; and Coleman v. United States, 5 Cir., 167 F.2d 837, 841. Cf. Morissette v. United States, 342 U.S. 246, 274-275, 72 S.Ct. 240, 96 L.Ed. 288. . See Caudillo v. United States, 9 Cir., 253 F.2d 513, 518, certiorari denied 357 U.S. 931, 79 S.Ct. 1375, 2 L.Ed.2d 1373; Morgan, “Instructing the Jury Upon Presumptions and Burden of Proof,” 47 Harv.L.Rev. 59, 83; and McCormick on Evidence, § 321, pp. 681-685. Question: Did the court conclude that the jury instructions were improper? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_stateclaim
B
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. Dorothy W. JACKSON et al., Individually and on behalf of all others similarly situated, Appellants, v. James T. LYNN, Individually and as Secretary of the Department of Housing and Urban Development, and United States of America, et al. No. 73-1510. United States Court of Appeals, District of Columbia Circuit. Argued March 8, 1974. Decided Oct. 17, 1974. G. Dan Bowling and Michael Diamond, Washington, D. C., for appellants. Robert P. vom Eigen, Atty., Dept, of Housing and Urban Development, of the bar of the Supreme Court of Connecticut, pro hae vice, by special leave of court, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, Thomas G. Corcoran, Jr., and Michael G. Scheininger, Asst. U. S. Attys., and Arthur J. Gang, Atty., Dept, of Housing and Urban Development, were on the brief, for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee. Before HASTIE, Senior Circuit Judge, and WRIGHT and WILKEY, Circuit Judges. Of the Third Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970). HASTIE, Senior Circuit Judge: Each of the appellants purchased a house in the District of Columbia, giving a mortgage which the Federal Housing Administration (FHA) insured pursuant to section 221 of the National Housing Act as amended, 12 U.S.C. § 1715l (1970). Later, they joined in this suit against the United States and three federal administrators of the FHA program. The complaint alleged that various real estate brokers led plaintiffs, inexperienced home buyers making their first such purchases, to believe that the houses were in FHA approved condition, and that the government would stand by the houses. It further alleged that the brokers purposely deterred plaintiffs from adequately inspecting the houses prior to purchase, asserting that the government would require repair of any defective conditions or that the brokers themselves would make any necessary repairs after purchase. Defects were never repaired, and the houses as sold were and are in violation of the Housing Regulations of the District of Columbia. Appellants sought to represent the class of all persons in the District of Columbia who have purchased, are in the process of purchasing, or will purchase homes with mortgages insured pursuant to section 221. They sought a declaration that subsection (d)(2) allows the Secretary to insure mortgages only if the houses comply with local housing regulations, and an injunction to restrain defendant officials from insuring mortgages on homes which do not so comply. Appellants also sought damages from the United States equal to the difference between the value of their homes when purchased and the value their homes would have had when purchased had they then conformed to the housing code; or, as an alternative to damages, an order requiring the FHA to finance appellants’ purchases, without down payment, of other homes in proper repair by insuring mortgages for the entire purchase price. On defendants’ motion the district court dismissed the damage claim for lack of jurisdiction and the requests for injunction and prospective declaratory relief for lack of standing. 1973, 355 F.Supp. 737. The request for a declaration that plaintiffs’ mortgages were illegally insured was dismissed for failure to state a claim on which relief could be granted. On this appeal the district court’s jurisdiction over all of the claims is challenged. However, this court has recently determined that section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1970), constitutes an independent grant of jurisdiction to the district courts. Pickus v. United States Board of Parole, 1974, 165 U.S.App.D.C. -, 507 F.2d 1107 (1974) and cases cited therein. Thus, the district court had jurisdiction over all claims that challenged “agency action” as that term is defined in the Act, 5 U.S.C. § 551. District court jurisdiction over the damage claim, subject however to possible sovereign immunity bar, exists under 28 U.S.C. § 1346(a)(2), since this is an action for less than $10,000 founded upon the National Housing Act, an Act of Congress. Cf. Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. The record contains neither a certificate or any showing that the district court agreed to hear this case as a class action, nor any judicial pronouncement to define the scope of the class. Rule 23(c)(1), F.R.Civ.P. provides for a determination by order of the district court whether an action brought as a class action may be so maintained. Courts have treated an affirmative order under that Rule as prerequisite to class action maintenance whether or not the defendant challenges the class action allegations. E. g., Dorfmann v. Boozer, 1969, 134 U.S.App.D.C. 272, 414 F.2d 1168, 1171 n. 8; Davis v. Romney, supra n. 2. Thus, this court may not consider this appeal as a class action, and may reach issues only to the extent that named plaintiffs are affected. Damages are sought only against the United States. The plaintiffs predicate their damage claim upon the Tucker Act which gives the district courts jurisdiction over any “civil action or claim against the United States, not exceeding $10,000 in amount, founded upon . . . any Act of Congress”. 28 U.S.C. § 1346(a)(2). Thus, to state a cause of action for damages plaintiffs must rely upon an Act of Congress which expressly or impliedly creates a statutory right to such relief. For jurisdictional purposes it may suffice that a plaintiff is attempting to show that conduct of which he complains violates an Act of Congress. But to state a claim upon which relief may be granted his contention as to the meaning and reach of that Act must be legally correct. He must show that a statute, properly construed, sanctions a private claim against the government, and for the payment of money at that. The plaintiffs assert that HUD’s action in insuring their mortgages on dwellings that were not in conformity with the Housing Regulations of the District of Columbia violated the requirement of section 221(d)(2) of the National Housing Act that, in order for a mortgage to be insurable under this section a dwelling must meet “the requirements of all State Laws, or local ordinances or regulations, relating to the public health or safety . . . which may be applicable thereto . . . . ” For present purposes we assume that this is correct in fact and in law. But beyond that, plaintiffs must show that section 221(d)(2) confers upon them a right of redress against the United States for HUD’s violation of its statutory duty. The National Housing Act contains no language to this effect. So plaintiffs must establish that a private right to recover from the United States is properly implied. Appellants rely specifically on no more than brief comments of Mr. Cole, Administrator of the Housing and Home Finance Agency, at the 1958 House hearings and Senator Douglas at the 1959 Senate hearings. The 1958 House proceedings consumed several full days of testimony and more than seven hundred published pages. Questions of finance, raised ceilings, interest rates, expanded scope of housing programs, and the like occupied by far the greatest part of the testimony of various interested groups. Mr. Cole’s isolated comment related to mortgage co-insurance proposals under which the lender and insurer would share the risk, although apparently the lender’s risk would be minimal. He was not speaking of any existing FHA program. Such a comment on a different section and scheme cannot support an implication that section 221(d)(2) was intended to benefit buyers who normally look to their sellers for redress when their property proves defective. Similarly, the context of Senator Douglas’ equally brief comment during the Senate hearing shows that it is at best tangentially relevant here. His point was that the purpose of the public housing program was not limited to rehousing in public projects persons displaced by government clearance and construction activity, but included moving from unsatisfactory living conditions into public housing persons unaffected by such activity. Its relevance here is minimal since section 221 is not a public housing provision. Thus, the cumulative weight of the two cited passages is unimpressive. Appellants have not cited other particular comments in the hearings, and we have found none that support the implication they would draw. In addition, the effort to imply a cause of action is impeded in this case because it requires a conclusion of waiver of sovereign immunity. Courts should not lightly imply that the United States has consented to forego the normal immunity of the sovereign from suit. It also merits consideration at this point that on March 2, 1972 the Senate passed Senate Bill 3248, which later died in the House Committee on Banking and Currency. That bill would have authorized HUD to correct, or compensate mortgagors for, defects in their homes that had been insured under section 221. A 1970 amendment to the Act had conferred that benefit upon section 235 mortgagors. 12 U.S.C. § 1735b. The later abortive legislative effort to grant equivalent relief to section 221 mortgagors indicates that the Senate, at least, did not view existing law as entitling section 221 mortgagors of defective houses to redress from the government. For these reasons we hold that the claim against the United States for damages failed to state a cause of action upon which relief could be granted. We now consider plaintiffs’ claim, alternative to damages, for corrective administrative action that could result in their acquisition of homes other than their present defective ones. Arguably, such a remedy might be considered in this case, viewed as judicial review under section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702, of “agency action” violative of section 221(d)(2) that has injured the plaintiffs. But plaintiffs do not allege and the record does not suggest that plaintiffs have asked the agency for the relief under discussion. Thus, the “agency action” under review cannot be denial of any request. Hence, the only action which can be complained of is the agency’s policy and practice of insuring mortgages on non-conforming dwellings. But under that approach the power of the reviewing court is limited in a way that precludes the relief now under consideration. Section 10(e) of the Act, 5 U.S.C. § 706, states the applicable scope of review. The court may only hold unlawful and set aside wrongful agency action, § 706(1), and compel action unlawfully withheld or delayed, § 706(2). Holding unlawful past insuring practices would not achieve the affirmative relief plaintiffs desire. Moreover, they cannot establish that the relief they seek is “action unlawfully withheld” since, as noted above, there is nothing in the record to suggest that they have requested it from the agency. Thus, the desired insuring of new homes for plaintiffs may not be ordered by way of judicial review of agency action under the Administrative Procedure Act. Finally, appellants have urged that, whatever may be decided about their other prayers for relief, the court should issue an injunction or hand down a declaratory judgment authoritatively determining that section 221 imposes upon HUD a legal duty to require that dwellings conform to the requirements of the local housing code before it grants section 221 mortgage insurance. This aspect of the controversy, which focuses upon HUD’s anticipated future conduct, has now become moot. In its brief, the government has informed this court that HUD has changed policy and practice and now requires that a dwelling comply with .the applicable local housing code in order to qualify for mortgage' insurance under section 221(d)(2). Moreover, it is now required that compliance be evidenced at each closing by a letter from the local code enforcement agency so certifying. Of course, as concerns the alleged wrongful injury that plaintiffs already have suffered, full relief is being sought through damages or alternative corrective action, and we have found that plaintiffs have not stated a cause upon which relief can be granted. Therefore, no significant interest of the plaintiffs would be served by a declaratory ruling whether or not Congress limited the insurance program under section 221 to homes that comply with local codes. Cf. Gross v. Fox, 3d Cir. 1974, 496 F.2d 1153. For these reasons, the judgment dismissing this suit is Affirmed. . The district court assumed arguendo that plaintiffs had standing to obtain such a judgment. 355 F.Supp. at 742. . An alternative source of jurisdiction over all but the damage claim is asserted under 28 U.S.C. § 1337. The legislative debates strongly suggest that a primary purpose of the Act was to stimulate interstate commercial activity as a means of combating the economic depression in existence in 1934. 78 Cong.Rec. 11191, 11973 (1934). So reasoning, the Court of Appeals for the Third Circuit has held that the Act is sufficiently related to the commerce power to bring it within the § 1337 jurisdiction. Davis v. Romney, 3d Cir. 1974, 490 F.2d 1360. . Housing Act of 1958, Hearings before the Subcommittee on Housing, Committee on Banking and Currency, House of Representatives, 85th Cong., 2d Sess. (1958); Housing Act of 1959, Hearings, Senate Banking and Currency Committee, 86th Cong., 1st Sess. (1959). The statements relied upon appear at p. 15 of the House hearings and p. 145 of the Senate hearings. . We do not agree with a suggestion by the Court of Claims that the Tucker Act’s jurisdictional designation of the district courts as the forum in which claims against the United States for monetary awards, may be litigated constitutes a waiver of sovereign immunity from suit on claims not otherwise authorized. National Bank of Newark v. United States, 1966, 174 Ct.Cl. 872, 357 F.2d 704. Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_const1
0
What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. ANTIETAM HOTEL CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. No. 4836. Circuit Court of Appeals, Fourth Circuit. Nov. 10, 1941. John F. Greaney, of Washington, D. C. (Frank J. Albus, of Washington, D. C., on the brief), for petitioner. Warren F. Wattles, of Washington, D. C., Atty., Department of Justice (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Gerald L. Wallace, and Edward First, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before DOBIE and NORTHCOTT, Circuit Judges, and WAY, District Judge. DOBIE, Circuit Judge. This is an appeal by the Antietam Hotel Corporation (hereinafter called petitioner) from , a decision of the Board of Tax Appeals (hereinafter called the Board). The facts in this case, about which there seems to be little or no dispute, are thus set out in the opinion of the Board: “The petitioner herein is a corporation organized under the laws of Maryland with its offices and principal place of business at the Hotel Alexander, Hagerstown, Maryland. “On October 1, 1927 the petitioner’s predecessor, the Alexander Hotel Corp., issued first mortgage 6-%% ten year gold bonds secured by a deed of trust covering the property of that corporation. The petitioner, subsequent to October 1, 1927, but prior to March S, 1934, acquired the property of the Alexander Hotel Corp., subject to the mortgage securing the bonds. “As of July 17, 1933, a deposit agreement was entered into between the Antietam Hotel Corporation and the holders of the first mortgage 6-%% ten year gold bonds of the Alexander Hotel Corporation, and the Equitable Trust Co. named as the depository. That deposit agreement sets forth that defaults occurred in the sinking fund payment due on September 20, 1931, March 20, 1932, September 20, 1932 and March 20, 1933, and that the company has not earned and was unable to pay the interest on the bonds payable April 1, 1933. On March 1, 1934 the Circuit Court of Baltimore City authorized the successor trustee to comply with the requests made upon it in connection with the deposit agreement and to refrain from pursuing any remedies provided for under the terms of the original indenture of October 1, 1927, on account of the existing defaults. “On March 5, 1934 a supplementary indenture was entered into by and between the Antietam Hotel Corporation and the Baltimore Trust Co., the successor to the original trustee. Under the terms of this supplemental indenture it was agreed that the maturity date of the bonds outstanding in the amount of $324,000 should be extended to the first day of October 1942. It was further agreed that the interest rate on the bonds should be reduced from 6-%% per annum to 4% per annum beginning with the installment of interest payable on the first day of April 1933. “Section 3 of the amended sinking fund instrument provides as follows: “That Article IV, Section 1, of said Indenture of October 1, 1927 shall be amended by substituting for the language of said Section 1 of Article IV of said indenture as the same now appears the following: “The Antietam Hotel Corporation covenants that as a sinking fund for the payment and retirement of bonds from time to time outstanding hereunder, it will pay to The Baltimore Trust Company as Successor Trustee, commencing on March 20, 1934, and annually on each March 20th thereafter until March 20, 1942, 60% of its net current earnings for the preceding calendar year remaining after the payment of all operating expenses, including insurance, repairs, maintenance, all current taxes (as distinguished from any taxes in default), interest on the First Mortgage Bonds at the rate of 4% per annum, and also after an allowance not in excess of $6,000 (if necessary) per annum for ordinary replacements; provided, however, that from the first net current earnings the Corporation shall retain and maintain as permanent working capital the sum of $10,000, which said sum shall be always restored before determining the net current earnings under this Section. The Antietam Hotel Corporation shall not be permitted to surrender to the Trustee in lieu of payment of the sinking fund as a compliance by it with its obligations hereunder any bonds or coupons secured under the aforesaid Indenture of October 1, 1927 as modified and extended hereby. “Section 4, ‘operation of Sinking Fund’ provides that the sinking fund shall be applied the same as in the original indenture, except that, inasmuch as the sinking fund is payable, as above provided, annually instead of semi-annually, the application shall be made by the successor trustee between the 1st and 15th days of April in each year, beginning with April 1934, in which there are funds in the sinking fund applicable to the retirement of bonds of that issue. “Under Section 6 of the supplemental indenture, 'Assumption of Bonds,’ the Antietam Hotel Corporation expressly assumed and covenanted to pay the $524,500 par value of first mortgage 6-/2% ten year gold bonds of the Alexander Hotel Corporation together with all accumulated interest and all interest to accumulate thereon as modified and extended by this supplemental agreement and by 'the deposit agreement of July 17, 1933. “For the calendar year 1936 60% of the net earnings of the petitioner computed in accordance with the provisions of Section 1 of Article. 4 of the supplemental indenture was $4,642.09. This amount was duly paid over to the trustee on March 20, 1937. Petitioner, in its income tax return filed by it for the year 1936 claimed credit thereon in the computation of surtax and undistributed profits in the amount of $4,-642.09. For the calendar year 1937 60% of the net earnings, computed on a like basis, was $13,527.32 which was paid over to the trustee on March 18, 1938. Petitioner claimed credit therefor in its 1937 income tax return. - “The corporation made no entry on its books between January and March of 1937 or 1938 relative to the sinking fund payments. The balance sheet of the petitioner for the year ended December 31, 1936 carried a notation thereon as follows: “ ‘Sinking Fund payment due March 20, 1937, $4,642.09.’ and for the year ended December 31, 1937: “ ‘Sinking Fund payment due March 20, 1938, $13,527.32.’ “The percentage of net earnings of petitioner as defined in Section 3 of the Supplemental Indenture, supra, was held in the general bank account of the corporation until March of the years following. “On March 19,- 1937 petitioner wrote to the Union Trust Co. of Baltimore forwarding a check in the amount of $4,642.09 and enclosing a copy of the preliminary schedule disclosing how that amount was reached. On March 16, 1938 petitioner sent a check for $13,527.32 with another schedule. “Since the organization of the petitioner,' James Mullen of Richmond, Virginia, has been associated with it either as assistant secretary or acting as secretary and its counsel; and during the years 1936 and 1937 he attended the Board meetings and advised the executive committee. He advised them that the money must be set aside as of December 31st of each year and must be held separate and not used for any purpose other than the payment to the trustee. He advised them that it constituted a trust fund which they could not use and that they themselves would become personally liable if they permitted it to be used.” § 26(c) of the Revenue Act of 1936, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Acts, page 836, is controlling here. The apposite part of the Statute reads: “§ 26. Credits of Corporations “In the case of a corporation the following credits shall be allowed to the extent provided in the various sections imposing tax— * * * * * * “(c) Contracts Restricting Payment of Dividends * * * * * * “(2) Disposition of profits of taxable year. An amount equal to the portion of the earnings and profits of the taxable year which is required (by a provision of a written contract executed by the corporation prior to May 1, 1936, which provision expressly deals with the disposition of earnings and profits of the taxable year) to be paid within the taxable year in discharge of a debt, or to be irrevocably set aside within the taxable year for the discharge of a debt; to the extent that such amount has been so paid or set aside. For the purposes of this paragraph, a requirement to pay or set aside an amount equal to a percentage of earnings and profits shall be considered a requirement to pay or set aside such percentage of earnings and profits. As used in this paragraph, the word ‘debt’ does not include a debt incurred after April 30, 1936.” It will thus be seen, in order that this credit may be claimed, the Statute requires: (1) that there be a written contract executed prior to May 1, 1936; (2) that this contract contain a provision expressly dealing with the disposition of the earnings and profits of the taxable year; (3) that this contract require a portion of the earnings and profits of the taxable year (a) to be paid within the taxable year in discharge of a debt, or (b) to be irrevocably set aside within the taxable year for the discharge of a debt; and, finally, (4) when all of the above conditions have been met, then the credit may be given to the extent that such amount (a) has been paid, or (b) has been irrevocably set aside. It seems to be conceded that both the first. and second requirements as set out above have been fully met. We do not think, however, that the third requirement has been met and, since this is a condition precedent to the claiming of the credit in question, we believe that the decision of the Board denying the credit, must be affirmed. Petitioner contends very strenuously that the applicable law of Maryland treats this indenture as an express trust, and that, accordingly, the funds covered by the indenture cannot be diverted from the ultimate use set out in the indenture without the violation of a duty under the trust. Consequently, petitioner claims that there was in this case an irrevocable setting aside of the funds by operation of law. It is clear from the record, however, that these funds were never actually segregated from the taxpayer’s other moneys during the taxable years in question. Indeed, the evidence discloses that during the taxable years in question, the funds actually remained in petitioner’s general bank account, and it is quite clear that actual payments to the Trustee were not made during the taxable years but were, in each instance, paid by check during March of the year after the taxable year. Thus, there was no definitive act within the taxable year which divested the corporation’s control over the funds. In this connection, U. S. Treasury Regulation 94, Art. 26(c) (2) provides: “Reg. 94, Art. 26-2 (c) Disposition of Profits of Taxable Years. — Under the provisions of section 26 (c) (2) a corporation is allowed a credit in an amount equal to that portion of the earnings and profits of the taxable year which by the terms of a written contract executed by the corporation prior to May 1, 1936, and expressly dealing with the disposition of the earnings and profits of the taxable year, it is required within the taxable year to pay in, or irrevocably to set aside for, the discharge of a debt incurred on or before April 30, 1936. The credit is limited to that amount which is actually so paid or irrevocably set aside during the taxable year pursuant to the requirements of such a contract. “Only a contractual provision which expressly deals with the disposition of the earnings and profits of the taxable year shall be recognized as a basis for the credit provided in section 26 (c) (2). A corporation having outstanding bonds is not entitled to a credit under a provision merely requiring it, for example, (1) to retire annually a certain percentage or amount of such bonds, (2) to maintain a sinking fund sufficient to retire all or a certain percentage of such bonds at maturity, (3) to pay into a sinking fund for the retirement of such bonds a specified amount per thousand feet of timber cut or per ton of coal mined, or (4) to pay into a sinking fund for the retirement of such bonds an amount equal to a certain percentage of gross sales or gross income. Such provisions do not expressly deal with the disposition of earnings and profits of the taxable year. A contractual provision, however, shall not be considered as not expressly dealing with the disposition of earnings and profits of the taxable year merely because it deals with such earnings and profits in terms of ‘net income,’ ‘net earnings,’ or ‘net profits.’ ” Thus, it will be noted that the Treasury Regulation restricts the credit to amounts actually set aside within the taxable year. Although such an interpretation is not binding on this Court, it is highly persuasive at least. See Griswold, A Summary of the Regulations Problem, 1941, 54 Harv. L.Rev. 398; Brown, Regulations, Reenactment and the Revenue Acts, 1941, 54 Harv. L.Rev. 377; Feller, Addendum to the Regulations Problem, 1941, 54 Harv.L.Rev. 1311; Griswold, Postscriptum, 1941, 54 Harv.L.Rev. 1323. We have indicated above (requirement 3) that as an indispensable condition precedent to the allowance of the credit, the contract itself must in terms require that a portion of the earnings and profits of the taxable year be either paid within the taxable year or else be irrevocably set aside within the taxable year. The indenture in the instant case does not so require; for the indenture expressly stipulates that the petitioner “will pay to the Baltimore Trust Company as Successor Trustee, commencing on March 20, 1934, and annually on each March 20th thereafter, until March 20, 1942, 60% of its net current earnings for the preceding calendar year.” (Italics ours.) It will thus be seen that the contract in question does not require any payment or setting aside of earnings during the taxable year; for it clearly stipulates for payment on March 20th of the succeeding year of net current earnings for the preceding calendar year. Thus the contract contains no provision whatever for any payment or setting aside of earnings during the taxable year, but only for a payment of 60% of the earnings at a date more than two and one-half months after the end of the taxable year. The instant case, is, for all practical purposes, “on all fours” with the case of Helvering v. Moloney Electrical Co., 120 F.2d 617, decided by the Circuit Court of Appeals for the Eighth Circuit. In his opinion in this case, Circuit Judge Wood-rough said (120 F.2d at page 621) : “The statute speaks of ‘an amount * * * which is required * * * to be paid within the taxable year in discharge of a debt, or to be irrevocably set aside within the taxable year for the discharge of a debt’. Under the terms of the taxpayer’s contract, however, it is clear that the payment or setting aside of 20 percent of the 1936 excess earnings was not required until 1937, the year following the taxable year. The taxpayer below admitted that payment was not required until June 1, 1937, but urged that the contract ‘did require the company to irrevocably set aside within the taxable year 20% of the net earnings in excess of $320,000’. It is clear, however, that no irrevocable setting aside was required to be made in 1936 or earlier than April of the succeeding year. The contract requires that when the net earnings are determined from the audit (which is ‘to be made at the close of each calendar year’) ‘which, in no event, shall be later than the first day of April, said amount shall forthwith ■ be set aside in a separate fund’. It follows therefore that one of the terms of the statute has not been met.” We can see no real distinction between the instant case and the Moloney case. In each case, the payment required by the contract was to be made in the succeeding calendar year, several months after the end of the taxable year. True it is that in the Moloney case the payment was not to be made until after an audit, and there was no such provision in the indenture contract involved in the instant case. We do not think, however, that this distinction between the two contracts is in any way vital or controlling. The Government seriously contended, in the instant case, that there had been no irrevocable setting aside of the earnings during the taxable year. Petitioner, on the other hand, with equal earnestness, insisted that there had been such an -irrevocable setting aside of earnings during the taxable year by operation of law, and that this was such an irrevocable setting aside of earnings during the taxable year as would satisfy the Statute and entitle the petitioner to the credits in question. We think there is very serious doubt as to the correctness of the contention of petitioner, but we do not think it necessary to pass definitively upon this point. For, as has been indicated, since the specific terms of the contract do not satisfy an essential condition precedent of the Statute, this alone justifies us in here affirming the decision of the Board on the authority of the Moloney case. It is familiar law that there are no inherent or constitutional rights to deductions under a taxing law; such deductions are purely a matter of governmental grace. Stanton v. Baltic Mining Co., 240 U.S. 103, 36 S.Ct. 278, 60 L.Ed. 546. Consequently, it has been said many times that provisions in a Federal Taxing Statute granting special exemptions are to be strictly construed, and that the taxpayer must carry the burden of showing a compliance with the precise terms of the exemption. White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172; Deputy v. DuPont, 308 U.S. 488, 493, 60 S.Ct. 363, 84 L.Ed. 416; Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 49, 61 S.Ct. 109, 85 L.Ed. 29. In this connection, it may be stated that the cases in petitioner’s brief wherein “permanently set aside” was construed for charitable purposes are not directly in point. It is well settled that charities are spoiled children of the law. In re Tiffany’s Estate, Surr.Ct.1935, 157 Misc. 873, 285 N.Y.S. 971; cf. Old Colony Trust Co. v. Helvering, Com’r of Internal Revenue, 301 U.S. 379, 57 S.Ct. 813, 81 L.Ed. 1169. We are not impressed by petitioner’s contention that the statutory conditions precedent to the granting of the credits in question are harsh. Cf. Lafayette Hotel Co. v. Commissioner, 43 B.T.A. 426 (strict construction of § 26(c) (2); Nevada-Massachusetts Co. v. Commissioner, 43 B.T.A. 1127 (same). Such arguments are for Congress and not for the Courts. We must accordingly affirm the decision of .the Board of Tax Appeals. Affirmed. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_casetyp1_1-3-1
J
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America, Plaintiff-Appellant, v. Jorge ZAPATA, Defendant-Appellee. No. 92-2183. United States Court of Appeals, Tenth Circuit. June 23, 1993. Sidney M. Glazer, Atty., U.S. Dept, of Justice, Washington, DC (Don J. Svet, U.S. Atty., and Tara Neda, Asst. U.S. Atty., D. of N.M., Albuquerque, NM, with him on the brief), for plaintiff-appellant. Joseph W. Gandert, Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellee. Before ANDERSON, HOLLOWAY, and TACHA, Circuit Judges. STEPHEN E. ANDERSON, Circuit Judge. The government appeals from an order of the district court suppressing evidence — cocaine — seized pursuant to a search of defendant Jorge Zapata’s luggage on a train in Albuquerque, New Mexico, as well as statements made following his arrest. Because we hold that the encounter between the officers and Mr. Zapata was consensual, and did not constitute a seizure in violation of the Fourth Amendment, and because we hold that Mr. Zapata voluntarily consented to the search of his luggage, we reverse the district court’s grant of the motion to suppress. BACKGROUND Certain basic facts are undisputed. Drug Enforcement Administration Special Agent Kevin Small, dressed in civilian clothes, boarded an Amtrak train on May 27, 1992, while the train was stopped briefly in Albuquerque, en route from Los Angeles to Chicago. Accompanied by Abuquerque Police •Department Detective Sam Candelaria, who was under assignment to the Drug Enforcement Administration Task Force, Agent Small walked through the coach section of the train where Mr. Zapata was sitting with his common-law wife, Brenda Contreras, and their young son. Agent Small testified at the suppression hearing that there were approximately 45 to 55 people in the coach car at the time. The agent further testified that he decided to question Mr. Zapata because he observed two new duffle bags in the rack above Mr. Zapata’s seat and “of all the drug cases we’ve done on board the train ... about 75 percent of them have used new luggage.” R.Vol. II at 11. While Detective Candelaria “stood back against one of the windows watching the platform area,” Agent Small turned on a tape recorder in a small fanny pack he wore around his waist and approached Mr. Zapata from behind. Id. Agent Small showed Mr. Zapata his DEA badge, and proceeded to ask him a series of questions. The agent stated that he knelt down in the aisle next to Mr. Zapata’s seat while he questioned him, and that his gun remained inside his fanny pack and was not visible. Mr. Zapata testified that Agent Small “was standing in front of me” throughout the entire questioning. R.Vol. II at 41. When the agent asked Mr. Zapata if he could search his bags, Mr. Zapata stood up, got the bags down and opened them for Agent Small. Inside the bags Agent Small found several kilograms of cocaine. The district court found that Agent Small “block[ed] [Mr. Zapata’s] egress from the seat” while he asked him questions which “were rapid-fire, direct, accusatory and potentially incriminating.” Order at 1-2, R.Vol. I tab 16. The district court also found, and no one disputes this finding, that Mr. Zapata was never told that he could refuse to answer Agent Small’s questions or that he could otherwise refuse to comply with the agent’s requests. The district court further found that Mr, Zapata was “born and raised in Mexico, and is a Mexican citizen. He had about 11 years of education in Mexico. He has resided in the United States for 3 to 4 years, and is able to communicate in English to a certain degree. However, he speaks with a heavy accent, and his understanding and command of the English language are somewhat deficient.” Id. at 2-3. Mr. Zapata testified at the suppression hearing that he got “scared” and “very nervous” when Agent Small identified himself as a police officer. R.Vol. II at 40. He testified that he was scared and nervous because he “knew what was in the bags.” Id. When asked why he agreed to talk to the agent, Mr. Zapata testified, “I didn’t know that I didn’t have to talk to him and I thought I had to do it.” Id. , When asked if he felt “that [he] could just leave” while Agent Small was, questioning him, Mr. Zapata testified that he did not “[b]ecause I didn’t want to leave my family there and I saw the two individuals there, one in front and one in the back.” Id. at 41. Mr. Zapata was indicted for possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). He filed a motion to suppress all evidence seized pursuant to the search of his bags as well as all statements made following his arrest, on the grounds that “[t]he initial encounter between Jorge Zapata and Agent Small was an involuntary and nonconsensual seizure” in violation of the Fourth Amendment. Motion to Suppress at 4, R.Vol. I tab 6. The district court held an evidentiary hearing at which Agent Small and Mr. Zapata testified, and the court listened to the tape recording of the encounter between the two. It granted Mr. Zapata’s motion to suppress, finding as follows: 10.Because of his upbringing in Mexico, Defendant believed that he must acquiesce to all police requests because failure to do so could result in dire consequences, including physical harm. 11. A reasonable person in these circumstances with Defendant’s background would not have felt free to ignore Agent Small’s presence, to decline Agent Small’s requests, or to otherwise terminate the encounter and go about his business. When Agent Small began to question Defendant, the Defendant reasonably believed that he was not free to leave or to refuse to answer questions. Defendant reasonably believed he was required to produce his ticket and identification and to allow the agent to search his luggage. 12. Under the circumstances of this case, Defendant reasonably felt intimidated by the presence of the officers, and reasonably interpreted Agent Small’s “requests” as commands or demands. 13. The government has not proven that Defendant’s consent to the police questioning and search was given freely and voluntarily. The questioning of Defendant was not a voluntary, consensual encounter. 14. Defendant was seized for purposes of the Fourth Amendment when Agent Small began asking Defendant questions. Agent Small lacked reasonable articulable suspicion that Defendant had been, was, or was about to be engaged in criminal activity to justify this seizure. The subsequent search and statements made by Defendant were fruits of the initial illegal detention. Order at 3-4, R.Vol. I tab 16. The government appeals that order, arguing that the district court erred in concluding that Mr. Zapata was seized in violation of the Fourth Amendment and that the subsequent search and statements must be suppressed. DISCUSSION When we review an order granting a motion to suppress, “we accept the trial court’s factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the district court’s finding.” United States v. Swepston, 987 F.2d 1510, 1513 (10th Cir.1993) (citing United States v. Waupekenay, 973 F.2d 1533, 1535 (10th Cir.1992) and United States v. Preciado, 966 F.2d 596, 597 (10th Cir.1992)). “[T]he ultimate determination of Fourth Amendment reasonableness is a conclusion of law which we review de novo.” United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993); United States v. Laboy, 979 F.2d 795, 798 (10th Cir.1992) (“the ultimate determination of the reasonableness of any search or seizure is a question of law reviewed de novo by this court”); United States v. Bloom, 975 F.2d 1447, 1450 (10th Cir.1992) (“ ‘the ultimate issue of whether a seizure occurred is a question of law.’ ”) (quoting United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992)). “If the district court’s factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible.” United States v. Nicholson, 983 F.2d 983, 987 (10th Cir.1993). We turn first to the question of whether the encounter on the Amtrak train between Agent Small and Mr. Zapata was a purely consensual encounter or an investigative detention implicating the Fourth Amendment. I. Seizure or Consensual Encounter “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). “ ‘[O]nly when the officer, by means of physical force or show of authority, ... in some way restraints] the liberty of a citizen may we conclude that a “seizure” has occurred.’ ” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)); see also Laboy, 979 F.2d at 798. Thus, police may freely ask questions of any individual they choose, including requesting to see identification and requesting consent to search the individual’s luggage, “so long as the officers do not convey a message that compliance with their requests is required.” Bostick, — U.S. at -, 111 S.Ct. at 2388; see also Bloom, 975 F.2d at 1451-52. The Supreme Court in Bostick articulated the test to be applied to any police encounter, whether occurring on “trains, planes, [or] city streets”: [I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. Bostick, — U.S. at - - -, 111 S.Ct. at 2388-89. Applying that “free to decline officers’ requests or otherwise terminate the encounter” test to the facts of this case, we hold that no seizure occurred when Agent Small questioned Mr. Zapata. We consider a number of factors in determining whether a police-citizen encounter becomes a seizure: the location of the encounter, particularly whether the defendant is “in an open public place where he [is] within the view of persons other than law enforcement officers,” Ward, 961 F.2d at 1531; whether the officers “touch or physically restrain” the defendant, id. at 1533; whether the officers are uniformed or in plain clothes; whether their weapons are displayed; the number, demeanor and tone of voice of the officers; whether and for how long the officers retain the defendant’s personal effects such as tickets or identification; and whether or not they have specifically “advised defendant at any time that he had the right to terminate the encounter or refuse consent.” Id. See also Bloom, 975 F.2d at 1453-54; Laboy, 979 F.2d at 799. Virtually all those factors indicate a consensual encounter between Agent Small and Mr. Zapata. First, the encounter occurred in a public setting, in a coach ear of the train, in view of dozens of other travel-lers. When confronted by authorities in such a public place, a reasonable person is less likely to feel that he is unable to decline the agent’s request or otherwise terminate the encounter. See Ward, 961 F.2d at 1532 (“in a public setting ... the reasonable innocent person is less likely to feel singled out as the officers’ specific target—and less likely to feel unable to decline the officers’ requests and terminate the encounter.”); see also United States v. Ray, 973 F.2d 840, 842-43 (10th Cir.1992) (“A decisive factor in Ward was the defendant was not in a public place or in view of persons other than law enforcement personnel.”). Furthermore, neither Agent Small nor Detective Candelaria touched or physically restrained Mr. Zapata in any way; the agents were in plain clothes and did not brandish or display their weapons; and the officers used a regular tone of voice in asking a series of essentially routine questions. See Ward, 961 F.2d at 1533. Similarly, Mr. Zapata’s ticket and identification were retained only briefly by Agent Small and promptly returned to Mr. Zapata after they had been examined. Cf. United States v. Soto, 988 F.2d 1548, 1557 (10th Cir.1993) (encounter not consensual “[u]nless the officer has returned the driver’s documentation.”). While Mr. Zapata was never in-' formed by Agent Small that he need not answer the agent’s questions or refuse consent to search his luggage, although he was asked if he would “voluntarily” consent to the search, “this one factor by itself does not determine whether a seizure has occurred.” Ward, 961 F.2d at 1533. Similarly, the fact that there were two agents involved, which may, in some circumstances, “increase[ ] the coerciveness of an encounter,” Ward, 961 F.2d at 1533, does not outweigh the multiple other factors indicating a purely consensual encounter. We also specifically hold that the district court erred in considering Mr. Zapata’s “background” and “upbringing” in determining whether a seizure occurred. As this court made clear in Bloom, and reiterated in Laboy, the particular personal traits or subjective state of mind of the defendant may be relevant to some degree to the issue of the voluntariness of that person’s consent, but they are irrelevant to the legal question of whether a seizure has occurred by virtue of the police conduct involved. That inquiry is governed by Bostick's “reasonable person” test, which is clearly an objective test: under the totality of the circumstances, would “the police conduct ... have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, — U.S. at -, 111 S.Ct. at 2389. Thus, Mr. Zapata’s own subjective attitudes toward the police encounter, or any other of his particular personal attributes, are irrelevant, “other than to the extent that they may have been known to the officer and influenced his conduct.” Bloom, 975 F.2d at 1455 n. 9. There was no evidence presented that Agent Small was aware of Mr. Zapata’s attitude toward police officers or was aware of any details concerning Mr. Zapata’s upbringing and background. Nor was there evidence that Mr. Zapata’s limited fluency in English influenced Agent Small. We conclude that, based on the totality of the circumstances, the encounter between Mr. Zapata and Agent Small remained consensual, and did not amount to a seizure in violation of the Fourth Amendment. The encounter occurred in a public setting, in view of dozens of other people, the officers’ conduct and demeanor was essentially non-eoercive and non-threatening, and Mr. Zapata’s ticket and identification were only briefly retained and were promptly returned. A reasonable person in Mr. Zapata’s position would have felt free to decline to answer the agent’s questions or otherwise terminate the encounter. II. Voluntariness of Consent The district court also found, and Mr. Zapata argues on appeal, that Mr. Zapata’s consent to the search of his luggage was not freely and voluntarily given. We turn now to that issue. We determine the voluntariness of Mr. Zapata’s consent to the search of his luggage under the totality of the circumstances, with the government bearing the burden of proof. Soto, 988 F.2d at 1555; United States v. Nicholson, 983 F.2d 983, 988 (10th Cir.1993); United States v. Price, 925 F.2d 1268, 1271 (10th Cir.1991). “[T]he government must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given.” Nicholson, 983 F.2d at 988. The district court found that the government had failed to prove that Mr. Zapata’s consent was freely and voluntarily given. We “must accept that finding unless it is clearly erroneous.” Id. We hold that it is clearly erroneous. Our recent decision in Soto is instructive. In finding that the consent given in that case was voluntary, we stated as follows: [Tjhere is no evidence that any overt coercion was employed. It appears [the officer] did not unholster his weapon, did not use an insisting tone or manner, did not physically harass defendant, and no other officers were present. Further, the incident occurred on the shoulder of an interstate highway, in public view. [The officer] sought permission specifically to look in .the trunk, and the defendant got out of the ear and opened the trunk himself. Defendant makes no contention that he misunderstood [the officer’s] request; any such claim is precluded by defendant’s act of opening the trunk. Thus, defendant’s consent was unequivocal and specific. 988 F.2d at 1558. Similarly, Agent Small in this case used no overt coercion or display of weapons. While the district court found that the agent’s questions were “rapid-fire, direct, accusatory and potentially incriminating,” the transcript of the interchange between Agent Small and Mr. Zapata suggests fairly routine questioning. And while virtually any question could conceivably be “potentially incriminating,” the only directly “potentially incriminating” question Agent Small asked Mr. Zapata (whether Mr. Zapata had any drugs in his luggage) occurred more than half way through the interchange. Moreover, as in Soto, the interchange and the giving of the consent occurred in public view in the coach section of the train in the presence of 45 to 55 other people. . Additionally, as in Soto, Agent Small specifically sought permission to search Mr. Zapata’s luggage, and Mr. Zapata makes no argument that, nor is there evidence that, he did not understand the agent’s request, which the agent made twice, to search the luggage. “[A]ny such claim is precluded by [Mr. Zapata’s] act of opening the [bag].” Id. And the transcript reveals that Mr. Zapata said, “Sure” and, “Yeah,” when asked whether he would consent to the search. See United States v. Werking, 915 F.2d 1404, 1410 (10th Cir.1990) (consent “unequivocal, specific, and freely and intelligently given” when defendant “answered ‘no’ when asked whether he minded if [the officer] looked in the trunk and later shook his head ‘no’ when asked whether he minded if [the officer] looked in the duffel bags.”). All of those circumstances would compel the conclusion that Mr. Zapata’s consent, like the defendant’s in Soto, was unequivocal, specific, and freely and intelligently given. The primary factor upon which the district court relied to conclude that Mr. Zapata’s consent was not voluntary, and a principal factor Mr. Zapata asserts on appeal, is his background and attitude toward police, derived from his experiences in his native Mexico. As we noted in Bloom, while “[a] person’s subjective characteristics may be relevant to the voluntariness of the person’s consent ... recent Supreme Court decisions cast doubt on this issue.” Bloom, 975 F.2d at 1455 n. 9. But even assuming some subjective characteristics are relevant to the validity of Mr. Zapata’s consent, we reject the notion that his attitude toward police, from whatever source, can constitute such a relevant subjec-five characteristic. While such attributes as the age, gender, education, and intelligence of the accused have been recognized as relevant, see United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); United States v. Chalan, 812 F.2d 1302, 1307 (10th Cir.1987), an intangible characteristic such as attitude toward authority is inherently unverifiable and unquantifiable. Generalities about attitudes are even more vaporous. The district court’s finding that Mr. Zapata’s consent was not freely and voluntarily given is clearly erroneous. For the foregoing reasons, the decision of the district court granting Mr. Zapata’s motion to suppress evidence is REVERSED and the case is REMANDED for further proceedings. . The transcript of the recorded conversation between Agent Small and Mr. Zapata reveals the following interchange: S/A Small: How you doing today? I'm with the police department, can I talk to you for a second? ZAPATA: Sure. S/A Small: Where are you headed today? ZAPATA: Chicago. S/A Small: And where did you get on the train at? ZAPATA: Los Angeles. S/A Small: Los Angeles? ZAPATA: Uh-huh. S/A Small: Do you have your ticket with you? S/A Small: ZAPATA? ZAPATA: (Cough) Yeah. S/A Small: Do you have anything with a picture I.D. on it at all Mr. Zapata? S/A Small: Do you live in Illinois or live in Los Angeles? ZAPATA: Illinois. S/A Small: Illinois? How long have you lived there? ZAPATA: (Cough) For about two (2) years. Longer than that. S/A Small: Two (2) years? S/A Small: How long were you out in Los Angeles? ZAPATA: Uh, three (3) weeks. S/A Small: Three (3) weeks? ZAPATA: Yeah. S/A Small: Do you have any luggage with you today? ZAPATA: Yes, I do. S/A Small: Where is it? Do you know? ZAPATA: Downstairs. S/A Small: Downstairs? Do you have any other luggage with you? ZAPATA: Yeah, up there. S/A Small: I work for the Drug Enforcement Administration, okay. We have a problem on-board the train with people traveling out of Los Angeles, back to Illinois carrying drugs. You don’t have any drugs in your luggage do you? ZAPATA: No, I don't. S/A Small: Would you voluntarily consent for me to search? ZAPATA: Sure. S/A Small: Would that be all right? ZAPATA: Yeah. S/A Small: Ma’am, do you speak English? Brenda CONTRERAS: Yes. S/A Small: Are one of these your bags? Brenda CONTRERAS: No. S/A Small: Would you voluntarily consent for me to search this bag? S/A Small: Hi there. How old is he? ZAPATA: Oh, a year and a half. S/A Small: Year and a half, that's about what mine is. S/A Small: Sam. S/A Small: Why don't you put your hands behind your back, all right? S/A Small: Ma’am are you a citizen of the United States? CONTRERAS: Yes. S/A Small: Do you have your immigration papers with you? Uh huh. She's going with us anyway, Sam. She doesn't have her immigration papers? S/A Small: About three (3) more in here. S/A Small: Sir, do you have your immigration papers? Addendum for the United States. . Mr. Zapata also testified as follows: Q Why did you allow Mr. Small to search your luggage? A Because I saw that he was a police officer. Q And of what significance was the fact he was a police officer? A I didn’t know because I thought that when a policeman asks you something one has to answer. Q Did you think that when he was asking you, that he was really telling you what to do? A Yes, sir. Q Did you believe that you had any choice in not doing what he said? A At the moment I thought that if I didn’t do it he would get angry or he would do something else. R.Vol. II at 42. When questioned by the court, Mr. Zapata indicated that he had heard that Mexican police "strike you, they hit you” when a citizen encounters a policeman. Id. at 47-48. . Of course, the nature of the police-citizen encounter can change — what may begin as a consensual encounter may change to an investigative detention if the police conduct changes and vice versa. See Bloom, 975 F.2d at 1455-56 (consensual encounter became investigative detention when police questioning changed); United States v. Werking, 915 F.2d 1404, 1409-10 (10th Cir.1990) (investigative detention ended and encounter became consensual when police returned defendant’s license and papers). . In this connection, Agent Small’s request that Mr. Zapata “voluntarily consent" to a search of his luggage would not necessarily constitute the specific statement that Mr. Zapata need not answer the agent's questions or permit a search of his luggage. In Bloom, Agent Small also asked for the defendant’s "voluntary” consent, yet we specifically noted that an important factor in our conclusion that a seizure had occurred was the lack of an explicit advisement that the defendant need not answer questions or permit a search of his belongings. See also Bostick, — U.S. at -, 111 S.Ct. at 2385; United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980) (express statement to defendant that she could decline consent was "especially significant”). Of course, such an explicit advisement is not a requirement; it is merely a factor to be considered in the totality of the circumstances. See INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Schneckcloth v. Bustamonte, 412 U.S. 218, 231, 93 S.Ct. 2041, 2049, 36 L.Ed.2d 854 (1973); Laboy, 979 F.2d at 799; Bloom, 975 F.2d at 1454-55; Ward, 961 F.2d at 1533. . Agent Small testified that he did not immediately notice Mr. Zapata's accent because "[h]e didn't say a whole lot of words for me to pick up an accent. It wasn't until I think he said a couple sentences, you know, a couple words back to back that, I think he said 'up there' or something about the luggage that I picked up an accent.” R.Vol. II at 26-27. The agent also testified that he “believed [Mr. Zapata] was from the United States.” Id. at 27. . In finding in Ward that subjective characteristics are relevant to the issue of coercion, we cited United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985), in which we stated that the defendant's "undisputed testimony that his upbringing and experiences in Argentina had instilled in him an acquiescence to police authority" was relevant to the issue of coercion. In so stating, Recalde cited Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047 and Mendenhall, 446 U.S. at 558, 100 S.Ct. at 1879, both of which addressed the type of characteristics of the accused which are relevant to the validity of a consent. Neither case includes within its consideration of relevant characteristics the kind of subjective attitude toward authority or cultural heritage held to be relevant in Recalde. Cf. United States v. Chalan, 812 F.2d 1302, 1307-08 (10th Cir.1987) (in evaluating whether statement by Cochiti Indian was voluntary, court considered whether he was specifically told he need not answer questions, length of interview, environment in which interview took place, defendant's experience with law enforcement, and defendant's susceptibility to coercion "because of his age or lack of education or intelligence.”), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988); United States v. Joe, 770 F.Supp. 607, 611 (D.N.M.1991) (discussing Recalde and the later decision in Chalan and observing that "[t]he Tenth Circuit has implicitly rejected modification [of reasonable person test] based on cultural heritage."). Moreover, even in Ward, the "personal traits” held to be relevant were the defendant's "slight physique and health problems"—characteristics more akin to the characteristics considered in Schneckloth and Mendenhall than the attitude toward authority mentioned in Recalde. In any event, Recalde itself gives no indication of the weight to be given the factor of the defendant’s attitude toward authority, and the case itself demonstrates that it was only one of many factors leading to the conclusion that the consent was involuntary. See Joe, 770 F.Supp. at 611 n. 2. While we would accord that factor no weight, one panel of this court cannot overrule another panel. See United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990). We are quite confident, however, that Recalde does not require that the factor be given controlling or even significant weight, as it was in this case by the district court. Cf. United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir.1992) (rejecting argument that defendant's "background and limited ability to speak English prevented him from voluntarily consenting to the search.”), cert. denied, — U.S. -, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993); see also United States v. Analla, 975 F.2d 119, 124 (4th Cir.1992) (rejecting argument that a seizure occurred because of defendant's attitude toward police "based on his experience with Moroccan police.”), cert. denied, — U.S. -, 113 S.Ct. 1853, 123 L.Ed.2d 476 (1993). . The majority opinion relies heavily on our decision in Soto, listing a number of factors present there as indicating voluntariness of consent. See supra p. 758. Those factors do lend support to a finding of voluntariness of consent. But we must keep in mind the fact that in Soto, we were reviewing a trial court's finding of voluntariness and were noting record evidence supporting the finding. Here we should similarly be giving consideration to the evidence and factors cited by the trial judge supporting his finding of a lack of voluntary consent, as we make our review of the whole record. In my judgment, the evidence and factors cited by the trial judge amply support his finding that the “government has not proven that defendant’s consent to the police questioning and search was given freely and voluntarily.” Order at 3. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_respond2_4_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 second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Your task is to determine which category of substate government best describes this litigant. LEON W. BRADLEY, Jr., Et al., etc., Plaintiffs-Appellees, v. PINELLAS COUNTY SCHOOL BOARD, Et al., Defendants-Appellees, and Dan E. Schramek, Marcus D. Griffith, Movants-Appellants. No. 91-3344. United States Court of Appeals, Eleventh Circuit. June 5, 1992. Dyril L. Flanagan, St. Petersburg, Fla., for movants-appellants. Enrique Escarrez, Ill., Roger Plata, St. Petersburg, Fla., Norman J. Chachkin, New York City, Bruce Taylor, Largo, Fla., for appellees. Before FAY, Circuit Judge and DYER and CLARK *, Senior Circuit Judges. See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. CLARK, Senior Circuit Judge: This is an appeal from the denial of a motion to intervene in a school desegregation ease. The district court, without holding an evidentiary hearing, determined that the proposed intervenors were merely dissatisfied with the manner in which the existing parties were attempting to achieve a unitary school system and, therefore, were not entitled to intervene. We reverse and remand for an evidentiary hearing. Background, The named plaintiffs initiated this suit in 1964 on behalf of the class of all Negro children eligible to attend the public schools of Pinellas County, Florida alleging that the Pinellas County School Board was operating a dual school system. In January 1965, the district court entered summary judgment against the school board and ordered it to eliminate the separation of black and white students, teachers, principals, and other school employees. After much litigation, the district court entered a final desegregation order in July 1971. The order provided for a 30 percent maximum black student ratio in any school and a minimum black student ratio that varied by grade level but was the same throughout the county. Since July 1971, the existing parties have entered into a series of joint stipulations, each of which the district court has adopted as an amendment to the desegregation order. Among the most significant of these amendments is the order of May 1977. Pursuant to this order, Pinellas County was divided into two large zones, north and south. The 30 percent maximum black student ratio remained the same throughout the county. The minimum black student ratio, however, was changed. The order established a lower minimum percentage for the north zone, which had a very small black population, and a higher minimum percentage for the south zone, which had a large black population. The order also established procedures for making enrollment projections and correcting racial imbalances. Specifically, the order provided that, if it were projected that the black student ratio at a school would exceed the 30 percent maximum and the school was under capacity, then white students would be brought into the school to decrease the black student ratio. On the other hand, if the school were over capacity, then black students would be shifted out of the school to decrease the black student ratio. In June 1990, Dan Schramek, a white man whose children attend Pinellas County schools, and Marcus Griffith, a black man whose children attend Pinellas County schools, filed the motion to intervene that is the subject of this appeal. The proposed intervenors allege that the school board discriminates against black students by causing the burden of busing, which is necessary to maintain the court-ordered maximum and minimum black student ratios in some schools, to fall on black students and not white students. More specifically, they allege that the school board, by engaging in invidious discriminatory practices, implements the desegregation plan in such a manner that black students are bused out of their neighborhoods to attend schools while white students are permitted to attend neighborhood schools. The discriminatory practices that allegedly advance this end are as follows. First, the proposed intervenors allege that the school board fails to adhere to state student capacity figures; it manipulates these figures to make schools in which the black student ratio is over 30 percent appear to be over capacity, when the schools are actually under capacity; this manipulation of the capacity figures allows the school board to bus black students out of a neighborhood to decrease the black student ratio, rather than requiring it to bus white students into the neighborhood to adjust the ratio. The proposed intervenors allege specifically that this practice is in violation of the May 1977 amendment to the desegregation order and that the existing plaintiffs in this suit have declined to insist that the school board stop the practice. Second, the proposed intervenors allege that white students in integrated neighborhoods are allowed to attend their neighborhood schools by applying for special attendance permits, applications for which are mailed to parents of white students but not to parents of black students. The result is that black students who live in integrated neighborhoods are being bused out of their neighborhoods to attend schools while their white neighbors are allowed to attend neighborhood schools. Third, the proposed intervenors allege that the school board provides inferior and inadequate school facilities in the integrated neighborhoods in the south part of the county; builds and expands facilities in all-white neighborhoods in the north part of the county; and addresses the overcrowding of schools in integrated neighborhoods by busing black students away from their neighborhoods, using the desegregation order as justification. Thus, new and improved neighborhood schools are being built for the all-white neighborhoods in the north at the expense of the integrated neighborhoods in the south, thereby causing more white families with school-age children to move to all-white neighborhoods rather than to integrated neighborhoods. The proposed intervenors allege that these practices will result in the destruction of integrated neighborhoods, such as the one in which they reside. In such neighborhoods, they allege, black and white children live and play together, but black children are bused out of the neighborhood to attend schools while white children are permitted to attend neighborhood schools. This discrimination against black children is in violation of the desegregation order. The proposed intervenors specify that they do not oppose the desegregation order; rather, they seek to require the parties to abide by it. Both the plaintiffs and the school board opposed the motion to intervene. The district court, without holding an evidentiary hearing, denied the motion. Discussion Generally, when parents move to intervene in a school desegregation case, the district court must conduct an evidentiary hearing and enter findings of fact based on an adequate record. The denial of a motion to intervene entered without an evidentiary hearing and articulation of factual findings has been upheld when it is “more than clear that [the proposed inter-venors] are not entitled to intervene.” Thus, in this case, we will uphold a district court’s decision if it is clear that the proposed intervenors’ allegations, which we must take as true to the extent they are not refuted by the record, fail to establish that they are entitled to intervene. Because these allegations, if substantiated, establish that the proposed intervenors are entitled to intervene, we reverse the district court. In Hines v. Rapides Parish School Board, the former Fifth Circuit set the standard for intervention in school desegregation cases: The petition for intervention would bring to the attention of the district court the precise issues which the group sought to represent and the ways in which the goal of a unitary system had allegedly been frustrated. The district court could then determine whether these matters had been previously raised and resolved and/or whether the issues sought to be presented by the new group were currently known to the court and parties in the initial suit. If the court determined that the issues these new plaintiffs sought to present had been previously determined or if it found that the parties in the original action were aware of these issues and completely competent to represent the interest of the new group, it could deny intervention. If the court felt that the new group had a significant claim which it could best represent, intervention would be allowed. [Footnote omitted.] As more recent cases, following Hines, make clear, “the parental interest that justifies permissive intervention is an interest in a desegregated school system.” Thus, the court in Pate v. Dade County School Board upheld the denial of the motion to intervene because the parents did not seek to challenge deficiencies in the implementation of the desegregation order; rather, they simply opposed implementation of the order. And in United States v. Perry County Board of Education, the court, upholding denial of the motion to intervene where the parents’ group sought to challenge the site of a new school facility, noted: Nothing in their brief or in their petition for intervention in the district court indicates that they are challenging the location of the school on the ground that it impedes establishment of a unitary school system. Instead, they oppose the location on various policy grounds which, though important, are unrelated to desegregation and the establishment of a unitary school system. [Footnote omitted.] More recently, in Graves v. Walton County Board of Education, the court reversed the denial of the motion to intervene because the parents’ group, which sought to return their children to neighborhood schools, sought to represent issues that had not been decided by the district court and that the existing parties had declined to represent. In response to arguments that the proposed intervenors sought only to challenge elements of the desegregation plan, the court noted: The parent intervenors contend that their position is consistent with a unitary school system and deny that their purpose is to frustrate the continued implementation of the court’s orders. They speak in terms of asserting rights established pursuant to the court’s orders and the transfer policy approved in the recent amendments thereto. This court has long recognized the intense interest of parents in the education of their children, and it has been solicitous of their opportunity to be heard. Intervention in suits concerning public schools has been freely allowed, and we see no reason why it should be denied here, especially in view of the lack of prejudice to other parties. Should future conduct indicate a different motive on the part of Concerned Parents, the district court may take appropriate action. Applying these precedents to this case, the proposed intervenors, assuming they can substantiate their allegations, are entitled to intervene. Not only is the proposed intervenors’ position consistent with a unitary system, but the school board’s alleged implementation of the desegregation plan, about which the proposed intervenors complain, is also contrary to a unitary system because it discriminates against black students. Thus, the proposed intervenors have articulated an interest in a desegregated school system that justifies intervention. Unlike the proposed intervenors in Pate, the proposed intervenors in this case assert rights established by the district court’s desegregation orders, specifically, the right of black students to equitable busing as established by the district court’s May 1977 amendment to its original desegregation order. Thus, they seek to enforce the desegregation order, not oppose its implementation. And unlike the proposed in-tervenors in Perry, the proposed inter-venors in this case allege that the discriminatory practices about which they complain, specifically, discriminatory busing and building policies, impede the establishment of a unitary system. Like the inter-venors in Graves, the proposed intervenors in this case seek to represent issues that have not been decided by the district court and that the existing parties have declined to represent. Thus, the proposed inter-venors’ allegations satisfy the standard for intervention set out in Hines: they challenge alleged deficiencies in the implementation of the district court's desegregation order; they articulate the means by which the school board is frustrating the goal of a unitary school system; they raise issues that have not been previously raised in or resolved by the district court; and they demonstrate that the present parties to this action are unwilling to raise these issues. Taking the proposed intervenors’ allegations as true, they are entitled to intervene. Of course, the proposed intervenors may be unable to substantiate their allegations. Accordingly, it is appropriate for the district court to hold an evidentiary hearing on the motion to intervene. If the allegations are substantiated, the motion to intervene should be granted. Conclusion The proposed intervenors raise allegations that, if true, would entitle them to intervene in this action. The proposed in-tervenors demonstrate an interest in a desegregated school system and allege that the school board is frustrating the goal of such a system. Specifically, the proposed intervenors allege that the school board is violating the district court’s desegregation order and amendments thereto by busing black students rather than white students and by manipulating school capacity figures and building new schools in distant all-white neighborhoods to justify its racially discriminatory busing policy. Moreover, the proposed intervenors demonstrate that the existing parties to this action are unwilling to bring these issues before the district court. Accordingly, the district court erred in declining to hold an eviden-tiary hearing on the motion to intervene. For the foregoing reasons, the district court’s decision is REVERSED and this case is REMANDED for further proceedings consistent with this opinion. . Adams v. Baldwin County Board of Education, 628 F.2d 895, 897 (5th Cir.1980). . United States v. Perry County Board of Education, 567 F.2d 277, 280 (5th Cir.1978). . Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir.1973). . Id. at 765. . Pate v. Dade County School Board, 588 F.2d 501, 503 (5th Cir.), cert. denied, 444 U.S. 835, 100 S.Ct. 67, 62 L.Ed.2d 44 (1979). .Perry, 567 F.2d at 279-80. See also, Valley v. Rapides Parish School Board, 646 F.2d 925 (5th Cir. Unit A May 1981) (intervention will not be permitted to challenge elements or facets of. a desegregation plan), on rehearing, 653 F.2d 941 (5th Cir. Aug. 1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982). . Graves v. Walton County Board of Education, 686 F.2d 1135 (Former 5th Cir. Unit B 1982). . Id. at 1142 n. 5. . The Supreme Court very recently held that a district court may relinquish its supervision and control over those aspects of a school system in which there has been compliance with a desegregation decree even if other aspects of the system remain in noncompliance. Freeman v. Pitts, - U.S. -, 112 S.Ct. 1430, 1443, 118 L.Ed.2d 108 (1992). We recognize that this holding may provide the impetus for one of the existing parties in this case to request that the district court relinquish its supervisory powers over aspects of the Pinellas County School System. If the proposed intervenors can substantiate their allegations, they must be permitted to intervene before the district court considers such a request, as the allegations would be relevant to the request. For example, the proposed intervenors allege that the school board has not achieved unitary status and, in fact, is engaging in invidious discriminatory practices in the areas of transportation and facilities. See id. 112 S.Ct. at 1443 (“The Green [v. New Kent County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) ] factors [which include transportation and facilities] are a measure of the racial identifiability of schools in a system that is not in compliance with Brown [v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ]”). The proposed intervenors also allege that the school board’s discriminatory practice of building new facilities in all-white neighborhoods has contributed to racial imbalance in the Pinellas County schools. See id. 112 S.Ct. at 1457 (Blackmun, J. concurring) (before district court relinquishes supervision, the school board must prove its conduct did not contribute to racial imbalance in the schools). Accordingly, before entertaining any request to relinquish its supervision, the district court must hold an evidentiary hearing and rule on the motion to intervene. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "sub-state government (e.g., county, local, special district)". Which category of substate government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_typeiss
C
What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. ALCOM ELECTRONIC EXCHANGE, INC., etc., et al., Plaintiffs-Appellants, v. John BURGESS, etc., et al., Defendants-Appellees. No. 88-4013 Summary Calendar. United States Court of Appeals, Fifth Circuit. July 19, 1988. Ben F. Galloway, Gulfport, Miss., for plaintiffs-appellants. Henry Laird, W. Joel Blass, Gulfport, Miss., Lawrence J. Franck, Jackson, Miss., for defendants-appellees. Before REAVLEY, KING and GARWOOD, Circuit Judges. REAVLEY, Circuit Judge: Alcom Electronic Exchange, Inc. (“Al-com”) appeals from the district court’s order dismissing its complaint. We affirm. I. Alcom, a Mississippi Corporation, sued John Burgess, a citizen of Mississippi, Bell-south Advertising and Publishing Corporation (“BellSouth”), a Georgia corporation, and South Central Bell Telephone Company (“South Central Bell”), a Georgia corporation (collectively the “defendants”), for the defendants’ failure to place an Alcom advertisement in the Yellow Pages of South Central Bell’s 1986 Gulf Coast Directory pursuant to a written contract between Al-com and BellSouth. BellSouth publishes telephone directories for South Central Bell. Burgess, acting as agent for Bell-south, entered a written contract with Al-com which provided for the publication of an Alcom business advertisement in South Central Bell’s 1986 Gulf Coast Directory. That contract contained a provision, applicable to BellSouth, Burgess and South Central Bell, which limited damages, on account of omissions and errors in advertising, to an abatement of any charges paid by Alcom for the advertisement. The advertisement sought by Alcom was omitted from the 1986 telephone directory. Alcom, seeking an order directing the defendants to include its advertisement in a supplement to the 1986 directory and $250,-000 in compensatory and punitive damages, brought this action in a Mississippi state court. The defendants, pursuant to 28 U.S.C. 1441(b), obtained removal to federal court on the basis of diversity jurisdiction. Alcom moved to remand this action to state court, contending that, because Alcom and Burgess were both citizens of Mississippi, diversity jurisdiction did not exist. The district court denied this motion, holding that Alcom could not possibly establish a cause of action under its pleadings against Burgess in state court and, therefore, that Burgess was not a proper party to the suit. The defendants then filed a motion for summary judgment asserting that the limitation of liability clause contained in the contract limited Alcorn’s recoverable damages to $15, the amount Alcom paid for the advertisement. The district court, in an interlocutory order dated November 23, 1987, held that Alcorn’s recovery, under Mississippi law, was limited to the $15 it paid to the defendants for the advertisement. However, the court went on to say that technically the issue of whether South Central Bell is liable to Plaintiffs’ for the fifteen dollar ($15.00) sum remains for resolution. The parties have reached no agreement as to the liability for that amount on the record of this Court. Accordingly, this issue clearly constitutes a genuine issue of material fact. Defendants’ motion, to the extent that it seeks dismissal of this cause must be denied. On January 4, 1988, the defendants tendered into the registry of the court the sum of $15 pursuant to the district court’s November 23, 1987 order. Alcom filed a notice of appeal on January 8, 1988, stating that “[a]n appeal is proper ... as the Defendants have tendered into the Registry of the Court the disputed sum referenced in the District Court’s Judgment.” Thereafter, on May 6, 1988, the court filed an order entitled “Order Nunc Pro Tunc” in which it directed the clerk of the court to pay Alcom the sum of $15 tendered into the registry by the defendants and dismissed Alcorn’s complaint with prejudice. Alcom did not file a notice of appeal from this order. Alcom now contends that the district court improperly denied its motion to remand this action to state court, or, alternatively, that the limitation of liability clause contained in the contract was unenforceable under Mississippi law. We must first, however, consider the timeliness of Alcorn’s notice of appeal, a question that goes to our jurisdiction. II. Appellate Jurisdiction Our jurisdiction depends upon a timely filed notice of appeal. We have here the entry of an interlocutory and unappealable order on November 23, a notice of appeal on January 8, and a final judgment on May 6. Because the November 23 order does not purport to dispose of the lawsuit we cannot treat it as the announcement of what the court entered on May 6. May the January 8 notice of appeal be accepted as effective upon the entry of the May 6 judgment? If this were an open question, we might follow the majority view and hold the notice of appeal ineffective under Rule 4, Fed.R.App.P. We are bound by a contrary decision by a prior Fifth Circuit panel, however, and must uphold the notice as effective. The rules governing appellate procedure in civil cases provide that a “notice of appeal ... shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from.” Fed.R.App.P. 4(a)(1) (emphasis added). However, Rule 4(a)(2), Fed.R.App.P., provides that “[ejxcept as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof” (emphasis added). The purpose of Rule 4(a)(2) “is to avoid the harsh result that may obtain when a district court has announced its final judgment and zealous counsel in his haste to file a notice of appeal does so before the district court formally enters the order containing its judgment.” General Television Arts, Inc., v. Southern Ry., 725 F.2d 1327, 1330 (11th Cir.1984). Rule 4(a)(4), Fed.R.App.P., provides that if certain post-judgment or post-trial motions are made, the time for filing a notice of appeal runs from the entry of the order granting or denying such motions and that “[a] notice of appeal filed before the disposition of [such] motions shall have no effect.” The district court entered a final judgment on May 6, 1988. While the court entitled this judgment “Order Nunc Pro Tunc” and may have intended to make it effective within the 30 days prior to Al-corn’s notice of appeal, see Wheeler v. American Home Prods., Corp., 582 F.2d 891, 893 (5th Cir.1977), the terms of the order are silent as to the date of its effectiveness. We can only give it the effective date of its entry on May 6. Alcorn filed no notice of appeal from that judgment. Neither party filed post-judgment motions, thus rendering Fed.R.App.P. 4(a)(4), on its face, inapplicable. Alcorn’s notice of appeal was filed before either the announcement or entry of final judgment (the “Order Nunc Pro Tunc”), and was thus premature. The majority of federal appellate courts which have considered the validity of a premature notice of appeal have concluded that such notice does not satisfy the condition in Rule 4(a)(2) for postponing the notice’s effective date because that Rule, on its face, only confers jurisdiction upon a court of appeals if the notice is filed after the announcement of judgment but before the entry of the order. See United States v. Hansen, 795 F.2d 35, 37-38 (7th Cir.1986); General Television Arts, 725 F.2d at 1330-31. Other courts, however, relying on Fed.R.App.P. 4(a)(4), have held that a notice of appeal filed before the announcement of a final judgment is valid where no post-judgment or post-trial motions, as set forth in Rule 4(a)(4), have been filed. See Cape May Greene, Inc. v. Warren, 698 F.2d 179, 184-85 (3d Cir.1983). The court in Cape May Greene drew a negative inference from Rule 4(a)(4), holding that “the Rules contemplate that the prohibition against giving effect to premature notices of appeal shall be confined to the specific instances cited in Rule 4(a)(4).” Id. at 185. Adopting the majority position, this reasoning was rejected by Hansen, in which the court stated: Rule 4(a)(2) defines the circumstances in which a premature notice of appeal can be effective, and the circumstances of this case are not among them. To disregard the limitations in the rule would be to rewrite it rather too boldly for our tastes. The reference to prematurity in Rule 4(a)(4) has no negative implications. The reference is necessary to take care of the case where no subsequent judgment is entered — where all that happens is that a motion to alter the judgment is denied — so that one might have thought the original notice of appeal would still be good, nothing having happened to alter the judgment from which it was taken. Rule 4(a)(4) makes clear that the original notice of appeal has lapsed and a new one must be filed. The present case is not one to which Rule 4(a)(4) is addressed; in this case, the notice of appeal was filed before a final judgment was either announced or entered, and there could be no reason to think the notice would do service for an appeal from the final judgment. 795 F.2d at 38. This panel might follow the reasoning set forth in Hansen, if we were not bound by a prior panel decision which expressly adopted the position set forth in Cape May Greene. See Alcorn County, Miss. v. U.S. Interstate Supplies, 731 F.2d 1160, 1165-66 (5th Cir.1984). This court in Alcorn primarily relied on an earlier panel decision, Jetco Elec. Indus., Inc. v. Gardiner, 473 F.2d 1228 (5th Cir.1973), which held that we had jurisdiction to consider a premature appeal, and declined to follow a later contrary panel decision, United States v. Taylor, 632 F.2d 530 (5th Cir.1980), which, relying on Fed.R.App.P. 4(a), held that a final judgment does not retroactively validate a premature notice of appeal. In Alcorn, we noted that the Jeteo rule had been followed in this circuit, see Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir.1985); Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022, 1029 n. 7 (5th Cir.1980); Tower v. Moss, 625 F.2d 1161, 1163-65 (5th Cir.1980), and, reasoning that where precedents conflict the older rule is presumptively correct, we rejected the contrary rule set forth in Tay lor. Alcorn, 731 F.2d at 1166 ("The preference for the older authority is clearly appropriate here, where Jeteo has been acknowledged repeatedly as the law of this circuit.”). We then expressly adopted the position set forth in Cape May Greene, stating that “[w]e join the Third Circuit in holding that a premature notice of appeal does invoke appellate jurisdiction except in the narrow circumstances described in Rule 4(a)(4).” Alcorn, 731 F.2d at 1166. There are difficulties with our reliance upon Jeteo. While Jeteo was decided in 1973, Rule 4(a)(2), Fed.R.App.P., was enacted in 1979. It is the 1979 rule that governs and presents the problem. Looking at the terms of that rule, it provides for the postponement of a premature notice’s effective date only where that notice is filed after announcement of final judgment but before entry of that judgment. Rule 4(a)(4), Fed.R.App.P., renders Rule 4(a)(2) ineffective where certain motions have been filed, but reflects no intent to broaden the effect of Rule 4(a)(2) beyond its express terms. Such an interpretation would render Rule 4(a)(2) virtually superfluous since the purpose served by that Rule would also be fulfilled by Rule 4(a)(4). This court in Alcom, however, addressed both Jeteo and Taylor, and decided to follow the rule set forth in Jeteo and Cape May Greene. Because we are bound by the panel’s decision in Alcom, we must also reject the Taylor rule and follow Jet-eo. Accordingly, we hold that the premature notice of appeal filed by Alcom on January 8, 1988, was effective. III. Diversity Jurisdiction After removal from state court, Alcom moved to remand this action, contending that diversity jurisdiction did not exist because both Alcom and Burgess were citizens of Mississippi. See 28 U.S.C. § 1441(b). The defendants contended that Burgess was fraudulently joined, and was thus not a proper party to the suit. The district court, after noting that, in order to establish that Burgess had been fraudulently joined, the defendants had to show that there was “no possibility” that Alcom would be able to establish a cause of action against Burgess in a Mississippi court, see Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), held that, under Mississippi law, Alcom could not successfully assert any claim against Burgess. The court held that Alcom averred only a breach of contract and no more than a contractual claim. As to the viability of Alcorn’s contract claim, the court relied on the well-settled principle of Mississippi law “that an authorized agent acting for a disclosed principal, in the absence of circumstances showing that personal responsibility was intended to be incurred, may not be held personally liable to the other contracting party.” Mid-Continent Tel. Corp. v. Home Tel. Co., 319 F.Supp. 1176, 1199 (N.D.Miss.1970). Alcom now contends that Burgess failed to disclose his principal, the L.M. Berry Company (his employer), and thus that Burgess is liable for breach of contract under Mississippi law. See 3 C.J.S. Agency § 369 (1973) (failure of an agent to disclose his principal will render such agent liable for a breach of duty). BellSouth contracted with South Central Bell to publish the Yellow Pages Directory, and BellSouth in turn engaged Berry to solicit and sell advertising. Through Burgess, Alcom contracted with BellSouth and South Central Bell, and Al-com knew at that time that Burgess was acting as an agent for these companies. Alcorn’s pleadings allege that Burgess acted at all times as an agent of BellSouth. The fact that Alcom did not know that Burgess was an employee of Berry is irrelevant because Alcom knew the identity of the principals on whose behalf Burgess was acting. We reject Alcorn’s claim that under Mississippi law it would have had a contract action against Burgess, and hold that the district court correctly denied Al-corn’s motion to remand. IV. The Merits: Limitation of Liability The case turns on the validity of the provision in the contract limiting the defendants’ liability, in the event of an error or omission in advertising, to an abatement of any charges paid by Alcom for the advertisement. The district court held that, under Mississippi law, limitation of liability clauses are valid and enforceable and therefore that Alcorn’s recovery was limited to the $15 amount it paid to the defendants for the advertisement. Alcorn argues that the Mississippi Supreme Court has not yet decided whether a limitation of liability clause is enforceable when the parties to the contract are in an unequal bargaining position, and, after citing an Alabama Supreme Court case which invalidated a similar clause, Morgan v. South Cent. Bell Tel. Co., 466 So.2d 107 (Ala.1985), requests that we either reverse the district court’s judgment and hold that such clauses are not enforceable, or certify this issue to the Mississippi Supreme Court. It is well settled under Mississippi law that parties to a contract may stipulate, in advance, the amount to be paid as compensation for loss or injury which may result in the event of a breach, and that such stipulated sum is enforceable provided it is not in the nature of a penalty. See Patrick Petroleum Corp. of Mich. v. Callon Petroleum Co., 531 F.2d 1312, 1315-17 (5th Cir.1976) (citing Mississippi cases). Many states have upheld the validity of limitation of liability clauses in directory advertising contracts, see, e.g., Louisiana Shoes, Inc. v. South Cent. Bell Tel. Co., 445 So.2d 1304 (La.App.1984); Louisville Bear Safety Serv., Inc. v. South Cent. Bell Tel. Co., 571 S.W.2d 438 (Ky.App.1978); Warner v. Southwestern Bell Tel. Co., 428 S.W.2d 596 (Mo.1968); Smith v. Southern Bell Tel. & Telegraph Co., 51 Tenn.App. 146, 364 S.W.2d 952 (1962), and at least two federal district courts in Mississippi have upheld such clauses, Goodson v. South Cent. Bell Tel. Co., Civil Action No. S84-0686(N) (S.D.Miss. January 29,1986); Feldman v. South Cent. Bell Tel. Co., Civil Action No. J82-0582(B) (S.D.Miss. March 27, 1984). We give deference to the decision of the district judge and hold that the limitation of liability clause contained in Alcorn’s contract is enforceable under Mississippi law. AFFIRMED. . The 11th Circuit in Robinson v. Tanner, 798 F.2d 1378 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987), attempted to reconcile our decisions in Jeteo and Taylor. The court noted that “Jeteo and most of the cases following its rule concern premature appeals from judgments adjudicating either fewer than all the claims in the case or the rights and liabilities of fewer than all the parties,” and thus that these cases involve judgments which could be certified for appeal under Fed.R.Civ.P. 54(b). 798 F.2d at 1382-83. The court then stated that “Taylor, on the other hand, applies to interlocutory orders which could not be appealed under Rule 54(b) as dismissals of claims or parties." Id. at 1383. The court concluded that Jeteo stands for the proposition that “[a] premature notice of appeal is valid if filed from an order dismissing a claim or party and followed by a subsequent final judgment without a new notice of appeal being filed," while Taylor stands for the proposition that “[a] premature notice of appeal filed from an interlocutory order that is not immediately appealable is not cured by a subsequent final judgment.” Id. at 1385. The notice of appeal in Taylor was filed sifter the defendant’s counterclaim was dismissed, but before the plaintiffs original cause of action was dismissed. Taylor, 632 F.2d at 531. Rule 54(b), Fed.R.Civ.P., applies to actions involving more than one claim, including counterclaims. Because the district court in Taylor, under Rule 54(b), could have certified an appeal of its dismissal of defendant’s counterclaim, we fail to understand the distinction, drawn by the court in Robinson, between Taylor and Jeteo. In any event, Fed.R.App.P. 4(a)(2) invalidates all appeals taken before announcement of judgment and makes no mention of Fed.R.Civ.P. 54(b). . In 1973, when Jeteo was decided, Rule 4(a), Fed.R.App.P., provided: (a) Appeals in Civil Cases. In a civil case (including a civil action which involves an admiralty or maritime claim and a proceeding in bankruptcy or a controversy arising therein) in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days of the date of the entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires. The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Federal Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b); (2) granting or denying a motion under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 59 to alter or amend the judgment; (4) denying a motion for a new trial under Rule 59. A judgment or order is entered within the meaning of this subdivision when it is entered in the civil docket. Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate. It is seen that the earlier civil case rule required a notice of appeal "within 30 days of’ the order. It did not require that the notice be filed "within 30 days after" the order as the 1979 rule does. There was no express provision for the premature notice after announcement. That is 4(a)(2), enacted in 1979. By that addition the older provision in Rule 4(b), applicable to criminal cases, was extended to civil cases. See Notes of Advisory Committee on Appellate Rules following Fed.R.App.P. 4. .This section provides: Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 28 U.S.C. § 1441(b) (emphasis added). . Alcom also contends that this case was not removable under 28 U.S.C. § 1441(c), because it does not involve separate and independent claims. This contention is simply irrelevant because this action was removed pursuant to 28 U.S.C. § 1441(b), and not § 1441(c). . This clause specified that: [BELLSOUTH’S] LIABILITY, THE LIABILITY OF ITS AUTHORIZED SALES REPRESENTATIVES [BERRY AND BURGESS] AND THE LIABILITY OF THE TELEPHONE COMPANY [SOUTH CENTRAL BELL] (IF ANY) ON ACCOUNT OF OMISSION OF OR ERRORS IN SUCH ADVERTISING SHALL IN NO EVENT EXCEED THE AMOUNT OF CHARGES FOR THE ADVERTISING WHICH WAS OMITTED OR IN WHICH THE ERROR OCCURRED IN THE THEN CURRENT DIRECTORY ISSUE AND SUCH LIABILITY SHALL BE DISCHARGED BY ABATEMENT OF THE CHARGES FOR THE PARTICULAR LISTING OR ADVERTISING IN WHICH THE OMISSION OR ERROR OCCURRED, (emphasis in original) 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_two_issues
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. UNITED STATES of America, Appellee, v. Frank FRISONE, Defendant-Appellant. No. 1169, Docket 86-1085. United States Court of Appeals, Second Circuit. Argued March 18, 1986. Decided June 4, 1986 . Michael A. Guadagno, Asst. U.S. Attorney-in-Charge, Organized Crime Strike Force, Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty., E.D.N.Y., Donald S. Sullivan, Sp. Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for appellee. Michael H. Sporn, New York City, for defendant-appellant. Before PIERCE, MINER and ALTI-MARI, Circuit Judges. This appeal was originally heard on March 18, 1986, and decided by order dated June 4, 1986. As a summary disposition it would have no precedential value under our Local Rule § 0.23. We have decided sua sponte to publish the substance of the June 4, 1986 order in this opinion. PER CURIAM: Appellant was arraigned on a multi-count indictment in May of 1985 in the United States District Court for the Eastern District of New York. On May 16, 1985, a detention hearing was held before Magistrate Chrein at which time detention was ordered. On January 21, 1986, Judge Henry Bramwell, after independent review of the transcript of the magistrate’s hearing and consideration of arguments presented by counsel for the appellant on a motion for release, concluded that there was probable cause to believe that appellant had been involved in at least three crimes of violence, that appellant had not rebutted the presumption drawn from the conclusion that no condition or combination of conditions would reasonably assure the safety of the community, and that, even if appellant had rebutted such a presumption, there was clear and convincing evidence that no condition or combination of conditions would reasonably assure the safety of the community. On March 18, 1986, appellant challenged the district court’s ruling before this court on the grounds that there was insufficient evidence to support detention, and that his continued detention pursuant to the Bail Reform Act, 18 U.S.C. §§ 3141 et seq. (the “Bail Act”) violated the Constitution. After argument, the application was denied from the bench on all grounds asserted except the constitutional grounds, as to which decision was reserved pending decision of another case which involved this very issue and which was sub judice at the time of argument. That case has recently been decided, see United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986). Hence, we address the remaining issue herein. In Melendez-Carrion, the appellants challenged, inter alia, the constitutionality of continued pretrial detention under the Bail Act, where such detention was based upon grounds of dangerousness to the community. Judge Newman found the statute facially unconstitutional in authorizing, even for a brief time, such pretrial incarceration of a competent adult criminal defendant. Chief Judge Feinberg, concurring in the result of Judge Newman’s opinion, found continued confinement for a period over eight months, solely on the ground of dangerousness, a violation of due process since it inflicted punishment without an adjudication of guilt. Judge Timbers vigorously dissented from each of these views. The effect of Judge Feinberg’s and Judge Newman’s decisions render unconstitutional the continued pretrial detention of the appellant herein on the basis of the dangerousness prong of the Bail Act. Frisone has been denied bail and detained for nearly twelve months on federal charges solely on the ground of dangerousness under the Bail Act. We are constrained to find that the continued confinement of appellant is affected by the majority position as to result in Melendez-Carrion. Consequently, we vacate the order of the district court and remand for the district court to determine whether there are conditions of release which will reasonably assure appellant’s appearance as required, and, if so, to establish appropriate conditions of release. We withhold issuance of the mandate herein pending issuance of the mandate in Melendez-Carrion. Vacated and remanded with instructions. Question: Are there two issues in the case? A. no B. yes Answer:
songer_treat
D
What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. FORD v. UNITED STATES. No. 2454. Circuit Court of Appeals, First Circuit. Nov. 8, 1930. Dwight L. Allison, of Boston, Mass., for appellant. John Laurence Hurley, Sp. Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. ¡3. Atty., and John J. Walsh, Jr., Asst. U. S. Atty., both of Boston, Mass., James T. Brady, Acting Gen. Counsel, U. S. Veterans’ Bureau, of Washington, D. C., William J. Hession,.Atty., U. S. Veterans’ Bureau, of Boston, Mass., and Bayless L. Guffy, Atty., U. S. Veterans’ Bureau, of Washington, D. C., on the brief), for the United States. Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. ANDERSON, Circuit Judge. This is a suit to recover under a war risk term insurance for $5,000, which lapsed on February 28, 1919. The appellant enlisted as a seaman in the United States Navy on June 2,1917, and was discharged on January 19, 1919. His contention is that, while the insurance was in force, he became permanently and totally disabled as a result of disease or disability, and has ever since been permanently and totally disabled. He prays for judgment in monthly payments of $28.75 from February 28, 1919, to the date of filing of his petition. At the close of the plaintiff’s ease the court granted the defendant’s motion to order a verdict for the United States. The sole question presented on this appeal is whether the plaintiff was entitled to go to the jury. Under section 5 of the World War Veterans’ Act, 43 Stat. 608, 38 USCA § 426, and section 13 of the War Risk Insurance Act of Act Oct. 6,1917, 40 Stat. 398, as amended by Act May 29,1918, § 1, 40 Stat. 555, the usual authority is vested in the Director and the Secretary of the Treasury to make regulations not inconsistent with the act appropriate to carry out its purposes. Under this authority, Regulation No. 11 was issued defining “total and permanent disability” as follows: “Any impairment of mind or body which renders it impossible for the disabled person to follow continuously any substantially gainful occupation shall be deemed, in Articles III and IV, to be total disability. “ ‘Total disability’ shall be deemed to be ‘permanent’ whenever it is founded upon conditions whieh render it reasonably certain that it will continue throughout the life of the person suffering from it. Whenever it shall be established that any person to whom any installment of insurance has been paid as provided in Article IV on the ground that the insured has become totally and permanently disabled has recovered the ability to continuously follow any substantially gainful occupation the payment of installments of insurance shall be discontinued forthwith and no further installments thereof shall be paid so long as such recovered ability shall continue.” We think the word “continuously” should be construed as meaning with reasonable regularity; that it does not cover mere periods of disability such as are ordinarily incident to the activities of people in generally sound health. On the other hand, if such claimants are able to follow gainful occupations only spasmodically, with frequent interruptions due to disability, they are entitled to recover under the act. It is well settled that, on such a question as is here presented, the plaintiff is entitled to the most favorable construction that a jury might be warranted in putting on the evidence. Heisson v. Dickinson (C. C. A.) 35 F.(2d) 270, and cases cited; Bangor & Aroostook R. R. v. Jones (C. C. A.) 36 F.(2d) 886; Gray, Administratrix, v. Davis, Director General of R. R. (C. C. A.) 294 F. 57. And the act itself is to be liberally construed in favor of such claimants. In White v. United States, 270 U. S. 175, 180, 46 S. Ct. 274, 275, 70 L. Ed. 530, Mr. Justice Holmes said of such contracts: “The insurance was a contract, to be sure, for which a premium was paid, but it was not one entered into by the United States for gain; All soldiers were given a right to it and the relation of the Government to them if not paternal was at least avuncular. It was a relation of benevolence established by the Government at considerable cost to itself for the soldier’s good.” We turn now to summarize the evidence in the appellant’s behalf: He testified that after his enlistment in 1917 he was at the Hampton Eoads Naval Air Station, doing beach duty, “leading the planes in and from the water and carrying the pilots”; that in this work it was necessary for him to go into the water in order to carry the pilots from the beach and place them in the planes; that while doing this work he was taken ill, and was shipped to the Naval Base Hospital (probably) in November, 1918; that he was there about two months, and also had thirteen sick leaves while in the service; that at that time he had severe sliding pains in his back, which persisted until his discharge in January, 1919; that after his discharge ho went to work in February, 1919, at the Plymouth Eubber Company at Canton, and worked a few days, then lay off until some time in March, 1919, because of pains in his back; that he worked off and on until July, when he left the job until the last of September; that he had the pains in his back and could not seem to sleep; that this prevented him from working on the job; that in September he went back on the job, and left it again in November, when he left under the doctor’s orders and remained at home until March, 1920. Between March and Juno, 1920, he was again at work, but lost considerable time; and in June, because of his condition, he left his job and remained away from work until December, when he got married. Then he went to work and stayed until March, 1921; that his average working term was about the same as before; that for the entire period from December, 1920, until March, 1921, “I would say I got 2½ or 3 days a week”; that from April to July he lost time, and then quit the job again; that after more spasmodic work, he finally, in November, 1921, went to the Veterans’ Bureau in Boston, and was' sent to the Parker Hill Hospital on December 1, 1921, and remained there until January 28, 1922, when he was discharged, as the record shows, with his condition unchanged. He took, through the Veterans’ Bureau, vocational training at the Franklin Institute, Boston, from March, 1922, until February, 1924; then, under the same system of institutional training, he went to work for the Panther Eubber Company at Stoughton, and stayed there until the 1st of April, 1925; that since April, 1925, he has done little or no work. On cross-examination he admitted that, during his period of vocational training, he was at various times absent without leave and guilty of intoxication. It appears that the Bureau had warned him as follows: “You are advised that the Eehabilitation Survey Group has decided that your training be permanently discontinued on account of the following conditions: “All reasonable efforts having been exhausted to train you to the point of employ-ability, failure to avail yourself properly of the training provided; misconduct preventing progress and ultimate placement in employment, absence without leave and failure to co-operate with the Bureau; also disorderly conduct at your place of training.” Up to the time of the trial, he was receiving treatments from the Veterans’ Bureau called “Physio-therapy, baking my back”; that he went to the Bureau two or three times a week for such treatments; he also had, since 1921, been wearing a brace provided by the Veterans’ Bureau; since September, 1921, he had had an abscess, that discharged pus when he coughed, and had been troubled with a cough since 1920. Dr. Lynch gave undisputed testimony to the effect that Ford was in 1929 suffering from spinal arthritis, an infectious process of the joints of the spinal column; that the case was a progressive one; that his advice to Ford was to quit work and rest; that Ford suffered pain, and some days he could neither walk nor sleep. Dr. Walsh testified that, helped out by X-rays taken shortly before the trial, he had made a diagnosis of Ford’s case, and that he had arthritis with ankylosis of the sacroiliac joint; that he first examined Ford in 1921 or 1922; that he saw no difference on the Saturday prior to the trial, and “I think he is permanently disabled.” “Q. 13. Do you think he is able to follow a gainful occupation? A. No, he is not. “Q. 14. What do you think about the future? A. I should think it was more doubtful whether he would improve, in fact, to do very much, if anything, for himself. “Q. 15. From the time that you first saw him up until your last examination has there been any improvement? A. I can’t see any.” Dr. McKenna, who attended Ford in 1919 and 1920, is dead- — -which the jury might properly consider in considering the lack of physicians’ evidence as to Ford’s condition shortly after his return from the service. Without further detailed review of the evidence, we think it was for the jury to say whether Ford was permanently and totally disabled prior to- February 28,1919. The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. 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_issue_2
17
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. KENNERLY et al. v. DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT OF MONTANA et al. No. 5370. Decided January 18, 1971 Per Curiam. This case arises on petition for certiorari from a judgment of the Supreme Court of Montana. The petition for certiorari and the motion to proceed in forma pauperis are granted. For reasons appearing below, we vacate the judgment of the Supreme Court of Montana and remand the case for further proceedings not inconsistent with this opinion. Petitioners are members of the Blackfeet Indian Tribe and reside on the Blackfeet Indian Reservation in Montana. The tribe is duly organized under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq. In July and August of 1964, petitioners purchased some food on credit from a grocery store located within the town limits of Browning, a town incorporated under the laws of Montana but located within the exterior boundaries of the Blackfeet Reservation. A suit was commenced in the Montana state courts against petitioners on the debt arising from these transactions. Petitioners moved to dismiss the suit on the ground that the state courts lacked jurisdiction because the defendants were members of the Blackfeet Tribe and the transactions took place on the Indian reservation. The lower state court overruled the motion and petitioners, pursuant to Montana,rules of procedure, petitioned the Supreme Court of Montana for a “writ of supervisory control” to review this lower court ruling. The State.Supreme Court took jurisdiction and affirmed. Prior to the passage of Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U. S. C. §.§ 1321-1326 (1964 ed., Supp. V), discussed infra, state assumption of civil jurisdiction — in situations where Congress had not explicitly extended jurisdiction — was governed by § 7 of the Act of August 15, 1953, 67 Stat. 590. Section 7 of that statute provided: “The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act [referring to §§ 2 and 4, see n. 1, supra], to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” Pursuant to this statute, the Montana Legislature enacted Chapter 81, Laws of 1963* (§§ 83-801, 83-806, Montana Rev. Codes Ann. (1966)), extending criminal, but not civil, jurisdiction'over Indians of the Flathead Indian Reservation. But Montana never took “affirmative legislative action” — concerning either civil or criminal jurisdiction — with respect to the Blackfeet .Reservation. However, on November 20, 1967, the Blackfeet Tribal Council adopted Chapter 2, Civil Action, § 1, as part of the Blackfeet Tribal Law and Order Code, which provides, in relevant part: “The Tribal Court and the State shall have concurrent and not exclusive jurisdiction of all suits wherein the defendant is a member of the Tribe which is brought before the Courts. . . .” The Montana Supreme Court relied on this pre-1968 Tribal Council action as an alternative basis for the assertion of state civil jurisdiction over the instant litigation. In Williams v. Lee, 358 U. S. 217 (1959), a non-Indian brought suit against a Navajo Indian for a debt arising out of a transaction which took place on the Navajo Reservation. The Arizona State Supreme Court upheld the exercise of jurisdiction and we reversed. In the instant case, the Montana Supreme Court attempted to reconcile its result with Williams on the theory that the transfer of jurisdiction by unilateral tribal action is consistent with the exercise of tribal powers of self-government. 154 Mont. 488, 466 P. 2d 85. The Court in Williams, in the process of discussing the general question of state action impinging on the affairs of reservation Indians, noted that “[essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” 358 U. S., at 220. With regard to the particular question of the extension of state jurisdiction over civil causes of action by or against Indians arising in Indian country, there was, at the time of the Tribal Council resolution, a “governing Act of Congress,” i. e., the Act of 1953. • Section 7 of that statute conditioned the assumption of state jurisdiction on “affirmative legislative action” by the State; the Act made no provision whatsoever for tribal consent, either as a necessary or sufficient condition to the assumption of state jurisdiction. Nor was the requirement of affirmative legislative.action an Idle choice of words; the legislative history of the 1953 statute shows that the requirement was intended to assure that state jurisdiction would not be extended until the jurisdictions to be responsible for the portion of Indian country concerned manifested by political action their willingness and ability to discharge their new responsibilities. See H. R. Rep. No. 848, 83d Cong., 1st Sess., 6, 7 (1953); Williams, supra, at 220-221. Our conclusion as to the intended governing force of § 7 of the 1953 Act is reinforced by the comprehensive and detailed congressional scrutiny manifested in those instances where Congress has undertaken to extend the civil or criminal jurisdictions of certain States to Indian country. See n. 1, supra. In Williams, the- Court went on to note the absence of affirmative congressional .action, or affirmative legislative action by the people of Arizona within the meaning of the 1953 Act. 358 U. S., at 222-223. Here it is conceded that Montana took no affirmative legislative'action with respect to the Blackfeet Reservation. The unilateral action of the Tribal Council was insufficient to vest Montana with ' jurisdiction over Indian country under the 1953 Act. The remaining question is whether the pre-1968 manifestation of tribal consent by tribal council action can operate to vest Montana with jurisdiction under the provision of the Civil Rights Act of 1968. Title IV of the 1968 statute repealed § 7 of the 1953 Act and substituted a new regulatory scheme for the extension of state civil and criminal jurisdiction to litigation involving Indians arising in Indian country. See 25 U. S.- C. §§ 1321-1326 (1964 ed., Supp. V). Section 402 (a) of the Act, 25 U. S. C. § 1322 (a) (1964 ed., -Supp. V), dealing with civil jurisdiction, provides: “The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians'or to which Indians are parties which arise in the areas of Indian, country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.” Section 406 of the Act, 25 U. S. C. § 1326 (1964 ed., Supp. V), then provides: “State jurisdiction acquired pursuant to this sub-chapter with respect to criminal offensés or civil causes of action, or with respect to both, shall be applicable in Indian country only where the- enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose. The Secretary of the Interior shall call such special election under such rules and regulations as he may prescribe, when requested to do so by the tribal council or other governing body, or by 20 per centum of such enrolled adults.” We think the meaning of these provisions is clear: the tribal consent that is prerequisite to the assumption of state jurisdiction under, the provisions of Title IV of the Act must be manifested by majority vote of the enrolled Indians within the affected area of Indian country. Legislative action by the Tribal Council does not comport with the explicit requirements of the Act. Finally, with regard to the 1968 enactment, this case presents no question concerning the power of the Indian tribes to place time, geographical, or other conditions on the “tribal consent” to state exercise of jurisdiction. Rather, we are presented solely with a question of the procedures by which “tribal consent” must be manifested under the new Act. Thus the suggestion made in dissent that, under today’s disposition, “[t]he reservation Indians must now choose between exclusive tribal court jurisdiction on the one hand and permanent, irrevocable state jurisdiction on the other,” is incorrect. The judgment of the Supreme Court of Montana is vacated and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. For example, § 4 of the Act of August 15, 1953, 67 Stat. 589, 28 U. S. C. § 1360 (a), extended jurisdiction over civil causes of action arising in Indian country to which Indians are parties to five States. The statute is illustrative of the detailed regulatory scrutiny which Congress has traditionally brought to bear on the extension of state jurisdiction, whether civil or criminal, to actions to which Indians are parties arising in Indian country. ' See also § 2 of the Act, 67 Stat. 588, 18 U. S. C. § 1162, extending criminal jurisdiction to the same States over offenses involving Indians committed in Indian country. Montana was not one of the five States accorded civil and criminal jurisdiction under these sections of the statute. As discussed infra, § 403 (b) of the Civil Rights Act of 1968, 82 Stat. 79, 25 U. S. C. § 1323 (b) (1964 ed., Supp. V), repealed § 7 of the Act of 1953. But § 403 (b) provides: “such repeal shall not affect any cession of jurisdiction made pursuant to [§ 7] prior to its repeal.” Further, §§ 402 and 406 of the 1968 Act, which govern the assumption of civil jurisdiction by States, appear to cover only States not presently having such jurisdiction. The instant litigation commenced aft.er the passage .of the 1968 Act. However, since the Tribal Council action preceded the 1968 Act — and under the state court’s reasoning vested, the State with jurisdiction'at that point in time — we must consider the validity of the State’s assertion of jurisdiction under the 1953 Act as well as the 1968 Act. The Montana Supreme Court also sought to distinguish Williams outright on the ground that the plaintiff in that case had, at one point,.secured a writ of attachment on Indian-owned livestock on the Navajo Reservation, bringing into play'special federal' protective policies with regard to Indian livestock. However, the Arizona Supreme Court judgment under review in Williams had set aside the writ of attachment on the very basis relied upon by the Montana Supreme Court in its opinion in this case ás a distinguishing ground. Williams v. Lee, 83 Ariz. 241, 247-248, 319-P. 2d 998, 1002-1003 (1958). Respondent in Williams did not seek review of that portion of the judgment; and, of course, the Court’s opinion in Williams makes no reference to the attachment. But see n. 2, supra. The plain meaning of the statute is reinforced by the legislative history. Title IV of the 1968 Act was offered and principally sponsored by Senator Ervin of North Carolina as part of an amendment by way of a substitute to H. R. 2516, which eventually became part of the Civil Rights Act of 1968. See 114 Cong. Rec. 393-395. In discussing Title IV, Senator Ervin stated, id., at 394: “This title repeals section 7 [of the 1953 Act] and authorizes States to assert civil and criminal jurisdiction in Indian country only after acquiring the consent of the tribes in the States by referendum of all- reservated Indians.” See also S. Rep. No. 721, 90th Cong., 1st Sess., 32 (1967) (additional views,jof Sen. Ervin). Senator Ervin’s proposals were eventually adopted as an amendment to' the Dirksen amendment to the 1968 Act. See 114 Cong. Rec. 5836-5838. The dissent’s rebutting footnote infers from the express allowance for selective state exercise of jurisdiction a congressional intent to exclude selective tribal consent, to state exercise of jurisdiction. That inference is so obviously not compelled by either the language or structure of 25 U. S. C. § 1322 (a) (1964 ed., Supp. V), the full text of which is quoted above, that we think no further response is needed. We reiterate, however, that with respect to the 1968 enactment, today’s decision is concerned solely with procedural mechanisms by which tribal consent must be registered. Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
songer_constit
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. AMERICAN AIRLINES, Inc., et al. v. CIVIL AERONAUTICS BOARD. No. 9739. United States Court of Appeals Seventh Circuit. Dec. 8, 1949. Paul M. Godehn, John T. Lorch, Chicago, Ill., Henry L. Hill, Chicago, Ill. (Mayer, Meyer, Austrian & Platt, Chicago, Ill., of counsel), for petitioners. Emory T. Nunneley, Jr., Greer M. Murphy, Warren L. Sharfman, Washington, D. C. , Edward Dumbauld, William D. McFarlane, Department of Justice, Washington, D. C., Hardy K. Maclay, Washington, D. C., Charles P. Taft, Cincinnati, Ohio, Richard Bentley, Kenneth B. Hawkins, Richard H. Merrick, Chicago, Ill. (Headley, Taft & Headley, Cincinnati, Ohio, Cassels, Potter & Bentley, Chicago, Ill., Landis, Gewirtz & Maclay, Washington, D. C., of counsel), for intervenor Air Freight Forwarders Ass’n. C. J. Burrill, E. C. Riordan, Chicago, Ill. (Haskins, Maguire & Haskins, Chicago, Ill., of counsel), for intervener International Forwarding Co. Homer S. Carpenter, Washington, D. C., Gregory A. Gelderman, Chicago, Ill. (Turney, Carpenter & Turney, Washington, D. C, of counsel), for intervener Acme Air Express, Inc. - Before DUFFY, FINNEGAN and LIN-DLEY, Circuit Judges. LINDLEY, Circuit Judge. ■ Petitioners seek to reverse an order of the Civil Aeronautics Board authorizing air freight forwarders to engage indirectly in interstate air transportation. They do not ask us to review the evidence but contend that the findings are insufficient to sustain the order and that the board has erroneously interpreted the law. The suit had its inception in a consolidated proceeding known as the Air Freight Forwarder Case, where some 78 parties filed applications under the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., requesting the board to issue either certificates of public convenience and necessity or exemption orders permitting them to engage in indirect air transportation as air freight forwarders. Air freight forwarders, who have become active but comparatively recently, procure shipments from shippers, assemble them and tender the consolidated lot gathered from the various shippers to an air carrier for transportation at a bulk rate which is lower than the rates collected by the forwarders from the shippers. The forwarder assumes the responsibility of a carrier, though he carries no merchandise himself but ships entirely by air in other carriers’ airplanes. Upon arrival of the consolidated shipment at the airport of destination, the forwarder divides the bulk shipment and distributes the separate portions thereof to the individual consignees. The difference between the high rates collected by forwarders and the low rates paid by them to carriers is commonly spoken of as the “spread” and provides the forwarder with expenses and profits. When the applications were filed, petitioners, consisting 'of permanently certified air carriers, engaged directly in transportation of persons, property and mail by air within the United States, having intervened, opposed them. After hearing and recommendation by the examiner, the board, on September 8, 1948, entered the order now on review. In order properly to understand the order and its scope and significance, it is essential that we examine the statutory law involved. Section 401 (a) of the Civil Aeronautics Act of 1938, 49 U.S.C.A. §§ 401, 481, provides that no air carrier shall engage in air transportation unless a certificate issued by the board authorizes such service. Section 401(d) provides that: “The Board shall issue a certificate authorizing the whole or any part of the transportation covered by the application, if it finds that the applicant is fit, willing, and able to perform such transportation properly, and to conform to the provisions of this Act and the rules, regulations, and requirements of the Board hereunder, and that such transportation is required by the public convenience and necessity; otherwise such application shall be denied.” Air freight forwarders, as we have seen, do not carry anything by air. They are classed as air carriers because they are included in the definition of that term in Section 1(2) of the Act, the pertinent portion of which follows: “ ‘Air carrier’ means any citizen of the United States who undertakes, whether directly or indirectly or by a lease or any other arrangement, to engage in air transportation: Provided, That the Board may by order relieve air carriers who are not directly engaged in the operation of aircraft in air transportation from the provisions of this Act to the extent and for such periods as may be in the public interest.” The board denied the applications for certificate of convenience and necessity but concluded that the forwarders, as indirect ■carriers, should be relieved from the provisions of the Act, adopted a regulation covering allowance of applications for air freight forwarders and directed that the 58 applicants be permitted to operate under exemption upon complying with the terms of the regulation. The board denied relief to such of the applicants as had abandoned their application during the progress of the proceedings and such of them as sought international rights and those directly or indirectly controlled by railroad interests. It made no finding that the applicants exempted were fit, willing and able to furnish public service as forwarders or that their operations were required by the public convenience and necessity; and it is largely upon this lack of finding that petitioners ground their objections to the order. In other words, it is insisted by petitioners that the failure to make a finding that the applicants were fit, willing and able to perform transportation properly and that such transportation was required by the public’s convenience and necessity as provided in Section 401 (d) of the Act is a fatal defect. However, it is provided in Section 1(2) of the Act that the board may by order exempt air • carriers who are not directly engaged in the operation of aircraft “to the extent and for such periods as may be in the public interest,” and the board found that it was in the public interest to relieve such carriers from the provisions of the Act to -the extent and for the period fixed. Our question then is whether, when the board enters upon a determination of whether it will grant exemption to an indirect carrier, that is, whether it will relieve the indirect carrier from the other provisions of the Act as provided in Section 1(2), it is necessary for the board to follow the standards of Section 401 under which, before authorizing the carrier to act, it must find that the applicant is fit, willing and able and that its operation is in the public interest. If the board was not bound to adhere to that standard and if it had a right under the statute; in the exercise of its' discretion, to excuse indirect carriers, that is, those who do not engage directly in air operations, from the requirements of the Act, thén its order was proper. We think petitioners are over-meticulous in their conception of the standard fixed by the statute. These forwarders do not engage in air transportation;'' they merely gather freight on the ground, assemble it, deliver it so assembled to the carrier for shipment, then, after shipment has. ended, divide it and deliver it to the several consignees. All their activities are on, the ground. , The board found that their operations tend to help the direct air carriers.by •increasing .the volume of air transportation and are, therefore, of benefit to petitioners. The board reasoned that, inasmuch as the applicants were in the unique position of being subject to the Act as indirect carriers but performed no function in the air and, inasmuch as they were comparatively recent newcomers in the indqstry, there was insufficient evidence to show that their operations were such that they should háve certificates under 'Section 401,'that is, certificates of convenience and necessity; but that, in view of their' limited activities, they should have certificates of exemption from any requirement of the Act, limited in time. We think the order did not contravene the purpose of the statute but rather carried it into effect. Apparently Congress contemplated that for all kinds of carriers there should be two methods by which operations could be authorized; first, for all operations, certificates of convenience and necessity might issue; second, for, indirect operations, certificates of exemption might issue. The plain reading of the statute impels this conclusion. It is unambiguous and, when properly construed, its language leads only to this one conclusion. Section 401 clearly requires the board, before issuing a certificate, to find that the transportation authorized is required by the public’s convenience and necessity and that the applicant is fit, willing and able; but the proviso of Section 1(2), just as clearly fails to include any such requirements and authorizes the board to issue relief or exemption .orders- for indirect carriers “to the extent and for such periods as may be in the public interest.” The first section is concerned with the necessity or convenience demanding air transportation service and the second, with the advisability of relieving indirect carriers of the obligation .of proving such necessity. We agree with the board that if the test for determining whether an indirect carrier should be relieved of the obligation of proving ,necessity ’ is to require proof of necessity in every case, it would completely nullify the purpose of Congress as expressed in Section 1(2). As said in Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 157, 67 L.Ed. 332: “The office of a proviso is well understood.' It is to except something .from the operative effect, or to qualify or restrain the generality, of the substantive enactment to which it is attached.” “If possible, the act is to be given such construction as will permit both' the enacting clause and the proviso to stand and be construed together with a view to carry into effect the whole purpose of the law. 1 Kent, Com. 463.” White v. United States, 191 U.S. 545, 551, 24 S.Ct. 171, 172, 48 L.Ed. 295. See also Foster v. United States, 7 Cir., 47 F.2d 892. Applying these principles to the Civil Aeronautics Act, we think there can be no question that the board properly construed each of the sections and that there is no requirement of proof of convenience and necessity of the proposed operations to be read into Section 1(2) in order to preserve other portions of the Act and its basic objective's. That ground for distinction between direct carriers and indirect carriers exists, is substantiated by the findings which stand unimpeached before us. Indirect carriers do not operate aircraft; they merely gather freight on the ground to be carried in aircraft; they do not compete with direct aircraft carriers, such as petitioners, in the operation of airplanes. All of .the merchandise gathered by forwarders must move from them to and over one of the direct carriers, and for carrying it, the direct carrier receives the full amount of the legal tariffs. The forwarder has relatively a very small investment. Obviously the functions of direct and indirect carriers are in no wise competitive and Congress was perfectly justified in distinguishing their respective functions and in relieving the indirect carrier from the obligations imposed on direct carriers by virtue of Section 401. We think the findings of the board and the language of the Act are such that the order of the agency charged with the administration of the law must be approved. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 88 L.Ed. 1170; Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153, 154, 67 S.Ct. 245, 91 L.Ed. 136. The petitioners apparently contend that sufficient subsidiary findings of fact upon the part of the board to support the ultimate finding are lacking. We do not have the transcript of evidence before us but we do find subsidiary findings clearly indicating the basis for the decision and demonstrating the reasonableness ’ of the. ultimate finding that the temporary exemption of air freight forwarders' from certain provisions of the Act is in the public interest. It should be remembered and emphasized that “administrative finality is not, of course, applicable only to agency finding of ‘fact’ in the narrow, literal sense. The (agency’s) findings * * * based upon judgment and prediction, as well as upon ‘facts’ * * * are not subject to reexamination by the court unless they * * * were not arrived at in ‘accordance with legal standards.’ ” Securities and Exchange Comm. v. Central-Illinois Securities Corp., 1949, 338 U.S. 96, 69 S.Ct. 1377, 1393. See also Securities and Exchange Comm. v. Chenery Corp., 332 U.S. 194, 207, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995. The regulation creates a distinct class of indirect carriers known as Air Freight Forwarders, a member of which is defined by the following language: One who, "1, assembles and consolidates or provides for assembling and consolidating of such property and performs or provides for the performance of brake-bulk and distributing operations with respect to such consolidated shipments, 2, assumes responsibility for the transportation of such property from the point of receipt to point of destination, and 3, utilizes for the whole or any part of the transportation of such shipments, the services of a direct air carrier subject to the Act.” It provides that no person may operate as an air freight forwarder without first procuring a letter of registration from the board; that such letter shall issue only if an application supplying certain detailed information has been filed and then, only if it appears that the applicant’s operations will not be inconsistent with the public interest. The authorization may be revoked at any time and is not valid beyond five years.. All such forwarders are exempted from the requirement of proof of fitness, willingness and ability and of public convenience and necessity. This regulation, we think, is clearly within the purview of the authority granted to the board by Section 1(2) of the Civil Aeronautics Act which we have quoted. The plain intent is that a forwarder may be relieved from the requirements of the Act to such extent as the board concludes is in the' public interest. There is no requirement of proof that the operations of the forwarder be in the public interest, but, rather, the forwarder is to be relieved if the board finds that such exemption is in the public interest, and this the board did find. It found also that, upon consideration of all the facts and evidence of record, the public interest in and the need of air forwarders had been sufficiently established to justify the authorization of freight forwarder operations for a limited period during which essential experience might be developed upon which a permanent policy could be soundly determined. ' In support of this are many subsidiary findings, — for example, — air freight would be used profitably and extensively by the public. There exists a tremendous potential for air freight. Many valuable services would be accorded shippers by air freight forwarders. Similarly, large benefits would accrue to direct carriers from forwarder operations. Forwarders, through their solicitations, would develop new air cargo business and help overcome the directional unbalance of trade. From these and other findings, it is apparent that the board found reasonable basis for believing that it should try out the proposed course of action outlined in its regulation and acted accordingly. Obviously, we are not concerned with the question of whether this was a wise course of action. Nor are we concerned with whether we would have entered the order ourselves or whether the board’s interpretation is the only reasonable one. Our function is limited; we may only inquire as to whether the board’s interpretation of the statute has warrant in the record and a reasonable basis in law. Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153-154, 67 S.Ct. 245, 91 L.Ed. 136. See also National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 131, 64 S.Ct. 851, 88 L.Ed. 1170. It would seem unnecessary to reiterate that presumptively the board’s order is correct and, under any and all circumstances, its decision entitled to great weight. We think it clear that it can not be said that the board has failed to make adequate findings in this case, where it is dealing largely with an experimental undertaking. The language of the Supreme Court in Railroad Commission v. Rowan & Nichols Oil Company, 310 U.S. 573, 60 S.Ct. 1021, 1024, 84 L.Ed. 1368 is pertinent: “Certainly in a domain of knowledge still shifting and growing, and in a field where judgment is therefore necessarily beset by the necessity of inferences bordering on conjecture even for those learned in the art, it would be presumptuous for courts, on the basis of conflicting expert testimony, to deem the view of the administrative tribunal, acting under legislative authority, offensive to the Fourteenth Amendment. * * * Plainly these are not issues for our arbitrament. * * * It is not for the federal courts to supplant the Commission’s judgment even in the face of convincing proof that a different result would have been better.” See also 310 U.S. 576, 61 S.Ct. 346, where the same case was under consideration: “When we consider the limiting conditions of litigation — the adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyers — it is clear that the Due Process Clause does not require the feel of the expert to be supplanted by an independent view of judges on the conflicting testimony and prophecies and impressions of expert witnesses.” Petitioners contend that the board improperly held that the second proviso of Section 408(b) of the Act is inapplicable to the acquisition of control of an indirect air carrier. That Section makes unlawful various kinds of acquisitions of control in the absence of approval of the board as provided in Section 408(b). Under the section, an air carrier or any other common carrier may not “acquire control of any air carrier in any manner whatsoever” unless the board approves. But the board is required to grant approval unless it finds that the proposed acquisition of control will not be consistent with the public interest, subject, however, to two ■ further provisos. The first requires the board to withhold approval of control which would result in creating a monopoly and thereby restrict competition or jeopardize another air carrier not a party to the acquisition of air control. The second, with the interpretation of which we are concerned here, is, so far as pertinent, as follows: “Provided further, That if the applicant is a carrier other than an air carrier, or a person controlled by a carrier other than an air carrier or affiliated therewith * * * the Board shall not enter such an order of approval unless it finds that the transaction proposed will promote the public interest by enabling such carrier other than an air carrier to use aircraft to public advantage in its operation and will not restrain competition.” 49 U.S.C.A. § 488. The board found that the limitations of the statute were applicable to certain applicants controlled either directly or indirectly, by surface common carriers, and with this action petitioners seem to agree. The board further concluded, however, in deciding whether control of an air freight forwarder by a surface freight forwarder should be approved, that “the second proviso does not apply in a case where the company of which control is acquired is an air freight forwarder,” saying: “We believe that Congress did not intend it to be applicable. The language of the section is such as to indicate that it was directed to the case of control of a direct air carrier by a direct common carrier or by a person controlled by or controlling such common carrier or affiliated therewith. The requirements laid down therein were obviously framed with reference to the experience of direct carriers and are at best inappropriate' where indirect carriers are involved. We hold accordingly that the second proviso of section 408(b) does not apply in this situation.” Though the board did not follow the literal language of the second proviso, it is clear that it made its interpretation in order to avoid an anomalous result, contrary to the congressional intent. If the proviso literally applied to forwarders, as contended by petitioners, the board could approve the control of a direct air carrier by a direct common carrier on making the findings specified in the second proviso but could never approve the control of an indirect carrier by indirect common carriers, since indirect carriers never “use” aircraft, and the findings required by the second proviso could never be made. We agree with the board that the proviso is not a prohibition but a restriction, and that, since the dangers sought to be guarded against by Section 408 are obviously more acute in the acquisition of control of a direct air carrier than in the case of the acquisition of control of an indirect air carrier, Congress did not intend to “permit the former under specified conditions and to prohibit completely the latter.” It certainly did not use language indicating an intention to accomplish that end, for, as it is clear from the findings that there were no indirect carriers in existence at the time the Act wa? passed and that Congress was concerned only with the problem of direct air carriers, the use of the words “indirect air carriers” was obviously inadvertent and misleading. When it passed the Act, Congress was concerned only with direct carriers. Any fear that the surface forwarders might dominate the field of air freight forwarders is inconsistent with the express finding that such control is not inconsistent with the public interest and will not create a monopoly and thereby restrain competition or jeopardize any direct or indirect carrier. As a matter of fact, the board refused to approve the control of air freight forwarders by railroads because of the dominant position such air forwarders would thus secure in relation to independent air forwarders. We think that the interpretation of the statute by the board in order to avoid incongruous result and in order to effectuate the intent of Congress was proper under United States v. American Trucking Ass’ns, 310 U.S. 534, at 542-544, 60 S.Ct. 1059, 84 L.Ed. 1345 and authorities there cited. To the same effect is the recent decision of the Court of Appeals for the Second Circuit in North American Utility Securities Corp. v. Posen, et al., 1949, 176 F.2d 194. We conclude that the board’s interpretation of the second proviso of Section 408(b), which makes it inapplicable to the acquisition of control of an air freight forwarder, carries out the intent of Congress and is a reasonable and proper interpretation of that provision binding upon this court. National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 130, 64 S.Ct. 851, 88 L.Ed. 1170; Unemployment Compensation Commission v. Aragan, 329 U.S. 143, 153-154, 67 S.Ct. 245, 91 L.Ed. 136. We have said nothing thus far concerning the Railway Express Agency. The proceedings before the board also involved applications by that company. It furnishes ground facilities and gathers and dispatches air express under contracts between it and air carriers holding certain certificates of convenience and necessity. This indirect air transportation furnished by the agency is authorized by a temporary exemption issued in 1941 pursuant to Section 1 (2) of the Act. Railway Express Agency, Inc., Grandfather Certificate, 2 C.A.B. 531. In the present case, the agency requested that it be granted permanent rather than temporary authority and be permitted to handle air freight as well as air express and to use the facilities of noncertificated as well as certificated air carriers. In its order, after continuing the agency’s operations in air express under a certificate of exemption, the board directed to the agency to negotiate revised air express agreements containing terms specified by the board and to submit to the board within six months any revised agreements that might be entered into as a result of such negotiations. Petitioners contend that by this order directing the agency to negotiate revised air express agreements, the board exceeded its power. Petitioners transport air express as well as air freight. The ground facilities used belong to the agency and are used for air express purposes pursuant to contracts between it and the carriers approved by the board. It is contended that the order was entered without due notice to petitioners and is not supported by essential findings; that the original hearing did not contemplate any inquiry into the agreement between the agency and the air carriers; that evidence was received at the hearing regarding existing agreements but that the parties were not notified before or at the time of the hearing that the board intended to consider the contracts previously existing and that the first notice appeared in the examiner’s report to which petitioners objected and excepted; that because of these facts, the entry of the order over petitioners’ objections denied them due process, in view of the fact that petitioners did not have fair opportunity to present evidence or cross-examine witnesses with respect to the validity of the board’s objections to existing agreements or as to the best available method for curing such objections thereto, if valid. Petitioners insist that, though the board has power under the Act to approve or disapprove, it has no power to direct that contracts between the carriers subject to the Act and the agency be renegotiated in accordance with specific terms dictated by the board. The board contends that the merits of petitioners’ claim in this respect are not before the court, because no justiciable controversy between the parties and the board has arisen. We think the board’s position sound. Its direction to the agency does not impose 'any obligation or restraint upon petitioners. It commands nothing of them. It denies them no authority previously granted. It subjects them to no liability, civil or criminal. Thus, in Chicago & Southern Airlines, Inc., v. Waterman Steamship Corporation, 333 U.S. 103, 68 S.Ct. 431, 437, 92 L.Ed. 568, the court said: “Until the decision of the Board has Presidential approval, it grants no privilege and denies no right. It can give nothing and can take nothing away from the applicant or a competitor. It may be a step, which if erroneous will mature into a prejudicial result, as an order fixing valuations in a rate proceeding may foreshow and compel a prejudicial rate order. But administrative orders are not reviewable unless and until they impose an obligation, deny a right or fix some legal relationship as the consummation of the administrative process. United States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651; United States v. Illinois Central R. Co., 244 U.S. 82, 37 S.Ct. 584, 61 L.Ed. 1007; Rochester Telephone Corp. v. United States, 307 U.S. 125, 131, 59 S.Ct. 754, 757, 83 L.Ed. 1147.” Inasmuch as petitioners have lost nothing and have had imposed upon them no obligation by the board’s direction to the agency and no final order has been entered, we think that no right of petitioners to complain has matured. The order is affirmed. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_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. FREMONT ENERGY CORPORATION, et al., Plaintiffs-Appellees, v. The SEATTLE POST INTELLIGENCER, the Hearst Corporation, et al., Defendants, John E. Moss, Chairman, Movant-Appellant. No. 81-4567. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 18, 1982. Decided Sept. 28, 1982. Steven R. Ross, Washington, D.C., for movant-appellant. James R. Prochnow, Constantine & Prochnow, P.C., Englewood, Colo., for plaintiffs-appellees. Before MERRILL and HUG, Circuit Judges, and BROWN , District Judge. Honorable Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation. MERRILL, Circuit Judge: John E. Moss appeals from an order of the district court for the Eastern District of California adjudging him in contempt of court for failure adequately to respond to the directions of a subpoena duces tecum. Moss is a former member of Congress and the former chairman of the Subcommittee on Oversight and Investigation of the House Committee on Interstate and Foreign Commerce. In December 1978, that subcommittee issued a report on uranium lode mining claims on federal lands. The report apparently was critical of the activities of the Fremont Energy Corporation, and two articles in the Seattle Post Intelligencer reporting that criticism are the subject of a libel suit brought by Fremont against that newspaper in the Western District of Washington. Through its discovery efforts in that case Fremont learned that Dan Seligman, a reporter for the Post Intelligencer, had telephoned Moss concerning the report on January 28, 1979, some three weeks after Moss’s final term in Congress had expired. Fremont thereupon secured the issuance of a subpoena duces tecum by the Clerk of the District Court for the Eastern District of California, which subpoena was served upon Moss in Sacramento, California. It called on him to appear at the offices of the Sacramento Deposition Reporters of Sacramento, California to testify on behalf of plaintiffs. He was further instructed to bring with him “any and all reports, records, files, notes, memoranda, correspondence or other documents pertaining to certain remarks and comments more specifically described in attachment A” to the subpoena. The attachment identified five items as follows: 1. Certain remarks made by Moss to Seligman on or about January 23, 1979. 2. An official report compiled and issued by the subcommittee chaired by Congressman Moss — identified by plaintiff as the “Moss Report,” also known as a Report on Uranium Lode Mining Claims on Federal Lands. 3. The subcommittee hearings on which the Moss Report was based. 4. Certain comments made to Seligman by a member of the subcommittee staff concerning Fremont Energy Corporation, the Moss Report, or the subcommittee hearings. 5. The procedures and rules of the subcommittee and of Congress during the course of the subcommittee hearings. On March 4,1981 in the District Court for the Eastern District of California Moss moved to quash the subpoena claiming that its subject was privileged by the Speech or Debate Clause of the Constitution. On May 6, the court granted the motion insofar as the subpoena related to Moss’s legislative activities (items 2, 3, and 5 of the attachment to the subpoena), and entered a protective order to that effect. As to the conversations with Seligman (items 1 and 4 of the attachment to the subpoena), however, the court denied the motion finding that they were not “part and parcel or essential to the deliberative process.” This court dismissed Moss’s appeal from the court’s order for lack of finality. Fremont conducted its deposition of Moss on August 26, 1981. Moss failed to bring to the deposition any documents meeting the specifications of items 1 and 4 of the subpoena and refused on Speech or Debate grounds to answer virtually all of Fremont’s more probative questions. Fremont then applied for an order to show cause why Moss should not be held in contempt. The court issued the requested order and scheduled a show cause hearing for October 19, 1981. At that hearing the court held Moss in contempt and ordered that he be committed to the custody of the United States Marshall “until such time as he should see fit to comply with and obey the specifics and mandate of that subpoena duces tecum.” The court also awarded to Fremont the costs and attorneys fees it had incurred in taking the fruitless deposition and in pursuing the contempt order. The court stayed incarceration pending the outcome of this appeal. We conclude that the district court erred in holding Moss in contempt. We note first that because Moss was in violation of no court order, if he is in contempt, it is for failure to comply with the demands of the subpoena duces tecum. In this respect, Rule 45(f), Fed. R. Civ. P., provides: Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued. The subpoena served on Moss directed him to appear and testify at a deposition. This Moss did. The subpoena did not direct Moss to answer any of the specific questions propounded by Fremont. If he is to be held in contempt for failure to answer questions, then, it must be pursuant to Rule 37(b)(1), Fed. R. Civ. P., which provides: Sanctions by Court in District Where Deposition is Taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. Since there was no such court direction, Moss cannot be adjudged in contempt for failure to answer questions. The subpoena also directed Moss to produce all documents meeting the specifications stated by Freemont. Whether any such documents actually exist, however, the record does not show. Without such a showing, we cannot be certain that a violation of the subpoena has occurred, and therefore cannot affirm the imposition of sanctions. On a related point, Moss argues that the district court denied him an opportunity to show “adequate excuse” for any noncompliance with the subpoena and that such opportunity is required by Rule 45(f). We agree. At the contempt hearing, Moss offered to provide an explanation (which he termed “defenses”) for his failure to produce. The court rejected this offer stating that it was interested only in the discussion of sanctions. REVERSED and REMANDED with instructions that the order holding appellant in contempt be vacated. . Participating as amicus curiae, the Seattle Post Intelligencer argues that the information Fremont seeks from Moss is not relevant to Fremont’s libel suit under Washington law, and accordingly that we need not reach the merits of the contempt order. In this forum ancillary to the underlying libel action, we decline to pass judgment on the relevancy question. See Horizons Titanium Corp. v. Norton Co., 290 F.2d 421, 425 (1st Cir. 1961). . The court’s May 6 order granting in part and denying in part Moss’s motion to quash the subpoena did not constitute an order “directing]” him to answer specific questions. Indeed, as the court acknowledged, the order left the scope of permissible questioning far from clear. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_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 SPOMER, STATE’S ATTORNEY OF ALEXANDER COUNTY, ILLINOIS v. LITTLETON et al. No. 72-955. Argued October 17, 1973 Decided January 15, 1974 White, J., delivered the opinion for a unanimous Court. James B. Zagel argued the cause for petitioner. With him on the brief was Patrick F. Healy. Alan M. Wiseman argued the cause for respondents. With him on the brief were James B. O’Shaugh-nessy and Michael P. Seng Briefs of amid curiae urging reversal were filed by Evelle J. Younger, Attorney General, Edward A. Him, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O’Brien, Assistant Attorneys General, and Robert R. Granucci, Deputy Attorney General, for the State of California; and by Joseph P. Busch for the District Attorney of Los Angeles County. Mr. Justice White delivered the opinion of the Court. This is a companion case to O’Shea v. Littleton, ante, p. 488, involving claims which the respondents, 17 black and two white residents of Cairo, Illinois, individually and as representatives of the class they purport to represent, set forth in that portion of their amended civil rights complaint which alleged wrongful conduct on the part of Peyton Berbling, individually and in his capacity as State’s Attorney for Alexander County, Illinois, the county in which the city of Cairo is located. As discussed in O’Shea, the complaint alleged a broad range of racially discriminatory patterns and practices in the administration of the criminal justice system in Alexander County by the Police Commissioner of Cairo, Magistrate Michael O’Shea and Associate Judge Dorothy Spomer of the Alexander County Circuit Court, State’s Attorney Berbling, and Earl Shepherd, an investigator for Berbling. Allegedly, a decade of active, but lawful, efforts to achieve racial equality for the black residents of Cairo had resulted in continuing intentional conduct on the part of those named as defendants in the complaint to deprive the plaintiff-respondents of the evenhanded protection of the criminal laws, in violation of various amendments to the Constitution and 42 U. S. C. §§ 1981, 1982, 1983, and 1985. In particular, the complaint charged State’s Attorney Berbling with purposeful racial discrimination, under color of state law, by neglecting to provide for respondents’ safety though knowing of the possibility of racial disorders, by refusing to prosecute persons who threaten respondents’ safety and property, and by refusing to permit respondents to give evidence against white persons who threaten them. It was alleged, with particular incidents recounted as to some charges, that “Berbling has denied and continues to deny” the constitutional rights of respondents and members of their class by following the practices of (a) refusing to initiate criminal proceedings and to hear criminal charges against white persons upon complaint by members of respondents’ class, (b) submitting misdemeanor complaints which have been filed by black persons against whites to a grand jury, rather than proceeding by information or complaint, and then either interrogating witnesses and complainants before the grand jury with purposeful intent to racially discriminate, or failing to interrogate them at all, (c) inadequately prosecuting the few criminal proceedings instituted against whites at respondents’ behest in order to lose the cases or settle them on terms more favorable than those brought against blacks, (d) recommending substantially greater bonds and sentences in cases involving respondents and members of their class than for cases involving whites, (e) charging respondents and members of their class with significantly more serious charges for conduct which would result in no charge or a minor charge against a white person, and (f) depriving respondents of their right to give evidence concerning the security of members of their class. Each of these practices was alleged to be willful, malicious, and carried out with intent to deprive respondents and members of their class of the benefits of the county criminal justice system and to deter them from peacefully boycotting or otherwise engaging in protected First Amendment activity. Since there was asserted to be no adequate remedy at law, respondents requested that Berbling be enjoined from continuing these'practices, that he be required to “submit a monthly report to' [the District Court] concerning the nature, status and disposition of any complaint brought to him by plaintiffs or members of their class, or by white persons against plaintiffs or members of their class,” and that the District Court maintain continuing jurisdiction in this action. The District Court dismissed that portion of the complaint requesting injunctive relief against Berbling, as well as against Investigator Shepherd, Magistrate O’Shea, and Judge Dorothy Spomer, for want of jurisdiction to grant any such remedy, which was perceived as directed against discretionary acts on the part of these elected state officials. The Court of Appeals reversed, holding that whatever quasi-judicial immunity from injunctive proscription it had previously recognized was appropriate for a prosecutor, was not absolute, and since respondents’ alternative remedies at law were thought to be inadequate, an injunctive remedy might be available if respondents could prove their claims of racial discrimination at trial. The Court of Appeals rendered its decision on October 6, 1972. At the subsequent election in November of that year, petitioner W. C. Spomer was chosen by the voters to succeed Berbling as State’s Attorney for Alexander County, and Spomer took office on December 4. In the petition for certiorari filed with this Court on January 3, 1973, seeking review of the Court of Appeals’ approval of the possibility of some form of injunctive relief addressed to the State’s Attorney in the course of his prosecutorial role, petitioner Spomer relied upon Supreme Court Rule 48 (3), which provides that “[w]hen a public officer is a party to a proceeding here in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party.” Respondents did not oppose the substitution, and we granted certiorari and set the case for argument together with O’Shea v. Littleton, ante, p. 488. 411 U. S. 915 (1973). It has become apparent, however, that there is nothing in the record upon which we may firmly base a conclusion that a concrete controversy between W. C. Spomer and the respondents is presented to this Court for resolution. No allegations in the complaint cited any conduct of W. C. Spomer as the basis for equitable or any other relief. Indeed, Spomer is not named as a defendant in the complaint at all, and, of course, he never appeared before either the District Court or the Court of Appeals. The injunctive relief requested against former State’s Attorney Berbling, moreover, is based upon an alleged practice of willful and malicious racial discrimination evidenced by enumerated instances in which Berbling favored white persons and disfavored Negroes. The wrongful conduct charged in the complaint is personal to Berbling, despite the fact that he was also sued in his then capacity as State’s Attorney. No charge is made in the complaint that the policy of the office of State’s Attorney is to follow the intentional practices alleged, apart from the allegation that Berbling, as the incumbent at the time, was then continuing the practices he had previously followed. Cf. Allen v. Regents of the University System of Georgia, 304 U. S. 439, 444-445 (1938). Nor have respondents ever attempted to substitute Spomer for Berbling after the Court of Appeals decision, so far as the record shows, or made any record allegations that Spomer intends to continue the asserted practices of Berbling of which they complain. The plain fact is that, on the record before us, respondents have never charged Spomer with anything and do not presently seek to enjoin him from doing anything. Under these circumstances, recognizing that there may no longer be a controversy between respondents and any Alexander County State’s Attorney concerning injunctive relief to be applied in futuro, see Two Guys v. McGinley, 366 U. S. 582, 588 (1961), we remand to the Court of Appeals for a determination, in the first instance, of whether the former dispute regarding the availability of injunctive relief against the State’s Attorney is now moot and whether respondents will want to, and should be permitted to, amend their complaint to include claims for relief against the petitioner. Cf. Land v. Dollar, 330 U. S. 731, 739 (1947). The judgment of the Court of Appeals is vacated and the case is remanded for further consideration and proceedings consistent with this opinion. It is so ordered. Specific examples of Berbling’s practice were alleged as follows: “(1) On March 28, 1969, defendant refused to permit James Wilson to file criminal charges against Charlie Sullivan, a white man, who pointed a gun at him as he (Wilson) attempted to move into the house next door to Charlie Sullivan on 22nd Street, in Cairo, Illinois. Sullivan threatened Wilson with the gun and told him to move the truck containing household furnishings and leave the area, thereby attempting to prevent James Wilson from holding property. “(2) On or about March 29, 1969, defendant refused to permit James Wilson to file criminal charges against Charlie Sullivan who fired shots from a gun around James Wilson’s home to intimidate his family in order to prevent James Wilson from holding property. “(3) In January, 1970, defendant refused to permit Robert Martin to file charges against Charlie Sullivan, who tried to run him down in a truck while peacefully marching in exercise of his First Amendment rights. “(4) In June, 1970, defendant refused to permit Ezell Littleton to file charges against a white man who without cause or justification assaulted and battered him. “(5) In June, 1970, defendant refused to permit Rev. Manker Harris to file charges against two white policemen of the City of Cairo for attempted murder and/or malicious prosecution. “(6) On August 10, 1970, defendant Berbling, through a subordinate, defendant Earl Shepherd, refused to permit plaintiff Hazel James to file criminal charges against Raymond Hurst, a white man, who had kicked plaintiff James in the stomach while she was peacefully demonstrating against the racially discriminatory practices of merchants and of public officials of the City of Cairo. “(7) In May, 1969, Plaintiff Ewing and eight others could have [brought] and desired to bring criminal charges against a white man who threatened them with a shotgun, but did not because they knew of defendant’s practice of refusing to take complaints and were discouraged from making useless gestures.” Cited in support of this allegation was an incident when “Morris Garrett (a 13 year old boy), on August 8, 1970, during a demonstration against the racially discriminatory practices of merchants and public officials of the City of Cairo, was struck by one Tom Madra. A complaint was filed which was presented to the grand jury. Morris Garrett appeared before the grand jury. Defendant Berbling, rather than question him regarding the incident, asked him such questions as ‘did you get paid for picketing?’ A no-true bill was returned by the grand jury.” Two episodes of this type were described: “(1) On August 13, 1970, Cheryl Garrett and Y-vonda Taylor, ages 18 and 16 respectively, were shot at by one Jack Guetterman, Jr. Rev. Walter Garrett and Ezell Littleton, following a telephone call from the young girls, went to the scene of the shooting. Shortly thereafter police officers arrived. While Rev. Walter Garrett was discussing the situation with one police officer, one Jack Guetterman, ' Sr. struck Rev. Garrett in the face, causing him to fall to the ground. A complaint was filed by Rev. Walter Garrett respecting this incident. Defendant Berbling presented the complaint to the grand jury, but Rev. Garrett was not interrogated at all respecting the incident. Ezell Littleton, who witnessed the assault, was not called to testify. “(2) On or about August 8, 1970, Curtis Johnson was struck by one A1 Moss while demonstrating against the racially discriminatory practices of merchants and public officials of the City of Cairo. A complaint was filed, which was presented to the grand jury. Curtis Johnson, however, was not interrogated by defendant Berb-ling respecting the incident.” Thus, respondents alleged that Berbling sought the “dropping of a criminal charge arising out of a complaint filed by Frank Hollis, a black person, against Tom Madra, a white person, in return for which [Berbling] would drop pending criminal charges against several of the [respondents].” Damages were also sought against Berbling for these practices and for an alleged conspiracy with his investigator, Shepherd, to refuse to prosecute those who threatened respondents’ safety and to prevent them from giving evidence against whites concerning acts threatening their personal safety. As to the latter, the sixth example in n. 1, supra, was reiterated. The Court of Appeals held that “insofar as defendant Berbling was acting within his prosecu-torial function he has a quasi-judicial immunity from suit for damages under the Civil Rights Acts,” 468 F. 2d 389, 410, and remanded to allow respondents to amend the complaint and to have the District Court determine in the first instance whether some of the acts then alleged would be sufficiently removed from quasi-judicial activity “to warrant removing the cloak of immunity from them.” Id., at 410-411. Berbling’s petition for certiorari questioning this aspect of the Court of Appeals’ ruling was not timely filed in this Court and has been denied. No. 72-1107, post, p. 1143. No question concerning damage relief is involved in the case presently before us. The scope of any injunction which might be found warranted was not finally established or restricted. It was suggested that an initial decree might require “only periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints,” and confidence was expressed that the District Court would be able to establish further guides as required and, if necessary, to consider individual decisions. 468 F. 2d, at 415. State’s Attorney W. C. Spomer should not be confused with Judge Dorothy Spomer, a petitioner in O’Shea v. Littleton, ante, p. 488. In their brief in opposition to the petition, p. 6, respondents stated that they “seek only equitable relief against petitioner W. C. Spomer. Because the amended complaint asks relief against Berbling in his individual as well as his official capacity, he remains a party in interest in this action.” Of course, Spomer, not Berbling, filed for review of the -Court of Appeals’ decision, respecting injunctive relief, and Berbling is not before the Court in this case. Nor did respondents ever seek relief of any kind against Spomer by their complaint. This Court's Rule 48(3), governing automatic substitution of successor public officers when the predecessor was a party “in his official capacity,” is based upon Fed. Rule Civ. Proc. 25 (d), as amended in 1961. Prior to the 1961 amendment, substitution was not automatic. The history and application of former and present Rule 25 (d) are sketched in 3B J. Moore, Federal Practice ¶ 25.09 [1]— [3] (2d ed. 1969). Of particular relevance is- the Advisory Committee Note on the 1961 “automatic substitution” amendment to Rule 25 (d), which suggests that “[i]n general it will apply whenever effective relief would call for corrective behavior by the one then having official status and power, rather than one who has lost that status and power through ceasing to hold office.” See id., ¶ 25.09 [3], at 25-403, 25-404. The question of whether corrective behavior is thought to be necessary is, of course, dependent on whether the dispute with the predecessor continues with the successor. Despite the statement respondents made in their brief in opposition to the petition for certiorari, n. 8, supra, the record does not contain any indication that respondents have ever sought in-junctive relief against Spomer in any proceedings in the District-Court or the Court of Appeals. Nor would they have had reason to do so in the absence of knowledge that he would succeed Berbling. While Spomer did substitute himself in place of his predecessor, and his counsel made the somewhat extraordinary statement at oral argument that “there is nothing in this record, nor will there be on the part of my client, to indicate that he would change the policies which are alleged to have been exercised by his predecessor,” Tr. of Oral Arg. 7, to determine whether respondents have a live controversy with Spomer, we must look to the charges they press. Indeed, counsel for respondents observed at oral argument of this case that “in order for us to proceed against Mr. Spomer, it would be necessary for us to investigate the facts to see that the concession apparently made by the State’s Attorney is true and amend our complaint.” Id., at 19. This merely serves to underscore our concern that we are being asked to render an opinion on the merits of what is now and may continue to be a hypothetical or abstract dispute. See Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240-241 (1937); United States v. Fruehauf, 365 U. S. 146, 157 (1961); North Carolina v. Rice, 404 U. S. 244, 245-246 (1971). Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspecifiable 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. HALLIBURTON OIL WELL CEMENTING CO. v. WALKER et al., doing business as DEPTHOGRAPH CO. No. 24. Reargued October 23,24,1946. Decided November 18, 1946. Earl Babcock reargued the cause and filed a brief for petitioner. With him on the brief was Harry C. Robb. Harold W. Mattingly reargued the cause and filed a brief for respondents. Mr. Justice Black delivered the opinion of the Court. Cranford P. Walker, owner of Patent No. 2,156,519, and the other respondents, licensees under the patent, brought this suit in a Federal District Court alleging that petitioner, Halliburton Oil Well Cementing Company, had infringed certain of the claims of the Walker patent. The District Court held the claims in issue valid and infringed by Halliburton. The Circuit Court of Appeals affirmed, 146 F. 2d 817, and denied Halliburton’s petition for rehearing. 149 F. 2d 896. Petitioner’s application to this Court for certiorari urged, among other grounds, that the claims held valid failed to make the “full, clear, concise, and exact” description of the alleged invention required by Rev. Stat. 4888, 35 U. S. C. § 33, as that statute was interpreted by us in General Electric Co. v. Wabash Appliance Corp., 304 U. S. 364. This statutory requirement of distinctness and certainty in claims is important in patent law. We granted certiorari to consider whether it was correctly applied in this case. 326 U. S. 705. The patent in suit was sustained as embodying an improvement over a past patent of Lehr and Wyatt (No. 2,047,974) upon an apparatus designed to facilitate the pumping of oil out of wells which do not have sufficient natural pressures to force the oil to gush. An outline of the background and setting of these patents is helpful to an understanding of the problem presented. In order to operate a pump in an oil well most efficiently, cheaply, and with the least waste, the pump must be placed in an appropriate relationship to the fluid surface of the oil. Properly to place the pump in this relationship requires knowledge of the distance from the well top to the fluid surface. At least by the latter 1920’s problems of waste and expense in connection with non-gusher oil wells pressed upon the industry. See Railroad Comm’n of Texas v. Rowan & Nichols Oil Co., 310 U. S. 573; Burford v. Sun Oil Co., 319 U. S. 315. It became apparent that inefficient pumping, one cause of waste, was in some measure attributable to lack of accurate knowledge of distance from well top to fluid surface. Ability to measure this distance in each separate non-gusher oil well became an obvious next step in the solution of this minor aspect of the problem of waste. The surface and internal machinery and the corkscrew conformation of some oil wells make it impractical to measure depth by the familiar method of lowering a rope or cable. In casting about for an alternative method it was quite natural to hit upon the possibility of utilizing a sound-echo-time method. Unknown distances had frequently been ascertained by this method. Given the time elapsing between the injection of a sound into an oil well and the return of its echo from the fluid surface, and assuming the velocity of the sound to be about 1100 feet per second, as it is in the open air, it would be easy to find the distance. Not only had this sound-echo-time method been long known and generally used to find unknown distances, but in 1898 Batcheller, in Patent No. 602,422, had described an apparatus to find a distance in a tubular space. Obviously an oil well is such a space. He described a device whereby the noise from a gun might be injected into a tube; the returning echoes from obstructions agitated a diaphragm, which in turn moved a stylus. The stylus recorded on a piece of paper a graph or diagram showing the variant movements of the diaphragm caused by its response to all the different echo waves. In the late 1920’s the oil industry began to experiment in the use of this same sound-eeho-time method for measuring the distance to the fluid surface in deep oil wells. A product of this experimentation was the Lehr and Wyatt patent, upon which the present patent claims to be an improvement. It proposed to measure the distance by measuring the time of travel of the echo of an “impulse wave” generated by a “sudden change in pressure.” The apparatus described included a gas cylinder with a quick operating valve by means of which a short blast of gas could be injected into a well. It was stated in the patent that the time elapsing between the release of the gas and the return of the echo of the waves produced by it could be observed in any desired manner. But the patentee’s application and drawings noted that the wave impulses could be recorded by use of a microphone which might include an amplifier and an appropriate device to record a picture of the wave impulses. This Lehr and Wyatt patent, it is therefore apparent, simply provided an apparatus composed of old and well-known devices to measure the time required for pressure waves to move to and back from the fluid surface of an oil well. But the assumption that sound and pressure waves would travel in oil wells at open-air velocity of 1100 feet per second proved to be erroneous. For this reason the time-velocity computation of Lehr and Wyatt for measuring the distance to the fluid surface produced inaccurate results. After conferences with Lehr, Walker undertook to search for a method which would more accurately indicate the sound and pressure wave velocity in each well. Walker was familiar with the structure of oil wells. The oil flow pipe in a well, known as a tubing string, is jointed and where these joints occur there are collars or shoulders. There are also one or more relatively prominent projections on the oil flow pipe known as tubing catchers. In wells where the distance to the tubing catcher is known, Walker observed that the distance to the fluid surface could be measured by a simple time-distance proportion formula. For those wells in which the distance to the tubing catcher was unknown, Walker also suggested another idea. The sections of tubing pipe used in a given oil well are generally of equal length. Therefore the shoulders in a given well ordinarily are at equal intervals from each other. But the section length and therefore the interval may vary from well to well. Walker concluded that he could measure the unknown distance to the tubing catcher if he could observe and record the shoulder echo waves. Thus multiplication of the number of shoulders observed by the known length of a pipe section would produce the distance to the tubing catcher. With this distance, he could solve the distance to the fluid surface by the same proportion formula used when the distance to the tubing catcher was a matter of record. The Lehr and Wyatt instrument could record all these echo waves. But the potential usefulness of the echoes from the shoulders and the tubing catcher which their machine recorded had not occurred to Lehr and Wyatt and consequently they had made no effort better to observe and record them. Walker’s contribution which he claims-to be invention was in effect to add to Lehr and Wyatt’s apparatus a well-known device which would make the regularly appearing shoulder echo waves more prominent on the graph and easier to count. The device added was a mechanical acoustical resonator. This was a short pipe which would receive wave impulses at the mouth of the well. Walker’s testimony was, and his specifications state, that by making the length of this tubal resonator one-third the length of the tubing joints, the resonator would serve as a tuner, adjusted to the frequency of the shoulder echo waves. It would simultaneously amplify these echo waves and eliminate unwanted echoes from other obstructions thus producing a clearer picture of the shoulder echo waves. His specifications show, attached to the tubal resonator, a coupler, the manipulation of which would adjust the length of the tube to one-third of the interval between shoulders in a particular well. His specifications and drawings also show the physical structure of a complete apparatus, designed to inject pressure impulses into a well, and to receive, note, record and time the impulse waves. The District Court held the claims here in suit valid upon its finding that Walker’s “apparatus differs from and is an improvement over the prior art in the incorporation in such apparatus of a tuned acoustical means which performs the function of a sound filter . . .” The Circuit Court of Appeals affirmed this holding, stating that the trial court had found “that the only part of this patent constituting invention over the prior art is the ‘tuned acoustical means which performs the functions of a sound filter.’ ” For our purpose in passing upon the sufficiency of the claims against prohibited indefiniteness we can accept without ratifying the findings of the lower court that the addition of “a tuned acoustical means” performing the “function of a sound filter” brought about a new patentable combination, even though it advanced only a narrow step beyond Lehr and Wyatt’s old combination. We must, however, determine whether, as petitioner charges, the claims here held valid run afoul of Rev. Stat. 4888 because they do not describe the invention but use “conveniently functional language at the exact point of novelty.” General Electric Co. v. Wabash Appliance Corp., supra, at 371. Walker, in some of his claims, e. g., claims 2 and 3, does describe the tuned acoustical pipe as an integral part of his invention, showing its structure, its working arrangement in the alleged new combination, and the manner of its connection with the other parts. But no one of the claims on which this judgment rests has even suggested the physical structure of the acoustical resonator. No one of these claims describes the physical relation of the Walker addition to the old Lehr and Wyatt machine. No one of these claims describes the manner in which the Walker addition will operate together with the old Lehr and Wyatt machine so as to make the “new” unitary apparatus perform its designed function. Thus the claims failed adequately to depict the structure, mode, and operation of the parts in combination. A claim typical of all of those held valid only describes the resonator and its relation with the rest of the apparatus as “means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing sections to clearly distinguish the echoes from said couplings from each other.” The language of the claim thus describes this most crucial element in the “new” combination in terms of what it will do rather than in terms of its own physical characteristics or its arrangement in the new combination apparatus. We have held that a claim with such a description of a product is invalid as a violation of Rev. Stat. 4888. Holland Furniture Co. v. Perkins Glue Co., 277 U. S. 245, 256-57; General Electric Co. v. Wabash Appliance Corp., supra. We understand that the Circuit Court of Appeals held that the same rigid standards of description required for product claims is not required for a combination patent embodying old elements only. We have a different view. Rev. Stat. 4888 pointedly provides that “in case of a machine, he [the patentee] shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” It has long been held that the word “machine” includes a combination. Corning v. Burden, 15 How. 252, 267. We are not persuaded that the public and those affected by patents should lose the protection of this statute merely because the patented device is a combination of old elements. Patents on machines which join old and well-known devices with the declared object of achieving new results, or patents which add an old element to improve a preexisting combination, easily lend themselves to abuse. And to prevent extension of a patent’s scope beyond what was actually invented, courts have viewed claims to combinations and improvements or additions to them with very close scrutiny. Cf. Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545, 549-51. For the same reason, courts have qualified the scope of what is meant by the equivalent of an ingredient of a combination of old elements. Gill v. Wells, 22 Wall. 1, 28, 29; Fuller v. Yentzer, 94 U. S. 288, 297, 298. It is quite consistent with this strict interpretation of patents for machines which combine old elements to require clear description in combination claims. This view, clearly expressed in Gill v. Wells, supra, is that “Where the ingredients are all old the invention . . . consists entirely in the combination, and the requirement of the Patent Act that the invention shall be fully and exactly described applies with as much force to such an invention as to any other class, because if not fulfilled all three of the great ends intended to be accomplished by that requirement would be defeated. ... (1.) That the government may know what they have granted and what will become public property when the term of the monopoly expires. (2.) That licensed persons desiring to practice the invention may know, during the term, how to make, construct, and use the invention. (3.) That other inventors may know what part of the field of invention is unoccupied. “Purposes such as these are of great importance in every case, but the fulfilment of them is never more necessary than when such inquiries arise in respect to a patent for a machine which consists of a combination of old ingredients. Patents of that kind are much more numerous than any other, and consequently it is of the greatest importance that the description of the combination, which is the invention, should be full, clear, concise, and exact.” Gill v. Wells, supra, at 25-26. These principles were again emphasized in Merrill v. Yeomans, 94 U. S. 568, 570, where it was said that “. . . in cases where the invention is a new combination of old devices, he [the patentee] is bound to describe with particularity all these old devices, and then the new mode of combining them, for which he desires a patent.” This view has most recently been reiterated in General Electric Co. v. Wabash Appliance Corp., supra, at 368, 369. Cogent reasons would have to be presented to persuade us to depart from this established doctrine. The facts of the case before us, far from undermining our confidence in these earlier pronouncements, reinforce the conclusion that the statutory requirement for a clear description of claims applies to a combination of old devices. This patent and the infringement proceedings brought under it illustrate the hazards of carving out an exception to the sweeping demand Congress made in Rev. Stat. 4888. Neither in the specification, the drawing, nor in the claims here under consideration, was there any indication that the patentee contemplated any specific structural alternative for the acoustical resonator or for the resonator’s relationship to the other parts of the machine. Petitioner was working in a field crowded almost, if not completely, to the point of exhaustion. In 1920, Tucker, in Patent No. 1,351,356, had shown a tuned acoustical resonator in a sound detecting device which measured distances. Lehr and Wyatt had provided for amplification of their waves. Sufficient amplification and exaggeration of all the different waves which Lehr and Wyatt recorded on their machine would have made it easy to distinguish the tubing catcher and regular shoulder waves from all others. For, even without this amplification, the echo waves from tubing collars could by proper magnification have been recorded and accurately counted, had Lehr and Wyatt recognized their importance in computing the velocity. Cf. General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242. Under these circumstances the broadness, ambiguity, and overhanging threat of the functional claim of Walker become apparent. What he claimed in the court below and what he claims here is that his patent bars anyone from using in an oil well any device heretofore or hereafter invented which combined with the Lehr and Wyatt machine performs the function of clearly and distinctly catching and recording echoes from tubing joints with regularity. Just how many different devices there are of various kinds and characters which would serve to emphasize these echoes, we do not know. The Halliburton device, alleged to infringe, employs an electric filter for this purpose. In this age of technological development there may be many other devices beyond our present information or indeed our imagination which will perform that function and yet fit these claims. And unless frightened from the course of experimentation by broad functional claims like these, inventive genius may evolve many more devices to accomplish the same purpose. See United Carbon Co. v. Binney & Smith Co., 317 U. S. 228, 236; Burr v. Duryee, 1 Wall. 531, 568; O’Reilly v. Morse, 15 How. 62, 112-13. Yet if Walker’s blanket claims be valid, no device to clarify echo waves, now known or hereafter invented, whether the device be an actual equivalent of Walker’s ingredient or not, could be used in a combination such as this, during the life of Walker’s patent. Had Walker accurately described the machine he claims to have invented, he would have had no such broad rights to bar the use of all devices now or hereafter known which could accent waves. For had he accurately described the resonator together with the Lehr and Wyatt apparatus, and sued for infringement, charging the use of something else used in combination to accent the waves, the alleged infringer could have prevailed if the substituted device (1) performed a substantially different function; (2) was not known at the date of Walker’s patent as a proper substitute for the resonator; or (3) had been actually invented after the date of the patent. Fuller v. Yentzer, supra, at 296-97; Gill v. Wells, supra, at 29. Certainly, if we are to be consistent with Rev. Stat. 4888, a patentee cannot obtain greater coverage by failing to describe his invention than by describing it as the statute commands. It is urged that our conclusion is in conflict with the decision of Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405. In that case, however, the claims structurally described the physical and operating relationship of all the crucial parts of the novel combination. The Court there decided only that there had been an infringement of this adequately described invention. That case is not authority for sustaining the claims before us which fail adequately to describe the alleged invention. Reversed. “33. Application for Patent; Description; Specification and Claim. — Before any inventor or discoverer shall receive a patent for his invention or discovery he shall make application therefor, in writing, to the Commissioner of Patents, and shall file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. . . Other alleged errors were urged in the application for certiorari and have been argued here, but since we find the question of definiteness of the claim decisive of the controversy, we shall not further advert to the other contentions. This case was previously affirmed by a divided court, 326 U. S. 696, and upon petition for rehearing was restored to the docket for reargument. 327 U. S. 812. The known distance from well top to the tubing catcher is to the unknown distance from well top to the fluid surface as the time an echo requires to travel from the tubing catcher is to the time required for an echo to travel from the fluid surface. Walker’s patent emphasizes that his invention solves the velocity of sound waves in wells of various pressures in which sound did not travel at open-air or a uniform speed. Mathematically, of course, his determination of the distance by proportions determines the distance to the fluid surface directly without necessarily considering velocity in feet per second as a factor. See Hailes v. Van Wormer, 20 Wall. 353; Knapp v. Morss, 150 U. S. 221, 227-28; Textile Machine Works v. Louis Hirsch Textile Machines, Inc., 302 U. S. 490; Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U. S. 545, 549-50. Halliburton, does not challenge the adequacy of the description of any other features of the “new combination.” The elements of Walker’s apparatus other than the filter are so nearly identical to what Lehr and Wyatt patented that we can speak of these other elements as the “Lehr and Wyatt machine.” Both parties have used Claim 1 as a typical example for purposes of argument throughout the litigation. Other claims need not be set out. Claim 1 is as follows: “In an apparatus for determining the location of an obstruction in a well having therein a string of assembled tubing sections interconnected with each other by coupling collars, means communicating with said well for creating a pressure impulse in said well, echo receiving means including a pressure responsive device exposed to said well for receiving pressure impulses from the well and for measuring the lapse of time between the creation of the impulse and the arrival at said receiving means of the echo from said obstruction, and means associated with said pressure responsive device for tuning said receiving means to the frequency of echoes from the tubing collars of said tubing sections to clearly distinguish the echoes from said couplings from each other.” The typical claim there in suit was as follows: “2. In a paper bag machine, the combination of the rotating cylinder provided with one or more pairs of side folding fingers adapted to be moved toward or from each other, a forming plate also provided with side forming fingers adapted to be moved toward or from each other, means for operating said fingers at definite times during the formative action upon the bag tube, operating means for the forming plate adapted to cause the said plate to oscillate about its rear edge upon the surface of the cylinder during the rotary movement of said cylinder for the purpose of opening and forming the bottom of the bag tube, a finger moving with the forming plate for receiving the upper sheet of the tube and lifting it during the formative action, power devices for returning the forming plate to its original position to receive a new bag tube, and means to move the bag tube with the cylinder.” Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 417, n. 1. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:
sc_adminaction
026
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. ANDRUS, SECRETARY OF THE INTERIOR v. CHARLESTONE STONE PRODUCTS CO. No. 77-380. Argued April 18, 1978 Decided May 31, 1978 MARSHALL, J., delivered the opinion for a unanimous Court. Sara Sun Beale argued the cause for petitioner. With her on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, Carl Strass, and Larry A. Boggs. Gerry Levenberg argued the cause for respondent. With him on the brief was Warwick C. Lamoreaux. A brief of amici curiae urging reversal was filed for their respective States by Avrum Gross, Attorney General of Alaska; Bruce E. Babbitt, Attorney General of Arizona, and Dale Pontius, Assistant Attorney General; Evelle J. Younger, Attorney General of California, and Roderick Walston, Deputy Attorney General; J. D. MacFarlane, Attorney General of Colorado, and David W. Robbins, Deputy Attorney General; Wayne L. Kidwell, Attorney General of Idaho, and Josephine Beeman, Assistant Attorney General; Michael T. Greely, Attorney General of Montana; Paul L. Douglas, Attorney General of Nebraska, and Steven C. Smith, Assistant Attorney General; Robert List, Attorney General of Nevada, and George Campbell, Deputy Attorney General; Toney Anaya, Attorney General of New Mexico, and Richard A. Simms, Special Assistant Attorney General; Allen I. Olson, Attorney General of North Dakota, and Murray G. Sagsveen, Assistant Attorney General; James A. Redden, Attorney General of Oregon, and Clarence R. Kruger, Assistant Attorney General; William J. Janklow, Attorney General of South Dakota, and Warren R. Neufeld, Assistant Attorney General; Slade Gorton, Attorney General of Washington, and Charles B. Roe, Jr., Senior Assistant Attorney General; and V. Frank Mendicino, Attorney General of Wyoming, and Jack D. Palma II, Special Assistant Attorney General. Maurice J. Nelson filed a brief for J. Alan Steele as amicus curiae. Mr. Justice Marshall delivered the opinion of the Court. Under the basic federal mining statute, which derives from an 1872 law, “all valuable mineral deposits in lands belonging to the United States” are declared “free and open to exploration and purchase.” 30 U. S. C. § 22. The question presented is whether water is a "valuable mineral” as those words are used in the mining law. I A claim to federal land containing “valuable mineral deposits” may be “located” by complying with certain procedural requisites; one who locates a claim thereby gains the exclusive right to possession of the land, as well as the right to extract minerals from it. See generally 30 U. S. C. §§ 21-54; 1 American Law of Mining § 1.17 (1973). The claim at issue in this case, known as Claim 22, is one of a group of 23 claims near Las Vegas, Nev., that were located in 1942. In 1962, after respondent had purchased these claims, it discovered water on Claim 22 by drilling a well thereon. This water was used to prepare for commercial sale the sand and gravel removed from some of the 23 claims. In 1965, the Secretary of the Interior filed a complaint with the Bureau of Land Management, seeking to have all of these claims declared invalid on the ground that the only minerals discovered on them were “common varieties” of sand and gravel, which had been expressly excluded from the definition of “valuable minerals” by a 1955 statute. § 3, 69 Stat. 368, 30 U. S. C. § 611. At the administrative hearing on the Secretary’s complaint, the principal issue was whether the sand and gravel deposits were “valuable” prior to the effective date of the 1955 legislation, in which case the claims would be valid. The Administrative Law Judge concluded after hearing the evidence that respondent had established pre-1955 value only as to Claim 10. On appeals taken by both respondent and the Government, the Interior Board of Land Appeals (IBLA) affirmed the Administrative Law Judge in all respects here relevant. 9 I. B. L. A. 94 (1973) , Respondent sought review in the United States District Court for the District of Nevada. The court concluded that the decisions of the Administrative Law Judge and the IBLA were not supported by the evidence and that “at least” Claims 1 through 16 were valid. App. to Pet. for Cert. 26a. The court further held “that access to Claim No. 22 must be permitted so that the water produced from the well on that claim may be made available to the operations on the valid claims.” Ibid. The IBLA’s decision was accordingly vacated, and the case remanded to the Department of the Interior. On the Government’s appeal, the United States Court of Appeals for the Ninth Circuit affirmed. 553 F. 2d 1209 (1977). It agreed with the District Court as to Claims 1 through 16 and also agreed that respondent was entitled to access to the water on Claim 22. It grounded the latter conclusion, however, “upon a rationale other than that relied upon by the District Court,” id., at 1215, a rationale that had not been briefed or argued in either the District Court or the Court of Appeals. Noting that “[s]ince early times, water has been regarded as a mineral,” ibid., the appellate court stated that it could not assume “that Congress was not aware of the necessary glove of water for the hand of mining and [that] Congress impliedly intended to reserve water from those minerals allowed to be located and recovered,” id., at 1216. Since the water at Claim 22 “has an intrinsic value in the desert area” and has additional value at the particular site “as a washing agent for . . . sand and gravel,” the court ruled that respondent’s “claim for the extraction of [Claim 22’s] water is valid.” Ibid. The difference between the District Court’s and the Court of Appeals’ rationales for allowing access to Claim 22 is a significant one. The District Court held only that respondent is entitled to use the water on the claim; the Court of Appeals, by contrast, held that the claim itself is valid. If the claim is indeed valid, respondent is not merely entitled to access to the water thereon, but also has exclusive possessory rights to the land and may keep others from making any use of it. By complying with certain procedures, moreover, respondent could secure a “patent” from the Government conveying fee simple title to the land. See 30 U. S. C. §§ 29, 37; 1 American Law of Mining § 1.23 (1973). See generally Union Oil Co. v. Smith, 249 U. S. 337, 348-349 (1919). In view of the significance of the determination that a mining claim to federal land is valid, the Government sought review here of the Court of Appeals’ sua sponte holding regarding Claim 22’s validity. The single question presented in the petition is “[w]hether water is a locatable mineral under the mining law of 1872.” Pet. for Cert. 2. We granted certiorari, 434 U. S. 964 (1977), and we now reverse. II We may assume for purposes of this decision that the Court of Appeals was correct in concluding that water is a “mineral,” in the broadest sense of that word, and that it is “valuable.” Both of these facts are necessary to a holding that a claimant has located a “valuable mineral deposit” under the 1872 law, 30 U. S. C. § 22, but they are hardly sufficient. This Court long ago recognized that the word “mineral,” when used in an Act of Congress, cannot be given its broadest definition. In construing an Act granting certain public lands, except “mineral lands,” to a railroad, the Court wrote: “The word 'mineral’ is used in so many senses, dependent upon the context, that the ordinary definitions of the dictionary throw but little light upon its signification in a given case. Thus the scientific division of all matter into the animal, vegetable or mineral kingdom would be absurd as applied to a grant of lands, since all lands belong to the mineral kingdom .... Equally subversive of the grant would be the definition of minerals found in the Century Dictionary: as 'any constituent of the earth’s crust’ . . . .” Northern Pacific R. Co. v. Soderberg, 188 U. S. 526, 530 (1903). In the context of the 1872 mining law, similar conclusions must be drawn. As one court observed, if the term “mineral” in the statute were construed to encompass all substances that are conceivably mineral, “there would be justification for making mine locations on virtually every part of the earth’s surface,” since “a very high proportion of the substances of the earth are in that sense 'mineral.' ” Rummell v. Bailey, 7 Utah 2d 137, 140, 320 P. 2d 653, 655 (1958). See also Robert L. Beery, 25 I. B. L. A. 287, 294-296 (1976) (noting that "common dirt,” while literally a mineral, cannot be considered locatable under the mining law); Holman v. Utah, 41 L. D. 314, 315 (1912); 1 American Law of Mining, supra, § 2.4, p. 168. The fact that water may be valuable or marketable similarly is not enough to support a mining claim’s validity based on the presence of water. Many substances present on the land may be of value, and indeed it seems likely that land itself — especially land located just 15 miles from downtown Las Vegas, see 553 F. 2d, at 1211— has, in the Court of Appeals’ words, “an intrinsic value,” id., at 1216. Yet the federal mining law surely was not intended to be a general real estate law; as one commentator has written, “the Congressional mandate did not sanction the disposal of federal lands under the mining laws for purposes unrelated to mining.” 1 American Law of Mining, supra, § 1.18, p. 56; cf. Holman v. Utah, supra (distinguishing mining law from homestead and other agricultural entry laws). In order for a claim to be valid, the substance discovered must not only be a “valuable mineral” within the dictionary definition of those words, but must also be the type of valuable mineral that the 1872 Congress intended to make the basis of a valid claim. Ill The 1872 law incorporates two provisions involving water rights that derive from earlier mining Acts. See 17 Stat. 94-95. In 1866, in Congress’ first major effort to regulate mining on federal lands, it provided for the protection of the “vested rights” of “possessors and owners” “to the use of water for mining, agricultural, manufacturing or other purposes,” to the extent that these rights derive from “priority of possession” and “are recognized and acknowledged by the local customs, laws, and the decisions of courts.” 30 U. S. C. § 51. In 1870, Congress again emphasized its view that water rights derive from “local” law, not federal law, making “[a]ll patents granted . . . subject to any vested and accrued water rights ... as may have been acquired under or recognized by [the 1866 provision].” 30 U. S. C. § 52. In discussing these mining law provisions on the subject of water rights, this Court has often taken note of the history of mining in the arid Western States. In 1879 Mr. Justice Field of California, writing for the Court, described in vivid terms the influx of miners that had shaped the water rights law of his State and its neighbors: “The lands in which the precious metals were found belonged to the United States, and were unsurveyed Into these mountains the emigrants in vast numbers penetrated, occupying the ravines, gulches and canons, and probing the earth in all directions for the precious metals. . . . But the mines could not be worked without water. Without water the gold would remain for ever buried in the earth or rock. . . . The doctrines of the common law respecting the rights of riparian owners were not considered as applicable ... to the condition of miners in the mountains. . . . Numerous regulations were adopted, or assumed to exist, from their obvious justness, for the security of . . . ditches and flumes, and the protection of rights to water . . . .” Jennison v. Kirk, 98 U. S. 453, 457-458 (1879). See also Basey v. Gallagher, 20 Wall. 670, 681-684 (1875) (Field, J.); Atchison v. Peterson, 20 Wall. 507, 510-515 (1874) (Field, J.). Over a half century later, Mr. Justice Sutherland set out this same history in California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 154-155 (1935). He then explained that the water rights provisions of the 1866 and 1870 laws were intended to “approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain.” Id., at 155. Our opinions thus recognize that, although mining law and water law developed together in the West prior to 1866, with respect to federal lands Congress chose to subject only mining to comprehensive federal regulation. When it passed the 1866 and 1870 mining laws, Congress clearly intended to preserve “pre-existing [water] right[s]." Broder v. Natoma Water & Mining Co., 101 U. S. 274, 276 (1879). Less than 15 years after passage of the 1872 law, the Secretary of the Interior in two decisions ruled that water is not a locatable mineral under the law and that private water rights on federal lands are instead “governed by local customs and laws,” pursuant to the 1866 and 1870 provisions. Charles Lennig, 5 L. D. 190, 191 (1886); see William A. Chessman, 2 L. D. 774, 775 (1883). The Interior Department, which is charged with principal responsibility for “regulating the acquisition of rights in the public lands,” Cameron v. United States, 252 U. S. 450, 460 (1920), has recently reaffirmed this interpretation. Robert L. Beery, 25 I. B. L. A. 287 (1976). In ruling to the contrary, the Court of Appeals did not refer to 30 U. S. C. §§ 51 and 52, which embody the 1866 and 1870 provisions; to our opinions construing these provisions; or to the consistent course of administrative rulings on this question. Instead, without benefit of briefing, the court below decided that “it would be incongruous ... to hazard that Congress was not aware of the necessary glove of water for the hand of mining.” 553 F. 2d, at 1216. Congress was indeed aware of this, so much aware that it expressly provided a water rights policy in the mining laws. But the policy adopted is a “passive” one, 2 Waters and Water Rights § 102.1, p. 53 (R. Clark ed. 1967); Congress three times (in 1866, 1870, and 1872) affirmed the view that private water rights on federal lands were to be governed by state and local law and custom. It defies common sense to assume that Congress, when it adopted this policy, meant at the same time to establish a parallel federal system for acquiring private water rights, and that it did so sub silentio through laws designed to regulate mining. In light of the 1866 and 1870 provisions, the history out of which they arose, and the decisions construing them in the context of the 1872 law, the notion that water is a “valuable mineral” under that law is simply untenable. IV The conclusion that Congress did not intend water to be locatable under the federal mining law is reinforced by consideration of the practical consequences that could be expected to flow from a holding to the contrary. A Many problems would undoubtedly arise simply from the fact of having two overlapping systems for acquisition of private water rights. Under the appropriation doctrine prevailing in most of the Western States, the mere fact that a person controls land adjacent to a body of water means relatively little; instead, water rights belong to “[t]he first appropriator of water for a beneficial use,” but only “to the extent of his actual use,” California Oregon Power Co. v. Beaver Portland Cement Co., supra, at 154; see Jennison v. Kirk, supra, at 458; W. Hutchins, Selected Problems in the Law of Water Rights in the West 30-32, 389-403 (1942); McGowen, The Development of Political Institutions on the Public Domain, 11 Wyo. L. J. 1, 14 (1957). Failure to use the water to which one is entitled for a certain period of time generally causes one’s rights in that water to be deemed abandoned. See generally 2 W. Hutchins, Water Rights Laws in the Nineteen Western States 256-328 (1974). With regard to minerals located under federal law, an entirely different theory prevails. The holder of a federal mining claim, by investing $100 annually in the claim, becomes entitled to possession of the land and may make any use, or no use, of the minerals involved. See 30 U. S. C. § 28. Once fee title by patent is obtained, see supra, at 609, even the $100 requirement is eliminated. One can readily imagine the legal conflicts that might arise from these differing approaches if ordinary water were treated as a federally cognizable '“mineral.” A federal claimant could, for example, utilize all of the water extracted from a well like respondent’s, without regard for the settled prior appropriation rights of another user of the same water. Or he might not use the water at all and yet prevent another from using it, thereby defeating the necessary Western policy in favor of “actual use” of scarce water resources. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S., at 154. As one respected commentator has written, allowing water to be the basis of a valid mining claim “could revive long abandoned common law rules of ground water ownership and capture, and . . . could raise horrendous problems of priority and extralateral rights.” We decline to effect so major an alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history. B A final indication that water should not be held to be a locatable mineral derives from Congress’ 1955 decision to remove “common varieties” of certain minerals from the coverage of the mining law. 30 U. S. C. § 611; see supra, at 606-607, and n. 5. This decision was made in large part because of “abuses under the general mining laws by . . . persons who locate[d] mining claims on public lands for purposes other than that of legitimate mining activity.” H. R. Rep. No. 730, 84th Cong., 1st Sess., 5 (1955); see S. Rep. No. 554, 84th Cong., 1st Sess., 4-5 (1955). Apparently, locating a claim and obtaining a patent to federal land were so inexpensive that many “use[d] the guise of mining locations for nonmining purposes,” including the establishment of “filling stations, curio shops, cafes, . . . residencefs] [and] summer camp[s].” H. R. Rep. No. 730, p. 6; see S. Rep. No. 554, p. 5. Water, of course, is among the most common of the earth’s elements. While it may not be as common in the federal lands subject to the mining law as it is elsewhere, it is nevertheless common enough to raise the possibility of abuse by those less interested in extracting mineral resources than in obtaining title to valuable land. See Robert L. Beery, 25 I. B. L. A., at 296-297. Given the unprecedented nature of the Court of Appeals’ decision, it is hardly surprising that the 1955 Congress did not include water on its list of “common varieties” of minerals that cannot confer validity on a mining claim. But the concerns that Congress addressed in the 1955 legislation indicate that water, like the listed minerals, should not be considered a locatable mineral under the 1872 mining law. V It has long been established that, when grants to federal land are at issue, any doubts “are resolved for the Government, not against it.” United States v. Union Pacific R. Co., 353 U. S. 112, 116 (1957). A fortiori, the Government must prevail in a case such as this, when the relevant statutory provisions, their historical context, consistent administrative and judicial decisions, and the practical problems with a contrary holding all weigh in its favor. Accordingly, the judgment of the Court of Appeals is Reversed. Act of May 10, 1872, 17 Stat. 91. Title 30 U. S. C. § 22 provides in full: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.” Title 30 U. S. C. § 611 provides in pertinent part: “No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws: Provided, however, That nothing herein shall affect the validity of any mining location based upon discovery of some other mineral occurring in or in association with such a deposit. 'Common varieties’ as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value . . . The question of value has traditionally been resolved by application of “complement[ary]” tests relating to whether “‘a person of ordinary prudence’ ” would have expended “ 'his labor and means’ ” developing the claim at issue and whether the minerals thereon could have been “ ‘extracted, removed and marketed at a profit.’ ” United States v. Coleman, 390 U. S. 599, 600, 602 (1968), quoting decisions of the Secretary of the Interior in Coleman and in Castle v. Womble, 19 L. D. 455, 457 (1894). The Administrative Law Judge, in addition to holding that Claim 10 was valid based on its pre-1955 value, held that Claim 9 was valid because it provided reserve material for Claim 10. The IBLA reversed as to Claim 9, holding it invalid. 9 I. B. L. A., at 108. The Secretary’s complaint also named two other claims, numbered 12A and 13A, that were located by respondent in 1961. Since location occurred after the relevant 1955 date, the Administrative Law Judge held these claims invalid. His decision regarding Claims 12A and 13A was upheld by both the IBLA, 9 I. B. L. A., at 106, and the District Court, App. to Pet. for Cert. 25a, and was not contested in the Court of Appeals, see 553 F. 2d 1209, 1210 n. 1 (CA9 1977). Although the question of the District Court’s subject-matter jurisdiction was not raised in this Court or apparently in either court below, we have an obligation to consider the question sua sponte. See, e. g., Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U. S. 274, 278 (1977); Mansfield, Coldwater, & Lake Michigan R. Co. v. Swan, 111 U. S. 379, 382 (1884). Respondent’s complaint alleged jurisdiction based on the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., and 28 U. S. C. §§ 1361, 1391 (e). App. 27A. Title 28 U. S. C. § 1391 (e) is a venue statute and cannot itself confer jurisdiction. With regard to the APA, while it may have appeared to be a proper basis of jurisdiction in the Ninth Circuit at the time the complaint was filed in 1973, see Brandt v. Hickel, 427 F. 2d 63, 55 (CA9 1970), we have since held that “the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action,” Califano v. Sanders, 430 U. S. 99, 107 (1977). We need not decide whether jurisdiction would lie here under 28 U. S. C. § 1361, because jurisdiction in this action to review a decision of the Secretary of the Interior is clearly conferred by 28 U. S. C. § 1331 (a). This general federal-question statute was amended in 1976 to eliminate the amount-in-controversy requirement with regard to actions “brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.” Pub. L. No. 94-574 § 2, 90 Stat. 2721. Hence the fact that in 1973 respondent in its complaint did not allege $10,000 in controversy is now of no moment. See Ralpho v. Bell, 186 U. S. App. D. C. 368, 376-377, n. 51, 569 F. 2d 607, 615-616, n. 51 (1977); Green v. Philbrook, 427 F. Supp. 834, 836 (Vt. 1977). Nor does it matter that the complaint does not in so many words assert § 1331 (a) as a basis of jurisdiction, since the facts alleged in it are sufficient to establish such jurisdiction and the complaint appeared jurisdictionally correct when filed. See Fort Sumter Tours, Inc. v. Andrus, 564 F. 2d 1119, 1123 n. 4 (CA4 1977); Harary v. Blumenthal, 555 F. 2d 1113, 1115 n. 1 (CA2 1977); Fitzgerald v. United States Civil Service Comm’n, 180 U. S. App. D. C. 327, 329 n. 1, 554 F. 2d 1186, 1188 n. 1 (1977). In reaching this conclusion, the court correctly noted, 563 F. 2d, at 1216, that water is not listed among the “common varieties” of minerals withdrawn from location by 30 U. S. C. § 611. Hence the fact that respondent did not discover water on Claim 22 until after 1955 is irrelevant to the question of the validity of the claim. See supra, at 606-607, andn. 3. See also infra, at 617. By referring to the intent of the 1872 Congress, we do not mean to imply that the only minerals locatable are those that were known to exist in 1872. But Congress’ general conception of what a “valuable mineral” was for purposes of mining claim location is of obvious relevance in construing the 1872 law. Title 30 U. S. C. § 51 provides in full: “Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but .whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.” Title 30 U. S. C. § 52 provides in full: “All patents granted, or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by section 51 of this title.” The holder of a valid mining claim is generally understood to have an unlimited right to extract minerals from the claim, “even to exhaustion.” Union Oil Co. v. Smith, 249 U. S. 337, 349 (1919). Respondent suggests that this right could be limited in the context of a mining-law claim to water, if the law were construed to require the claimant to respect water rights previously vested under state law. Brief for Respondent 31 n. 8; see id., at 25-26. Trelease, Federal-State Problems in Packaging Water Rights, in Water Acquisition for Mineral Development Institute Paper 9, pp. 9-17 n. 47 (Rocky Mt. Min. L. Fdn., 1978). The Court of Appeals’ suggestion that a claim to water might be validated simply because of the “intrinsic value” of water “in the desert area,” 553 F. 2d, at 1216, makes abuse particularly likely, since the “intrinsic value” theory would substantially lessen a claimant’s burden of showing the “valuable” nature of his claim. See n. 4, supra. 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_origin
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Santos Valentin RUIZ, Appellant, v. UNITED STATES of America. No. 15825. United States Court of Appeals Third Circuit. Submitted Aug. 8, 1966. Decided Aug. 31, 1966. William C. Loud, Charlotte Amalie, St. Thomas, V. I., for appellant. Almeric L. Christian, U. S. Atty., John E. Stout, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee. Before MARIS, SMITH and SEITZ, Circuit Judges. OPINION OF THE COURT MARIS, Circuit Judge. This is an appeal by Santos Valentin Ruiz, a prisoner in the Federal Penitentiary at Atlanta, Georgia, from an order of the District Court of the Virgin Islands, denying the prisoner’s petition under 28 U.S.C. § 2255 for the correction of his sentence of life imprisonment by the substitution of a sentence for a term of years. The prisoner had been charged in the Virgin Islands with murder in the first degree to which he had pleaded not guilty. Subsequently he withdrew that plea and entered a plea of guilty of murder in the second degree upon which the district court imposed the sentence of life imprisonment in question. In support of his petition for correction of the sentence the prisoner asserts that under the Virgin Islands Code the punishment of life imprisonment may be imposed only for first degree murder and that the punishment imposed for second degree murder is limited to imprisonment for a fixed term of years, not less than five, in the discretion of the court. The United States Attorney concedes the validity of this contention and we agree. 14 V.I.C. § 923 provides: “(a) Whoever commits murder in the first degree shall be imprisoned for life. “(b) Whoever commits murder in the second degree shall be imprisoned for not less than 5 years.” We think that the dichotomy of § 923 compels the conclusion that the penalty, imprisonment for a period of not less than five years, imposed for the lesser offense, is intended to be less severe than the greater penalty, imprisonment for life, imposed for the greater offense, and must, therefore, be something which is ordinarily less than life imprisonment, namely, imprisonment for a definite term of years. This is not to say that a sentence to a term of years may not in fact turn out to be longer than the prisoner’s actual remaining span of life or that under some circumstances a term of years greater than the prisoner’s life expectancy may not be imposed. It is merely to say that the statutory mandate is to impose life imprisonment for first degree murder and imprisonment for a fixed definite term of years, and that only, for murder in the second degree. We have considered Bailey v. United States, 10 Cir. 1934, 74 F.2d 451, and Bates v. Johnston, 9 Cir. 1940, 111 F.2d 966, which construed the penalty imposed by the Lindbergh Law upon interstate kidnappers as including life imprisonment. We do not find those cases persuasive here,.however, since they did not involve a statute having the dichotomy of § 923. On the other hand, we are in accord with the Court of Criminal Appeals of Texas which held in Daugherty v. State, 1943, 146 Tex.Cr.R. 303, 174 S.W.2d 493; Cuellar v. State, 1947, 151 Tex.Cr.R. 176, 206 S.W.2d 250, and Ex parte Goss, 1953, 159 Tex.Cr.R. 235, 237, 262 S.W.2d 412, that imprisonment for life is not for a term of years and is authorized only when the statute so provides. We are fortified in this view by the fact that the Legislature of the Virgin Islands knew how to authorize in the same statute the imposition of imprisonment for a term of years with a permissible maximum of life imprisonment when it wanted to do so. For this is exactly what it did in 14 V.I.C. § 61 which provides that an habitual criminal may be imprisoned “for a term of not less than 10 years, and the maximum thereof shall be the remainder of his natural life”. Fixing the limits of the punishment to be imposed for crime is a legislative function. It is the duty of the district court to impose the sentence which it regards as appropriate within the limits thus fixed and if it does so its action will not be disturbed on appeal. United States v. Wallace, 3 Cir. 1959, 269 F.2d 394. But where the sentence imposed is at variance with the statutory requirements, it may be corrected to conform to the provisions of the statute even though the prisoner did not appeal from the judgment embodying the invalid sentence and has already served part of his term of imprisonment. The correction is to be made not by discharge of the prisoner but by an appropriate amendment of the invalid sentence by the court which imposed it. Rule 35, Fed.Rules of Criminal Procedure; United States v. Bozza, 3 Cir. 1946, 155 F.2d 592, aff. Bozza v. United States, 1947, 330 U.S. 160, 166, 67 S.Ct. 645, 91 L.Ed. 818. Since the sentence to life imprisonment imposed upon the prisoner in this case was not authorized by § 923 it must be corrected so as to impose imprisonment for an appropriate term of years, not less than five, under that section. This should be done as of the date of his original sentence, June 4, 1964. See Hayes v. United States, 1957, 102 U.S.App.D.C. 1, 249 F.2d 516, cert. den. 356 U.S. 914, 78 S.Ct. 672, 2 L.Ed.2d 586. The prisoner here also argues that it was error for the district court not to require his presence at the hearing of his motion under § 2255. There is no merit in this contention. It is well settled that the district court may entertain such a motion without requiring the presence of the prisoner at the hearing if his testimony is not material to an issue raised by the motion. United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. Here no testimony was required on the issue raised by the prisoner’s motion as to the validity of the sentence. » The prisoner subsequently filed a motion to substitute an application for a writ of habeas corpus ad subjiciendum which the district court denied. The prisoner asserts that this action also was erroneous. This contention is wholly without merit. Since the prisoner is not held in custody in the Virgin Islands the district court would not have jurisdiction to issue a writ of habeas corpus, regardless of the merits of the application, upon which we do not pass. His proper remedy is the one which he initially invoked and under which he is entitled to relief, a motion under 28 U.S.C. § 2255. United States ex rel. Leguillou v. Davis, 3 Cir. 1954, 212 F.2d 681, 3 V.I. 511. The order of the district court will be reversed and the cause will be remanded to the district court for further proceedings not inconsistent with this opinion. . Since the United States Attorney did not choose to proceed under § 61 in this prisoner’s case the sentence of life imprisonment is not supported by that section. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_genresp2
I
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES of America, Appellee, v. Reinaldo OLIVARES-VEGA, Appellant. No. 772, Docket 73-2532. United States Court of Appeals, Second Circuit. Argued Feb. 15, 1974. Decided April 3, 1974. Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, E. Thomas Boyle, New York City, of counsel), for appellant. Joan S. O'Brien, Asst. U. S. Atty. (Edward John Boyd, V, Acting U. S. Atty. Dist. E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appel-lee. Before FEINBERG and OAKES, Circuit Judges, and TYLER, District Judge. United States District Judge for the Southern District of New York, sitting by designation. OAKES, Circuit Judge: This appeal, from a conviction after a jury trial for illegal importation of cocaine, 21 U.S.C. § 952(a), and possession with intent to distribute that drug, 21 U.S.C. § 841(a)(1), raises three questions: whether the Miranda warnings given appellant were sufficient to permit a post-arrest statement made by him to agents of the Federal Drug Enforcement Administration (FDEA) to go into evidence; whether there was sufficient proof that the substance imported and possessed by appellant was cocaine; and whether an instruction to the jury that “conscious avoidance” of knowledge was the full equivalent of knowledge was proper. Appellant had been apprehended as an international arrival from Chile at John F. Kennedy International Airport by FDEA agents; his suitcases contained 16 glassine envelopes filled with 13 pounds of a white powder substance. After conviction, he was sentenced on the two counts to concurrent terms of five years’ imprisonment (pursuant to 18 U.S.C. § 4208(a)(2)) and 10 years’ special parole. It is unnecessary to state the facts in detail except as they bear upon the issues presented here. The Miranda argument is not a new one in this court. The warnings were read to appellant in Spanish from a form, now happily no longer in use, which, the appellant argues — not without some justification — could have misled him in that it failed to alert him of his rights in the event he was indigent to have an attorney prior to and during the agent’s questioning. Appellant would have us hold this warning insufficient by following Seventh, Ninth, Tenth and possibly Fifth Circuit decisions on this point. At least six state courts have also found such warnings to be insufficient. Opposing appellant’s position are decisions of this circuit, one of the most pertinent being Massimo v. United States, 463 F.2d 1171, 1174 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S. Ct. 920, 34 L.Ed.2d 700 (1973), as well as decisions of the Eighth Circuit, probably the Fifth Circuit, and at least five state courts. We are, of course, bound by the decisions of this circuit unless they cah be distinguished from the facts of this case — in terms of the warning itself. In Massimo v. United States, supra, this court held proper a warning which said that the defendant had the right to talk with a lawyer before questioning, to have a lawyer present during questioning, and that “We have no way of furnishing you a lawyer but one will be appointed for you, if and when you go to court.” 463 F.2d at 1173. The court, id., accepted the reasoning of the Fifth Circuit in United States v. Lacy, 446 F.2d 511, 513 (1971), that it is immaterial that an accused is told an attorney will be appointed later if he has first been informed that he has a right to counsel before answering any questions. In United States v. Carneglia, 468 F.2d 1084, 1090 (2d Cir. 1972), this court upheld a warning that advised the defendant “if he could not afford an attorney, why one would be appointed for him if and when he went to court.” This warning followed the statement that “he had the right to speak to an attorney before being questioned.” In United States v. Lamia, 429 F.2d 373, 375-376 (2d Cir.), cert. denied, 400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970), the appellant had been advised of his right to have counsel present during questioning and this court upheld the sufficiency of the warning “if he was not able to afford an attorney, an attorney would be appointed by the court.” Although the law among the circuits and numerous state courts is contradictory on this question, the Supreme Court, with only one Justice dissenting, recently declined to accept review of a case presenting this question. Wright v. North Carolina, cert. denied, 94 S.Ct. 1452 (1974) (Douglas, J., dissented with opinion from denial). The law in this circuit is, in any event, well settled and, absent en banc consideration, controls the disposition of this question against appellant. There is no substance to appellant’s second point on appeal- — -that there was no proof that the white powder found in appellant’s luggage was cocaine. Government counsel in opening stated there was a stipulation that if a chemist were called he would testify that the substance was in fact 12.7 pounds of cocaine with a purity of 15 per cent. Defense counsel in opening said he was not disputing that a laboratory analysis would show that the white powder was cocaine. In his summation, he referred again to this stipulation: “We stipulated — agreed with the Government — that if a chemist were called he would testify he has made an examination of the substance and found it to be a narcotic drug.” The charge of the court referred, without objection, to the stipulation “that the white substance taken from the suitcase is cocaine.” While better practice would be to adduce the stipulation itself, the comments in the record here amount to doing so for all practical purposes. See United States v. Rodriguez, 241 F.2d 463 (7th Cir. 1957); 9 J. Wigmore, Evidence § 2594 (3d ed. 1940). The trial court’s “conscious avoidance” charge. is said to be erroneous because it allegedly relieved the jury of the obligation of affirmatively finding knowledge. Almost exactly the same charge given at the trial of another case involving narcotics was considered before this panel on the same day and immediately prior to this one. United States v. Joly, 493 F.2d 672, 674-676 (2d Cir. 1974). In Joly, as here, it was argued that an inference of knowledge that naroctics were being transported is not possible where a number of equally supportable possibilities as to the contents of a container exist (jewelry, watches, gold, etc.). Joly upheld the charge on the basis that “the legitimacy of the basic inference of knowledge [from possession] does not automatically disappear because other evidence arguably points the opposite way.” Id. at 676. Here appellant was a longtime airline employee; the suitcases seemed unusually heavy to him by his own admission; he testified he was propositioned twice by Galardo, a fellow worker to take the suitcases to a hotel in New York; and according to his own story he was to receive $300 for delivering the suitcases to an unknown party in New York. These facts justify the charge as given by the trial court and sustained in United States v. Joly, supra. Judgment affirmed. . STATEMENT OF RIGHTS Before we ask you any questions, it is my duty to advise you of your rights. You have the right to remain silent. Anything you say can be used against you in court, or other proceedings. You have the right to consult an attorney before making any statement or answering any question, and you may have him present with you during questioning. You may have an attorney appointed by the U.S. Commissioner or the court to represent you if you cannot afford or otherwise obtain one. If you decide to answer questions now with or without a lawyer, you still have the right to stop the questioning at any time, or to stop the questioning for the purpose of consulting a lawyer. HOWEVER— You may waive the right to advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire. . Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972). . United States v. Garcia, 431 F.2d 134 (9th Cir. 1970). But see United States v. Noa, 443 F.2d 144 (9th Cir. 1971). . Coyote v. United States, 380 F.2d 305 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967). . Fendley v. United States, 384 F.2d 923 (5th Cir. 1970). But see case cited note 8 infra. . Square v. State, 283 Ala. 548, 219 So.2d 377 (1969); Moore v. State, 251 Ark. 436, 472 S.W.2d 940 (1971); State v. Grierson, 95 Idaho 155, 540 P.2d 1204 (1972) (dictum); State v. Carpenter, 211 Kan. 234, 505 P.2d 753 (1972); Scharr v. State, 499 P.2d 450 (Okl.Cr.App.1972); State v. Creach, 77 Wash.2d 194, 461 P.2d 329 (1969). . Klingler v. United States, 409 F.2d 299 (8th Cir. 1969). . United States v. Lacy, 446 F.2d 511 (5th Cir. 1971). Lacy contained no citation to Fendley v. United States, supra, a decision that it appears to have overruled sub silen-tio. . People v. Williams, 131 Ill.App. 149, 264 N.E.2d 901 (1970); Jones v. State, 253 Ind. 235, 252 N.E.2d 572 (1969); People v. Campbell, 26 Mich.App. 196, 182 N.W.2d 4 (1970), cert. denied, 401 U.S. 945, 91 S.Ct. 960, 28 L.Ed.2d 228 (1971); Evans v. State, 275 So.2d 83 (Miss.1973); People v. Swift, 32 App.Div.2d 183, 300 N.Y.S.2d 639 (1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 510 (1970). . If you find that the defendant did not learn what the substance was, but that the only reason he did not learn it was because he deliberately chose not to learn for the very purpose of being able to assert his ignorance if he was discovered with the substance in his possession, then you may find that he had the full equivalent of knowledge because his self-imposed ignorance cannot protect him from criminal responsibility. If however, you find that the defendant believed that what was in the suitcase was not cocaine or any other narcotic drug, then you must acquit the defendant on both counts. . The pertinent portion of the charge is as follows: In other words, you may find the defendant acted knowingly if you find that either he actually knew he had cocaine or that he deliberately closed his eyes to what he had every reason to believe was the fact. United States v. Joly, at 674. . Joly also disposes of the Government’s argument, made here as there in connection with the charge, that decisions affirmed from the bench may be used as precedents binding upon subsequent panels of the court. We follow Joly and treat them as of no such effect. 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_genresp2
G
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the 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. Richard D. AHRENS and Jeanne Ahrens, his wife, et al., Plaintiffs-Appellees, v. AMERICAN-CANADIAN BEAVER CO., Inc., a corporation, et al., Defendants-Appellants. No. 71-1562. United States Court of Appeals, Tenth Circuit. April 18, 1972. Rehearing Denied May 16, 1972. Everett E. Dahl, Midvale, Utah, for defendants-appellants. Alfred J. Schweppe, of Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, Seattle, Wash. (Richard C. Dibblee, of Rawlings, Roberts & Black, Salt Lake City, Utah, and Kenneth E. Rekow, of Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, Seattle, Wash., on the brief), for plaintiffs-appellees. Before CLARK, Associate Justice, and HILL and DOYLE, Circuit Judges. Associate Justice, United States Supreme Court, Retired, sitting by designation. . On this it was said: * * * The record contains many statements made by several salesmen employed by the defendants, or some of them, to sell the beaver contraéis. There is no question but that the salesmen were agents of their employers, and the plaintiffs were entitled to an instruction on the employers’ responsibility for such statements. It was error not to have instructed on this issue. 428 F.2d at 928. WILLIAM E. DOYLE, Circuit Judge. This action was brought pursuant to the Securities Exchange Act of 1934 and the Securities Act of 1933. The 1934 Act is 15 U.S.C. § 78j (b). The Act of 1933 is 15 U.S.C. § 77q(a). However, the case was tried and submitted to the jury under Rule 10B-5, promulgated pursuant to the 1934 Act. The security involved is a beaver investment contract which has heretofore been held to be a security by this court. This particular case has been appealed to this court once before. At the prior trial a jury verdict was in favor of the defendants, but was reversed because of the trial court’s action in submitting to the jury the question whether an investment contract was a security, and, secondly, because of errors in the trial court’s charge to the jury. On that appeal this court ruled that the investment contract in beavers was a security. The relief sought at the instant trial was rescission of amounts paid to the defendants, the jury again returning verdicts in favor of defendants. The trial court, which' had reserved its ruling on the plaintiffs’ motion for directed verdict, entered judgments in favor of each of the plaintiffs for judgment notwithstanding the verdict. The question before us is whether the trial court erred in granting the several judgments in favor of the plaintiffs notwithstanding the verdicts. In entering the judgments the trial court noted that the only questions reserved in the stipulated pretrial order were whether the defendants made or induced any sale of beaver to the plaintiffs; what misrepresentations of material fact were made; whether the plaintiffs relied on the misrepresentations ; and if there were such misrepresentations, when in point of time the defendants had knowledge or should have had knowledge of any such misrepresentations. The court concluded that the evidence was clear that the plaintiffs were victims of false representations and omissions in the purchase of their securities for which the defendants were responsible. •' The defendants against whom these judgments were entered were American-Canadian Beaver Co., Inc., a corporation, Ted L. Weaver, Mark L. Weaver and Van R. Weaver. The three individual defendants were members of the same family, Mark Weaver being the father and the other two being sons. Mark L. Weaver was the founder and leader of the enterprise and architect of the plan. There were several others named in the original suit, but these verdicts were not disturbed in the court’s order. At the trial the several plaintiffs testified and, in addition, called Van Renor Weaver as an adverse witness. The only witness on behalf of the defendants was the father, Mark L. Weaver, and due to the fact that his memory was short on details he contributed little. In addition, the record contains numerous exhibits, including correspondence and literature. The defendants operated a beaver ranching organization which included numerous ranches located in various places in the Western states. The literature represented this to be a livestock operation which would be conducted by the American-Canadian Beaver Co., Inc. The plan further called for the investors to own the livestock, which was identified as being the property of particular purchasers; the defendants would build up the herd over a period of years until such time as there were many thousand animals available for sale to the public for pelts and other by-products. From the literature it is also to be gleaned that the defendants had particular and secret expertise in domesticating, raising and caring' for these animals. It was represented from oral as well as written statements that: 1. The animals sold were derived from selected wild beaver which had in 1950 been purchased in Northern Canada and placed in pens in Squirrel Meadows, Wyoming. 2. The operation was a tax exempt cooperative. The tax advantages of livestock growing — this being a species of it — were also stressed. 3. Expressly and implicitly, the investments which were made in the live beaver would multiply in steady progression — this being due to diet plus ideal breeding environment. 4. Investors were guaranteed 100 percent cash return of investment plus four and one-half percent interest and replacement of casualties from death or other causes. Although specifically denied by defendants, the plan had a chain letter aspect in that the early investors could recover their investment because new purchasers were coming in. But as the demand for beaver contracts diminished, sale or return became more difficult. As a consequence, when the plaintiffs sought to recover their investments it became necessary to file actions in order to obtain a recovery. The plaintiffs became involved in the beaver business through various means, but ordinarily by salesmen for the Weaver organization. There followed from this a meeting with one or more of the Weavers. Sometimes this took place in the home of the particular plaintiff. Other times it would be at a meeting place at which a number of potential investors were present. At these meetings an expansive talk was given; it was represented that Mark Weaver and his sons had developed over a period of years great expertise in the handling and raising of beavers, and, in fact, were the only people in the world capable of raising beavers in captivity; that they had a special secret food formula which assured good reproduction; that their breeding methods had over a period of years produced particularly large beavers with excellent pelts; that there was a good resale market; and that each investor would always be able to get his money back if he wished since Mark Weaver controlled the market. Each plaintiff stated that he had examined the pamphlet which has been referred to here and which is marked Plaintiffs’ Exhibit No. 5. The evidence showed that many of the beavers were wild and had been newly introduced to the herd. The number was variously estimated as from 7,000 to 11,000. Some of the wild beavers were sold directly to investors. The cost price of wild beavers was from $80.00 per pair to $800.00 per pair, including license and transportation, but the plaintiffs paid $2,400.00 per pair. Evidence at the trial also established that the reproduction rate was far from the numbers represented. In fact, 66 percent of the beavers had no reproduction whatsoever. When the plaintiffs sought to sell their animals they discovered that there was no market from either the Weavers or the public. Some of the plaintiffs did not attempt to sell because it was clear from the experiences of others that it would have been a futile exercise. As observed, most of the evidence in the ease was unrefuted. No doubt it was this factor which moved the trial court to enter judgment notwithstanding the verdict. The basic issue which we are called upon to determine, then, is whether the evidence is overwhelmingly in favor of the plaintiffs and thus whether there can be but one reasonable conclusion as to a proper judgment. We are of the opinion that the trial court was correct in its ruling and that it would have been fully justified in granting plaintiffs’ motion for directed verdict at the conclusion of the evidence since the elements of the several claims are shown by the record to have been clearly and unequivocally established. A cause involving the Weavers first came before this court in 1967 in Continental Marketing Corp. v. S. E. C., 387 F.2d 466 (10th Cir. 1967). There the contention of the Weavers was that they had been engaged exclusively in the sale or brokerage of live beavers. The trial court had enjoined the defendants from selling investment contracts in violation of the Securities Exchange Act of 1934 and the Securities Act of 1933. The Continental Marketing Corp. was one of the Weavers’ business associations and had substantially the same people and the identical plan of operation as that before us here. Based on the decision of the Supreme Court in S. E. C. v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), this court ruled that the defendants were engaged in the sale of securities, and the fact that the underlying assets were beavers did not detract from the investment contracts being securities. It was said: In this setting we hold that the transactions in question involved the sale of investment contracts and therefore “securities” within the meaning of the applicable acts and apply, with approval of the High Court, “a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Howey, supra, 328 U.S. at 299, 66 S.Ct. at 1103. 387 F.2d at 471. More recently this court reviewed a judgment having to do with the identical parties and issues which are now before us in Ahrens v. American-Canadian Beaver Co., 428 F.2d 926 (10th Cir. 1970). In the course of that opinion remanding for a new trial the court referred to the representations of defendants relative to the market of beavers as breeding stock, the origin of the beavers sold, the reproduction rate and the care that would be given to them. The court also mentioned the fact that the Weavers had refused to repay the purchase price, and, further, it was ruled that the defendants were responsible for the statements of their agents. The Sixth Circuit in Kemmerer v. Weaver, 445 F.2d 76 (6th Cir. 1971), also had occasion to consider the question as to whether the defendants were controlling persons in that they controlled the sale of investment contracts and the management of the beavers. Mark L. Weaver, Ted L. Weaver and Van Weaver were involved in that suit also. In the course of its opinion upholding the plaintiff’s favorable judgment it was said: Instead of selling exclusively domestic beaver, defendants actually sold to plaintiffs and others, certain wild-trapped beaver which ranged in actual market value of from $20 to $75 each. Furthermore, there was no immediate market for resale as had been promised by defendants. Many purchasers were placed upon a one-year waiting list. 445 F.2d at 78. The unrefuted testimony in this case establishes that the defendants were using the mails or instrumentalities of interstate commerce in the sale of a security and, further, that they were making use of a manipulative or deceptive device. See Stevens v. Vowell, 343 F.2d 374 (10th Cir. 1965). It is clear beyond doubt that the plaintiffs believed that they were getting domesticated beaver, whereas in fact thousands of wild beaver were being introduced into the herd at large profit to the defendants. All of this was with full knowledge of the defendants. It is equally clear and un-refuted that the plaintiffs, notwithstanding guarantees contained in the literature, could not sell or otherwise recover their investments. Moreover, the evidence as a whole establishes that the pattern of this plan was one in which only the operators could profit, whereas the investors, particularly those coming in relatively late in the game, were doomed to suffer substantial loss. Thus, the evidence reveals the scheme or device to defraud as being based on pretense as to the source of the beavers, their value, and knowledge as to their productive qualities — knowledge which did not exist. The beavers were the lure, and the mystery surrounding their sex lives and habits was fully exploited in obtaining the plaintiffs’ money. We are mindful that the trial court should grant a judgment n. o. v. only in the clearest of eases. The court is bound to consider the evidence in a light most favorable to the party against whom the motion is directed, and if after a fair and impartial judgment it reaches different conclusions, such a judgment should not be entered. In order to support this action on the part of a trial court, the evidence must be overwhelmingly in favor of the party in whose favor the trial court enters it. Derr v. Safeway Stores, Inc., 404 F.2d 634 (10th Cir. 1968); Gulf Ins. Co. v. Kolob Corp., 404 F.2d 115 (10th Cir. 1968); C. H. Codding & Sons v. Armour & Co., 404 F.2d 1 (10th Cir. 1968); Chicago, Rock Island & Pacific Railway Co. v. Howell, 401 F.2d 752 (10th Cir. 1968); Kippen v. Jewkes, 258 F.2d 869 (10th Cir. 1958). See also 5A Moore’s Federal Practice § 50.07 [2] (1971 Ed.). The action of the trial court under these particular facts is fully understandable. The overwhelming weight of the evidence supported the conclusion that the plaintiffs were the victims of knowing deception and that the verdict was out of harmony with a great preponderance of the evidence. It would have been grossly unjust to have entered judgments on the verdicts. Finally, the defendants guaranteed that the plaintiffs could obtain a cash return of investment and, therefore, a judgment giving effect to this constitutes substantial justice. The judgment of the district court is affirmed. . Continental Marketing Corp. v. S.E.C., 387 F.2d 466 (10th Cir. 1967). . The amounts involved are as follows: To Richard D. Ahrens and Jeanne Ahrens $ 9,973.06. To James H. Evans and Della Evans 11,912.16 To W. M. Lennox and Emma Lennox 5,478.92 To Franklin E. Metz and Amy Metz 11,720.30 To Lloyd G. Thomas and Evelyn Thomas 13,428.10 To Melvin Winther 12,273.58 To A. E. Carlin and Violet M. Carlin 7,810.58 . Plaintiffs’ Exhibit PX 38, a letter from Ted Weaver to a salesman, Delmar Baker, evidences awareness of the falsity of the pretense that the animals being sold were domesticated: Dell, I think that you would do well to not mention to everyone that you sell that we add wild beaver to our stock unless they bring up the subject, and then I would not make a big issue of it but just explain the need for keeping the blood lines from getting to [sic] closely related. As we get more and more beaver, we will naturally want to cut out all such additions. We both know that the reason they would ask at all is their worry that we might buy wild beaver and sell them to them at a profit. Also they need reassuring that other owners are able to sell their young that they raise; therefore, it is well to answer that the beaver being sold now are those sold off by other owners who have raised them and are now beginning to take some of their money out. 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:
sc_petitioner
029
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. GOODING v. UNITED STATES No. 72-6902. Argued February 25, 1974 Decided April 29, 1974 Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 459. Marshall, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 461. Herbert A. Rosenthal, by appointment of the Court, 414 U. S. 998, argued the cause and filed briefs for petitioner. Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Edward R. Korman, and Jerome M. Feit. Mr. Justice Rehnquist delivered the opinion of 1he Court. Petitioner in this case presents a claim that evidence offered against him at his trial should have been suppressed because it was seized at nighttime in violation of governing statutory provisions. The search which led to the seizure was conducted by officers of the District of Columbia Metropolitan Police Department at approximately 9:30 p. m. within the District of Columbia. Armed.with a search warrant, the officers entered petitioner’s apartmertt for the purpose of discovering violations of a federal narcotics statute, and seized a substantial amount of contraband narcotics. The parties urge upon us differing theories concerning which federal or District of Columbia statute bears on the legality of this search, and we must therefore interpret and reconcile several recent congressional enactments dealing with nighttime searches which seem to embody somewhat inconsistent views. The Court of Appeals agreed with the District Court’s description of this congeries of statutes as a “ ‘bramble-bush of uncertainties and contradictions,’ ” and a mere summary of the statutes attests to the accuracy of that observation: District of Columbia Statutes: The older of the two, conceivably relevant District of Columbia statutes, D-. C. Code § 33-414 (1973), was enacted in 1956 and authorizes search warrants for violations of the District of Columbia narcotics laws. This section does not limit the time during which searches may be made,- stating plainly that “[t]he judge or commissioner shall insert a direction in the- warrant that it may be served, at any time in the day or- night.” This liberal time provision is in direct contrast to the more restrictive provisions of the second District of Columbia statute to be considered, D. C. Code § 23-521 (f)(5), which specifically requires that search-warrants be served in the daytime unless certain conditions set forth in § 23-522 (c)(1) are met. These conditions essentially require a showing of special need to search at night, and concededly have not been satisfied in this case. Federal Statutes and Rules: The general provision governing federal search warrants is found in Fed. Rule Grim. Proc. 41. At the time the search in this case took place, Rule 41 (c) provided that warrants must be served in the daytime except where “the affidavits are positive that the property is on the person or in the place to be searched.” In such event the warrant could direct “that it be served at any time.” This provision was incorporated in the Rules in 1948 as a replacement for language previously contained in the Espionage Act of 1917. A second federal statute relating only to searches for “controlled substances” is found in 21 U. S. C. §879 (a), which was enacted in 1970. That section 'provides that a' warrant may-.be served “at any time of the day or night” so long as the issuing authority “is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.”'This provision in turn is the successor to a provision in 18 U. S. C. § 1405 (1964 ed.), enacted in 1956 to relax the “positivity” test of Rule 41 in cases involving certain narcotic drugs. ■ Congress had passed this statute in response to the complaints of law' enforcement officers that the positivity requirement gave commercial narcotics dealers a definite’ ¿d vantage over federal agents. Rule 41 is therefore not applicable to searches governed by the more specific narcotic search statutes. Tbie facts of this case must be understood in the context of thes'e statutes. On February 11, 1971, an Assistant United States Attorney applied to a United States Magistrate sitting in the District of Columbia for a warrant authorizing a search of petitioner’s apartment for evidence of illegal narcotics. The application included the brief notation: “Violation: U. S. Cr; Title 26. Sections: 4704a.” In connection with the application., an officer of the Metropolitan Police Department vice squad appeared before the Magistrate and swore that he had reason to believe petitioner was concealing property held in violation of 'that same cocte provision. The officer supplemented his personal testimony with a written affidavit, outlining the basis for the application in more detail and alleging specifically that “illegal drugs are sold and possessed in violation of the United States Code, Title 26,. Section 4704a.” The affidavit concluded with the language: “I am positive that Lonnie Gooding is secreting narcotics inside his apartment at 1419 Chapin Street NW in violation of the US Code.” The Magistrate then issued a warrant directing the Chief of Police or “any member of MPDC” to search petitioner’s apartment. The warrant specifically noted that facts had been set forth in ah affidavit alleging a violation of 26 U. S. C. § 4704 (a) (1964 ed.) and that those facts established probable cause to make the search. The warrant also stated that the search could be made “at any time in the day or night.” • This phrase was accompanied by a footnote reference to Fed. Rule Crim. Proc. 41 (c), presumably because-the police officer had asserted he was “positive” the drugs were in petitioner’s apartment. One of the briefs filed in this case suggests that the warrant form was preprinted and contemplated application of Rule 41 standards. The search warrant was executed on February 12, 1971, at 9:30 p. m. The officers engaged in the search were all members- of the District of Columbia Metropolitan Police Department, and the search uncovered a substantial quantity of contraband narcotic materials. They were seized and formed the basis for charging petitioner with violations of 26 U. S. C. § 4704 (a) (1964 ed.) and 21 U. S. C. § 174 (1964 ed.). Following his indictment in the United States District Court for the District of Columbia on April 6, 1971, petitioner filed a.motion to suppress the evidence discovered in the February 12 search. . Several grounds were asserted in support of the motion, particularly that “[t]he search warrant was executed at night but the application for the warrant did not comply with the D. C. Code provisions for nighttime search warrants... Although no provisions of the D. C. Code were' explicitly referred to, petitioner’s argument apparently was that Title 23 of the D. C. Code, requiring that a special showing of need be made to justify a search at night, governed this search, and that its requirements had not been met. The District Court found this reasoning persuasive and granted the motion to suppress. Rejecting the Government’s argument that the warrant was not issued under Title 23 but rather under 21 U. S. C. § 879 (a), the court stated: “Whatever be the standards generally for issuance of a nighttime search warrant in federal narcotics cases in other parts of the country, however, the Court finds that the existence of 21 U. S. C. § 879 (a) does not remove such cases from the explicit requirements for' search warrants in the District of Columbia under the newly enacted Title 23, D. C. Code.” Having decided that District of Columbia law applied, the District Court admitted to some uncertainty about the status of D. C. Code § 33-414, the provision dealing specifically with violations of local drug laws. The court noted with some puzzlement that no mention of this provision was found in the legislative history of Title 23, and that some language in the legislative history suggested that the provisión had simply been overlooked. Nevertheless, the court determined that “[p] ending prompt review of this determination or congressional action, and-pending interpretation of 33 D. C. Code § 414 (h) in light of the new Title 23 provisions, search warrants which are to be-executed in the nighttime should comply in all respects with 23 D. C. Code § 523 (b).” Concededly the warrant issued in this case did not comply with the requirements of Title 23. The Court of Appeals for the District of Columbia Circuit reversed the District Court, although none of the three judges who composed the panel completely agreed with any other ón the proper rationale. All three agreed,'however, that 21 U. S. C. § 879 (a), rather than any provision of the District of Columbia Code, was the provision which determined the legality of this search. All three likewise agreed that the affidavit submitted by the District of Columbia police officer satisfied the requirements of that section. Judge Wilkey and Judge Fahy found that no greater showing for a nighttime search was required by § 879 (a) than was required by its predecessor statute governing federal narcotics searches, 18 U. S. C. 1:1405 (1964 ed.), and that the affidavit need establish only probable cause to believe that the-property would be on the premises at the time of the search Judge Robinson believed that § 879 (a) did require an additional showing for a nighttime search, but concluded that such a showing had been made in this case: • Petitioner urges that we reverse the Court of Appeals on either or both of two alternative grounds. First, petitioner repeats his assertion, sustained by the District Court, that Title 23 of the D. C. Code is the statute applicable, to the search in this case and that, as the Government has conceded, the requirements of that title have not been satisfied. Second, petitioner argues that, if 21 U. S. C. § 879 (a) is considered to be the applicable provision, a special showing for nighttime searches must be made. We agree with the Court of Appeals that 21 U. S. C. § 879 (a) is the statute applicable to this case, and that its provisions have been satisfied-here. I The unique situation of the District of Columbia, for.which Congress legislates both specially. and as a part of the Nation, gives rise to the principal difficulties in this case. For we deal here not with statutory schemes enacted by independent legislative bodies, but with possibly overlapping schemes enacted by a single body. Despite the potential overlap, however, we think that the operative facts surrounding this search. strongly indicate that the standards for.issuance of a warrant should be governed by the nationwide federal legislation enacted by Congress — that is, 21 U. S. C. § 879 (a) — rather than by the local D. C. laws. To begin with, an Assistant United States Attorney, who had discretion to proceed either under federal or under local law, filed the application for the search warrant alleging a violation of the United States Code. Application was made to a United States Magistrate, located in the United States District Court building, and neither the application nor the supporting affidavits contained any mention of the local narcotics laws. After the materials were seized, petitioner was indicted for violations of federal law. Petitioner contends, however, that Title 23 of the D. C. Code should apply to this case because the executing officers, as well as the officer swearing to the affidavit presented to the Magistrate, were not federal officers but officers of the District of Columbia Metropolitan Police Department. He argues that the provisions of 21 U. S. C. § 8.79 (a) were intended to apply solely to agents of the Bureau of Narcotics and'Dangerous Drugs, none of whom were involved here, whereas Title 23 of the D. C. Code was intended to provide comprehensive regulation of District of Columbia police officers investigating both local and' federal offenses. Petitioner reinforces his argument by noting that the former federal statute regulating drug searches specifically provided that “a search warrant may be directed to any officer of the Metropolitan Police of the District of Columbia authorized to enforce or assist in enforcing a violation of any of such provisions,” while no such section appears in' 21 U. S. ’ C. § 879. Therefore, says petitioner, the District of Columbia police’ were no longer to be considered federal agents for the purpose of enforcing federal drug laws. Although petitioner’s arguments cannot be dismissed lightly, we find them ultimately unpersuasive.’. Coricededly there are hints in the statutory framework and legislative history of the Controlled Substances Act, 84 Stat. 1242, that indicate the policing function under those provisions would-be the primary responsibility of the Bureau of Narcotics and Dangerous Drugs. But this focus on the Bureau’s role seems entirely natural in view of one of the Act’s stated purposes to “collect the diverse drug control and enforcement laws under one piece of legislation to facilitate law enforcement; drug research, educational and related control facilities.” In providing a comprehensive federal scheme for the control of drug abuse, Congress could be expected to pay special attention to the federé! agency set up to enforce the laws. But this attention does not mean that Congress at the same time wished to dispense with the aid of other enforcement personnel who had previously given assistance. . The failure of Congress to include a special provision authorizing District of Columbia police officers to obtain search warrants for investigating federal offenses cannot be taken as a deliberate exclusion in view of.the overall statutory framework. The provision included in the previous federal statute may well have seemed unnecessary, both in light of the history of cooperation between the District of Columbia police.and federal officers and in view of the provisions of D. C. Code § 4r-138 providing that “[a]ny warrant for search or arrest, issued by any magistrate of- the District, may be executed in any part of the District by any member of the police force....” Thus, both custom and statute already assured the availability of District of Columbia police. Furthermore, the legislative history relating to § 879 (a) stresses the need for stronger enforcement of the federal narcotics laws, a. goal hardly advanced by reducing the forces available to.execute those laws. In fact, the provision which is now § 879 (b), permitting “no-knock” searches under certain conditions, was one of the most controversial sections of the entire bill, and was defended primarily by the pressing need for added enforcement weapons to combat the increased drug traffic. Finally, the interpretation urged by petitioner would leave District of Columbia officers able to execute general federal search warrants under amended Fed. 'Rule Crim. Proc. 41, but would deny them that authority under the federal drug search statute.'Rule 41 now pro: vides that “a federal law enforcement officer” — defined in the Rule to include “any category of officers authorized by the Attorney General to request the issuance of a search warrant” — may make applications under the Rule. The Attorney General has since listed the Metropolitan Police Department ahiong those agencies which are so authorized. If petitioner’s contention were accepted, it would seemingly mean that the general search warrant statute applicable to the District of Columbia would govern District of Columbia police officers investigating federal drug cases, but would not govern them when investigating other federal crimes.. This result would obtain despite the fact that District of Columbia police officers historically played a prominent role in the enforcement of federal drug laws under 18 U. S. C. § 1405 (1964 ed.). There is little indication that Title 23 of the D. C. Code was intended to serve the sweeping purpose which petitioner attributes to it. The search warrant provisions upon which petitioner relies were part of the Court Reform and Criminal Procedure Act, which substantially reorganized the District of Columbia court system, providing for a new local court of general jurisdiction and relieving the United States District Court for the District of Columbia of much of its local burden. Prior to that time all local felonies had been tried in the United States District Court, and the Federal Rules of Criminal Procedure by their terms had applied. The creation of the new Superior Court created the need for a new set of procedural rules, and, though some important changes were made, the new rules quite closely tracked the Federal Rules. It does not seem unreasonable, therefore, to suggest that the general provision relating to search warrants, found in D. C.^Code § 23-521 et seq. and then incorporated in similar form into the rules promulgated Feb. 1, 1971, for the new Superior Court, was intended to be a counterpart to Fed. Rule Crim. Proc. 41. The Federal Rule; as discussed infra, did - not apply to narcotics cases in the federal courts since more specific provisions, first those of 18 U. S. C. § 1405 (1964 ed.) and then, those of 21 U. S. C. § 879 (a), controlled. This conclusion is reinforced by the fact that Federal Rule 41 has been subsequently modified to more closely resemble the District of Columbia statute and rule. The new Federal Rule, though less specific than the local rule, provides that a search warrant must be served in the daytime, “unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime,’.’ and abandons the old, cumbersome positivity standard. The concern for individual privacy revealed in the provisions of the District of Columbia search statute may thus be found in the new Federal Jtule as well, but Congress’ as it had in the earlier version of the Rule, nevertheless showed its clear intention to leave intact other special search warrant provisions, including, of course, the provisions relating to searches for controlled substances. In those limited cases Congress has considered the need for privacy to be counterbalanced by the public need for more effective law enforcement. We do not believe that Congress, by enacting a general search warrant provision for the District of Columbia, has struck a different balance in federal drug cases simply because District of Columbia police officers are involved. . We therefore conclude, as did all the judges of the Court of Appeals, that the statute applicable to this case is 21 U. S. C. § 879 (a). Our remaining task is to determine whether the requirements of that section have been met. IX .“A search warrant relating to offenses involving controlled substances may be served at any time of the day. or night if the judge or United States magistrate issuing, the warrant is satisfied that there is probable cause' to believe that grounds exist for the warrant and for its service at such time.” 21 U. S. C. § 879 (a). Only the last seven words of the statute are really in controversy. here.. Petitioner contends that this language, not found in the predecessor statute, 18 U. S. C. § 1405 (1964 ed.), was intended to require some special showing of need for searches conducted at night rather than during the day. His contention was adopted, at least in part, by Judge Robinson in the Court of Appeals. The Government, on the other hand, contends that it must show only probable 'cause to believe that the sought-after property will be on the premises at the.time of the search, and that if there is probable cause to believe the property will' be on the premises at night, such a showing sufficiently meets the requirement imposed by the last seven words of § 879 (a). The language of the statute by itself is not crystal clear on this issue. Petitioner insists- that the last phrase requires with unmistakable clarity a separate finding of probable cause to justify a nighttime search. Thus, according to petitioner, the issuing magistrate would have to satisfy himself that there was not only probable cause for the search, but also probable cause for believing that the search should be conducted at nighttime rather than during the daytime. While this is a possible meaning, it is by no means the only possible meaning attributable to the words. Petitioner’s interpretation really assumes that the statute reads: “There is probable cause to believe that grounds exist for the warrant and, if served at night, for its service at such time.” But the statute does not include the italicizéd four words; it makes no distinction whatever between day and night, and literally read would apparently require that a special showing be made for a daytime search as well. The idea that a particularized showing must be made for searches in the daytime is completely novel and lacks even a single counterpart in other search statutes enacted by Congress. Petitioner suggests that since Congress was concerned about the greater intrusion resulting from nighttime searches, it would be logical to apply the language, “probable’ cause... for its service at such time,” only to nighttime searches. But even this interpretation, which is by no means a literal reading of the language, is not wholly convincing. -The'traditional limitation placed on nighttime searches, as evident from the earlier language of Rule 41, is to require, not that there be probable' caüse for searching at night, but that the affiant be positive that the property is in fact located on the property to be searched- Thus Congress’ very choice of the words “probable cause” would indicate that the earlier limitation of “positivity” was not to apply, while offering no other immediately ascertainable standard fon what should constitute “probable cause” for executing a search warrant during the night. This roundabout way of limiting nighttime searches, if that were in fact the statute’s intent, would sharply contrast with the manner in which Congress has required special showings for nighttime searches in other statutes. For example, Title 23 of the D. C. Code, discussed supra, specifies that the warrant “be executed during the hours of daylight” (emphasis added) unless certain itemized conditions are met. Federal Rule Crim. Proc. 41, as amended in 1972, states: “The warrant shall be served in the daytime unless the issuing authority, • by appropriate provision in the warrant, and for reasonable cause ■ shown, authorizes its execution at times other than daytime.” (Emphasis added.) The fact that Congress, when it has intended to require such special showings for nighttime searches, has done so in language largely free from ambiguity militates against petitioner’s assertion that the language, of § 879 (a) on its face supports his position. ■ The legislative history lends no support to petitioner’s interpretation, but in fact cuts the other way.- ■ Both the House and the Senate Committee Reports on the bill incorporated a summary prepared by the Department. of Justice, where much of the -bill’s drafting had taken places which stated: “Section 702 (a) [now § 879 (a)] incorporates.18 U. S. C. [§] 1405 and authorizes service of a. search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U. S. magistrate issuing the warrant.” As previously noted, § 1405 provided that a search warrant could be served at any time of the day or night so long as the issuing officer was “satisfied that there is probable cause to believe that the grounds for the-application exist....” Case law had uniformly interpreted the language to mean 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_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 McCOMB, Administrator of Wage and Hour Division, U. S. Department of Labor, v. WYANDOTTE FURNITURE CO. No. 13674. Circuit Court of Appeals Eighth Circuit. Aug. 28, 1948. John A. Weiss, Atty., Department of Labor, of Kansas City, Mo., and Frederick U. Reel, Atty., Department of Labor, of Washington, D. C. (William S. Tyson, Sol., Bessie Margolin, Asst. Sol., and Helen Grundstein, Atty., Department of Labor, all of Washington D. C., and Reid Williams, Regional Atty., Department of Labor, of Kansas City, Mo., on the brief), for appellant. W. Raleigh Gough, of Kansas City, Mo. (W. F. Wilkinson, of Kansas City, Mo., on the brief), for appellee. Before SANBORN, JOHNSEN, and COLLET, Circuit Judges. JOHNSEN, Circuit Judge. Wyandotte Furniture Company operates five retail furniture stores. Two are located in Kansas City, Missouri, one in Independence, Missouri, one in Jefferson City, Missouri, and the other in Kansas City, Kansas. The Company also maintains two warehouses for the purpose of keeping its stores supplied with merchandise. Both are located in Kansas City, Missouri. All the stores get goods regularly from the warehouses, as often at least as once a week. The warehouses have a single set of employees, consisting of five workmen and a foreman. Over 70 per cent of the goods received and handled at the warehouses comes directly from without the State of Missouri, and more than one-fourth thereof is distributed from the warehouses to the store located in Kansas City, Kansas. The Company maintains a central office in a rear room of one of the Kansas City, Missouri, stores, and a bookkeeper there keeps the records on all purchases made of goods, their receipt by the warehouses, and their transfer from the warehouses to the various stores. The Administrator of the Wage and Hour Division brought suit to enjoin the Company from violating the overtime and record-keeping requirements of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (2) and (a) (5), as to the five warehouse workmen and the bookkeeper referred to above. The trial court denied an injunction and dismissed the complaint, Walling v. Wyandotte Furniture Co., D.C.W.D.Mo., 72 F.Supp. 98, and the Administrator has appealed. The duties of the warehouse workmen, as set out in the court’s findings, consisted in moving the goods into the warehouses from the platform, to which they were hauled from the freight cars by commercial trucking firms; in uncrating the goods; in assembling such goods as came “knocked down”; in repairing any minor damages to the goods that had occurred in transit; in placing the goods in their respectively allotted spaces in the warehouses; and in collecting and taking such part of the goods to the warehouse platform as from time to time was to be transferred to each of the various stores. The trial court held that all of the goods “came to rest at the warehouse” and were thereby “taken out of commerce”; that in none of their tasks were the employees involved “engaged in commerce or in the production of goods for commerce,” except in “preparing for delivery the part of such goods transferred to Kansas and the keeping of records pertaining thereto”; that the latter tasks could not be said to constitute a substantial part of the work of these employees and therefore might be ignored; that furthermore all of the five stores constituted but a single enterprise, with the warehouses as incidents or adjuncts of the enterprise, and the whole thereof represented together a retail establishment, which was within the exemption of section 13(a) (2), 29 U.S.C.A. § 213(a) (2); that, even if the five stores should be regarded as separate establishments, the two warehouses [one of which was situated in the same block as the Company’s principal Kansas City, Missouri, store, with the back ends of the buildings opposite each other on a public alley, with their rear doors directly across from each other, and with the second floors of the two buildings connected by a passageway over the alley; and the other of which was situated across the street from the first warehouse, in the next block, but was not in any way physically connected with either of the other two buildings] would still constitute a retail establishment in relation to and as a part of the Company’s principal Kansas City, Missouri, store; and finally that “This suit is a moot case * * * for the reason that, at the time of filing this suit, defendant was not violating any of the provisions of the Act * * We think the court erred in these conclusions and in its dismissal of the suit on the basis thereof. Goods purchased by a chain store system outside the state, as intended stock for its various stores, are not taken out of the stream of commerce by being sent temporarily -to a warehouse, as a means of facilitating their systematic distribution to the several stores in accordance with regular needs. See Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 339, 340; Beggs v. Kroger Co., 8 Cir., 167 F.2d 700, 703; Mid-Continent Petroleum Corporation v. Keen, 8 Cir., 157 F.2d 310; Walling v. American Stores Co., 3 Cir., 133 F.2d 840, 845, 846; Walling v. Goldblatt Bros., 7 Cir., 152 F.2d 475; Montgomery Ward & Co. v. Antis, 6 Cir., 158 F.2d 948, 951. All the merchandise of the warehouses, when it began its interstate journey, was destined, and only destined, as goods for th.e retail stores of the chain, and the warehouses were simply an instrumentality adopted by the Company, as a regular process, for economically and conveniently achieving that result. Cf. Beggs v. Kroger Co., supra, 8 Cir., 167 F.2d 700, 703. As the Supreme Court said in Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460, “if the halt in the movement of the goods is a convenient intermediate step in the process of getting them to their final destination, they remain ‘in commerce’ until they reach those points.” In this connection, it must be borne in mind that the purchase of a supply of goods by a chain store system for its established retail stores and the handling of the distribution of such goods regularly to the stores through a warehouse system do not have an identicalness with all the aspects of an independent wholesaling business. Thus, as pointed out in the Jacksonville Paper Co. case, an independent wholesaler may order goods for general wholesaling purposes, which have such an uncertainty of any immediate destination, and some of which may never in fact get out of the wholesale house at all, that they are lacking in “that practical continuity in transit necessary to keep a movement of goods ‘in commerce’ within the meaning of the Act,” and so must be regarded as having “come to rest” in the wholesale house. 317 U.S. at page 570, 63 S.Ct. at page 336. On the basis of what we have said, it could not properly be held that the warehouse workmen in the present situation were not engaged in commerce. But apart from this general aspect, the warehouse workmen and the bookkeeper were in any event, as the trial court recognized, “engaged in commerce or in the production of goods for commerce” in their duties of “preparing for delivery the part of such goods transferred to Kansas and the keeping of records pertaining thereto.” And in its proper perspective, even this work could not, as the trial court seemed to think, be regarded as so unsubstantial in amount as to be entitled to be ignored. Over one-fourth of all the goods received at the warehouses was, as we have indicated, distributed to the Kansas store. The work of the warehouse employees in relation to these goods could not be measured in terms of simply wheeling them to the platform to be hauled away, as the court appears to have done. As the goods went to the Kansas store, all the work done by the warehouse workmen on them (moving them in, uncrating them, setting them up, repairing them, putting them in their proper space, taking them out to the platform, and any other handling) necessarily had an economic significance in relation to their being made a part of the stock of the Kansas store and plainly constituted the production of goods for commerce within the definition of section 3(j) of the Act, 29 U.S.C.A. § 203(j). Cf. Hertz Drivurself Stations v. United States, 8 Cir., 150 F.2d 923, 926; Walling v. Friend, 8 Cir., 156 F.2d 429, 430, 431; Meeker Cooperative Light & Power Ass’n v. Phillips, 8 Cir., 158 F.2d 698, 699. Thus viewed, the activities of the warehouse workmen in handling more than one-fourth of the goods of the warehouses for the Kansas store could not be said to be unsubstantial. Nor could the work of the bookkeeper covered by the Act be regarded as unsubstantial, when the record-keeping task was considered in relation to the purchase, receipt and transfer of all the interstate goods, and such goods were viewed as being still in commerce until they came to rest in the several stores. The trial court also clearly erred in its view that the five stores and the warehouses could be regarded as constituting together one retail establishment for purposes of the exemption of section 13 (a) (2) of the Act, 29 U.S.C.A. § 213(a) (2). The term “retail establishment,” as used in that section, means “a distinct physical place of business,” and each store of a chain store system therefore must be viewed as a separate establishment. A. H. Phillips, Inc., v. Walling, 324 U.S. 490, 496, 65 S.Ct. 807, 810, 89 L.Ed 1095, 157 A.L.R. 876. Nor could the warehouses here, in their function of receiving goods for and distributing them to the Company’s various stores, be held to be within the exemption of the specific retail store near which they were located and which was in fact directly connected to one of the warehouses by a passageway over an alley. Id., and see also Fred Wolferman, Inc., v. Gustafson, 8 Cir., 169 F.2d 759, this date decided; Walling v. Goldblatt Bros., 7 Cir., 152 F.2d 475. Nor would the fact that part of the space in the warehouse was used as a display section by this store for some of its goods bring the warehouse workmen within the exemption of the store, in their tasks of performing the function of the warehouses in receiving and distributing goods generally to the various stores. And the fact that customers of the retail store were sometimes taken over to the warehouse by clerks of the store and permitted to make a selection from the warehouse floor similarly would not bring the general receiving and distributing functions of the warehouses for the chain store system within the exemption of the single store. ¡The trial court was in error too in holding that the fact that the Company was not violating the Act at the time the suit was filed would render the question of the Administrator’s right to an injunction moot. The mere cessation of a violation does not render such a case moot. Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 89 L.Ed. 29; Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, 334, 335. In the present situation, the Company had at all times asserted and still asserts that it is not subject to the provisions of the Act. It admits that, in presently making payment of overtime compensation to its warehouse workmen on the basis provided in the Act, it is doing so solely because of a union contract made with its employees through collective bargaining. It undertakes to give no assurance of what it will do on the expiration of the contract. And as a matter of fact, while the court held that the Company was no longer violating the Act, the record shows only that it is making payment of proper overtime compensation to its warehouse workmen. There is no showing that violations have ceased with respect to the bookkeeper in the central office. Where the legality of an employer’s previous acts remains in controversy under the Fair Labor Standards Act, the Administrator ordinarily should be granted an injunction, even though the employer has ceased the violation, unless the trial court soundly is convinced from the situation that there is no reasonable probability of a recurrence of the acts. And where a violation still persists at the time of the trial and is not inadvertent, an injunction clearly should be granted. The judgment is reversed and the cause is remanded for further proceedings. The Administrator contended in the trial court that the warehouse foreman and the treasurer of the Company also were within the Act, but on the appeal he has limited his contention to the five warehouse workmen and the bookkeeper. 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_typeiss
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups. UNITED STATES of America, Plaintiff-Appellee, v. Martin James MALONEY, Defendant-Appellant. No. 77-3835. United States Court of Appeals, Ninth Circuit. July 18, 1979. Rehearing Denied Nov. 9, 1979. Tom O’Toole, Federal Public Defender, David M. Heller, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant. W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., A. Bates Butler, III, 1st Asst. U. S. Atty., Jon R. Cooper, U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Before BARNES and HUG, Circuit Judges, and CURTIS, District Judge. The Honorable Jesse W. Curtis, United States fomia, sitting by designation. District Judge for the Central District of Cali- BARNES, Circuit Judge: Appellant Maloney, a Navajo Indian, was found guilty of violating 18 U.S.C. §§ 1153 and 661 for taking $1,797 from Mrs. McCray, also a Navajo Indian, while on an Indian reservation. The sole issue raised on appeal is whether the district court erred in refusing to instruct the jury that they had to find that the appellant intended to permanently deprive Mrs. McCray of the money before they could find him guilty as charged in the indictment. Three concomitant questions arise from the consideration of that issue in the present appeal: (1) whether the offense of larceny is “defined and punished” by federal law as required in 18 U.S.C. § 1153, (2) whether the term “larceny” as used in 18 U.S.C. § 1153 is limited to its common law definition, and (3) whether the offense of larceny, if defined in the federal statute at issue here (18 U.S.C. § 661), incorporates the common law elements of the offense so as to necessitate a showing of an intent to permanently deprive the owner of his property. I. FACTS On July 9, 1977, Maloney visited Mrs. McCray at her home located within an Indian reservation in Arizona. During the course of the visit while Mrs. McCray was away from the room, Maloney found and took a bundle of money from underneath a coffee table, said money being revenue from a service station owned by Mrs. McCray. Shortly afterward, he wrote down her telephone number and left. The following day, Mrs. McCray discovered that the money was missing. After failing to locate appellant’s home telephone number, she called his place of work and spoke to his supervisor, Sergeant Hale. Mrs. McCray later testified that she did not want the matter to go any further and merely told Sergeant Hale to tell Maloney to come out to see her and to return the money if he had it. On July 12, 1977, Maloney was questioned by the Internal Affairs Division of his department and denied taking the money. He was instructed not to contact Mrs. McCray until the internal investigation was completed. On July 15, 1977, Maloney was again interviewed during which time he admitted taking the money. On July 20, 1977, he repaid Mrs. McCray the amount he had taken plus a small additional sum for her inconvenience. Subsequently, the Federal Bureau of Investigation became involved and an indictment was returned against the appellant. At the trial, one of the key defense arguments was that Maloney had not intended to permanently deprive Mrs. McCray of the money. The district court judge refused to give Defendant’s Jury Instruction No. 1 on the grounds that it would require a finding of such an intent, whereas 18 U.S.C. § 661, which was held by the district court to define a federal crime of larceny, would not require that finding. Timely objection was made by the defense. The jury found the appellant guilty and he received a probationary sentence. II. DISCUSSION A. Is larceny “defined and punished” by 18 U.S.C. § 661? Certain offenses committed by one Indian against another within Indian eountry are expressly placed within the jurisdiction of the federal courts. 18 U.S.C. § 1153 provides in relevant part: Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnaping, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. To determine the necessary elements of any one of the offenses listed in the statute, with the exception of burglary and incest, one must initially turn to a specific federal statute which “defines and punishes” that crime or, if no federal law has been enacted covering the offense, to the laws of the state wherein the crime was committed. As stated in 18 U.S.C. § 1153: In addition to the offenses of burglary and incest, any other of the above offenses which are not defined and punished by Federal law in force within the exclusive jurisdiction of the United States shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense. In the present case, appellant was indicted for an offense which was larcenous in nature. 18 U.S.C. § 661 was used by the government to satisfy the 18 U.S.C. § 1153 requirement of a federal statute which “defines and punishes” the crime of larceny. However, because 18 U.S.C. § 661 does not directly state that it defines the offense of larceny and because the word “larceny” is not referred to in the language of the statute, a question is raised as to whether the statute does indeed define and punish the crime of larceny. 18 U.S.C. § 661 provides in relevant part: Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows: If the property taken is of a value exceeding $100, or is taken from the person of another, by a fine of not more than $5,000, or imprisonment for not more than five years, or both; in all other cases, by a fine of not more than $1,000 or by imprisonment not more than one year, or both. 18 U.S.C. § 661 is based upon title 18, U.S.C. 1940 ed., § 466 (March 4, 1909, ch. 321, § 287, 35 Stat. 1144) (“Section 466”) with some minor changes. It is clear from the legislative history of Section 466 that Congress intended to enact a statute to deal with the crime of larceny. In the Senate debates after the proposed statute was read, the following exchange between Senators Kean and Heyburn occurred: MR. KEAN. Will the Senator explain the last section read? MR. HEYBURN. I will do so. This section conforms to the law of the large majority of the States in dividing larceny into two classes and grading the punishment accordingly. The amendments, I think, are self-explanatory. ****** I do not know that any further explanation could be made. It is a section which deals with existing law. It is based upon an existing statute which provides for the punishment of some offenses, except that it makes no distinction between a very grave offense and a more moderate form of the offense. 43 Cong. Rec. 1191 (1908). Section 466 was derived from the Crimes Act of 1790, Act of April 30, 1790, ch. 9, § 16, 1 Stat. 116, which was directed to larceny as well as certain other offenses. See United States v. Armata, 193 F.Supp. 624, 626 (D.Mass.1961). All of the courts which have considered the question have concluded that the offense defined in 18 U.S.C. § 661 is larceny. Many of these cases admittedly deal with the issue only in terms of dicta. See United States v. Sharpnack, 355 U.S. 286, 289 n. 5, 78 S.Ct. 291, 294, 2 L.Ed.2d 282 (1958)—(“... the following offenses committed within federal enclaves are now made criminal by such enactments of Congress:... larceny, 18 U.S.C. § 661..”); United States v. Francisco, 536 F.2d 1293, 1295 (9th Cir.), cert. denied, 429 U.S. 942, 97 S.Ct. 360, 50 L.Ed.2d 312 (1976)—(“The definition and penalties for the specified crimes of murder, manslaughter, carnal knowledge of a female under the age of sixteen years, assault with intent to kill, arson, robbery and larceny are found in various sections of Title 18. See 18 U.S.C. §§ 1111, 1112, 2032, 113, 81, 2111 and 661, respectively.”); accord, Acunia v. United States, 404 F.2d 140, 142 (9th Cir. 1968). Likewise, other courts have merely treated the proposition that 18 U.S.C. § 661 delineates a federal crime of larceny as an accepted tenet and proceeded to deal with related issues. See e. g., United States v. Belt, 516 F.2d 873 (8th Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 790, 46 L.Ed.2d 646 (1976)—(whether larceny is a lesser included offense of the crime of robbery); United States v. Bryant, 454 F.2d 248 (4th Cir. 1972)—(whether valuation of stolen goods need be proved by the government). However, there is a line of cases which specifically holds that larceny is defined by 18 U.S.C. § 661. Quinn v. United States, 499 F.2d 794, 796 (8th Cir. 1974)—(“Larceny is one such offense and it is defined by 18 U.S.C. § 661....”); England v. United States, 174 F.2d 466, 468 (5th Cir. 1949); Dunaway v. United States, 170 F.2d 11, 12 (10th Cir. 1948); United States v. Gilbert, 378 F.Supp. 82, 90 (W.D.S.D.1974)—(“Title 18, U.S.C. § 661 specifically defines the federal version of larceny, and there is no reason to substitute a common law definition, even assuming that the common law definition may be slightly different.”) We conclude that 18 U.S.C. § 661 does define and punish a federal crime of larceny given the language of the statute and its legislative history. 18 U.S.C. § 661 was properly utilized below in conjunction with 18 U.S.C. § 1153. Resort to the state statute was unnecessary. B. Is “larceny”, as the term is used in 18 U.S.C. § 1153, limited to its common law definition? Appellant argues that in enacting 18 U.S.C. § 1153, Congress intended only to allow the federal government to prosecute Indians for certain common law crimes committed on reservations which would not otherwise be subject to any prosecution. According to his interpretation, the crimes listed in the statute are to be defined solely by common law. He thus contends that, while 18 U.S.C. § 661 may embody a definition of a federal crime of larceny, that statute may only be applied in conjunction with 18 U.S.C. § 1153 to the extent that it incorporates the common law definition of the crime. The common law definition of larceny requires a showing of an intent to permanently deprive the owner of his property. 50 Am.Jur.2d, Larceny § 2; 52A C.J.S. Larceny § 1(1), but see for the proposition that “the only rule as to felonious intent in larceny to which all the cases can be reconciled, is that the intent of the taker must be to appropriate the stolen property to a use inconsistent with the property rights of the person from whom it is taken”, Pennsylvania Indemnity Fire Corp. v. Aldridge, 73 App.D.C. 161, 163, 117 F.2d 774, 776 (1941); 52A C.J.S. Larceny § 27, n. 48 and accompanying text. Turning to the legislative history of 18 U.S.C. § 1153, we find no support for appellant’s interpretation of the intent of Congress in passing the statute. After a review of the history, we are convinced that the purpose of Congress was simply to punish Indians like other individuals under the same federal or territorial laws which govern the Indian country when they commit any of the enumerated offenses. 18 U.S.C. § 1153 was derived from the Act of March 3, 1885, ch. 341, § 9, 23 Stat. 385 (“Section 9”). Section 9 was initially added onto the end of an extensive Indian appropriations bill. 16 Cong. Rec. 934 (1885). It was removed by the Senate after being initially passed by the House, 16 Cong. Rec. 1748-49 (1885). Section 9 was later restored to the legislation after submission to a joint conference committee 16 Cong. Rec. 2533 (1885). Section 9 provided: That immediately upon and after the date of the passage of this act all Indians, committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States. 23 Stat. 385. Section 9, most often referred to as “The Major Crimes Act of 1885”, was passed by Congress in direct reaction to the Supreme Court’s opinion in Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), wherein the Court concluded that an Indian tribe retained exclusive jurisdiction to punish an Indian for the murder of another Indian in the absence of any congressional direction to the contrary. See United States v. Broncheau, 597 F.2d 1260, 1264 (9th Cir. 1979). The congressional response in 1885 was prompt and unequivocal — conferring jurisdiction on the Federal courts to punish certain offenses by the passage of the Major Crimes Act, now 18 U.S.C. § 1153. Congress indicated its view that tribal remedies were either non-existent or incompatible with principles that Congress thought should be controlling. See 16 Cong. Rec. 934 (1885) (remarks of Rep. Cutcheon), and id. at 935 (Annual Report of the Secretary of the Interior as quoted by Rep. Cutcheon during the debate over Section 9 in the House of Representatives). As interpreted by the Supreme Court in Keeble v. United States, 412 U.S. 205, 211-212, 93 S.Ct. 1993, 1997, 36 L.Ed.2d 844 (1973), “Congress extended federal jurisdiction to crimes committed by Indians on Indian land out of a conviction that many Indians would ‘be civilized a great deal sooner by being put under [federal criminal ] laws and taught to regard life and the personal property of others.’ 16 Cong. Rec. 936 (1885) (remarks of Rep. Cutcheon).” (Emphasis added.) There is no statement in the legislative history which supports the contention that the crimes delineated therein are to be limited to their common law definitions. On the contrary, the clear directive of Section 9 indicates that the federal or territorial laws are to be applied notwithstanding the fact that they might or might not define the offenses in terms of their common law meanings. The major objections to Section 9 were summarized by Senator Dawes who (1) noted the opposition to the grant of federal jurisdiction over crimes committed by Indians within state territory and the concomitant removal of jurisdiction from the state and tribal courts, and (2) questioned the propriety of enacting the legislation by means of attaching it to an Indian appropriations bill. 16 Cong. Rec. 2385 (1885). However, Congress did not accede to the objections. The current language of the statute provides that Indians committing one of the enumerated offenses are to be subject to the “same laws and penalties as all other persons” committing the offense “within the exclusive jurisdiction of the United States.” Said offenses if not defined by federal law are to be defined by state law “in force at the time of such offense.” The language of 18 U.S.C. § 1153 is not ambiguous and is controlling here as it is not in variance with the policy behind the legislation as a whole. Cf., Trans Alaska Pipeline Cases, 436 U.S. 631, 643, 98 S.Ct. 2053, 56 L.Ed.2d 591 (1978). Congress, in passing the later amendments to 18 U.S.C. § 1153, was aware that the federal statutes covering the enumerated offenses, as well as the state laws “in force at the time of such offense”, would not necessarily reflect the common law definitions of the offenses. Appellant cites to a passage in United States v. Kagama, 118 U.S. 375, 377, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) to support his position. In Kagama, the Supreme Court upheld the constitutionality of Section 9 and in its opinion stated: The above enactment [Section 9] is clearly separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes as defined by the common law. Id. at 377, 6 S.Ct. at 1110. However, subsequent statements in Kagama demonstrate that the Court was not restricting the meaning of the offenses listed in Section 9 to their common law definitions but rather following the plain language of the statute on its face. As stated in Kagama, supra, 118 U.S. at 377-78, 6 S.Ct. at 1110. In this case, of which the State and its tribunals would have jurisdiction if the offence was committed by a white man outside an Indian reservation, the courts of the United States are to exercise jurisdiction as if the offence had been committed at some place within the exclusive jurisdiction of the United States. The first clause subjects all Indians, guilty of these crimes committed within the limits of a Territory, to the laws of that Territory, and to its courts for trial. The second, which applies solely to offences by Indians which are committed within the limits of a State and the limits of a reservation, subjects the offenders to the laws of the United States passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States. (Emphasis added.) The Court also specifically held that the statute was not intended to expressly limit the powers of a state. Rather, Congress was merely dealing with offenses relating to matters within its authority, those offenses having been previously defined by Congress in federal statutes. The statute itself contains no express limitation upon the powers of a State or the jurisdiction of its courts. If there be any limitation in either of these, it grows out of the implication arising from the fact that Congress has defined a crime committed within the State, and made it punishable in the courts of the United States. But Congress has done this, and can do it, with regard to all offences relating to matters to which the Federal authority extends. 118 U.S. at 383, 6 S.Ct. at 1113. We consequently fail to find any congressional intent to limit the term “larceny” in 18 U.S.C. § 1153 to its common law definition. C. Does the crime of larceny, as defined in 18 U.S.C. § 661, require an intent to permanently deprive the owner of his property? Only one case has been located which directly considers this question. In United States v. Henry, 447 F.2d 283, 285—86 (3rd Cir. 1971), involving the theft of a vessel from within the maritime and territorial jurisdiction of the United States, the court found that 18 U.S.C. § 661 and its predecessor statutes were not mere codifications of the common law crime of larceny but were intended to broaden that offense. It was held that the statute did not require a showing of an intent to permanently deprive the owner of his property. The offense described in 18 U.S.C. § 661 is effectuated by one who “takes and carries away” the personal property of another “with intent to steal or purloin”. Clearly the interpretation of the latter phrase should control the resolution' of the question raised here. However, the words “steal” and “purloin” are not words of art and do not have an accepted common law meaning. United States v. Turley, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957). It has been held a conviction pursuant to a statute which contains the word “steal” or “purloin” does not require a showing of an intent to permanently deprive as was required by the common law definition of larceny. See e. g. Mitchell v. United States, 129 U.S.App.D.C. 292, 294-295, 394 F.2d 767, 769-70 (1968); Berard v. United States, 309 F.2d 260, 261 (9th Cir. 1962); see also Henry, supra, 447 F.2d at 285, for cases which hold that the words “with intent to steal or purloin” were “intended to broaden the offense of larceny to include such related offenses as would tend to complicate prosecutions under strict pleading and practice.” Appellant cites to this circuit’s decision in LeMasters v. United States, 378 F.2d 262, 267 (9th Cir. 1967), for the proposition that the phrase “takes and carries away” are “classic words used to define larceny”. While that is so, the mere use of the phrase does not indicate that the criminal statute wherein it appears is per se limited to the common law crime of larceny. Cf., United States v. Waronek, 582 F.2d 1158 (7th Cir. 1978) (holding that 18 U.S.C. § 3659 does not require an intent of the accused to permanently deprive the owner of his property even though the statute applies to one who “embezzles, steals, or unlawfully takes, carries away, or conceals... with intent to convert to his own use...”). As noted in LeMasters, supra, 378 F.2d at 267-68, an examination of the legislative history and the total statutory language is required to ascertain the intended meaning of the words “steal” and “purloin” even when used in conjunction with the phrase “takes and carries away”. In LeMasters, after such a review, it was held that the statute there involved, 18 U.S.C. § 2113(b), was limited and would not cover the crime of obtaining money from a bank under false pretenses. While the language of 18 U.S.C. § 2113(b) is very similar to 18 U.S.C. § 661 in relevant parts, the legislative histories and purposes of the two statutes are distinctly different. 18 U.S.C. § 661 was derived from a statute which, while using the phrase “take and carry away, with an intent to steal or purloin”, included within its scope crimes other than common law larceny. See § 16 of the Crimes Act of 1790, 1 Stat. 116. Since that initial enactment, Congress reorganized the federal criminal code on more than one occasion. 18 U.S.C. § 661 is now placed within Chapter 31 of Title 18 which is entitled “Embezzlement and Theft”. The title of § 661 is simply “Within Special Maritime and Territorial Jurisdiction.” As noted in LeMasters, supra, 378 F.2d at 267-68, while the title of an act will not limit the plain meaning of the text, it may be of aid in resolving an ambiguity. Accord, Ma guire v. Commissioner, 313 U.S. 1, 9, 61 S.Ct. 789, 85 L.Ed. 1149 (1941). The implication from the titles and placement of § 661 in Chapter 31 of Title 18 is that the statute was not enacted with the definitional refinements of the particular crime of larceny in mind, but rather with an intent to broaden the offense. Cf., Henry, supra, 447 F.2d at 285-86. In the context of dealing with embezzlement and theft crimes within the maritime and special jurisdictions of the United States, we can see no reason why Congress would have intended only to prohibit a specific form of theft, and then solely in terms of its common law definition, when other variations of the offense would not otherwise be covered by federal or state law. We hold that 18 U.S.C. § 661 is not limited in application to offenses amounting to common law larceny. Further, the Supreme Court’s delineation of the meaning of the term “stolen” in Turley, supra, 352 U.S. at 417, 77 S.Ct. 397, is deemed to be applicable here in interpreting the phrase “with intent to steal or purloin”. Thus, 18 U.S.C. § 661 does not require the element of intent to permanently deprive the owner of his property. III. CONCLUSION In light of the above discussion, we find that the district court judge did not err in refusing to give Defendant’s Jury Instruction No. 1. AFFIRMED. . In the record, Maloney refers to Mrs. McCray as his “grandmother” and she to him as her “grandson”, although they are more distantly related. . At the time herein relevant, Maloney was employed as a highway patrolman by the Arizona Department of Public Safety. . Evidence was presented as to appellant’s good reputation for honesty in the community and with his superiors at work. Appellant testified that he could not understand why he took the money except that he was possibly under a spell placed on him by a disgruntled Navajo shaman. Mrs. McCray testified as to appellant’s theretofore outstanding character and expressed her belief that the appellant had been under a spell at the time he took the money. . Defendant’s Jury Instruction No. 1 read as follows: Before you can find the defendant guilty of this crime, the government must establish beyond a reasonable doubt that (1) the defendant willfully obtained or retained possession of property belonging to another without the permission or beyond any permission given; and (2) at the time of the taking of the property the defendant had the specific intent to permanently deprive the owner of the benefit of ownership of said property. . “Indian country” is defined in 18 U.S.C. § 1151 as follows: . the term “Indian country”, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished including rights-of-ways running through the same. . See Revisor’s Notes to Section 661, as contained in New Title 18, United States Code, Crimes and Criminal Procedure with Official Legislative History and Revisory Notes (West 1948), at 2515. . Section 466 is cited in 43 Cong. Rec. 1191 (1908) as “Section 284”. . The statute dealing with the crime of larceny in Arizona, where the offense herein was committed, like its federal counterpart, does not expressly say that it covers the crime of larceny, does not directly refer to the term in its language and covers other offenses in addition to larceny. See 5 A.R.S. § 13-1802. . This Court in Francisco, supra, 536 F.2d at 1295-98, rejected a “static interpretation” of 18 U.S.C. § 1153 which argued that Congress intended to only incorporate state law as it existed at the time of the enactment of § 1153. Here, we reject a similar contention that Congress intended to freeze the definitions of the offenses in 18 U.S.C. § 1153 to their common law definitions despite the fact that the statute provides that the offenses are to be defined by reference to federal law. . Appellant cites to this court’s decision in United States v. Rider, 282 F.2d 476 (9th Cir. 1960), wherein it was held that the crime of rape in 18 U.S.C. § 1153 was supposedly limited by Congress to the common law definition of the crime even though the statute stated that “ ‘rape shall be defined in accordance with the laws of the State in which the offense was committed’ ”, In Rider, the issue was whether the offense of carnal knowledge was included within the term “rape” as contained in the statute. The defendant there pointed out that the federal statute for rape, 18 U.S.C. § 2031, was based only upon common law and did not include the crime of carnal knowledge. Consequently, if the latter charge was applied to him via 18 U.S.C. § 1153, it would mean that he, as an Indian, would be subject to a punishment which he could not be charged with if he were white. He also aptly pointed out that Congress had specifically rejected a proposal to include “carnal knowledge” within the list of enumerated offenses. Rider is clearly distinguishable from the present case. In addition, Congress in enacting the 1966 amendment to 18 U.S.C. § 1153, Act of November 2, 1966, Pub.L. 89-707, § 1, 80 Stat. 1100, found it “significant” that this court could find the congressional intent behind the statute unclear on the matter and could reach such an interpretation of the statute. Senate Report No. 1770, 89th Cong., 2d Sess., as contained in 3 [1966] U.S.Code Cong. & Admin.News, p. 3653 at 3655. Congress then amended the statute to include the offense of carnal knowledge. Later, in the 1976 amendment of the statute, Act of May 29, 1976, Pub.L. 94-297, § 2, 90 Stat. 585, Congress specifically added language to the effect that reference would be made to state law if any offense listed in the statute was not “defined and punished by Federal Law in force within the exclusive jurisdiction of the United States [emphasis added]”. As noted in the House Report on the amendment, H.Rep. No. 94-1038, 94th Cong., 2d Sess., as contained in 3 [1976] U.S.Code Cong. & Admin.News, p. 1125 at 1126, the issue was “whether State or Federal substantive law applie[d]” not whether common law would be referred to. . While not cited by appellant, we note the following language by the Supreme Court in Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952): . where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them. However, as discussed below, we do find a “contrary direction” by Congress in regards to 18 U.S.C. § 661. . It is noted that this court’s decision in Le-Masters has not been universally accepted. The Second, Fifth and Seventh Circuits have held that 18 U.S.C. § 2113(b) is not limited to the common law crime of larceny. United States v. Guiffre, 576 F.2d 126, 127-28 (7th Cir.), cert. denied, 439 U.S. 833, 99 S.Ct. 113, 58 L.Ed.2d 128 (1978); United States v. Fistel, 460 F.2d 157, 162 (2nd Cir. 1972); Thaggard v. United States, 354 F.2d 735, 736-38 (5th Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1222, 16 L.Ed.2d 301 (1966). While the Fourth Circuit has expressed its support of LeMasters in dicta, United States v. Rogers, 289 F.2d 433, 437 (4th Cir. 1961), its opinion in Rogers fails to mention the controlling Turley case. . § 16 of the Crimes Act of 1790 states in relevant part: And be it enacted, That if any person within any of the places under the sole and exclusive jurisdiction of the United States, or upon the high seas, shall take and carry away, with an intent to steal or purloin the personal goods of another; or if any person or persons, having at any time hereafter the charge or custody of any arms, ordnance, munition, shot, powder, or habiliments of war belonging to the United States, or of any victuals provided for the victualing of any soldiers, gunners, marines or pioneers, shall for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impede the service of the United States, embezzle, purloin or convey away any of the said arms, ordnance, munition, shot or powder, habiliments of war, or victuals, that then and in every of the cases aforesaid Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
sc_decisiontype
A
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. DEAN v. UNITED STATES No. 08-5274. Argued March 4, 2009 Decided April 29, 2009 Scott J. Forster, by appointment of the Court, 555 U. S. 1095, argued the cause for petitioner. With him on the briefs were Jeffrey T Green, Quin M. Sorenson, and Sarah O’Rourke Schrup. Deanne E. Maynard argued the cause for the United States. With her on the brief were then -Acting Solicitor General Kneedler, Acting Assistant Attorney General Glavin, Deputy Solicitor General Dreeben, and Vijay Shanker David Salmons, Robert V. Zener, Pamela Harris, Henry J. Bemporad, Mary Price, and Peter Goldberger filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae urging reversal. Chief Justice Roberts delivered the opinion of the Court. Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns. The question here is whether extra punishment Congress imposed for the discharge of a gun during certain crimes applies when the gun goes off accidentally. I Title 18 U. S. C. § 924(c)(1)(A) criminalizes using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that offense receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. § 924(c)(l)(A)(i). The mandatory minimum increases to 7 years “if the firearm is brandished” and to 10 years “if the firearm is discharged.” §§ 924(c)(l)(A)(ii), (iii). In this case, a masked man entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. No one was hurt. App. 16-19, 24, 27, 47-48, 79. Police arrested Christopher Michael Dean and Ricardo Curtis Lopez for the crime. Both defendants were charged with conspiracy to commit a robbery affecting interstate commerce, in violation of 18 U. S. C. § 1951(a), and aiding and abetting each other in using, carrying, possessing, and discharging a firearm during an armed robbery, in violation of § 924(c)(l)(A)(iii) and §2. App. 11-12. At trial, Dean admitted that he had committed the robbery, id., at 76-81, and a jury found him guilty on both the robbery and firearm counts. The District Court sentenced Dean to a mandatory minimum term of 10 years in prison on the firearm count, because the firearm “discharged” during the robbery. § 924(c)(1)(A)(iii); App. 136. Dean appealed, contending that the discharge was accidental, and that the sentencing enhancement in § 924(c)(l)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Court of Appeals affirmed, holding that separate proof of intent was not required. 517 F. 3d 1224, 1229 (CA11 2008). That decision created a conflict among the Circuits over whether the accidental discharge of a firearm during the specified crimes gives rise to the 10-year mandatory minimum. See United States v. Brown, 449 F. 3d 154 (CADC 2006) (holding that it does not). We granted certiorari to resolve that conflict. 555 U. S. 1028 (2008). II Section 924(e)(1)(A) provides: “[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime— “(i) be sentenced to a term of imprisonment of not less than 5 years; “(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and “(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.” The principal paragraph defines a complete offense and the subsections “explain how defendants are to ‘be sentenced.’ ” Harris v. United States, 536 U. S. 545, 552 (2002). Subsection (i) “sets a catchall minimum” sentence of not less than five years. Id., at 552-553. Subsections (ii) and (iii) increase the minimum penalty if the firearm “is brandished” or “is discharged.” See id., at 553. The parties disagree over whether § 924(c)(l)(A)(iii) contains a requirement that the defendant intend to discharge the firearm. We hold that it does not. A “We start, as always, with the language of the statute.” Williams v. Taylor, 529 U. S. 420, 431 (2000). The text of subsection (iii) provides that a defendant shall be sentenced to a minimum of 10 years “if the firearm is discharged.” It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. As we explained in Bates v. United States, 522 U. S. 23 (1997), in declining to infer an “Intent to defraud’” requirement into a statute, “we ordinarily resist reading words or elements into a statute that do not appear on its face.” Id., at 29. Congress’s use of the passive voice further indicates that subsection (iii) does not require proof of intent. The passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability. Cf. Watson v. United States, 552 U. S. 74, 81 (2007) (use of passive voice in statutory phrase “to be used” in 18 U. S. C. § 924(d)(1) reflects “agnosticism ... about who does the using”). It is whether something happened— not how or why it happened — that matters. The structure of the statute also suggests that subsection (iii) is not limited to the intentional discharge of a firearm. Subsection (ii) provides a 7-year mandatory minimum sentence if the firearm “is brandished.” Congress expressly included an intent requirement for that provision, by defining “brandish” to mean “to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person.” § 924(c)(4) (emphasis added). The defendant must have intended to brandish the firearm, because the brandishing must have been done for a specific purpose. Congress did not, however, separately define “discharge” to include an intent requirement. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted). Dean argues that the statute is not silent on the question presented. Congress, he contends, included an intent element in the opening paragraph of § 924(c)(1)(A), and that element extends to the sentencing enhancements. Section 924(c)(1)(A) criminalizes using or carrying a firearm “during and in relation to” any violent or drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993), we stated that the phrase “in relation to” means “that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence.” Id., at 238. Dean argues that the adverbial phrase thus necessarily embodies an intent requirement, and that the phrase modifies all the verbs in the statute — not only use, carry, and possess, but also brandish and discharge. Such a reading requires that a perpetrator knowingly discharge the firearm for the enhancement to apply. If the discharge is accidental, Dean argues, it is not “in relation to” the underlying crime. The most natural reading of the statute, however, is that “in relation to” modifies only the nearby verbs “uses” and “carries.” The next verb — “possesses”—is modified by its own adverbial clause, “in furtherance of.” The last two verbs — “is brandished” and “is discharged” — appear in separate subsections and are in a different voice than the verbs in the principal paragraph. There is no basis for reading “in relation to” to extend all the way down to modify “is discharged.” The better reading of the statute is that the adverbial phrases in the opening paragraph — “in relation to” and “in fiirtherance of” — modify their respective nearby verbs, and that neither phrase extends to the sentencing factors. But, Dean argues, such a reading will lead to absurd results. The discharge provision on its face contains no temporal or causal limitations. In the absence of an intent requirement, the enhancement would apply “regardless of when the actions occur, or by whom or for what reason they are taken.” Brief for Petitioner 11-12. It would, for example, apply if the gun used during the crime were discharged “weeks (or years) before or after the crime.” Reply Brief for Petitioner 11. We do not agree that implying an intent requirement is necessary to address such concerns. As the Government recognizes, sentencing factors such as the one here “often involve . . . special features of the manner in which a basic crime was carried out.” Brief for United States 29 (quoting Harris, 536 U. S., at 553; internal quotation marks omitted). The basic crime here is using or carrying a firearm during and in relation to a violent or drug trafficking crime, or possessing a firearm in furtherance of any such crime. Fanciful hypotheticals testing whether the discharge was a “special featur[e]” of how the “basic crime was carried out,” id., at 553 (internal quotation marks omitted), are best addressed in those terms, not by contorting and stretching the statutory language to imply an intent requirement. B Dean further argues that even if the statute is viewed as silent on the intent question, that silence compels a ruling in his favor. There is, he notes, a presumption that criminal prohibitions include a requirement that the Government prove the defendant intended the conduct made criminal. In light of this presumption, we have “on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide.” United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). “[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Staples v. United States, 511 U. S. 600, 606 (1994). Dean argues that the presumption is especially strong in this case, given the structure and purpose of the statute. In his view, the three subsections are intended to provide harsher penalties for increasingly culpable conduct: a 5-year minimum for using, carrying, or possessing a firearm; a 7-year minimum for brandishing a firearm; and a 10-year minimum for discharging a firearm. Incorporating an intent requirement into the discharge provision is necessary to give effect to that progression, because an accidental discharge is less culpable than intentional brandishment. See Brown, 449 F. 3d, at 156. It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts. See 2 W. LaFave, Substantive Criminal Law §14.4, pp. 436-437 (2d ed. 2003). The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. See 18 U. S. C. §1111. The Sentencing Guidelines reflect the same principle. See United States Sentencing Commission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008) (USSG) (increasing offense level for aggravated assault according to the seriousness of the injury); § 2D2.3 (increasing offense level for operating or directing the operation of a common carrier under the influence of alcohol or drugs if death or serious bodily injury results). Blackstone expressed the idea in the following terms: “[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one of-fence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” 4 W. Blackstone, Commentaries on the Laws of England 26-27 (1769). Here the defendant is already guilty of unlawful conduct twice over: a violent or drug trafficking offense and the use, carrying, or possession of a firearm in the course of that offense. That unlawful conduct was not an accident. See Smith, 508 U. S., at 238. The fact that the actual discharge of a gun covered under §924(c)(l)(A)(iii) may be accidental does not mean that the defendant is blameless. The sentencing enhancement in subsection (iii) accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris, supra, at 553. An individual who brings a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot in such circumstances — whether accidental or intended — increases the risk that others will be injured, that people will panic, or that violence (with its own danger to those nearby) will be used in response. Those criminals wishing to avoid the penalty for an inadvertent discharge can lock or unload the firearm, handle it with care during the underlying violent or drug trafficking crime, leave the gun at home, or — best yet — avoid committing the felony in the first place. Justice Stevens contends that the statute should be read to require a showing of intent because harm resulting from a discharge may be punishable under other provisions, such as the Sentencing Guidelines (but only if “bodily injury” results). Post, at 583 (dissenting opinion) (citing USSG §2B3.1(b)(3)). But Congress in § 924(c)(l)(A)(iii) elected to impose a mandatory term, without regard to more generally applicable sentencing provisions. Punishment available under such provisions therefore does not suggest that the statute at issue here is limited to intentional discharges. And although the point is not relevant under the correct reading of the statute, it is wrong to assert that the gunshot here “caused no harm.” Post, at 578. By pure luck, no one was killed or wounded. But the gunshot plainly added to the trauma experienced by those held during the armed robbery. See, e. g., App. 22 (the gunshot “shook us all”); ibid. (“Melissa in the lobby popped up and said, ‘oh, my God, has he shot Nora?’ ”). C Dean finally argues that any doubts about the proper interpretation of the statute should be resolved in his favor under the rule of lenity. See Brief for Petitioner 6. “The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree.” Muscarello v. United States, 524 U. S. 125, 138 (1998); see also Smith, supra, at 239 (“The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable”). “To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute.” Muscarello, supra, at 138-139 (internal quotation marks omitted). In this case, the statutory text and structure convince us that the discharge provision does not contain an intent requirement. Dean’s contrary arguments are not enough to render the statute grievously ambiguous. * * * Section 924(c)(l)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. The judgment of the Court of Appeals for the Eleventh Circuit is affirmed. It is so ordered. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
sc_caseoriginstate
01
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. COLEMAN v. ALABAMA. No. 583. Argued March 25, 1964. Decided May 4, 1964. Michael C. Meltsner, pro hac vice, by special leave of Court, argued the cause for petitioner. With him on the brief were Jack Greenberg and Orzell Billingsley, Jr. Leslie Hall, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Richmond M. Flowers, Attorney General of Alabama. Mr. Justice Clark delivered the opinion of the Court. The petitioner, a Negro convicted and sentenced to death for murdering a white man, attacks his conviction as violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He claims that, as a result of a long-established practice in the county of his conviction, Negroes were arbitrarily and systematically excluded from sitting on the grand jury which indicted him and the petit jury which convicted him. The State answers that the claim comes too late, having been asserted for the first time by a motion for a new trial. Code of Ala. (1958 Recomp.), Tit. 15, §§ 278, 279; Ball v. State, 252 Ala. 686, 689, 42 So. 2d 626, 629. Admittedly, the point was not raised until the filing of the motion for a new trial, but the trial judge permitted the petitioner to proceed on his motion. However, the judge sustained objections to all questions concerning the alleged jury discrimination and denied the motion. The Supreme Court of Alabama affirmed the conviction, finding that petitioner’s claim of jury discrimination was not supported by any evidence. We granted certiorari, 375 U. S. 893. Petitioner was convicted of the first degree murder of a white mechanic, the apparent motive being robbery. There were no witnesses to the killing and the evidence of guilt was circumstantial, based largely upon expert testimony given by the State’s toxicologist. Petitioner was represented by court-appointed counsel at trial but he obtained new counsel after conviction. In his motion for a new trial petitioner alleged that “Negroes qualified for jury service in Greene County, Alabama are arbitrarily, systematically and intentionally excluded from jury duty in violation of rights and privileges guaranteed defendant by the Fourteenth Amendment to the United States Constitution.” The petitioner does not attack the reasonableness of Alabama’s procedural requirement that objections to the composition of juries must be made before trial. Nor does he question the validity of such procedures as a state ground upon which refusal to consider the question might be based. However, in this case the judge granted petitioner a hearing on his motion for a new trial and permitted him to call two Circuit Solicitors as witnesses to prove his allegations of discrimination. Nonetheless, the judge sustained objections to all questions concerning systematic discrimination on the ground that the point was not raised prior to trial. On automatic appeal the Supreme Court of Alabama found that the trial judge had afforded petitioner “an opportunity on the hearing of the motion for a new trial to adduce evidence of any systematic exclusion . . . .” However, it found further that “none was introduced other than an affidavit of appellant’s mother that her son was indicted by a grand jury composed of white men, and tried and convicted by a petit jury composed of twelve white men.” It appears clear that the motion for a new trial alleged a practice of systematic exclusion which, if proved, would entitle petitioner to a new trial. Arnold v. North Carolina, 376 U. S. 773 (1964); Eubanks v. Louisiana, 356 U. S. 584 (1958); Reece v. Georgia, 350 U. S. 85 (1955) ; Hernandez v. Texas, 347 U. S. 475 (1954); Strauder v. West Virginia, 100 U. S. 303 (1879). Here petitioner’s counsel failed to raise the issue before trial; but the Alabama Supreme Court, apparently acting under the enlightened procedure of its automatic appeals statute, did not base its affirmance on this ground but considered the claim on the merits and held that the petitioner had not met his burden of establishing racial discrimination. The court concluded: “No sufficient proof having been produced at the hearing on the motion for a new trial, or at any other state of the proceedings, it is clear appellant may not now complain. Therefore, we are left under no doubt that appellant’s point on systematic exclusion of Negroes from the jury rolls in Greene County is not well taken.” Exercising its discretion to permit petitioner to attack the exclusion by motion for a new trial, the Supreme Court of Alabama decided petitioner’s constitutional claim on the merits. The judgment, therefore, “rested upon the State Supreme Court’s considered conclusion that the conviction resulting in the death sentence was not obtained in disregard of the protections secured to the petitioner by the Constitution of the United States.” Irvin v. Dowd, 359 U. S. 394, 404 (1959). Since the case comes here in that posture and the record shows that petitioner was not permitted to offer evidence to support his claim, the judgment of affirmance must fall. As in Carter v. Texas, 177 U. S. 442 (1900), where the state court found that “the motion was but a mere tender of the issue, unaccompanied by any supporting testimony . . .'this Court must reverse on the ground that the defendant “offered to introduce witnesses to prove the allegations . . . and the court . . . declined to hear any evidence upon the subject . . . .” At 448-449. In light of these considerations, the petitioner is now entitled to have his day in court on his allegations of systematic exclusion of Negroes from the grand and petit juries sitting in his case. The judgment is therefore reversed and the case remanded to the Supreme Court of Alabama for further proceedings not inconsistent with this opinion. Reversed and remanded. “ATTORNEY FOR DEFENDANT: I can ask whether or not the law was complied with? “COURT: Yes. The fact that the law was complied with, that is a general question, but the Court will sustain an objection to that because the courts have held repeatedly, the Supreme Court of Alabama and the Supreme Court of the United States, that you can not go into those matters unless they have been raised properly during the trial or in some proceedings prior thereto. That is the reason I asked you the question before. The case was tried by Mr. Boggs and the Court is familiar with it. “ATTORNEY FOR DEFENDANT: But I would like to get one or two of these questions in the record for the purpose of taking an exception to it. “COURT: You may ask the questions, but the Court will have to sustain an objection to them. “Q. Mr. Boggs, you were present when the Grand Jury, which indicted Johnny Coleman, was convened, were you not? “A. I was. “Q. How many persons were on that grand jury? “A. Eighteen. “Q. Were any negroes on that grand jury? “SOLICITOR: I object to that, may it please the Court. It is an illegal mode of raising that which should have been raised by motion to quash the indictment. “COURT: Sustain the objection. “ATTORNEY FOR DEFENDANT: I want to ask one more question, and then I won’t have any further question to ask — two more, your Honor. “Q. Were there any negroes on the petit jury that tried this defendant? “SOLICITOR: I object to that, may it please the Court, on the ground that it should have been properly raised by motion to quash the venire if the Fourteenth Amendment was to be taken advantage of in this matter. “COURT: Sustain the objection.” Code of Alabama (1958 Recomp.), Tit. 15, §382 (10): “Hearing and determination in appellate court. — In all cases of automatic appeals the appellate court may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto. The appellate court shall consider all of the testimony and if upon such consideration is of opinion the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust and that upon that ground a new trial should be had, the court shall enter an order of reversal of the judgment and grant a new trial, though no motion to that effect was presented in the court below.” 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_usc2
26
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 26. 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. OAK MANUFACTURING CO., Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee. No. 13520. United States Court of Appeals Seventh Circuit. April 4, 1962. Peter B. Atwood, Chicago, 111., for appellant. James P. O’Brien, U. S. Atty., Chicago, 111., Louis F. Oberdorfer, Asst. Atty. Gen., John A. Bailey, Atty., Tax Division, Lee A. Jackson, I. Henry Kutz, Attys., Dept, of Justice, Washington, D. C., for appellee. Robert A. Maloney, Asst. U. S. Atty., of counsel. Before DUFFY, SCHNACKENBERG and SWYGERT, Circuit Judges. DUFFY, Circuit Judge. This appeal involves a claim for refund of federal income taxes for the years 1954, 1955 and 1956. There is no dispute as to the facts. The question involved is whether amounts received by plaintiff (Oak) under an agreement executed November 9, 1936, with British N.S.F. Company, Ltd. (N.S.F.), as licensee, are taxable as long-term capital gains or as ordinary income. Oak contends that the amounts received by it under Paragraph 5 of the 1936 agreement were installment payments in respect to the sale of capital assets, namely, the patents referred to in the agreement. However, the District Court held the receipts from N.S.F. were ordinary royalty income. The Court emphasized the agreement contained no language of sale. To determine its legal effect, a somewhat detailed examination of the provisions of the 1936 agreement seems necessary. This agreement purports, in paragraph 1, to be a grant or license by Oak to N.S.F. of “exclusive rights to manufacture and sell all Oak products within all European countries and within all the units of the British Empire including the Irish Free State, with the exception of Canada, in which country Oak reserves the rights to manufacture and sell for itself therein in competition with N.S.F.” The agreement recites that Oak manufactures switches, vibrators and other electrical parts and designs such parts, and that “ * * * N.S.F. is desirous of establishing a vibrator and switch business and selling such parts and devices or of making such parts and devices themselves and selling them. * * * ” In paragraph 2 of the agreement, Oak agreed to “ * * * disclose and furnish to N.S.F. all of its products and improvements thereon together with manufacturing methods and processes in connection therewith * * * ” as well as “ * * * all required engineering assistance.” In paragraph 3, Oak agreed to sell all component parts of Oak products to N. S.F. at cost plus twenty-five percent profit. In paragraph 4, Oak agreed “ * * * to apply for patent protection in whatever countries it may consider necessary * * * to protect N.S.F. * * Upon Oak’s failure to do so, N.S.F. was given the right to apply for patents in the various countries. Under paragraph 5, N.S.F. agreed to pay Oak a royalty of five percent of the net selling price of switches and vibrators. Under paragraph 6, the royalties were payable quarterly. Pursuant to the agreement, Oak received from N.S.F. in 1954 the sum of $27,701.81; in 1955, $52,719.36 and in 1956, $62,607.84. ■In paragraph 7, the agreement provided, in part, that N.S.F. would use its best efforts to promote the manufacture and sale of Oak vibrators and switches within its territory, and to disclose to • Oak all engineering processes and all improvements which it may have on Oak parts or products, and agreed at the expense and upon demand by Oak, to execute and assign United States applications for patents covering such improvements. Paragraph 8 provided, in part, “It Is Understood and Agreed That with respect to complete products N.S.F. occupies the position of an expert sales organization and that it assumes all risks with regard to customers.” Paragraph 11 provided that N.S.F. might bring patent infringement suits in the name of Oak, paying Oak a royalty on sums recovered. However, Oak could, if it wished, control the prosecution of such suits. It was further provided that the agreement was not assignable by N.S.F. without written permission of Oak, but N.S.F. was permitted to sub-license. The agreement was to last for the duration of any of the English patents and for at least fifteen years. The 1936 agreement did not describe the patents referred to either by name or number. However, Joint Exhibits 2 and 3 received in evidence do identify each of the patents. There were a number of American patents without any corresponding English patents, but most of the English patents did have corresponding United States patents. It was stipulated that each of the patents set out in Joint Exhibits 2 and 3 constituted capital assets within the meaning of Sec. 1231 of the 1954 Internal Revenue Code, as amended, 26 U.S.C. § 1231, and had been owned and held by Oak more than six months before licensing same to N.S.F. It was also stipulated and agreed that neither the license agreement nor the patents constituted property of a kind which would properly be includable in the inventory of Oak within the meaning of Sec. 1231(b) (1) (A) of the 1954 Internal Revenue Code, as amended, nor property held by Oak primarily for sale to customers in the ordinary course of its trade or business. The District Court stressed the point that the agreement herein did not contain the language of sale. We do not consider this fact controlling. The transfer of substantially all the rights under the patent or invention is all that is necessary. The Government points out that the agreement itself characterizes it as a “license agreement” and the amounts payable thereunder to Oak are referred to as “royalties.” Granted this language is a relevant consideration, yet, as stated in Merck & Co. Inc. v. Smith (D.C.1957), 155 F.Supp. 843, 845, aff’d., 3 Cir., 261 F.2d 162, it “ * * * is not controlling and, as a matter of fact, appears to have been given very little weight by the courts.” Numerous decisions have expressed the same idea. To illustrate: “The fact that the terms ‘licensee,’ ‘sublicense,’ and ‘royalty’ are used is not determinative.” Holcomb v. Commissioner (1958), 30 T. C. 354, 358. Also, “* * * nomenclature of that kind has little if any significance in resolving the question whether the instrument amounted to an assignment or was a license. * * * ” Watson v. United States, 10 Cir., 222 F.2d 689, 691. However, other courts have accorded substantial weight to the parties’ own characterization and treatment of the agreement as indicative of what the parties intended. Commissioner of Internal Revenue v. Celanese Corp. of America, 78 U.S.App.D.C. 292, 140 F.2d 339, 340-341; Commissioner of Internal Revenue v. Hopkinson, 2 Cir., 126 F.2d 406, 408-410; Kimble Glass Co. v. Commissioner (1947), 9 T.C. 183, 185-186, 190. A patent is an intangible asset. It is usually transferred by an assignment. If there is a transfer of all the substantial rights in a patent, it is considered an assignment and qualifies the transferor for capital gains treatment. A transfer of anything less is called a license with the resultant assessment of the tax at ordinary income rates. Merck & Co. Inc. v. Smith, 3 Cir., 261 F.2d 162, 164. The opinions of the courts which have passed on the issue before us are not entirely harmonious. However, certain principles seem to be established. The entire agreement must be examined and analyzed to determine whether substantially all of the rights of the owner of the patent have been assigned and released to the transferee. The retention of the bare legal title may not represent the retention of a substantial right in some cases. See Lawrence v. United States, 5 Cir., 242 F.2d 542. Title 26 U.S.C. § 1235 specifically provides that for a transferor to receive favorable capital gain treatment, “ * * * all substantial rights to a patent” must be transferred. The United States cites many provisions of the “license” agreement to show that it did not amount to a sale or transfer of the patents. Among these are, 1) certain patents from which “royalties” were received were not in existence at the date of the agreement and hence could not have been sold or transferred; 2) the United States patents conferred no rights in England; 3) the right to “use” the patents covered by the license was omitted; 4) the right to assign the agreement was omitted; 5) Oak retained control over infringement litigation; 6) N.S.F. had only a non-exclusive license in Canada; and 7) the agreement was not for the full period of the patents. The primary consideration moving from Oak was the promise “ * * * to disclose and furnish to N.S.F. all of its products and improvements thereon together with manufacturing methods and processes in connection therewith * * ” and the promise “ * * * to furnish all required engineering assistance.” The terms of the agreement contemplated a continuing business relation in the nature of a franchise for the distribution of Oak products in new markets. It was, in reality, the establishment of an agency relationship. There was no intent to transfer the ownership of the patents. At most, Oak merely licensed to N.S.F. certain rights thereunder. The 1936 agreement provided; “This Agreement is not assignable by N.S.F. without the written permission of Oak.” The subsequent provision for a qualified right to “sublicense others hereunder” makes it clear the prohibition against assignment was a substantial right. The Supreme Court has said that the power to dispose of property is the “equivalent of ownership.” Harrison v. Schaffner, 312 U.S. 579, 580, 61 S.Ct. 759, 85 L.Ed. 1055. The phrase “sublicense others hereunder” and the remainder of the paragraph, is further evidence of the parties’ intent that N.S.F. was not a purchaser or assignee but rather a licensee. We think the right to control the prosecution of infringement suits was another item in the substantial “bundle of sticks” retained by Oak which prevents the agreement from being considered a sale or transfer. N.S.F. was permitted to sue only in Oak’s name for the infringement of “Oaks Patents.” Significant also is the provision whereby Oak agreed to apply for patent protection in whatever countries it may consider necessary in order to protect N.S.F. against unauthorized competition. This clause would indicate Oak considered itself to be the complete owner of the patents and N.S.F. to be merely its European licensee or representative. The provision that the agreement would last for the duration of any English Oak patent and at least fifteen years, indicates that Oak made no attempt to make certain the agreement would continue for the full life of all the patents involved. The life of a United States patent is seventeen years. Again, this is an indication that the agreement was, in fact, a license rather than a sale or transfer. We hold the District Court reached the correct result. The judgment of the District Court is Affirmed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. 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_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. In the Matter of ALLEN UNIVERSITY, an educational corporation chartered by the State of South Carolina, Debtor. No. 73-1897. United States Court of Appeals, Fourth Circuit. Argued Jan. 9, 1974. Decided May 16, 1974. Gerald M. Finkel, Columbia, S. C. (Stanley H. Kohn, Kohn & Finkel, Columbia, S. C., on brief), for appellants. David W. Robinson, Columbia, S. C. (Robinson, McFadden, Moore & Pope, Columbia, S. C., on brief), for appellees. Before HAYNSWORTH, Chief Judge, and WINTER and WIDENER, Circuit Judges. WIDENER, Circuit Judge: On May 21, 1973, creditors of Allen University filed in the district court a petition under 11 U.S.C. § 526 asking that Allen University be reorganized under the provisions of Chapter X of the Bankruptcy Act, 11 U.S.C. §§ 501-676. The district court dismissed the petition on the basis that, since Allen was not a “moneyed, business, or commercial corporation” within the intendment of 11 U.S.C. § 22(b), an action could not be maintained against it for involuntary reorganization under Chapter X. In this appeal, petitioners contest both the district court’s holding that an eleemosynary educational corporation may not be the subject of involuntary reorganization under Chapter X of the Bankruptcy Act, and also the court’s finding that Allen University is not a “moneyed, business, or commercial” corporation. We affirm both aspects of the decision of the district court. Allen University is a nonprofit, eleemosynary educational institution operating a four-year college in Columbia, South Carolina. It is controlled and primarily supported by the African Methodist Episcopal Church of South Carolina. Indeed, a majority of its Board of Trustees is composed of ministers and representatives of this church. The Board is elected by the church conference. The petitioners in this appeal are, for the most part, teachers and employees of Allen University who are owed back wages. They claim that the university is insolvent and has preferentially paid other creditors. They also contend that the normal provisions of Chapter XI of the Bankruptcy Act are not adequate and, consequently, that the university is in need of reorganization under Chapter X in order to continue its educational work and pay its debts. In Hoile v. Unity Life Ins. Co., 136 F.2d 133, 135 (4th Cir. 1943), we held that the eligibility of a corporation for relief under Chapter X depends in the first instance on its eligibility to be adjudged a bankrupt in ordinary bankruptcy. Thus, voluntary petitions may be filed under Chapter X by corporations which can be adjudicated bankrupt on voluntary petitions; involuntary petitions may be filed against corporations against which involuntary petitions in ordinary bankruptcy can be filed. We see no reason to depart here from our previous holding. 11 U.S.C. § 506, which defines the term “corporation” for the purposes of Chapter X, states that “ ‘corporation’ shall mean a corporation, as defined in this title, which could be adjudicated a bankrupt under this title. . . . ” [Emphasis added.] 11 U.S.C. § 1 provides, for purposes of the Bankruptcy Act, that “[p]ersons shall include corporations except where otherwise specified. . . . ” 11 U.S.C. § 22(a) provides that “[a]ny person, except a municipal, railroad, insurance, or banking corporation or a building and loan association, shall be entitled to the benefits of this title as a voluntary bankrupt.” Thus, under this provision, in a proper case, it would seem an eleemosynary educational institution could be adjudged a bankrupt in a voluntary proceeding. Because this proceeding is involuntary, however, we must look to subsection (b) of 11 U.S.C. § 22. The statute there provides that “[a]ny natural person, except a wage earner or farmer, and any moneyed, business, or commercial corporation, except a building and loan association, a municipal, railroad, insurance, or banking corporation, owing debts to the amount of $1,000 or over, may be adjudged an involuntary bankrupt upon default or an impartial trial and shall be subject to the provisions and entitled to the benefits of this title.” Consequently, in order to be adjudged an involuntary bankrupt under Chapter XI, or to be involuntarily reorganized under Chapter X, a debtor corporation must fall within the definition of “moneyed, business, or commercial.” Hoile v. Unity Life Ins. Co., 136 F.2d 133 (4th Cir. 1943); accord, In re Michigan Sanitarium & Benevolent Ass’n., 20 F.Supp. 979 (E.D.Mich.1937); contra, In re Maryvale Community Hospital, Inc., 307 F.Supp. 304, 306 n. 4 (D.Ariz.1969), aff’d per curiam, 456 F.2d 410 (9th Cir. 1972). By judicial interpretation, the phrase “moneyed, business, or commercial corporation” has acquired a meaning which limits it to corporations organized for profit. See Hoile v. Unity Life Ins. Co., 136 F.2d 133, 135 (4th Cir. 1943). Although Allen University has been chartered as a corporation, as the petition alleges, there is neither capital stock in the corporation nor a return of capital to investors outstanding. Indeed the record discloses no investors. Moreover, although it may be true, as the district court found, that the University carries on a number of activities, some of which could, standing alone, be characterized as commercial in nature, including the operation of a day-care center and University apartments, offering of certain printing services to the public, leasing of two houses in Columbia, and the operation of Reed Center in Charleston, these activities are only ancillary to the institution’s main purpose of education. We are of opinion that such ancillary activities do not bring Allen University within the realm of a “moneyed, business, or commercial corporation.” Accordingly, the district court property sustained the plea to the jurisdiction, and its decision is Affirmed. . Accord, 6 Collier on Bankruptcy ¶ 2.07 [2] (14th Ed.1972); 11 Remington on Bankruptcy §§ 4416, 4424 (1961 rev.). . Similarly, the fact that, according tb its charter, Allen University may sue and be sued should not be determinative of its status as a “moneyed, business, or commercial corporation,” since, under general South Carolina law, charitable corporations may sue and are subject to suit. S.C.Code Ann. § 12-758 (Cum.Supp.1971). 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_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. ARROW DISTILLERIES, Inc., v. GLOBE BREWING CO. No. 4622. Circuit Court of Appeals, Fourth Circuit. Jan. 6, 1941. Harold F. Watson, of Washington, D. C. (Bartlett, Poe & Claggett, of Baltimore, Md., Watson, Cole, Grindle & Watson, of Washington, D. C., and Robert D. Bartlett, of Baltimore, Md., on the brief), for appellant. Edward G. Fenwick and Charles R. Fen-wick, both of Washington, D. C. (Morton H. Rosen, of Baltimore, Md., and Mason, Fenwick & Lawrence and Edward, T. Fenwick, all of Washington, D. C., on the brief), for appellee. Before PARKER, SOPER, and DOBIE, Circuit Judges. SOPER, Circuit Judge. The parties to this suit each use the same trade-mark “Arrow” for their products. Arrow Distilleries, Inc., a Michigan corporation, uses the same on alcoholic cordials and liqueurs, and the Globe Brewing Company, a Maryland corporation, on beer and ale. The suit was originally instituted !by the Distilleries Company under R.S. § 4915, 35 U.S.C.A. § 63, to secure relief from an order of the United States Patent Office directing the cancellation of its registered trade-mark upon the petition of the Brewing Company. A counterclaim was filed by the Brewing Company in the pending suit, charging infringement of its prior registered trade-mark, and this charge the Distilleries Company denied. Subsequently the Distilleries Company withdrew its cause of action under R.S. § 4915 and amended its complaint so as to charge infringement of its trade-mark by the Brewing Company. The position of the Distilleries Company has always been that there was no infringement on either side, but it charged infringement to meet the contingency of a contrary decision by the court so that in such event it might obtain affirmative relief with respect to those territories in which it had first made use of the trade-mark. The Brewing Company has, therefore, become in effect the plaintiff in the suit. No substantial evidence of confusion in the public mind between the parties or their product was offered, and the suit has become one of technical trademark infringement in which the Brewing Company seeks to show that its trade-mark “Arrow”, as applied to beer, has such a degree of distinctiveness that the public will be led to attribute a common origin to cordials and liqueurs sold under the same designation. The Brewing Company and its predecessors have been engaged in the brewing and distribution of beer since prior to 1913. In that year, the trade-mark “Arrow” was adopted for their product. Since that date the mark has been continuously used, having been applied to non-alcoholic beer during the prohibition period. It was registered in the Patent Office for malt beverages five times in the years 1914, 1921, and 1937. The District Court found that the business has extended to nineteen states, most of them on the eastern seaboard or in the southern part of the United States. 96% of the business has been done in Maryland, Virginia and the District of Columbia. The sales from 1933 to 1939 amounted to nearly $20,000,000. More than $2,000,000 has been spent since 1922 in advertising “Arrow” beer. The Distilleries Company was formed in the fall of 1933 and began to make and sell “Arrow” cordials and liqueurs in 1934. The name was adopted because one of the organizers had been connected with the Arrow Distilleries of Peoria, Illinois, be-, fore national prohibition. In 1935 registration of the trade-mark “Arrow” was secured, and shortly thereafter, the present controversy was begun. The District Court found that the products of the Distilleries Company have been sold in thirty-eight states of the union. By far the greater part of the business has been done in New York, New Jersey, Illinois, Michigan, Minnesota and Wisconsin. Total sales amounted to more than $3,500,000 between 1934 and 1938, of which nearly $3,000,000 was received for goods bearing the “Arrow” trade-mark. More than $900,000 has been spent in advertising and in sales promotion, the greater part to encourage the sales of the “Arrow” brand of goods. The District Judge held that the beer and ale made by one party were goods of the same descriptive properties as the cordials and liqueurs made by the other, and that there was likelihood of confusion, since the products of both were being sold under the same trade-mark in the same sort of store. But he held that each of the parties was the owner of a valid trademark, as applied to alcoholic beverages, and was entitled to its exclusive use in those states of the union in which it was the first user; and hence that the use of the mark therein by the opposing party constituted infringement. The Globe Brewing Company was enjoined from employing the trade-mark or the representation of an arrow on alcoholic beverages of any description within the states in which the Distilleries Company was found to be the prior user; and the Distilleries Company was similarly enjoined with respect to the territory in which it was found that the Brewing Company was the prior user. The Distilleries Company was also enjoined from employing its corporate title in connection with alcoholic beverages of any description in the last-mentioned states unless the labels employed in connection with the goods should bear a notation indicating that the Distilleries Company had no connection with the manufacturer of Arrow beer. No appeal was taken from the decree by the Brewing Company, but the Distilleries Company appealed on the grounds (1) that there was no infringement by either party, and (2) that if technical infringement existed, the decree should be modified by taking certain territory from the field allotted to the Brewing Company and giving it to the Distilleries Company. The crucial issue in the case is whether the word “Arrow” is a word of such distinctive character, when adopted as-a trade-mark for one kind of intoxicating liquors, that it cannot be used on any other kind without creating the belief that both spring from a common source; or, on the other hand, is a word like “Standard”, or “Gold Medal”, or “Blue Ribbon”, which has been adopted by many persons as a trade-mark for articles of divers kind that it does not signify the goods of any one user. The question is important because, in determining the extent of the field of exclusive occupation, a name in the first class is accorded liberal treatment in the law of trade-marks, while a name in the second class is narrowly restricted to the particular kind of goods for which it is used by its owner. The District Judge held that “Arrow” is a name of the first class, specifically stating that it is not like the illustrative words of the second class above set out. In the Restatement of Torts it is said that in determining whether one’s interest in a trade-mark is protected with reference to the goods on which it is used, one of the important factors is “the degree of distinctiveness of the trade mark”. § 731 (f). “ * * * The more distinctive the trade mark is, the greater its influence in stimulating sales, its hold on the memory of purchaser and the likelihood of associating similar designations on other goods-with the same source. If the trade mark is a coined word, such as Kodak, it is more probable that all goods on which a similar designation is used will be regarded as emanating from the same source than when the trade-mark is one in common use on a variety of goods, such as ‘Gold Seal’ or ‘Excelsior’.” The decisions show that the adoption by a person of an arbitrary, fanciful or distinctive word, such as Aunt Jemima,. Kodak, Rolls Royce, to indicate his goods,, is attended by a monopoly of use in a wide-field. Many of these decisions are listed in Standard Oil Co. of N. Mex. v. Standard Oil Co. of Calif., 10 Cir., 56 F.2d 973, 978, note 1. See, also, California Packing Corp. v. Halferty, 54 App.D.C. 88, 295 F. 229; Elgin American Mfg. Co. v. Elizabeth Arden, 83 F.2d 687, 23 C.C.P.A., Patents, 1168; Four Roses Products Co. v. Small Grain Distillery Co., 58 App.D.C. 299, 29 F.2d 959. Thus, it was held in Standard Oil Co. v. California Peach & Fig Growers, D.C.Del., 28 F.2d 283, that the words “Nujol Treated Figs”, used as a trademark for a laxative, infringed the established trade-mark “Nujol”, as applied to refined mineral oil intended for a like purpose, although it was obvjous that no one receiving a package of figs would believe that he was getting a bottle of oil. The arbitrary name had come to indicate so clearly the producer of the oil that its use upon figs would probably lead purchasers to conclude that both articles had a common origin. The narrow scope which the courts have accorded to words in common use by many manufacturers on a large variety of goods is illustrated in France Milling Co. v. Washburn-Crosby Co., Inc., 2 Cir., 7 F.2d 304, where the words “Gold Medal”, as applied to “straight” wheat flour, were held not to be infringed by the words “Gold Medal” as applied to prepared “pancake” and buckwheat flour. During a period of forty-four years the words had been registered more than sixty times and applied to many diverse articles. The court said (7 F.2d page 306) : “To take another view of the matter, the degree or exclusiveness of appropriation accorded to the originator of a trade-name often varies with the kind of name he originates. If the name or mark be truly arbitrary, strange, and fanciful, it is more specially- and peculiarly significant and suggestive of one man’s goods, than when it is frequently used by many and in many differing kinds of business. Of this ‘Kodak’ is a famous example, and the English courts have prevented one from putting forth Kodak bicycles, at the suit of the originator of the name for a totally different article. * * * “One who devises a new, strange, ‘catching’ word to describe his wares may and often has by timely suit prevented others from taking his word or set of words to gild the repute of even wholly different goods (cases supra) ; but one who takes a phrase which is the common place of self-praise like ‘Blue Ribbon’ or ‘Gold* Medal’ must be content with that special field which he labels with so undistinctive a name.” The word “Simplex”, which was considered in American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317, has had a similar history. The Simplex Railway Appliance Company and its successor used it as a trade-mark on certain railway appliances for twenty years, and its successors then made application to the Patent Office to register it as a trade-mark for other appliances of the same general character. Registration was refused on the ground that “Simplex” was the predominating word in the name of several’corporations. In a subsequent suit under R.S. § 4915 brought by the- applicant against the Simplex Electric Pleating Company, which had also used the word as a trade mark on insulated wire and other goods, if transpired that the word comprised the whole or a part of sixty registered trade-marks, as applied to many classes of merchandise. The Supreme Court held that registration should have been granted because the word had been used so many times in so many different ways that it was no more calculated to denote the defendant corporation than any of the other corporations which had embodied it in their names. In the opinion (269 U.S. page 384, 46 S.Ct. 160, 70 L.Ed. 317), examples of other words of similar character, such as Anchor, Champion, Pride, Star, etc., were given. The restricted field vouchsafed to popular trade-marks devoid of distinctiveness, is disclosed by many decisions denying infringement despite the use of the same word by different persons on goods of .the same general character; for example, “Nox All” on mixed stock food and on wheat flour—Pease v. Scott County Milling Co., D.C.E.D. Mo., 5 F.2d 524; “Par” on hand soap and on granulated soap—Treager v. Gordon-Allen, 9 Cir., 71 F.2d 766; “Sun-Maid” and “Sun-Kist”—California Packing Corp. v. Sun-Maid R. Growers, 9 Cir., 81 F.2d 674; Id., D.C., 7 F.Supp. 497; “Club” on crackers and on cookies—Keebler-Weyl Baking Co. v. J. C. Ivins’ Son, D.C. E.D. Pa., 7 F.Supp. 211; “Trump” on candies and on cookies—Mason, Au & Magenheimer C. Co. v. Loose-Wiles Biscuit Co., D.C. E.D. N.Y., 1 F.Supp. 755; “Emerson” on electric motors and on radios—Emerson Electric Mfg. Co. v. Emerson Radio & P. Corp., 2 Cir., 105 F.2d 908; Id., D.C. S.D.N.Y., 24 F.Supp. 481. The courts have considered the distinctiveness of trade-marks in factual situations very similar to that in the case at bar. Thus it was held in Pabst Brewing Co. v. Decatur Brewing Co., 7 Cir., 284 F. 110, that the name “Blue Ribbon”, which had been registered more than sixty times as a trade-name for various articles of commerce, and had been established by the complainant as a trade-name for beer, was not infringed by its use as a trade-name for malt extract; and in Burger Brewing Co. v. Maloney-Davidson Co., 6 Cir., 86 F.2d 815 that the trade-mark “Buckeye”, as applied to malt syrup, was not infringed by the use of the same trade-mark on beer. The word “Buckeye” had been registered in the Patent Office more than one hundred times by many different persons for a great variety of goods. In Ph Schneider Brewing Co. v. Century Distilling Co., 10 Cir., 107 F.2d 699, the court concluded that there was little likelihood of confusion from the use by one person of labels employing the word “Century” on distilled alcoholic liquors, and the use by another of the same word on several malt beverages. In contrast with these cases is Anheuser Busch, Inc., v. Budweiser Malt Products Co., 2 Cir., 295 F. 306, where it was held that the owner of the distinctive word “Budweiser”, as a trade-mark for beer and malt liquors, was entitled to protection against the use by another of the name “Budweiser Malt Syrup”. It must be conceded that in some of the cited cases the classification of goods has proceeded on very fine lines, and it should be understood that these instances are used to illustrate a principle rather than as examples to be slavishly followed in the future. Moreover; it should be borne in mind that the distinctiveness of a mark is only one of the factors to be taken into account in deciding a question of infringement. Nevertheless the rule that coined or fanciful marks or names should be given a much broader degree of protection than words in common use is sound, for it recognizes not only the orthodox basis of the law of trade-marks that the sale of- the goods of one manufacturer or vendor as those of another should be prevented, but also the fact that in modern business the trade-mark performs the added function of an advertising device, whose value may be injured or destroyed unless protected by the courts. Schechter, The Rational Basis of Trade Mark Protection, 40 Harvard Law Review 813; Restatement of Torts, § 715 (b). In deciding the question in the instant case, two sets of facts, established by the evidence, should be borne in mind: (1) It was shown that the manufacture of beer and ale and the manufacture of cordials and liqueurs are separate industries. In the first, the product is fermented or brewed, while in the second it is distilled. The two industries rnay not be lawfully maintained on the same premises under the federal statutes. An experienced witness testified without contradiction that he knew of no person who made both kinds of goods. It goes without saying that a purchaser desiring an article in one class could not be misled into accepting an article in the other. (2) The word “Arrow” is in very common use as a trade-mark. The word itself or the pictorial representation of an arrow has been registered' ninety-eight times as a trade-mark for various articles, including collars, shirts, playing cards, toggle" bolts, sewing machines, condensed milk, pickles, noodles, etc., etc. Nine times it has been registered for alcoholic beverages, including ale, beer and whiskey. Obviously the word has a common appeal to advertisers, possibly because it suggests the quality indicated by the slogan of Arrow beer that “it hits the spot”. We think it belongs to the class of trademarks whose exclusive field is closely restricted. The inferences, to which the name naturally gives rise, have encouraged so wide a use and so frequent a registration for many different articles that there is little danger that its mere use, even in the closely related fields of beers and cordials, will indicate a common origin or endanger the reputation of the plaintiff’s goods. As we have shown, no actual confusion or intent to deceive is indicated by the evidence. The conclusion is that each party may continue to use the word “Arrow” as a trademark for its goods without infringement of the rights of the other. The decree of the District Court must be reversed and the case remanded with directions to dismiss the complaint of the plaintiff and the counterclaim-of the defendant. Reversed and remanded. 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
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 BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, Appellant, v. Mozart G. RATNER, Appellee. No. 17655. United States Court of Appeals District of Columbia Circuit. Argued Nov. 15, 1963. Decided June 11, 1964. Mr. Abraham J. Harris, Washington, D. C., for appellant. Mr. Sheldon E. Bernstein, Washington, D. C., with whom Mr. Mozart G. Ratner, Washington, D. C., was on the brief for appellee. Mr. Paul H. Mannes, Washington, D. C., also entered an appearance for appellee. Before Edgerton, Senior Circuit Judge, and Fahy and Danaher, Circuit Judges. DANAHER, Circuit Judge. Bakery and Confectionery Workers International Union of America has appealed from an “Order and Judgment” of the District Court in favor of the appel-lee to recover $54,884.91 as counsel fees. The appellee as attorney for five local Union officers had instituted an action, C.A. 686-60, entitled Moschetta, et al. v. Cross, et al., against the International’s President, one James G. Cross; its Secretary-Treasurer, one Peter H. Olson; and five Vice Presidents of the International. All such officers at the time were members of the International’s General Executive Board and occupied positions of trust in relation to the affairs of the International and its membership. Before the District Court was a “second amended and supplemental complaint” which had charged that Bakery and Confectionery Workers’ funds had been unlawfully misappropriated by Cross and that other acts of financial corruption had occurred, with breaches of fiduciary duty and misconduct on the part of the foregoing named officers. The five plaintiffs claimed status to sue individually and also as representatives of some 70,000 Bakery and Confectionery Workers members whose welfare and interest had been damaged. After much litigation in behalf of the class and the performance of other services for the benefit of the International and its members, the appellee moved to withdraw as counsel. He also asked for the appointment of “independent” counsel to continue the class action and that he be compensated for all services and disbursements. The award entered November 6, 1962, ran against the International, its members, the class plaintiffs and others. The International alone has sought review. The appellant argues first that the International and its members may not law fully be held to payment of the judgment since 29 U.S.C. § 501(b) authorizes the trial judge merely to allot “a reasonable part of the recovery * * * to pay the fees of counsel * * * and to compensate” for expenses incurred in litigation brought pursuant to that subsection. It is argued that there was no money “recovery” in behalf of the International from which to “allot” fees and reimbursements. It is additionally con-bended that there can be no valid award running against the International without notice to its membership with respect to the fees since the International, unlike the class plaintiffs, had not been a party to any agreement with counsel, and that the award otherwise lacks support in the :record. The various phases of litigation presented in the District Court, and other .actions pursued by the appellee in be.half of the class and the International’s members reflect a complex background. 'That there had been misappropriation of Union funds is beyond question. The incumbent officers of the International had refused to seek an accounting and •other available relief. A voluntary association of Bakery and Confectionery Workers local union officers was formed, .known as the Local Union Reunification Committee, or LURC. This group was headed by the presidents of five local unions who authorized the institution of the class action, Moschetta v. Cross, to be brought pursuant to a retainer agreement between the LURC plaintiffs and counsel, with provision for litigation disbursements and costs and for compensation to the attorneys. The Moschetta complaint in the District Court had not only expressly sought to recover the counsel fees, costs and expenses incurred in prosecuting the action, but asked for substantial equitable relief including an accounting; restitution of misappropriated funds; an injunction against further misappropriation and diversion of funds of the International; an order against Cross and others to restrain them from penalizing and coercing the Moschetta plaintiffs and other persons cooperating with LURC for the purpose of preventing them from prosecuting the action and from obtaining information relevant thereto; continuous court supervision of the financial practices of the International and its officers; and a prayer that the court order a membership referendum in accordance with the constitution of the International preliminary to the calling of a national convention. The District Court found pursuant to 29 U.S.C. § 501 (b) that “good cause” had been shown for the commencement of the Moschetta proceeding. Confronted by the demands of the class plaintiffs, the record shows, Cross and others expressed willingness in 1960 to settle the pending controversy and reorganize the International. A proposed settlement agreement was filed in the District Court with a motion to dismiss the Moschetta suit, and an appropriate announcement was published in the International’s news letter. However further alleged derelictions on the part of Cross and Olson having come to light, their suspension followed in March 1961. We deem it unnecessary to particularize as to all details of the machination and obstructive tactics thereafter pursued by Cross and the Moschetta defendants. We note first that Cross and others maneuvered for control of the International’s General Executive Board. They succeeded in the installation of International Vice President Landriscina, one of the original defendants, as acting president of the International. Then in April 1961, LURC caused the appellee to reenter the case. The motion to dismiss the complaint was withdrawn and steps were taken pursuant to which the District Court fixed January, 1962 as the date for a court-supervised convention, with provision in the court’s order for the protection of LURC. We Tefer briefly to an earlier but not unrelated aspect of the problem considered by Judge Tamm. While Cross still dominated the International, various officers who had supported LURC were dismissed. Agreeably to the provisions of 29 U.S.C. § 412 as applicable under 29 U.S.C. § 529 (1961) which makes unlawful acts of reprisal against union members who exercise their rights under the Landrum-Griffin Act, one Alvino and three other high-ranking officers of the International brought suit, C.A. 2400-60, Alvino, et al. v. Bakery and Confectionery Workers International Union. The District Court granted a preliminary injunction directing their reinstatement with back pay. Such success in that action and yet other steps in the campaign conducted by and under the direction of the appellee resulted in the election of a pro-LURC slate of officers at the International’s January, 1962 convention. The International’s membership, protected by the District Court’s order, took control of the January, 1962 convention. One Kralstein, reinstated as a result of that order in the Alvino action, became president of the International. The Bakery and Confectionery Journal in February, 1962 noted the part played by LURC in bringing about the convention, particularly recognizing that LURC had been successful in the fight to remove from office the “entrenched International union officials.” At the convention, it was decided that the LURC association should be dissolved and that the International should thereupon become plaintiff in what had been the class action. Present counsel for the appellant was to represent the International. The appellee-was informed that the International, would not accept responsibility for LURC counsel fees “unless and until ordered by a court to do so.” It is un-controverted that from April, 1961 through January 25, 1962, the appellee Ratner had received no payment for his. services or those of his associates. Such in brief summary are some of the circumstances under which the ap-pellee sought to withdraw from the Moschetta case, an award of counsel fees for services rendered, and reimbursement of expenses incurred in connection therewith. Relying upon his familiarity with the entire record in all the litigation and its accompanying aspects, with the memo-randa of the respective parties before him, and on the uncontroverted affidavit of the appellee, Judge Tamm ruled orally: that appellee’s motion to withdraw from the case was to be granted; his motion to appoint “independent” counsel was to be denied but as he noted, only upon the representation by the appellant’s counsel “that the Union intends to employ independent counsel to pursue-the accounting action”; and finally as. follows: “With reference to Mr. Ratner’s motion for a fee in the amount of $54,884.91, the Court will grant the motion. The Court will grant the motion first as to the contracting parties who entered into the fee agreement. The Court will grant the motion second as to the class represented by these named plaintiffs. And third the Court will grant the motion in so far as it assesses the fees against the funds of the Union. The Court believes that this action was initiated, was undertaken, and was prosecuted in the interest of the Union membership as a whole. The Court believes that such fruits as flowed from the lengthy proceedings flowed to the benefit of the Union and for the benefit of all of its members. The Court, accordingly, grants the motion in that regard.” Thereafter Judge Tamm filed the challenged “Order and Judgment” with its award of $54,884.91 “on account of work performed and disbursements incurred” by the appellee and his associates. Recited further in that Order and Judgment are the following findings: “(3) That prior to the filing of the motion for the allowance of fees and disbursements, no protest was ever made as to the quality or nature of the services performed by Mr. Ratner or his associates nor as to the legitimacy of the billing rendered ; X * -X- X * X- “(5) That this suit was initiated and prosecuted in the interest of the Union membership as a whole and such fruits as flowed from the proceedings herein were for the benefit of the Union and all its members; namely, consisting of: “(a) A Court-ordered convention conducted in accordance with the lawful provisions of the Union’s Constitution; “(b) Court orders protecting intra-Union pre-convention political activity from illegal officer restraint and reprisal; and “(c) Court proceedings to enforce this Court’s orders, as aforesaid. “(6) That there is no basis for not honoring the aforementioned fee agreement or for withholding payment of the fees billed as aforesaid * * We are satisfied that the findings and conclusions of the trial judge are clearly supported on the record before us in all respects but one. We are concerned that he has rested the amount of the award against the International simply upon the “retainer agreement entered into between Mr. Ratner and the named plaintiffs on the latter’s behalf and on behalf of all members of the plaintiff class.” That there was a retainer agreement is beyond question. Its provisions may be taken to be controlling and to support the award insofar as liability has been asserted against the class plaintiffs. To that extent and on that basis the findings are adequate, for the compensation therein as fixed by the parties to that agreement fairly measures the services rendered to the Moschetta plaintiffs. They have not appealed. How to evaluate the legal services which inured to the benefit of the International and its membership for the period from April, 1961 through January 25, 1962 involves a different question. To be sure, compensation at the rates provided in the retainer agreement with the class plaintiffs may be considered as some evidence of the value which the ap-pellee initially placed upon his own services. But that agreement was arrived at when only the class action lay ahead. Counsel could not have then known that the Alvino suit would become necessary, nor could he have known of its important impact in paving the way for the convention. The protective court orders, the conferences and other services up to and including the convention, the ultimate reorganization of the International and its restoration to the control of its membership in accordance with the International constitution must be taken into account. The value of legal services so rendered may even be greater than a computation based upon the scale provided in the retainer agreement. In any event the services rendered by the appellee and his associates are to be measured in terms of value of the benefits afforded to the International and its membership. Since the liability of the International and its membership did not here rest upon a contract, quantum meruit provides the rule which, we are satisfied, must be applied in an ascertainment of that value. In different context but to the same end we approached a phase of this problem in Milone v. English where we said: “It lies now within the sound discretion of the -District Court, though it is under no legal compulsion to do so, to require the International to pay reasonable counsel fees to appellants’ counsel should the court find, either or both, that they have materially aided in the creation of a fund for the benefit of the International by reason of the eventualities of our remand above authorized, or that they have benefited the International in other ways.” (Emphasis added.) We thus recognized the standard to be one of reasonableness, as related to and reflecting benefits to the International “in other ways” than the mere creation of a fund. The appellant insists that section 501(b) limits the allotment of fees to the appellee to whatever money “recovery” may have become available through his efforts. We reject that contention. Congress in section 501(a) has. defined the fiduciary status of union officers. They are to execute their trust, for the benefit of the organization and its-members. Should such officers violate their trust, a member of the union is authorized under section 501(b) to initiate-steps looking toward remedial action. Thus, any such member and his counsel are to be protected, all to the end that, the membership itself may police its own. labor organization, whether the suit seeks damages or an accounting “or other appropriate relief for the benefit of the-labor organization.” Here the defalcation and pilfering of' the International’s treasury by Cross and', others, the impairment of the pension fund of the membership, the establishment of proper accounting procedures,, the calling of a convention for membership expression and control, and the requirement of conformity by the officers, with the International’s constitution in. their conduct of the business of the International were among the proper subjects of concern to the entire membership. With respect thereto, the accomplishment of benefits to the membership-as “appropriate relief” might well be achieved under court authority without monetary “recovery” as such. The payment of fees earned and reimbursement, of expenses incurred became the obligation of the International under traditional equitable principles which were-simply called into play pursuant to the-authorization for action under section 501. The claimed limitation relied upon by the appellant does not exclude the International's liability for reasonable fees,, properly earned. Rather the language is. permissive. It means no more than this:: where a monetary recovery has in fact been achieved, that fund may constitute a source from which the trial judge “may allot a reasonable part” for the payment of counsel fees and disbursements. Appellant would undercut our conclusion as to the fee liability of the International and its membership by a reference to Cunningham v. English. But there we were concerned with a unique situation where the District Court had created a Board of Monitors to assist it in exercising its equitable powers with respect to a complicated situation affecting 1,500,000 union members. The court without notice had entered a consent decree, the effect of which had engaged our attention. Here almost from the outset, the International was a party. At no time did it controvert the facts as attested in the appellee’s affidavit or as perceived and expressed by the District Judge in charge throughout. The International had received the benefits from the appellee’s services in various respects including those derived from the class action, and thereafter had taken over prosecution of the litigation. The International and its membership had notice of all proceedings and had participated therein. For the reasons but upon the basis previously treated, there remains only the matter of ascertainment of the value of the benefits to the International and its membership to predicate whatever award the District Court equitably shall determine to be due. On this account only do we now reverse. Reversed and remanded for further proceedings consistent with this opinion. . Pursuant to § 501 of the Labor-Management Reporting and Disclosure Act, 1959 (LMRDA), 73 Stat. 535 (1959), 29 U.S. C. § 501. . For example, Cross was convicted of various offenses including criminal conspiracy and embezzlement by agent and was sentenced to imprisonment. No appeal was taken. . Legal services were to be paid thus: Mozart G. Ratner, $35 per bour; Sidney Dickstein & David I. Shapiro, $25 per hour; junior associate counsel, $15 per hour. Pursuant to that agreement and for the period up to April 18, 1961, counsel were paid substantial legal fees and •expenses which are not here involved. . In due course, District Judge Tamm was designated as a “special judge” to take charge of all aspects of the litigation, including motions, pretrial proceedings and trial. Of. Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351; and the sample order at 378. . Up to this point, the appellee and his associate counsel had received payment for their services under their retainer agreement with LURC. See note 3 supra. . Three separate appeals, Nos. 16474, 16478 and 16480, were brought to this court involving protective orders of the District Court. These appeals were here consolidated, only to be dismissed after the International’s convention was held in January, 1962. The appellee appeared as attorney for the Moschetta plaintiffs in these cases. . The appellant on brief tells us: “The Moschetta case succeeded in forcing the convention some months earlier in 1962 than it otherwise would have been held, since anti-LURC forces planned a convention for the fall of 1962. This was-the one tangible achievement of the litigation.” . See vote 3 supra. . Text, supra, and see 46 LRRM 2812 (D. D.C.1960). Judge Tamm expressly found —correctly we think — that the appellee’s services in the Alvino case were to be covered by the compensation award. . 113 U.S.App.D.C. 207, 212, 306 F.2d 814, 819 (1962) ; and see Angoff v. Goldfine, 270 F.2d 185, 188-189 (1 Cir. 1959). . Johnson v. Nelson, 325 F.2d 646, 650 (8 Cir. 1963) ; and see generally, Counsel Fees For Union Officers Under The Fiduciary Provision of Landrum-Griffin, 73 Yale L.J. 443, 468, 470 (1964). . Sprague v. Ticonic Bank, 307 U.S. 161, 166-167, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Here an assessment of less than one dollar per member would discharge the-entire judgment as awarded here against the International. . 106 U.S.App.D.C. 92, 94, 269 F.2d 539, 541 (1959), where we said: “Notice should have been given to the membership before approval by a court of equity of this obligation upon union funds, oven if not required by Rule 23.” Apart from appellant’s failure to make a record on this ground in the District Court, the situation here is clearly distinguishable. . English v. Cunningham, 106 U.S.App. D.C. 70, 74, 269 F.2d 517, 521 (1959). . Ibid., cert. denied, 361 U.S. 897, 80 S. Ct. 195, 4 L.Ed.2d 152 (1959), and memorandum of Mr. Justice Frankfurter at 361 U.S. 905, 909-910, 80 S.Ct. 187, 188, 189. . He found that there was “no basis * * * for withholding payment of the fees,” but added “as billed,” i. e. per the retainer agreement. This latter phase has been discussed, text supra. . Cf. Angoff v. Goldfine, supra note 10, 270 F.2d at 188-93; Wyoming Ry. Co. v. Herrington, 163 F.2d 1004, 1006-1007 (10 Cir. 1947) ; Blackhurst v. Johnson, 72 F.2d 644, 648 (8 Cir. 1934). . Cf. Sherwin v. Welch, 115 U.S.App). D.C. 328, 331, 319 F.2d 729. 732 (1963). Question: 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_adminaction
069
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. UNITED STATES v. BYRUM, EXECUTRIX No. 71-308. Argued March 1, 1972 Decided June 26, 1972 Powell, J., delivered the opinion of the Court, in which BuRGer, C. J., and Douglas, Stewart, Marshall, and RehNQUist, JJ., joined. White, J., filed a dissenting opinion, in which BrenNAN and BlacicmuN, JJ., joined, -post, p. 151. Matthew J. Zinn argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Crampton, Loring W. Post, and Donald H. Olson. Larry H. Snyder argued the cause and filed a brief for respondent. Simon H. Rif kind, Adrian W. DeWind, James B. Lewis, and Maurice Austin filed a brief for Gilman et al., Executors, as amici curiae urging affirmance. Mr. Justice Powell delivered the opinion of the Court. Decedent, Milliken C. Byrum, created in 1958 an irrevocable trust to which he transferred shares of stock in three closely held corporations. Prior to transfer, he owned at least 71% of the outstanding stock of each corporation. The beneficiaries were his children or, in the event of their death before the termination of the trust, their surviving children. The trust instrument specified that there be a corporate trustee. Byrum designated as sole trustee an independent corporation, Huntington National Bank. The trust agreement vested in the trustee broad and detailed powers with respect to the control and management of the trust property. These powers were exercisable in the trustee’s sole discretion, subject to certain rights reserved by Byrum: (i) to vote the shares of unlisted stock held in the trust estate; (ii) to disapprove the sale or transfer of any trust assets, including the shares transferred to the trust; (iii) to approve investments and reinvestments; and (iv) to remove the trustee and “designate another corporate Trustee to serve as successor.” Until the youngest living child reached age 21, the trustee was authorized in its “absolute and sole discretion” to pay the income and principal of the trust to or for the benefit of the beneficiaries, “with due regard to their individual needs for education, care, maintenance and support.” After the youngest child reached 21, the trust was to be divided into a separate trust for each child, to terminate when the beneficiaries reached 35. The trustee was authorized in its discretion to pay income and principal from these trusts to the beneficiaries for emergency or other “worthy need,” including education. When he died in 1964, Byrum owned less than 60% of the common stock in two of the corporations and 59% in the third. The trust had retained the shares transferred to it, with the result that Byrum had continued to have the right to vote not less than 71% of the common stock in each of the three corporations. There were minority stockholders, unrelated to Byrum, in each corporation. Following Byrum’s death, the Commissioner of Internal Revenue determined that the transferred stock was properly included within Byrum’s gross estate under § 2036 (a) of the Internal Revenue Code of 1954, 26 U. S. C. §2036 (a). That section provides for the inclusion in a decedent’s gross estate of all property which the decedent has transferred by inter vivos transaction, if he has retained for his lifetime “(1) the possession or enjoyment of, or the right to the income from, the property” transferred, or “(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.” The Commissioner determined that the stock transferred into the trust should be included in Byrum’s gross estate because of the rights reserved by him in the trust agreement. It was asserted that his right to vote the transferred shares and to veto any sale thereof by the trustee, together with the ownership of other shares, enabled Byrum to retain the “enjoyment of... the property,” and also allowed him to determine the flow of income to the trust and thereby “designate the persons who shall... enjoy... the income.” The executrix of Byrum’s estate paid an additional tax of $13,202.45, and thereafter brought this refund action in District Court. The facts not being in dispute, the court ruled for the executrix on cross motions for summary judgment. 311 F. Supp. 892 (SD Ohio 1970). The Court of Appeals affirmed, one judge dissenting. 440 F. 2d 949 (CA6 1971). We granted the Government’s petition for certiorari. 404 U. S. 937 (1971). I The Government relies primarily on its claim, made under §2036 (a)(2), that Byrum retained the right to designate the persons who shall enjoy the income from the transferred property. The argument is a complicated one. By retaining voting control over the corporations whose stock was transferred, Byrum was in a position to select the corporate directors. He could retain this position by not selling the shares he owned and by vetoing any sale by the trustee of the transferred shares. These rights, it is said, gave him control over corporate dividend policy. By increasing, decreasing, or stopping dividends completely, it is argued that Byrum could “regulate the flow of income to the trust” and thereby shift or defer the beneficial enjoyment of trust income between the present beneficiaries and the re-maindermen. The sum of this retained power is said to be tantamount to a grantor-trustee’s power to accumulate income in the trust, which this Court has recognized constitutes the power to designate the persons who shall enjoy the income from transferred property. At the outset we observe that this Court has never held that trust property must be included in a settlor’s gross estate solely because the settlor retained the power to manage trust assets. On the contrary, since our decision in Reinecke v. Northern Trust Co., 278 U. S. 339 (1929), it has been recognized that a settlor’s retention of broad powers of management does not necessarily subject an inter vivos trust to the federal estate tax. Although there was no statutory analogue to § 2036 (a)(2) when Northern Trust was decided, several lower court decisions decided after the enactment of the predecessor of § 2036 (a)(2) have upheld the settlor’s right to exercise managerial powers without incurring estate-tax liability. In Estate of King v. Commissioner, 37 T. C. 973 (1962), a settlor reserved the power to direct the trustee in the management and investment of trust assets. The Government argued that the settlor was thereby empowered to cause investments to be made in such a manner as to control significantly the flow of income into the trust. The Tax Court rejected this argument, and held for the taxpayer. Although the court recognized that the settlor had reserved “wide latitude in the exercise of his discretion as to the types of investments to be made,” id., at 980, it did not find this control over the flow of income to be equivalent to the power to designate who shall enjoy the income from the transferred property. Essentially the power retained by Byrum is the same managerial power retained by the settlors in Northern Trust and in King. Although neither case controls this one — Northern Trust, because it was not decided under §2036 (a)(2) or a predecessor; and King, because it is a lower court opinion — the existence of such precedents carries weight. The holding of Northern Trust, that the settlor of a trust may retain broad powers of management without adverse estate-tax consequences, may have been relied upon in the drafting of hundreds of inter vivos trusts. The modification of this principle now sought by the Government could have a seriously adverse impact, especially upon settlors (and their estates) who happen to have been “controlling” stockholders of a closely held corporation. Courts properly have been reluctant to depart from an interpretation of tax law which has been generally accepted when the departure could have potentially far-reaching consequences. When a principle of taxation requires reexamination, Congress is better equipped than a court to define precisely the type of conduct which results in tax consequences. When courts readily undertake such tasks, taxpayers may not rely with assurance on what appear to be established rules lest they be subsequently overturned. Legislative enactments, on the other hand, although not always free from ambiguity, at least afford the taxpayers advance warning. The Government argues, however, that our opinion in United States v. O’Malley, 383 U. S. 627 (1966), compels the inclusion in Byrum’s estate of the stock owned by the trust. In O’Malley, the settlor of an inter vivos trust named himself as one of the three trustees. The trust agreement authorized the trustees to pay income to the life beneficiary or to accumulate it as a part of the principal of the trust in their “sole discretion.” The agreement further provided that net income retained by the trustees, and not distributed in any calendar year, “'shall become a part of the principal of the Trust Estate.’ ” Id., at 629 n. 2. The Court characterized the effect of the trust as follows: “Here Fabrice [the settlor] was empowered, with the other trustees, to distribute the trust income to the income beneficiaries or to accumulate it and add it to the principal, thereby denying to the beneficiaries the privilege of immediate enjoyment and conditioning their eventual enjoyment upon surviving the termination of the trust.” Id., at 631. As the retention of this legal right by the settlor, acting as a trustee “in conjunction” with the other trustees, came squarely within the language and intent of the predecessor of § 2036 (a)(2), the taxpayer conceded that the original assets transferred into the trust were in-cludable in the decedent’s gross estate. Id., at 632. The issue before the Court was whether the accumulated income, which had been added to the principal pursuant to the reservation of right in that respect, was also in-cludable in decedent’s estate for tax purposes. The Court held that it was. In our view, and for the purposes of this case, O’Malley adds nothing to the statute itself. The facts in that case were clearly within the ambit of what is now § 2036 (a). That section requires that the settlor must have “retained for his life... (2) the right... to designate the persons who shall possess or enjoy the property or the income therefrom.” O’Malley was covered precisely by the statute for two reasons: (1) there the settlor had reserved a legal right, set forth in the trust instrument; and (2) this right expressly authorized the settlor, “in conjunction” with others, to accumulate income and thereby “to designate” the persons to enjoy it. It must be conceded that Byrum reserved no such “right” in the trust instrument or otherwise. The term “right,” certainly when used in a tax statute, must be given its normal and customary meaning. It connotes an ascertainable and legally enforceable power, such as that involved in O’Malley. Here, the right ascribed to Byrum was the power to use his majority position and influence over the corporate directors to “regulate the flow of dividends” to the trust. That “right” was neither ascertainable nor legally enforceable and hence was not a right in any normal sense of that term. Byrum did retain the legal right to vote shares held by the trust and to veto investments and reinvestments. But the corporate trustee alone, not Byrum, had the right to pay out or withhold income and thereby to designate who among the beneficiaries enjoyed such income. Whatever power Byrum may have possessed with respect to the flow of income into the trust was derived not from an enforceable legal right specified in the trust instrument, but from the fact that he could elect a majority of the directors of the three corporations. The power to elect the directors conferred no legal right to command them to pay or not to pay dividends. A majority shareholder has a fiduciary duty not to misuse his power by promoting his personal interests at the expense of corporate interests. Moreover, the directors also have a fiduciary duty to promote the interests of the corporation. However great Byrum’s influence may have been with the corporate directors, their responsibilities were to all stockholders and were enforceable according to legal standards entirely unrelated to the needs of the trust or to Byrum’s desires with respect thereto. The Government seeks to equate the de facto position of a controlling stockholder with the legally enforceable “right” specified by the statute. Retention of corporate control (through the right to vote the shares) is said to be “tantamount to the power to accumulate income” in the trust which resulted in estate-tax consequences in O’Malley. The Government goes on to assert that “[tjhrough exercise of that retained power, [Byrum] could increase or decrease corporate dividends... and thereby shift or defer the beneficial enjoyment of trust income.” This approach seems to us not only to depart from the specific statutory language, but also to misconceive the realities of corporate life. There is no reason to suppose that the three corporations controlled by Byrum were other than typical small businesses. The customary vicissitudes of such enterprises — bad years; product obsolescence; new competition; disastrous litigation; new, inhibiting Government regulations; even bankruptcy — prevent any certainty or predictability as to earnings or dividends. There is no assurance that a small corporation will have a flow of net earnings or that income earned will in fact be available for dividends. Thus, Byrum’s alleged de jacto “power to control the flow of dividends” to the trust was subject to business and economic variables over which he had little or no control. Even where there are corporate earnings, the legal power to declare dividends is vested solely in the corporate board. In making decisions with respect to dividends, the board must consider a number of factors. It must balance the expectation of stockholders to reasonable dividends when earned against corporate needs for retention of earnings. The first responsibility of the board is to safeguard corporate financial viability for the long term. This means, among other things, the retention of sufficient earnings to assure adequate working capital as well as resources for retirement of debt, for replacement and modernization of plant and equipment, and for growth and expansion. The nature of a corporation’s business, as well as the policies and long-range plans of management, are also relevant to dividend payment decisions. Directors of a closely held, small corporation must bear in mind the relatively limited access of such an enterprise to capital markets. This may require a more conservative policy with respect to dividends than would be expected of an established corporation with securities listed on national exchanges. Nor do small corporations have the flexibility or the opportunity available to national concerns in the utilization of retained earnings. When earnings are substantial, a decision not to pay dividends may result only in the accumulation of surplus rather than growth through internal or external expansion. The accumulated earnings may result in the imposition of a penalty tax. These various economic considerations are ignored at the directors’ peril. Although vested with broad discretion in determining whether, when, and what amount of dividends shall be paid, that discretion is subject to legal restraints. If, in obedience to the will of the majority stockholder, corporate directors disregard the interests of shareholders by accumulating earnings to an unreasonable extent, they are vulnerable to a derivative suit. They are similarly vulnerable if they make an unlawful payment of dividends in the absence of net earnings or available surplus, or if they fail to exercise the requisite degree of care in discharging their duty to act only in the best interest of the corporation and its stockholders. Byrum was similarly inhibited by a fiduciary duty from abusing his position as majority shareholder for personal or family advantage to the detriment of the corporation or other stockholders. There were a substantial number of minority stockholders in these corporations who were unrelated to Byrum. Had Byrum and the directors violated their duties, the minority shareholders would have had a cause of action under Ohio law. The Huntington National Bank, as trustee, was one of the minority stockholders, and it had both the right and the duty to hold Byrum responsible for any wrongful or negligent action as a controlling stockholder or as a director of the corporations. Although Byrum had reserved the right to remove the trustee, he would have been imprudent to do this when confronted by the trustee’s complaint against his conduct. A successor trustee would succeed to the rights of the one removed. We conclude that Byrum did not have an unconstrained de facto power to regulate the flow of dividends to the trust, much less the ‘‘right” to designate who was to enjoy the income from trust property. His ability to affect, but not control, trust income, was a qualitatively different power from that of the settlor in O’Malley, who had a specific and enforceable right to control the income paid to the beneficiaries. Even had Byrum managed to flood the trust with income, he had no way of compelling the trustee to pay it out rather than accumulate it. Nor could he prevent the trustee from making payments from other trust assets, although admittedly there were few of these at the time of Byrum’s death. We cannot assume, however, that no other assets would come into the trust from reinvestments or other gifts. We find no merit to the Government’s contention that Byrum’s de facto “control,” subject as it was to the economic and legal constraints set forth above, was tantamount to the right to designate the persons who shall enjoy trust income, specified by § 2036 (a)(2). II The Government asserts an alternative ground for including the shares transferred to the trust within Byrum’s gross estate. It argues that by retaining control, Byrum guaranteed himself continued employment and remuneration, as well as the right to determine whether and when the corporations would be liquidated or merged. Byrum is thus said to have retained “the... enjoyment of... the property” making it includable within his gross estate under §2036 (a)(1). The Government concedes that the retention of the voting rights of an “unimportant minority interest” would not require inclusion of the transferred shares under § 2036 (a)(1). It argues, however, “where the cumulative effect of the retained powers and the rights flowing from the shares not placed in trust leaves the grantor in control of a close corporation, and assures that control for his lifetime, he has retained the 'enjoyment’ of the transferred stock.” Brief for United States 23. It is well settled that the terms “enjoy” and “enjoyment,” as used in various estate tax statutes, “are not terms of art, but connote substantial present economic benefit rather than technical vesting of title or estates.” Commissioner v. Estate of Holmes, 326 U. S. 480, 486 (1946). For example, in Reinecke v. Northern Trust Co., 278 U. S. 339 (1929), in which the critical inquiry was whether the decedent had created a trust “intended... ‘to take effect in possession or enjoyment at or after his death,’ ” id., at 348, the Court held that reserved powers of management of trust assets, similar to Byrum’s power over the three corporations, did not subject an inter vivos trust to the federal estate tax. In determining whether the settlor had retained the enjoyment of the transferred property, the Court said: “Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not for that reason have been incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power.to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.” 278 U. S., at 346-347. The cases cited by the Government reveal that the terms “possession” and “enjoyment,” used in § 2036 (a) (1), were used to deal with situations in which the owner of property divested himself of title but retained an income interest or, in the case of real property, the lifetime use of the property. Mr. Justice Black’s opinion for the Court in Commissioner v. Estate of Church, 335 U. S. 632 (1949), traces the history of the concept. In none of the cases cited by the Government has a court held that a person has retained possession or enjoyment of the property if he has transferred title irrevocably, made complete delivery of the property and relinquished the right to income where the property is income producing. The Government cites only one case, Estate of Holland v. Commissioner, 1 T. C. 564 (1943), in which a decedent had retained the right to vote transferred shares of stock and in which the stock was included within the decedent’s gross estate. In that case, it was not the mere power to vote the stock, giving the decedent control of the corporation, which caused the Tax Court to include the shares. The court held that “ 'on an inclusive view of the whole arrangement, this withholding of the income until decedent’s death, coupled with the retention of the certificates under the pledge and the reservation of the right to vote the stock and to designate the company officers’ ” subjects the stock to inclusion within the gross estate. Id., at 565. The settlor in Holland retained a considerably greater interest than Byrum retained, including an income interest. As the Government concedes, the mere retention of the right-to-vote shares does not constitute the type of “enjoyment” in the property itself contemplated by § 2036 (a)(1). In addition to being against the weight of precedent, the Government’s argument that Byrum retained “enjoyment” within the meaning of § 2036 (a)(1) is conceptually unsound. This argument implies, as it must under the express language of § 2036 (a), that Byrum “retained for his life... (1) the possession or enjoyment” of the “property” transferred to the trust or the “income” therefrom. The only property he transferred was corporate stock. He did not transfer “control” (in the sense used by the Government) as the trust never owned as much as 50% of the stock of any corporation. Byrum never divested himself of control, as he was able to vote a majority of the shares by virtue of what he owned and the right to vote those placed in the trust. Indeed, at the time of his death he still owned a majority of the shares in the largest of the corporations and probably would have exercised control of the other two by virtue of being a large stockholder in each. The statutory language plainly contemplates retention of an attribute of the property transferred — such as a right to income, use of the property itself, or a power of appointment with respect either to income or principal. Even if Byrum had transferred a majority of the stock, but had retained voting control, he would not have retained “substantial present economic benefit,” 326 U. S., at 486. The Government points to the retention of two “benefits.” The first of these, the power to liquidate or merge, is not a present benefit; rather, it is a speculative and contingent benefit which may or may not be realized. Nor is the probability of continued employment and compensation the substantial “enjoyment of... [the transferred] property” within the meaning of the statute. The dominant stockholder in a closely held corporation,.if he is active and productive, is likely to hold a senior position and to enjoy the advantage of a significant voice in his own compensation. These are inevitable facts of the free-enterprise system, but the influence and capability of a controlling stockholder to favor himself are not without constraints. Where there are minority stockholders, as in this case, directors may be held accountable if their employment, compensation, and retention of officers violate their duty to act reasonably in the best interest of the corporation and all of its stockholders. Moreover, this duty is policed, albeit indirectly, by the Internal Revenue Service, which disallows the deduction of unreasonable compensation paid to a corporate executive as a business expense. We conclude that Byrum’s retention of voting control was not the retention of the enjoyment of the transferred property within the meaning of the statute. For the reasons set forth above, we hold that this case was correctly decided by the Court of Appeals and accordingly the judgment is Affirmed. The Trust Agreement in pertinent part provided: “Article IV. Irrevocable Trust. “This Trust shall be irrevocable and Grantor reserves no rights, powers, privileges or benefits either as to the Trust estate or the control or management of the trust property, except as set forth herein. “Article V. Powers Of The Trustee. “The Trustee shall have and possess and may exercise at all times not only the rights, powers and authorities incident to the office or required in the discharge of this trust, or impliedly conferred upon or vested in it, but there is hereby expressly conferred upon and vested in the Trustee all the rights, powers and authorities embodied in the following paragraphs in this Article, which are shown by way of illustration but not by way of limitation: “Sell. 5.02 To sell at public or private sale, to grant options to sell, to exchange, re-exchange or otherwise dispose of all or part of the property, real or personal, at any time belonging to the Trust Estate, upon such terms and conditions and for such consideration as said Trustee shall determine, and to execute and deliver all instruments of sale or conveyance necessary or desirable therefor. “Investments. 5.05 To invest any money in the Trust Estate in stocks, bonds, investment trusts, common trust funds and any other securities or property, real or personal, secured or unsecured, whether the obligations of individuals, corporations, trusts, associations, governments, expressly including shares and/or obligations of its own corporation, or otherwise, either within or outside of the State of Ohio, as the Trustee shall deem advisable, without any limitation whatsoever as to the character of investment under any statute or rule of law now or hereafter enacted or existing regarding trust funds or investments by fiduciaries or otherwise. “Voting. 5.06 To vote by proxy or in person any stock or security comprising a part of the Trust Estate, at any meeting, except that, during Grantor’s lifetime, all voting rights of any stocks which are not listed on a stock exchange, shall be exercised by Grantor, and after Grantor’s death, the voting rights of such stocks shall be exercised by Grantor’s wife during her lifetime. “Leases. 5.09 To make leases for any length of time, whether longer or shorter than the duration of this Trust, to commence at the present time or in the future; to extend any lease; to grant options to lease or to renew any lease; it being expressly understood that the Trustee may grant or enter into ninety-nine year leases, renewable forever. “Income Allocation. 5.13 To determine in its discretion how all receipts and disbursements, capital gains and losses, shall be charged, credited or apportioned between income and principal. “Limitation. 5.15 Notwithstanding the powers of the Trustee granted in paragraphs 5.02, 5.05, 5.09 and 5.11 above, the Trustee shall not exercise any of the powers granted in said paragraphs unless (a) during Grantor’s lifetime said Grantor shall approve of the action taken by the Trustee pursuant to said powers, (b) after the death of the Grantor and as long as his wife, Marian A. Byrum, shall live, said wife shall approve of the action taken by the Trustee pursuant to said powers. “Article VI. Distribution Prior To Age 21. “Until my youngest living child reaches the age of twenty-one (21) years, the Trustee shall exercise absolute and sole discretion in paying or applying income and/or principal of the Trust to or for the benefit of Grantor’s child or children and their issue, with due regard to their individual needs for education, care, maintenance and support and not necessarily in equal shares, per stirpes. The decision of the Trustee in the dispensing of Trust funds for such purposes shall be final and binding on all interested persons. “Article VI. Division At Age 21. “Principal Disbursements. 6.02 If prior to attaining the age of thirty-five (35), any one of the children of Grantor shall have an emergency such as an extended illness requiring unusual medical or hospital expenses, or any other worthy need including education of such child, the Trustee is hereby authorized and empowered to pay such child or use for his or her benefit such amounts of income and principal of the Trust as the Trustee in its sole judgment and discretion shall determine. “Article VIII. Removal of Trustee. “If the Trustee, The Huntington National Bank of Columbus, Columbus, Ohio, shall at any time change its name or combine with one or more corporations under one or more different names, or if its assets and business at any time shall be purchased and absorbed by another trust company or corporation authorized by law to accept these trusts, the new or successor corporation shall be considered as the said The Huntington National Bank of Columbus, Ohio, and shall continue said Trusts and succeed to all the rights, privileges, duties and obligations herein conferred upon said The Huntington National Bank of Columbus, Columbus, Ohio, Trustee. “Grantor, prior to his death, and after the death of the Grantor, the Grantor’s wife, Marian A. Byrum, during her lifetime, may remove or cause the removal of The Huntington National Bank of Columbus, Ohio, or any successor Trustee, as Trustee under the Trusts and may thereupon designate another corporate Trustee to serve as successor Trustee hereunder. “Article IX. Miscellaneous Provisions. “Discretion. 9.02 If in the opinion of the Trustee it shall appear that the total income of any beneficiary of any Trust fund created hereunder is insufficient for his or her proper or suitable support, care and comfort, and education and that of said beneficiary’s children, the Trustee is authorized to pay to or for such beneficiary or child such additional amounts from the principal of the Trust Estate as it shall deem advisable in order to provide suitably and properly for the support, care, comfort, and education of said beneficiary and of said beneficiary’s children, and the action of the Trustee in making such payments shall be binding on all persons.” The actual proportions were: Total Percentage Percentage Percentage Owned by Owned by Owned by Decedent Decedent Trust and Trust Byrum Lithographing Co., Inc. 59 12 71 Graphic Realty, Inc. 35 48 83 By chrome Co. 42 46 88 26 U. S. C. §2036 provides: “(a) General rule. “The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death— “(1) the possession or enjoyment of, or the right to the income from, the property, or “(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.” United States v. O’Malley, 383 U. S. 627 (1966). It is irrelevant to this argument how many shares Byrum transferred to the 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_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". NATIONAL CUSTOMS BROKERS & FORWARDERS ASSOCIATION OF AMERICA, INC., Petitioner, v. UNITED STATES of America and the Federal Maritime Commission, Respondents, ‘8900’ Lines, U.S. Atlantic-North Europe Conference, et al., Atlantic & Gulf/West Coast of South America Conference, et al., Pacific Coast/Australia-New Zealand Tariff Bureau, et al., Intervenors. No. 87-1754. United States Court of Appeals, District of Columbia Circuit. Argued May 4, 1989. Decided June 30, 1989. Gerald H. Ullman, New York City, with whom Olga Boikess, Washington, D.C., was on the brief, for petitioner. Gordon M. Shaw, Atty., Federal Maritime Com’n, with whom Robert D. Bour-goin, General Counsel, Federal Maritime Com’n, John J. Powers, III and Robert J. Wiggers, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondent. Howard A. Levy, with whom Marc J. Fink, F. Conger Fawcett, David C. Nolan, Eliot J. Halperin, Washington, D.C., Nathan J. Bayer, and Kevin Keelan, New York City, were on the brief, for inter-venors. William Karas, Washington, D.C., also entered an appearance for intervenor. Before WALD, Chief Judge, RUTH BADER GINSBURG and BUCKLEY, Circuit Judges. Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG. RUTH BADER GINSBURG, Circuit Judge. The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) seeks review of a Federal Maritime Commission (FMC or Commission) order dismissing the NCBFAA’s petition to initiate a rulemaking proceeding. Petitioner NCBFAA sought Commission repeal of certain regulations governing ocean freight forwarding; the challenged regulations, the NCBFAA contends, are not authorized by the Shipping Act of 1984, 46 U.S.C. App. sections 1701-1720 (Supp. Ill 1985) (1984 Act), or are otherwise unreasonable. The NCBFAA also proposed rules to check particular practices of ocean common carriers. We hold that the FMC reasonably interpreted the Shipping Act of 1984 to authorize the challenged regulations and adequately explained its denial of the NCBFAA’s rulemaking petition. Given the extraordinary deference due an agency when it declines to undertake a rulemak-ing, parties should hesitate to bring challenges unless they have far stronger grounds than those offered by petitioner in this case. I. BACKGROUND Ocean freight forwarders arrange for exportation and transportation of merchandise via ocean carriers. As defined in the Shipping Act of 1984, “ocean freight forwarder” means: a person in the United States that (A) dispatches shipments from the United States via common carriers and books or otherwise arranges space for those shipments on behalf of shippers; and (B) processes the documentation or performs related activities incident to those shipments. Id. section 1702(19). A forwarder secures cargo space with a shipping line (books the cargo), coordinates the movement of cargo to shipside, arranges for the payment of ocean freight charges, and prepares and processes the ocean bills of lading, export declarations, and other documentation. Forwarders often perform ac-cessorial services for the exporter, such as arranging insurance, trucking, and warehousing. A forwarder receives compensation for its services both from its customer (the exporter or consignee) and from the ocean carrier. Customers pay a fee for accessorial services charged as a “markup” over the forwarder’s actual disbursements. Carriers pay forwarders “brokerage,” compensation in the form of a percentage of the ocean freight, but only when the ocean freight forwarder has certified in writing that it holds a valid license and has performed the following services: (A) Engaged, booked, secured, reserved, or contracted directly with the carrier or its agent for space aboard a vessel or confirmed the availability of that space. (B) Prepared and processed the ocean bill of lading, dock receipt, or other similar document with respect to the shipment. Id. Section 1718(d). Section 19 of the Shipping Act of 1984, id. section 1718, contains specific limitations not only on the compensation of forwarders by carriers, but also on entry into the business of ocean freight forwarding. The forwarder is the only entity regulated by the FMC that is required to obtain a license before it can operate lawfully. To obtain a forwarder’s license, an applicant must demonstrate experience and character qualifications and furnish a bond to insure financial responsibility. Id. section 1718(a). Comprehensive forwarder regulation had its inception in 1946 when the Supreme Court held in United States v. American Union Transport, Inc., 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772 (1946), that independent ocean freight forwarders were subject to the regulatory provisions of the Shipping Act of 1916, 46 U.S.C.App. sections 801-842 (1982) (1916 Act). Following extensive investigation in the late 1940s, regulations issued in 1950 governing forwarder billing practices and carrier payments to forwarders. In 1954, the Federal Maritime Board (FMB) launched a second industry-wide investigation, culminating in 1961 in the publication of additional regulations. Investigation of Practices, Operations, Actions & Agreements of Ocean Freight Forwarders, 6 F.M.B. 327 (1961) (Ocean Freight Forwarders). The 1961 regulations declared “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of the 1916 Act. Id. at 359, 366-67. That same year, 1961, Congress provided for the licensing of ocean freight forwarders and confined payment of forwarder compensation by carriers to licensed forwarders that had performed specified services on behalf of the carrier and had so certified. Pub.L. No. 87-254, 75 Stat. 522 (codified as amended at 46 U.S.C.App. section 801; 46 U.S.C. section 841b). Pursuant to statutory direction to prescribe ‘reasonable rules and regulations’ governing forwarders, 46 U.S.C. section 841b(c), the FMC promulgated comprehensive rules, including one that required a forwarder to itemize on its bill its actual expenditures on the shipper’s behalf, as well as the charges or fees assessed for its own services. These rules were affirmed in New York Foreign Freight Forwarders & Brokers Association v. FMC, 337 F.2d 289 (2d Cir.1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965). The FMC subsequently promulgated or considered further rules on which this case centers. In 1963, the Commission permitted carriers by water to perform forwarding services with respect to cargo they transport under their own bills of lading. 28 Fed.Reg. 4300, 4301 (1963). The legality of this rule remained unchallenged until now. In 1980, the FMC considered regulatory revisions designed to: (1) prohibit carriers from compelling forwarders to guarantee payment of freight before shippers had advanced funds for this purpose; (2) require carriers to compensate forwarders within thirty days of payment of ocean freight; and (3) permit forwarders to deduct their compensation when making freight payments for shipments under a prepaid bill of lading. 45 Fed.Reg. 17,029, 17,031-32, 17,040-41 (1980) (proposed rules). In 1981, after evaluating all comments received, the Commission determined not to promulgate these rules. 46 Fed.Reg. 24,565, 24,567-68, 24,574 (1981) (final rule). Upon enactment of the Shipping Act of 1984, the FMC revised its rules to implement that legislation. These revisions included a prescription allowing a forwarder to provide a lump-sum invoice, but requiring the forwarder, upon request of its principal, to break out the items in the invoice. 49 Fed.Reg. 36,296, 36,297, 36,302 (1984) (final rules). The Commission rejected an alternative that would have deleted invoicing regulation entirely. 49 Fed.Reg. 18,-839, 18,841 (1984) (interim rules). On April 3,1986, the NCBFAA requested a rulemaking to delete the regulations, currently codified in 46 C.F.R. Part 510 (1988), that: (1) require prior FMC approval of one licensee’s acquisition of another licensee, id. section 510.19(a)(5); (2) prohibit a forwarder’s provision of forwarding services free of charge or at a reduced fee, id. section 510.22Q; (3) require the forwarder to provide a detailed breakout of the components of its charges at the request of its shipper-customer, id. section 510.22(g); and (4) permit carriers to perform forwarding services, without a forwarder’s license, with respect to cargo carried under the carrier’s own bill of lading, id. section 510.4(c). The NCBFAA also sought two new regulations similar in content to rules proposed in 1980 and rejected by the Commission in 1981. First, to protect forwarders from payment defaults by carriers, the NCBFAA proposed that (1) when a forwarder pays the carrier freight charge due on behalf of the shipper, the forwarder may deduct its brokerage, and (2) when the shipper pays the carrier directly, or the freight is collected at destination, the carrier must pay brokerage within sixty days of the date of vessel sailing. Petition for Rulemaking at 5. Second, the NCBFAA proposed a rule that would stop a carrier from requiring a forwarder to assume liability for freight charges owed by the forwarder’s principal. Id. at 6-7. The FMC refused to institute rulemaking proceedings, In re Petition for Rulemaking of the Nat’l Customs Brokers & Forwarders Ass’n of Am., 24 Shipping Reg. (P & F) 116 (F.M.C. Apr. 27, 1987) (Order Denying Petition), and thereafter rejected the NCBFAA’s petition for reconsideration, 24 Shipping Reg. (P & F) 581 (F.M.C. Oct. 16, 1987) (Order Rejecting Petition for Reconsideration). The NCBFAA seeks review of the Commission’s orders denying its petitions and asks this court to instruct the FMC to renew consideration of the rule-making request. II. DISCUSSION A. Standard of Review While Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), teaches that nonenforcement decisions are presumptively unreviewable, we recently clarified that refusals to institute rulemak-ing proceedings remain outside Chaney’s core and are subject to a judicial check. American Horse Protection Ass’n v. Lyng, 812 F.2d 1 (D.C.Cir.1987) (AHPA). At the same time, we underscored the extremely limited, highly deferential scope of that review. Id. at 4-5. We will overturn an agency’s decision not to initiate a rule-making only for compelling cause, such as plain error of law or a fundamental change in the factual premises previously considered by the agency. Id. at 5. Furthermore, under the instruction furnished in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984), to the extent that the intent of Congress is not clear, we must accept an agency’s reasonable interpretation of the substantive terms of a statute it is charged to administer. Before turning to petitioner NCBFAA’s specific complaints, we note some salient differences between this case and the one on which the NCBFAA relied so heavily, AHPA. At issue in AHPA was “the practice [called soring] of deliberately injuring show horses to improve their performance in the ring.” 812 F.2d at 1. In the Horse Protection Act, 15 U.S.C. sections 1821-1824 (1982), “Congress sought to end this practice.” 812 F.2d at 2. The regulations originally promulgated by the Secretary of Agriculture proved inadequate to the task, yet the agency stood still, apparently believing “that the Act was a sort of compromise between industry proponents of sor-ing and persons who regarded the practice as barbarous.” Id. at 6. Stressing that the Act was not ambiguous — it “was clearly designed to end soring,” id. — we held that the Secretary must further consider the matter and then either institute a new rule-making or account satisfactorily for his decision not to do so. Id. at 7. AHPA involved cruelty to certain animals and a clear congressional design to end it. In contrast, this case involves no similarly crystalline congressional objective and the interests at stake are “primarily economic.” See WWHT, Inc. v. FCC, 656 F.2d 807, 819 (D.C.Cir.1981). Such interests, “without more, do [ ] not present the unusual or compelling circumstances that are required in order to justify a judgment by this court overturning a decision of the Commission not to proceed with rulemak-ing.” Id. B. Prior Approval of Acquisitions Petitioner NCBFAA requested that the FMC delete 46 C.F.R. 510.19(a)(5), which requires prior Commission approval of the acquisition of one forwarder by another. The NCBFAA claims that, in 1984, Congress deliberately eliminated the FMC’s authority to approve “ ‘acquisitions in the maritime area’ ” so as to bring such agreements under ‘“normal antitrust oversight’” Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 20 [hereinafter Brief of Petitioner] (quoting S.Rep. No. 3, 98th Cong., 1st Sess. 24 (1983)). Section 4(c) of the 1984 Act, as codified at 46 U.S.C.App. section 1703(c), states: “This chapter does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.” The Commission recognizes that it does not have acquisition permission authority that displaces normal antitrust oversight by executive branch agencies. The regulation in question, according to the FMC, does not purport to exercise agreement approval authority in an antitrust law context, but is simply an accoutrement of the Commission’s licensing authority. See Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119. Acquisition of additional licensees appears in 46 C.F.R. section 510.-19(a) as the fifth item in a list of seven “changes in an existing licensee’s organization” requiring Commission approval; other listed items include: license transfer; change in individual proprietorship ownership; and addition of partners to a licensed partnership. The Commission maintains control over these changes in a licensee’s organization, the FMC states, simply and solely to insure that only qualified entities operate as forwarders: “The prior approval procedure... allows the Commission the opportunity to ensure that all regulatory requirements are met before a licensee begins operating under circumstances different from those under which it was licensed.” Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119. We cannot say that the Commission’s licensing and ample rulemaking authority under sections 19 and 17 of the 1984 Act, 46 U.S.C.App. sections 1718, 1716, are of insufficient breadth to accommodate the regulation requiring FMC approval of acquisitions by licensed forwarders. The NCBFAA asserts that there is no risk of an unqualified entity when two forwarders, already licensed, merge, and that other FMC regulations adequately guard against commencement of forwarder operations without meeting regulatory requirements. Brief of Petitioner at 21. It is not our function, however, to judge whether the FMC’s regulations are necessary; so long as they are proper exercises of the Commission’s statutory authority, their maintenance may not be disturbed by this court. C. Forwarders ’ Billing Practices Petitioner NCBFAA asked the FMC to delete 46 C.F.R. section 510.22(g), which requires a forwarder to itemize its charges upon request, and 46 C.F.R. section 510.-22(i), which forbids free or reduced-rate services. The legal authority for these rules, the NCBFAA maintains, was section 16, First, of the 1916 Act, 46 U.S.C.App. section 815, which prohibited “any... person subject to this chapter” from discriminating among shippers. See Brief of Petitioner at 24. In 1984, Congress eliminated broad-scale prohibitions of the 1916 Act, including section 16, First. Now, under section 10(b)(6), (10)-(12) of the 1984 Act, 46 U.S.C.App. section 1709(b)(6), (10)-(12), the NCBFAA emphasizes, it is unlawful only for common carriers (no longer “any person”) to engage in discriminatory practices. The Commission, however, relies on section 10(d)(1) of the 1984 Act, id. section 1709(d)(1), which states: “No common carrier, ocean freight forwarder, or marine terminal operator may fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.” Section 10(d)(1) was derived from section 17 of the 1916 Act, 46 U.S.C.App. section 816. The NCBFAA counters that the FMC had long applied section 17 only to physical services performed at the terminal. Brief of Petitioner at 28-29. Although some forwarder activities, petitioner thus maintains, are subject to the Commission’s “reasonable practice” jurisdiction, those activities do not include fee arrangements for forwarding services preliminary to an actual shipment. Reply Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 15-16 [hereinafter Reply Brief]. In American Union Transport, 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772, the Supreme Court recognized broad Commission authority to regulate forwarders, stating: “By the nature of their business, independent forwarders are intimately connected with” the activities listed under section 17, that is, “the receiving, handling, storing or delivering of property.” Id. at 449, 66 S.Ct. at 650. To confine “reasonable practice” jurisdiction to physical cargo handling services performed at the terminal, the FMC indicates, would be inconsistent with American Union Transport; such an interpretation, in large measure, would place freight forwarders outside the statute because forwarders (unlike carriers and terminal operators-the other entities covered by section 10(d)) traditionally do not operate at terminals. Brief of Respondents at 33. We are satisfied that the Commission has fairly and reasonably construed section 10(d)(l)’s scope and now turn to the specific regulations the NCBFAA challenges. 1. Disclosure of Forwarders'Markups The FMC, in 1984, rejected arguments challenging the markup disclosure rule, and again retained the rule in 1987, noting its intention that the marketplace govern forwarder/customer relations to the maximum extent possible: “By providing the means to determine the level and reasonableness of forwarders’ charges, the marketplace can regulate the relationship between forwarders and their principals. Petitioner has not offered any new facts or arguments to warrant overruling this prior determination.” Order Denying Petition at 8, 24 Shipping Reg. (P & F) at 120. The NCBFAA complains that the Commission did not acknowledge that section 16, First, the statutory basis for the rule, had been repealed. Brief of Petitioner at 25-26 & n. 61. The Commission, however, hardly announced a novel position in recognizing that section 10(d)(1) of the 1984 Act, or section 17 of the 1916 Act, provides a basis for the markup disclosure requirement. See Ocean Freight Forwarders, 6 F.M.B. at 359, 366-67 (finding both “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of section 17). Petitioner complains next that the FMC did not cite evidence of arbitrary and unreasonable markups or explain why no similar disclosure requirement is imposed on other business with which an exporter deals; furthermore, the NCBFAA objects, the Commission did not address petitioner’s claims that industry customers, through ordinary business negotiations, are well able to determine the reasonableness of forwarding fees and that strong competition among forwarders protects exporters against overcharging. Brief of Petitioner at 26-27. In sum, petitioner asserts that the FMC has not said enough to assure a reviewing court that the Commission’s refusal to delete the disclosure rule was the product of reasoned decisionmaking. These arguments, however, show neither legal error nor removal of a significant factual predicate for the FMC’s prior ruling. See WWHT, 656 F.2d at 818-19 (discussing Geller v. FCC, 610 F.2d 973, 979 (D.C.Cir.1979)). To retain its rule, the FMC need not produce evidence showing that abuses are currently prevalent or that an unregulated market would fail to control such abuses. The Commission initiated regulation in response to abusive practices in an unregulated market; one would not expect the abuses to persist once checked by FMC rule. The Commission thus appropriately cited and adhered to its “prior determination.” 2. Free or Reduced-Rate Services The Commission also adhered to the following proscription: “No licensee shall render... any freight forwarding service free of charge or at a reduced fee in consideration of receiving compensation from a common carrier or for any other reason.” 46 C.F.R. section 510.22(i). Here too, the NCBFAA points out that the agency initially adopted the prohibition pursuant to section 16, First, Brief of Petitioner at 27; furthermore, petitioner stresses, section 10(b)(2) of the 1984 Act, 46 U.S.C.App. section 1709(b)(2), prohibits rebates by common carriers but not by forwarders. Rejecting the NCBFAA’s claim that the rule lacks statutory authority under the 1984 Act, the FMC again relied on section 10(d)(1), which “prohibits a freight forwarder from failing to establish, observe, and enforce just and reasonable regulations and practices related to or connected with receiving, handling, storing, or delivering property.” Order Denying Petition at 9, 24 Shipping Reg. (P & F) at 120. The FMC defends its rule as aimed primarily at forwarder practices abetting carrier discrimination among shippers through indirect rebates. Brief of Respondents at 38. To assist carrier discrimination banned by section 10(b), the Commission maintains, would constitute an “unreasonable practice" barred by section 10(d)(1). Id. at 39. But the FMC’s forwarder-directed rule goes further: it bars not only fees reduced “in consideration of receiving compensation from a common carrier,” but also those reduced “for any other reason.” More broadly, therefore, the FMC urges that a forwarder’s discrimination in charges among its customers reflects a misallocation that constitutes an unreasonable practice in itself. Ocean Freight Forwarders, 6 F.M.B. at 366-67, relied on this alternative section 17 rationale, as well as the “indirect rebate” rationale, in declaring such discrimination unlawful. We uphold the FMC’s constant rule on the ground that the Commission, in the reasonable exercise of its rulemaking authority, may interpret section 10(d)(1) to prohibit forwarder discrimination in the charges billed to customers. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 281-82, 88 S.Ct. 929, 940-41, 19 L.Ed.2d 1090 (1968) (holding that “a relatively large charge... unequally imposed” by an association of shipping industry employers on its members, for a fund to mitigate the impact upon stevedoring employees of technological unemployment, would violate section 17 unless “the charge levied is reasonably related to the service rendered”); California v. United States, 320 U.S. 577, 583, 64 S.Ct. 352, 355, 88 L.Ed. 322 (1944) (holding that the United States Maritime Commission could determine that “unreasonably long free time” and below-cost charges for wharf storage violated both sections 16 and 17). D. Unlicensed Forwarding by Carriers “No person may act an an ocean freight forwarder unless that person holds a license” from the FMC. 46 U.S.C.App. section 1718(a). This licensing provision includes only one express exception: “A person whose primary business is the sale of merchandise may forward shipments of the merchandise for its own account without a license.” Id. section 1718(c). The 1984 Act thus continued the licensing requirements of 46 U.S.C. section 841b. FMC regulations, however, permit a common carrier to perform forwarding services without a license on shipments carried under its own bill of lading and pursuant to its published tariff. The provision in question, 46 C.F.R. section 510.4(c), states: Common Carrier. A common carrier, or agent thereof, may perform ocean freight forwarding services without a license only with respect to cargo carried under such carrier’s own bill of lading. Charges for such forwarding shall be assessed in conformance with the carrier’s published tariffs on file with the Commission. Petitioner seeks the repeal of section 510.4(c), pointing in particular to the dramatic growth in operations by “non-vessel operating common carriers” (NVOCCs), and the attendant NVOCC competition with licensees in providing forwarding services. NVOCCs, typically, are small firms that do not own or operate transportation equipment, but instead lease facilities and services from other firms, and have a small workforce of primarily managerial and clerical employees. NVOCCs consolidate and load small shipments from multiple shippers into a single large reusable metal container obtained from a steamship company, and ship the container by vessel under a single bill of lading in the NVOCC’s name; NVOCCs charge rates within the margin between the steamship line’s (the vessel operator’s) rates applicable to loose, “break-bulk” shipments, and special lower rates applicable to consolidated container loads. The Shipping Act of 1984 recognized the NVOCC as a legal entity with the status of “a shipper in its relationship with an ocean common carrier” but the status of a carrier in its relationship with exporter customers. 46 U.S.C.App. section 1702(17). An NVOCC assumes common carrier responsibilities for transportation even though it “does not operate the vessels by which the ocean transportation is provided.” Id. The NVOCC is compensated only by the shipper. Petitioner asserts that incompetent and irresponsible NVOCCs have created severe problems. Brief of Petitioner at 31. An NVOCC operates as a carrier solely by virtue of filing a tariff with the FMC. There are no formal entry requirements. Yet section 510.4(c) allows NVOCCs to offer the full gamut of forwarding services, including preparing and processing export declarations, sight drafts, insurance documentation, and letter-of-credit documents, on cargoes carried under their own bills of lading. Id. at 14-15. In short, the NCBFAA charges that in allowing unlicensed operations by NVOCCs, the Commission has dishonored Congress’ “flat prohibition” against forwarding without a license. Id. at 33. “Historically,” the FMC said in its response to the NCBFAA’s charge, “carriers have performed their own documentation and made arrangements to facilitate the movement of cargo to vessels.” Order Denying Petition at 3-4, 24 Shipping Reg. (P & F) at 118. The Commission further observed that its rule “provides the shipping public protection by requiring carriers to publish any charges for performance of these functions in their tariffs.” Id. at 4, 24 Shipping Reg. (P & F) at 118. The FMC discerned no legislative command “that carriers obtain a license in order to continue to perform these functions.” Id. On the contrary, Congress did not approve language in H.R. 5068, 86th Cong., 2d Sess. (1960), an early draft of the licensing provision enacted in 1961, that would have required every person including carriers, to be licensed to engage in the business of dispatching shipments on behalf of other persons. Id. The 1984 Act defines “ocean freight forwarder” as “a person in the United States that... dispatches shipments from the United States via common carrier and books or otherwise arranges space for those shipments on behalf of shippers.” 46 U.S.C.App. section 1702(19). It defines “common carrier” as “a person holding itself out to the general public to provide transportation by water of... cargo.” Id. section 1702(6). The FMC maintains that a common carrier, by engaging in booking or space arrangement activity, does not thereby acquire dual status; it remains a common carrier, and does not become a freight forwarder as well. The Commission cites legislative history in support: “It is not intended that booking or space arrangement activity by an ocean common carrier or its steamship agent would make either an ‘ocean freight forwarder’ as well.” S.Rep. No. 3, supra, at 20, cited in Brief of Respondents at 19. In other words, a carrier does not become a forwarder merely by furnishing services to its own customers that a forwarder may provide. Brief of Respondents at 25-26; see Puerto Rico Ports Auth. v. FMC, 642 F.2d 471, 483-85 (D.C.Cir.1980) (holding that a common carrier that provided terminal services for cargo that it carried did not thereby become a terminal operator). On the other hand, as petitioner points out, nothing in the text of the statute indicates that an entity cannot be both a carrier and an ocean freight forwarder, for both terms are defined functionally. Congress defined ‘forwarder’ simply by reference to the work forwarders perform. Petitioner infers from the passage quoted from S.Rep. No. 3, supra, that a carrier would be subject to licensing when it performs the usual forwarding activities in addition to booking or space activity. Reply Brief at 8. Petitioner’s argument, however, does not proceed far enough. It establishes no more than that the phrase “act as an ocean freight forwarder” in the licensing provision, 46 U.S.C. App. section 1718(a), is ambiguous with respect to carriers offering forwarding service only in conjunction with shipments carried under their own bills of lading. Again, therefore, we have no warrant to reject the FMC’s reasonable interpretation. E. Proposed Rules Regarding Carrier Practices “It is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking.” WWHT, 656 F.2d at 818. This is not such a rare case. It contrasts with Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 633, vacated as moot, 817 F.2d 890 (D.C.Cir. 1987); American Horse Protection Association, Inc. v. Lyng, 681 F.Supp. 949, 958 (D.D.C.1988); and Public Citizen v. Heckler, 653 F.Supp. 1229, 1241 (D.D.C.1986), each involving grave health and safety problems for the intended beneficiaries of the statutory scheme, each presenting facts urgently warranting remedial rules. Here, there is no similar risk or need, the issue are economic in nature, they entail policy determinations on which agency rulemak-ing discretion is respected. See WWHT, 656 F.2d at 819. Petitioner’s arguments reveal no legal error on the Commission’s part or compelling change in a factual predicate for the FMC’s previous refusal to adopt the rules requested. 1. Prompt Payment of Brokerage The FMC proposed rules in 1980 to require carriers to pay forwarders promptly, 45 Fed.Reg. 17,029, 17,032 (1980) (proposed rules), but ultimately rejected the proposal, 46 Fed.Reg. 24,565, 24,568 (1981) (final rule). In 1986, when the NCBFAA renewed the proposal, the Commission reiterated its opinion that “this is a matter that should be resolved commercially and not through governmental intervention.” Order Denying Petition at 11, 24 Shipping Reg. (P & F) at 121. Petitioner claims that the FMC did not give a reasoned response to its 1986 request because: The record made it clear that the FMC’s deferral to marketplace forces does not work. Forwarders are often small concerns with insufficient bargaining leverage to sway powerful carriers. Reliance on the courts is not practical given the small amount of many individual brokerage claims. The FMC is assigned responsibility under the Shipping Act to protect a forwarder from carrier conduct that subjects it to an undue or unreasonable prejudice or disadvantage. 46 U.S.C.App. 1709(b)(12). Brief of Petitioner at 41. None of these contentions, however, reveals any fundamental change in the circumstances existing at the time of the FMC’s 1981 decision. Although petitioner alleges “it was evident from the unprecedented wave of carrier bankruptcies that the situation was far worse,” Reply Brief at 18, this allegation indicates at most a better case than the one earlier made. The current contentions largely underscore those previously advanced and are not so extraordinary as to justify our interference with the agency’s judgment. 2. Liability for Freight Charges In 1980, the Commission proposed to forbid carriers from requiring forwarders to assume liability for freight bills, unless the freight charges have been advanced to the forwarder by the shipper, “to protect the forwarder as well as to place the obligation for payment of freight on the real party in interest, i.e., the shipper.” 45 Fed.Reg. 17, 031-32 (1980) (proposed rules). The FMC rejected this proposal in 46 Fed.Reg. 24,568 (1981) (final rule). In 1987, the FMC rejected the NCBFAA’s similar proposal as “neither necessary nor appropriate”; again, the Commission restated that “this appears to be a commercial matter best left to be resolved in the marketplace by the carrier, the forwarder, and the shipper.” Order Denying Petition at 12, 24 Shipping Reg. (P & F) at 121. “Petitioner has not adequately supported its claim that carriers have unreasonably refused to release prepaid bills of lading, nor has the Commission received any other specific complaints about this practice.” Id. Petitioner asserts that the FMC turned away its request without taking a “hard look” at the problem, Brief of Petitioner at 43, but the depth of the inquiry, under the circumstances presented, was within the domain of Commission discretion. See supra p. 95. CONCLUSION For the reasons stated, we affirm the FMC’s orders. The NCBFAA’s petition for review is therefore denied. It is so ordered. . The petition for reconsideration was not considered on its merits. The Commission, instead, rejected it under 46 C.F.R. section 502.261 (1988) because the petition did not, as that rule requires: (1) specify a change in fact or law since the initial order; (2) identify a substantive error in material fact in the initial order; 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_casetyp1_7-3-3
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes". FEDERAL WELDING SERVICE, INC., Plaintiff-Appellee, v. Orestes A. DIOGUARDI, Jr., and Vincent E. Dioguardi, copartners doing business as Greenpoint Casket Company, Defendants-Appellants. No. 241, Docket 26620. United States Court of Appeals Second Circuit. Argued Feb. 9, 1961. Decided Nov. 16, 1961. Booth, Lipton & Lipton, New York City (Harold L. Lipton, Lester Pollack, Edgar H. Booth, New York City, of counsel), for plaintiff-appellee. Lichtig, Copland & Greenfield, New York City (Max M. Greenfield, New York City, of counsel), for defendants-appellants. Before LUMBARD, Chief Judge, MADDEN, Judge, U. S. Court of Claims, and WATERMAN, Circuit Judge. Sitting by designation. WATERMAN, Circuit Judge. In 1952, appellee, a Connecticut corporation of which one Brick was president, and appellants, Orestes A. Dioguardi, Jr. and Vincent E. Dioguardi, copartners doing business as Greenpoint Casket Company, a New York partnership, began the business relationship out of which this litigation arose. In accord with specifications Orestes Dioguardi furnished to appellee, appellee for the account of appellants made steel casket containers called burial vaults, which vaults appellants marketed to the mortuary trade. Appellants failed to pay for vaults delivered between September and December 1957, for other undelivered ones on hand, and for parts. Appellee, claiming a sum of $12,956.53 its due, brought suit against the appellants, residents of New York, in the New York state courts. Appellants removed the case to the United States District Court for the Eastern District of New York and filed counterclaims. By their counterclaims appellants set forth that appellee was marketing on its own account a burial vault that was in competition with appellants’ vault; and that by so doing appellee had violated its agreement with appellants not to compete, had broken an agreement of trust and confidence, had engaged in unfair competition with appellants, and had infringed two patents of appellants, all to the great damage of the appellants. In addition to their claimed damages appellants sought a permanent injunction to restrain further breaches by appellee. At trial appellants conceded they owed the account appellee brought suit to collect ; and the issues before the court became solely those raised by the counterclaims. After hearing, the trial judge determined that all of appellants’ counterclaims should be dismissed on the merits, and judgment was accordingly entered for appellee for $12,956.53. The exhaustive opinion of the court below is reported at 184 F.Supp. 333 (1960). Thereafter, inasmuch as it had successfully defended against the counterclaims alleging patent infringement, Federal petitioned, pursuant to 35 U.S.C. § 285, for an award of attorney fees. The court awarded $1,-750. Appellants appeal from the adverse judgment entered on their counterclaims, from the denial of their prayer for a permanent injunction, and from the award of counsel fees. The facts behind this litigation have been carefully delineated by the trial court, and there is no necessity for reviewing them in detail. Federal Welding was engaged in a general steel-working and welding business and had manufactured metal burial vaults since 1925. Greenpoint had been engaged for many years in the business of making and selling wood and cloth-covered caskets and in selling equipment and supplies used by funeral directors. By 1952, consecrated burial space in the Roman Catholic cemeteries of the Greater New York area had dwindled as the cemeteries had become more and more crowded. The diocese permitted three bodies to be buried, one above the other, in a single grave. Hence it was of substantial interest in the mortuary trade to devise burial structures that would permit of such burials. The problem arose from the fact that cemetery regulations prevented excavations any deeper than nine feet below the surface of the ground and municipal regulations prescribed that coffins had to be covered by at least three feet of earth. Hence only six feet of vertical space was usable for interments, and if three interments were to be had in one grave no box containing a casket could exceed 24 inches in height. The public had become accustomed to richly decorated coffins, lined expensively, and a correlative demand had arisen for containers within which to place them for their permanent protection. These containers, though called burial vaults, are but boxes within which the coffin is placed prior to interment. By June 1952, no steel burial vault had been devised to permit safe use in triple burials. Orestes Dioguardi had devoted thought to this problem and believed that he had arrived at a design for a 24-inch-high metal burial vault that would combine eye appeal and utility and would conform to the regulations then in force in the Catholic cemeteries. He conceived of a vault that would be of an open-top design, that is, it had a lid at the top. A casket is lowered into such a vault from above and after the coffin is in place the lid is fastened down. The lid of Dioguardi’s proposed vault was composed of three panels, a central flat panel, and two slanting side panels that sloped away from the flat central section and engaged the vertical sides of the vault. Two hand grips extended upward from each of the side panels near where these panels engaged the side walls. These grips rose to a level on a horizontal plane with the flat central panel of the lid. The entire vault, because of the attractiveness of the lid design, appealed to customers. Yet three vaults could be tiered one above the other, for an upper vault could safely rest on the flat central section of the lid and the four hand grips of the vault beneath it. Surrounded by the structure of the hand grips was part of the latching mechanism for sealing the vault. Not having any manufacturing facilities of his own, Dioguardi approached Federal in June of 1952, and after receiving certain assurances from Brick, described his idea to Brick with the aid of a shoe box and some penciled drawings. Brick then made some sketches and submitted a sample metal vault for Dioguardi’s examination; and the parties then reached an agreement by which Federal would manufacture for Greenpoint the steel open-top vaults, 24 inches high, conceived by Dioguardi, to be marketed by Greenpoint as its Jovarde model. Whether Federal also agreed to manufacture this type of vault exclusively for Greenpoint regardless of the state of the burial vault market is a substantial issue in this litigation. The Jovarde had immediate commercial success. It was the only attractive twenty-four inch vault on the market until 1954. With Federal’s knowledge Dioguardi obtained two patents, No. 2,674,-024 covering the Jovarde vault structure, applied for August 29, 1952, granted April 6,1954, and No. 2,812,966, covering the vault’s closure means, applied for March 4, 1954, granted November 12, 1957. In 1954 Perfection Burial Vault Co. (Perfection) produced a twenty-four inch steel air-seal vault. An air-seal vault consists of a flat pan of metal on which the coffin is placed and over which a boxlike structure without bottom, as a dome, is placed. In theory, the air captured within the structure should prevent moisture from attacking the coffin. The Perfection vault had four hand grips similar to the ones on the Jovarde except for the locking mechanism in the Jovarde grips. However, when upright, the top of the grips were in the same horizontal plane as the top of Perfection’s dome, and thereby the grips served the same purpose as the Jovarde grips served by furnishing support for a vault placed above. Brick and Orestes Dioguardi had several discussions concerning this potential competitor. Brick mentioned that his company had previously asserted a right to meet such competition on its own by itself manufacturing a competing structure, but Dioguardi denied Federal had reserved such a right. These meetings continued for about a year, during which Federal refrained from manufacturing a vault of its own. Whether Federal believed that Perfection’s vault was not a real threat to the Jovarde vault (Brick had written that the Perfection model was a water-trap), whether Federal was assured that Greenpoint would stop Perfection through a patent infringement action, or whether Federal was content for some other reason, is not clear. Nevertheless, Federal’s customers became more insistent that it directly supply them with twenty-four inch steel burial vaults, for they complained that it was very difficult to obtain vaults from Greenpoint. Finally, on July 28, 1955, asserting its right to meet competition, Federal announced to Greenpoint that it was going to make a twenty-four inch steel vault of a different design from that of the Greenpoint vault and market it to the mortuary trade. Again Dioguardi protested, but Federal promptly did market its “Triad model,” a twenty-four inch steel air-seal vault. This model was a financial failure and was withdrawn at the end of the year. Then Federal introduced its second Triad, an open-top steel vault twenty-four inches high, directly competitive with the open-top vault it had been manufacturing for Greenpoint. This second Triad met with success. In May 1956, Greenpoint began to be delinquent in paying Federal’s account. However, the parties continued to deal with each other throughout the year 1957. Up to 1957 Greenpoint had continued to buy its Jovarde vaults exclusively from Federal, and Federal had continued to manufacture them for the account of Greenpoint. By December 1957 Green-point was causing its Jovarde vaults to be manufactured elsewhere, and by January 1958 its account with Federal had become so delinquent that Federal commenced this suit. At the outset, without further ; discussion, we affirm the result the district court reached in declaring that the appellants’ two patents are invalid for lack of invention. We do so on the able analysis found in the opinion below, 184 F.Supp. 333 at 339-344. In so doing, we of course also affirm the dismissal of the counterclaim for infringement. However, the disposition below of the counterclaims that relate to breaches of contract requires our examination. To determine whether the district court committed error when it found that whatever agreement there was between the parties permitted Federal to manufacture and sell a competing twenty-four-inch ■open-top burial vault, we must consider the original conversation of June 1952 as it was testified to by both of the participants. Then we must determine whether •subsequent conversations, correspondence, conduct or events modified or enlarged that original understanding. Concerning this first discussion between Mr. Brick of Federal and him, Di■oguardi testified on direct examination: “I said, T would like you to make a sample for me,’ which would thereafter be the steel, the open-top steel vault; that he would not manufacture it for anyone other than for me; that he would not divulge any information that I thought of, or, jointly with Mr. Brick; that he would never make a triple-burial vault for anyone else. “Mr. Brick gave me his word of honor and his confidence, and not to mistrust my confidence in him.” Compare Brick’s account of the same meeting on his direct examination: “He told me that he had something in mind which we could manufacture, which he thought we could manufacture. “He gave me to understand that it was something which could be protected, to prevent so that the sale could not become general. “He asked me to keep it in confidence, and not to divulge his idea to anyone else. “He gave me no idea of what he had in mind until after I had made a promise to do so.” Dioguardi used an old shoe box to demonstrate his idea, and from his description of it, his own penciled drawing, and subsequent sketches made by Federal, the plaintiff was able to produce a sample vault for Dioguardi’s inspection on June 16, 1952. There is no evidence that during this period there was any dispute as to their working arrangements, or any modification of the terms agreed upon at the initial meeting. On July 3,1952, Brick wrote Dioguardi as follows: “This letter is for the purpose of giving you our written guarantee that we will not make, for any person or firm except yourselves, a 12-gauge steel, open-top burial vault with a height of 24" or less, unless one or more of our competitors start making similar vaults and selling them, either to you or to other persons or firms, in which case we reserve the right to meet competition” (Appellants’ Exhibit F). To determine Dioguardi’s reaction to this letter we must again refer to his testimony and to that of Brick. On direct examination Dioguardi testified as follows: “The Witness: I told Mr. Brick that the contents of this letter was utterly ridiculous because I did not want — we had the agreement, his trust — ” “The Court: Tell us what you said.” “The Witness: I didn’t want him to manufacture the low vaults, the 24-inch-high vaults, or any type of low vaults — that he is not my competitor- — he is my supplier. I could expect it from a competitor, to come in and try to produce the vault, but not somebody that I brought in, and bled my heart out to give him this business. ****** “I didn’t want Mr. Brick to be a competitor of mine, manufacturing the 24-inch boxes for himself or for anyone else. That was our agreement." “By Mr. Greenfield: Q. And what did you do about that letter? A. I gave it back to Mr. Brick. I would not accept it.” On cross examination Dioguardi reiterated his position: “A. Mr. Brick said to me that— he showed me this letter and I told him, well, I didn’t want him to ever make a 24-inch-high vault in competition with me — we had an agreement, and he should stick to his agreement.” “Q. In other words, it was very important to you that Mr. Brick refrain from making any 24-inch-high vaults? A. Yes, it was. ****** “Q. Referring to Exhibit F, in any event you objected to what Mr. Brick put into that letter. Is that right? A. That is right.” Compare Brick’s testimony: “Mr. Dioguardi assured me that he was planning to patent the design, that we wouldn’t have any competition on it, and we wouldn’t need to worry about it. “I insisted that I wanted to reserve the right in case anything did come up, and I think the subject was dropped after that.” In his deposition before trial Brick explained Dioguardi’s reaction to the letter more specifically. “Q. What did Mr. Dioguardi say to you about the contents of the letter? A. Well, he never agreed or disagreed.” Thus Brick admitted that Dioguardi did not accept his letter of July 3, 1952, or agree to its contents, and hence that the letter did not fix the parties’ contractual relations. Judge Byers recognized this when he stated: “In view of the unsatisfactory nature of the testimony as to the finality of the plaintiff’s position as above outlined,- the letter itself cannot be relied upon as the basis of a finding that the actual contractual terms of the relationship entered into, was as therein stated.” 184 F.Supp. 333 at 336-337. Therefore the arrangement entered into at the time of the original conversation between the parties, outlined above, in which Brick did not reserve a right to compete, remained unmodified. Nevertheless, Federal went forward with the production of Jovarde vaults without any justification for an assumption that Federal’s July 3 written elaboration or modification of the contract had been accepted by Dioguardi. Then, near the end of 1954, Perfection put its twenty-four inch air-seal vault on the market. Brick related his eonversations with Dioguardi concerning this potential threat: “A. I reminded Mr. Dioguardi of the terms of my letter of July 3rd, reserving the right to meet competition. ****** “He assured me that he would stop Perfection from manufacturing this vault by virtue of his patent — that I didn’t need to worry about it — and he preferred that I do not make vaults, similar vaults, for anybody else. ****** “Q. Did he tell you what kind of vaults not to make for anybody else ? A. 24-inch-high vaults. ^ # if “We had a number of discussions, all covering the same subject, and all discussions about the same nature, the same complaints, the same answers.” In addition to this oral evidence, letters written by Brick were introduced. On June 26, 1954, he wrote a letter to Di■oguardi in which he said: ■ “I have played ball with you right along, observing not only the letter, but also the spirit of our agreement. Altho I have tried to get your approval of some means whereby I •could sell 24" high vaults to other •casket houses, I have told all of them that in the absence of such approval 'I was not free to fill their orders for such vaults, and I don’t think that it has done us any good either, especially with Boyertown.” .And on April 15, 1955 — after the Perfection vault had been put on the market —in a letter responding to a request by Bridge Casket Company for twenty-four-inch high vaults, Brick wrote the following: “For a couple of years we have been making such a vault for Green-point Casket Company, the design having been originated and patented by them. This vault is open top de.sign, with a rubber gasket between the lid and the body of the vault. In view of the fact that Greenpoint have a patent on this design and that, in addition, we have agreed not to make it for anyone else, it would be impossible for us to furnish you with such vaults.” But his customers persisted in requesting that he manufacture twenty-four inch vaults and so Brick wrote Dioguardi on July 28, 1955: “I wanted to remind you that under the terms of our agreement with you, we are free to sell 24" high vaults anywhere, whenever any other firm starts selling them in New York. ****** “So, in self-defense, we are arranging to furnish a 24" high vault to them. It will not be the same design as yours, nor the same as Perfection’s. I don’t want the Perfection design because it is worthless, and I don’t want to use your design because I think you would prefer that we do not, and we want to go along with you as much as we can without injury to ourselves.” What was Dioguardi’s reaction to this letter ? He testified: “Well, I told Mr. Brick that I objected to him making, as I have objected all along, making anything that runs in competition with the vault that I was now having Mr. Brick make. “I said, ‘It is not in the terms with our agreement. You gave me your word of honor.’ ” And Brick’s testimony is to the same effect: “He still objected to me furnishing 24-inch-high vaults to anyone except Greenpoint Casket Company. “I assured him that it was a matter of business life or death for myself — that I had had to do it — that he had had notice from July 3, 1952, that I intended to do it under those circumstances, and I had no choice in the matter.” A consideration of all this evidence leads us to conclude that the district court was clearly erroneous in holding that the parties had put a practical construction on their agreement so as to permit Federal, after Perfection offered its model to the New York mortuary trade, to place on the market an open-top vault competitive with that of Greenpoint. Greenpoint continued to purchase its Jovarde vaults exclusively from Federal up to the year 1957. The district court apparently considered this fact important and found this conduct “consistent with an acquiescence in plaintiff’s manufacture and sale of its Triad vault, now in suit.” 184 F.Supp. 333, at 338. But this continued dealing is also consistent with the need of Greenpoint to purchase its specially made item from the sole manufacturer of that item, a supplier with whom Greenpoint had been dealing for several years. In the light of the other evidence set forth above, we find that the fact that Greenpoint continued to buy from Federal until the end of 1957 did not modify the original agreement the parties entered into. However, unless Greenpoint obtained valid patents, the parties did not intend that Federal’s promises not to compete with Greenpoint would bind Federal after Greenpoint ceased to buy its Jovarde vaults exclusively from Federal. Appellee is liable to the appellants for the damages appellants have suffered from the unwarranted competition caused by the marketing by appellee of its second Triad vault but the extent of those damages is limited to the period of competition ending with the termination by Greenpoint of the exclusive dealing arrangement — the time when Greenpoint first ordered its Jovarde vaults from another manufacturer. Therefore we affirm the court below in the denial of injunctive relief. Neither side should recover counsel fees under 35 U.S.C. § 285 (1958), for though the defendants did not prevail on their assertions of patent infringement they did present a meritorious counterclaim. Affirmed in part, and in part reversed and remanded for further proceedings, not inconsistent with this opinion. . After Ms oral deposition had been taken, Brick added in ink the words “or disagreed” at the end of this answer as typed. Of course it was permissible for Mm to do so. However, Ms purpose was unexplained, and, as was pointed out at trial, he was not cross-examined with reference thereto. Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"? A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below) B. disputes over government contracts C. insurance disputes D. debt collection, disputes over loans E. consumer disputes with retail business or providers of services F. breach of fiduciary duty; disputes over franchise agreements G. contract disputes - was there a contract, was it a valid contract ? H. commerce clause challenges to state or local government action I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims) J. private economic disputes (other than contract disputes) Answer:
songer_usc1sect
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 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. HI-TEMP, INC., et al., Respondents. PRODUCTION WORKERS UNION LOCAL 10, etc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. HI-TEMP, INC., et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 73-2022 to 73-2024. United States Court of Appeals, Seventh Circuit. Argued Sept. 9, 1974. Decided Oct. 10, 1974. Peter G. Nash, Gen. Counsel, Richard A. Cohen, Atty., N.L.R.B., Washington, D. C., Peter J. Hurtgen, Washington, D. C., for N.L.R.B. Arnold E. Charnin, Chicago, 111., for intervenor. George E. Preonas, Chicago, 111., Sherman M. Carmell and William A. Wid-mer, III, Chicago, 111., for Hi-Temp and Production Workers Union Local 10. Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and CUMMINGS, Circuit Judge. CASTLE, Senior Circuit Judge. The National Labor Relations Board petitions this Court to enforce its order against Hi-Temp, Inc., Tru Temp, Inc., and Steel Treating, Inc. (“the Company”), and against the Production Workers Union, Local 10, AFL-CIO (“the Production Workers” or “the Union”) for violations of the National Labor Relations Act, 29 U.S.C. § 151 et seq. (1970). The Company is composed of three affiliated corporations comprising an integrated business enterprise. In December 1971, the Production Workers instituted a campaign to organize the Company’s employees. Two of its organizers visited employees’ homes and secured signatures on Production Workers authorization cards. The United Steelworkers of America, AFL-CIO (“the Steelworkers”), who previously had attempted to organize the Company’s employees and failed, protested this encroachment on its “territory,” and began another drive for employee support. Subsequently, the Production Workers demanded recognition, and the Company agreed to a card check to determine if a majority of the Company’s employees had signed Production Workers authorization cards. The card count established that forty-six of the eighty-six employees signed cards for the Production Workers. Although during the card count the Company received and read a letter from the Steelworkers expressing their continuing organizational interest in the Company’s employees, the Company, on the basis of the card check, recognized the Production Workers on January 19, 1972, and on February 25, 1972, agreed to a collective bargaining contract containing union-security and check-off clauses. The NLRB determined, however, that the forty-six cards accepted as a basis for the Production Workers’ majority status included cards signed by eight employees who had also signed authorization cards for the 'Steelworkers. The Board, therefore, excluded these eight “dual” cards from the Production Workers’ total, and the remaining thirty-eight valid cards were insufficient to establish majority status. Accordingly, the Board found that the Company, by recognizing and contracting with a minority union, had violated Sections 8(a)(2) and 8(a) (3) of the Act, and that the Union had correspondingly violated Sections 8(b)(1)(A) and 8(b)(2). The Company and the Production Workers contest the Board’s conclusion that the Union was a minority union at the time of recognition on January 19. They argue that the evidence demonstrates that six of the eight employees who signed both Production Workers and Steelworkers cards signed their Steelworkers cards after the date of the recognition agreement. If those cards were in fact signed after January 19, then the Union had majority status at the time of recognition and the Act would not be violated. We are satisfied, however, that there is substantial evidence on the record considered as a whole to support the Board’s conclusion. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Company and Union rely on testimony that Luis Torres, one of the eight signers of dual cards, signed his Steelworkers card at a Sunday meeting with Steelworkers’ organizer Alicea, and that he signed his Production Workers card (dated January 17, a Monday) several days before the Steelworkers card. The Company and Union, therefore, assert that Torres actually signed his Steelworkers card on Sunday, January 23, four days after the recognition agreement was signed, and that his card and the cards which he subsequently passed out to his fellow employees were backdated. It is true that Torres and Alicea testified that the signing took place on a Sunday, and it is apparently uneontested that Torres signed his Production Workers card on January 17. Torres also testified, however, that he signed both the Steelworkers card and the Production Workers card on the same day — Monday, January 17. In addition, employees Portillo, Samano, Marquina, and Castrejon, who also signed dual cards, testified that Torres gave them Steelworkers cards at work on Monday evening, January 17. Portillo, Samano, and Marquina also testified that they signed their cards that same night, while Castrejon stated that he took his home and signed it the following day. Since it is undisputed that Torres did not distribute the other Steelworkers cards until after he had signed his own, the testimony of Torres and his fellow employees amply supports the Board’s finding that Torres and his co-workers signed their Steelworkers cards prior to January 19, and that on that date the Production Workers were a minority union. The Company and the Union next claim that even if the eight employees executed both authorization cards prior to recognition, the Board erred in excluding the dual cards in determining the majority status of the Production Workers. They argue that the cards should be counted because the Company acted in good faith and had no knowledge of the Steelworkers’ organizational activities. We cannot agree. In NLRB v. Fishermen’s & Allied Workers’ Union, Local 33, 483 F.2d 952 (9th Cir. 1973) and Intaleo Aluminum Corp. v. NLRB, 417 F.2d 36 (9th Cir. 1969), authorization cards of employees who had signed cards both for the union seeking recognition and for a competing union were excluded in ascertaining majority status, the underlying rationale being that such cards do not reflect a clear and unambiguous selection of a collective bargaining representative. In Playskool, Inc. v. NLRB, 477 F.2d 66, 71 (7th Cir. 1973), we did not question the applicability of that procedure. Although in those cases there may have been knowledge of organizational activities which would cast doubt on the employer’s good faith recognition of the union asserting a card majority, we find an employer’s good faith to have no effect on the exclusion of the dual cards, because it is employer support of a minority union that the Act condemns. International Ladies’ Garment Workers’ Union, AFL-CIO v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). The Supreme Court held in International Ladies’ Garment Workers’ Union, supra, at 738-739, 81 S.Ct. at 1608, that: To countenance such an excuse [of good faith] would place in permissibly •careless employer and union hands the power to completely frustrate employee realization of the premise of the Act — that its prohibitions will go far to assure freedom of choice and majority rule in employee selection of representatives. We find nothing in the statutory language prescribing scienter as an element of the unfair labor practices here involved. The act made unlawful by § 8(a)(2) is employer support of a minority union. Here that support is an accomplished fact. More need not be shown, for, even if mistakenly, the employees’ rights have been invaded. It follows that prohibited conduct cannot be excused by a showing of good faith. [Footnotes omitted.] The Board, therefore, properly excluded the eight dual cards regardless of the Company’s good faith, and correctly found that the Company and Union violated the Act. Finally, the Company and the Union, relying on Intaleo Aluminum Corp., supra, challenge that portion of the Board’s order requiring them jointly and severally to reimburse the Company’s employees for all dues or fees paid to the Union pursuant to the union-security and check-off clauses of the February 25 collective bargaining agreement. We find the Board’s order to be proper. Pursuant to Section 10(c), the Board has been accorded broad authority to fashion remedies to effectuate the policies of the Act. NLRB v. District 50, UMW, 355 U.S. 453, 468, 78 S.Ct. 386, 2 L.Ed.2d 401 (1958); NLRB v. Link-Belt Co., 311 U.S. 584, 600, 61 S.Ct. 358, 85 L.Ed. 368 (1941). One policy as declared in Sections 1, 7, and 9 is that employees have complete and unfettered freedom to select by majority rule their collective bargaining representative. Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 589, 63 S.Ct. 1214, 87 L.Ed. 1568 (1943); NLRB v. Link-Belt Co., supra, 311 U.S. at 588, 61 S.Ct. 358. Thus, in Virginia Electric & Power Co. v. NLRB, supra, the Court upheld a reimbursement order of the Board where a company-dominated union received funds pursuant to a union security agreement on the ground that the employees were supporting a union not of their own free choice. The Court stated : The result [of the union-security and check-off clauses] was that the employees . . . had to authorize wage deductions for dues to remain members . . ., and they had to remain members to retain their jobs. Thus, as a price of employment they were required by the Company to support an illegal organization which foreclosed their rights to freedom of organization and collective bargaining. To hold that the Board is without power here to order reimbursement of the amounts so exacted is to hold that an employer is free to fasten firmly upon his employees the cost of maintaining an organization by which he effectively defeats the free exercise of their rights to self-organization and collective bargaining. That this may pervert the purpose of the Act is clear. [Footnote omitted.] Id. 319 U.S. at 540, 63 S.Ct. at 1219. Here there is no company-dominated union. Nonetheless, when a minority union is recognized in violation of § 8(a)(2) of the Act, and in accordance with union-security and check-off provisions employees are forced to support and contribute to that union to retain their jobs, we believe the employees’ freedom to select and support a collective bargaining representative of their own choosing is similarly defeated, regardless of the employer’s intentions. The Board’s remedial order effectuates the policy of the Act because it fully restores the employees’ freedom to select and support only that union which has achieved majority status. Virginia Electric & Power Co. v. NLRB, supra; Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1357-1358 (9th Cir. 1970). The Company and the Union rely on statements by the Court in International Ladies’ Garment Workers’ Union, supra, 366 U.S. at 740, 81 S.Ct. at 1608, that when an employer violates § 8(a),(2), the employer is subject only to a “remedial order requiring him to conform his conduct to the norms set out in the Act. No further penalty results.” That reliance is misplaced because there the contract did not contain union-seeu-rity clauses, and the Court did not have before it a dues reimbursement remedy. The petition for enforcement is granted. Enforced. . 29 U.S.C. §§ 158(a)(2), (a)(3) (1970) provide in part: (a) It shall be an unfair labor practice for-an employer— (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. . (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization. . 29 U.S.C. §§ 158(b)(1)(A), (b)(2) (1970) provide in part: (b) It shall be an unfair labor practice for a labor organization or its agents— (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title. . (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) of this section. . Of the six employees whose dual card signings are contested, only Marquez was unavailable to testify. Steelworkers’ organizer Alicea testified, however, that Marquez signed the Steelworkers card in his presence on Monday, January 17, and the card bears that date. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number. Answer:
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. KRAMER v. UNION FREE SCHOOL DISTRICT NO. 15 et al. No. 258. Argued January 16, 1969.— Decided June 16, 1969. Osmond K. Fraenkel argued the cause for appellant. With him on the brief were Melvin L. Wulj and Murray A. Miller. John P. Jehu argued the cause and filed briefs for appellees. Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Daniel M. Cohen, Assistant Attorney General, filed a brief for appellee the Attorney General of New York. Mr. Chief Justice Warren delivered the opinion of the Court. In this case we are called on to determine whether § 2012 of the New York Education Law is constitutional. The legislation provides that in certain New York school districts residents who are otherwise eligible to vote in state and federal elections may vote in the school district election only if they (1) own (or lease) taxable real property within the district, or (2) are parents (or have custody of) children enrolled in the local public schools. Appellant, a bachelor who neither owns nor leases taxable real property, filed suit in federal court claiming that § 2012 denied him equal protection of the laws in violation of the Fourteenth Amendment. With one judge dissenting, a three-judge District Court dismissed appellant’s complaint. Finding that § 2012 does violate the Equal Protection Clause of the Fourteenth Amendment, we reverse. I. New York law provides basically three methods of school board selection. In some large city districts, the school board is appointed by the mayor or city council. N. Y. Educ. Law § 2553, subds. 2, 4 (1953), as amended (Supp. 1968). On the other hand, in some cities, primarily those with less than 125,000 residents, the school board is elected at general or municipal elections in which all qualified city voters may participate. N. Y. Educ. Law §§ 2502, subd. 2, 2553, subd. 3 (1953). Cf. N. Y. Educ. Law § 2531 (1953). Finally, in other districts such as the one involved in this case, which are primarily rural and suburban, the school board is elected at an annual meeting of qualified school district voters. The challenged statute is applicable only in the districts which hold annual meetings. To be eligible to vote at an annual district meeting, an otherwise qualified district resident must either (1) be the owner or lessee of taxable real property located in the district, (2) be the spouse of one who owns or leases qualifying property, or (3) be the parent or guardian of a child enrolled for a specified time during the preceding year in a local district school. Although the New York State Department of Education has substantial responsibility for education in the State, the local school districts maintain significant control over the administration of local school district affairs. Generally, the board of education has the basic responsibility for local school operation, including prescribing the courses of study, determining the textbooks to be used, and even altering and equipping a former schoolhouse for use as a public library. N. Y. Educ. Law § 1709 (1953). Additionally, in districts selecting members of the board of education at annual meetings, the local voters also pass directly on other district matters. For example, they must approve the school budget submitted by the school board. N. Y. Educ. Law §§ 2021, 2022 (1953). Moreover, once the budget is approved, the governing body of the villages within the school district must raise the money which has been declared “necessary for teachers’ salaries and the ordinary contingent expenses [of the schools].” N. Y. Educ. Law § 1717 (1953). The voters also may “authorize such acts and vote such taxes as they shall deem expedient . . . for . . . equipping for library use any former schoolhouse . . . [and] for the purchase of land and buildings for agricultural, athletic, playground or social center purposes . . . .” N. Y. Educ. Law § 416 (1953). Appellant is a 31-year-old college-educated stockbroker who lives in his parents’ home in the Union Free School District No. 15, a district to which § 2012 applies. He is a citizen of the United States and has voted in federal and state elections since 1959. However, since he has no children and neither owns nor leases taxable real property, appellant’s attempts to register for and vote in the local school district elections have been unsuccessful. After the school district rejected his 1965 application, appellant instituted the present class action challenging the constitutionality of the voter eligibility requirements. The United States District Court for the Eastern District of New York denied appellant’s request (made pursuant to 28 U. S. C. § 2281) that a three-judge district court be convened, and granted appellees’ motion to dismiss appellant’s complaint. Kramer v. Union Free School District No. 15, 259 F. Supp. 164 (D. C. E. D. N. Y. 1966). On appeal, the Court of Appeals for the Second Circuit reversed, ruling appellant’s complaint warranted convening a three-judge court. Kramer v. Union Free School District No. 15, 379 F. 2d 491 (C. A. 2d Cir. 1967). On remand, the three-judge court ruled that § 2012 is constitutional and dismissed appellant’s complaint. 282 F. Supp. 70. Pursuant to 28 U. S. C. § 1253, appellant filed a direct appeal with this Court; we noted probable jurisdiction. 393 U. S. 818 (1968). II. At the outset, it is important to note what is not at issue in this case. The requirements of § 2012 that school district voters must (1) be citizens of the United States, (2) be bona fide residents of the school district, and (3) be at least 21 years of age are not challenged. Appellant agrees that the States have the power to impose reasonable citizenship, age, and residency requirements on the availability of the ballot. Cf. Carrington v. Rash, 380 U. S. 89, 91 (1965); Pope v. Williams, 193 U. S. 621 (1904). The sole issue in this case is whether the additional requirements of § 2012 — requirements which prohibit some district residents who are otherwise qualified by age and citizenship from participating in district meetings and school board elections — violate the Fourteenth Amendment’s command that no State shall deny persons equal protection of the laws. “In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.” Williams v. Rhodes, 393 U. S. 23, 30 (1968). And, in this case, we must give the statute a close and exacting examination. “[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U. S. 533, 562 (1964). See Williams v. Rhodes, supra, at 31; Wesberry v. Sanders, 376 U. S. 1, 17 (1964). This careful examination is necessary because statutes distributing the franchise constitute the foundation of our representative society. Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. Thus, state apportionment statutes, which may dilute the effectiveness of some citizens’ votes, receive close scrutiny from this Court. Reynolds v. Sims, supra. See Avery v. Midland County, 390 U. S. 474 (1968). No less rigid an examination is applicable to statutes denying the franchise to citizens who are otherwise qualified by residence and age. Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. See Carrington v. Rash, supra, at 96. And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. Those decisions must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections. Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a “rational basis” for the distinctions made are not applicable. See Harper v. Virginia Bd. of Elections, 383 U. S. 663, 670 (1966). The presumption of constitutionality and the approval given “rational” classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality. And, the assumption is no less under attack because the legislature which decides who may participate at the various levels of political choice is fairly elected. Legislation which delegates decision making to bodies elected by only a portion of those eligible to vote for the legislature can cause unfair representation. Such legislation can exclude a minority of voters from any voice in the decisions just as effectively as if the decisions were made by legislators the minority had no voice in selecting. The need for exacting judicial scrutiny of statutes distributing the franchise is undiminished simply because, under a different statutory scheme, the offices subject to election might have been filled through appointment. States do have latitude in determining whether certain public officials shall be selected by election or chosen by appointment and whether various questions shall be submitted to the voters. In fact, we have held that where a county school board is an administrative, not legislative, body, its members need not be elected. Sailors v. Kent Bd. of Education, 387 U. S. 105, 108 (1967). However, “once the franchise is granted to the electorate, fines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections, supra, at 665. Nor is the need for close judicial examination affected because the district meetings and the school board do not have “general” legislative powers. Our exacting examination is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not. For example, a city charter might well provide that the elected city council appoint a mayor who would have broad administrative powers. Assuming the council were elected consistent with the commands of the Equal Protection Clause, the delegation of power to the mayor would not call for this Court’s exacting review. On the other hand, if the city charter made the office of mayor subject to an election in which only some resident citizens were entitled to vote, there would be presented a situation calling for our close review. III. Besides appellant and others who similarly live in their parents’ homes, the statute also disenfranchises the following persons (unless they are parents or guardians of children enrolled in the district public school): senior citizens and others living with children or relatives; clergy, military personnel, and others who live on tax-exempt property; boarders and lodgers; parents who neither own nor lease qualifying property and whose children are too young to attend school; parents who neither own nor lease qualifying property and whose children attend private schools. Appellant asserts that excluding him from participation in the district elections denies him equal protection of the laws. He contends that he and others of his class are substantially interested in and significantly affected by the school meeting decisions. All members of the community have an interest in the quality and structure of public education, appellant says, and he urges that “the decisions taken by local boards . . . may have grave consequences to the entire population.” Appellant also argues that the level of property taxation affects him, even though he does not own property, as property tax levels affect the price of goods and services in the community. We turn therefore to question whether the exclusion is necessary to promote a compelling state interest. First, appellees argue that the State has a legitimate interest in limiting the franchise in school district elections to “members of the community of interest” — those “primarily interested in such elections.” Second, appel-lees urge that the State may reasonably and permissibly conclude that “property taxpayers” (including lessees of taxable property who share the tax burden through rent payments) and parents of the children enrolled in the district’s schools are those “primarily interested” in school affairs. We do not understand appellees to argue that the State is attempting to limit the franchise to those “subjectively concerned” about school matters. Rather, they appear to argue that the State’s legitimate interest is in restricting a voice in school matters to those “directly affected” by such decisions. The State apparently reasons that since the schools are financed in part by local property taxes, persons whose out-of-pocket expenses are “directly” affected by property tax changes should be allowed to vote. Similarly, parents of children in school are thought to have a “direct” stake in school affairs and are given a vote. Appellees argue that it is necessary to limit the franchise to those “primarily interested” in school affairs because “the ever increasing complexity of the many interacting phases of the school system and structure make it extremely difficult for the electorate fully to understand the whys and wherefores of the detailed operations of the school system.” Appellees say that many communications of school boards and school administrations are sent home to the parents through the district pupils and are “not broadcast to the general public”; thus, nonparents will be less informed than parents. Further, appellees argue, those who are assessed for local property taxes (either directly or indirectly through rent) will have enough of an interest “through the burden on their pocketbooks, to acquire such information as they may need.” We need express no opinion as to whether the State in some circumstances might limit the exercise of the franchise to those “primarily interested” or “primarily affected.” Of course, we therefore do not reach the issue of whether these particular elections are of the type in which the franchise may be so limited. For, assuming, arguendo, that New York legitimately might limit the franchise in these school district elections to those “primarily interested in school affairs,” close scrutiny of the § 2012 classifications demonstrates that they do not accomplish this purpose with sufficient precision to justify denying appellant the franchise. Whether classifications allegedly limiting the franchise to those resident citizens “primarily interested” deny those excluded equal protection of the laws depends, inter alia, on whether all those excluded are in fact substantially less interested or affected than those the statute includes. In other words, the classifications must be tailored so that the exclusion of appellant and members of his class is necessary to achieve the articulated state goal. Section 2012 does not meet the exacting standard of precision we require of statutes which selectively distribute the franchise. The classifications in § 2012 permit inclusion of many persons who have, at best, a remote and indirect interest in school affairs and, on the other hand, exclude others who have a distinct and direct interest in the school meeting decisions. Nor do appellees offer any justification for the exclusion of seemingly interested and informed residents — other than to argue that the § 2012 classifications include those “whom the State could understandably deem to be the most intimately interested in actions taken by the school board/’ and urge that “the task of . . . balancing the interest of the community in the maintenance of orderly school district elections against the interest of any individual in voting in such elections should clearly remain with the Legislature.” But the issue is not whether the legislative judgments are rational. A more exacting standard obtains. The issue is whether the § 2012 requirements do in fact sufficiently further a compelling state interest to justify denying the franchise to appellant and members of his class. The requirements of § 2012 are not sufficiently tailored to limiting the franchise to those “primarily interested” in school affairs to justify the denial of the franchise to appellant and members of his class. The judgment of the United States District Court for the Eastern District of New York is therefore reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT. Section 2012, New York Education Law: “A person shall be entitled to vote at any school meeting for the election of school district officers, and upon all other matters which may be brought before such meeting, who is: 1. A citizen of the United States. “2. Twenty-one years of age. “3. A resident within the district for a period of thirty-days next preceding the meeting at which he offers to vote; and who in addition thereto possesses one of the following three qualifications: “a. Owns or is the spouse of an owner, leases, hires, or is in the possession under a contract of purchase or is the spouse of one who leases, hires or is in possession under a contract of purchase of, real property in such district liable to taxation for school purposes, but the occupation of real property by a person as lodger or boarder shall not entitle such person to vote, or “b. Is the parent of a child of school age, provided such a child shall have attended the district school in the district in which the meeting is held for a period of at least eight weeks during the year preceding such school meeting, or “c. Not being the parent, has permanently residing with him a child of school age who shall have attended the district school for a period of at least eight weeks during the year preceding such meeting. “No person shall be deemed to be ineligible to vote at any such meeting, by reason of sex, who has the other qualifications required by this section.” In some districts the election takes place on the Wednesday-following the district meeting. N. Y. Educ. Law § 2013 (Supp. 1968). The statute also requires that a voter be a citizen of the United States and at least 21 years of age. Appellant meets these requirements and does not challenge the citizenship, age, or residency requirements of §2012. See infra, at 625. The statute is set out in the Appendix, infra. “But while the administration of schools and the formulation of general policies have been centralized in the State Education Department . . . the immediate control and operation of the schools in New York have to a large extent been vested in the localities. The thousands of districts . . . possess a high degree of authority in education. They decide matters of local taxation for school purposes, elect trustees and other school officials, purchase buildings and sites, employ teachers and . . . maintain discipline . . ..” Graves, Development of the Education Law in New York, 16 Consolidated Laws of New York (Education Law) xxiii (McKinney 1953). See R. Pyle, Some Aspects of Education in New York 9-13 (1967). In districts which do not have annual meetings, the budget is not submitted to district voters. Thus, in city districts where the board of education is elected by all the voters, the board has the power to set the budget and assess taxes to meet expenditures. In large city districts, where the board is appointed, the board must submit requests to the city government, much as would any other city department. R. Pyle, Some Aspects of Education in New York 11 (1967). The legislation provides that the money shall be raised through a “tax, to be levied upon all the real property in [the] village . . . .” And, the “corporate authorities shall have no power to withhold the sums so declared to be necessary . . . .” N. Y. Educ. Law §1717 (1953). This case presents an issue different from the one we faced in McDonald v. Board of Election Comm’rs of Chicago, 394 U. S. 802 (1969). The present appeal involves an absolute denial of the franchise. In McDonald, on the other hand, we were reviewing a statute which made casting a ballot easier for some who were unable to come to the polls. As we noted, there was no evidence that the statute absolutely prohibited anyone from exercising the franchise; at issue was not a claimed right to vote but a claimed right to an absentee ballot. Id., at 807-808. Of course, the effectiveness of any citizen’s voice in governmental affairs can be determined only in relationship to the power of other citizens’ votes. For example, if school board members are appointed by the mayor, the district residents may effect a change in the board’s membership or policies through their votes for the mayor. Cf. N. Y. Educ. Law § 2553, subds. 2, 4 (1953), as amended (Supp. 1968). Each resident’s formal influence is perhaps indirect, but it is equal to that of other residents. However, when the school board positions are filled by election and some otherwise qualified city electors are precluded from voting, the excluded residents, when compared to the franchised residents, no longer have an effective voice in school affairs. This is precisely the situation with regard to the size of the school budget in districts where § 2012 applies. See n. 4, supra. See, e. g., McGowan v. Maryland, 366 U. S. 420, 425-428 (1961); Allied Stores v. Bowers, 358 U. S. 522, 527 (1959); Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552, 556 (1947). Of course, we have long held that if the basis of classification is inherently suspect, such as race, the statute must be subjected to an exacting scrutiny, regardless of the subject matter of the legislation. See, e. g., McLaughlin v. Florida, 379 U. S. 184, 192 (1964); Takahashi v. Fish & Game Comm’n, 334 U. S. 410, 420 (1948); Oyama v. California, 332 U. S. 633, 640 (1948). Thus, statutes structuring local government units receive no less exacting an examination merely because the state legislature is fairly elected. See Avery v. Midland County, 390 U. S. 474, 481, n. 6 (1968). Similarly, no less a showing of a compelling justification for disenfranchising residents is required merely because the questions scheduled for the election need not have been submitted to the voters. In Sailors v. Kent Bd. of Education, 387 U. S. 105 (1967), each local school board sent one delegate to a biennial meeting at which the members of the county board of education were selected. We noted that “the choice of members of the county school board did not involve an election.” Id., at 111. However, we also pointed out that the members of the local school boards, who in effect made the county board appointments, were elected, but that “no constitutional complaint [was] raised respecting that election.” Ibid. The Union Free School District No. 15 and each member of its board of education were named as defendants. The Attorney General of New York intervened as an appellee. Of course, if the exclusions are necessary to promote the articulated state interest, we must then determine whether the interest promoted by limiting the franchise constitutes a compelling state interest. We do not reach that issue in this case. For example, appellant resides with his parents in the school district, pays state and federal taxes and is interested in and affected by school board decisions; however, he has no vote. On the other hand, an uninterested unemployed young man who pays no state or federal taxes, but who rents an apartment in the district, can participate in the election. We were informed at oral argument, however, that a very small proportion of the eligible voters attend the meetings. 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_stateclaim
D
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action. Charles E. LARSEN, Petitioner-Appellant, v. James K. FRAZIER; Attorney General, State of Oklahoma, Respondents-Appellees. No. 87-1280. United States Court of Appeals, Tenth Circuit. Dec. 11, 1987. Charles E. Larsen, pro se. Robert A. Nance and Douglas B. Allen, Asst. Attys. Gen. (Robert H. Henry, Atty. Gen., of Okl., with them on the brief) Oklahoma City, Okl.; for Respondents-Appel-lees. Before McKAY and BALDOCK, Circuit Judges, and GREENE, District Judge. Honorable J. Thomas Greene, District Judge, United States District Court for the District of Utah, sitting by designation. PER CURIAM. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument. Petitioner appeals from an order of the district court denying his petition for a writ of habeas corpus filed pursuant to 28 U.S. C. § 2254. We affirm. In November, 1980, petitioner pled guilty to and was convicted of burglary pursuant to a plea bargain. In January, 1984, he was sentenced to ten years imprisonment after pleading guilty to unlawful use of a mislaid credit card after former conviction of a felony. The January, 1984, sentence was enhanced by the November, 1980, conviction. Petitioner did not file a direct criminal appeal from the conviction relating to the January, 1984, sentencing. Petitioner, however, did file an application for state post-conviction relief in the District Court of Oklahoma County attacking the November, 1980, conviction. Petitioner alleged, among other things, that his plea bargain was null and void as a violation of Okla. Const, art. XXIII, § 8. Okla. Const, art. XXIII, § 8 provides: “Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void.” Without specific discussion of the allegation, the District Court of Oklahoma County denied relief and concluded petitioner voluntarily and knowingly waived his rights and pled guilty. The Oklahoma Court of Criminal Appeals affirmed and stated that it had examined the application filed in the Oklahoma district court and found that even if petitioner’s statements were true, he had failed to demonstrate that he was entitled to any relief. Petitioner then filed a petition for habeas corpus relief in the district court alleging, among other things, that his plea bargain was void. The district court refused to review the allegation, finding that it contained no assertion of a violation of the constitution or laws of the United States. This court reversed and remanded in Larsen v. Frazier, Unpublished No. 86-1593 (10th Cir. filed January 6,1987). This court determined that petitioner had alleged a violation of due process and equal protection guaranteed by the Fourteenth Amendment. More specifically, this court determined that an allegation that a state’s refusal to apply the protections of its own constitution is a denial of fundamental fairness guaranteed by the Due Process Clause. Upon reconsideration of the merits of the claim, the district court found that the Oklahoma courts have never construed the Oklahoma Constitution to prohibit guilty pleas, plea bargains, or the waiver of constitutional rights associated with the plea process. The district court concluded petitioner can make no argument on the law or the facts in support of his claim for relief. Petitioner appealed. The validity of guilty pleas and plea bargains is a matter of state law. We will generally follow the interpretation of the laws of a state by its highest deciding court except where the interpretation is inconsistent with fundamental principles of liberty and justice. See Ewing v. Winans, 749 F.2d 607, 609 (10th Cir.1984); Tyrrell v. Crouse, 422 F.2d 852, 853 (10th Cir.1970); see also Brown v. Ohio, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187 (1977); Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488, 96 S.Ct. 2308, 1312, 49 L.Ed.2d 1 (1976). In this case, the Oklahoma Court of Criminal Appeals had the opportunity to review the constitutionality of the plea bargain on the merits. In summarily denying relief, the Court of Criminal Appeals determined that plea bargains are valid and are not in violation of Okla. Const, art. XXIII, § 8. Because no fundamental principles of liberty or justice are involved, we conclude that plea bargains are valid in Oklahoma and are not in violation of Okla. Const, art. XXIII, § 8. The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith. Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
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. In the Matter of BRIELLE ASSOCIATES, a partnership of the State of New Jersey, Debtor, v. Daniel J. GRAZIANO, Jr., attorney for Kirschenbaum; Shapiro & Marro, a creditor in the above matter, Appellant. No. 82-5101. United States Court of Appeals, Third Circuit. Argued July 27, 1982. Decided Aug. 19, 1982. Joseph P. Marro (Argued), Daniel J. Graziano, Jr., Kirschenbaum, Shapiro & Marro, Gerald R. Stockman, Stockman, Mancino, Smithson, O’Donnell & Sypek, Trenton, N. J., for appellant. Gary S. Jacobson (Argued), Kleinberg, Moroney, Masterson & Schaehter, Millburn, N. J., for appellee. Before GIBBONS, HUNTER, Circuit Judges and LORD, District Judge. Honorable Joseph S. Lord, III, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: The law firm of Kirschenbaum, Shapiro & Marro (“Kirschenbaum,” “creditor”) has appealed from an order of the trial court which affirmed two orders of the Bankruptcy Court. For the reasons which follow, we will affirm. Factual and Procedural Background Brielle Associates (“debtor”) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code (11 U.S.C. §§ 1101-1174 (1979)) in June 1980. In its petition, Kirschenbaum was listed as a creditor in the amount of $44.15. In July 1980, Kirschenbaum filed a proof of claim with the Bankruptcy Court in the amount of $25,-044.15. In September 1980, debtor filed a notice of motion objecting to some of the proofs of claim and listing $44.15 as its debt to Kirschenbaum. Debtor’s notice of motion directed all claimants who wished to object to the amount listed in that notice to file written objections by September 22, 1980. A hearing on the objections was held on September 24, 1980. The creditor did not respond to the notice of motion or appear at the September 24 hearing, and its claim was accordingly listed as $44.15 in written orders dated November 19, 1980. Pursuant to those orders, two distributions of funds were made, on November 21, 1980, and on February 23, 1981. On March 19, 1981, the bankruptcy court issued a notice of a hearing to be held on April 6,1981 for the purpose of setting the compensation to be paid to the attorneys for the debtor and the creditors’ committee. The bankruptcy court entered an order setting the fees on the same day. On April 13, 1981, Kirschenbaum filed a notice of appeal from the fee order, and the district court affirmed. Also on April 13, 1981, Kirschenbaum moved in the bankruptcy court for relief from the order setting Kirschenbaum’s claim at $44.15. Kirschenbaum argued that, although it had received the debtor’s notice of motion listing the debt to Kirschenbaum as $44.15, it had misplaced that notice and had not contested the $44.15 amount for that reason. The bankruptcy court held a hearing on Kirschenbaum’s motion seeking reinstatement of the $25,044.15 claim. The bankruptcy court noted that Kirschenbaum, which at the time of the misplacing of the debtor’s motion had been acting pro se, was a law firm, i.e., a sophisticated party, that Kirschenbaum had received the notice of the debtor’s motion and filed it without looking at it, and that a final plan of reorganization had been established before Kirschenbaum moved to have its claim reinstated. The bankruptcy court then denied Kirschenbaum’s motion to have its claim reconsidered. Kirschenbaum appealed the denial to the district court, which affirmed the bankruptcy court’s order. Kirschenbaum has appealed to this court the district court’s affirmance of the fee order and of the denial of Kirschenbaum’s motion for reinstatement of its claim. Discussion The threshold question in connection with Kirschenbaum’s appeal from the denial of its motion to reinstate its claim for $25,044.15 is whether the bankruptcy court had jurisdiction to reconsider Kirschenbaum’s disallowed claim. Title 11 U.S.C. § 502(j) provides that “[bjefore a case is closed, a claim that has been allowed may be reconsidered for cause, and real-lowed or disallowed according to the equities of the case.” Section 502(j), however, makes no specific mention of the power of a bankruptcy court to reconsider disallowed claims. Nevertheless, Bankruptcy Rule 307 provides: A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. If the motion is granted, the court may after hearing on notice make such further order as may be appropriate. The Advisory Committee’s Note to that rule states: This rule is a substantial revision of § 57(k) of the Act [section 93(k) of this title] and General Order 21(6). Because these provisions have spoken only of the reconsideration of claims that have been allowed, it has sometimes been held that a referee has no jurisdiction to reconsider a disallowed claim, or the amount or priority of an allowed claim, at the instance of the claimant himself. [Citations omitted.] This view disregarded § 2a(2) of the Act [section 11(a)(2) of this title] and the “ancient and elementary power” of a referee as a court to reconsider any of his orders. [Citations omitted.] This rule recognizes the power of the court, including a referee, to reconsider an order of disallowance on appropriate motion. Thus, Bankruptcy Rule 307 explicitly states that bankruptcy courts may reconsider disallowed claims, and sets forth the bases for that authority. The question of jurisdiction to reconsider a disallowed claim arises here because section 57(k) of the old Bankruptcy Act (11 U.S.C. § 93(k)) was reenacted in the new Bankruptcy Code at 11 U.S.C. § 502(j), but section 2(a)(2) of the old Act (11 U.S.C. § 11(a)(2)), cited in the Advisory Committee’s Note to Rule 307, was not reenacted as part of the new Code. Despite this, however, Rule 3001(e) of the Suggested Interim Bankruptcy Rules, which were written for use in cases brought under the new Bankruptcy Code, provides that “Bankruptcy Rule 307 applies in Chapter 11 cases.” It is therefore clear that the Advisory Committee on Bankruptcy Rules believed that the power of the bankruptcy court to reconsider claims which had been disallowed had not been eradicated by the new Bankruptcy Code. We agree with the Advisory Committee. The Advisory Committee’s Note to Rule 307 cites two sources for the power of a bankruptcy court to reconsider disallowed claims, and one of those sources, the “ancient and elementary power” of a bankruptcy court to reconsider any of its orders, remains untouched by the new Bankruptcy Code. Moreover, even though section 2(a)(2) was not reenacted in the new Bankruptcy Code, the parties have not cited us to any statutory language, statements or actions on the part of Congress which would indicate congressional disapproval of the position taken in Bankruptcy Rule 307, which went into effect on October 1, 1973, well before the enactment of the new Bankruptcy Code. Thus, we conclude that the bankruptcy court had jurisdiction to reconsider its own order disallowing the creditor’s claim and that its decision not to reopen the creditor’s claim was not an abuse of discretion. We have considered the remainder of Kirschenbaum’s contentions, and find them to be without merit. For the foregoing reasons, the district court’s order affirming the bankruptcy court’s rulings will be affirmed. . See In re Brendan Reilly Associates, Inc., 372 F.2d 235, 238-39 (2d Cir. 1967), and cases cited therein; In re Pottasch Bros. Co., 79 F.2d 613, 616-17 (2d Cir. 1935). In Pottasch, the court stated: [I]f a referee is a court at ail, there is no warrant for saying because an appeal lies from his orders, that he has not the ancient and elementary power to reconsider those orders, nor the faintest reason why he should not do so____ Why it is desirable that [bankruptcy referee] orders, ruat coelum, should be as immutable as the Twelve Tables, once the ink is dry, we cannot understand. ... We hold that a referee has the same power over his orders as the District Judge has over his. In re Jayrose Millinery Co., 93 F.2d 471 (2d Cir. 1937), relied upon by the debtor, is not dispositive here. That case, which is in any event distinguishable on its facts from the case now before us, cited only section 57(k) of the old Bankruptcy Act, and did not mention the “ancient and elementary power to reconsider” orders relied upon by the authors of Rule 307. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_casetyp1_1-3-1
O
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America, Plaintiff-Appellant, v. Richard J. LEARY, and F.L. Kleinberg & Co., Defendants-Appellees. Nos. 86-2487, 86-2488. United States Court of Appeals, Tenth Circuit. May 2, 1988. Bruce F. Black, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on the briefs), Denver, Colo., for plaintiff-appellant. Michael F. DiManna, Di Manna & Jackson, Denver, Colo., for defendant-appellee, Leary. Robert T. McAllister, Dill, Dill & McAllis-ter, Denver, Colo., for defendant-appellee, Kleinberg. Before HOLLOWAY, Chief Judge, ANDERSON and TIMBERS, Circuit Judges. Hon. William H. Timbers, United States Court of Appeals for the Second Circuit, sitting by designation. STEPHEN H. ANDERSON, Circuit Judge. The government appeals from the district court’s decision granting defendants’ motion to suppress evidence seized under a search warrant. We affirm the district court, holding that the defendants’ fourth amendment rights were infringed, that the search warrant was facially overbroad and invalid, and that the evidence seized should be suppressed. I. Background This appeal stems from the execution of a search warrant at the offices of the F.L. Kleinberg Company (“Kleinberg”) in Boulder, Colorado on August 23, 1984. Klein-berg and Richard J. Leary, a vice-president at Kleinberg, were subsequently indicted for conspiring to violate the Export Administration Act. 50 U.S.C.App. § 2410. Kleinberg and Leary, as defendants, moved to suppress the fruits of the search of the Kleinberg offices. The district court granted that motion and the government appeals pursuant to 18 U.S.C. § 3731. The search warrant was obtained by federal customs agent John Juhasz on the basis of his affidavit alleging violations of the Arms Export Control Act, 22 U.S.C. § 2778, and the Export Administration Act. The affidavit recites in detail the purchase and attempted export of a Micro-tel Precision Attenuation Measurement Receiver by Kleinberg in 1984. In short, the affidavit alleges that Kleinberg did not have the proper license to export this particular piece of equipment and that Kleinberg was attempting to illegally export the receiver to the People’s Republic of China via a series of “front” companies in Hong Kong. The affidavit addresses only this single transaction and the companies involved in that transaction. No other companies, countries, or commodities are mentioned in the affidavit or alleged to be part of any illegal export scheme. Based on the affidavit, a warrant was issued to search the Kleinberg offices and seize the following property: Correspondence, Telex messages, contracts, invoices, purchase orders, shipping documents, payment records, export documents, packing slips, technical data, recorded notations, and other records and communications relating to the purchase, sale and illegal exportation of materials in violation of the Arms Export Control Act, 22 U.S.C. 2778, and the Export Administration Act of 1979, 50 U.S. C.App. 2410. The warrant was executed on August 23, 1984 by Agent Juhasz and six other Customs officers. Twenty boxes of business records were seized including references to sales and sales contacts throughout the world, telexes to Australia and South Africa, information from applicants for employment with Kleinberg, Leary’s application with Shearson American Express for personal financial planning, Leary’s life insurance policy, and correspondence relating to other businesses for which Leary acted as sales representative. After the indictment, Kleinberg and Leary moved to suppress all of the evidence seized in the search. The district court granted that motion, finding first that the affidavit was not supported by probable cause, and second, that the warrant did not sufficiently specify the evidence to be seized. The court also found that the “good faith” exception to the exclusionary rule adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) was inapplicable. On appeal, the government argues (1) Leary and Kleinberg have no standing to raise a fourth amendment claim; (2) the warrant was sufficiently particular in specifying the items to be seized; (3) the warrant was supported by probable cause; and (4) even if the warrant is found upon review to be invalid, reliance on the warrant was “objectively reasonable” and the evidence should not be suppressed under the reasoning of Leon. II. Standing In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) the Supreme Court abandoned a separate analysis of “standing” for claims of violations of the fourth amendment in favor of an analysis focusing on the “substantive question of whether or not the proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Id. at 133, 99 S.Ct. at 425. See Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Hansen, 652 F.2d 1374, 1379 n. 2 (10th Cir.1981). “Whether a person has standing to contest a search on fourth amendment grounds turns on whether the person had a legitimate expectation of privacy in the area searched, not merely in the items seized.” United States v. Skowronski, 827 F.2d 1414, 1418 (10th Cir.1987) (citing United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2554, 65 L.Ed.2d 619 (1980)). Determining whether a legitimate or justifiable expectation of privacy exists, in turn, involves two inquiries. First, the claimant must show a subjective expectation of privacy in the area searched, and second, that expectation must be one that “society is prepared to recognize as ‘reasonable.’ ” Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984) (quoting in part Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)); see also United States v. Owens, 782 F.2d 146, 150 (10th Cir.1986). The “ultimate question” is “whether one’s claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances.” Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Finally, standing is a legal question, and “[wjhere the facts are not in dispute, this court may review the question of standing de novo.” United States v. Kuespert, 773 F.2d 1066, 1067 (9th Cir.1985). There is no doubt that a corporate officer or employee may assert a reasonable or legitimate expectation of privacy in his corporate office. Cf. Mancusi v. DeForte, 392 U.S. 364, 369, 88 S.Ct. 2120, 2124, 20 L.Ed.2d 1154 (1968) (“It has long been settled that one has standing to object to a search of his office, as well as of his home.”); United States v. Lefkowitz, 464 F.Supp. 227, 230 (C.D.Cal.1979) (corporate officers had sufficient privacy interest in corporate office suite), aff'd, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); see also 4 W. LaFave, Search and Seizure § 11.3(d) (2d ed. 1987) [hereinafter LaFave]. Similarly, “it seems clear that a corporate defendant has standing with respect to searches of corporate premises and seizure of corporate records ” Id. at 316. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977); Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir.1988). In addition, except in rare circumstances, a warrant is as necessary to support a search of commercial premises as private premises. See Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1216 n. 5 (D.C.Cir.1981) (citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)), cert. denied, 455 U.S. 940, 102 S.Ct. 1432, 71 L.Ed.2d 651 (1982). Normally, our inquiry would end here. The government argues, however, that Leary and Kleinberg lack the requisite expectation of privacy in their offices and records because of the regulatory scheme imposed upon exporters by the federal government and the company’s “open door” policy toward government inspectors. For purposes of clarity, we repeat the government’s argument in some detail: [T]he government would concede that if it were not for the regulatory scheme requiring that the defendants make, keep and produce the seized records to the government upon request, and the company’s open door policy, both defendants would be able to assert a privacy interest in the seized records under Rakas v. Illinois, 439 U.S. 128 [99 S.Ct. 421, 58 L.Ed.2d 387] (1978). The standing argument asserted by the government is limited to the very unusual facts of this case_ [T]he defendants operated in a highly regulated industry where the law required them to make, keep and produce all documents relating in any way to an export. Furthermore, company policy was that the government could come, scheduled or unscheduled and ask for any file or information it needed. Thus, the government’s argument is that any privacy interest in the required records was waived by the company and Mr. Leary. Mr. Leary must have known that under these circumstances any company record could be turned over to the government upon request at any time, whether he was present or not, without the government being required to resort to legal process. The company’s position is somewhat different, because it could have revoked the policy at any time. But it did not. At the conclusion of the search the President, Frederick L. Kleinberg, invited the agents back to examine any remaining records at a later time. Reply Brief of Appellant at 3-5 (citations omitted). We find the government’s argument inherently misleading, as it attempts to concede an expectation of privacy with one hand and remove it with the other. Moreover, the argument confuses the law relating to searches or inspections of “regulated” industries with simple recordkeeping requirements. Nevertheless, we will analyze the government’s position in detail. The government’s standing argument consists of two related questions: First, do the regulatory requirements imposed on exporters licensed by the government and Kleinberg’s “open door” policy constitute “circumstances” that render Leary and Kleinberg’s expectation of privacy unreasonable? See Rakas, 439 U.S. at 152, 99 S.Ct. at 435 (Powell, J., concurring). Second, have Leary and Kleinberg “waived” their fourth amendment rights by participating in a regulated business and by adopting an “open door” policy, inviting government agents to inspect their business records? We address these questions in turn. Federal regulations implementing the nation’s export control laws impose comprehensive recordkeeping requirements on exporters. It is clear, however, that licensed exporters retain their fourth amendment rights. The key provision is 15 C.F.R. § 387.13(f)(1) (1987): Persons within the United States may be requested to produce records which are required to be kept by any provision of the Export Administration Regulations or by any order, and to make them available for inspection and copying by any authorized agent, official or employee of the International Trade Administration, the U.S. Customs Service, or the U.S. Government, without any charge or expense to such agent, official or employee. The [government] encourage[s] voluntary cooperation with such requests. When voluntary cooperation is not forthcoming, the Office of Export Enforcement and the Office of Antiboycott Compliance are authorized to issue subpoenas for books, records and other writings. In instances where a person does not comply with a subpoena, the Department of Commerce may petition a district court to have the subpoena enforced. The district court properly analyzed the effect of these requirements: The Department of Commerce could have requested inspection and copying of records relating to export at any time, and if the company refused to allow voluntary inspection, the government could have subpoenaed the records. This required procedure affords the protection of judicial review before records can be seized without permission.... The fact that a warrant is required for a full-scale criminal search and seizure of records required to be kept recognizes the fourth amendment’s protection of privacy even in these circumstances and restrictions on the government’s power to intrude on that privacy. Mem. Opinion at 4. Cf. United States v. Molt, 444 F.Supp. 491 (E.D.Pa.), aff'd, 589 F.2d 1247 (3d Cir.1978); see also Railway Labor Executives’ Ass’n v. Burnley, 839 F.2d 575, 584 (9th Cir.1988) (“When no... plan [authorizing warrantless inspections] is built into the legislation regulating a specific industry, the [Supreme] Court has required a warrant as a condition of a reasonable search.”); Serpas v. Schmidt, 827 F.2d 23, 28 (7th Cir.1987) (“[A] history of pervasive regulation of an industry is not by itself enough to render the warrant requirement superfluous_ [T]he Supreme Court has sanctioned warrantless searches of commercial premises in certain industries subject to longstanding governmental oversight.... [however] [i]n each of these cases,... Congress expressly authorized the terms and conditions of searches on specified premises.”), cert. denied, — U.S. -, 108 S.Ct. 1075, 99 L.Ed.2d 234 (1988). Neither the export regulations nor the export statutes authorize a warrantless search and seizure of business records, see 22 U.S.C. § 2778(e); 50 U.S.C.App. § 2411; Brief of Appellant at 14, yet the government would have us hold that the regulatory scheme negates the licensed exporter’s right to challenge an invalid warrant. In other words, the government concedes that it must obtain a warrant but argues that it need not obtain a valid warrant. We refuse to adopt this reasoning. Similarly, the company’s “open door” policy does not negate the defendants’ expectation of privacy. There is a distinction of constitutional significance between the company’s policy, which invited government agents to “visit... and ask for any file or information they want or need,” and a thorough search of the offices and seizure and removal of twenty boxes of files, including personal records and documents unrelated to the company’s regulated export activities. Leary and Kleinberg retained control over the premises and records and had the authority to restrict the government’s access by the terms of the policy. In sum, we find a reasonable expectation of privacy in these circumstances. For substantially the same reasons, we reject the government’s argument that Leary and Kleinberg either waived their fourth amendment rights or consented to the search. When evaluating fourth amendment rights, there is no clear distinction between “consent” to a search and a “waiver” of one’s privacy interest. The government, however, attempts to draw a distinction in this case, that is, that Leary and Kleinberg either “consented” to the August 23 search, or evidenced an ongoing consent to be searched at any time (a “waiver”). Despite the government’s effort to cast this inquiry as one of waiver, the proper analysis focuses on consent. In fact, the Supreme Court has expressly rejected the use of “waiver” analysis in fourth amendment cases in favor of a “voluntary consent” test. See Schneckloth v. Bustamonte, 412 U.S. 218, 235-46, 93 S.Ct. 2041, 2052-57, 36 L.Ed.2d 854 (1973). Thus, to determine whether, by granting any ongoing consent, Leary and Kleinberg effectively “waived” their fourth amendment rights, our analysis is guided by the law developed for analyzing “consent” searches. Initially, we reject any suggestion that Leary and Kleinberg specifically consented to the August 23, 1984 search. When a government agent claims authority to search under a warrant, “he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). In fact, the Supreme Court has stated that: “A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.” Bumper, 391 U.S. at 549, 88 S.Ct. at 1792. Similarly, we find no evidence that Leary and Kleinberg granted an ongoing consent to searches by Customs officers. We recently addressed the question of consent in detail, recognizing that the Supreme Court requires that “consent to a Fourth Amendment search must be voluntary in fact and free of coercion under the totality of the circumstances....” United States v. Carson, 793 F.2d 1141, 1150 (10th Cir.) (citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59) (emphasis in original), cert. denied, — U.S. -, 107 S.Ct. 315, 93 L.Ed. 2d 289 (1986). In addition, we have noted that consent “is a question of fact to be determined from the totality of all the circumstances [and] [t]he Government has the burden of proving that consent was given freely and voluntarily.” United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir.1985) (citations omitted). There is no evidence that Kleinberg and Leary granted an ongoing consent to the search of their offices or records by participating in a regulated activity. The federal recordkeeping regulations leave exporters with a substantial privacy interest. Government agents may be required to resort to judicial process to obtain desired records. Absent a statutory scheme authorizing warrantless searches, there is no waiver of constitutional rights in the mere fact that Leary and Kleinberg chose to participate in an activity regulated and licensed by the government. See Marshall v. Barlow’s Inc., 436 U.S. 307, 312-14, 323-24, 98 S.Ct. 1816, 1820-21, 1826, 56 L.Ed.2d 305 (1978). Nor do we find any ongoing consent in the company’s “open door” policy. As we noted earlier, Kleinberg did not invite the government to rummage through company files and carry out any documents that the agents found interesting. Equally important is the fact that “[w]hen the basis for a search or seizure is consent, the government must conform to the limitations placed upon the right granted to search, seize or retain the papers or effects.” Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir.1977); see also United States v. Gay, 774 F.2d 368, 377 (10th Cir.1985) (“The scope of a consent search is limited by the breadth of the actual consent itself.”); United States v. Milian-Rodriguez, 759 F.2d 1558, 1563 (11th Cir.) (“the government may not use consent to a search which was initially described as narrow as license to conduct a general search”), cert. denied, 474 U.S. 845, 106 S.Ct. 135, 88 L.Ed.2d 112 (1985). Even if Kleinberg’s policy can be characterized as an ongoing consent to government searches, the government exceeded the scope of that consent in two respects. First, Kleinberg invited government agents to inspect and copy records, not seize them. Second, Kleinberg’s invitation extended only to those documents related to regulated export activities. The government searched and seized records dealing with Leary’s personal and financial affairs and business activities unrelated to exports. In addition, we find a compelling policy reason to reject the government’s argument. As the regulations indicate, the government encourages voluntary cooperation with requests for export documents and information. Yet the government urges us to find that Kleinberg’s voluntary cooperation has resulted in a waiver of fourth amendment rights. This interpretation of the law would deliver a serious blow to the government’s “voluntary cooperation” efforts and discourage “open door” policies in the export industry. Accordingly, we find no consent or “waiver” and conclude that both Leary and Kleinberg have had their fourth amendment rights infringed by this search and seizure and may seek suppression of the evidence. We proceed to review the adequacy of the search warrant. III. Particularity The fourth amendment requires that warrants “particularly describ[e]... the persons or things to be seized.” U.S. Const, amend. IV. This requirement prevents a “general, exploratory rummaging in a person’s belongings,” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971) and “ ‘makes general searches... impossible and prevents the seizure of one thing under a warrant describing another. As to what is be taken, nothing is left to the discretion of the officer executing the warrant.’ ” Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)). See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); United States v. Medlin, 842 F.2d 1194, 1199 (10th Cir.1988); Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985). “The particularity requirement [also] ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.” Voss, 774 F.2d at 404. The test applied to the description of the items to be seized is a practical one. “ ‘A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.’ ” United States v. Wolfenbarger, 696 F.2d 750, 752 (10th Cir.1982) (quoting United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir.1982)). Even a warrant that describes the items to be seized in broad or generic terms may be valid “when the description is as specific as the circumstances and the nature of the activity under investigation permit.” United States v. Santarelli, 778 F.2d 609, 614 (11th Cir.1985); see United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985) (“degree of specificity required necessarily depends upon the circumstances of each particular case”). However, the fourth amendment requires that the government describe the items to be seized with as much specificity as the government’s knowledge and circumstances allow, and “warrants are conclusively invalidated by their substantial failure to specify as nearly as possible the distinguishing characteristics of the goods to be seized.” United States v. Fuccillo, 808 F.2d 173, 176 (1st Cir.), cert. denied, — U.S.-, 107 S.Ct. 2481, 96 L.Ed.2d 374 (1987). The district court found the Kleinberg warrant overbroad. That legal conclusion is subject to de novo review on appeal. See United States v. Fannin, 817 F.2d 1379, 1381 (9th Cir.1987); United States v. Spilotro, 800 F.2d 959, 963 (9th Cir.1986). Therefore, our task is to determine if the language of the Kleinberg warrant is sufficiently particular to achieve the requirements of the fourth amendment. The warrant under scrutiny here included only two limitations. First, the documents to be seized had to fall within a long list of business records typical of the documents kept by an export company. Second, those documents had to relate to “the purchase, sale and illegal exportation of materials in violation of the” federal export laws. In this context — the search of the offices of an export company — these limitations provide no limitation at all. The warrant authorizes, and the customs agents conducted, a general search of the Kleinberg offices. A. The warrant is facially overbroad. The Kleinberg warrant suffers from three flaws. First, it authorizes a general search in conjunction with a federal crime and is overbroad on its face. In Foss v. Bergsgaard, 774 F.2d 402 (10th Cir.1985), we invalidated a similar warrant. The warrant in Foss authorized government agents to seize documents and records “[a]ll of which are evidence of violations of Title 18, United States Code, Section 371.” Id. at 405. We concluded that “[e]ven if the reference to Section 371 [the federal conspiracy statute] is construed as a limitation, it does not constitute a constitutionally adequate particularization of the items to be seized.” Id. The government argues that Voss does not apply here because the export statutes describe a much narrower range of criminal activity. We disagree. While some federal statutes may be narrow enough to meet the fourth amendment’s requirement, the two statutes cited by the Kleinberg warrant cover a broad range of activity and the reference to those statutes does not sufficiently limit the scope of the warrant. Moreover, a series of decisions from other circuits have held that reference to a broad federal statute is not a sufficient limitation on a search warrant. For example, in Roche v. United States, 614 F.2d 6, 7 (1st Cir.1980) the warrant authorized the seizure of books, records and documents “which are evidence, fruits, and instrumen-talities of the violation of Title 18, United States Code Section 1341 [mail fraud].” The court found this limitation to be “no limitation at all.” Id. at 8. The Ninth Circuit has consistently applied the same rule. In United States v. Cardwell, 680 F.2d 75, 77 (9th Cir.1982), “[t]he only limitation on the search and seizure of appellants’ business papers was the requirement that they be the instrumentality or evidence of violation of the general tax evasion statute, 26 U.S.C. § 7201. That is not enough.” The court’s reasoning in Card-well is equally applicable here: “ ‘[Limiting’ the search to only records that are evidence of the violation of a certain statute is generally not enough.... If items that are illegal, fraudulent, or evidence of illegality are sought, the warrant must contain some guidelines to aid the determination of what may or may not be seized.” Id. at 78. Where the warrant provides no such guidelines, it is impermissibly over-broad on its face. See also Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987) (warrant limited only by references to the general conspiracy statute and general tax evasion statute did “not limit the search in any substantive manner”); United States v. Spilotro, 800 F.2d 959, 965 (9th Cir.1986) (“effort to limit discretion solely by reference to criminal statutes was inadequate”); United States v. Abrams, 615 F.2d 541, 542-43 (1st Cir.1980) (warrant limited only by reference to records and federal fraud statute is overbroad); In re Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979) (over-broad warrant allowed “seizure of most every sort of book or paper... limited only by the qualification that the seized item be evidence of violations of... ‘18 U.S.C. 286, 287, 371, 1001 and 1014.’ ”). We agree with the reasoning of these courts. As an irreducible minimum, a proper warrant must allow the executing officers to distinguish between items that may and may not be seized. See 2 La-Fave, § 4.6(a), at 235-36. The Kleinberg warrant does not provide that guidance. An unadorned reference to a broad federal statute does not sufficiently limit the scope of a search warrant. Absent other limiting factors, such a warrant does not comply with the requirements of the fourth amendment. See Andresen v. Maryland, 427 U.S. 463, 480-82, 96 S.Ct. 2737, 2748-49, 49 L.Ed.2d 627 (1976). Nor did the list of business records to be seized provide any meaningful limitation on the Kleinberg search. The warrant encompassed virtually every document that one might expect to find in a modem export company’s office. Again, the fourth amendment requires more. See Id.; see also In re Grand Jury Proceedings (Young), 716 F.2d 493, 498 (8th Cir.1983) (“laundry list of various type of records is insufficient to save the search warrant”); Roberts v. United States, 656 F.Supp. 929, 934 (S.D.N.Y.1987) (“By listing every type of record that could conceivably be found in an office, the warrant effectively authorized the inspectors to cart away anything that they could find on the premises.”); cf. Cardwell, 680 F.2d at 78; Abrams, 615 F.2d at 543; Roche, 614 F.2d at 7; Lafayette Academy, 610 F.2d at 5. We recognize that some lower courts have found similar warrants to be sufficiently particular. The government relies on United States v. Moller-Butcher, 560 F.Supp. 550, 557 (D.Mass.1983) where the district court found a warrant seeking “records which are required under the Export Administration Act, 15 C.F.R. § 387.13, by all businesses sending electronic equipment outside the United States” to be sufficiently particular. The district court in United States v. Gregg, 629 F.Supp. 958, 966-67 (W.D.No.1986), aff'd 829 F.2d 1430 (8th Cir.1987), approved a similar warrant. We are unpersuaded by these decisions. Neither court clearly explained why the warrant in question is sufficient; the analysis is brief and concluso-ry. Moreover, there are distinguishing features that limit the value of these decisions in our present inquiry. The government also argues that the facial overbreadth of the warrant is not fatal because any doubts about what was to be seized “could be resolved by resort to the affidavit which was a part of the warrant and which the agents had with them at the location of the search.” Brief of Appellant at 38. We disagree. It is true that the particularity of an affidavit may cure an overbroad warrant, but only “where the affidavit and the search warrant... can be reasonably said to constitute one document. Two requirements must be satisfied to reach this result: first, the affidavit and search warrant must be physically connected so that they constitute one document; and second, the search warrant must expressly refer to the affidavit and incorporate it by reference using suitable words of reference.” 2 LaFave, § 4.6(a), at 241 (quoting Bloom v. State, 283 So.2d 134 (Fla.App.1973)); see Id. cases cited at n. 28; 3 C. Wright, Federal Practice and Procedure § 670, at 723 (2d ed. 1982); United States v. Medlin, 798 F.2d 407, 410 n. 1 (10th Cir.1986) (“When an affidavit is attached to a warrant and incorporated by reference into the warrant, it can be used to cure a lack of particularity.”); United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir.1986), cert. denied, — U.S.-, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987) (affidavits did not accompany warrant); United States v. Strand, 761 F.2d 449, 453 (8th Cir.1985) (affidavit accompanied warrant but was not incorporated). The Kleinberg warrant did not incorporate the affidavit; there is no reference to the affidavit on the face of the warrant. In addition, there is no clear evidence in the record to support the government’s assertion that the affidavit “was a part of the warrant.” Finally, and perhaps most importantly, the search itself was not limited by the affidavit. If the affidavit was available to the agents searching the Kleinberg offices, it certainly was not used to limit the search. The agents seized documents related to transactions, countries and commodities not mentioned in the affidavit. In fact, the agents seized documents unrelated to Kleinberg’s export business. Even if the technical requirements for incorporation were met, it would be improper to allow the affidavit to cure the lack of particularity in the warrant where the government agents relied on the breadth of the warrant, not the specificity of the affidavit, to define the scope of the search. Cf. United States v. Spilotro, 800 F.2d 959, 967 (9th Cir.1986) (“government’s argument that the agents were somehow constructively guided by the affidavit in executing the warrants is unpersuasive”); Lafayette Academy, 610 F.2d at 5 (“[S]elf-restraint on the part of the... executing officers does not erase the fact that under the broadly worded warrant appellees were subject to a greater exercise of power than that which may have actually transpired and for which probable cause had been established. The particularity requirement is a check to just this sort of risk.” (citations omitted)). B. Information was available to make the warrant more particular. In addition to being overbroad on its face, the Kleinberg warrant is flawed because information was available to the government to make the description of the items to be seized much more particular. Admittedly, a general description is not always invalid. “Courts tend to tolerate a greater degree of ambiguity [in the warrant’s description] where law enforcement agents have done the best that could reasonably be expected under the circumstances, have acquired all the descriptive facts which a reasonable investigation could be expected to cover, and have insured that all those facts were included in the warrant.” United States v. Young, 745 F.2d 733, 759 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_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. BOBY v. ZURBRICK, District Director of Immigration. No. 6256. Circuit Court of Appeals, Sixth Circuit. Dec. 16, 1932. Ida Lippman, of Detroit, Mich. (Benjamin A. Rossin, of Detroit, Mich., on. the brief), for appellant. Y. F. McAuliflie, of Detroit Midi. (Gregory H. Frederick, of Detroit, Mich., on the brief), for appellee. Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges. PER CURIAM. Appellant, George Boby, filed his petition for writ of habeas eorpus. He sought to be discharged from arrest under a warrant of deportation directing that he be deported to Roumania. lie did not challenge the right of the government to deport him, but insisted that Roumania was not the country “whence he came.” See section 20 of the Immigration Act of February 5', 1917, U. S. C., tit. 8, § 156 (8 USCA § 156). At the hearing the District Court dismissed the writ. Appellant has preserved nothing for review. No bill of exceptions nor statement of evidence has been “authenticated” or “approved” by the trial judge. The record contains what purports to bo a stipulation, that at the hearing “United States Department of Labor File No. 55,717 was offered and received in evidence,” and a further stipulation that this record be certified to us and made a part of the record on appeal. What purports to be such a file has been sent to us, but it was not ordered to be sent either by the District Court or by this court. It bears no identification marks showing that it was ever considered by the District Court. Indeed, the record entries show only that the petition for the writ of habeas corpus was dismissed after it was read and after the attorney for petitioner had been heard. For the reasons indicated, this file No. 55,717 cannot be considered. Dukas v. Zurbrick, 56 F.(2d) 518 (C. C. A. 6). The stipulation last above referred to also purports to set forth other evidence and proceedings before the District Court, but it cannot take the place of the authentication or approval by the trial judge necessary to make its contents a part of the record. Malony v. Adsit, 175 U. S. 281, 287, 20 S. Ct. 115, 44 L. Ed. 163; Metropolitan R. R. Co. v. District of Columbia, 195 U. S. 322, 332, 25 S. Ct. 28, 49 L. Ed. 219; Buessel v. U. S., 258 F. 811, 817 (C. C. A. 2). Annexed to this stipulation is the name and official title of the judge, but wo cannot assume that he signed the paper as an authentication or approval of it as a part of the record. Because of the insufficiency in the record in the particulars indicated, the order of the District Court must be and is affirmed. Question: What is the general category of issues discussed in the opinion of the court? A. criminal and prisoner petitions B. civil - government C. diversity of citizenship D. civil - private E. other, not applicable F. not ascertained Answer:
songer_appfiduc
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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Robert WILLIAMS, Appellant, v. J. R. MARTIN, Warden, and the Attorney General of the State of South Carolina, Appellees. Nos. 77-1058, 78-6569. United States Court of Appeals, Fourth Circuit. Argued Aug. 22, 1979. Decided March 6, 1980. Timothy W. Bouch, Third Year Law Student (Walter Reiser, Randall M. Chastain, University of South Carolina Law Center, Columbia, S. C., on brief), for appellant. Katherine W. Hill, Asst. Atty. Gen., Columbia, S. C. (Daniel R. McLeod, Atty. Gen., and Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., on brief), for appellees. Before BUTZNER, HALL and PHILLIPS, Circuit Judges. BUTZNER, Circuit Judge: The critical issue in this appeal is whether a state court’s refusal to furnish an indigent prisoner an expert for the preparation and presentation of his defense was constitutional error. The district court held that it was not and dismissed Robert Williams’ petition for a writ of habeas corpus. We reverse because we believe that the appointment of an expert was constitutionally required for Williams’ adequate defense against a charge of murder. I Williams shot Phoebe Maybank during a family quarrel over a missing wallet. The wound paralyzed Maybank, and eight months later she died. Williams was initially charged with assault and battery with intent to kill and later with murder. The indictments were consolidated for trial in the General Sessions Court, Charleston County, South Carolina. Williams was indigent. Before trial his court-appointed attorney moved for the appointment, at the state’s expense, of an independent forensic pathologist to evaluate medical evidence concerning the cause of Maybank’s death. The motion disclosed that the county medical examiner believed Maybank died from a pulmonary embolism resulting from a thrombosis that formed in her leg due to immobilization caused by her paralysis from the gunshot wound. The motion explained that while Williams’ attorney had learned from medical books that there are numerous causes of a pulmonary embolism, he was not professionally able to evaluate the evidence and question the medical examiner without consulting a pathologist. He therefore sought authorization to engage a pathologist to examine the autopsy report and perhaps to testify about the “probability that events unrelated to assault and battery” caused Maybank’s death. The motion concluded with an estimate that a minimum fee for consultation with a pathologist and for his appearance as a witness would be $400. At the pretrial hearing on the motion, Williams’ attorney elaborated on the necessity of consultation with a pathologist because of the eight-month interval between the infliction of the wound and death. He said: There is a rather complex issue of medical causation involved. As best I understand it from my research, there is — the cause of death was a blood clot which formed in the leg of the decedent and then was detached and lodged in the pulmonary artery, I believe. I don’t know exactly the detail, but the difficulty is that the blood clot in the leg can be caused by a variety of means. The medical examiner informed me that he did not observe any of these other things in his examination of the body and the specimens that he preserved, but it is impossible for counsel to examine those specimens and determine whether or not his assessment is correct and it’s important, therefore, that the defendant be appraised and afforded the assistance of the competent expert witnesses to assist counsel in determining whether or not the cause of death as stated by the medical examiner is in fact the true cause of death . After counsel presented the motion, the following colloquy occurred: Judge: I have read your motion. As I understand it, your request, what you are in need of are funds to obtain this information, whether it is good or bad, and you ask the Court to direct that funds be paid? Is that correct? Defense Attorney: Be made available, yes, sir. Judge: Well, I don’t have that authority- Defense Attorney: Well, Your Honor, if it pleases the Court, I think the situation is in all respects similar to the situation of a defendant who needs to have a transcript provided for appeal or for other purposes. Judge: Well, that is provided for by law. Defense Attorney: The constitutional principle is the same, I believe, Your Honor, and I submit the motion to the Court. Judge: Well, I can say to you that I can’t issue an order directing the Treasurer of Charleston County to pay out this sum of money because, in my opinion, if I issued the order it would be ignored and I know of no funds available to pay for this type of evidence or testimony. So, I am not going to hold out to you that I can do that because I am satisfied that I can’t. All I can tell you is what my understanding of the law is, and that is I don’t have the authority to direct any money be paid to obtain this type of evidence or testimony from this type of witness. And, lacking that authority, I certainly can’t mislead you or your client by stating that I can provide those funds. Now, if you can talk to someone in authority who has funds available and they are agreeable, based on an order of the Court, to pay the money, I will so order it. Defense Attorney: I’ll investigate that, Your Honor. Williams’ attorney did not renew his motion or advise the court about any further investigations concerning a source of funds to pay the pathologist. At trial the state presented evidence that Williams shot Maybank, that she was unarmed, and that she presented no danger to him. The forensic pathologist testifying on behalf of the state said that Maybank’s body was embalmed and buried. Nine days after death the body was exhumed, and he conducted an autopsy. He testified that in his opinion Maybank’s death was due to a clot or thrombosis in her leg migrating to her lungs and cutting off the supply of blood to the lungs; her paralysis from the gunshot wound caused the clot; and her body exhibited no other cause for the clot in her leg. The autopsy report stated, “this thrombosis was most probably secondary to her paraplegia which resulted from a gunshot wound of the neck.” The doctor explained that the phrase “most probably” indicated the highest degree of medical certainty, although he could not be 100% sure about anything in medicine. Williams contended that Maybank’s death did not result from the gunshot wound. He also asserted that he shot in self-defense when Maybank attacked him with a knife. The jury convicted him of voluntary manslaughter, and the court sentenced him to 15 years in prison. Williams’ appeal to the Supreme Court of South Carolina assigned error to the trial court’s denial of his motion for funds to retain a pathologist. The Court held that a statute authorizing payment of expenses of counsel appointed to represent indigents encompassed compensation for expert witnesses when the assistance of an expert is reasonably necessary for a proper defense. It noted that Williams’ motion had been denied because of the trial court’s erroneous conclusion that funds were not available, but it held that the failure to provide funds did not prejudice Williams. It based its ruling on testimony of the state’s pathologist that the autopsy demonstrated to the highest possible degree of medical certainty that the gunshot wound caused death and that Williams had not shown that another pathologist would have aided his defense. See State v. Williams, 263 S.C. 290, 300, 210 S.E.2d 298, 303 (1974). Williams subsequently unsuccessfully sought a writ of habeas corpus in the state courts on the ground that he was denied effective representation because his counsel did not bring to the attention of the trial court the statute authorizing payment of expert witnesses. Williams then twice applied for writs of habeas corpus in the federal district court. In the first he alleged that the denial of his motion for funds to retain a pathologist deprived him of due process of law and denied him equal protection of the law in violation of the fourteenth amendment. In his second petition he alleged that his counsel was ineffective because he did not obtain a pathologist to assist with his defense. With respect to the first petition, the district court held that Williams had not been prejudiced because he had shown only that “he might have found a pathologist who did not share the opinion of the pathologist who testified for the State as to the cause of death.” It ruled that the constitution does not mandate “the expenditure of public funds for an indigent defendant to go shopping for a favorable expert witness.” The district court denied the second writ, involving the competency of counsel, for essentially the same reasons: Williams had not shown that medical evidence in his behalf was available and “if so, the substance of such testimony.” The appeals from denials of both writs were consolidated in this proceeding. II There can be no doubt that an effective defense sometimes requires the assistance of an expert witness. This observation needs little elaboration. Had Williams been financially able to afford his own defense, competent counsel undoubtedly would have consulted a pathologist. Moreover, provision for experts reasonably necessary to assist indigents is now considered essential to the operation of a just judicial system. The American Bar Association standards on providing defense services state: The plan [for providing competent counsel to indigents] should provide for investigatory, expert and other services necessary to an adequate defense. These should include not only those services and facilities needed for an effective defense at trial but also those that are required for effective defense participation in every phase of the process . The accompanying commentary notes that “[t]he quality of representation at trial may be excellent and yet valueless to the defendant if his defense requires the services of a[n] . . . expert and no such services are available.” ABA Standards, Providing Defense Service,. 22-23 (App. Draft 1968). Similarly, a distinguished committee of lawyers, state and federal judges, and academicians reported to the Attorney General that adequate representation of criminal defendants requires in some cases provision for engaging experts in addition to appointment of counsel. The committee stated: The need for such services has been recognized in all well-developed systems of representation for financially incapacitated defendants, both in this country and abroad. Until . . . such services are made available, the procedures in the federal courts can not fairly be characterized as a system of adequate representation. One of the assumptions of the adversary system is that counsel for the defense will have at his disposal the tools essential to the conduct of a proper defense . . . Both Congress and the South Carolina legislature have responded to this need by authorizing the provision of funds to indigent defendants for expert services when necessary for an adequate defense. See 18 U.S.C. § 3006A(e); S.C.Codg § 17-3-80 (Cumm.Supp.1978). Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965), vacated a judgment denying a motion for collateral relief brought under 28 U.S.C. § 2255. Relying on Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), we recognized that the obligation of the government to provide an indigent defendant with the assistance of an expert was firmly based on the equal protection clause. In Jacobs we held that the obligation arises when a substantial question exists over an issue requiring expert testimony for its resolution and the defendant’s position cannot be fully developed without professional assistance. 350 F.2d at 573. The determination of the defendant’s need for expert assistance is committed to the sound discretion of the trial judge. Ill The trial judge acknowledged Williams’ need for assistance, but he denied the motion because he erroneously believed that he lacked authority to furnish an expert at the state’s expense. It is quite evident that denial of Williams’ motion was not the result of the informed discretion of the trial judge. We, therefore must make an independent examination, of the record to determine (a) whether a substantial question requiring expert testimony arose over the cause of death, and (b) whether Williams’ defense could be fully developed without professional assistance. See Jacobs, 350 F.2d at 573. The cause of Maybank’s death was an essential element of the State’s case. It could be established by the prosecution only through the testimony of an expert witness. Although the state’s pathologist professed confidence in his opinion, despite embalming and the nine-day delay, he acknowledged that generally an autopsy should be performed as soon as possible after death. The pathologist also conceded that it is unusual for a pulmonary embolism to occur as long as eight" months after trauma. Thus, the record discloses a substantial question over the cause of death which required expert testimony for its explication. This satisfies the first aspect of the Jacobs test. Jacobs next requires consideration of whether Williams’ defense could be fully developed without professional assistance. We must apply the Jacobs test in the light of the Supreme Court’s observation that the assignment of a lawyer to an indigent must not be made “under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). Without the services of an expert, Williams’ trial counsel could not adequately prepare his case. A complete understanding of the medical factors involved was necessary before a medical layman could effectively question the state’s pathologist and test the firmness of his opinion. The handicap under which Williams’ counsel was forced to operate while preparing for and cross-examining the state’s expert is markedly similar to the situation in Jacobs where we held that the defendant’s “position could not be fully developed for lack of available professional assistance.” 350 F.2d at 573. The presentation of Williams’ defense at trial was also hampered by the absence of a defense expert witness. An expert may have been able to question the accuracy of an autopsy performed after embalming and delay. Furthermore, the record discloses that Maybank had cirrhosis of the liver. A medical textbook cited by Williams’ counsel in his brief indicates that cirrhosis and numerous other ailments may cause an embolism. Therefore, it is possible that a pathologist could have expressed an opinion on the likelihood that cirrhosis of the liver or some other disease caused the embolism. Such testimony could well have raised a reasonable doubt concerning the cause of death. Just as the state needed an expert to prove the cause of death, Williams needed an expert to present his defense. It is not incumbent upon Williams to prove under the Jacobs test that an independent expert would have provided helpful testimony at trial. An indigent prisoner who needs expert assistance because the subject matter is beyond the comprehension of laymen should not be required to present proof of what an expert would say when he is denied access to an expert. The state, relying on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), argues that Williams waived any right to relief. Estelle found waiver of a constitutional right because the defendant never objected to the trial court about being tried in prison clothing. Here, in contrast, Williams’ counsel did request funds and was affirmatively informed by the trial judge that no funds were available. Moreover, the state asserted in response to Williams’ claim of ineffective counsel that “[cjounsel cannot be personally faulted for being unaware of the South Carolina law providing for such assistance since the trial judge, who has had many years on the bench, was also unaware of the statute.” Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), on which the state also relies, dealt with an alternative source of assistance that was widely known and easily available. In Williams’ case, however, the record discloses no alternative to the state funds requested and denied by the trial judge. Likewise, we conclude that Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir. 1978), which the state cites, is not controlling because of factual differences. Satterfield concerned the defendant’s claim of insanity. Satterfield was able to procure a doctor to testify in his defense, and the state did not introduce evidence available to it that he was sane. Because a substantial question requiring expert testimony arose over the cause of Maybank’s death and because Williams’ defense could not be fully developed without professional assistance that would have been available to a person who could afford his own defense, Williams has satisfied the dual test prescribed in Jacobs to establish that he was denied equal protection of the law. Furthermore, the trial judge’s refusal to provide an expert deprived Williams of the effective assistance of counsel and due process of law in violation of the sixth and fourteenth amendments. Cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Mason v. Arizona, 504 F.2d 1345, 1351 (9th Cir. 1974); Davis v. Coiner, 356 F.Supp. 695 (N.D.W.Va.1973); United States v. Germany, 32 F.R.D. 421 (M.D.Ala.1963). The order dismissing Williams’ habeas corpus petition is vacated, and the case is remanded with directions to appoint a pathologist to investigate the cause of May-bank’s death. If, with such assistance, Williams can establish that the expert assistance of a pathologist in preparing and presenting his defense was necessary to the adequate presentation of that defense, and might reasonably have affected adjudication of the cause of death, the writ should be granted, subject to retrial in a reasonable length of time. See ABA Standards, Providing Defense Services § 1.5 (App. Draft 1968). Obviously, if the pathologist testifies that there is no reasonable doubt that the gunshot wound caused Maybank’s death, Williams will have failed to establish that an expert witness would have assisted in the adequate preparation and presentation of his defense. In that situation, the error caused by the state’s failure to appoint an independent expert would be harmless and the conviction will stand. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Jacobs, 350 F.2d at 573. Because Williams failed to object at trial to the jury instruction on self-defense, we affirm the judgment of the district court on that issue. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977); Frazier v. Weatherholtz, 572 F.2d 994, 996 (4th Cir. 1978). Vacated and Remanded for Further Proceedings. . S.C.Code § 17-3-80 (Cumm.Supp.1978) provides: Appropriation for expenses of appointed private counsel and public defenders; restrictions and limitations. In addition to the appropriation in § 17-3-70, there is hereby appropriated for the fiscal year commencing July 1, 1969 the sum of fifty thousand dollars for the establishment of the defense fund which shall be administered by the Judicial Department. This fund shall be used to reimburse private appointed counsel, public defenders, and assistant public defenders for necessary expenses actually incurred in the representation of persons pursuant to this chapter, provided that the expenses are approved by the trial judge. No reimbursement shall be made for travel expenses except extraordinary travel expenses approved by the trial judge. The total State funds provided by this section shall not exceed fifty thousand dollars. . Report of the Attorney General’s Committee on Poverty and the Administration of Federal Criminal Justice, 45-46 (1963). . In view of our disposition of the case, we need not address Williams’ claim that his counsel was ineffective because he did not obtain a medical witness. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
sc_casesourcestate
25
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed. FREEDMAN v. MARYLAND. No. 69. Argued November 19, 1964. Decided March 1, 1965. Felix J. Bilgrey argued the cause for appellant. With him on the brief were Richard C. Whiteford and Louis H. Poliak. Thomas B. Finan, Attorney General of Maryland, argued the cause for appellee. With him on the brief were Robert F. Sweeney and Roger D. Redden, Assistant Attorneys General. Edioard De Grazia and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal. Mr. Justice Brennan delivered the opinion of the Court. Appellant sought to challenge the constitutionality of the Maryland motion picture censorship statute, Md. Ann. Code, 1957, Art. 66A, and exhibited the film “Revenge at Daybreak” at his Baltimore theatre without first submitting the picture to the State Board of Censors as required by § 2 thereof. The State concedes that the picture does not violate the statutory standards and would have received a license if properly submitted, but the appellant was convicted of a § 2 violation despite his contention that the statute in its entirety unconstitutionally impaired freedom of expression. The Court of Appeals of Maryland affirmed, 233 Md. 498, 197 A. 2d 232, and we noted probable jurisdiction, 377 U. S. 987. We reverse. I. In Times Film Corp. v. City of Chicago, 365 U. S. 43, we considered and upheld a requirement of submission of motion pictures in advance of exhibition. The Court of Appeals held, on the authority of that decision, that “the Maryland censorship law must be held to be not void on its face as violative of the freedoms protected against State action by the First and Fourteenth Amendments.” 233 Md., at 505, 197 A. 2d, at 235. This reliance on Times Film was misplaced. The only question tendered for decision in that case was “whether a prior restraint was necessarily unconstitutional under all circumstances.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70, n. 10 (emphasis in original). The exhibitor’s argument that the requirement of submission without more amounted to a constitutionally prohibited prior restraint was interpreted by the Court in Times Film as a contention that the “constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture . . . even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government . . . .” 365 U. S., at 46, 47. The Court held that on this “narrow” question, id., at 46, the argument stated the principle against prior restraints too broadly; citing a number of our decisions, the Court quoted the statement from Near v. Minnesota, 283 U. S. 697, 716, that “the protection even as to previous restraint is not absolutely unlimited.” In rejecting the proffered proposition in Times Film the Court emphasized, however, .that “[i]t is that question alone which we decide,” 365 U. S., at 46, and it would therefore be inaccurate to say that Times Film upheld the specific features of the Chicago censorship ordinance. Unlike the petitioner in Times Film, appellant does not argue that § 2 is unconstitutional simply because it may prevent even the first showing of a film whose exhibition may legitimately be the subject of an obscenity prosecution. He presents a question quite distinct from that passed on in Times Film; accepting the rule in Times Film, he argues that § 2 constitutes an invalid prior restraint because, in the context of the remainder of the statute, it presents a danger of unduly suppressing protected expression. He focuses particularly on the procedure for an initial decision by the censorship board, which, without any judicial participation, effectively bars exhibition of any disapproved film, unless and until the exhibitor undertakes a time-consuming appeal to the Maryland courts and succeeds in having the Board’s decision reversed. Under the statute, the exhibitor is required to submit the film to the Board for examination, but no time limit is imposed for completion of Board action, § 17. If the film is disapproved, or any elimination ordered, § 19 provides that “the person submitting such film or view for examination will receive immediate notice of such elimination or disapproval, and if appealed from, such film or view will be promptly re-examined, in the presence of such person, by two or more members of the Board, and the same finally approved or disapproved promptly after such re-examination, with the right of appeal from the decision of the Board to the Baltimore City Court of Baltimore City. There shall be a further right of appeal from the decision of the Baltimore City Court to the Court of Appeals of Maryland, subject generally to the time and manner provided for taking appeal to the Court of Appeals.” Thus there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review. Risk of delay is built into the Maryland procedure, as is borne out by experience; in the only reported case indicating the length of time required to complete an appeal, the initial judicial determination has taken four months and final vindication of the film on appellate review, six months. United Artists Corp. v. Maryland State Board of Censors, 210 Md. 586, 124 A. 2d 292. In the light of the difference between the issues presented here and in Times Film, the Court of Appeals erred in saying that, since appellant’s refusal to submit the film to the Board was a violation only of § 2, “he has restricted himself to an attack on that section alone, and lacks standing to challenge any of the other provisions (or alleged shortcomings) of the statute.” 233 Md., at 505, 197 A. 2d, at 236. Appellant has not challenged the submission requirement in a vacuum but in a concrete statutory context. His contention is that § 2 effects an invalid prior restraint because the structure of the other provisions of the statute contributes to the infirmity of § 2; he does not assert that the other provisions are independently invalid. In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. “One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to procure it.” Thornhill v. Alabama, 310 U. S. 88, 97; see Staub v. City of Baxley, 355 U. S. 313, 319; Saia v. New York, 334 U. S. 558; Thomas v. Collins, 323 U. S. 516; Hague v. CIO, 307 U. S. 496; Lovell v. City of Griffin, 303 U. S. 444, 452-453. Standing is recognized in such cases because of the “. . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” NAACP v. Button, 371 U. S. 415, 433; see also Amsterdam, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 75-76, 80-81, 96-104 (1960). Although we have no occasion to decide whether the vice of overbroadness infects the Maryland statute, we think that appellant’s assertion of a similar danger in the Maryland apparatus of censorship — one always fraught with danger and viewed with suspicion— gives him standing to make that challenge. In substance his argument is that, because the apparatus operates in a statutory context in which judicial review may be too little and too late, the Maryland statute lacks sufficient safeguards for confining the censor’s action to judicially determined constitutional limits, and therefore contains the same vice as a statute delegating excessive administrative discretion. II. Although the Court has said that motion pictures are not “necessarily subject to the precise rules governing any other particular method of expression,” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503, it is as true here as of other forms of expression that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, supra, at 70. “. . . [U]nder the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity . . . without regard to the possible consequences for constitutionally protected speech.” Marcus v. Search Warrant, 367 U. S. 717, 731. The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court— part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final. Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v. Randall, 357 U. S. 513, 526, “Where the transcendent value of speech is involved, due process certainly requires . . . that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.” Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. See Bantam Books, Inc. v. Sullivan, supra; A Quantity of Books v. Kansas, 378 U. S. 205; Marcus v. Search Warrant, supra; Manual Enterprises, Inc. v. Day, 370 U. S. 478, 518-519. To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor’s view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, supra. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. Without these safeguards, it may prove too burdensome to seek review of the censor’s determination. Particularly in the case of motion pictures, it may take very little to deter exhibition in a given locality. The exhibitor’s stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation. The distributor, on the other hand, may be equally unwilling to accept the burdens and delays of litigation in a particular area when, without such difficulties, he can freely exhibit his film in most of the rest of the country; for we are told that only four States and a handful of municipalities have active censorship laws. It is readily apparent that the Maryland procedural scheme does not satisfy these criteria. First, once the censor disapproves the film, the exhibitor must assume the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the Board has acted against a film, exhibition is prohibited pending judicial review, however protracted. Under the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had evér ruled on the obscenity of the film. Third, it is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination. We hold, therefore, that appellant’s conviction must be reversed. The Maryland scheme fails to provide adequate safeguards against undue inhibition of protected expression, and this renders the § 2 requirement of prior submission of films to the Board an invalid previous restraint. III. How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to decide. But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U. S. 436, we upheld a New York injunctive procedure designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must hand down his decision within two days after termination of the hearing. The New York procedure operates without prior submission to a censor, but the chilling effect of a censorship order, even one which requires judicial action for its enforcement, suggests all the more reason for expeditious determination of the question whether a particular film is constitutionally protected. The requirement of prior submission to a censor sustained in Times Film is consistent with our recognition that films differ from other forms of expression. Similarly, we think that the nature of the motion picture industry may suggest different time limits for a judicial determination. It is common knowledge that films are scheduled well before actual exhibition, and the requirement of advance submission in § 2 recognizes this. One possible scheme would be to allow the exhibitor or distributor to submit his film early enough to ensure an orderly final disposition of the case before the scheduled exhibition date — far enough in advance so that the exhibitor could safely advertise the opening on a normal basis. Failing such a scheme or sufficiently early submission under such a scheme, the statute would have to require adjudication considerably more prompt than has been the case under the Maryland statute. Otherwise, litigation might be unduly expensive and protracted, or the victorious exhibitor might find the most propitious opportunity for exhibition past. We do not mean to lay down rigid time limits or procedures, but to suggest considerations in drafting legislation to accord with local exhibition practices, and in doing so to avoid the potentially chilling effect of the Maryland statute on protected expression. D Reversed. Md. Ann. Code, 1957, Art. 66A, §2: “It shall be unlawful to sell, lease, lend, exhibit or use any motion picture film or view in the State of Maryland unless the said film or view has been submitted by the exchange, owner or lessee of the film or view and duly approved and licensed by the Maryland State Board of Censors, hereinafter in this article called the Board.” Md. Ann. Code, 1957, Art. 66A, § 6: “(a) Board to examine, approve or disapprove films — -The Board shall examine or supervise the examination of all films or views to be exhibited or used in the State of Maryland and shall approve and license such films or views which are moral and proper, and shall disapprove such as are obscene, or such as tend, in the judgment of the Board, to debase or corrupt morals or incite to crimes. All films exclusively portraying current events or pictorial news of the day, commonly called news reels, may be exhibited without examination and no license or fees shall be required therefor. “(b) What films considered obscene. — For the purposes of this article, a motion picture film or view shall be considered to be obscene if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever other merits the film may possess. “(c) What films tend to debase or corrupt morals.- — For the purposes of this article, a motion picture film or view shall be considered to be of such a character that its exhibition would tend to debase or corrupt morals if its dominant purpose or effect is erotic or pornographic; or if it portrays acts of sexual immorality, lust or lewdness, or if it expressly or impliedly presents such acts as desirable, acceptable or proper patterns of behavior. “(d) What films tend to incite to crime. — For the purposes of this article, a motion picture film or view shall be considered of such a character that its exhibition would tend to incite to crime if the theme or the manner of its presentation presents the commission of criminal acts or contempt for law as constituting profitable, desirable, acceptable, respectable or commonly accepted behavior, or if it advocates or teaches the use of, or the methods of use of, narcotics or habit-forming drugs.” Appellant also challenges the constitutionality of § 6, establishing standards, as invalid for vagueness under the Due Process Clause; § 11, imposing fees for the inspection and licensing of a film, as constituting an invalid tax upon the exercise of freedom of speech; and § 23, allowing exemptions to various classes of exhibitors, as denying him the equal protection of the laws. In view of our result, we express no views upon these claims. See Emerson, The Doctrine of Prior Restraint, 20 Law & Con-temp. Prob. 648, 666-659 (1955). This is well illustrated by the fact that the Maryland Court of Appeals has reversed the Board’s disapproval in every reported case. United Artists Corp. v. Maryland State Board of Censors, supra; Maryland State Board of Censors v. Times Film Corp., 212 Md. 454, 129 A. 2d 833; Fanfare Films, Inc. v. Motion Picture Censor Board, 234 Md. 10, 197 A. 2d 839. An appendix to the brief amici curiae of the American Civil Liberties Union and its Maryland Branch lists New York, Virginia and Kansas as the three States having statutes similar to the Maryland statute, and the cities of Chicago, Detroit, Fort Worth and Providence as having similar ordinances. Twenty-eight of the remaining 39 municipal ordinances and codes are listed as “inactive.” Question: What is the state of the court whose decision the Supreme Court reviewed? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_procedur
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. CAMPBELL v. GILPIN. (Court of Appeals of the District of Columbia. Submitted November 13, 1925. Decided December 7, 1925.) No. 1775. 1. Patents <@=>101 — In interference proceeding, claims given broad interpretation, warranted by terms, when read in light of application. . In interference .proceeding, claims of application for patent must be given broad interpretation, -which their terms reasonably warrant, when read in light of application in which they originated. 2. Patents <@=>51 (2) — Installation of device on railway car held a reduction to practice, as affecting right to priority in interference proceeding. Installation'of device for releasing coupling pin of railway cars on cars of a particular railroad held a reduction to practice, as affected right to priority in interference proceeding. Appeal from Commissioner of Patents. Interference proceeding between Sterling H. Campbell and Garth G. Gilpin. Prom a decision awarding priority to Campbell, the senior party, Gilpin, the junior party, appeals. Affirmed. E. E. Huffman, of St. Louis, Mo., for appellant. E. S. Clarkson and Melville Church, both of Washington, D. C., and P. H. Truman, of Chicago, HI., for appellee. Before MARTIN, Chief Justice, ROBB, Justice, and SMITH, Judge of the United States Court of Customs Appeals. ROBB, Associate Justice. Appeal from a decision of the Patent Office in an interference proceeding awarding priority to the senior party, Gilpin. The invention,' while comparatively simple, possesses great utility, and the case, because of its importance, has been very thoroughly presented, both before the Patent Office and here. The issue is defined in six counts, all of which originated in the Campbell application. Counts 1 and 2 are sufficiently illustrative, and read as follows: “1. The combination, with a railway ear, of a coupler head carried thereby, a knuckle lock for said coupler head, • provided with an eye, ah actuating rod, and a link connected to said rod, said link having a bend formed in its lower part, the end of said bend being extended to form a complete loop open for the reception of the eye of the knuckle lock, and the smallest over-all dimension of the loop being greater than any dimension of the eye, whereby said link can only be engaged, with the eye of the knuckle lock by a pivotal movement about an axis substantially perpendicular to the plane of the loop. “2. The combination, with a railway car, of a coupler head carried thereby, a knuckle lock for said coupler head provided with an eye, an actuating rod, and a link, provided at its upper part with a complete loop open to receive the eye of the actuating rod, the lower part of said link having formed therein a bend, the end of said bend being extended to form a complete loop open to receive the eye of the knuckle lock, and the smallest over-all dimension of the loop being greater than any dimension of the eye whereby said link can only be engaged with the eye of the knuckle lock by a pivotal movement around an axis substantially perpendicular to the plane of the knuckle lock.” An examination of these counts discloses that the invention is a mechanism for releasing the coupling pin of a railway car, and comprises a link having a helical loop or •bend in its lower end, to be inserted in the eye of the pin; the link being locked by a bar engaging its upper end. The helical loop is designed to prevent the removal of the link when in locked position by any shifting, jarring, or vibration of the parts incident to the movement of the train. This loop is the bone of contention in the case.® Campbell filed his application on January 7, 1916, and a patent issued thereon May 22, 1917. Gilpin’s application was filed September 18, 1917, as a division of application No. 44,717, filed August 10, 1915. If, therefore, Gilpin’s original application disclosed this invention, the Campbell patent was inadvertently issued.' In the specification of his early application, Gilpin says: “The object of my invention is to provide between the hand lever and the lock pin lifter a joint, which is flexible to service conditions, but which at the same time prevents the pin lifter from being rotated around its axis, to such an extent, at least, as will make it possible for the pin lifter to be disengaged from the locking pin of the coupler, thereby eliminating all danger of its becoming accidentally disengaged from the coupler lock pin.” This is followed by a recitation of other objects, which need not be mentioned here. Figures 10’and 11 of the drawing of. that application, according to the finding of two of the tribunals of the Patent Office, disclose a structure, not only capable of performing this intended function, but which fairly read upon the claims of the issue, if those claims are given the broad interpretation which their terms reasonably warrant, when read in the light of the application in which they originated, and that they must be so read in an interference proceeding is settled law in this court. Miel v. Young, 29 App. D. C. 481; Western Elec. Co. v. Martin, 39 App. D. C. 147; Kirby v. Clements, 44 App. D. C. 12, and Clulee v. Adt, 44 App. D. C. 300. In April of 1915, some time prior to the filing of the early Gilpin application, his device was installed on cars of the Rutland Railroad, and, after reviewing the evidence on this point, we agree with the Examiner of Interferences and the Assistant Commissioner that this installation constituted a reduction to practice by Gilpin of the invention. Since this date was earlier than the earliest date of conception claimed by Campbell, it follows that the conclusion reached by the Patent Office was right. The opinion of the Assistant Commissioner, which we adopt, contains a full and very satisfactory discussion of the evidence and the law of the case. The decision is affirmed. Affirmed. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_origin
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. Elmer J. HOWE, Appellant, v. Eugene R. BROUSE, Appellee. No. 19751. United States Court of Appeals, Eighth Circuit. March 2, 1970. Elmer J. Howe, pro se. Thomas A. Sweeny, Kansas City, Mo., for appellee; Herbert C. Hoffman, Counselor, Kansas City, Mo., and Dan G. Jackson, III, Associate City Counselor, Kansas City, Mo., on the brief. Before MATTHES, GIBSON and LAY, Circuit Judges. PER CURIAM. This is an appeal from an order of summary judgment issued by Judge William Collinson denying plaintiff Howe’s suit for damages for violation of his civil rights under 42 U.S.C. § 1983. Howe’s complaint arises out of his allegation that while appearing in Division No. 2 of the Kansas City Municipal Court on June 6, 1964 on a misdemeanor charge of destruction of personal property of the value of $1.60, the presiding judge, Honorable Eugene R. Brouse, in the absence of the complaining witness, attempted to elicit the nature and circumstances of the case from Howe. When Howe refused to answer, Judge Brouse, according to Howe’s allegation, subjected Howe to ridicule and a tirade of threats and abuse, demanding that Howe answer. Failing in that, Judge Brouse continued the case for one week when once again the complaining witness failed to appear. Judge Brouse dismissed the case and then assessed Howe $10 court costs to which Howe objected. Howe paid the court costs but appealed to the Circuit Court of Jackson County, Missouri, which Court ordered his $10 returned. Howe then filed suit in the Jackson County Circuit Court alleging damages resulting from Judge Brouse’s behavior during Howe’s court appearance. The suit was dismissed on motion of Judge Brouse on the grounds of judicial immunity and on the applicable statute of limitations; on appeal to the Missouri Supreme Court that decision was affirmed, Howe v. Brouse, 427 S.W.2d 467 (1968), the Supreme Court determining that none of the acts complained of, including the alleged excessive abuse and the assessment of court costs, though perhaps in error, was subject to suit for civil damages due to the doctrine of judicial immunity. Howe then instituted suit in the United States District Court for the Western District of Missouri under 42 U.S.C. § 1983, alleging that Judge Brouse’s behavior violated Howe’s civil rights. Judge Collinson dismissed this action on summary judgment. Judge Collinson in his memorandum opinion (not reported) noted the decision of the Missouri Supreme Court and stated that it was a correct application of the doctrine of judicial immunity. However, Judge Collinson rested his decision on the ground that having fully litigated this action in the state courts, the doctrine of res judicata applied and was a complete defense to Howe’s attempt to institute this action in the federal courts. The judgment of the Missouri Supreme Court was conclusive on all matters which were or might have been litigated in that action. Norwood v. Parenteau, 228 F.2d 148 (8th Cir. 1955), cert. denied, 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478 (1956) and Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966). We believe Judge Collinson has applied the proper ease law and we agree with his decision. Plaintiff, whether by design or inadvertence, chose to pursue his action in the state courts. All of his legal claims and allegations of fact were fairly considered. His case was dismissed and concluded on the legal ground of judicial immunity, thus accepting his version of the facts. He therefore has no legitimate complaint about his case not being considered on its merits. He cannot reinstitute the same cause of action, against the same individual, based on the same array of facts, merely by changing legal theories and sovereign-ties. This is a classic case for the application of the doctrine of res judicata. Judgment affirmed. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_genresp2
G
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the 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. UNITED STATES v. NARDONE et al. No. 342. Gircuit Court of Appeals,- Second Circuit. June 14, 1937. Thomas O’Rourke Gallagher, of Brooklyn, for defendant-appellant Nardone. Joseph P. Nolan, of New York City, for defendants-appellants Callahan and Brown. Louis Halle, of New York City, for defendant-appellant Gottfried. Lamar Hardy, U. S. Atty., of New York City (Lester C. Dunigan, Asst. U. S. Atty., and Maxwell S. McKnight, Sp. Asst. U. S. Atty., both of New York City, of counsel), for the United States. Before MANTON, L. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge. The appellants were indicted in the Southern District of New York, tried and convicted on all counts, and sentenced. The indictment was in three counts. The first count charged the violation of 19 U. S.C.A. § 1593(a), as principals under 18 U.S.C.A. § 550, by smuggling a large quantity of alcohol into the Port of New York; the second count charged the violation of 19 U.S.C.A. § 1593(a), by receiving and concealing the smuggled alcohol in the Southern District; and the third count charged a conspiracy to violate the above-mentioned statutes contrary to 18 U.S.C.A. § 88. The evidence, much of it circumstantial, was sufficient to justify the jury in finding that, in accordance with a preconceived plan agreed to by the defendants either at the beginning or as progress was made, they and others who were not indicted, but who will all be referred to as the conspirators, caused 2400 cases of alcohol to be shipped about the 28th day of December 1935 from St. Pierre, Miquelon, on the British oil screw Isabelle H., to be smuggled into this country without payment of duty. That boat anchored for about 'two weeks off Yarmouth, N. S., waiting for another boat called the Pronto. For some time before that the Pronto had been undergoing repairs at New London, Conn., at the expense of some of the defendants, who sent the funds to pay for them from New York. About the 26th of October, 1935, the Pronto sailed from New London for Yarmouth, N. S., where her repairs were completed, also at the expense of some of the defendants and partially with parts ordered by them in New York and sent to Yarmouth. About January 12, 1936, the Isabelle H. picked up the Pronto at Seal Island off Yarmouth and towed her empty to a point off the coast of South Carolina; where 800 cases of the alcohol were transferred from the Isabelle H. to the Pronto, which was seized and her crew arrested while trying to run past the Coast Guard. Learning of this, the Isabelle H. put into St. George, Bermuda, where she remained for some time under the observation of the United States Coast Guard. While there, those in charge of her communicated with the conspirators in New York and were sent some funds for expenses. While the Isabelle H. was at St. George, the conspirators, Nardone and one Leveque, tried to obtain a boat for use in bringing the 1600 cases of alcohol remaining on the Isabelle H. to New York. They met with others frequently at the Hotel Astor and at the Belford Restaurant in New York, where many telephone calls were made and received. Some of these calls enabled defendant Gottfried to talk with Leveque and defendant Callahan and with one Conrad Mathiasen of the Mathiasen Towing Company. On March 15, 1936, the S. S. Southern Sword, owned by the Aleo Steamship Company, of which defendant Callahan was president, was at Newport News, Va. She had been in command of Capt. Pendleton, but he had been relieved by Callahan of his command and replaced by defendant Brown when on March 16, 1936, the boat sailed with a cargo of coal for Bridgeport, Conn. That night in clear weather the Southern Sword met the Isabelle II. at sea off Winter Quarter Lightship and took aboard the 1600 cases of alcohol. Capt. Brown testified that he supposed the cases held cans of shellac, but there was evidence that he had before stated to a member of the crew that he was to receive alcohol and that he for a moment thought he was transshipping shellac in fair weather at sea from the Isabelle H., a vessel not in distress, is too preposterous for serious consideration. The Southern Sword made New York Bay the next night and was met near Governors Island by defendant Callahan, who went down to her on a tug of the Mathiasen Towing Company, boarded her, and then went back on the tug. Then the Southern Sword went up North River to Pier 72, where she discharged the alcohol surreptitiously and then proceeded-with her cargo of coal to Bridgeport, Conn., where her regular captain, Pendleton, resumed command. In this way the 1600 cases, containing 9,600 gallons of alcohol, were smuggled into New York. On March 20, 1936, the Southern Sword was seized at Bridgeport and the defendants were arrested, some of them at the Belford Restaurant, where Gottfried tried to get rid of some papers having to do with the business. That all the defendants were parties to the unlawful agreement and that all of them actively assisted within the Southern District of New York in carrying it out was shown too plainly, though in part circumstantially, despite such denials as appear in the record, to make it profitable to attempt any further analysis of the evidence. The claimed errors in the trial alone supply all reasonable basis for seeking reversal. Of these all are merely frivolous except those which relate to the introduction into evidence of information obtained by wire tapping. It appeared that for some time before the defendants were arrested they had'been under the observation of federal agents, and that about 500 of their telephone calls had been -made while government agents were listening in and taking notes in so far as possible of what was said. Of these the prosecuting attorney selected 72 messages for introduction into evidence. They had a vital part in the government’s proof and, if they were erroneously admitted, reversal must follow without question. Before discussing the main objection to them, notice should be taken of one between defendant Nardone and an otherwise unidentified person called Eddie. It had to do with “the fellows up above,” of whom three had been indicted in the state court. They were “supposed to surrender but one of them got killed.” The suggestion was made “that the rap is going to be turned over to the Federal authorities,” and Nardone told Eddie to leave the amount of money needed to their discretion. This was objected to as soon as read as having no connection with the case and, because prejudicial to Nardone, a motion was made for a mistrial. That was denied but, as the government attorney could not show the connection of the message, the court with his consent decided to strike out the evidence. Defendant Nardone’s attorney expressed doubt as to the effectiveness of that and, insisting that the error could not be cured, declined the offer of the court to read just what was being struck out and stood upon his motion for a mistrial. Thereupon the court said to the jury; “February 25th, 1936, is stricken out. Gentlemen, do not consider it in any way at all, but take it out of your mind. That applies to any testimony stricken out during the trial.” If incurable error was committed in reading this message to the jury, it is obvious that no harm was done any defendant but Nardone. The harm, if any, to him consisted in the showing of his interest in and willingness to help some unknown persons who had been indicted in a state court. The vice lay mainly in the guarded language used, for a willingness to assist one accused of crime is not in itself reprehensible. The general atmosphere of wrongdoing hurt here if anything about the message did. Then, too, it is impossible to excuse the reading of a message which by its terms referred only to the claimed infraction of some state law having apparently nothing to do with the subject matter of the indictment on trial. But, after all, the harm, if any, was so general and vague that we are not prepared to say that it was not cured by the prompt action of the court. Besides that, any doubt about it should be laid aside in view of the fact that the charges against Nardone in the indictment in this case were by competent evidence so clearly proved that a reversal on this point would be a plain miscarriage of justice. Under such circumstances, 28 U.S.C.A. § 391, is to be given effect. Tingley v. United States (C.C.A.) 34 F.(2d) 1. A more serious matter relating to the introduction of all the messages and which is applicable to all the appellants concerns their admissibility in view of 47 U.S.C.A. § 605, which is a part of the Federal Communications Commission Act of June 19, 1934 (48 Stat. 1064), and was a part of the Radio Act of 1927 (44 Stat. 1162). That section forbids the unauthorized publication of communications'by any person “receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio,” and thus far cannot apply to this case, as the government agents who listened in were not assisting in the receipt or transmission of any messages. But the section also provides, with exceptions not here relevant, that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.” We take it for granted that this refers only to interstate and foreign messages. There were enough of them introduced in evidence so that we need not now be concerned with any distinction between what were purely intrastate messages and what were not. That aside, decision turns upon whether, assuming that the interception of the messages was unlawful, their introduction in evidence was error. The Supreme Court in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 568, 72 L.Ed. 944, 66 A.L.R. 376, decided June 4, 1928, considered the admissibility of evidence in a Federal court obtained by a government officer by tapping a wire in violation of a criminal statute of the state of Washington and held it admissible, suggesting that, “Congress may, of course, protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials, by direct legislation, and thus depart from the common law of'evidence. But the courts may not adopt such a policy by attributing an enlarged and unusual meaning to the Fourth Amendment.” The above-mentioned statute subsequently passed by Congress is silent as to the admissibility of messages intercepted contrary to its provisions. As Congress did not see fit to adopt the suggestion of direct legislation to make such evidence inadmissible, we are, of course, bound to enforce the law as declared in the above case. That would dispose of the point flatly were it a state rather than a federal law which forbade the interception of these messages. Yet in principle there is no distinction. Since there is no constitutional prohibition of their admission in evidence, it is necessary to their exclusion that some statute must so provide. Evidently Congress did not care for such a policy. As Chief Justice Taft said: “A standard which would fqrbid the reception of evidence, if obtained by other than nice ethical conduct by government officials, would make society suffer and give criminals greater immunity than has .been known heretofore.” Olmstead v. United States, supra. Nor were they inadmissible because the agents were unable to testify that they took down verbatim all that was said. Olmstead v. United States (C.C.A.) 19 F.(2d) 842, 53 A.L.R. 1472; Schoborg v. United States (C.C.A.) 264 F. 1. Judgment affirmed. 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_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. Sylvia DOWNES, Plaintiff-Appellant, v. Marguerite BEACH and Robert Doty, Defendants-Appellees. No. 77-1535. United States Court of Appeals, Tenth Circuit. Submitted Sept. 28, 1978. Decided Nov. 30, 1978. Paul A. Baca, Denver, Colo., for plaintiff-appellant. Samuel Berman and Harry R. Sayre of Adams & Sayre, Denver, Colo., for defendants-appellees. Before McWILLIAMS, McKAY and LOGAN, Circuit Judges. LOGAN, Circuit Judge. This is an appeal from a judgment entered in a suit commenced under 42 U.S.C. § 1983. Allegations were that plaintiffs, including Sylvia Downes, had been discharged from their employment as nurses by the Las Animas-Huerfano Counties Health Board for exercise of their First Amendment rights. The trial court granted a motion for summary judgment in favor of defendants-appellees Marguerite Beach and Robert L. Doty, the responsible supervisory officers, and against Ms. Downes. The only question on appeal is the appropriateness of the grant of the motion for summary judgment under the circumstances of this case. Downes and the other plaintiffs had been employed as nurse practitioners by the Las Animas-Huerfano Counties Health Department in its Children and Youth Project in Trinidad, Colorado for several years. Conflicts arose between these nurses and their supervisors over the working conditions and administration of the project. In a letter dated March 14, 1975, signed by several employees, including Downes, a “sick out” and mass resignations were threatened if certain demands were not met. The other nurse plaintiffs participated in a “sick out” on March 26 and 27, 1975, and were fired. In an action they brought in the federal district court five other nurse plaintiffs received jury verdicts totalling $4,550 against defendants Beach and Doty. Responding to a motion for new trial the court found that the “sick out” was not constitutionally protected free speech, and entered judgment n. o. v. dismissing those plaintiffs from the case. They have not appealed. Ms. Downes, not an original plaintiff, was allowed to join that suit after it was commenced. The jury brought in a verdict in her favor for a total of $14,000 against Beach and Doty. The court granted a motion for new trial on the Downes claim, stating that although she was absent from work on the “sick out” days she had testified that she had obtained actual sick leave authorization, had a doctor’s appointment, and missed work until April 21, 1975 because of emergency surgery. The judge said it was not clear from the record whether she had resigned upon discovery that her co-workers had been fired, or had been dismissed. Then the order stated: Beside the fact that it is not clear whether Sylvia Downes resigned or was dismissed, the First Amendment issue remains viable only in her case. This fact is of greater significance to our decision to grant her a new trial. If she did not participate in the “sick out,” we cannot hold as a matter of law that Defendants dismissed her for a constitutionally permissible and sufficient reason. The jury was told that they need only find that the termination of Plaintiffs was based in part upon constitutionally impermissible reasons. Assuming that Sylvia Downes was dismissed for constitutionally impermissible reasons, it might have been that there also existed sufficient and constitutionally neutral reasons for her dismissal. Thereafter defendants-appellees filed a motion for summary judgment against Ms. Downes supported by an affidavit of the project director, various exhibits and a brief. The exhibits showed Ms. Downes as a signer of the March 14,1975 letter threatening the “sick out” and resignation; she had applied in February for annual and educational leave to attend a high school reunion and human sexuality workshop during the period March 26 through April 4, 1975; and defendant Beach on March 24, had denied all leave requests because of staffing problems. Exhibits also included a March 28, 1975 letter from Beach and Doty to Downes indicating they accepted her verbal resignation, and were requesting the Colorado Department of Health to terminate her employment. The letter cited absences without proper notification as the reasons for the requested termination. Joan Truby, Director of Public Health Nursing, Colorado Department of Health, also sent a letter (Exhibit 5) to Downes, dated March 28, indicating possible disciplinary action due to improper absences. On April 24, 1975, Downes wrote to the Colorado Department of Health (with copies sent to Beach and Doty) and indicated that she considered herself constructively dismissed (Exhibit 6). A similar letter to Joan Truby was dated May 5, 1975 (Exhibit 7). The final document was a referee’s decision of the Colorado Labor Department finding Ms. Downes had been constructively discharged and granting her full award benefits (Exhibit 8). In response Downes submitted an affidavit declaring simply that she did not voluntarily resign, that she was forced into submitting a letter of separation by the action of the defendants, and that she would not have resigned but for the actions defendants took which indicated they no longer wanted her to work in their agency. Following this exchange the trial court granted the defendants’ motion for summary judgment. The key portion of its order was as follows: Assuming that Plaintiff was wrongfully discharged, as found by the Referee, Defendants contend that they violated no First Amendment rights of Plaintiff. That is the critical issue of this case. See Mt. Healthy City School District Bd. of Ed. v. Doyle, 45 U.S.L.W. 4079, 4082 [429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471] (Jan. 11, 1977). Plaintiff has set forth no facts to indicate that she was dismissed in violation of her First Amendment rights. The instant situation is not one where there is a contractual right to continued employment, nor where the individual has tenure rights guaranteed under the state or federal law. We agree that the case is controlled by Mt. Healthy City School Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), decided just two weeks before the trial court order granting the new trial to Ms. Downes. Mt. Healthy involved an untenured school teacher whose contract had not been renewed. The teacher had been involved in several disruptive incidents at school, and most recently had released to the local radio station the school principal’s memorandum on teacher dress and appearance. The Court held that a three-step process should be used to determine if the teacher’s constitutional rights had been violated. The burden is on the plaintiff to show, first, that his or her conduct is constitutionally protected, and second, that the conduct was a substantial or motivating factor in his dismissal. Third, if the plaintiff satisfies this burden, the defendant must show “by a preponderance of the evidence that it would have reached the same decision as to . reemployment even in the absence of the protected conduct.” 429 U.S. at 287, 97 S.Ct. at 576. The trial court considered the summary judgment motion against the backdrop of the Mt. Healthy decision. After reviewing the proffered affidavits, exhibits, and arguments, the trial court found that there remained no disputed material facts as to whether Downes’ constitutional rights had been violated. The court put particular emphasis on Downes’ failure to set forth in her affidavit opposing the motion any facts giving rise to a genuine dispute on the constitutional issue. While it is true that matters in the record and all reasonable inferences to be drawn therefrom must be construed in favor of the party opposing a summary judgment motion, Rule 56(e) of the Federal Rules of Civil Procedure indicates that the party against whom the motion is raised has a responsibility to demonstrate the existence of a material fact: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. With respect to the constitutional question, Downes did not set forth specific facts as contemplated by the rule. Downes nevertheless contends that the record of the previous trial, together with the court’s order granting a new trial, demonstrated the existence of a factual controversy precluding summary judgment on the constitutional question. We must decide whether the court erred in not considering the record of the prior proceeding. We recognize that courts have, on occasion, considered records of earlier trials in evaluating summary judgment motions. See, e. g., United States v. Sinclair Ref. Co., 126 F.2d 827, 831 (10th Cir. 1942). We also recognize that this Circuit has announced that the court has the power to go beyond the parties’ pleadings and evaluate evidence in the record to determine the appropriateness of summary judgment. While it is the duty of the trial court to grant a motion for summary judgment in an appropriate case, the relief contemplated by Rule 56 is drastic, and should be applied with caution to the end that the litigants will have a trial on bona fide factual disputes. Under the rule no margin exists for the disposition of factual issues, and it does not serve as a substitute for a trial of the case nor require the parties to dispose of litigation through the use of affidavits. The pleadings are to be construed liberally in favor of the party against whom the motion is made, but the court may pierce the pleadings, and determine from the depositions, admissions and affidavits, if any, in the record whether material issues of fact actually exist. If, after such scrutiny, any issue as to a material fact dispositive of right or duty remains the case is not ripe for disposition by summary judgment, and the parties are entitled to a trial. Bushman Constr. Co. v. Conner, 307 F.2d 888, 892-93 (10th Cir. 1962). The use of the word “may” in the Bushman opinion is significant. Our rule in that ease permitted, but did not compel, the court to search beyond the evidence proffered in connection with the motion. While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out. We simply decline to place upon the court the litigant’s burden of bringing to the court’s attention the existence of a factual dispute. The party who has the most to lose if no genuine factual controversy is found is in the best position to demonstrate the existence of a dispute. If the party opposing the motion decides to forego submitting proof that a relevant factual dispute exists, he does so at his peril. The method by which the relevant facts are called to the court’s attention is not rigid. It may be done by affidavit, reference to particular sworn testimony in a trial transcript, or by similar procedures. Whatever procedure is employed, it is the responding party’s burden to ensure that the factual dispute is portrayed with particularity, without relying on the trial court’s memory of prior proceedings and without depending on the trial court to conduct its own search of the record. In this case, Downes contends that a genuine issue of fact could have been discovered by a review of the record of the prior trial. Downes did not draw the court’s attention to the particular testimony or portions of the record that support her contention. She proffered only an affidavit that focused on an uncontested issue — whether she was discharged or whether she resigned. We cannot say the court had an obligation to uncover what Downes failed to produce. Whatever the record of the earlier trial may have contained, we decline to find that the court abused its discretion in refusing to conduct an independent search for a factual dispute. We therefore hold that summary judgment was properly entered. . Bruce v. Martin-Marietta Corp., 544 F.2d 442, 445 (10th Cir. 1976). . It is conceivable, of course, that the party opposing the motion may succeed without making an effort to demonstrate the existence of a material fact dispute. This could arise if the movant fails to carry the burden of establishing the nonexistence of a dispute. See Ad-ickes v. S. H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); 6 Moore’s Federal Practice fl 56.23, at 56-1387 (2d ed. 1948 Supp. 1976). 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_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". S. S. KRESGE CO. v. DUNNE. No. 3010. Circuit Court of Appeals, First Circuit. May 25, 1935. John M. Morrison, of Boston, Mass. (Julian T. Hargraves, of Boston, Mass., on the brief), for appellant. James T. Doherty,' of Boston, Mass. (Leo P. Doherty and Frank E. McFarlin, both of Boston, Mass., on the brief), for appellee. Before BINGHAM, WILS.ON, and MORTON, Circuit Judges. PER CURIAM. This is an appeal from a judgment of the District Court of Massachusetts. The defendant at the close of the evidence moved for a directed verdict in its favor, which was refused. This is the only assignment of error. The jury found for the plaintiff. If the jury believed the plaintiff’s testimony and that of her sister, the plaintiff entered the defendant’s store in Boston for the purpose of making purchases. While walking along one of the aisles of the store between two counters where she could properly travel in making her purchases, a salesgirl, ■ after ringing up a sale on a cash register, walked backward from behind the counter into the aisle and stepped on the plaintiff’s foot, evidently breaking the skin, from which blood poisoning developed. The plaintiff and her sister positively identified the salesgirl who they claimed caused the injury. There was much conflict of testimony as to the identity of the salesgirl, and whether at the time she was in the act of performing any duties her employment required. We think there was evidence warranting the submission of the case to the jury. While an alternative -verdict, so called, was taken, if the jury believed the plaintiff’s evidence, we see no question of law involvecb on which the judgment can be reversed. The salesgirl, from the plaintiff’s evidence, was evidently employed at the time at the counter in question. There is nothing in the record to indicate as a matter of law that the plaintiff was not in the exercise of due care, or had any warning that the salesgirl was about to step back into the aisle without stopping or looking.' The charge of the presiding judge was not printed, and we must assume that he gave full and correct instructions as to what constitutes negligence and contributory negligence, and what injuries can be said as a matter of law to be the result, of pure accident. The judgment of the District Court is affirmed, with costs. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_appel1_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. Gene W. and Jule C. REARDON, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. No. 73-1642. United States Court of Appeals, Tenth Circuit. Feb. 8, 1974. Gene W. Reardon, Denver, Colo. (Gene F. Reardon, Denver, Colo., on the brief), for appellees. William M. Brown, Dept. of Justice, Washington, D. C. (Meyer Rothwaeks, Richard W. Perkins, and Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., on the brief; James L. Treece, U. S. Atty., Denver, Colo, of counsel), for appellant. Before HILL, HOLLOWAY and BARRETT, Circuit Judges. BARRETT, Circuit Judge. Gene W. and Jule C. Reardon brought this suit under 28 U.S.C.A. § 1346(a)(1) for a refund of federal income taxes for 1968 in the amount of $401.37. The District Court held that Reardon was entitled to the refund and that the two applicable treasury regulations were ineffective to deprive Rear-don of the benefits conferred in Section 105(d). The Government appeals. Reardon (taxpayer) was employed 28y2 years as an attorney for the IRS when he was forced to retire at age 51 on September 1, 1958, on total disability. He began receiving a total disability pension and annually deducted $5,200, the maximum income exclusion, pursuant to Section 105(d) of the IRS Code. In December of 1966, he reached age 60, at which time he would have qualified for optional service retirement if he had continued employment and served for 30 years. Mandatory retirement age is 70 years. In 1967 and 1968 taxpayer excluded $5,200 per year of his pension payments under Section 105(d) on the theory that they qualified for the limited sick pay exclusion. The Commissioner disallowed the exclusions on the theory that taxpayer had reached retirement age in 1966. The IRS issued a tax statement for 1967 and 1968 which showed an overpayment of taxes for 1967 and a deficiency in 1968 resulting in a net balance due the IRS of $401.37. Taxpayer paid the deficiency and filed this claim for refund. The Government contends that the District Court erred in: (1) holding that Treasury Regulations §§ 1.79-2(b)(3) and 1.105-4(a) (3) (i) add an unauthorized restriction on the disability payment exclusion provided by Section 105(d) of the Code; (2) holding that taxpayer’s testimony as to his intent to continue Government employment until mandatory retirement age should be given controlling significance; and (3) granting declaratory relief to taxpayer. I. The Government contends that its treasury regulations properly define “retirement age” to qualify for the Section 105(d) exclusion. Section 105(d), 26 U.S.C.A., states in part as follows: (d) Wage continuation plans.— Gross income does not include amounts referred to in subsection (a) if such amounts constitute wages or payments in lieu of wages for a period during which the employee is absent from work on account of personal injuries or sickness; but this subsection shall not apply to the extent that such amounts exceed a weekly rate of $100. Treasury regulations promulgated by the Commissioner of Internal Revenue provide that any pension received by the taxpayer after the earliest date taxpayer could have retired (in this case at the optional service retirement age of 60) is not entitled to the Section 105(d) exclusion. Two recent decisions have held that the two regulations are invalid insofar as they deprive a disability retiree of the exclusion benefits before mandatory retirement age. Brooks v. United States, 473 F.2d 829 (6th Cir. 1973); Jovick v. United States, 492 F.2d 1215 (Ct.Claims 1973). See Commissioner of Internal Revenue v. Winter, 303 F.2d 150 (3rd Cir. 1962); Walsh v. United States, 322 F.Supp. 613 (E.D.N.Y.1970); Bigley v. United States, 252 F.Supp. 757 (E.D.Mo.1966); Keefe v. United States, 247 F.Supp. 589 (N.D.N.Y.1965). In Brooks the Court stated: While it cannot be doubted that income received after the mandatory age will be taxable regardless of whether the pension began as a disability pension, we hold that the Government’s position, as outlined in the regulation, is untenable. The statute is clear and unambiguous in providing for an exclusion of payments made to any employee for a period of absence from work caused by illness. The money that this taxpayer receives between the age of 60, when he was forced to retire by illness, and 65, when he would have to retire whether or not healthy, is received because of his absence from work because of illness. 473 F.2d at 831. Contemporaneous construction of a statute by an agency charged with its enforcement is entitled to great deference by the courts. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Western Bancshares, Inc. v. Board of Governors of Federal Reserve System, 480 F.2d 749 (10th Cir. 1973). Administrative regulations are not absolute rules of law, however, and should not be followed when they conflict with the design of the Code or exceed the administrative authority granted. National Labor Relations Board v. Boeing Co., 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973); Dorfman v. Commissioner of Internal Revenue, 394 F.2d 651 (2nd Cir. 1968). The Commissioner cannot promulgate regulations which impose a tax on the taxpayers which has not been imposed by legislative command. Commissioner of Internal Revenue v. Acker, 361 U.S. 87, 805 S.Ct. 144, 4 L.Ed.2d 127 (1959) ; Smith v. Commissioner of Internal Revenue, 332 F.2d 671 (9th Cir. 1964). An employee who absents himself from work for retirement because of disability prior to mandatory retirement age is within the class of individuals intended to be benefited by Section 105(d). Taxpayer falls within that class of individuals. The subject treasury regulations are invalid and ineffective to deprive taxpayer of the exclusion benefits of Section 105(d). II. The Government argues that the District Court erred in crediting taxpayer’s testimony that he intended to work for the IRS until mandatory retirement age, and in viewing taxpayer’s intent as controlling. Taxpayer testified that he intended to continue his work with the Government until mandatory retirement age because his financial resources were limited and he needed the salary to raise his children. Following his retirement he formed a law firm with two of his children. He earned $51,356.93 in 1968. The Government argues that economic gain alone would have required his absence from employment with the IRS in 1968. This contention is not developed by cogent authority or argument. We are not impelled, accordingly, to consider it seriously. Suffice it to note that appellate courts do not try cases de novo and that the resolution of conflicting evidence is particularly within the province of the trial court. United States v. 79.95 Acres Of Land, More Or Less, In Rogers County, State Of Oklahoma, 459 F.2d 185 (10th Cir. 1972); Davis v. Cities Service Oil Company, 420 F.2d 1278 (10th Cir. 1970). Taxpayer is currently totally disabled and unable to work full time. He spends five hours or less a day in his law firm. The trial court did not err in finding that taxpayer intended to continue with his employment until mandatory retirement age. III. The Government contends that the District Court erred in granting declaratory relief to taxpayer. Taxpayer states that he did not request a declaratory judgment and that declaratory relief was not granted. The trial court ordered that taxpayer was entitled to the refund of $401.37 arising from his joint 1967 and 1968 tax returns, and to the exclusion for 1969 and succeeding years until taxpayer reaches the age of 70. A declaratory judgment must declare the rights and duties of parties presented in justiciable controversy. The simple statement that taxpayer is entitled to the exclusion for 1969 and succeeding taxable years until he reaches the age of 70, does not constitute declaratory judgment relief. In any event, declaratory judgment relief is not authorized in refund suits against the United States. 28 U.S.C.A. § 2201. Taxpayer is entitled to a refund of $401.37 plus statutory interest from April 15, 1971. Affirmed. . Jule C. Reardon is a party to the suit because joint returns were filed for the two taxable years in dispute. . Regulation § 1.105-4(a) (3) (i) (a) states that the § 105(4) exclusion “does not apply to the payments which such an employee receives after he reaches such retirement age.” Regulation § 1.105-4(a) (3) (i) (b) states that retirement age has the same meaning as in Regulation § 1.79-2 (b) (3) which reads in part as follows: (3) Retirement age. For purposes of section 79 (b) (1) and this section, the meaning of the term “retirement age” is determined in accordance with the following rules— (i) (a) If the employee is covered under a written pension or annuity plan of the employer providing such individual group-term life insurance on his life (whether or not such plan is qualified under section 401(a) or 403(a)), then his retirement age shall be considered to be the earlier of— (1) The earliest age indicated by such plan at which an active employee has the right (or an inactive individual would have the right had he continued in employment) to retire without disability and without the consent of his employer and receive immediate retirement benefits computed at either the full rate or a rate proportionate to completed service as set forth in the normal retirement formula of the plan, i. e., without actuarial or similar reduction because of retirement before some later specified age, or—. . . 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_appel1_7_5
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 "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). WILLIAMSON v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. WILLIAMSON. Nos. 7578, 7615. Circuit Court of Appeals, Sixth Circuit. Dec. 15, 1938. Murray Seasongood, of Cincinnati, Ohio (Murray Seasongood, Harry Stickney, and Paxton & Seasongood, all of Cincinnati, Ohio, on the brief), for petitioner Williamson. Berryman Green, of Washington, D. C. (James W. Morris, Sewall Key, J. Louis Monarch, and Louise Foster, all of Washington, D. C., on the brief), for the Commissioner. Before HICKS, ALLEN, and HAMILTON, Circuit Judges. • ALLEN, Circuit Judge. These appeals involve the same facts, and were consolidated for hearing and decision. In No. 7578 the taxpayer seeks to review the order of the Board of Tax Appeals sustaining a determination of deficiencies and adjusting the amounts thereof to $11,639.90 and $4,425.02 for the taxable years 1932 and 1933 respectively. 34 B.T.A. 668. In No. 7615 the Commissioner attacks the same order upon the ground that the deficiencies determined should have been $12,323.69 and $4,596.90 respectively. The controversy arises out of the sale of certain stocks inherited' by the taxpayer from her husband, A. W. Williamson, who died intestate on March 28, 1931, leaving her his sole heir at law. The facts are stipulated. At the time of decedent’s death he owned 3,094 shares of common stock of the American Rolling Mill Company, and 5,932% shares of common stock of the Columbia Gas & Electric Corporation. On that date these stocks had a fair market value of $29.50 and $41 per share respectively. Two administrators, one of them being the Fifth-Third Union Trust Company of Cincinnati, were appointed and qualified. The market value of. the stocks decreased rapidly, and prior to October 31, 1931, the taxpayer demanded that the administrators sell sufficient assets to pay the expenses of administration and taxes, which amounted to approximately $90,000. The administrators did not comply with this demand. If these stocks had been sold within three months of the date of the administrators’ qualification, as authorized under § 10697 of the General Code of Ohio, the prices obtained for the American Rolling Mill Company stock would have varied from $32.37% per share to $15.12% per share, and for the Columbia' Gas & Electric Corporation stock from $39.37% to $20.62% per share. In June, 1932, when the market value of these particular stocks was much lower, the administrators notified the taxpayer that they would sell sufficient assets to pay the debts and taxes. On June 18, 1932, the administrators contracted with the taxpayer that the Fifth-Third Union Trust Company would lend the taxpayer sufficient funds to pay the debts, taxes and all charges outstanding against the estate, and the taxpayer agreed to execute and deliver notes in the amount of the loan, payable to the order of the Trust Company, to pledge as security therefor all the stocks of the estate, and to relinquish her right of action against the administrators for the shrinkage in the estate. The contract was fully performed. On June 28, 1932, the probate court of Hamilton County, Ohio, entered an order directing that the property of the estate be distributed in kind to the person entitled .thereto according to law. The stocks were actually transferred to the taxpayer on July 11 and July 14, 1932. At that time the common stock of the American Rolling Mill Company and of the Columbia Gas & Electric Company had a fair market value of $4.37% and $6.62% per share respectively. The taxpayer, during the taxable years 1932 and 1933, made sales of part of this stock at a price greater than the above fair market values existing on the date when she received the stock. The sales were made pursuant to the contract with the administrators. In her income tax return, the taxpayer reported losses on these sales, calculating that the difference between the amount she received and the fair market value of the shares at the time of decedent’s death constituted loss to her under the statute. The Commissioner computed gain based upon the difference between the amounts realized and the fair market value of the shares on the date of the order of distribution, June 28, 1932. The Board of Tax Appeals computed the gain, using July 11 and July 14, 1932, as the basic dates. The deficiencies were determined under § 113 (a) (5) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 198, 26 U.S.C. A. § 113 note, which reads as follows: “(a) The basis of property shall be the cost of such property: except that— * * ❖ “(5) If personal property was acquired by specific bequest, or if real property was acquired by general or specific devise or by intestacy, the basis shall be the fair market value of the property at the time of the death of the decedent. If the property was acquired by the decedent’s estate from the decedent, the basis in the hands of the estate shall be the fair market value of the property at the time of the death of the decedent. In all other cases if the property was acquired either by will or by intestacy, the basis shall be the fair market value of the property at the time of the distribution to the taxpayer. * * * ” The principal questions are (1) Does § 113 (a) (5) apply in this case, and if applicable, should the taxpayer use as cost basis the fair market value of the stock at time of distribution to her, or the fair market value at the date of her husband’s death? (2) Does the provision in the statute that the cost basis of the stock shall be the fair market value at the time of distribution to the taxpayer violate the Constitution of the United States? Upon the first question, it is the taxpayer’s contention that the stocks sold were obtained for value and not by intestacy, and that hence § 113 (a) (5) does not apply. She alleges that in assuming liability for the debts of the estate, agreeing to pledge the stocks of the estate, and releasing her cause of action against the administrators, she gave valuable consideration for the stocks. Conceding the hardship arising from the fact that the administrators failed to sell these stocks at a time when a better price could have been realized, and later notified the taxpayer that the stocks would be sold at a time when they were greatly depressed in market value, this does not change the legal situation. In order to sustain her proposition that § 113 (a) (5) does not control, the taxpayer contends that the stocks were in effect sold to her by the administrators. But while value was given for the loan, this transaction had none of the earmarks of a sale. The taxpayer’s receipt of the stocks was in no way dependent upon her loan or pledge. The Board of Tax Appeals found that the stocks were acquired by intestacy, and there is no evidence to support any other conclusion. In the alternative, the taxpayer alleges that if § 113 (a) (S) controls, the stocks in question were acquired by the decedent’s estate from the decedent, and that within the purview of the second sentence of the section, the basis thereof is the fair market value at the time of decedent’s death. But this contention has no merit. The taxpayer acquired these stocks through a distribution in kind. The estate did not acquire them. Cf. Commissioner v. Matheson, 5 Cir., 82 F.2d 380, 381. Hence the property was at no time “acquired by the decedent’s estate from the decedent,” and the third sentence of the section controls. The basis is the value of the property at the time of distribution to the taxpayer. The decision must also be affirmed upon the question of constitutionality. Since Congress has the plenary power of taxation, it may determine the basic date for figuring gain or loss. Whether it be the date of purchase of stocks by a donor (Taft v. Bowers, 278 U.S. 470, 49 S.Ct. 199, 73 L.Ed. 460, 64 A.L.R. 362), or the time of acquisition (Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457), or the time of actual distribution to the taxpayer, as in the present statute (Haskell v. Commissioner, 3 Cir., 78 F.2d 869), does not affect the validity of the measure. The classifications established in § 113 (a) (5) are reasonable and non-discriminatory, and the statute is clearly constitutional. The Board of Tax Appeals decided that the taxpayer was entitled to have her gain taxed as capital net gain under § 101 (c) (8) of the Revenue Act of 1932, 26 U.S.C.A. § 101 note, finding that the stock had been held by her more than two years. McFeely v. Commissioner, 296 U.S. 102, 56 S.Ct. 54, 80 L.Ed. 83, 101 A.L.R. 304. The taxpayer urges that this decision, if affirmed, requires reversal of the main case, for if she held the stock more than two years, she acquired title long prior to the time of distribution. But the Supreme Court has disposed of this contention in McFeely v. Commissioner, stating that § 101 (c) (8) and § 113 (a) (5) “are not inconsistent, and'that each should be read as affecting the subject to which alone it applies.” [Page 59.] The taxpayer’s basic contention is that she suffered a loss in the sale of these stocks. Undoubtedly the securities were sold at less than their market value at the time of her husband’s death. But the fundamental fallacy of the taxpayer’s position is that while at her husband’s death she had a right to receive these stocks, she had invested nothing in them, and they did not become her property' until the actual distribution. Goodrich v. Edwards, 255 U.S. 527, 41 S.Ct. 390, 65 L.Ed. 758, in which the taxpayer acquired stock by purchase, is therefore not in point. In the instant case, between the date of distribution and the dates of sale there was a substantial increase in value, and the taxpayer gained by the sales, although she did not receive as much as she would have if the stocks had sold at the market price of March 28, 1931. Since it is not the value of the property acquired by her which is taxed, but the gain received in the sale, § 22 (b) of the Revenue Act of 1932, 26 U.S.C.A. § 22 (b) has no bearing. In No. 7615 the Commissioner contends that the Board of Tax Appeals erred in its decision that distribution under § 113 (a) (5) occurs upon the date of actual transfer of the securities to the taxpayer, rather than upon the date when the order of distribution is entered by the probate court. We think that the Board of Tax> Appeals was correct in its decision upon this point. Its determination (34 B.T.A. 924) that the date of the actual receipt of the stocks is the basis instead of the date of the order of distribution is in accord with the words of § 113 (a) (5), which expressly states that the basis shall be the fair market value of the property “at the time of the distribution to the taxpayer.” The court order 'is the authority which underlies and precedes the distribution, and the time of actual distribution is not necessarily the same as the time of the entering of the order. Since distribution is the apportionment by a court of the personal property or the proceeds of an intestate’s estate among those entitled to it according to the state statutes of distribution, ' and since the federal statute in general terms fixes the time of distribution as the basic date, Congress evidently contemplated that the time of distribution should be that which is recognized by state law. Under Ohio law, the probate court does not through its order effect a distribution of property. The only valid order of distribution which the probate court is authorized to enter is general. The probate court has no power to designate the distributees. Swearingen v. Morris, 14 Ohio St. 424, 432; Cox, Adm’r, v. John, 32 Ohio St. 532; Armstrong v. Grandin, 39 Ohio St. 368. In First National Bank of Cadiz v. Beebe, 62 Ohio St. 41, 56 N.E. 485, the opinion stated [page 487]: “But it is to be specially noted that the only power here given with respect to the distribution of estates is to order distribution. This does not mean that the probate court may find and direct the persons to whom distribution is to be made, and the amounts to each, but means simply that, as a result of the settlement of accounts of executors and administrators, and as a step necessary to a final distribution of the trust fund, a general order of distribution is to be made.” To the same effect is Henry v. Doyle, 82 Ohio St. 113, 91 N.E. 990, 137 Am.St.Rep. 769. The order of the probate court of Hamilton County, therefore, did not bring about a segregation of the shares of stock, and did not, within the meaning of the statute, result in a distribution. The decision is affirmed. The same basic date as that established in the statute considered in Brewster v. Gage, supra, namely, the time of ae- ■ quisition, controlled the decision in Security Trust Co. v. Commissioner, 6 Cir., 65 F.2d 877. 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:
sc_adminaction
067
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. UNITED STATES v. ALCEA BAND OF TILLAMOOKS et al. No. 26. Argued January 31, February 1, 1946. — Reargued October 25, 1946. Decided November 25, 1946. Walter J. Cummings, Jr. argued the cause for the United States. With him on the briefs were Solicitor General McGrath, Assistant Attorney General Bazelon and Roger P. Marquis. J. Edward Williams and John C. Harrington were also on the brief on the original argument. Everett Sanders argued the cause for respondents. With him on the brief were L. A. Gravelle, Douglas Whit-lock and Edward F. Howrey. Ernest L. Wilkinson and John W. Cragun filed a brief, as amici curiae, and James E. Curry and C. M. Wright filed a brief for the National Congress of American Indians, as amicus curiae, urging affirmance. Mr. Chief Justice Vinson announced the judgment of the Court and delivered an opinion, in which Mr. Justice Frankfurter, Mr. Justice Douglas, and Mr. Justice Murphy joined. Eleven Indian tribes have sued the United States in the Court of Claims under the Act of August 26, 1935, which gives that court jurisdiction to hear and adjudicate cases involving “any and all legal and equitable claims arising under or growing out of the original Indian title, claim, or rights in . . . the lands . . . occupied by the Indian tribes and bands described in” certain unratified treaties negotiated with Indian tribes in the Territory of Oregon. Four of the tribes, the Tillamooks, Coquilles, Too-too-to-neys and Chetcos, successfully identified themselves as entitled to sue under the Act, proved their original Indian title to designated lands, and demonstrated an involuntary and uncompensated taking of such lands. The Court of Claims thereupon held that original Indian title was an interest the taking of which without the consent of the Indian tribes entitled them to compensation. In answer to government contentions that original Indian title, in the absence of some form of official “recognition,” could be appropriated without liability upon the part of the sovereign, the Act of 1848, establishing the Territory of Oregon, was cited by the Court of Claims as affording any recognition required to support the claim for compensation. The issues decided, not previously passed upon by this Court and being of importance to the administration of Indian affairs, prompted this Court to grant certiorari. The case was argued during the 1945 term and on April 1, 1946, was restored to the docket for reargument before a full bench. The events giving rise to the claims here occurred as part of the opening and development of the Territory of Oregon. After creating a government for that territory by the Act of 1848, Congress in 1850 authorized the negotiation of treaties with Indian tribes in the area. Under the latter Act, Anson Dart, later succeeded by General Joel Palmer, was appointed Superintendent of Indian Affairs for the Oregon region and was instructed to negotiate treaties for the extinguishment of Indian claims to lands in that district. On August 11,1855, Palmer and respondent tribes concluded a treaty providing for the cession of Indian lands in return for certain money payments and the creation of a reservation. The treaty was to be operative only upon ratification. It was not submitted to the Senate until February, 1857, and was never ratified. Pending expected ratification, and following recommendations from Palmer, the President on November 9, 1855, created a reservation, subject to future diminution and almost identical with that provided for in the treaty. A large part of this reservation, called the Coast or Siletz Reservation, consisted of lands to which the Tillamook Tribe held original Indian title. Almost immediately the Tillamooks were confined to that portion of their land within the reservation, and the other three respondent tribes, as well as other tribes, were moved from their original possessions to the reservation. In 1865 an Executive Order reduced the size of the reservation; in 1875 Congress by statute approved the Executive Orders of 1855 and 1865, and in order to open more land for public settlement, removed additional land from the reservation. By an Act of 1894, Congress officially accepted and approved the reservation as it then existed, and thenceforward did not take reservation lands without compensation. The claims of respondent tribes are for the wrongful taking which occurred when they were deprived of their original possessions by the Executive Order of November 9, 1855. Even as to the Tillamooks, the Court of Claims found the taking complete as of November 9, 1855, since this tribe was forced to share its former lands with other Indians, and since the reservation was, in any event, only a conditional one, subject to being opened for public settlement at the will of the President. Petitioner disputes neither this finding nor the proof of original Indian title as of 1855. Other than the benefits flowing from the Act of 1894, none of the four respondent tribes has received any compensation for the loss of its lands. Until the present jurisdictional act of 1935, these tribes, lacking consent of the United States to be sued, were forbidden access to the courts. They alone of the tribes with whom Dart and Palmer negotiated some twenty-odd treaties between 1850 and 1855 have yet to receive recognition for the loss of lands held by original Indian title. Until now this Court has had no opportunity or occasion to pass upon the precise issue presented here. In only one Act prior to 1935 has Congress authorized judicial determination of the right to recover for a taking of nothing more than original Indian title; and no case under that Act, passed in 1929, reached this Court. In 1930 Congress again authorized adjudication of Indian claims arising out of original Indian title, but expressly directed an award of damages if a taking of lands held by immemorial possession were shown. This Act thus eliminated any judicial determination of a right to recover, once original Indian title was established. Prior to 1929, adjudications of Indian claims against the United States were limited to issues arising out of treaties, statutes, or other events and transactions carefully designated by Congress. This Court has always strictly construed such jurisdictional acts and has not offered judicial opinion on the justness of the handling of Indian lands, except in so far as Congress in specific language has permitted its justiciable recognition. The language of the 1935 Act is specific, and its consequences are clear. By this Act Congress neither admitted nor denied liability. The Act removes the impediments of sovereign immunity and lapse of time and provides for judicial determination of the designated claims. No new right or cause of action is created. A merely moral claim is not made a legal one. The cases are to be heard on their merits and decided according to legal principles pertinent to the issues which might be presented under the Act. Accordingly the 1935 statute permits judicial determination of the legal and equitable claims growing out of original Indian title. That which was within the power of Congress to withhold from judicial scrutiny has now been submitted to the courts. If, as has many times been said, the manner of extinguishing Indian title is usually a political question and presents a non-justiciable issue, Congress has expressly and effectively directed otherwise by seeking in the 1935 Act judicial disposition of claims arising from original Indian title. “By consenting to be sued, and submitting the decision to judicial action, they have considered it as a purely judicial question, which we are now bound to decide, as between man and man . . United States v. Arredondo, 6 Pet. 691, 711 (1832). It has long been held that by virtue of discovery the title to lands occupied by Indian tribes vested in the sovereign. This title was deemed subject to a right of occupancy in favor of Indian tribes, because of their original and previous possession. It is with the content of this right of occupancy, this original Indian title, that we are concerned here. As against any but the sovereign, original Indian title was accorded the protection of complete ownership; but it was vulnerable to affirmative action by the sovereign, which possessed exclusive power to extinguish the right of occupancy at will. Termination of the right by sovereign action was complete and left the land free and clear of Indian claims. Third parties could not question the justness or fairness of the methods used to extinguish the right of occupancy. Nor could the Indians themselves prevent a taking of tribal lands or forestall a termination of their title. However, it is now for the first time asked whether the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title. We cannot but affirm the decision of the Court of Claims. Admitting the undoubted power of Congress to extinguish original Indian title compels no conclusion that compensation need not be paid. In speaking of the original claims of the Indians to their lands, Marshall had this to say: “It is difficult to comprehend the proposition . . . that the discovery . . . should give the discoverer rights in the country discovered, which annulled the pre-existing right of its ancient possessors. ... It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. . . . The king purchased their lands, . . . but never coerced a surrender of them.” Worcester v. Georgia, 6 Pet. 515, 543, 544, 547 (1832). In our opinion, taking original Indian title without compensation and without consent does not satisfy the “high standards for fair dealing” required of the United States in controlling Indian affairs. United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 356 (1941). The Indians have more than a merely moral claim for compensation. A contrary decision would ignore the plain import of traditional methods of extinguishing original Indian title. The early acquisition of Indian lands, in the main, progressed by a process of negotiation and treaty. The first treaties reveal the striking deference paid to Indian claims, as the analysis in Worcester v. Georgia, supra, clearly details. It was usual policy not to coerce the surrender of lands without consent and without compensation. The great drive to open Western lands in the 19th Century, however productive of sharp dealing, did not wholly subvert the settled practice of negotiated extinguishment of original Indian title. In 1896, this Court noted that, “. . . nearly every tribe and band of Indians within the territorial limits of the United States was under some treaty relations with the government.” Marks v. United States, 161 U. S. 297, 302 (1896). Something more than sovereign grace prompted the obvious regard given to original Indian title. Long before the end of the treaty system of Indian government and the advent of legislative control in 1871, Congress had evinced its own attitude toward Indian relations. The Ordinance of 1787 declared, “the utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent ...” 1 Stat. 50, 52. When in 1848 the territorial government of Oregon was created, § 14 of that Act secured to the inhabitants of the new territory all the rights and privileges guaranteed by the Ordinance of 1787. Nor did congressional regard for Indian lands change in 1871. In providing for the settlement of Dakota Territory, Congress in 1872 directed the extinguishment of the interests of Indians in certain lands and the determination of what “compensation ought, in justice and equity, to be made to said bands ... for the extinguishment of whatever title they may have to said lands.” 17 Stat. 281; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 59 (1886). The latest indicia of congressional regard for Indian claims is the Indian Claims Commission Act, 60 Stat. 1049, 1050, § 2 (5), in which not only are claims similar to those of the case at bar to be heard, but “claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity” may be submitted to the Commission with right of judicial review. Congressional and executive action consistent with the prevailing idea of non-coercive, compensated extinguishment of Indian title is clear in the facts of the present case. The Act of 1848 declared a policy of extinguishing Indian claims in Oregon only by treaty. The statute of 1850 put in motion the treaty-making machinery. Respondent tribes were among those with whom treaties were negotiated. In many cases, expected ratification did not follow. In the case of respondent tribes alone have no steps been taken to make amends for the taking of Indian lands pending treaty ratification. To determine now that compensation must be paid is only a fair result. Petitioner would admit liability only if, in addition to clear proof of original Indian title, some act of official “recognition” were shown. Original Indian title would not attain the status of a compensable interest until some definite act of sovereign acknowledgment followed. Apparently petitioner has seized upon language of the Court of Claims in Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934), and from it has fashioned a full-blown concept of “recognized Indian title.” The jurisdictional act in that case authorized suits on “all claims of whatsoever nature, both legal and equitable.” Claims based solely on original Indian title were held to be outside the limits of the act; and unless a treaty or act of Congress recognizing the Indians’ title by right of occupancy were shown, recovery could not be had. A more specific jurisdictional act was deemed necessary to authorize a suit based upon original Indian title alone. Petitioner reads into the Duwamish case far too much. When the first jurisdictional act specifically allowing suit on original Indian title in language identical with that of the 1935 Act later came before the Court of Claims in Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 (1938), the court clearly recognized the specific directives of the act and denied recovery solely because original Indian title had not been proved. “Recognition” appeared to count only as a possible method of proving Indian title itself, not as a requisite in addition to proof of that title. Furthermore, in the case at bar, the unmistakable language of the Court of Claims stands squarely against the significance petitioner would attach to the Duwamish decision: “The Duwamish case did not hold or intend to hold that an Indian tribe could not recover compensation on the basis of original Indian use and occupancy title as for a taking if the jurisdictional act authorized the bringing of a suit and rendition of judgment for compensation on the basis of such original title.” Alcea Band of Tillamooks v. United States, 103 Ct. Cl. 494, 556, 59 F. Supp. 934 (1945). Authority for petitioner’s position is not found in Shoshone Indians v. United States, 324 U. S. 335 (1945). The jurisdictional act there limited suits to those claims “arising under or growing out of the treaty of July 2, 1863 . . .” Suits based upon original Indian title were not authorized, but we thought a claim would properly arise under the treaty if it were based upon a taking of land which the treaty had in any way “recognized” or acknowledged as belonging to the Indians. The Court thrice noted that claims based upon original Indian title were not involved, and made no attempt to settle controversies brought under other jurisdictional acts authorizing the litigation of claims arising from the taking of original Indian title. Nor do other cases in this Court lend substance to the dichotomy of “recognized” and “unrecognized” Indian title which petitioner urges. Many cases recite the paramount power of Congress to extinguish the Indian right of occupancy by methods the justice of which “is not open to inquiry in the courts.” United States v. Santa Fe Pacific R. Co., supra, at 347. Lacking a jurisdictional act permitting judicial inquiry, such language cannot be questioned where Indians are seeking payment for appropriated lands; but here in the 1935 statute Congress has authorized decision by the courts upon claims arising out of original Indian title. Furthermore, some cases speak of the unlimited power of Congress to deal with those Indian lands which are held by what petitioner would call “recog-nizecT title; yet it cannot be doubted that, given the consent of the United States to be sued, recovery may be had for an involuntary, uncompensated taking of “recognized” title. We think the same rule applicable to a taking of original Indian title. “Whether this tract . . . was properly called a reservation ... or unceded Indian country, ... is a matter of little moment . . . the Indians’ right of occupancy has always been held to be sacred; something not to be taken from him except by his consent, and then upon such consideration as should be agreed upon.” Minnesota v. Hitchcock, 185 U. S. 373, 388-89 (1902). Requiring formal acknowledgment of original Indian title as well as proof of that title would nullify the intended consequences of the 1935 Act. The rigors of “recognition,” according to petitioner’s view, would appear to require in every case some definite act of the United States guaranteeing undisturbed, exclusive and perpetual occupancy, which, for example, a treaty or statute could provide. Yet it was the very absence of such acknowledgment which gave rise to the present statute. Congress was quite familiar with the precision advisable when drafting statutes giving jurisdiction to the Court of Claims in Indian cases. In 1925 an act authorizing the litigation of any and all claims of certain Indian tribes was passed. In June, 1934, that act was held, for lack of specificity, not to extend to claims based on original title. The following year Congress passed the present Act, employing the specific language used once before in the Act of 1929, under which Coos Bay Indian Tribe v. United States, supra, arose. The considered attention given to the many ramifications of Indian affairs in the 1930’s suggests that Congress well realized the import of the words used in the jurisdictional act of 1935, and that Congress did not expect respondent tribes to be turned out of court either because congressional power over Indian title was deemed to have no limits or because there was, as was obvious to all, no formal guarantee of perpetual and exclusive possession prior to the taking of respondents’ lands in 1855. Respondents have satisfactorily proved their claim of original Indian title and an involuntary taking thereof. They are entitled to compensation under the jurisdictional act of 1935. The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute. It does not “enable the United States to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them.” United States v. Creek Nation, 295 U.S. 103, 110 (1935). In view of the grounds upon which decision rests, it is not necessary to consider the alternate holding of the court below relative to the 1848 act affording sufficient “recognition” of respondents’ Indian title. Affirmed. Mr. Justice Jackson took no part in the consideration or decision of this case. 49 Stat. 801. The pertinent section in full provides: “That jurisdiction is hereby conferred on the Court of Claims with the right of appeal to the Supreme Court of the United States by either party, as in other cases, to hear, examine, adjudicate, and render final judgment . . . (b) any and all legal and equitable claims arising under or growing out of the original Indian title, claim, or rights in, to, or upon the whole or any part of the lands and their appurtenances occupied by the Indian tribes and bands described in the unratified treaties published in Senate Executive Document Numbered 25, Fifty-third Congress, first session (pp. 8 to 15), at and long prior to the dates thereof, except the Coos Bay, Lower Umpqua, and Siuslaw Tribes, it being the intention of this Act to include all the Indian tribes or bands and their descendants, with the exceptions named, residing in the then Territory of Oregon west of the Cascade Range at and long prior to the dates of the said unratified treaties, some of whom, in 1855, or later, were removed by the military authorities of the United States to the Coast Range, the Grande Ronde, and the Siletz Reservations in said Territory.” The remaining seven plaintiff tribes failed to state a cause of action under the jurisdictional act and the rules of the Court of Claims. “Original Indian title” is used to designate the Indian right of occupancy based upon aboriginal possession. 9 Stat. 323. The Act created a territorial government and declared: “That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed . . .” 9 Stat. 323. 9 Stat. 437. 28 Stat. 286,323. 28 Stat. 286, 323. In 1851 Dart and Palmer negotiated treaties with nineteen tribes other than respondents. None of these treaties was ratified; but twelve of the nineteen tribes were included in further treaties made in 1853, 1854, and 1855, and Congress in 1897 and 1912 provided for paying the remaining seven tribes for their lands taken under the unratified treaties. 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307. Coos Bay Indian Tribe v. United States, 87 Ct. Cl. 143 (1938), discussed infra p. 50, arose under the 1929 Act. 46 Stat. 531, amending 44 Stat. 1263. Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347 (1933) was litigated under this jurisdictional act. United States v. Mille Lac Chippewas, 229 U. S. 498, 500 (1913); The Sac and Fox Indians, 220 U. S. 481, 489 (1911). United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 347 (1941), and cases note 27 infra. Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823). United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941). Beecher v. Wetherby, 95 U. S. 517 (1877). The “moral” obligation upon Congress, of which the cases speak, refers more to the obligation to open the courts to suit by the Indians. It does not mean that there is no substantive right in the Indians. So in United States v. Blackfeather, 155 U. S. 180, 194 (1894) it was held that, “While there may be a moral obligation on the part of the government to reimburse the money embezzled by the Indian superintendent . . the jurisdictional act in point did not extend to such a claim. Yet, given consent to suit, it would hardly be said that there was no substantive right against the United States for embezzlement of Indian funds. “The practical admission of the European conquerors of this country renders it unnecessary for us to speculate on the extent of that right which they might have asserted from conquest . . . The conquerors have never claimed more than the exclusive right of purchase from the Indians ...” 1 Op. A. G. 465, 466 (1821) (William Wirt). See the analysis in Cohen, Handbook of Federal Indian Law (1945) 51-66. 16 Stat. 544. 9 Stat. 323, 329, § 14. 43 Stat. 886. Duwamish Indians v. United States, 79 Ct. Cl. 530, 600 (1934). 45 Stat. 1407. Shoshone Indians v. United States, 324 U. S. 335, 337, 339, 354 (1945). The statements in many cases are directed to disputes between third parties, one of whom attempts to raise a defect in the other’s title by tracing it to a government grant out of Indian territory and attacking the power or the method used by the sovereign to convey Indian lands. Beecher v. Wetherby, 95 U. S. 517, 525 (1877); Buttz v. Northern Pacific Railroad, 119 U. S. 55, 66 (1886); Martin v. Waddell, 16 Pet. 367, 409 (1842); Clark v. Smith, 13 Pet. 195, 201 (1839). And in other cases, the issue was not the right of Indian tribes to be compensated for an extinguishment of original Indian title by the United States. Shoshone Indians v. United States, 324 U. S. 335 (1945); United States v. Santa Fe Pacific R. Co., 314 U. S. 339 (1941); Conley v. Ballinger, 216 U. S. 84 (1910); Lone Wolf v. Hitchcock, 187 U. S. 553 (1903); Cherokee Nation v. Hitchcock, 187 U. S. 294 (1902). Lone Wolf v. Hitchcock, 187 U. S. 553, 566 (1903); Beecher v. Wetherby, 95 U. S. 517, 525 (1877). The Lone Wolf case was properly assessed in Shoshone Tribe v. United States, 299 U. S. 476, 497 (1937): “Power to control and manage the property and affairs of Indians in good faith for their betterment and welfare may be exerted in many ways and at times even in derogation of the provisions of a treaty.” See also Oklahoma v. Texas, 258 U. S. 574, 592 (1922). In Barker v. Harvey, 181 .U. S. 481 (1901), the Indian claims were deemed extinguished by non-presentment to the land commission, and this was true even if the claims had been “recognized” by the Mexican government priol- to the cession of lands to the United States. United States v. Klamath Indians, 304 U. S. 119 (1938); Chippewa Indians v. United States, 301 U. S. 358 (1937); Shoshone Tribe v. United States, 299 U. S. 476 (1937); United States v. Creek Nation, 295 U.S. 103 (1935). Other cases also draw no distinction between original Indian title and “recognized” Indian title. “The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government. When Indian reservations were created, either by treaty or executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.” Spalding v. Chandler, 160 U. S. 394, 403 (1896). Of similar tenor is Conley v. Ballinger, 216 U. S. 84, 90-91 (1910). The older cases explaining and giving substance to the Indian right of occupancy contain no suggestion that only “recognized” Indian title was being considered. Indeed, the inference is quite otherwise. Mitchel v. United States, 9 Pet. 711,746 (1835); Worcester v. Georgia, 6 Pet. 515, 543-48 (1832); Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823). Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934). 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307. “The decade from 1930 to 1939 is as notable in the history of Indian legislation as that of the 1830’s or the 1880's.” Cohen, Handbook of Federal Indian Law (1945) 83. Stephens v. Cherokee Nation, 174 U. S. 445, 478 (1899). 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_opinstat
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. McGILVRAY v. POWELL 700 NORTH, Inc. No. 10202. United States Court of Appeals Seventh Circuit. Jan. 17, 1951. L. H. Vogel, George C. Bunge, Chicago, 111., Michael J. Thuma, Chicago, 111., for appellant. David A. Watts, Thomas R. McMillen, Chicago, 111., Bell, Boyd, Marshall & Lloyd, Chicago, 111., of counsel, for appellee. Before MAJOR, Chief Judge, and KER-NER and LINDLEY, Circuit Judges. LINDLEY, Circuit Judge. Defendant appeals from a judgment for plaintiff in her action for damages for personal injuries sustained when a plate glass window was blown out of defendant’s store front, striking and injuring her as it fell. Plaintiff’s husband joined in the action, seeking recovery for loss of his wife’s services. The jury returned two verdicts, one finding defendant not guilty as to the husband’s suit, the other finding defendant guilty as to plaintiff’s claim and assessing her damages at $20,000. The trial court having denied its alternative motion for judgment notwithstanding the verdict or a new trial and having entered judgment, defendant perfected this appeal. Defendant, conceding that the verdict has ample support in the evidence, seeks reversal because, as it says, (1) the verdict for plaintiff is inconsistent with the verdict against her husband and must, therefore, be set aside, and (2) the trial court erroneously instructed the jury as to assessment of damages and improperly admitted incompetent evidence. Plaintiff, on the other hand, denies that any substantial inconsistency exists between the two verdicts or that such inconsistency, if any exists, warrants reversal of the judgment. Plaintiff further contends that the instructions and the rulings on evidence were proper in all respects. We think there is no legal inconsistency in the two verdicts. A married woman’s right of action for damages because of her personal injuries and that of her husband to recover for loss of services ■are not by any means the same at law; rather they are separate and independent causes of action, each embracing factors absent from the other. A verdict and judgment as to one is not res judicata as to the other. Lansburgh & Bro. v. Clark, 75 U.S.App.D.C. 339, 127 F.2d 331. However, defendant zealously insists that, inasmuch as the same evidence was offered in support of each plaintiff’s claim, inconsistency results. Consequently, we feel constrained to consider the legal situation, assuming that in fact inconsistency exists. Defendant has cited three Illinois cases, — and it is, of course, Illinois law with which this court is primarily concerned in disposing of this appeal — , in support of its contention that the asserted inconsistency makes it necessary that the verdict for plaintiff be set aside and new trial ordered. The first, Kelly v. Powers, 303 Ill.App. 198, 25 N.E.2d 125, involved a suit by a 12-year-old 'boy and his father against a 13-year-old lad and his father for injuries and medical expenses occasioned when the minor plaintiff was thrown-from the running .board of a car driven by the minor defendant. The jury returned four verdicts, two finding the minor defendant not guilty as to either of plaintiffs, a third finding the father of the minor defendant not guilty as to the minor plaintiff, and the fourth finding the father of the minor defendant guilty as to the father of the minor plaintiff. The Appellate Court,, treating the case as one involving the application of the doctrine of respondeat superior, held that the verdict against the father of the minor defendant was inconsistent with the verdicts finding the minor defendant not guilty of negligence and should, therefore, be set aside. That the decision-in that case is not controlling in a case such as this, in which the doctrine of respondeat superior is in no way involved, is clear from the statement in Welter v. Bowman Dairy Co., 318 Ill.App. 305, 362, 47 N.E.2d 739, 763, that the decision in Kelly v. Powers was “not applicable to the facts” of that case, which, much more nearly like the one at bar, was an, action brought by a father and his infant daughter for injuries to the daughter caused by impurities in defendant’s milk, in which the jury had rendered a verdict in favor of the daughter but against the father who had incurred medical expenses in her behalf. Observing that “this verdict is inconsistent and indicates confused thinking on the part of the jury, or a disregard of the evidence”, the court, though it reversed on other grounds, continued: “If otherwise free from error, we would not reverse because of this inconsistency.” Nor is there anything in Rogina v. Midwest Flying Service, 325 Ill.App. 588, 60 N.E.2d 633, in which the jury returned verdicts finding the employee not guilty of negligence but finding his employer liable, and the court, following the rule of respondeat superior, reversed the judgment entered on the verdict against the employer, or in Young v. Illinois Central Railroad Co., 319 Ill.App. 311, 49 N.E.2d 268, in which it was held that, in the event of an inconsistency between a special and a general verdict, the special verdict is controlling, to indicate that the alleged inconsistency between the verdicts returned by the jury in the case at bar is such that the verdict for the plaintiff cannot be allowed to stand. The defendant has cited a number of New York and New Jersey cases which suggest that inconsistency of verdicts is always fatally defective. See, e. g., Reilly v. Shapmar Realty Corp., 267 App.Div. 198, 45 N.Y.S.2d 356, 358; Lanning et ux. v. Trenton & Mercer County Traction Corp., 130 A. 444, 3 N.J.Misc. 1006. However, in the instant case, we are concerned not with the law of New York or New Jersey but with that of Illinois, and, as has been shown, not only does it appear that none of the Illinois cases relied on by defendants follows the rule which prevails in those states, but at least one Illinois Appellate Court, in a case almost identical, on the facts, with the case at bar, has clearly -indicated that it would not adhere to that rule. Welter v. Bowman Dairy Company, 318 Ill.App. 305, 363, 47 N.E.2d 739. Moreover, sounder in reasoning, it seems to us, than the New York and New Jersey cases is the decision of the Court of Appeals for the District of Columbia in Lansburgh & Bro., Inc., v. Clark, 75 U.S.App.D.C. 339, 127 F.2d 331. That case, like this, involved a personal injury action brought by the wife, in which her husband had joined seeking damages for expenses incurred and loss of services. There, however, the jury found for the husband but against the wife, and it was from the judgment entered on the verdict for the husband that defendant’s appeal was taken. The court, pointing out that a wife’s right to recover damages for injuries inflicted on her person and her husband’s right to- recover for loss of her services are separate and independent actions at law with respect to which the doctrine of res judicata is -inapplicable, held that the permissive joinder provisions of Rule 20 of the Federal Rules of Civil Procedure, 28 U.S.C.A., had no- effect on the substantive rights of the parties and, thus, that the judgment against the wife on her claim fo-r damages for personal -injuries did not preclude the rendition, in the same action, of a judgment for her husband for loss of services and medical expenses. Disposing of the argument that the alleged inconsistency made a new trial necessary, the court continued, 75 U.S.App.D.C. 339, 127 F.2d at page 333: “If in this case the lower court had, either on its own motion or the motion of counsel, awarded a new trial on all the issues as to both plaintiffs, we should have considered such action a reasonable exercise of discretion. But here the motion was made only in the husband’s case. In the circumstances, we cannot tell which verdict is wrong, and to require a new trial in the husband’s case without doing so in the wife’s case would be to assume that the verdict against the wife reflected correctly the greater weight of the evidence. There is nothing in the record to justify this. Consequently the case comes to us with the situation precisely the same as in those cases in which the wife first sues and fails and the husband thereafter sues and succeeds. In that case we would not, as we have shown, be justified in saying that the husband’s recovery should be held for naught.” In this case, as m the Lansburgh case, only one of the judgments entered on the verdicts returned by the jury is before this court on appeal, and what was said there with respect to the dilemma with which an appellate court is confronted when only one of two allegedly inconsistent verdicts is made the subject of an appeal applies with equal force to the instant case. For this reason, and also because it does not appear to be the law of Illinois that the wife’s right to recover damages for personal injuries is in any way dependent upon the husband’s recovery of damages for loss of services, whether the actions be prosecuted jointly or independently of one another, defendant’s argument that the asserted inconsistency between the verdicts arrived at by the jury in the trial court requires reversal of the judgment for plaintiff must be rejected. The defendant’s second contention is that the trial court improperly instructed the jury with respect to determination of plaintiff’s damages and, further, that it admitted incompetent evidence upon that issue. The instruction to which defendant objects informed the jury that: “In determining compensation which you may award to the plaintiff Nellie McGilvray for inability to perform her usual occupations, if from the evidence you find she is unable to perform her usual occupations, you may take -into consideration the fair, usual and customary wages or salary, if any, paid for work similar to that performed 'by her at Chippewa Falls, Wisconsin.” The evidence said to have been improperly admitted consisted of testimony by plaintiff’s husband and by the owner of a competing hardware store relative to the value of the services which plaintiff had customarily performed in her husband’s store prior to her injury, and testimony that plaintiff’s son, who returned to Chippewa Falls subsequent to plaintiff’s injury and became associated with his father in operation of the store, received, under a profit-sharing arrangement, the sum of $5400 in 1947 and a like sum in 1948. Defendant’s objections to the court’s instructions and rulings on evidence are based on its contention that plaintiff was not entitled to recover anything for loss of earnings or for the value of her services in her husband’s business. Remembering, however, that the husband’s claim for loss of plaintiff’s services was also before the jury, it seems obvious that the testimony relating to the value of those services was quite properly admitted in evidence. Moreover, defendant’s contention that the quoted instruction led the jury to believe that plaintiff was entitled to a recovery for loss of earnings based on the value of the services performed by her for her husband in his hardware store, we think, is founded on a misconception of the dear meaning of that part of the instruction which informed the jury that, in assessing damages, it might compensate plaintiff for her “inability to perform her usual occupations, if from the evidence you find she is unable to perform her usual occupations * * The purport of this instruction, couched, as it was, in the present tense, was not that plaintiff was entitled to recover for loss of past wages, but that she had a right to recover damages for the loss of her capacity to earn wages in the future, a right clearly hers under the law of Illinois. Illustrative of the attitude of the Illinois courts is the decision in Chicago & Milwaukee Electric Ry. Co. v. Krempel, 103 Ill.App. 1, in which the court, reviewing an instruction which “authorized the jury to consider what effect such injuries might have upon appellee in the future in respect to ability to perform ordinary labor,” observed: “Appellant claims that the services of the wife belong to the husband; that, therefore, in a suit by the wife no recovery can be had for damages growing out of the inability to perform ordinary work. In West Chicago Street Ry. Co. v. Carr, 170 Ill. 478, 48 N.E. 992, an instruction was sustained, while not altogether approved by the court, which authorized a jury to award a married woman damages for loss of time. If such an instruction could be sustained, there is more reason why the one under consideration here should be approved. This allows the jury to take into consideration the effect of the injuries upon the ability of appellee to perform ordinary labor in the future. The loss of her ability to‘ so work is a personal injury to her which may affect her in many ways peculiar to herself. We can not assume that if not injured she might not hereafter find it necessary, for support of herself, or other reasons, to perform work other than ordinary household work. We think the instruction was properly given.” Construing the first portion of the instruction as we think it should be construed, i. e., as indicating that plaintiff was entitled to recover damages for the loss of her capacity to labor in the future, it becomes obvious that the remainder of the instruction reading: “you may take into consideration the fair, usual and customary wages or salary, if any, paid for work similar to that performed by her at Chippewa Falls, Wisconsin”, is also a correct statement of the law, for, in determining the amount of the damages to which she was entitled by reason of the loss of her capacity to labor, evidence as to her special skills, if any, and as to the usual and customary wages paid for work of the type she was qualified to perform prior to her injury was certainly relevant. Nor does the fact that plaintiff had, prior to her injury, worked only in her husband’s hardware store render such evidence inadmissible, for it could not properly have been assumed that plaintiff might never thereafter find it necessary to' support herself or to work for someone other than her husband. Chicago & Milwaukee Electric Ry. Co. v. Krempel, 103 Ill.App. 1, 3. We think it clear that the evidence as to the value of the services performed by plaintiff was properly admitted and that the jury was correctly instructed as to the purpose for which it might foe considered. The judgment is affirmed. . With respect to the contention that the testimony relative to the $5400 received by the son in 1947 and 1648 was incompetent and prejudicial, it need only be observed that the court ordered this testimony stricken and, in the course of its instructions, cautioned the jury to disregard anything stricken. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_constit
B
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Carlos COLON, Plaintiff-Appellee, Cross-Appellant, v. Lieutenant Bruce SCHNEIDER, Defendant-Appellant, Cross-Appellee. Nos. 89-1768, 89-1847, 89-1979 and 89-2148. United States Court of Appeals, Seventh Circuit. Argued Jan. 12, 1990. Decided April 12, 1990. As Amended April 13, 1990. David Harth, Julie Genovese, Foley & Lardner, Madison, Wis., for Carlos Colon. Donald J. Hanaway, Atty. Gen., David T. Flanagan, Asst. Atty. Gen., Office of the Atty. Gen., Wisconsin Dept, of Justice, Madison, Wis., for Bruce Schneider, Timothy Douma, Sergeant Kannenburg. Before COFFEY, EASTERBROOK and MANION, Circuit Judges. COFFEY, Circuit Judge. Plaintiff Carlos Colon, an inmate at the Columbia Correctional Institution (“CCI”) in Portage, Wisconsin, brought this action pursuant to 42 U.S.C. § 1983, alleging that the defendant, Lieutenant Bruce Schneider, a corrections official at CCI, violated his rights under the due process clause of the fourteenth amendment of the United States Constitution when Schneider used Chemical Mace to compel him to submit to a strip search during the course of Colon’s transfer from one area of the CCI to another. The jury found that Lieutenant Schneider had violated the provisions of the Wisconsin Administrative Code governing the use of mace and, in doing so, violated Colon’s due process rights. The jury awarded Colon $250 in punitive damages but denied him an award of compensatory damages. The district court vacated the punitive damages award and, in its place, issued an injunction prohibiting Lieutenant Schneider from using mace solely to compel strip searches incident to the transfer of CCI inmates within the institution. On appeal, Lieutenant Schneider challenges the jury’s finding that he violated Colon’s federal due process rights, as well as the district court’s injunction. In a cross-appeal, Colon argues that he is entitled to one dollar in compensatory damages and that the district court erred in vacating the jury’s award of punitive damages. We reverse the judgment against Lieutenant Schneider and vacate the injunction barring the use of mace to compel strip searches. Thus, we have no occasion to reach Colon’s cross-appeal as he is no longer a prevailing party and, therefore, is not entitled to damages. I. The events serving as the basis for Colon’s civil rights action occurred on May 19, 1988. At approximately 2:35 p.m., Colon informed Sergeant Timothy Douma that he was feeling ill. Sergeant Douma instructed Colon to complete a written illness report. After Colon complied with the directive, Douma contacted a nurse and requested that she see Colon promptly. Colon became angry when the nurse failed to report as soon as he anticipated and proceeded to activate the building fire alarm by throwing water into the air vent in his cell. Colon repeatedly activated the alarm system during the course of the next hour, despite Douma’s attempts to persuade him to desist. At 3:45 p.m., Sergeant Douma summoned Lieutenant Schneider who, after reviewing Colon’s “face card” detailing Colon’s battery conviction and poor disciplinary record at CCI, decided to transfer Colon from program status to control status within the segregation unit of the prison. Control status segregation, one of several categorizations of inmates at CCI, is for prisoners who engage in disruptive and/or destructive conduct. A prisoner in control status segregation is subject to closer and more frequent observation by prison officials and permitted only very limited access to personal property. Placing inmates in control status involves moving them from their cell to an observation cell. In moving an inmate to an observation cell, the normal practice at CCI is to handcuff the inmate and escort him to a designated cell, where a strip search for contraband and weapons is conducted. After the strip search, the inmate is again handcuffed and placed in the observation cell. After learning that he was to be placed in control status, Colon became angry and proceeded to smear grease on his cell window, in order that it would be more difficult for the prison officials to see inside before entering, and also applied grease to his body in order to prevent the officials entering his cell from holding and restraining him, if necessary. Lieutenant Schneider, Sergeant Douma and Sergeant Edward Kannenberg attempted unsuccessfully to persuade Colon to place his hands through the cell door in order that they might apply the handcuffs. Even after Lieutenant Schneider ordered four officers to put on protective emergency response unit clothing in preparation for a physical confrontation, Colon refused to be cuffed. Only after Lieutenant Schneider threatened him with mace did Colon allow the officers to apply the cuffs. Thereafter, Sergeants Douma and Kannenberg escorted him to the strip cell where Colon resisted their efforts to remove the handcuffs and place him in the cell. Once in the strip cell, Colon was ordered to remove his clothing for the search. Colon refused to comply and, according to Lieutenant Schneider, stated: “Come in and do it. I dare you to. I’ll kick your butt.” After Colon persisted in his refusal to remove his clothing, Lieutenant Schneider warned him that a chemical agent would be used if he again refused to comply with the strip search order. Colon refused once more, and Lieutenant Schneider sprayed him with mace twice, after which Colon removed his clothing and submitted to the strip search. Thereafter, Colon was placed in the observation cell. Approximately one month later, on June 16, 1988, Colon filed a pro se civil rights complaint in the district court pursuant to 42 U.S.C. § 1983 and submitted a petition to proceed in forma pauperis. After the court granted his petition, Colon filed a motion for appointment of counsel, which was granted on September 12, 1988. On January 3, 1989, Colon’s attorney filed an amended complaint, alleging that Wisconsin Administrative Code § HSS 306.08, the regulation governing the use of mace, creates a protectable liberty interest under the fourteenth amendment and that Lieutenant Schneider “intentionally violated this liberty interest in the following respects:... us[ing] chemical agents against the plaintiff for refusing to obey an order to strip in violation of the state regulations [and] us[ing] chemical agents against plaintiff in response to alleged verbal threats in violation of the state regulations.” On January 23, 1989, a one-day jury trial took place. The plaintiffs primary theory was that he was maced for refusing to obey Schneider’s order to strip and that the Wis.Admin.Code § HSS 306.08(5)(b) prohibits the use of mace for refusal to obey an order except in an emergency. Lieutenant Schneider admitted that Colon’s refusal to submit to a strip search was not an emergency situation but argued that the use of mace was permitted under section HSS 306.08(4), which provides: “(4) Non-Emergency Situations, (a) To deal with situations other than those described in sub. (3),[] chemical agents may only be used where s. HSS 306.-06(3)[] permits the use of force and the inmate physically threatens to use immediate physical force, which may involve the threat to use a weapon, against a staff member. An inmate’s verbal threats do not justify using chemical agents. (b) In order to ensure that chemical agents are used only as a last resort in these situations, the staff member shall take the following steps, if feasible, before actually employing a chemical agent: 1. Communicate with the inmate; 2. Ask one or more other available people to communicate with the inmate, such as another security officer, a social worker, a crisis intervention worker, a member of the clergy, or a psychologist or psychiatrist; 3. Wait for a reasonable period of time, unless waiting would likely result in an immediate risk of harm to the inmate or to another person; 4. Make a show of force to the inmate; 5. Use physical power and strength; and 6. Use any other reasonable means short of applying a chemical agent to enforce an order. (c) When s. HSS 306.06(3) permits the use of force and a staff member knows of an inmate’s history of violent behavior in similar situations and reasonably be-Heves that the inmate will become violent in this situation, a chemical agent may be used after the procedures in par. (b) 1 to 4 have been followed but before the inmate physically threatens to use actual physical force.” Lieutenant Schneider presented evidence that section HSS 306.06(3)(f) allows the use of force “[t]o change the location of an inmate” and that CCI policy requires inmates to submit to strip searches when so ordered before being moved to a different area of the segregation unit. Schneider’s theory was that Colon’s refusal to strip prevented him from effectuating Colon’s transfer to control status segregation and that in light of Colon’s history of violent behavior and his resistance against the prison guards during the course of the instant transfer, his use of mace was permissible under section HSS 306.08(4)(c). In rebuttal, Colon’s counsel presented evidence, over the objection of the defendant, that CCI’s policy of strip searching inmates whenever they are transferred within the institution is violative of the regulations governing strip searches and, thus, the defendant’s reliance on section 306.08(4) to justify Schneider’s use of mace was misplaced. At the close of the evidence, defense counsel moved for directed verdict, arguing that Lieutenant Schneider was entitled to qualified immunity and that the plaintiff had failed to establish a constitutionally protected liberty interest based on the Wisconsin Administrative Code regulations. The district court denied the motion, finding that under the Wisconsin regulations, Colon had a protectable liberty interest in not being maced and that the defense of qualified immunity was not available to Schneider. After closing arguments, the court instructed the jury as follows: “To prevail on his 14th Amendment due process claim against Defendant Bruce Schneider, Plaintiff must prove the following by a preponderance of the evidence: (1) Defendant Schneider maced him on May 19, 1988; and (2) Defendant Schneider did not follow the State regulations governing the use of Mace.” After deliberating less than three hours, the jury returned a verdict finding that Lieutenant Schneider had violated Colon’s fourteenth amendment rights by macing him on May 19, 1988. The jury also found that Colon was entitled to no compensatory damages but rather was entitled to $250 in punitive damages. The following day, January 24, 1989, the district court entered judgment for Colon in the amount of $250 plus costs and attorneys’ fees. On February 2,1989, Lieutenant Schneider moved the court for judgment notwithstanding the verdict, arguing, inter alia, that Colon’s constitutional rights had not been violated and that the jury’s award of punitive damages was not supported by the evidence presented. The court rejected Schneider’s claim that he did not violate Colon’s constitutional rights, finding that the Wisconsin regulations governing the use of mace created a liberty interest pro-tectable under the fourteenth amendment and that Wis.Admin.Code § HSS 306.08(4) “lists procedures to be followed before mace is used in a non-emergency situation.... These procedures are sufficient due process protections.... ” Mem. Op. at 5. The court went on to state that the “defendant violated the [Wisconsin Administrative Code] regulations depriving plaintiff of a protected liberty interest without any due process protections. Such a deprivation is a violation of plaintiff’s fourteenth amendment procedural due process rights_” Id. at 6. However, the district court vacated the jury’s award of punitive damages, finding that Schneider’s actions, although unconstitutional, were in accordance with the practice to mace inmates at CCI who refused to be strip searched when ordered during the course of transferring them to another area of confinement within the prison facility and, thus, did not constitute the type of malicious or wanton behavior which justifies an award of punitive damages. Id. at 9-10. Rather than approving the award, the court issued an injunction ordering “that defendant Schneider not follow the CCI practice that violates state regulations §§ HSS 306.-08(4) and (5), which creates [sic] a protected liberty interest. Specifically, defendant shall not follow the CCI practice to mace all inmates for the sole reason that they refuse to be strip searched when their locations are changed.” Id. at 10. On March 23, 1989, the court issued an amended judgment reflecting the vacation of the punitive damages award and the issuance of the injunction. On appeal, Schneider advances a number of arguments in support of reversing the judgment against him as well as the injunction against the use of mace in the circumstances referred to above. However, we need not consider all of these arguments because our review of the record, as well as the applicable case law and regulations, convinces us that the evidence presented at trial does not support the jury’s determination that Colon’s due process rights were violated. In addition, we are of the opinion that the district court was without jurisdiction to issue the injunction in this factual situation barring Schneider from using mace to compel strip searches when an inmate is moved from one area within the CCI facility to another. II. In his complaint, Colon alleges that Lieutenant Schneider violated his fourteenth amendment due process rights by macing him on May 19, 1988, thus entitling him to recover damages under 42 U.S.C. § 1983. However, the due process clause of the fourteenth amendment is the source of three separate constitutional protections that may serve as the basis of a section 1983 claim against a state and its agents and employees: “First, the Clause incorporates many of the specific protections defined in the Bill of Rights. A plaintiff may bring suit under § 1983 for state officials’ violation of his rights to, e.g., freedom of speech or freedom from unreasonable searches and seizures. Second, the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government action ‘regardless of the fairness of the procedures used to implement them.’ Daniels v. Williams, 474 U.S. 327, 331 [106 S.Ct. 662, 665, 88 L.Ed.2d 662] (1986). As to these two types of claims, the constitutional violation actionable under § 1983 is complete when the wrongful action is taken.... The Due Process Clause also encompasses a third type of protection, a guarantee of fair procedure. A § 1983 action may be brought for a violation of procedural due process, but... [i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.... The constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process.” Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (emphasis in original; citations and footnote omitted). Thus, it is necessary that we identify the precise constitutional protection upon which Colon bases his section 1983 claim against Schneider. Colon has consistently maintained in this litigation that he seeks to recover for a violation of the third category of due process protections — namely, his right to procedural due process. The United States Supreme Court has employed a two-step analysis when analyzing claims that a state has violated an individual’s right to procedural due process. The first area of inquiry deals with whether there exists a “life, liberty, or property” interest protectable under the fourteenth amendment with which the state has interfered. If the court determines that the state has deprived an individual of a protectable interest, we move to the second step of the inquiry to determine whether the entity responsible for the alleged deprivation instituted constitutionally sufficient procedural protections. Kentucky Department of Corrections v. Thompson, — U.S. -, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). See also Shango v. Jurich, 681 F.2d 1091, 1097-98 (7th Cir.1982). We thus analyze Schneider’s contention that the evidence presented at trial failed to establish that he violated Colon’s fourteenth amendment right to procedural due process within the mandated two-step test. A. Our initial inquiry is whether the district court properly determined that Colon has a protectable liberty interest in not being maced. The due process clause of the fourteenth amendment clearly protects against arbitrary governmental deprivations of “life, liberty, or property.” However, the types of liberty interests cognizable under the due process clause are not without limitation. In order to demonstrate a protectable liberty interest, an individual must establish that he has “a legitimate claim of entitlement to it.” Kentucky Department of Corrections, 109 S.Ct. at 1908. The Supreme Court, when dealing with liberty interests protectable under the United States Constitution, has stated that they “may arise from two sources — the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983). In the present case, we are concerned only with whether the regulations governing the use of mace in the Wisconsin Administrative Code create a liberty interest in not being maced, as the district court found. Mem. Op. at 3-4. In order for state regulations to create a constitutionally protected liberty interest, the regulations must employ “language of an unmistakably mandatory character, requiring that certain procedures ‘shall,’ ‘will,’ or ‘must’ be employed... and that [the challenged action] will not occur absent specific substantive predicates — viz. ‘the need for control,’ or ‘the threat of a serious disturbance.’ ” Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871. “In other words, a liberty interest is created only where the state regulation in question contains ‘specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow_’ Kentucky Department of Corrections, 109 S.Ct. at 1910. ‘The test for whether a statutory or regulatory procedure creates a protectable due process interest, then, hinges on the actual language used by the legislature or agency.’ Cain v. Lane, 857 F.2d 1139, 1144 (7th Cir. 1988).” Russ v. Young, 895 F.2d 1149, 1153 (7th Cir.1989). The district court based its conclusion that the Wisconsin regulations governing the use of mace create a protectable liberty interest on the fact that Wis.Admin. Code §§ 306.08(4) and (5) contain certain mandatory language and limit the discretion of prison officials in the use of mace. Admittedly, the regulations considered by the district court do, in fact, contain certain mandatory language and criteria to guide prison officials in their use of mace; however, we have repeatedly rejected the notion that any and all state prison rules and regulations containing such language automatically create “legitimate claims of entitlement” triggering the procedural protections of the due process clause. See, e.g., Russ, 895 F.2d at 1154; Miller v. Henman, 804 F.2d 421, 427 (7th Cir.1986), cert. denied, 484 U.S. 844, 108 S.Ct. 136, 98 L.Ed.2d 93 (1987). See also Kentucky Department of Corrections, 109 S.Ct. at 1909 n. 3 (expressly reserving the question). In Miller, we held that a Bureau of Prisons directive charging the prison staff with using professional judgment, albeit within specific guidelines, did not create a protect-able liberty interest because the directive was intended to guide the prison officials rather than the inmates. Our holding in Miller comports with the Supreme Court’s repeated statements that federal courts should be reluctant to restrict unnecessarily (for example, by recognizing federal liberty interests) the judgment of experienced prison administrators, especially those involving internal prison security and discipline, as in this case. “[SJimply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’... The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights.... There must be a ‘mutual accommodation between the institutional needs and objectives and the provisions of the Constitution that are of general application.’ ” Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979). See also Mendoza v. Miller, 779 F.2d 1287, 1292 (7th Cir.1985), cert. denied, 476 U.S. 1142, 106 S.Ct. 2251, 90 L.Ed.2d 697 (1986). In Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807-08, 40 L.Ed.2d 224 (1974), the Court stated: “Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.[] Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.” (Footnote omitted). See also Godinez v. Lane, 733 F.2d 1250, 1260 (7th Cir.1984). In Bell, the Court went on to state: “[T]he problems that arise in the day-today operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore 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.... ‘Such considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.’ ” 441 U.S. at 547-48, 99 S.Ct. at 1878-79 (emphasis added; citations and footnote omitted). Thus, we conclude that the rationale of Miller is controlling here. The guidelines concerning the use of mace in the Wisconsin penal system are directed toward the prison staff, not the inmates. They “are designed to bind the staff of [Wisconsin prisons] to the Attorney General’s will,” and, thus, do not automatically create a legitimate claim of entitlement on behalf of the inmates. See Russ, 895 F.2d at 1154; Miller, 804 F.2d at 427. It bears repeating that “prison administrators must be ‘accorded wide-ranging deference in the... execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ ” Mathews v. Fairman, 779 F.2d 409, 415 (7th Cir.1985) (quoting Bell, 441 U.S. at 547, 99 S.Ct. at 1878) (emphasis added). Moreover, a careful examination of the regulations reveals that what the state is actually regulating here is the use of mace as an alternative to the use of non-deadly physical force, both of which are defined as types of force under the regulations. See Wis.Admin.Code § HSS 306.06(l)(a). It is beyond dispute that the Wisconsin Department of Health and Social Services expects and requires its employees, i.e., the prison staff, to follow the guidelines set forth in the regulations to determine whether mace or physical force is more appropriate in a given situation. However, we refuse to hold that simply because Wisconsin has enacted guidelines prioritizing the type of force to be used in certain circumstances, the state has created a liberty interest, enforceable in a federal cause of action, on behalf of inmates within the Wisconsin prison system. Indeed, it is absurd to suggest that Colon somehow has a liberty interest cognizable under the United States Constitution in what type of non-deadly force prison personnel must use, whether it be physical restraint or the use of mace! To allow Colon’s reading of the Wisconsin regulations would denigrate and handcuff the prison staff’s authority in maintaining internal prison security and controlling inmate conduct by restricting the choices available to prison officials in disciplining prisoners who refuse to obey orders and/or promoting physical confrontations between the prison guards and inmates. Such a result is wholly inconsistent with our prior decisions, as well as controlling Supreme Court precedent. As we stated in Soto v. Dickey, 744 F.2d 1260, 1267 (7th Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1846, 85 L.Ed.2d 144 (1985): “When an order is given to an inmate there are only so many choices available to the correctional officer. If it is an order that requires action by the institution, and the inmate cannot be persuaded to obey the order, some means must be used to compel compliance, such as a chemical agent or physical force. While... it was suggested that rather than seek to enforce orders, it was possible to leave the inmate alone if he chooses not to obey a particular order, and wait him out, experience and common sense establish that a prison cannot be operated in such a way. Discipline in a maximum security correctional institution no doubt is difficult, but it is essential if the prison is to function and provide care, safety and security of the staff and inmates. Services to provide food, clothing, health, medical, cleaning, laundry and all other services would come to end without discipline. Mob rule would take over. There would not, and could not, be any protection for staff or inmates. Orders given must be obeyed. Inmates cannot be permitted to decide which orders they will obey, and when they will obey them. Someone must exercise authority and control. One can quickly reason what would happen in a maximum security prison without proper discipline.” The individuals that must exercise authority and control are, obviously, the prison administrators themselves. And, as the Supreme Court has stated, “a prison’s internal security is peculiarly a matter normally left to the discretion of prison administrators.” Rhodes v. Chapman, 452 U.S. 337, 349 n. 14, 101 S.Ct. 2392, 2400 n. 14, 69 L.Ed.2d 59 (1981) (emphasis added). Although prison officials are not free under any circumstances to use physical force indiscriminately or physical force that is wholly lacking in legitimate penological justification, we must remember that prisons are not country clubs, nor, for that matter, democracies and prison officials’ actions in using chemical agents in a humane manner to control recalcitrant inmates who pose threats to institutional security will rarely be a proper basis for judicial oversight. See Matzker v. Herr, 748 F.2d 1142, 1148 (7th Cir.1984). Indeed, “[cjentral to all other correctional goals is the institutional consideration of internal security within the corrections facilities themselves, and ‘preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of... convicted prisoners_’” Soto, 744 F.2d at 1269 (quoting Bell, 441 U.S. at 546, 99 S.Ct. at 1877); Mendoza, 779 F.2d at 1292. “In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident; instead, they must consider the character of the inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. The judgment of prison officials in this context... turns largely on ‘purely subjective evaluations and on predictions of future behavior,’ Hewitt, 459 U.S. at 474, 103 S.Ct. at 872. Accordingly, we conclude that the district court erred in finding that the regulations governing the use of mace in the Wisconsin Administrative Code create a federally protected liberty interest and hold that Colon’s fourteenth amendment procedural due process claim against Lieutenant Schneider cannot survive scrutiny under the Supreme Court’s two-part test for analyzing such claims. B. Even if we agreed with Colon’s contention that the Wisconsin regulations create a liberty interest in not being maced, which we do not, our holding that Colon cannot prevail on his constitutional claim against Lieutenant Schneider would remain unchanged because Colon has failed to satisfy his burden that he was maced in the absence of constitutionally required procedural safeguards. See Kentucky Department of Corrections, 109 S.Ct. at 1908. This step in the Supreme Court’s two-part test requires an individual claiming a violation of procedural due process to establish “what procedural protections are necessary to ensure that the decision [to deprive the individual of the protected interest] is neither arbitrary nor erroneous,” Washington v. Harper, — U.S. -, 110 S.Ct. 1028, 1040, 108 L.Ed.2d 178 (1990), and that the state procedures accompanying the alleged deprivation failed to comport with this standard. Id. 110 S.Ct. at 1040. The Supreme Court has repeatedly held that due process “is a flexible concept that varies with the particular situation.” Zinermon, 110 S.Ct. at 984; Wolff v. McDonnell, 418 U.S. 539, 560, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). Thus, “[t]he procedural protections required by the Due Process Clause must be determined with reference to the rights and interests at stake in the particular case.” Harper, 110 S.Ct. at 1040-41; Hewitt, 459 U.S. at 472, 103 S.Ct. at 871; Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 2100, 2106, 60 L.Ed.2d 668 (1979); Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). The factors governing this determination are well established: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Our review of the record reveals that Colon failed to present any evidence concerning the process required under the Mathews balancing test to protect his alleged liberty interest in not being maced. Although in his brief Colon advances arguments concerning what process is required under the Mathews balancing test, this court has repeatedly stated that arguments raised for the first time on appeal are waived. See, e.g., Altobello v. Borden Confectionary Products, Inc., 872 F.2d 215, 216 (7th Cir.1989). It is true that Colon presented evidence that Lieutenant Schneider did not follow the procedures for using mace set forth in the Wisconsin regulations, see Wis.Admin.Code § HSS 306.-08(4)(b), and the district court, in its order denying Schneider’s JNOV motion, found that these regulations were “sufficient due process protections.... ” However, it is well settled that “state procedural protections cannot define what process is due. The Fourteenth Amendment’s limitation on state action would be illusory indeed if state practices were synonymous with due process.” Shango, 681 F.2d at 1098. “[T]he task of defining the procedural protections which attach to [a protectable liberty interest] is wholly a matter of federal constitutional law and is accomplished through the balancing analysis of Math-ews_” Id. at 1097-98. See also Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748-49, 75 L.Ed.2d 813 (1983). Thus, from our review of the record, we are of the opinion that the plaintiff presented no relevant evidence upon which the jury could base its conclusion that Schneider had violated Colon’s procedural due process rights in macing him on May 19, 1988. Thus, the district court committed error in denying Schneider’s JNOV motion based on Schneider’s alleged failure to follow the procedures set forth in the Wisconsin Administrative Code. Our conclusion regarding the plaintiff’s failure of proof is indicative of the fundamental flaw in his action against Schneider. Simply stated, the process required under the Constitution has nothing to do with this case. This fact is borne out in the district court’s injunction ordering “Schneider not to follow the CCI practice that violates state regulations §§ HSS 306.08(4) and (5), which creates [sic] a protected liberty interest,” as well as the allegation in the amended complaint that Schneider “intentionally violated [Colon’s] liberty interest [by] us[ing] chemical agents... in violation of the state regulations.” Neither the injunction nor the complaint mentions the procedural protections, if any, that must accompany the use of mace, yet lack of the constitutionally required process is the only basis for federal review in a procedural due process case. See Zinermon, 110 S.Ct. at 983; Daniels v. Williams, 474 U.S. 327, 339, 106 S.Ct. 662, 678, 88 L.Ed.2d 662 (1986) (Stevens, J., concurring) (“In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation of property or liberty without due process of law— without adequate procedures.” (emphasis in original)). It thus becomes clear that the real issue in this case is not whether Colon was maced without due process of law, but whether he was maced in violation of the Wisconsin Administrative Code. Indeed, at trial the focus of plaintiff's counsel's argument was that section HSS 306.08(5)(b) prohibits the use of mace for refusal to obey an order and that section HSS 306.16 does not allow strip searches simply because an inmate’s location is changed. Thus, the plaintiff’s true claim is not that he can be maced once he is afforded some type of notice and some type of hearing, see Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975), but that under the circumstances present in this case, i.e., Colon’s refusal to comply with Schneider’s order to submit to a strip search when being moved from program to control status segregation, he cannot be maced regardless of what process is applied. This is a substantive, not a procedural, claim. However, plaintiff’s counsel has repeatedly maintained that this action is not premised upon a violation of either the eighth amendment’s prohibition against cruel and unusual punishment or the substantive component of the due process clause. This is not surprising given our holding in Soto v. Dickey, supra, 744 F.2d at 1270, that the use of mace is not a per se violation of the eighth amendment, as well as the Supreme Court’s holding in Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), that in the prison context, the substantive.component of the due process clause affords inmates no greater protection than does the eighth amendment. In our opinion, the plaintiff has attempted to avoid these holdings by framing this action as a procedural due process action and structuring his arguments on appeal within the framework of the Supreme Court’s two-part test. As noted above, however, the plaintiff cannot succeed in his attempt to bring this action under the doctrine of procedural due process because of his failure to present evidence concerning the process that must accompany his alleged deprivation of liberty per the Mathews balancing test. Because this action is not one for a violation of either Colon’s procedural or substantive due process rights, nor is it an action alleging an eighth amendment violation, we are of the opinion that plaintiff is claiming a constitutional violation based Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
sc_adminaction_is
A
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. OFFICE OF SENATOR MARK DAYTON v. HANSON No. 06-618. Argued April 24, 2007 Decided May 21, 2007 Stevens, J., delivered the opinion of the Court, in which all other Members joined, except Roberts, C. J., who took no part in the consideration or decision of the case. Jean M. Manning argued the cause for appellant. With her on the briefs were Toby R. Hyman, Claudia A. Kostel, Dawn Bennett-Ingold, and Thomas C. Goldstein. Richard A. Salzman argued the cause for appellee. With him on the brief were Douglas B. Huron and Tammany M. Kramer. Thomas E. Caballero argued the cause, for the United States Senate as amicus curiae urging affirmance. With him on the brief were Morgan J. Frankel, Patricia Mack Bryan, and Grant R. Vinik* Justice Stevens delivered the opinion of the Court. Prior to January 3, 2007, Mark Dayton represented the State of Minnesota in the United States Senate. Appellee, Brad Hanson, was employed in the Senator’s Ft. Snelling office prior to his discharge by the Senator, which he alleges occurred on July 3, 2002. Hanson brought this action for damages against appellant, the Senator’s office (Office), invoking the District Court’s jurisdiction under the Congressional Accountability Act of 1995 (Act), 109 Stat. 3, as amended, 2 U. S. C. § 1301 et seq. (2000 ed. and Supp. IV), and alleging violations of three other federal statutes. The District Court denied appellant’s motion to dismiss the complaint based on a claim of immunity under the Speech or Debate Clause of the Constitution. The Court of Appeals affirmed, Fields v. Office of Eddie Bernice Johnson, Employing Office, United States Congress, 459 F. 3d 1 (CADC 2006), the Office invoked our appellate jurisdiction under § 412 of the Act, 2 U. S. C. § 1412, and we postponed consideration of jurisdiction pending hearing the case on the merits, 549 U. S. 1177 (2007). Because we do not have jurisdiction under §412, we dismiss the appeal. Treating appellant’s jurisdictional statement as a petition for a writ of certiorari, we deny the petition. Under § 412 of the Act, direct review in this Court is available “from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision” of the statute. Neither the order of the District Court denying appellant’s motion to dismiss nor the judgment of the Court of Appeals affirming that order can fairly be characterized as a ruling “upon the constitutionality” of any provision of the Act. The District Court’s minute order denying the motion to dismiss does not state any grounds for decision. App. to Juris. Statement 59a. Both parties agree that that order cannot, therefore, be characterized as a constitutional holding. The Court of Appeals’ opinion rejects appellant’s argument that forcing Senator Dayton to defend against the allegations in this case would necessarily contravene the Speech or Debate Clause, although it leaves open the possibility that the Speech or Debate Clause may limit the scope of the proceedings in some respects. Neither of those holdings qualifies as a ruling on the validity of the Act itself. The Office argues that the Court of Appeals’ holding amounts to a ruling that the Act is constitutional “as applied.” According to the Office, an “as applied” constitutional holding of that sort satisfies the jurisdictional requirements of §412. We find this reading difficult to reconcile with the statutory scheme. Section 413 of the Act provides that “[t]he authorization to bring judicial proceedings under [the Act] shall not constitute a waiver of sovereign immunity for any other purpose, or of the privileges of any Senator or Member of the House of Representatives under [the Speech or Debate Clause] of the Constitution.” 2 U. S. C. § 1413. This provision demonstrates that Congress did not intend the Act to be interpreted to permit suits that would otherwise be prohibited under the Speech or Debate Clause. Consequently, a court’s determination that jurisdiction attaches despite a claim of Speech or Debate Clause immunity is best read as a ruling on the scope of the Act, not its constitutionality. This reading is faithful, moreover, to our established practice of interpreting statutes to avoid constitutional difficulties. See Clark v. Martinez, 543 U. S. 371, 381-382 (2005). The provision for appellate review is best understood as responding to a congressional concern that if a provision of the statute is declared invalid there is an interest in prompt adjudication by this Court. To extend that review to instances in which the statute itself has not been called into question, giving litigants under the Act preference over litigants in other cases, does not accord with that rationale. This is also consistent with our cases holding that “statutes authorizing appeals are to be strictly construed.” Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 43 (1983); see also Fornaris v. Ridge Tool Co., 400 U. S. 41, 42, n. 1 (1970) (per curiam). Nor are there special circumstances that justify the exercise of our discretionary certiorari jurisdiction to review the Court of Appeals’ affirmance of the interlocutory order entered by the District Court. Having abandoned its decision in Browning v. Clerk, U. S. House of Representatives, 789 F. 2d 923 (1986), the D. C. Circuit is no longer in obvious conflict with any other Circuit on the application of the Speech or Debate Clause to suits challenging the personnel decisions of Members of Congress. Compare 459 F. 3d 1 (case below) with Bastien v. Office of Sen. Ben Nighthorse Campbell, 390 F. 3d 1301 (CA10 2004). Accordingly, the appeal is dismissed for want of jurisdiction, and certiorari is denied. We express no opinion on the merits, nor do we decide whether this action became moot upon the expiration of Senator Dayton’s term in office. It is so ordered. The Chief Justice took no part in the consideration or decision of this case. A brief of amicus curiae urging reversal was filed for the President pro tempore of the Senate of Pennsylvania by John P. Krill, Jr., Linda J. Shorey, and George A. Bibikos. A brief of amici curiae urging affirmance was filed for Congressman Barney Frank et al. by Glen D. Nager, Traci L. Lovitt, and Virginia A. Seitz. A brief of amicus curiae was filed for AARP by Thomas W. Osborne and Melvin Radowitz. Appellee alleged violations of the Family and Medical Leave Act of 1993,107 Stat. 6, as amended, 29 U. S. C. § 2601 et seq. (2000 ed. and Supp. IV), the Americans with Disabilities Act of 1990,104 Stat. 327,42 U. S. C. §12101 et seq. (2000 ed. and Supp. IV), and the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq. (2000 ed. and Supp. IV). “[F]or any Speech or Debate in either House, [the Senators and Representatives] shall not be questioned in any other Place.” Art. I, § 6, el. 1. Section 412 reads in full: “Expedited review of certain appeals “(a) In general “An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order of a court upon the constitutionality of any provision of this chapter. “(b) Jurisdiction “The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal referred to in subsection (a) of this section, advance the appeal on the docket, and expedite the appeal to the greatest extent possible.” 2 U. S. C. § 1412. Had the District Court’s order qualified as a ruling “upon the constitutionality” of a provision of the Act, the Court of Appeals’ jurisdiction to hear the appeal would have been called into serious doubt. See 28 U. S. C. § 1291 (granting jurisdiction to the courts of appeals from final decisions of federal district courts “except where a direct review may be had in the Supreme Court”). Nor does this reading make a dead letter out of § 412’s limitation of appellate review in this Court to constitutional rulings. The possibility remains that provisions of the Act could be challenged on constitutional grounds unrelated to the Speech or Debate Clause. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_state
23
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". John C. SINGLETON, Petitioner-Appellee, v. Lewis B. STEVENS, Warden, Federal Correctional Institution, Milan, Michigan, United States Board of Parole et al., Respondents-Appellants. No. 14792. United States Court of Appeals Sixth Circuit. Aug. 22, 1962. Alan G. Marer, Washington, D. C., Burke Marshall, Asst. Atty. Gen., Washington, D. C., Lawrence Gubow, U. S. Atty., Detroit, Mich., Harold H. Greene, Isabel L. Blair, Attorneys, Department of Justice, Washington, D. C., for appellants. Vincent J. Brennan, Detroit, Mich., on brief for appellee. Before MeALLISTER and O’SULLIVAN, Circuit Judges, and BOYD, District Judge. PER CURIAM. Respondents, the warden of the Federal Correctional Institution at Milan, Michigan, and others, appeal from the discharge of appellee, Singleton, from his confinement in such prison as a federal parole violator. His discharge was ordered in a habeas corpus proceeding brought in the United States District Court for the Eastern District of Michigan. The District Court’s order was based upon the fact that Singleton was not represented by counsel at a hearing at which his parole was revoked. On April 24, 1951, in the U. S. District Court at Detroit, Michigan, Singleton was convicted and sentenced to an eight year term for a narcotics offense. On. June 29, 1955, he was released on parole from the Federal Correctional Institution at Milan, Michigan. On June 29, 1957, he was convicted and sentenced to a prison term on a state narcotics charge at Wethersfield, Connecticut. Upon his parole from the Connecticut prison, he was taken into federal custody as a federal parole violator and returned to the federal prison at Milan, Michigan, on February 11, 1960. On April 28, 1960, a parole revocation hearing was had before a member of the United States Parole Board and his federal parole was revoked. Notice of such action was given to Singleton in June, 1960. Singleton was not represented by counsel at the revocation hearing. He was not advised that he could have such counsel, nor did he request counsel. In July, 1960, Singleton was offered a second parole revocation hearing, with an attorney present in his behalf if he so desired. He declined the offer and the habeas corpus proceedings involved here followed. Relying principally on the decisions of the Court of Appeals for the District of Columbia in Hurley v. Reed, 110 U.S.App.D.C. 32, 288 F.2d 844 (1961); Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F.2d 242 (1959); and Moore v. Reid, 100 U.S.App.D.C. 373, 246 F.2d 654 (1957) the District Judge held that an opportunity to have counsel present at his original revocation hearing should have been given to Singleton. Because such had not been done, he discharged Singleton. He was of the opinion that the offered second hearing with counsel present would not correct what he considered a procedural error in the original revocation hearing. We are of the opinion that the District Judge was in error. Singleton admits his convic-' tion of a narcotics violation while he was on federal parole. There is no intimation that assistance of counsel at his revocation hearing would have helped him in any way. The Courts are in disagreement as to whether the presence of counsel, or the opportunity therefor, is an essential ingredient of the “opportunity to appear” at a parole revocation hearing as provided in § 4207 of Title 18 U.S.C.A. The Court of Appeals of the District of Columbia holds that it is. Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946); Hurley v. Reed, supra; Robbins v. Reed, supra; Moore v. Reid, supra; Barnes v. Reed, 301 F.2d 516 (C.A.D.C., 1962). Under facts not in point with the case at bar, the District of Columbia Circuit has held that an offer of a second hearing will not remedy the failure to permit, or offer, counsel at the original hearing. Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462 (1961); Barnes v. Reed, supra. Other decisions hold that the presence of counsel for the prisoner at a revocation hearing is not essential to its validity. Hiatt v. Compagna, 178 F.2d 42 (C.A. 5, 1949), affirmed by equally divided court 340 U.S. 880, 71 S.Ct. 192, 95 L.Ed. 639, rehearing denied 340 U.S. 907, 71 S.Ct. 277, 95 L.Ed. 656 (1950); Washington v. Hagan, D.C., 183 F.Supp. 414, affirmed 287 F.2d 332 (C.A. 3, 1960) cert. denied 366 U.S. 970, 81 S.Ct. 1934, 6 L.Ed.2d 1259; Lopez v. Madigan, 174 F.Supp. 919 (N.D.Cal. 1959) . District Court decisions have held both ways and there is a division within the Eastern District of Michigan, from which this case arises. Supporting a rule that the opportunity to have counsel at a revocation hearing is an essential are Cannon v. Stucker (E.D.Mich. No. 19,-822, June 16, 1960) and the instant case. Contra are Poole v. Stevens, 190 F.Supp. 938 (E.D.Mich.1960); Hoover v. Stevens, (E.D.Mich. No. 20,349, September 15, 1960); Clark v. Stevens (E.D.Mich., 1960), affirmed without discussion of the point here involved, 291 F.2d 388 (C.A. 6, 1961). A large number of unreported District Court decisions (three in the Eastern District of Michigan), have held that the offer of a new hearing with counsel present renders the issue moot. We are advised of, but have not seen, like holdings by the District Court for the District of Columbia. We are satisfied that the appellee here has had available to him all that the law contemplates that he should have. Singleton’s petition for writ of habeas corpus further charges that he should be released because there was an unreasonable delay between the time of his arrest and return to the Milan prison in February, 1960, and the time that he was notified of his parole revocation. His parole hearing was held in April, 1960, which was on the occasion of the first visit of a representative of the Parole Board to Milan after Singleton’s return there in February. Singleton makes no claim that he was prejudiced by the delay, and at no time sought speedier action by the parole authorities. The District Judge did not consider the point. It is without merit. Buono v. Kenton, 287 F.2d 534 (C.A. 2, 1961), cert. denied, 368 U.S. 846, 82 S.Ct. 75, 7 L.Ed.2d 44. The judgment of the District Court is reversed, with instructions to enter judgment dismissing Singleton’s petition for a writ of habeas corpus and ordering his return to federal custody. . Because of various court decisions, the United States Parole Board now provides by rule that: “All federal prisoners who have been returned to custody as parole or mandatory release violators under a Board war- rant shall be advised that they may be represented by counsel at the revocation hearing provided that they arrange for such counsel in accordance with Board procedure. “All prisoners in custody as violators previously given revocation ‘hearings’ without being afforded the opportunity for representation by counsel shall be given an opportunity for a hearing with counsel.” . Burdette v. Stevens, Civil No. 20,396 (E.D.Mich., November 17, 1960); Matter of Charles F. Leathead, No. 20,837 (E.D.Mich., 1960); Matter of Ollis II. Goodson. No. 20.249 (E.D.Mich., 1960). 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_civproc1
0
What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. KENDALL CO. v. TETLEY TEA CO., Inc. No. 4547. United States Court of Appeals First Circuit. June 1, 1951. Hector M. Holmes, Boston, Mass. (H. L. Kirkpatrick, Edgar H. Kent and Fish, Richardson & Neave, all of Boston, Mass., on brief), for appellant. T. Clay Lindsey, Hartford, Conn. (George P. Dike, Boston, Mass., on brief), for ap-pellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. In this patent infringement suit, the court below gave judgment for the defendant upon a holding that the claims in suit are invalid. 89 F.Supp. 897. The patent in question, No. 2,277,050, is a product patent for an infuser, particularly a tea bag. It was applied for by Raymond E. Reed and John F. Ryan, designated as joint inventors, and was issued on March 24, 1942, to appellant herein, The Kendall Company, as assignee. The Kendall Company, a manufacturer of various woven and non-woven fabrics, does not itself manufacture tea bags, but it does manufacture a fabric known as “Webril”, a form of which is designed for use in the making of tea bags. Using a competing material purchased from C. H. Dexter & Sons, Inc., the defendant-appellee Tetley Tea Company manufactures heat-sealed tea bags alleged to infringe the patent in suit. Dexter has conducted and controlled the defense of the case, having agreed to indemnify Tetley for any loss sustained on account of the alleged infringement. Raymond E. Reed came to the Kendall Mills Division of The Kendall Company at Walpole, Massachusetts, in December, 1933, to take a principal part in a research project devoted to the development of a fabric which would not require the expensive processes of spinning and weaving. The broad idea was that thermoplastic fibers, particularly those of cellulose acetate, might be so treated as to form webs or fabrics either alone or in conjunction with non-thermoplastic fibers, such as cotton or wool, and that these cheaper materials might replace the more expensive woven fabrics. After many experiments it was found that an apparently useful product could best be formed by producing with textile machinery a web of cellulose acetate fibers and cotton fibers intermingled, and then subjecting the web to heat and pressure to develop the inherent adhesive properties of the cellulose acetate fibers so that they would adhere to each other and to the cotton fibers at intersecting points. Thus could be formed a material of some tensile strength, and wide variations in pliability and porosity depending upon the ratio of cellulose acetate fibers in the mixture and the degree of heat and pressure used. It .was found preferable to add a plasticizer to the cellulose acetate fibers in order to lower the temperature at which the fibers would become adhesive, and such plasticizers were obtained on the commercial market. Reed and his co-workers also found that several webs so formed could be superimposed and subjected to heat and pressure to produce laminated products of varying thicknesses. The experiments had reached such a state of development by July 5, 1935, that Reed, as sole inventor, on that day filed an application in the Patent Office (Serial No. 30,022) setting forth the above discoveries in considerable detail and describing the various types of fabric which might be produced by variations in the method. No mention was made in the application of the possible use of the fabric for the manufacture of tea bags or other infusers. On December 2, 1935, Reed filed an application for a patent for a collar and cuff inter-liner, which eventuated in patent No. 2,202,025 issued May 28, 1940, to Kendall as assignee; the disclosure in this application described the method of making the interlining material substantially as in the previous application (Serial No. 30,022), but the claims were limited to its use as a collar fabric. On November 6, 1939, Reed, as sole inventor, filed an application for a patent on a textile fabric and method of making the same, the application being described as “a continuation, in part, of my copending application Ser. No. 30,022, filed July 5, 1935.” It is conceded that in essential parts “the continuing case discloses exactly the same invention described and claimed in the original application. In fact, most of the claims were taken from the original case, some of them being modified slightly in order better to define the invention, and many of them being copied verbatim.” The earlier application, Serial No. 30,022, was afterwards abandoned, and the continuing application eventuated in patent No. 2,277,049, issued to Kendall as assignee of Reed, on March 24, 1942, the same date on which the patent now in suit was issued. Meanwhile, by August of 1936, Reed had conceived the idea that a form of the above-described fabric, which goes by the trade name “Webril”, and was so trademarked in 1938, might be useful for the manufacture of tea bags; and he experimented with the development of a satisfactory material for this purpose. He thought at that time, 'however, that it would be necessary to kier-boil and bleach the fabric after its manufacture in order to render it tasteless and non-toxic. This had been the process used in the making of the prior-art gauze tea bags, but such process when used on the Webril fabric chemically regenerated its thermoplastic fibers to pure cellulose and thus rendered the fibers no longer thermoplastic. Therefore, while the fabric was made originally as disclosed substantially in the 1935 application, it could not be made into a heat-sealed envelope, and could be used only in a stapled or sewed tea bag. The product in this form was apparently not marketed commercially. In January, 1937, Reed went to work for appellant’s subsidiary, Bauer & Black, in Chicago. In the following month Dr. John F. Ryan was employed at the Kendall plant in Walpole to work on various Web-ril products, including tea bags. When Reed returned to Walpole in August, 1938, he and Ryan collaborated on the further development of the tea bag. According to Reed’s testimony, in late 1938 or early 1939 he and Ryan first conceived the idea of fabricating a material which would not have to be kier-boiled and bleached and which would be heat-sealing. During Reed’s absence there had been developed an improved method of bleaching cotton fibers so that they would be pure and tasteless, and by experimentation Reed and Ryan found that at least two plasticizers were available which were tasteless and non-toxic. These plasticizers, prepared by Monsanto Chemical Company under the names Santicizers E-1S and M-17, had been known at least before 1937 and had been tried out by Reed on other products. To make the fabric heat-sealable, it was found preferable that a relatively heavy concentration of the thermoplastic fibers be placed on one surface and a light concentration on the other, so that the material would not stick to the heat-sealing machine. To accomplish this, Reed and Ryan designed a fabric consisting of three plies or webs hot-calendered together, the top web consisting of 60 per cent thermoplastic fibers, the other two containing only S to 10 per cent of such fibers. This material, known as Webril 1300, was placed in commercial production around August, 1939, the earliest sale appearing to be in the following month. On August 31, 1940, Reed and Ryan, as joint inventors, applied for the patent in suit. Their disclosure opens by pointing out the wide use of infusers for the packaging of foodstuffs, such as tea and coffee, as well as their use by chemists, druggists, and others; and explains that for purposes of convenience the infuser will be referred to thereinafter as a “tea bag” and the material to be infused as “tea”. The inventors then proceed to. list as the three fundamental requirements of a satisfactory tea bag (1) that it be sufficiently water-permeable to allow rapid infusion, (2) that the structure of the bag be such as to prevent any substantial sifting through of the tea leaves, and (3) that it be very inexpensive to manufacture. They point out the disadvantages of the prior-art tea bags, such as those made of gauze or paper. They recite that they have discovered a way of making a satisfactory tea bag by using “an unwoven fabric from unspun fibers * * * preferably. * * * by mixing textile fibers of the common types with other fibers having latent adhesive properties, and then developing such properties and thereby uniting a sufficient number of the fibers to produce a coherent, porous fabric structure.” As an example, it is stated that plasticized cellulose acetate and bleached cotton fibers in the proportions of 40 per cent of the former and 60 per cent of the latter may be mixed together by feeding into a picker lapper. “After the mixture has been converted into lap rolls on this machine, it is then carded and the webs from three carding machines are next superposed or combined to produce a single web which is subsequently treated to develop the latent adhesive properties of the cellulose acetate fibers. Such a treatment may consist in hot-calendering the combined web, the rolls being heated to a sufficient temperature to soften, somewhat at least, the exterior of the cellulose acetate fibers and thus make them adhere firmly to the cotton fibers.” The disclosure points out that rayon and other non-thermoplastic fibers may be used in place of cotton, and that other thermoplastic fibers, such as vinyl, may be used as the binder. Further, the inventors indicate that while the above-described fabric is heat-sealable, a more satisfactory heat-sealing fabric can be made by concentrating a larger proportion of thermoplastic fibers on one surface; and they show how this can be done by placing on the top surface a web containing 60 per cent thermoplastic fibers and decreasing the proportion of such fibers in the other two webs to 5 or 10 per cent. In the specifications they do not confine themselves to the use of their described fabric in a heat-sealed infuser, but also suggest that it may be used in a sewed, stapled, or pouch-type bag. They conclude with the usual broad statement that they have disclosed only the preferred form of their invention and that some, or'all, of the advantages and novel features of the invention may be obtained in modified embodiments of it. The claims in suit are Nos. 1, 2, 3, 5, 12, and 14, the last two of which incorporate by reference, and amplify, claim 4. Claim 1 covers: “An infuser comprising a porous envelope for enclosing a material adapted to be infused in a liquid, a substantial portion at least of said envelope consisting essentially of heterogeneously intermingled unspun water-insoluble fibers bonded together to form a fibrous structure highly pervious to liquids, a substantial proportion of said fibers having normally latent adhesive properties adapted to be developed by heat.” Claim 2 is identical with claim 1, except that instead of the final phrase it calls for “a substantial proportion of said fibers being thermoplastic and the envelope including overlapped layers united by the direct adhesion of the thermoplastic fibers of one layer to fibers of another layer.” (In other words, claim 2 is specifically limited to a heat-sealed bag, which apparently claim 1 is not.) Claim 3 adds to claim 1 only that the “said fibers having normally adhesive properties are stable in hot water but are adapted to become adhesive at temperatures above that of boiling water”; this claim, like claim 1, is also apparently not limited to a heat-sealed bag. Claim 5 substitutes for the last phrase in claim 1 “a high proportion of said fibers having normally latent thermoplastic properties and being present in such quantity as to make said portion of the envelope inherently heat-sealable due to the presence of said thermoplastic properties.” (This claim, the same as claim 2, by way of contrast with the language of claims 1 and 3, indicates that the latter claims are not confined to heat-sealed bags, or even to bags having a sufficient proportion of thermoplastic fibers to be heat-sealable.) Claim 4, which is incorporated by reference in claims 12 and 14, reads: “An infuser comprising a porous envelope for enclosing a material adapted to be infused in a liquid, a substantial portion at least of said envelope consisting essentially of an unwoven sheet material composed of un-spun fibers and a water-insoluble binder distributed in a discontinuous form substantially throughout said portion of the envelope, said binder and said fibers being adhesively united into a sheeted structure, highly pervious to air and water but capable of substantially preventing sifting of dry particles of said material therethrough, said binder having normally latent adhesive properties adapted to be developed by heat.” (This requires only “an unwoven sheet material” and a water-insoluble la-tently adhesive binder, not necessarily in fiber form.) Claim 12 adds that marginal portions of the porous envelope described in claim 4 “are united by the adhesive properties of said thermoplastic binder”; thus the claim is limited to a heat-sealed tea bag, but the material need not contain any thermoplastic fibers. Claim 14 covers an infuser as in claim 4, “in which said binder is present in fiber form and the concentration of binder fibers is considerably higher in one surface of said sheet material than in the opposite surface”, but claim 14 is not limited to heat-sealed bags. As an alternative ground of decision, the court below held the patent invalid because whatever invention was disclosed in the application was that of Reed alone, not of Reed and Ryan jointly. There is authority for the proposition that where two or more persons obtain a joint patent for what was invented solely by one of them, the patent is void. Duplex Envelope Co., Inc., v. Denominational Envelope Co., 4 Cir., 1935, 80 F.2d 179, 186; 1 Walker on Patents (Deller’s ed.) § 118, and cases cited. We are not prepared to depart from this rule, though it was sharply criticized in a dictum in Buono v. Yankee Maid Dress Corp., 2 Cir., 1935, 77 F.2d 274, 278. Nor are we prepared to take the distinction suggested in De Laski & Thropp Circular Woven Tire Co. v. William R. Thropp & Sons Co., D.C.D.N.J., 1914, 218 F. 458, 465, affirmed 3 Cir., 1915, 226 F. 941, that the rule should be inapplicable where the patent is issued directly to the assignee of the purported joint inventors. It is difficult to see how the assignee could stand any better than his assignors; if a patent must be issued to the inventor, not to the inventor and another, it would seem that the application for the patent must be signed by the inventor, not by the inventor and another, whether or not the patent is issued directly to an assignee. However, it is generally agreed that this defense is a technical one regarded with disfavor by the courts and requiring very clear and convincing proof to sustain it. Klein v. American Casting & Mfg. Corp., 2 Cir., 1937, 87 F.2d 291, 294. Contrary to the view taken by the district judge, we think that on the evidence in the record, if the disclosure in the patent in suit is deemed to be a sufficient advance over the prior art to constitute invention, the invention is that of Reed and Ryan jointly, not of Reed alone. Prior to his collaboration with Ryan, Reed had apparently not conceived of a heat-sealing infuser. True, Reed alone had developed the method of making the Webril fabric, a variation of which was later used for the infuser described in the patent in suit, and he had also recognized that such fabric might be usable as a tea bag. But it was the joint work of Reed and Ryan from the fall of 1938 to August of 1939 that brought forth the actual product described in the patent. The only tea bag conceived of by Reed previous to his association with Ryan, so far as the record shows, was one made from Reed’s basic material, but subsequently kier-boiled and bleached, and not heatsealable. The two men together recognized and worked out the problems of tastelessness, non-toxicity, and heat-sealability. Whether that was a sufficient advance over the prior art to justify a patent to Reed and Ryan as joint inventors remains to be considered. So far as concerns prior-art tea bags, we do not think enough was shown to make out an anticipation of the alleged joint invention by Reed and Ryan, though their claims were perhaps too broadly stated. No doubt, the idea of a tea ball or tea bag is quite old, and the conception of using any particular existing material to make such a product could hardly, without more, amount to a patentable invention. Cf. Hotchkiss v. Greenwood, 1850, 11 How. 248, 13 L.Ed. 683, with Smith v. Goodyear Dental Vulcanite Co., 1876, 93 U.S. 486, 23 L.Ed. 952. Most of the earlier tea bag patents involved the use of some perforated material, such as parchment paper, and depended for their novelty principally on the particular design employed: e. g., patent No. 1,247,906 to Tully; patent No. 1,489,807 to Anderson; patent No. 2,138,358 to Salfisiberg; patent No: 2,149,-713 to Webber. And, as admitted by the disclosure in the patent in suit, non-perforated, inherently porous material, such as gauze or filter paper, was in common use in the tea bag manufacture at the time of the present claimed invention. Moreover, the idea was not new of utilizing some thermoplastic material so as to make the fabric heat-sealable, and thus to eliminate the operations of sewing or stapling; though prior patents had referred only to the use of some thermoplastic coating, not to the use of thermoplastic fibers. See Salfisberg, Webber, supra. Thus the differences between the disclosure of the patent in suit over the prior-art tea bags seem to be chiefly two: (1) The use of a thermoplastically bonded fabric which is inherently porous, and is unwoven or unspun; and (2) the incorporation of thermoplastic fibers to make the infuser heat-sealable. In view of the nature of the disclosures in the patent in suit, it is proper also to consider whether developments in the prior art of bonded fabrics constitute an anticipation of the claimed invention. The use of thermoplastic fibers in conjunction with non-thermoplastic fibers in producing an adhesively bonded material was not new (Italian patent No. 364,516 to Francis; patent No. 1,903,960 to Dreyfus; patent No. 2,011,914 to Schwartz; patent No. 1,829,585 to Dreyfus and Miles). Nor was there novelty in making a laminated product (Dreyfus and Miles, supra), or one in which webs from three or more carding machines were combined by a binder, as in patent No. 810,935 to Goldman, though here the binder was in powder form. Apparently, however, prior to the date of conception of the claimed invention in suit (late 1938 or early 1939), or to the date of its reduction to practice (August, 1939), there had been issued no patent disclosing the particular type of fabric described in the patent in suit; that is, an unwoven material, produced on textile machinery, formed by laminating webs of mixed thermoplastic and non-thermoplastic fibers by heat and pressure; nor had any similar material been devised which was suitable for a tea bag. We do not think that patent No. 1,829,585 to Dreyfus and Miles or patent No. 1,903,960 to Dreyfus constituted a sufficient anticipation in this respect; the former involves a paper-type fabric and the latter apparently a woven fabric, and both are concerned with producing a waterproof material rather than a water-pervious material. But we think that the textile fabric patent No. 2,277,049, issued to Kendall as assignee of Reed, may be cited against the patent in suit. As above stated, this patent goes back to an application filed by Reed alone on July 5, 1935 (Serial No. 30,022), which application was later supplanted by Reed’s application of November 6, 1939. The situation here presented is not that of copending applications by the same inventor, with the earlier application cited as prior art against the later one. See National Electric Ticket Register Co. v. Automatic Ticket Register Corp., 2 Cir., 1926, 15 F.2d 257; Barber-Colman Co. v. Withnell, 1 Cir., 1927, 20 F.2d 373, 376; and In re Barton, 1929, 58 App.D.C. 373, 30 F.2d 997. These cases have been criticized (Stringham, Double Patenting § 2804B (1933)), but we need not examine into their correctness now. Reed alone is a different inventor from Reed and Ryan jointly. Dwight & Lloyd Sintering Co., Inc., v. Greenawalt, 2 Cir., 1928, 27 F.2d 823, 830; Denaro v. Maryland Baking Co., D.C., Md., 1930, 40 F.2d 513, 516, affirmed on opinion below 4 Cir., 1931, 50 F.2d 1074. Reed alone being the original and first inventor of the invention disclosed by his application Serial No. 30,022, supplanted later by his application of November 6, 1939, the disclosure by Reed and Ryan jointly, in their application for the patent in suit, cannot be held to be a patentable invention if the earlier invention by Reed alone was such an encroachment upon the field that what it left was too little by way of creative advance to support a patent. Alexander Milburn Co. v. Davis-Bournonville Co., 1926, 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651; Western States Machine Co. v. S. S. Hepworth Co., 2 Cir., 1945, 147 F.2d 345. Whether the copending application in such a case should technically be described as “prior art” is quite unimportant. See the illuminating discussion by Learned Hand, J., in Western States Machine Co. v. S. S. Hep-worth Co., supra, 147 F.2d at pages 348-349. See also Detrola Radio & Television Corp. v. Hazeltine Corp., 1941, 313 U.S. 259, 265, 61 S.Ct. 948, 85 L.Ed. 1319. Reed’s patent No. 2,277,049 discloses a textile method of making the Webril fabric with thermoplastic fibers, and the combining of two or more webs by running them through a heated calender. It also discloses that the proportions of the two types of fibers may be varied according to the particular qualities desired, such as “pliability, drape, firmness, porosity, and the like,” and that the proportion of thermoplastic fibers may be increased from that shown in the specific illustration given (about 4 per cent) to any greater amount, desired. The advances disclosed in the patent in suit over the disclosures in No. 2,277,049 would seem to be three only: (1) Using the unwoven bonded fabric in the-manufacture of an infuser; (2) including sufficient thermoplastic fibers to make the material heat-sealable (30-40 per cent), and (3) employing three webs, one of which contains a far greater proportion of thermoplastic fibers, thus making the material more convenient for the heat-sealing operation. As to (1) above: There was clearly no invention in the conception of making an, infuser out of the fabric covered by patent No. 2,277,049. The Webril material was. designed as a substitute for woven materials, and gauze had been used in the prior-art as a common fabric for the manufacture of tea bags. Patent No. 2,277,049 discloses that the fabric described could be made more or less porous by varying the proportions of the two types of fibers and. the amount of heat and pressure applied. Since claims 1 and 3 of the patent in suit. revealed only the use of such fabric in the manufacture of an infuser, without requiring that the infuser be heat-sealed, or even that the material contain ■ sufficient thermoplastic fibers to render it heat-sealable, those claims are certainly invalid as lacking invention over the prior art. • As to (2) above, we do not think there is invention in the disclosure of including sufficient thermoplastic fibers to make the fabric heat-sealable. Claims 2 and 5 of the patent in suit describe an infuser which is heat-sealed, or the fabric of which is inherently heat-sealable because of the incorporation into the material of thermoplastic fibers. (Claim 12 also covers a heat-sealed infuser, but claim 4, which it incorporates by reference, does not require that the binder be in fiber form; thus claim 12 in its literal breadth is invalid as lacking invention over the prior art, as above indicated.) The characteristics of thermoplastic fibers were well known, e. g., patent No. 1,829,585 to Dreyfus and Miles; patent No. 1,903,960 to Dreyfus; and Reed’s patent No. 2,277,049. Nor was there novelty in the idea of making a heat-sealed infuser, e. g., Salfisberg, supra; Webber, supra; patent No. 2,306,399 to Menzel. However, the disclosures in these patents taught the imparting of the quality of heat-sealability to the material by the use of a thermoplastic liquid coating or thermoplastic powder. It is apparently true that until the patent in suit, no one had conceived the idea of making the material for an infuser heat-sealable by incorporating thermoplastic fibers into the material. It is true also that Reed’s patent No. 2,277,049 did not disclose the proportion .of thermoplastic fibers necessary to make the Webril material heat-sealing, nor did it state that it was possible to make a fabric containing sufficient thermoplastic fibers for that purpose and yet being sufficiently porous for use as an infuser. But if a tea bag manufacturer, after reading the No. 2,277,049 patent, had conceived the idea of using thermoplastic fibers to produce a heat-sealable tea bag, and had manufactured such .an unwoven material on textile machinery (to which such patent is limited), he would clearly have infringed that patent. If the added concept of using a sufficient proportion of thermoplastic fibers in the manufacture of material for a heat-sealable infuser would not be sufficient to save the material from infringing patent No. 2,277,049, provided the material were made by the textile method, we do not see how there could be invention in a patent — such as the one in suit — which discloses only the textile method of making the material, but claims broadly the conception of using thermoplastic fibers to produce heat-sealed tea bags, regardless of how the material is made. Claims 2 and 5, as well as claim 12 for the reason above stated, are therefore invalid for lack of invention. As to (3) above, the patent cannot be sustained on the concept, without more, of employing a higher concentration of thermoplastic fibers on one surface rather than on the other in order to facilitate the heat-sealing operation. Claim 14 of the patent in suit is the only one which mentions this feature, though the claim is not in terms limited to heat-sealed infusers. Previous disclosures in the art of making heat-sealed infusers had naturally involved the concentration of the thermoplastic material on one surface and not the other. See Web-ber, supra; Menzel, supra, this being a copending application filed prior to the application for the patent in suit. Once it was recognized that it was desirable for the material to be heat-sealed in the making of the infuser, the facilitation of the heat-sealing operation by having one surface heat-sealable and the other not would seem to have been an obvious detail to one skilled in the art. Claim 14 is also invalid for lack of invention. Furthermore, we think that Reed’s patent No. 2,202,025, above mentioned, also may properly be cited against the patent in suit. This patent was applied for by Reed as sole inventor on December 2, 1935, and was issued to Kendall as assignee of Reed on May 28, 1940, which was prior to the filing of the application for the patent now in suit. While No. 2,202,025 covered only a material to be used as a collar interliner, it does make a disclosure very similar to that of Reed’s 2,277,049 patent and the patent in suit, as to the production of an unwoven, thermoplastically bonded fabric, and in addition it discloses that the fabric is porous and can 'be made to adhere to the broadcloth or other collar fabric by the application of heat and pressure. The judgment of the District Court is affirmed. . In the view we have taken of the case, it is not necessary to consider in detail the Dexter material, the use of which in the manufacture of a heat-sealed tea hag is alleged to constitute infringement of the patent in suit. Dexter’s heat seal paper is not made with textile machinery, and admittedly does not infringe Reed’s patent No. 2,277,049 on the Wehril fabrie. Dexter’s paper consists of fibers all of paper making length, bonded together by ordinary paper makers bond and a wet strengthening agent (melamine resin), a sufficient proportion of thermoplastic vinyon fibers being included in the mixture to impart to the material the heat-sealing characteristic. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_r_fed
0
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. DELAWARE & H. R. CORPORATION v. FELTER (SPRINGFIELD FIRE & MARINE INS. CO., Intervener). No. 6527. Circuit Court of Appeals, Third Circuit. Aug. 25, 1938. Rehearing Denied Sept. 23, 1938. Paul Bedford, of Wilkes-Barre, Pa. (Joseph Rosch, of Albany, N. Y., and Thomas L. Ennis, of New York City, of counsel) , for appellant. Ralph Mastriani and Raymond Bialkowski, both of Scranton, Pa., for appellees. Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge. DICKINSON, District Judge. The complaint voiced in the action brought in the Court below, is the loss of the property of the plaintiff below by fire due to the averred negligence of a railroad company in blocking a public highway, thereby preventing a Fire Hose Company from reaching the scene of the fire in time to extinguish the flames before any damage was done. It is going outside the record but it may be assumed that the owner of the property was insured and that the recovery is for the benefit of the underwriter, so that the questions of law raised may be considered on their legal merits without danger of justice being jostled from its seat by any feelings of sympathy. The action is one of negligence. There are only two questions raised. The jury resolved both in favor of the plaintiff below. The questions were and are: 1. Was there any evidence of the negligence of the defendant below to support the verdict? 2. Did the negligence, if any, contribute to the damage done? The Question of Negligence. The defendant in fact did obstruct the crossing of the highway by its standing train of cars. Grade crossings of highways by railroads are not unlawful under the laws of Pennsylvania, although there is an avowed policy of the law to abolish them when this is practicable. Any movement of- a train across a highway does obstruct' the crossing for the time being. Such obstructions are unavoidable and hence excusable. Much time and labor has been devoted to the discussion pro and con of the “reasonableness” of the obstruction here. All this goes to the conclusion to be reached under all the evidence. The cited cases of Kirstein v. Philadelphia & Reading R. Co., 257 Pa. 192, 101 A. 338, 5 A.L.R. 1646, and American Sheet & Tin Plate Co. v. Pittsburgh & Lake Erie R. Co., 3 Cir., 143 F. 789, 12 L.R.A.,N.S., 382, 6 Ann.Cas. 626, treat of this question. The question presented on this appeal is a much narrower question. It is whether there is evidence of negligence to submit to the jury. The Pennsylvania Act of June 9th, 1911, 67 P.S.Pa. § 452, declares it to be unlawful for a railroad company to obstruct a crossing with their locomotives or cars. This Act was passed since the cases cited were decided. There would, because of this, be evidence in any case of blocking which would carry it to the jury. The trial Judge in this case so ruled, and in this we think he was right. Did the Negligence Contribute to the Damage ? A distinction must be recognized between negligence and what may be termed actionable negligence. To make negligence actionable it must not only exist but it must have contributed in some degree to the damage done. The highway in this case was blocked and the house of the plaintiff below was burned. Assuming that the blocking was a negligent obstruction did the holding back of the fire apparatus contribute to the damaging progress of the fire? This became an important question in the case. The defendant below by its Sixth point asked the Court to instruct the jury that unless the delay of the fire apparatus contributed to the loss by fire of the plaintiff’s building, the verdict should be for the defendant. The trial Judge so instructed the jury by leaving to it the determination of this question. At the conclusion of his charge he referred to the fact that all the points of charge which he had been requested to make he had covered in his general charge and counsel was invited to withdraw the points. This, however, as was his right, counsel declined to do, whereupon the record shows the following ruling: “The Court: Refused. All' points are refused which are not affirmed.” Inasmuch as the Sixth point had been affirmed in the general order, we think this ruling was the equivalent of an affirmation. The fact of the, obstruction to the crossing having contributed to the damage sustained' by the plaintiff was certainly left to the jury. The Ninth Assignment of Error which refers to the Sixth point can in consequence not be sustained'. The other Assignments of Error do. not call for special treatment. The. case for the appellant is really based upon its claim of right to a directed verdict, and this in turn depends upon the two questions just discussed. (1) Whether there was evidence to go to the jury to find negligence, and (2) if so found, whether that negligence contributed in any degree to the damage suffered by the plaintiff. The Assignments of Error are all overruled, and the judgment appealed from is affirmed, with costs. 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_direct2
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for interest of person asserting privacy rights violated. 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. Reverend Jerry FALWELL, Appellee, v. Larry C. FLYNT; Hustler Magazine, Inc., Appellants, and Flynt Distributing Company, Inc., Defendant. Reverend Jerry FALWELL, Appellant, v. Larry C. FLYNT, Hustler Magazine, Inc.; Flynt Distributing Company, Inc., Appellees. Nos. 85-1417(L), 85-1480. United States Court of Appeals, Fourth Circuit. Argued April 8, 1986. Decided Aug. 5, 1986. Rehearing and Rehearing En Banc Denied Nov. 4,1986. Alan L. Isaacman and David Carson (Cooper, Epstein & Hurewitz, Beverly Hills, Cal., Arthur P. Strickland, Strickland & Rogers, Roanoke, Va., on brief) for appellants/cross-appellees. Norman Roy Grutman (Jewel H. Bjork, Jeffrey H. Daichman, Thomas V. Marino, Grutman, Miller, Greenspoon, Hendler & Levin, New York City, on brief), for appellee cross-appellant. Before HALL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge. The order denying rehearing, with dissenting opinions, will be published in 805 F.2d —. CHAPMAN, Circuit Judge: This lawsuit arises out of an “ad parody” that appeared in the November 1983 and March 1984 issues of Hustler, which is published by defendants Larry Flynt and Hustler Magazine, Inc. (Hustler), and is distributed by defendant Flynt Distributing Company (FDC). The subject of this parody was the Reverend Jerry Falwell, a well-known pastor and commentator on political issues. Falwell sued the defendants for libel, invasion of privacy, and intentional infliction of emotional distress. At the close of evidence, the district court dismissed Falwell’s claim for invasion of privacy and sent the other two claims to the jury. The jury found against Flynt and Hustler on the emotional distress claim and against Falwell on the libel claim. These defendants have appealed, and Falwell has filed a cross appeal. The issues before this court can be grouped into four categories: the constitutional issues, the common law tort issues related to intentional infliction of emotional distress, the evidentiary issues, and finally, Falwell’s cross appeal, which claims that the district court erred in dismissing his claim for invasion of privacy. I The “ad parody” which gives rise to the instant litigation attempts to satirize an advertising campaign for Campari Liqueur. In the real Campari advertisement celebrities talk about their “first time.” They mean, their first encounter with Campari Liqueur, but there is double entendre with a sexual connotation. In the Hustler parody, Falwell is the celebrity in the advertisement. It contains his photograph and the text of an interview which is attributed to him. In this interview Falwell allegedly details an incestuous rendezvous with his mother in an outhouse in Lynchburg, Virginia. Falwell’s mother is portrayed as a drunken and immoral woman and Falwell appears as a hypocrite and habitual drunkard. At the bottom of the page is a disclaimer which states “ad parody — not to be taken seriously.” The parody is listed in the table of contents as “Fiction; Ad and Personality Parody.” Falwell was first shown the ad parody by a reporter in the fall of 1983. Shortly thereafter, he filed suit against Flynt, Hustler and FDC in the United States District Court for the Western District of Virginia. Falwell alleged three theories of liability: libel, invasion of privacy under Va. Code § 8.01-40 (1984), and intentional infliction of emotional distress. Hustler then republished the parody in its March 1984 issue. In June 1984, Falwell’s counsel took Larry Flynt’s deposition, which was recorded on video tape. During the deposition Flynt identified himself as Christopher Columbus Cornwallis I.P.Q. Harvey H. Apache Pugh and testified that the parody was written by rock stars Yoko Ono and Billy Idol. It also contained the following colloquy concerning the parody: Q. Did you want to upset Reverend Falwell? A. Yes.... Q. Do you recognize that in having published what you did in this ad, you were attempting to convey to the people who read it that Reverend Falwell was just as you characterized him, a liar? A. He’s a glutton. Q. How about a liar? A. Yeah. He's a liar, too. Q. How about a hypocrite? A. Yeah. Q. That’s what you wanted to convey? A. Yeah. Q. And didn’t it occur to you that if it wasn’t true, you were attacking a man in his profession? A. Yes. Q. Did you appreciate, at the time that you wrote “okay” or approved this publication, that for Reverend Falwell to function in his livelihood, and in his commitment and career, he has to have an integrity that people believe in? Did you not appreciate that? A. Yeah. Q. And wasn’t one of your objectives to destroy that integrity, or harm it, if you could? A. To assassinate it. [J.A. 901-902]. Trial began in December 1984. While the district court had initially granted the defendant’s pretrial motion to suppress the deposition on the grounds that Flynt could not comprehend the obligation of the oath or give a correct account of events, the district court reversed itself on the first day of trial and permitted Falwell to introduce an edited version containing only those portions relevant to the instant lawsuit. The defendants then showed the jury the entire deposition, stating that the edited deposition was misleading. In spite of the defendants’ strenuous objections, the district court also permitted the introduction of the two Hustler issues containing the parody and excerpts from prior issues that had lampooned Falwell. At the close of evidence, the district court dismissed Falwell’s invasion of privacy claim brought under Va.Code 8.01-40 (1984), which creates a cause of action for damages arising from the use of a person’s name or likeness for purposes of trade or advertising without his consent. The district court ruled that although the parody used FalwelPs name and likeness, the use was not for purposes of trade within the meaning of the statute. The jury returned a verdict for the defendants on the libel claim, finding that no reasonable man would believe that the parody was describing actual facts about Falwell. On the emotional distress claim, the jury returned a verdict against Flynt and Hustler, but not F.D.C. The jury awarded $100,000 in actual damages, $50,000 in punitive damages against Flynt, and $50,000 in punitive damages against Hustler. II The defendants make two constitutional arguments. First, they assert that since Falwell is admittedly a public figure the actual malice standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) must be met before Falwell can recover for emotional distress. They argue that the actual malice standard has not been met. Second, the defendants contend that since the jury found that the parody was not reasonably believable, the statements contained therein cannot be statements of fact but must be opinion and are, therefore, completely shielded by the first amendment. The defendants maintain initially that since Falwell is a public figure, they are entitled to the same level of first amendment protection in an action for intentional infliction of emotional distress that they would receive in an action for libel. We agree. Once an action for libel was a plaintiff's sole remedy for a defamatory publication in a news medium. The last century has, however, seen the acceptance of the new emotional distress and invasion of privacy torts which may arise from the same underlying facts. Thus, while a tortious publication once gave rise only to an action for libel, it may now support the additional claims. There has been, of late, a growing trend toward pleading libel, invasion of privacy and intentional infliction of emotional distress in lawsuits arising from a tortious publication. Mead, Suing the Media for Emotional Distress: A Multi-Method Analysis of Tort Law Evolution, 23 Wash. L.J. 24 (1983). The instant case typifies this trend; Falwell asserted all three theories of liability. In New York Times, the Supreme Court determined that libel actions brought by public officials against the press can have a chilling effect on the press inconsistent with the first amendment. Therefore, when a public official sues for libel based upon a tortious publication, the defendant is entitled to a degree of first amendment protection. This protection has been extended to cases in which the plaintiff is a public figure, Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and to actions of invasion of privacy for casting the plaintiff in a false light, Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), but not to cases in which the plaintiff is a private figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). It is not the theory of liability advanced, but the status of the plaintiff, as a public figure or official and the gravamen of a tortious publication which give rise to the first amendment protection prescribed by New York Times. In the case at bar, Falwell is a public figure, and the gravamen of the suit is a tortious publication. The defendants are, therefore, entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in Falwell’s claim for libel. To hold otherwise would frustrate the intent of New York Times and encourage the type of self censorship which it sought to abolish. The issue then becomes what form the first amendment protection should take in an action for intentional infliction of emotional distress. The defendants argue that Falwell must prove that the parody was published with knowing falsity or reckless disregard for the truth. This is the actual malice standard of New York Times v. Sullivan. While we agree that the same level of protection is due the defendants, we do not believe that the literal application of the actual malice standard which they seek is appropriate in an action for intentional infliction of emotional distress. The actual malice standard originated as a remedy for the first amendment problem that arises under common law defamation. Historically, the individual’s interest in a good reputation has been regarded as so significant that the law has held one who intentionally published defamatory material to a standard of strict liability. But recognizing that people in a free society must have ready access to information and ideas if that society is to endure, the established common law attempted to reconcile these divergent interests by holding a publisher strictly liable for his publication unless he could prove that the publication was either true or subject to a conditional privilege. There was no privilege for a good faith mistake of fact. Owens v. Scott Publishing, 46 Wash.2d 666, 284 P.2d 296 (1955), cert. denied 350 U.S. 968, 76 S.Ct. 437, 100 L.Ed. 840 (1956); Peck v. Tribune Company, 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960 (1909). The Supreme Court changed the law in New York Times v. Sullivan. The court held that defendants could be held liable for defamation of public officials only if the defamatory falsehood was published with actual malice. The effect of New York Times and its progeny is to increase the level of fault necessary for a public figure to prevail in an action for defamation. Where the defendant was once held strictly liable for a false publication, he is now held liable only for his knowing or reckless misconduct. New York Times gives the press protection from honest mistakes, but it is not a license to lie. The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity---- Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection. Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). When applied to a defamation action, the actual malice standard alters none of the elements of the tort; it merely increases the level of fault the plaintiff must prove in order to recover in an action based upon a publication. Requiring a plaintiff to prove knowledge of falsity or reckless disregard of the truth in an action for intentional infliction of emotional distress would add a new element to this tort, and alter its nature. The defendants argue that New York Times dictates such a result. But their argument emphasizes the language “falsity or ... disregard for the truth,” and thus misreads New York Times. Properly read, New York Times focuses on culpability. The emphasis of the actual malice standard is “knowing ... or reckless.” The first of the four elements of intentional infliction of emotional distress under Virginia law requires that the defendant’s misconduct be intentional or reckless. This is precisely the level of fault that New York Times requires in an action for defamation. The first amendment will not shield intentional or reckless misconduct resulting in damage to reputation, and neither will it shield such misconduct which results in severe emotional distress. We, therefore, hold that when the first amendment requires application of the actual malice standard, the standard is met when the jury finds that the defendant’s intentional or reckless misconduct has proximately caused the injury complained of. The jury made such a finding here, and thus the constitutional standard is satisfied. The defendants also argue that since the jury found that a reader could not reasonably believe that the parody was describing actual facts about Falwell, it must be an opinion and therefore is protected by the first amendment. At common law the dichotomy between statements of fact and opinion was often dispositive in actions for defamation. An action for intentional infliction of emotional distress concerns itself with intentional or reckless conduct which is outrageous and proximately causes severe emotional distress, not with statements per se. We need not consider whether the statements in question constituted opinion, as the issue is whether their publication was sufficiently outrageous to constitute intentional infliction of emotional distress. The defendants’ argument on this point is, therefore, irrelevant in the context of this tort. Ill The defendants argue that since Falwell was unable to recover for libel, he cannot recover for emotional distress. It is the defendant’s theory that emotional distress is intended to provide tort remedies to plaintiffs who have none, but that intentional infliction of emotional distress is not available when the conduct complained of falls well within the ambit of other traditional tort liability. While there is some support for the defendant’s position in at least one jurisdiction, see Fischer v. Maloney, 43 N.Y.2d 553, 373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978), we believe the law of Virginia to be otherwise. Raftery v. Scott, 756 F.2d 335 (4th Cir.1985). The elements of libel and intentional infliction of emotional distress are different and the facts in the instant case will independently support the latter tort. We are convinced, therefore, that Falwell’s failure to recover for libel does not, as a matter of law, prevent him from recovering for intentional infliction of emotional distress. Cf. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979) (en banc). The defendants also argue that Falwell presented insufficient evidence to sustain any of the elements of intentional infliction of emotional distress. We may reverse a jury verdict only when there is a complete absence of facts to support the conclusions reached by the jury. Sherril White Construction, Inc. v. South Carolina National Bank, 713 F.2d 1047 (4th Cir.1983). The four elements which must be shown in order to recover for intentional infliction of emotional distress in Virginia have been set forth in footnote 4. In his deposition, Flynt testified that he intended to cause Falwell emotional distress. If the jury found his testimony on this point to be credible, then it could have found that Falwell satisfied the first element. Evidence of the second element, outrageousness, is quite obvious from the language in the parody and in the fact that Flynt republished the parody after this lawsuit was filed. The final elements require the plaintiff to prove that the defendant’s conduct proximately caused severe emotional distress. At trial, when Falwell was asked about his reaction to the parody, he testified as follows: A. I think I have never been as angry as I was at that moment____ My anger became a more rational and deep hurt. I somehow felt that in all of my life I had never believed that human beings could do something like this. I really felt like weeping. I am not a deeply emotional person; I don’t show it. I think I felt like weeping. Q. How long did this sense of anger last? A. To this present moment. Q. You say that it almost brought you to tears. In your whole life, Mr. Falwell, had you ever had a personal experience of such intensity that could compare with the feeling that you had when you saw this ad? A. Never had. Since I have been a Christian I don’t think I have ever intentionally hurt anybody. I am sure I have hurt people but not with intent. I certainly have never physically attacked anyone in my life. I really think that at that moment if Larry Flynt had been nearby I might have physically reacted. A colleague of Falwell s, Dr. Ron Godwin, testified that Falwell’s enthusiasm and optimism visibly suffered as a result of the parody. Godwin also stated that Falwell’s ability to concentrate on the myriad details of running his extensive ministry was diminished. This testimony would enable a jury to find that Falwell’s distress was severe and that it was proximately caused by defendant’s publication of the parody. We find, therefore, that the evidence is sufficient to sustain the jury’s verdict against the defendants for intentional infliction of emotional distress. IV The defendants appeal several evidentiary rulings made by the district court during the course of trial. The primary issue involves the district court’s decision to admit Flynt’s videotaped deposition. The defendants argue that Flynt was mentally incapable of telling the truth at the time he was deposed. At common law a charge of mental incapacity could be used to challenge a witness’ competency to testify, but under the Federal Rules of Evidence this objection excludes testimony only in the rare case in which the judge finds that because of the witness’ infirmities, the proffered testimony fails to meet the relevancy requirements of Rules 104(b), 401 and 403. Consequently, in cases in which lawyers would have once argued to the judge that a witness should not be heard, they now argue to the jury that the witness should not be believed. J. Weinstein & M. Berger, 3 Weinstein’s Evidence, § 607[04] (1985). The Notes of Advisory Committee on Proposed Rules for Rule 601 offer the following instruction: No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. (Citations omitted) We agree with these authorities. The relevant question posed by Flynt’s deposition testimony was not one of competency but rather of credibility. The district court did not abuse its discretion in admitting that evidence. The defendants argue that the district court erred in admitting derogatory statements about Falwell that had been published in prior issues of Hustler. The defendants admit that these statements might be indicative of hatred or ill will toward Falwell, but they argue such evidence is not relevant to the actual malice inquiry necessitated by Falwell’s libel claim. It is, however, well established that the jury may infer from the totality of the defendant’s conduct toward a plaintiff “a predetermined and preconceived plan to malign [plaintiff’s] character” and cause him injury which is, of course, a functional definition of actual malice. Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.1969), cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). This evidence was properly admitted. The defendants also objected to the introduction of those issues of Hustler in which the parody had appeared. They maintained that the magazines were irrelevant in the first place and more prejudicial than probative in the second place. The context in which the parody was published is relevant to Falwell’s libel claim on the issue of the credibility of the statements made about Falwell and on the issue of damages. The defendants’ objection that these magazines were more prejudicial than probative must also fail, since it was necessary for the jury to see the parody in context in order to decide these issues. See Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir.1985). V At the close of evidence, the district court dismissed Falwell’s action for invasion of privacy pursuant to Va.Code § 8.01-40 (1985) on the grounds that the ad parody which appeared in Hustler did not constitute a use of Falwell’s name and likeness “for purposes of trade” within the meaning of the statute. Falwell has filed a cross appeal alleging that the district court erred in this ruling. We disagree. The Virginia statute reads, in pertinent part: Any person whose name, portrait, or picture is used without having first obtained the written consent of such person ... for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages. There are no decisions of the Virginia courts which construe this statute. This statute is, however, substantially similar to § 51 of the New York Civil Rights Law. This court has looked to the New York courts for guidance in construing the Virginia privacy statute. Brown v. American Broadcasting Co., 704 F.2d 1296 (4th Cir. 1983). In order to further the legitimate dissemination of news and information, the New York courts have routinely held that use of a public figure’s name or likeness cannot constitute a use for purposes of trade. See Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752 (1st Dep’t 1919) and Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 (1952). There is an exception to this general rule which holds that if the use of a public figure’s name or likeness is infected with substantial and material falsification, and if it is published with knowledge of such falsification or with reckless disregard for the truth, then it is a use for purposes of trade and the public figure can recover. Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 233 N.E.2d 840, 286 N.Y.S.2d 832 (1967), appeal dismissed 393 U.S. 1046, 89 S.Ct. 676, 21 L.Ed.2d 600 (1969). This exception has been further refined in the case of Hicks v. Casablanca Records, 464 F.Supp. 426 (S.D.N.Y.1978) in which the court held that in addition to containing substantial and material falsification, the use of the public figure’s name or likeness must take such a form that the reader would reasonably believe the falsification. Thus, in Spahn where the use took the form of biography, there was a use for purposes of trade, but in Hicks where the use took the form of a novel, there was no use for purposes of trade. Because the jury found that the parody in the instant case was not reasonably believable and because it contained a disclaimer, publication of the parody did not constitute a use of Falwell’s name and likeness for purposes of trade. The district court properly dismissed this claim. For these reasons, the decision of the district court is affirmed. AFFIRMED. . Defendants argue that the more vile and outrageous the statement about a public figure, the greater the protection to the publisher because the public is not apt to believe such a statement. . "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-80, 84 S.Ct. at 726. . Actual malice under New York Times is different from common law malice, which is the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. New York Times' actual malice might be better understood if designated as "constitutional malice” or "publication malice.” . In Virginia, the essential elements to be proved in an action for intentional infliction of emotional distress are that the wrongdoer’s conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with plaintiffs emotional distress; and (4) caused emotional distress that was severe. Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974). . He had recently suffered a broken leg and was on medication. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_treat
G
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. Rose MAYBURG, et al., Plaintiffs, Appellees, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellant. No. 84-1022. United States Court of Appeals, First Circuit. Argued May 9, 1984. Decided Aug. 2, 1984. Harold J. Krent, Atty., Appellate Staff, Civ. Div., Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., and Anthony J. Steinmeyer, Atty., Appellate Staff, Civ. Div., Dept, of Justice, Washington, D.C., were on brief, for defendant, appellant. Daniel S. Manning, with whom Sally Hart Wilson, was on brief, for plaintiffs, appellees. Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and PETTINE, Senior District Judge. Of the District of Rhode Island, sitting by designation. BREYER, Circuit Judge. With certain qualifications, the Medicare Act, Part A, provides eligible persons with 90 days of hospital “inpatient” coverage and 100 days of post-hospital “extended care” coverage during each “spell of illness.” 42 U.S.C. § 1395d(a). The Act defines “spell of illness” as a period (1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and (2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a skilled nursing facility. 42 U.S.C. § 1395x(a). This language seems to say that the “spell of illness” clock begins to tick when one first receives covered services; and it is not turned off and reset unless, and until, one is no longer (“an inpatient of a hospital” or) “an inpatient of a skilled nursing facility” for at least sixty days. This case asks how this language applies to a person who lives in a skilled nursing facility, a very old person who receives no medical treatment at the facility, but who can no longer be kept at home. Does her “spell of illness” clock, once started, never turn off? Once she uses up the full treatment allowance offered for a single “spell of illness” (and a lifetime reserve), is she out of luck? The Department of Health and Human Services (“HHS”) believes so. It has long interpreted the words “inpatient of a skilled nursing facility” to include one who receives only “custodial” care in the facility, i.e., one who simply lives there. And HHS believes that such people consequently cannot reset the “spell of illness” clock. The plaintiff in this case, Rose Mayburg, is an 88 year old woman who lives in a “skilled nursing facility” but who receives only “custodial” care. Medicare Part A does not reimburse the cost of this custodial care. But Medicare Part A does pay for any hospital (and related) treatment. Since April 1977 she has been admitted to a hospital at least four times, sometimes for fever and sometimes because of rectal bleeding. In each instance she returned to the nursing facility where she lives. Blue Cross told her that Medicare Part A would not cover her after March 4, 1980, for she had used up the benefits pertaining to one “spell of illness;” and she had elected not to use her special lifetime allowance; since she lives in a nursing home, her “spell of illness” clock could not be reset. She appealed this decision through HHS and finally to the district court. The district court found that HHS erroneously interpreted the statute. The words “inpatient of a skilled nursing facility” do not apply to one who receives only custodial care at a skilled nursing facility. Thus, such a person’s “spell of illness” clock turns off (after sixty days of no treatment) and begins to run again. 574 F.Supp. 922. HHS appeals this holding. After considering the arguments and reading the legislative history of the statute, we conclude that the district court is correct. I We can state our reasons for agreeing with the district court briefly. First, the court’s decision is consistent with the overwhelming weight of judicial authority. Three separate circuits, the Second, Third, and Sixth, as well as many district courts, have rejected the Secretary’s interpretation of the statute. Levi v. Heckler, 736 F.2d 848 (2d Cir.1984) (per curiam); Kaufman v. Harris, 731 F.2d 370 (6th Cir.1984) (per curiam); Friedberg v. Schweiker, 721 F.2d 445 (3rd Cir.1983); Henningson v. Heckler, Slip Op. No. 83-3077 (N.D.Iowa Oct. 27, 1983); Steinberg v. Schweiker, 549 F.Supp. 114 (S.D.N.Y.1982); Estate of Picard v. Secretary of Health and Human Services, [1980-1981 Transfer Binder] Medicare & Medicaid Guide (CCH) 1130, 722 (S.D.N.Y. Sept. 2, 1980); Levine v. Secretary of Health, Education and Welfare, 529 F.Supp. 333 (W.D.N.Y.1981); Burt v. Secretary of Health, Education and Welfare, No. S-77-619 (E.D.Cal. Feb. 22, 1979); Eisman v. Mathews, 428 F.Supp. 877 (D.Md. 1977); Gerstman v. Secretary of Health, Education and Welfare, 432 F.Supp. 636 (W.D.N.Y.1977); Hasek v. Mathews, [1977-1978 Transfer Binder] Medicare & Medicaid Guide (CCH) 1128,345 (N.D.Cal. Feb. 8, 1977); Hardy v. Mathews, [1976-1977 Transfer Binder] Medicare & Medicaid Guide (CCH) 1128,031 (D.Minn. July 28, 1976). Only two district courts have upheld the Secretary, and neither of their opinions analyzes the issue in much detail. Stoner v. Califano, 458 F.Supp. 781 (E.D. Mich.1978); Brown v. Richardson, 367 F.Supp. 377 (W.D.Pa.1973). Second, the court’s decision adopts the meaning that the plain language of the statute suggests. The word “patient” ordinarily refers to one who receives treatment. Webster defines an “inpatient” as “a patient... who receives lodging and food as well as treatment.” Webster’s Third New International Dictionary 1167 (1976 unabridged). One like Mrs. May-burg, who receives only custodial care, receives “lodging and food” but not “treatment.” Hence, ordinary English usage places her outside the scope of the term “inpatient.” Third, the Secretary’s interpretation creates a curious anomaly. Had Mrs. May-burg lived at home, sixty days after she was released from the hospital (and after any “extended care” was no longer necessary), her “spell of illness” would have terminated and the clock would have been reset. Because she lived in a nursing home, the Secretary believes the “spell” does not terminate. Yet, there is no medical difference between the actual Mrs. Mayburg who lives in the nursing home and the hypothetical Mrs. Mayburg who lives at home. Why should the place of residence then create a difference in result? Fourth, the administrative and technical arguments that the Secretary advances in favor of a more technical meaning for “inpatient” are weak. The Secretary points out that administratively it is easier to determine (1) whether a person is living in a nursing home than to determine (2) whether a person living in a nursing home is receiving only custodial care or treatment as well. But, the force of this administrative argument is weakened by the fact that the Secretary typically must determine treatment levels anyway — to decide, for example, when a “spell of illness” begins or whether expenses are to be reimbursed. The Secretary also points to the use of “inpatient” in two neighboring sections of the Act, defining “extended care services,” 42 U.S.C. § 1395x(h) and “skilled nursing facility,” 42 U.S.C. § 1395x(j). But the Secretary does not demonstrate any significant administrative or interpretive problem that would arise if the word “inpatient” in those sections, as well as in the “spell of illness” section, were interpreted to refer to a resident who receives some form of treatment. {See Appendix A for text.) Juxtaposing these sections reveals no linguistic anomaly sufficient to justify the practical anomaly to which the Secretary’s interpretation leads. Fifth, the district court’s position is consistent with the general principle that the Social Security Act should be broadly construed, so as to carry out Congress’s intent to provide medical expense coverage for all qualifying individuals. Rodriguez v. Celebrezze, 349 F.2d 494, 496 (1st Cir.1965); Rowe v. Finch, 427 F.2d 417, 419 (4th Cir. 1970). II The Secretary makes two sets of arguments in favor of her interpretation that warrant further discussion. a. She claims that the legislative history. of the statute supports her interpretation of the word “inpatient,” to include all who live at a skilled nursing facility. We have read the history, however, and have not found significant support for her interpretation. Congress enacted the statutory provision in 1965. The parties have found nothing in the legislative history of that 1965 statute that is on point. The 1965 history suggests, at most, that Congress did not intend to finance longterm hospital stays; but, any such intent is consistent with either “inpatient” definition. For the most part the legislative history that the Secretary cites developed two years later in 1967 when Congress considered amending the statute. The President of Blue Cross then testified, for example, that present law does not authorize any distinction between a beneficiary who is receiving skilled nursing care and other services in an extended care facility and one who [simply] resides in a nursing home____ Once the resident who is domiciled in such a nursing home has used up his presently authorized... days of extended-care facility benefits, he cannot start a new spell of illness and become entitled to further care [unless he changes his residence]---- Proposed amendment to the Social Security Act: Hearings before the Senate Comm, on Finance, 90th Cong. 1st Sess. 915, 919 (1967). And, other witnesses testified similarly. Id. at 920, 924 (statement of Walter McNerney, President, Blue Cross Association); id. at 1023, 1027 (statement of Garland Bonin, Commissioner of the Louisiana Dept, of Public Welfare); id. at 1028 (colloquy between Senator Curtis and Mr. Roberts, Blue Cross Welfare Services Director); id. at 1836, 1840-41 (statement of Ed Walker, President, American Nursing Home Association); The President’s Proposals for Revision of the Social Security System, Hearings before the House Comm, on Ways and Means, 90th Cong., 1st Sess. 1003, 1006-07 (statement of Thomas Jenkins, President, American Association of Homes for the Aging); id. at 2308, 81 (letter to Rep. Wilbur D. Mills from Greater Miami Jewish Federation). This history is beside the point, however, for by 1967 HHS had made its position clear. It had interpreted the 1965 statute to reach the result that these witnesses opposed. It is no wonder then that they described present law in those terms and asked for legislative relief. Their description does not demonstrate that HHS had correctly interpreted the 1965 statute. At most, their descriptions, their effort to obtain legislation, and Congress’s failure to amend, suggests a congressional “acquiescence” in the HHS interpretation. This “acquiescence” is arguably also evidenced by the fact that a House of Representatives Report, written in 1967, came close to adopting HHS’s description of present law. In explaining Congress’ decision to extend the number of days of treatment that would be covered, the Report states: The proposed increase in the number of days of inpatient hospital benefits is intended to help meet the problem faced by a beneficiary who requires long-term care in an extended care facility and whose spell of illness continues throughout his stay in the facility because he has not been out of a hospital or any institution that is primarily engaged in providing skilled nursing care and related services for 60 consecutive days. H.R.Rep. No. 207, 90th Cong., 1st Sess. 44 (1967); accord S.Rep. No. 744, 90th Cong., 1st Sess. 70 (1967), U.S.Code Cong. & Admin.News 1967, p. 2834. The Secretary points out that Congress could then have overturned the HHS interpretation legislatively, but it did not do so. It is a mistake, however, to equate a congressional failure to act with congressional action. Congress has neither the time nor the inclination to correct every administrative misinterpretation of a prior statute. Moreover, given the many stages through which a bill must pass before emerging from Congress, it is typically easier to halt legislation than to enact it. And, varying potential impacts of proposed laws among varying groups can create complex sets of reasons behind opposition to a legislative proposal. This is to say that failure to pass a “revising amendment” does not automatically show that any member of Congress ever thought that an existing administrative interpretation of present law was desirable or correct, much less that Congress intended to “underwrite” it. Although “acquiescence” is entitled to some weight in interpreting a statute, that weight cannot be conclusive. See SEC v. Sloan, 436 U.S. 103, 119-23, 98 S.Ct. 1702, 1712-14, 56 L.Ed.2d 148 (1977). And, where acquiescence has been deemed significant, there is typically far more evidence of congressional intent than that which is present here. Compare Bob Jones University v. United States, 461 U.S. 574,---, 103 S.Ct. 2017, 2032-34, 76 L.Ed.2d 157 (1983) (finding acquiescence) with Aaron v. SEC, 446 U.S. 680, 694 n. 11, 100 S.Ct. 1945, 1954 n. 11, 64 L.Ed.2d 611 (1980) (finding no acquiescence) and SEC v. Sloan, 436 U.S. at 119—23, 98 S.Ct. at 1712-14 (same). The legislative history does not lead us to change our conclusion. b. The Secretary also argues that this court should simply defer to HHS’s interpretation of the statute. She points to a line of Supreme Court cases that, she argues, compel such deference. See, e.g., FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 39, 102 S.Ct. 38, 45-6, 70 L.Ed.2d 23 (1981) (inquiry is “whether the Commission’s construction was ‘sufficiently reasonable’ to be accepted by a reviewing court”); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 796, 63 L.Ed.2d 22 (1980) (Federal Reserve Board’s interpretation of its statute will control unless “demonstrably irrational”); Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979) (if Labor Board’s construction of its statute is “reasonably defensible,” it should not be rejected); Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969) (agency’s construction should be followed “unless there are compelling indications that it is wrong”). See also Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). A different line of Supreme Court cases, however, cautions us that “deference” is not complete; sometimes a different, and more independent judicial attitude is appropriate. Bureau of Alcohol, Tobacco & Firearms v. Federal Labor Relations Authority, — U.S. -, -, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (court reviewing agency interpretation of law should not “slip into judicial inertia” or “rubberstamp” the agency); American Ship Building Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1964) (deference owed to agency “cannot be allowed to slip into a judicial inertia”); NLRB v. Brown Food Store, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1964) (reviewing courts “are not obliged to stand aside and rubber stamp” the agency); NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 499-500, 80 S.Ct. 419, 432-33, 4 L.Ed.2d 454 (1960) (recognition of administrative power “cannot exclude all judicial review” of agency’s actions); see also NLRB v. Highland Park Manufacturing Co., 341 U.S. 322, 325-26, 71 S.Ct. 758, 760-61, 95 L.Ed. 969 (1951); Davies Warehouse Co. v. Bowles, 321 U.S. 144, 156, 64 S.Ct. 474, 481, 88 L.Ed. 635 (1944). Moreover, the Administrative Procedure Act states that “the reviewing court,” not the agency, “shall decide all relevant questions of law.” 5 U.S.C. § 706. In order to apply correctly what Judge Friendly has described as conflicting authority, (see Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976); see also 4 K. Davis, Administrative Law Treatise § 30.1 (1958 & 1982 Supp.)), we must ask why courts should ever defer, or give special weight, to an agency’s interpretation of a statute’s meaning. And, here there are at least two types of answers, neither of which supports more than a modicum of special attention here. First, one might argue that specialized agencies, at least sometimes, know better than the courts what Congress actually intended the words of the statute to mean. Thus, in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), the Supreme Court wrote We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. Id. at 140, 65 S.Ct. at 164. The fact that a question is closely related to an agency’s area of expertise may give an agency greater “power to persuade.” Its interpretation may also carry more persuasive power if made near the time the statute was enacted when congressional debates and interest group positions were fresh in the administrators’ minds. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796 (1933). An interpretation that has proved to be administratively workable because it is consistent and longstanding is typically more persuasive, Massachusetts Trustees of Eastern Gas & Fuel Associates v. United States, 377 U.S. 235, 241, 84 S.Ct. 1236, 12 L.Ed.2d 268 (1964), as is an interpretation that has stood throughout subsequent reenactment of the statute, NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, 94 S.Ct. 1757, 1762, 40 L.Ed.2d 134 (1974). See 2 K. Davis, Administrative Law Treatise § 7:14 (1979). All these factors help to convince a court that the agency is familiar with the context, implications, history and consequent meaning of the statute. But, still, under Skidmore the agency ultimately must depend upon the persuasive power of its argument. The simple fact that the agency has a position, in and of itself, is of only marginal significance. In the case before us, the fact that the agency’s interpretation is consistent, longstanding, and left untouched by Congress all count in its favor. Nonetheless, HHS points to no significantly adverse administrative consequences that might flow from the contrary interpretation. Under these circumstances, the considerations mentioned in Part I are simply more persuasive. They convince us, as they have convinced other courts, that in this instance, HHS has not interpreted the statute as Congress meant. Second, a court might give special weight to an agency’s interpretation of a statute because Congress intended it to do just that in respect to the statute in question. In Social Security Board v. Nierotko, 327 U.S. 358, 66 S.Ct. 637, 90 L.Ed. 718 (1946), for example, the Court noted that an agency, “when it interprets a statute” may act “as a delegate to the legislative power.” And the Court added that “such interpretive power may be included in the agencies’ administrative functions.” Id. at 369, 66 S.Ct. at 643. If Congress expressly delegates a law-declaring function to the agency, of course, courts must respect that delegation. Schweiker v. Gray Panthers, 453 U.S. 34, 44, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981); Batterton v. Francis, 432 U.S. 416, 424-26, 97 S.Ct. 2399, 2404-06, 53 L.Ed.2d 448 (1977); 2 K. Davis, supra at § 7:8 (1979). But, if Congress is silent, courts may still infer from the particular statutory circumstances an implicit congressional instruction about the degree of respect or deference they owe the agency on a question of law. See Chevron v. Natural Resources Defense Council, Inc., — U.S.-, -, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (U.S.1984). They might do so by asking what a sensible legislator would have expected given the statutory circumstances. The less important the question of law, the more interstitial its character, the more closely related to the everyday administration of the statute and to the agency’s (rather than the court’s) administrative or substantive expertise, the less likely it is that Congress (would have) “wished” or “expected” the courts to remain indifferent to the agency’s views. International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 566 n. 20, 99 S.Ct. 790, 800 n. 20, 58 L.Ed.2d 808 (1979); Constance v. Secretary of Health and Human Services, 672 F.2d 990, 995-96 (1st Cir. 1982); L. Jaffe, Judicial Control of Administrative Action 560-64 (1965). Conversely, the larger the question, the more its answer is likely to clarify or stabilize a broad area of law, the more likely Congress intended the courts to decide the question themselves. Compare NLRB v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944) with Pack ard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947). In this instance, the “spell of illness” provision is central to the statutory scheme. The interpretive skills called for seem primarily judicial, not administrative, in nature. The “administrative” implications seem trifling, or non-existent. And, nothing else suggests any specific congressional intent to place the power to construe this statutory term primarily in the agency’s hands. Thus, the arguments for completely deferring to the agency’s interpretation of the statute are not strong here. In sum, we have paid particular attention to HHS’s arguments; we have taken note of its experience administering the statute and of its administrative needs; we have reached our decision with all those factors in mind. Having done so, we nonetheless believe, for the reasons stated in Part I, that the agency’s interpretation of the statute is incorrect. Ill Believing that the Secretary was pursuing a policy of “nonacquiescence” under which she would refuse either to appeal or to apply (except in the particular case) adverse judicial decisions, Mayburg asked the district court to certify her suit as a class action on behalf of all Medicare recipients in her administrative region who had been or would be denied benefits because of the Secretary’s interpretation. The district court agreed to certify the class because the Secretary had “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole....” Fed.R.Civ.P. 23(b)(2). It defined the class as all persons residing in Region I of the Department of Health and Human Services who, having presented claims for Medicare Part A benefits, have been or will be denied such benefits based on a determination that they have had a single “spell of illness” which continued while they resided in a skilled nursing home, even though they were receiving custodial rather than skilled nursing care. The effect of the certification was simply to require the Secretary to apply the court’s interpretation of the statute in all similar cases. The Secretary argues that the district court did not have jurisdiction over all members of this class; in particular, it lacked jurisdiction over claims of those persons who had not yet exhausted their administrative remedies and of claims amounting to less than $1,000. The district court believed that it had jurisdiction over all such claims under either the judicial review provision of the Medicare Act, 42 U.S.C. § 1395ff(b) (incorporating 42 U.S.C. § 405(g)), or the Mandamus and Venue Act, 28 U.S.C. § 1361. At oral argument, counsel for the Secretary undercut the premise upon which the class was certified, for in response to questions about “non-acquiescence” he stated the following: The Secretary has followed the district court order in this case. She has every intention of doing so if she loses on appeal as well. In addition, in the Third Circuit case which we lost, she has begun to implement the content of the adverse order of the Third Circuit Court of Appeals. There is no reason to think that she will not [sic] do otherwise in this case and I’ve been told that from everything that they can tell so far they intend to follow an adverse decision by this court, unless, of course, they seek certiorari. In context, it is apparent that the government wanted to say either that “[t]here is no reason to think that she will... do otherwise” or “[t]here is no reason to think that she will not do [the same].” (The Secretary should inform us if that is not so). And, as so read, we take this statement as an abandonment of any policy of “non-acquiescence” in this circuit. For this reason we see no need to explore the difficult jurisdictional questions that this case raises. Both sides agree that mandamus is appropriate only when no other adequate remedy is available. Cervoni v. Secretary of Health, Education and Welfare, 581 F.2d 1010, 1019 (1st Cir.1978); see United States ex rel Girard Trust Co. v. Helvering, 301 U.S. 540, 544, 57 S.Ct. 855, 857, 81 L.Ed. 1272 (1937). The Secretary’s statement means that other adequate remedies exist for all members of the class who might be affected by today's decision. Each member can simply invoke ordinary administrative procedures, for the Secretary intends to follow our interpretation of the “spell of illness” provisions, subject only to the minor qualifications contained in the quoted dialogue. Thus, mandamus jurisdiction does not extend to any of the claims of this case. Without mandamus jurisdiction, the court’s authority to consider claims is controlled by 42 U.S.C. § 1395ff (incorporating 42 U.S.C. § 405(g)). This section expressly denies judicial review “to an individual... if the amount in controversy is less than $1,000.” 42 U.S.C. § 1395ff(b)(2). Section 405(g), which § 1395ff(b)(l) incorporates, further limits judicial review to “final decision[s] of the Secretary ____” 42 U.S.C. § 405(g). At a minimum these words require that the Secretary take a final position on a contested matter. Heckler v. Ringer, — U.S. ---, ---, 104 S.Ct. 2013, 2021-25, 80 L.Ed.2d 622 (U.S.1984); Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). The Secretary’s agreement to follow this court’s decision means that she has taken no final position adverse to future claimants who will present the “spell of illness” question. Thus, under the circumstances, we conclude that the class should not extend to future claimants or those whose claims are for less than $1,000. As a final matter, the Secretary argues that, as a matter of comity, we should narrow the class to exclude beneficiaries living in Vermont and Connecticut. These states, although part of Region I of the Department of Health and Human Services, lie in the Second Circuit. Since the Second Circuit has recently interpreted the “spell of illness” provision the same way we have, Levi v. Heckler, supra, we see no need to narrow the class in this respect. In sum, the class should consist only of those persons denied benefits of more than $1,000 on the basis of a final determination that they have had a single “spell of illness” which continued while “they resided in a skilled nursing facility, even though they were receiving custodial rather than skilled nursing care.” The judgment of the district court is Affirmed in part, and vacated and remanded in part for further proceedings consistent with this opinion. APPENDIX A 42 U.S.C. Section 1395x(a): (a) Spell of illness The term “spell of illness” with respect to any individual means a period of consecutive days— (1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and (2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a skilled nursing facility. 42 U.S.C. Section 1395x(h): (h) Extended care services The term “extended care services” means the following items and services furnished to an inpatient of a skilled nursing facility and (except as provided in paragraphs (3) and (6)) by such skilled nursing facility— (1) nursing care provided by or under the supervision of a registered professional nurse; (2) bed and board in connection with the furnishing of such nursing care; (3) physical, occupational, or speech therapy furnished by the skilled nursing facility or by others under arrangements with them made by the facility; (4) medical social services; (5) such drugs, biologicals, supplies, appliances, and equipment, furnished for use in the skilled nursing facility, as are ordinarily furnished by such facility for the care and treatment of inpatients; (6) medical services provided by an intern or resident-in-training of a hos- • pital with which the facility has in effect a transfer agreement (meeting the requirements of subsection (l) of this section), under a teaching program of such hospital approved as provided in the last sentence of subsection (b) of this section, and other diagnostic or therapeutic services provided by a hospital with which the facility has such an agreement in effect; and (7) such other services necessary to the health of the patients as are generally provided by skilled nursing facilities; excluding, however, any item or service if it would not be included under subsection (b) of this section if furnished to an inpatient of a hospital. 42 U.S.C. Section 1395x0): (j) Skilled nursing facility The term “skilled nursing facility” means (except for purposes of subsection (a)(2) of this section) an institution (or a distinct part of an institution) which has in effect a transfer agreement (meeting the requirements of subsection (l) of this section) with one or more hospitals having agreements in effect under section 1395cc of this title and which— (1) is primarily engaged in providing to inpatients (A) skilled nursing care and related services for patients who require medical or nursing care, or (B) rehabilitation services for the rehabilitation of injured, disabled, or sick persons; (2) has policies, which are developed with the advice of (and with provision of1 review of such policies from time to time by) a group of professional personnel, including one or more physicians and one or more registered professional nurses, to govern the skilled nursing care and related medical or other services it provides; (3) has a physician, a registered professional nurse, or a medical staff responsible for the execution of such policies; (4) (A) has a requirement that the health care of every patient must be under the supervision of a physician, and (B) provides for having a physician available to furnish necessary medical care in case of emergency; (5) maintains clinical records on all patients; (6) provides 24-hour nursing service which is sufficient to meet nursing needs in accordance with the policies developed as provided in paragraph (2), and has at least one registered professional nurse employed full time; (7) provides appropriate methods and procedures for the dispensing and administering of drugs and biologicals; (8) has in effect a utilization review plan which meets the requirements of subsection (k) of this section; (9) in the case of an institution in any State in which State or applicable local law provides for the licensing of institutions of this nature, (A) is licensed pursuant to such law, or (B) is approved, by the agency of such State or locality responsible for licensing institutions of this nature, as meeting the standards established for such licensing; (10) has in effect an overall plan and budget that meets the requirements of subsection (z) of this section; (11) complies with the requirements of section 1320a-3 of this title; (12) cooperates in an effective program which provides for a regular program of independent medical evaluation and audit of the patients in the facility to the extent required by the programs in which the facility participates (including medical evaluation of each patient’s need for skilled nursing facility care); (13) meets such provisions of such edition (as is specified by the Secretary in regulations) of the Life Safety Code of the National Fire Protection Association as are applicable to nursing homes; except that the Secretary may waive, for Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_state
41
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". Bernice R. SMITH, Appellant, v. Robert H. FINCH, Secretary of Health, Education and Welfare, and Lena M. Smith, Appellees. No. 14167. United States Court of Appeals, Fourth Circuit. May 19, 1970. John B. Culbertson, Greenville, S. C„ on the brief for appellant. William D. Ruckelshaus, Asst. Atty. Gen., Joseph 0. Rogers, Jr., U. S. Atty., Kathryn H. Baldwin and Robert M. Feinson, Washington, D. C., on the brief for appellees. Before WINTER, CRAVEN and BUTZNER, Circuit Judges. PER CURIAM: In this appeal we find oral argument unnecessary and summarily affirm the judgment of the district court. The Secretary’s finding that the claimant was not the widow of the deceased, and, therefore, not entitled to Social Security Widows benefits, is amply supported by the record. Cain v. Secretary, 377 F.2d 55 (4 Cir. 1967). Affirmed. . Although it would appear that the finding that the adverse party Lena Smith is the widow of Melvin Smith is equally well supported, that issue is not before us. Since the claimant must establish her own eligibility for benefits, it is irrelevant whether she can show, on grounds independent of those on which she claims eligibility, the ineligibility of another party. 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_origin
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. SOUTHERN STEVEDORING CO., Inc. et al. v. VORIS et al. VORIS et al. v. SOUTHERN STEVEDORING CO., Inc. et al. No. 13410. United States Court of Appeals Fifth Circuit. June 27, 1951. Rehearing Denied July 30, 1951. John R. Brown, Edward D. Vickery, Houston, Tex., for appellant. Morton Liftin, Morton Hollander, Attorney, Department of Justice, Washington, D. C., Brian S. Odem, U. S. Atty., W. G. Winter, Jr., Asst. U. S. Atty., Arthur J. Mandell, all of Houston, Tex., for ap-pellee. Before HUTCHESON, Chief Judge, and SIBLEY and STRUM, Circuit Judges. STRUM, Circuit Judge. Claiming that he severely strained his back on June 1, 1948, while lifting a sack of sugar in the performance of his duties as a longshoreman employed by appellant Southern Stevedoring Company on board a vessel, A. W. Lane was awarded past and continuing compensation by a deputy commissioner under sec. 8 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 908. The district court sustained the award, and the employer and its insurance carrier appealed. Vigorously contested issues before the deputy commissioner were whether or not claimant is suffering from a ruptured in-tervertebral disc, and if so whether that condition was caused by lifting the sack of sugar, or by lifting iron pipe on another job approximately one year later. Two doctors were called by appellants, one of whom examined claimant on October 5, 1948, and again on July 22, 1949; the other on June 1, 1948, the day of claimant’s injury in lifting sugar, and again on August 23, 1948. One of these doctors testified by oral deposition, the other testified in person before the deputy commissioner. Both were fully cross examined. Each of them testified that claimant did not sustain a ruptured interverte-bral disc as a result of the injury of June 1, 1948. In contradiction of this, claimant offered, and the deputy commissioner received in evidence over appellants’ objection, an ex parte letter report from the Superintendent of Jefferson Davis Hospital, dated August 1, 1949, addressed to claimant’s attorneys, purporting to give claimant’s case history and concluding: “Possible disc L-Si right. Believe he warrants myelography and perhaps exploration. * * * Dr. Bradford has seen and agrees except that he feels that the L-4 and L-5 space is involved. He advises direct exploration.” Also over appellants’ objection, the deputy commissioner received in evidence an ex parte letter from Dr. F. Keith Bradford, dated October 17, 1949, addressed to claimant’s attorneys, purporting to give claimant’s case history and the doctor’s findings based upon his examination of claimant. This letter concludes: “The patient had the definite history and physical findings of a ruptured intervertebral disc. It is reasonable to assume that the nerve compression was precipitated by the lifting of iron pipe as described by patient. The clinical localization of the disc rupture is on the right side at the 4th lumbar disc.” There was no medical testimony on the subject other than that above referred to. On November 23, 1949, the deputy commissioner found that claimant “sustained personal injury resulting in a severe strain of his right lower back caused by bending and lifting a sack of sugar, while in an awkward position; that subsequent medical examinations indicate that a ruptured intervertebral disc has resulted from this injury at about the 4th lumbar vertebra * * *, although other medical evidence indicates that his symptoms may have been prolonged due to prostate or other infection.” The finding as to a ruptured intervertebral disc near the fourth lumbar vertebra, upon which the deputy commissioner apparently based his award for continuing compensation, was precisely as stated by the doctor in his ex parte letter to claimant’s attorneys, the deputy commissioner apparently rejecting the contrary testimony of the other two doctors who .testified in person. The two ex parte letter reports above referred to were not under oath. The authors thereof did not take the stand, nor were appellants accorded an opportunity to cross examine them, although both of them resided in Houston, where the hearings were held, and apparently were conveniently available. These circumstances were vigorously urged as objections to the admissibility of the letters, but the objections were overruled. Appellants reassert them here. We are aware that sec. 23(a) of the Act, 33 U.S.C.A. 923(a), provides that in conducting a hearing the deputy commissioner “shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter; but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties. * * * ” This relaxation of the ordinary rules of procedure and evidence does not invalidate the proceedings, provided the substantial rights of the parties are preserved. Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 59 S.Ct. 206, 85 L.Ed. 127, headnote 14. But this general .provision does not, indeed it could not, dispense with a right so fundamental in -Anglo-Saxon law as the right of cross examination. Although administrative agencies may be relieved from observance of strict common law rules of evidence, their hearings must still be conducted consistently with fundamental principles which inhere in due process of law. Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63; McCarthy Stevedoring Corp. v. Norton, D.C., 40 F.Supp. 957; L. B. Wilson, Inc., v. Federal Communications Comm., 83 U.S.App.D.C. 176, 170 F.2d 793; Kwasizur v. Cardillo, 3 Cir., 175 F.2d 235. See also Crowell v. Benson, 285 U. S. 22, 52 S.Ct. 285, 76 L.Ed. 598. 'By admitting these ex parte statements, upon which the deputy commissioner apparently based his decision, at least in part, the right of cross examination was effectively denied appellants upon a crucial issue. Even under the liberal provisions of the Longshoremen’s Act, we can not sanction this practice. As was said in Interstate Commerce Commission v. Louisville & N. R. R. Co., 227 U.S. 88, 33 S.Ct. 185, 187, 57 L.Ed. 431, “But the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended. * * * All parties * * * must be given opportunity to cross-examine witnesses * * Moreover, sec. 7(c) of the Administrative Procedure Act, 5 U.S. C.A. § 1006(c), expressly provides that “Every party shall have the right * * * to conduct such cross-examination as may be required for a full and true disclosure of the facts.” On the facts, this case is quite unlike, Reynolds v. U. S. ex rel. Koleff, 7 Cir., 70 F.2d 39, where the right to cross examine witnesses was in effect waived. Here, appellants insisted upon their right to cross examine, and throughout the case preserved their exception to the refusal thereof.’ Nor is what is here said at all inconsistent with Willapoint Oysters v. Ewing, 9 Cir., 174 F.2d 676, or Montana Power Co. v. Federal Power Comm., D.C.Cir., 185 F.2d 491. With the two ex parte letters excluded, as they should have been, the deputy commissioner’s finding that “a ruptured intervertebral disc has resulted from his (claimant’s) injury at about the fourth vertebra,” would be without substantial evidence to support it. Such a finding is not in accordance with law, and it is the court’s duty to set it aside. Sec. 10 (e), Administrative Procedure Act, 5 U. S.C.A. § 1009(e); Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456; Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 127, headnote 14; O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S.Ct. 470; Delta Stevedoring Co. v. Henderson, 5 Cir., 168 F.2d 872. Even if it be assumed that the two witnesses last above mentioned would testify on the stand exactly as they have written the facts in their letters, appellants are still entitled to ascertain on cross examination whether there are any additional or explanatory facts, and to test the knowledge and competence of the witnesses and the basis of their professional opinions. For the reasons stated, the judgment appealed from must be reversed, and the cause remanded, without prejudice to further proceedings before the deputy commissioner, and in the district court, consistent with this opinion. The cause is to be retained in the district court until the deputy commissioner has an opportunity to conduct further hearings in the matter, after which the court should act upon the record as thus supplemented. What has been said also disposes of the cross appeal. Reversed and Remanded. . Other than the medical testimony above referred to, the only evidence as to the nature of claimant’s injury was that of claimant himself, of which the following is typical: “Q. Will you describe, Mr. Lane, the symptoms, that is, where did your back hurt after you lifted the sugar? A. It seemed like it hurt in the lower back or something — I don’t know how it did but it seemed like it pulled loose or something — it seemed like something pulled loose.” Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_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. Lloyd DUNKELBERGER, Appellant, v. DEPARTMENT OF JUSTICE, et al. No. 88-5356. United States Court of Appeals, District of Columbia Circuit. Argued Jan. 12, 1990. Decided June 29, 1990. Deborah R. Linfield, New York City, with whom Wallace A. Christensen, Washington, D.C., was on the brief, for appellant. Nathan Dodell, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and R. Craig Lawrence and John D. Bates, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees. Before SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges. Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: Lloyd Dunkelberger, a reporter for the New York Times Regional Newspaper Group, appeals the district court’s grant of summary judgment denying his request for information from the Federal Bureau of Investigation pursuant to the Freedom of Information Act. Dunkelberger had sought information relating to the alleged suspension of an FBI agent for misconduct that supposedly occurred in connection with an investigation of a prominent state official and his nephew. Because an in camera inspection of certain submitted personnel materials revealed no information warranting disclosure, we affirm the district court’s decision. I. BACKGROUND The facts of this case spring from a Federal Bureau of Investigation probe of former Florida State Senate President Mallory Horne and his nephew, Melvin Horne, focusing on their alleged laundering of money on behalf of drug smugglers. The FBI investigation resulted in a highly publicized trial in which Mallory Horne was acquitted and his nephew convicted. Both before and after the trial, Senator Horne maintained that the FBI had acted improperly in its investigation, specifically in its use of undercover agents, including Special Agent Matthew Pellegrino. The FBI denied an informal request from Dun-kelberger for information concerning any administrative disciplinary action that might have been taken against Pellegrino relating to his participation in the Horne investigation. Thereupon, in October 1987, Dunkelberger made a formal request to the FBI under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), for access to FBI records relating to any such disciplinary action. In the request, Dunkelberger specifically asked for copies of the letter of reprimand or suspension that he alleged Pellegrino had received. FOIA provides that an agency, upon request, must make its records “promptly available to any person” requesting them, provided the request “reasonably describes” the records sought. 5 U.S.C. § 552(a)(3). FOIA exempts nine specific categories of information from its disclosure requirements. Two such exemptions are relevant here. One protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6) (“Exemption 6”). The other exempts “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”). In denying Dunkelberger’s request, the FBI stated that it could neither confirm nor deny the existence of the records sought by Dunkelberger, and stated that if any such records did exist, their disclosure could constitute an unwarranted invasion of personal privacy and thus would be protected under Exemptions 6 and 7(C). Dunkelber-ger took an administrative appeal of this decision to the Assistant Attorney General in charge of the Office of Legal Policy, who affirmed the initial decision denying disclosure under both exemptions. Dunkelberger then brought suit against the Department of Justice to compel disclosure pursuant to 5 U.S.C. § 552(a)(4)(B). The district court granted summary judgment in favor of the Department. Dunkelberger v. Department of Justice, Civ. No. 88-1432, mem. op., 1988 WL 104959 (D.D.C. Sept. 30, 1988) (“Memorandum Opinion”). The court conducted an in camera investigation of certain personnel materials submitted by the FBI and found that they were “compiled for law enforcement purposes” and thus satisfied the threshold requirement for application of Exemption 7. Id. at 2. This aspect of the ruling is not contested by the parties. The court then determined, on the basis of its in camera inspection, that Pellegrino’s privacy interest “significantly outweigh[ed]” any public interest in disclosure, and observed that the public interest in the proper review of the FBI’s activities “can be adequately addressed by the agency’s congressional oversight committees.” Memorandum Opinion at 3. Having found the information at issue “clearly within the purview” of Exemption 7(C), id., the court entered summary judgment in favor of the Department without reaching its alternative claim that the material was protected from disclosure by Exemption 6. On appeal, Dunkelberger asserts that the district court erred (a) in refusing to order the release of the requested documents and (b) in relying on congressional oversight committees to protect the public interest in the adequate policing of agency activities. As the court’s reference to the role of congressional oversight committees was not critical to its decision, we will address only the first claim of error. II. DISCUSSION Dunkelberger does not suggest that the FBI withheld any document from the district court that was relevant to his request. Therefore, the issue before us is whether the court was correct in ruling that the documents examined in camera were not subject to disclosure under Exemption 7(C). We do not address the applicability of Exemption 6 because the district court did not rule on that issue. Exemption 7(C) excludes from mandatory disclosure records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... could reasonably be expected to constitute an unwarranted invasion of personal privacy.... 5 U.S.C. § 552(b)(7)(C). As the statutory language makes clear, whether disclosure of requested law enforcement records is required turns on whether any such disclosure could reasonably be expected to result in an “unwarranted” invasion of privacy. The Supreme Court’s recent decision in United States Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), confirms that the specific reference to “unwarranted” in Exemption 7(C) “indieate[s] that a court must balance the public interest in disclosure against the interest Congress intended the Exemption to protect.” Id. 109 S.Ct. at 1483. Under the balancing test adopted by this circuit in Stern v. FBI, 737 F.2d 84, 91-92 (D.C.Cir.1984), a court must first identify the privacy interests at stake. Stern recognizes that a government employee has at least a minimal privacy interest in his own employment record and evaluation history, which includes a general interest in the nondisclosure of diverse bits and pieces of information, both positive and negative, that the government, acting as an employer, has obtained and kept in the employee’s personnel file. 737 F.2d at 91. Exemption 7(C) takes particular note of the “strong interest” of individuals, whether they be suspects, witnesses, or investigators, in not being associated unwarrantedly with alleged criminal activity.” Id. at 91-92. Second, the court must identify the public interest in disclosure. In Stern we dealt with a request for the identity of several FBI employees allegedly investigated in connection with the possible cover-up of illegal FBI surveillance activities. We noted that the public interest in the disclosure of the identities of the censured employees is only in knowing who the public servants are that were involved in the governmental wrongdoing, in order to hold the governors accountable to the governed. 737 F.2d at 92 (emphasis in original). We went on to distinguish this interest in knowing the identity of the disciplined employees “from other public interests that may arise in requests for disclosure of government investigatory records,” such as knowing “that a government investigation itself is comprehensive,” that a released report is accurate, or that “any disciplinary measures imposed are adequate.” Id. We discarded those other public interests as elements to be balanced against the employees’ privacy interests “because they would not be satiated in any way by the release of the names of the censured employees.” Id. Thus, in conformity with Reporters Committee, we identified the public interest by taking into account “the nature of the requested document and its relationship to the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’ ” 109 S.Ct. at 1481 (citation omitted). That interest, of course, must be defined with sufficient specificity to enable a court to determine the nature of the public interest that it is required to balance against the privacy interests Exemption 7(C) was intended to protect. In applying these principles to the case before us, we begin by identifying the privacy interests that are here at stake. As we noted in our discussion of the interests protected by Exemption 7(C), while Pelle-grino has a particular interest in not being associated unwarrantedly with the misconduct alleged by Dunkelberger, he also has a more general interest in protecting the privacy of his employment records against public disclosure, whether the information contained in them is favorable or unfavorable. Thus he has at least a minimal interest in not having it known whether those records contain or do not contain a letter of reprimand. In identifying the public interest that is to be taken into the balance, we look to the nature of the requested document and to the FOIA purpose to be served by its disclosure. In his “Statement of Material Facts,” Dunkelberger describes the latter as the public’s right to be informed “about intentional over-stepping by an FBI agent in his dealings with a political figure and the drug scene.” The document he requests is an alleged letter of reprimand or suspension “relating to the departmental investigation of, and disciplinary punishment meted out to, Special Agent Matthew Pellegrino for his volitional, unauthorized activities during the course of an FBI undercover ‘sting’ operation.” Brief for Appellant at 1. We conclude that the interest to be weighed here is the public’s understandable concern over information about an FBI agent’s alleged participation in a scheme to entrap a public official and in the manner in which the agent was disciplined. This was the specific focus of Dunkelberger’s FOIA request; and, in fact, his counsel acknowledged at oral argument that if the documents at issue did not relate to Pellegrino’s alleged overreaching in the Horne investigation, they would not be subject to disclosure, even if they were to reveal other kinds of misconduct. Having examined those documents in camera, we agree with the district judge’s conclusion that there is nothing in them that would “support plaintiff’s argument for concluding that disclosure would be in the public interest.” See Memorandum Opinion at 2-3. As there is nothing to be placed in the balance against Pellegrino’s general interest in preserving the confidentiality of his personnel files, we conclude that no invasion of Pellegrino’s privacy is warranted, however slight. We therefore hold that Exemption 7(C) was properly invoked and the FBI’s refusal to confirm or deny the existence of letters of reprimand or suspension fully justified. Nothing we have said should be taken to imply that once an in camera inspection finds information relevant to the public interest described, disclosure is automatic. As Stern and Reporters Committee make clear, Exemption 7(C) will always call for a balancing of the competing interests, although we may do so on a categorical basis if a “case fits into a genus in which the balance characteristically tips in one direction.” Reporters Committee, 109 S.Ct. at 1483. Nor do we foreclose properly framed requests for information relating to the standards of conduct required of FBI agents and the disciplinary action taken when they are breached. See, e.g., Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). III. ConClusion Because a confirmation or denial of the existence of the letter of reprimand sought by Dunkelberger would have constituted an unwarranted invasion of Special Agent Pellegrino’s privacy, we find that Exemption 7(C) was properly invoked. The judgment of the district court is therefore 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_const1
0
What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. COMMISSIONERS OF SEWERAGE OF CITY OF LOUISVILLE, KY., v. DAVIS et al. DAVIS et al. v. COMMISSIONERS OF SEWERAGE OF CITY OF LOUISVILLE, KY. Nos. 7411, 7412. Circuit Court of Appeals, Sixth Circuit. March 5, 1937. Robert S. Marx, of Cincinnati, Ohio, and Rowan Hardin, of Louisville, Ky. (Rowan A. Hardin and Nichols, Morrill, Wood, Marx & Ginter, all of Cincinnati, Ohio, on the brief), for Commissioners of Sewerage. Robert Lee Blackwell, of Louisville, Ky. (William Marshall Bullitt and Bruce & Bullitt, all of Louisville, Ky., on the brief), for A. A. Davis et al. Before HICKS and SIMONS, Circuit Judges, and LEDERLE, District Judge. HICK.S, Circuit Judge. On August 24, 1928, A. A. Davis and E. D. Davis, citizens and residents of Oklahoma City, and copartners doing business as A. A. Davis & Co. (herein called the Company), entered into a contract with the Commissioners of Sewerage of the City of Louisville (hereinafter called the Commission), for the construction of 8,544.54 linear feet of concrete sewer in open trench. The sewer, called the Highland Park-Beechmont Sewer, varied in size at different points but required the excavation of a trench roughly 18 feet wide and 15 to 25 feet deep, with a shallow trench 6 to 8 inches deep in the floor of a portion of it for an underdrain. The contract called for its completion in 270 days, with a penalty of $25 per day for each day taken in excess thereof; 206 extra days were taken, although about 40 of these were allowed by the engineer on account of bad weather. On or about July 1, 1928, the Commission advertised in trade journals that on July 20 it would receive bids or proposals for the construction of the sewer. The advertisement stated that the work would involve approximately “9,470 Lin. ft.— Earth Excavation in open trench. * * * Payment for earth excavation will be by the linear foot and cubic yard, concrete by the cubic yard and steel by the pound.” The description of the project was contained in a printed book of nearly 200 pages, copies -of which were used by the Commission for all its sewer jobs, of which it had many. Blanks were left in the books into which the separate specifications and figures for each job could be inserted by hand. Much of the printed material, of course, applied to all jobs, but inapplicable portions were crossed out with ink. This particular issue of the book bore on its cover, among other things, the notation that it applied to “Contract 40” and that it contained “Information for Bidders” and “Specifications for the Construction of Highland Park-Beechmont Sewer.” On the sixth page under the heading “Drawings,” and under the general heading “Information for Bidders,” appeared this statement : “The location and the general character of the work to be done under this Contract are shown upon Drawings in the office of the Commission entitled Contract No. 40 * * * dated June 15, 1928, and numbered” (listing sixteen numbers) “which are to be a part of this contract.” On page 7, under the same general heading and under the specific heading “Quantities,” this appeared: “The following is an approximate statement of the engineer’s estimate of the extent of the work required. * * * “Item la. Earth excavation and hack-fill for 12' 2" x 7' 9" rectangular sewer from Sta. 1 plus 12.03 to Sta. 10 plus 24.34 —912.31 linear feet.” (Italics ours.) Then followed five other items aggregating (exclusive of a section later left out of the contract by agreement) the linear feet of earth excavation and backfill upon which bids were asked. The quantities of concrete were set up in other items on a cubic yard basis and reinforcing steel on a pound basis. In the second general section entitled “Proposals,” the bidder was directed to quote prices on these same items of “earth excavation and backfill” at dollars and cents per linear foot and the concrete on the cubic yard basis and the iron on a pound basis. On page 95 under the general heading “Specifications” appeared the most disputed language in the contract: “Earth Excavation “Earth Defined. “Section 1.1. The word 'earth,’ when used in these Specifications, shall mean all kinds of materials including old masonry, excavated or which are to be excavated. except rock as hereinafter defined:” The line struck out was originally a part of the printed specifications but was crossed out with ink and a period placed in ink after the word “excavated.” On page 94, for instance, the word “rock” was struck out everywhere it appeared under the section “Payment Line.” And elsewhere in the specifications all references to rock were scrupulously deleted by crossing out. Prior to completion of the drawings and calling for bids, employees of the Commission made 19 borings along the line of the work. On account of street traffic only one of the borings was made on the center line of the sewer. The others ranged from 8 to 31 feet on one side or the other of the center line, and the exact location of each was indicated on the drawings. The borings were made with a sand or earth auger similar to a posthole digger type of auger, so that the samples of the material through which it passed could be brought up, noted, and preserved. All of these materials, such as cinders and gravel in filled ground, yellow clay, and various shades and consistencies of blue clay, etc., were recorded on the drawings, along with the thickness of each stratum thereof. Twelve of these borings were carried to subgrade or lower. Seven, namely, Nos. 8, 9, 10, 11, 1*2, 15, and 18, were stopped by a hard substance before reaching subgrade. These borings were stopped respectively at .2 feet, 5 feet, 7.2 feet, 2.8 feet, 2.2 feet, 4.5 feet, and 1.4 feet higher than subgrade. In each instance the auger, which with extensions weighed roughly 100 pounds, was smashed and churned against the obstructing material, so that small pieces were splintered off and brought to the surface. The samples from each hole were placed in separate' fruit jars and were carefully labeled to show the name of the project to which they were related, the number of the boring at which they were taken with the station, the depth at which they were encountered, and their nature (as “Yellow Clay”). In each instance where the boring did not penetrate to subgrade, the substance that stopped it was marked on the drawings as “shale” and the samples thereof placed in the jars were likewise so labeled. The borings were made by a crew of men under the general supervision of Howard F. Stolz, junior engineer with the Commission. The samples obtained were then carried to the Commission’s chemical laboratory and kept on display along with samples of borings from numerous other projects. On July 7, R. O. Schriver,'the Company’s engineer and construction superintendent, was taken over the location of the sewer by a Mr. Boerner, construction engineer of the Commission, and later, on July 17, after receiving the specifications and drawings, he and A. A. Davis appeared at Louisville, went to the office of Mr. Caye, the chief engineer of the Commission, who prepared the specifications and contract, and asked to get all the information they could, at which time they were both taken over the job and a nearby one by Mr. Boerner. It is claimed by the Company that on this occasion Boerner made certain statements to Davis and Schriver which will be hereinafter referred to. At the close of this trip Davis and Schriver were taken to the laboratory and made an examination of the contents of the jars. The Company claimed that it was compelled in the execution of the work to excavate 7,-663.03 cubic yards of limestone and slate which required blasting, wedging, and sledging for its removal. Upon being denied compensation therefor it brought suit in equity against the Commission for approximately $215,000 as damages for alleged fraudulent deception whereby they claimed to have been misled in the execution of the contract. So far as is material here, the elements of the damages sought were: (1) The excess cost of excavating the limestone and slate upon the theory that such material was not contemplated or covered by the contract; and (2) the penalties exacted for exceeding the contract time which the Company claimed was due to the excavation of limestone and slate. The court appointed a special master to take the testimony and report his conclusions of law and fact. He presided at the taking of the testimony, saw the witnesses on the stand, filed a detailed report, and found every issue of fact and law in favor of the Commission. Exceptions taken by the Company were framed to require a review by the District Court of all the evidence. The court sustained the exceptions and decreed a recovery totalling approximately $80,000. Both sides appealed. The determinative question is, whether the Company was fraudulently misled by the Commission or its authorized agents into believing that there would be no material found in the excavation requiring blasting, wedging, or sledging for its economical removal. This of course is purely a question of fact. The Company urges that the Commission accomplished its deception by a deliberate “step by step” process; that the first step was the use of the term “earth excavation” in the advertisement; and the second was the use of the same words at various places in the contract; that the term earth excavation would naturally lead the contractor to believe that the job involved the removal of only ordinary earth, such as could be excavated with clam shell buckets or steam shovels, as distinguished from solid rock or slate, or at least that the term earth excavation as defined in the contract was so ambiguous in meaning as to be fraudulent in law. The master held that the definition of the term was plain and its meaning was therefore not dependent upon extraneous construction. The court found that the definition “did cover rock,” but concluded that the ambiguous nature of the language used therefore should be considered in determining whether the Company or its agents were misled into believing that blasting would not be encountered. We find no ambiguity in the definition. The word “earth” has many commonly accepted meanings. It was dealt with here, however, in an excavation contract, and it was necessary therefore to define it to avoid misunderstanding. It was defined in simple language to mean “all kinds of materials, * * * excavated or which are to be excavated.” As a further precaution against misinterpretation, the phrase “except rock as hereinafter defined” and all other references to rock in the printed specifications were meticulously expunged. The contract clearly provided for payment upon a linear foot basis. There was no classification of materials. The linear foot basis was particularly defined to be “the actual length in linear feet of sewer constructed. * * * ” Under the heading “Underground Information, Objects and Structures” is section V as follows: “Section V. The plots of pipes and other underground objects are supposed to be approximately correct, but should they be found to be otherwise, or should the Contractor encounter quicksand, springs, water, disintegrated rock, boulders, old masonry,' sewers, drains, pipes, conduits or other underground objects or structures not shown on the Drawings, or should he encounter earth different from what is indicated by the borings and soundings as shown on the Drawings or should he encounter difficulties other than what was estimated or expected, he shall have no claim for any additional compensation on account of the underground information as shown on the Drawings not showing or representing underground objects or actual conditions as encountered or found, it being clearly understood and agreed that the Commission does not by implication or otherwise guarantee the borings, soundings or plots of underground objects to show or represent conditions which will be encountered in the execution of this Contract.” We think the meaning of the word “earth” as defined and used in the contract was plain and unambiguous, and that extraneous evidence was inadmissible to destroy that meaning, and the Company was bound unless it was induced to assume the obligation by misrepresentations of the Commission or its authorized agents that the work would not involve rock which would require blasting, wedging, or sledging for its removal. On this issue Schriver testified that on the visit of July 17 Boerner took him and A. A. Davis to the Whitney avenue sewer job some blocks distant from the proposed sewer; that at that point they were then working in a kind of loam, clay, sand, and gravel, and that, upon being asked by them if it was the same kind of material they could expect on their job, Boerner answered that it was, saying that he had been working for the Commission 6 or 7 years and was pretty well acquainted with the territory or should be; and to the best of his knowledge there was no rock in that part of the country. Davis’ testimony as to what Boerner said regarding the existence of rock in that part of the city confirmed Schriver in most particulars, although, in a place or two in his evidence Davis testified that Boerner said that “in his opinion” no rock could be found on the job. Davis “considered Mr. Boerner to be a man of experience along this particular line and this exact part of the country.” Boerner denied that he made any such representations, saying: “I made no statements to them with reference to the subsoil conditions that they would encounter in digging this excavation other than as shown on the contract drawings. I did not make to them any representation that no rock would be encountered in the excavation for this sewer. I did not have any knowledge on that subject at that time. I took them over to see another sewer excavation” (the Whitney Avenue job), They “had not then struck shale.” At another point he said that, when he was asked about rock, he referred to the blueprints, saying that it showed much rock. Caye, of course, did not know what was said on this inspection trip, but stated that his instructions to Boerner on such occasions had been “to take the contractors over the work, show them the streets in which the sewer was to be constructed and that was all. * * * I have discussed with him that matter, and cautioned him to be very carefub about even expressing an opinion regarding the work.” Boerner agreed that he had been so instructed. The master found that Boerner “probably did make some comment of the nature testified to by Mr. Davis and Mr. Schriver as an expression of opinion which he honestly entertained,” but “it is hardly reasonable to suppose that in so important a matter, the plaintiffs could have relied for their protection upon a casual conversation of this kind with one of the employees of the Commission, who accompanied them rather in the nature of a guide. * * * ” In addition, if we assume that Boerner had authority to speak for the Commission (whether he did is left in doubt), the master specifically found that no misrepresentation was made by Boerner. This finding was presumptively correct. Atherton v. Anderson, 86 F.(2d) 518, 522 (C.C.A.6), was not modified or rejected by the court and we see no reason to interfere with it. As was said in Atherton v. Anderson, supra, the master saw and heard-the witnesses and had a superior opportunity to test their credibility and reconcile the conflicts in their testimony. It is next urged that the borings and! the labels on the blueprints were deceptive^ and misleading, in that they caused the’t Company to believe that no slate or limestone, which would of course require blasting, would be encountered, and that this was the next step by which the Commission accomplished its deception. The master found against the Company upon this issue. As stated, the samples taken from the borings which did not reach subgrade were called “shale” on the jars in which they were placed and the obstructing material was labeled “shale” on the blueprints. The master found that this classification was correct and the court concurred. It said: “The proof, however, shows that the substance encountered was in fact shale, and that there is no slate in the vicinity of Louisville, Ky.” There is no controversy over this particular finding, but the contention arose over what is meant by the term “shale.” Davis and Schriver claim that they understood what the Commission’s engineer denoted as “shale” was a soft rock overlying beds of what they called “slate,” and that the samples contained in the seven jars taken from the borings indicated on the drawings to have been stopped by shale signified to them shale in the sense in which they understood the term; that is, a very soft easily removable rock which verged on the clays in consistency. They said that none of these samples contained specimens of the rock they later actually encountered close to these borings. Schriver was a competent engineer and Davis was a capable contractor. This raises the question whether they were fraudulently misled by false labels and borings or whether there was an honest misunderstanding between the parties of the meaning of the words “shale” and “slate.” Upon this issue both sides introduced impeccable witnesses. G. R. Smiley, assistant chief engineer for the Louisville & Nashville Railroad, testified for the Company that “the words ‘slate’ and ‘shale’ do not have a real definite, well defined meaning among people engaged in such excavation work in this section of Kentucky.” He called Exhibits (“G,” “L,” and “S,”) samples of rock taken out by the Company, “black slate” and limestone, and said on cross-examination that geologically the first would probably be called “shale.” He identified the materials from borings 8, 9, and 10 as “hard shale” or “black slate.” ; George M. Eady, a Louisville contractor, and a witness for the Company, in examining the samples of rock passed on by Smiley, said that he didn’t know what contractors called it, but he called it “slate.” “Shale,” he said, “is generally a brownish, grayish material, more brown than gray. * * » Caye testified that after seeing the actual excavation, and comparing it with the plans, he was of the opinion that the conditions actually encountered were very closely portrayed by the borings. He said that shale is not only scientifically classed as rock, but it is understood among contractors and engineers that shale is something of rock character that requires drilling and blasting; and that shale is considered as being a rock of considerable hardness. He explained that the difference between slate and shale was distinctively characterized by their geological formation; that he checked the contents of the jars to see that they were properly labeled as to classification. . In addition to Caye’s testimony on the point, the Commission offered the testimony of several other well qualified witnesses. Lucien Beckner, a professional consulting geologist residing in Louisville, in examining the samples submitted to Smiley, said, that is what “we call New Albany shale,” a “black shale.” He identified the other rock shown Smiley as limestone and said that it was always found under shale in that section. He said “there are no slates in Kentucky,” but these materials are “usually called slate by the natives”; it is known as slate only by people “who do not know the difference.” He said that shale “has been completely distinguished from slate except in common parlance,” that “you could not sell shale anywhere in the United States for slate.” He was one of those who was of the opinion that the auger used could remove samples of black shale. Charles E. Cannell, a general contractor for 38 years, who had done sewer work in Louisville, identified all the samples from the disputed borings as shale, and called the exhibits submitted to Smiley as shale rock and limestone. Homan J. Scott, a contractor of 15" years’ experience, identified all the boring samples as shale except No. 18, which he said looked like hardpan with perhaps some shale in it. He identified Exhibits “G,” “L,” and “S” as shale and limestone. James B. Wilson of Louisville, a civil engineer for 30 years, said that shale is very common in Jefferson county, Ky. He identified all the disputed samples in the jars as shale and agreed 'with Catan ell’s classification of the rocks submitted to Smiley. He said of the materials in the jars, “The material is shale; I don’t know of any other thing to call it; it is shale.” Frank L. Longley, a contractor from Lexington, Ky., confirmed the examinations of previous witnesses. for the Commission as to the borings in the seven jars, and the “Smiley” rocks. He would not say that these latter were exactly the same “in analysis” as the material in the jars, “but from a practical contractor's standpoint I would say it is the same material; near enough-the same kind of material that it would not make any difference to a contractor.” He said that he also bid on the Highland Park-Beechmont Sewer job, examined the disputed boring samples at the time, and that they were sufficient to inform him that the material from which they came would require blasting for removal. Upon consideration of this testimony, the master concluded that there was no fraud in connection with the samples or in the .use of the word “shale” upon the jars or in the blueprints and specifications. We concur. The utmost that may be said is that there was a mutual misunderstanding as to the meaning of the word “shale.” Whether this misunderstanding would justify a reformation of the contract we need not determine. It is sufficient to say that it does not support an action for deceit. The evidence does not justify a conclusion that the Company utilized this misunderstanding or confusion to perpetrate a fraud. We think the court misunderstood the effect of it. The court inferred that the Commission did not disclose all it knew as to the subsoil conditions along the line of. the sewer; that it should have apprehended from past experience that the contractor would likely encounter a substance that would require blasting, wedging, or sledging, and that its failure to so specifically advise the contractor, who was unacquainted with the local situation, of such conditions, was an affirmative fraud. We cannot concur in this view. There is no substantial evidence that the Commission or its authorized agents knew more'about the subsoil conditions along the line of the sewer than were disclosed in the borings and blueprints. This is self-evident because the conditions were hidden. See Elkan v. Sebastian Bridge Dist., 291 F. 532, 537 (C.C.A.8). Moreover, the Commission’s expert witnesses Beckner, geologist, Wilson, engineer, Cannell, Scott, and Longley, contractors, and Caye and Boerner, all described the samples in the jars as a hard material that would probably require blasting. The master accepted this testimony as true, and we find no reason to reject it. At the trial jar No. 9 actually contained large chunks of rock which were admittedly hard slate. When confronted with this jar, Davis and Schriver intimated that it had beep tampered with since their original examination of it. There is no evidence to support this suggestion, and the master found upon substantial evidence that the auger was capable of bringing up samples of the size found in jar 9. The Company, contrary to the findings of the master, insists that the Commission withheld material information which was known to it. This information was that Boerner, in charge of the borings, ascertained from the sounding of the auger tool, the churning of it in the hole, the feel of it in the hand, that the auger had struck material that would require blasting. But, assuming that the Commission was bound by this opinion of Boerner, it indicated, after all, nothing more than the “plat and profile” clearly disclosed. Finally, we cannot escape the conclusion that a careful contractor could not have overlooked the warning on the blueprints that at different places the auger had been stopped by something too hard to penetrate. There is little in the whole record that carries much weight on the accusation of fraud and deceit. Such accusations cannot be established by suggestions and presumptions. It is essential that the evidence be cogent, unequivocal, and convincing and leave the mind well satisfied that the allegations are true. Equitable Life Assurance Society v. Johnson, 81 F.(2d) 543, 547 (C.C.A.6). Rather than indicating fraud, the Commission’s documents, drawings, and physical recordings strike us with the scrupulous care with which they were drawn and assembled. We are not impressed with the oral testimony to the effect that the Commission by an unsigned paper included in a letter from its engineer to the Company made any representations as to soil conditions not already included in the specifications and drawings. The evidence is particularly weak since the paper could not be found. Nor are we impressed by evidence of the response to overtures made to the Commission after they had encountered rock. These overtures were entertained, but there is no satisfactory evidence that any concessions were granted. The recovery embraces one item of $2,-586.79 admitted to be due. For this item the decree is affirmed. In all other respects the decree is reversed and the case remanded, with directions to dismiss the bill at the cost of the Company. Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. Answer:
songer_usc1sect
157
What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". STAR MEAT COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 78-1438. United States Court of Appeals, Sixth Circuit. Argued Aug. 19, 1980. Decided Nov. 4, 1980. Joseph P. Carey, Tarrytown, N. Y., Fred Elarbee, Jr., David M. Vaughan, Elarbee, Clark & Paul, Atlanta, Ga., for petitioner. Elliott Moore, Carol A. DeDeo, Deputy Associate Gen. Counsel, Patricia Cornwell Matthews, N. L. R. B., Washington, D. C., for respondent. Before WEICK and JONES, Circuit Judges, and DUNCAN, District Judge. Robert M. Duncan, District Judge, United States District Court for the Southern District of Ohio, sitting by designation. PER CURIAM. Star Meat Co. (Star Meat), appeals from an order that it violated Section 8(a)(1) of the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq. by discharging an employee because of his picketing activities. 237 NLRB 132. The National Labor Relations Board (the Board) has cross petitioned for enforcement of its order. For the reasons set forth below, we grant enforcement. Zivko Dimovski participated in an economic strike with other employees at Star Meat’s Warren, Michigan plant. On May 11, 1977, the second day of the strike, Dimovski, who did not speak English well, attempted to prevent a non-striking replacement employee from going to work by grabbing him, asking him “where are you going,” and pushing him about four or five feet backward. Dimovski claims that he was not aware that he could not physically restrain non-striking employees until he was so informed by union counsel the day after this incident. On May 13, Star Meat discharged Dimovski. He was reinstated on July 9. After a hearing, an Administrative Law Judge held that Star Meat’s discharge of Dimovski violated the Act. Star Meat was ordered to make Dimovski whole for any loss of earnings suffered as a result of his discharge. On appeal, Star Meat argues that Dimovski’s violent activities justified his discharge. We disagree. Physical violence on the part of striking employees is sufficient to remove such employees from the protection of the Act. NLRB v. Moore Business Forms, 574 F.2d 835 (5th Cir. 1978); Jerr-Dan Corp., 237 N.L.R.B. 49, 98 L.R.R.M. 1569 (1978). However, not every violent or unlawful act committed in the course of activity protected by Section 7 of the Act, deprives the employee of the protective mantle of the Act. Ohio Power Co. v. NLRB, 539 F.2d 575, 578 (6th Cir. 1976). Neither the Board nor this Circuit has adopted a per se rule as to all violence by striking employees. Id. Employees who engage in unlawful activities against either fellow employees or an employer’s property may lose the protection of the Act. The determination of whether employees have exceeded acceptable limits must initially rest “with the Board, and its determination unless illogical or arbitrary, ought not be disturbed.” Ohio Power Co. v. NLRB, 539 F.2d at 578 (quoting NLRB v. Hartmann Luggage Co., 453 F.2d 178, 183-184 (6th Cir. 1971)). The Board’s determination that Dimovski’s actions were not egregious enough to remove him from the protection of the Act is supported by substantial evidence. The actions by the employee were limited in time and did not induce violent retaliation by other employees. Dimovski’s limited language ability of Dimovski and his stated ignorance of the Act’s provisions are additional factors supporting the Board’s conclusions. Though neither we nor the Board condone violence, when violent or unlawful acts are of a minor nature or are prompted by improper employer activity, will we enforce the Board’s orders reinstating discharged employees or granting back pay. NLRB v. Moore Business Forms, 574 F.2d 835 (5th Cir. 1978); Coronet Casuals, Inc., 207 N.L.R.B. 304, 84 L.R.R.M. 1441 (1973). Accordingly, the Board’s order is ENFORCED. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number. Answer:
songer_appel1_1_3
F
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. NICARAGUAN LONG LEAF PINE LUMBER CO., Inc., v. MOODY. THE WILLIAM G. OSMENT. No. 14587. United States Court of Appeals Fifth Circuit. March 31, 1954. Douglas D. Batchelor, David W. Dyer, and Smathers, Thompson, Maxwell & Dyer, all of Miami, Fla., for appellant. Walter Humkey and Fowler, White, Gillen, Yancey & Humkey, all of Miami, Fla., for appellee. Before STRUM and RIVES, Circuit Judges, and DAWKINS, District Judge. RIVES, Circuit Judge. This was a libel in admiralty now based solely upon the law of general average. The first count alleging negligence on the part of the vessel was dismissed by the district court and no appeal is taken from that decision. The second count sought a general average contribution from the vessel for the jettison of the deck cargo. The district court held that since the libelant had failed to prove negligence, it was precluded from any recovery by the provision of the bills of lading, “All lumber loaded on deck at Shipper’s risk.” The basis of the law of general average is well stated in one of the leading American cases on the subject: “The law of general average, coming down to us from remote antiquity, is derived from the law of Rhodes, through the law of Rome, and is part of the maritime law, or law of the sea, as distinguished from the municipal law, or law of the land. “The typical case is that mentioned in the Rhodian law preserved in the Pandects of Justinian, by which, if a jettison of goods is made in order to lighten a ship, what is given for the benefit of all is to be made good by the contribution of all. ‘Cavetur ut, si levandae navis gratia jactus mercium factus est, omnium contributione sarciatur, quod pro omnibus datum est.’ Dig. 14, 2,1, 1.” Ralli v. Troop, 157 U.S. 386, 393, 15 S.Ct. 657, 660, 39 L.Ed. 742. Mr. Chief Justice Hughes described the essential conditions of general average as follows: “It means that there was a common imminent peril and a voluntary sacrifice or extraordinary expenses necessarily made or incurred to avert the peril and with a resulting common benefit to the adventure. * * * It means that the sacrifice or expenses fell upon the whole adventure and were to be assessed in proportion to the share of each in that adventure.” Aktieselskabet. Cuzco v. The Sucarseco, 294 U.S. 394, 401, 55 S.Ct. 467, 470, 79 L. Ed. 942. More specifically pertinent to the facts of this case are the following two paragraphs from Ralli v. Troop, supra, 157 U.S. at pages 395, 396, 15 S.Ct. at page 661: “In Wright v. Marwood, in which it was held by the English court of appeal that a jettison, by the master, of cattle carried on deck, though proper and necessary for the safety of the ship, did not give a right to general average, Lord Justice Bram-well said: ‘It is not necessary to say what is the origin or principle of the rule; but, to judge from the way it is claimed in England, it would seem to arise from an implied contract inter se to contribute “by those interested.” ’ The judgment, however, was put upon the ground that, whether the rule was treated as arising from implied contract, or as a matter of positive law, it was subject to an exception in the case of goods loaded on deck, unless a deck cargo was customary. 7 Q.B.D. 62, 67. “In Burton v. English, in the same court, in which the charter party stipulated that the ship should be ‘provided with a deck load if required, at full freight, but at merchant’s risk,’ and the last words were held not to exclude the right to a general average contribution for a necessary jettison of timber carried on deck, Lord Justice Brett (since Lord Esher, Master of the Rolls), in answering the question, ‘By what law does the right arise to general average contribution ?’ said: T do not think that it forms any part of the contract to carry; and that it does not arise from any contract at all, but from the old Rhodian laws, and has become incorporated into the law of England as the law of the ocean. It is not as a matter of contract, but in consequence of a common danger, where natural justice requires that all should contribute to indemnify for •the loss of property which is sacrificed by one in order that the whole adventure may be saved. If this be so, the liability to contribute does not arise out of any contract at all, and is not covered by the stipulation in the charter party on which the defendants rely.’ 12 Q.B.Div. 218, 220, 221.”- It is now well settled that the shipowner’s obligation to contribute- to general average sacrifices of the cargo is not affected by exceptions in the contract of carriage unless so stipulated- in express térms. Indeed the respondent concedes- in brief “that the District Court erred in its conclusion with referencé to general average when it held that the libelant was bound to prove negligence,-” but insists that the judgment should be affirmed for other reasons. The respondent contends, first, that the law of general average at the port of destination controls, citing Charter Shipping Co., Ltd. v. Bowring, Jones & Tidy, Ltd.; 281 U.S. 515, 518, 50 S. Ct. 400, 74 L.Ed. 1008 and that' there was no proof as to what that .law was at the port of Curacao, N. W. I. What was said by this Court in The Mount Everest, 17 F.2d 478, 479, is a sufficient reply, “The record does not indicate that it;was suggested in the trial court that the. case involved any question of foreign law.’-’ See also, The Lydia, 2 Cir., 1 F.2d 18, 23; cf. Olivari v. Thames & Mersey Marine Ins. Co., D.C.E.D.N.Y., 37 F. 894, 896. The respondent next contends that the district court erred in finding that there was a voluntary sacrifice of the deck cargo to protect the vessel and other cargo from loss. The respondent introduced in evidence the sworn protest signed by his master upon the vessel’s arrival in Curacao. This protest states, in part: “I considered it necessary to jettison the full-deck cargo in order to protect the ship and other cargo from total loss.” Actually this was not an issue in the case. Paragraph 8' of the libel states, in part: “ * * * In order to protect the ship and other cargo from total loss, the master of the respondent vessel jettisoned all of the aforementioned deck cargo.” Paragraph 5 of the sworn answer states: “The claimant admits the allegations contained in the eighth paragraph.” The respondent’s third argument is that deck cargo is not entitled to contribution in general average unless it is a custom of the trade to carry su'ch cargo on deck as ruled in the old English case of Wright v. Marwood, 7 .Q.B.D. 62, 67, ■ ref erred to in Ralli v. Troop, supra. While the libelant recognizes that principle, it points out that, it proved such a custom in the deposition of Mr. Robinson, and that no contrary testimony was offered. The respondent asks that we consider as on a trial de novo the deposition of C. B. Moody, taken by the libelant, but not introduced during the trial, to establish that the carrying of a deck cargo was contrary to' custom at the time of the year involved in the area in question. If presented on the trial, that evidence would have created a conflict which might, or might not have been resolved by still further testimony. The testimony not having been offered on the trial, and no sufficient excuse being shown for such failure, we do not think that it should be considered on appeal. The Juniata, 91 U.S. 366, 23 L.Ed. 208; The Mabey, 10 Wall. 419, 77 U.S. 419, 19 L.Ed. 963; The Beeche Dene, 5 Cir., 55 F. 526; Annotation 103 A.L.R. 788. The undisputed values with respect to general average contribution are: Hull ............' $100,000.00 Freight ......... 3,721.12 Cargo........... 19,965.36 Total ....... $123,686.48 The value of the jettisoned cargo was $2,091.00. The libelant is therefore entitled to a general average contribution from the respondent of nearly 81%, or to be accurate $1,691.62, representing the contribution due from the hull. A decree will be entered in favor of the libelant for $1,691.62 together with interest and costs. Reversed and rendered. . The district court’s findings of fact and conclusions of law were as follows: “Findings of Fact “1. The Court has jurisdiction of the parties and subject matter. “2. On or about June 28, 1951, the Libelant caused to be delivered to the M/V William G. Osment at Puerto Cabe-jas, Nicarague, 148,845 board feet of lumber, to be transported to Curacao, Netherlands West Indies. “3. Of the above lumber 134,313 board feet were stored below deck and 14,532 board feet were stored on deck. “4. Two bills of lading were, issued covering such lumber and each of them contained the following provision, ‘all lumber loaded on deck at shipper’s risk’. “5. On or about June 30, 1951, in order to protect the ship and other cargo from total loss, the Master of the M/Y William G. Osment jettisoned all of the deck cargo. “6. The vessel, its owner, master or crew were not guilty of negligence resulting in or in performing the jettisoning of the deck cargo. “Conclusions of Law “1. Under the provisions of the bills of lading the M/V William G. Osment would only be liable in an action for general average if the vessel, its owner, master or crew were guilty of negligence resulting in, or in performing the jettisoning of the deck cargo. “2. The second cause of action of the libel herein should be dismissed. “3. Respondent should recover its costs herein.” . The Santa Ana, 9 Cir., 154 P. 800, 802; Dibrell Bros., Inc. v. Prince Line, 2 Cir., 58 P.2d 959, 961; The Lewis H. Goward, D.C.S.D.N.Y., 34 F.2d 791, 793; Swift & Co. v. Glasgow Steam Shipping Co., D.C.S.D.N.Y., 280 P. 910, 913. . ,“Q.. Are you generally familiar with the lumber trade moving-out of Puerto Ca-bezas? A., Yes, I am familiar with-it. “Q. Does the lumber generally move out of Puerto Cabezas on small vessels similar in type to- the William G. Osment? A. Part of it, yes. “Q. Is it customary to load deck cargo-on these vessels? A. On practically every vessel that was in there, when I was present in Puerto Cabezas; deck cargo was loaded. “Q. Was that true even in summer months? A. In all months.” 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
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. D. C. FEDERATION OF CIVIC ASSOCIATIONS et al., Appellants v. John A. VOLPE, Secretary of Transportation, et al. D. C. FEDERATION OF CIVIC ASSOCIATIONS et al. v. John A. VOLPE, Secretary of Transportation, Appellant The District of Columbia, et al., Walter J. Hickel, Secretary of Interior, et al., Appellants. Nos. 24838, 24843. United States Court of Appeals, District of Columbia Circuit. Argued July 22, 1971. Decided Oct. 12, 1971. Dissenting Opinion Filed Nov. 4, 1971. Supplemental Opinion and Denial of Rehearing March 2, 1972. Certiorari Denied March 27, 1972. See 92 S.Ct. 1290. Messrs. Roberts B. Owen and Gerald P. Norton, Washington, D. C., for appellants in No. 24,838 and appellees in No. 24.843. Mr. Thomas L. McKevitt, Atty., Department of Justice, with whom Asst. Atty. Gen. Shiro Kashiwa, Messrs. Thomas A. Flannery, U. S. Atty., Joseph M. Hannon, Asst. U. S. Atty., and Edmund B. Clark, Atty., Department of Justice, were on the brief, for federal appellees in No. 24,838 and federal appellants in No. 24,843. Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. C. Francis Murphy, Corporation Counsel, and Richard W. Barton, Assistant Corporation Counsel, were on the brief, for D. C. appellees in No. 24,838 and D. C. appellants in No. 24.843. Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and Mac-KINNON, Circuit Judge. BAZELON, Chief Judge: This appeal injects us back into the midst of a long and sometimes acrimonious imbroglio over the proposed construction of a bridge across the Potomac River from Virginia into the District of Columbia. In an earlier appeal we held that the so-called Three Sisters Bridge could not be built except in compliance with the hearing, environmental protection, safety, and other provisions of federal law applicable to the construction of federally-assisted highway projects. That question, accordingly, is no longer open. We must now decide whether the Department of Transportation did, in fact and in law, heed the applicable federal statutes when it decided that the bridge should be built. On the basis of an extended factual inquiry, the District Court concluded that the Department had failed to comply with some of the provisions. We affirm that part of the District Court’s judgment. As to the provisions with which the District Court found compliance, however, we have concluded that the statutory requirements were not satisfied, and the case will therefore be remanded to afford the Secretary an opportunity to make appropriate determinations as required by the statute. The factual background of this dispute has been described in detail in our earlier opinion and in the opinion of the District Court. Briefly stated, the controversy concerns a projected bridge between the Georgetown waterfront in the District of Columbia and Spout Run in Virginia. The bridge, which would be part of the Interstate Highway System and would be built largely with federal funds, would traverse the Three Sisters Islands, would “affect the Georgetown Historic District,” and would use some parkland. The precise amount of harm to parkland and historic sites has not yet been determined, however, since the planning of the bridge —including the approaches and access roads — is not yet finalized. A source of continuous controversy since its conception, the proposed bridge was deleted from the Interstate Highway System in January, 1969, when the National Capital Planning Commission, the official planning body for the District, adopted “a comprehensive transportation plan which did not include the Three Sisters Bridge.” The bridge was redesignated part of the Interstate System six months later after Representative Natcher, Chairman of the Subcommittee on the District of Columbia of the House Appropriations Committee, indicated unmistakably that money for construction of the District’s subway system would be withheld if the bridge plan were not revived. To satisfy the Chairman, it was necessary, first, for the Distinct of Columbia City Council to reverse its earlier position, and vote to approve the project. On August 9, 1969, the District government so voted, with the swing members loudly protesting that they would not have changed their votes but for the pressures exerted by Representative Natcher. The second prerequisite of redesignation was a decision by Transportation Secretary Volpe that the project should go ahead as part of the Interstate System. He announced that decision on August 12, 1969, and the project sprang full-blown back to life on the following day. On April 6, 1970, we held that the hearing and planning requirements of title 23 of the United States Code were fully applicable to this project notwithstanding a 1968 Act directing that construction of the bridge begin not later than thirty days after the Act’s passage. We remanded the case to the trial court for an evidentiary hearing to determine whether the Secretary had complied with the pertinent provisions in concluding that the project should be revived. The case is before us on appeal and cross-appeal from the trial court’s decision. I. Given our earlier decision, the Secretary’s approval of the bridge must be predicated on compliance with a number of statutory provisions. Plaintiffs challenged with two lines of argument the District Court’s finding of compliance. First, they maintain that the Secretary’s determinations under the statute were tainted by his consideration of extraneous factors unrelated to the merits of the questions presented. They allege — and argue, moreover, that the District Court specifically found — that pressures exerted by Representative Natcher contributed to the decision to approve the bridge. Second, they argue that quite apart from the allegations of pressure, the record and applicable legal principles do not support a finding of compliance. The two strands of argument are plainly related, in plaintiffs’ view, since the alleged shortcomings under each statutory provision illustrate and lend substance to the argument that the rational, impartial evaluation of the project envisioned by the statute was impermissibly distorted by extraneous pressures. We consider first plaintiffs’ argument that the determinations could not stand even if there were no issue of extraneous pressure. A. Requirements of § IS8 If a proposed federally-assisted highway project would encroach on parkland or historic sites, the Secretary of Transportation must determine before construction can begin that there is “no feasible and prudent alternative to the use of such land,” and, assuming such a finding, that the “program includes all possible planning to minimize harm to such park * * * or historic site.” The District Court concluded that Secretary Volpe had complied with each of these requirements. In defending the Secretary’s action, the government can hardly maintain that there was no “feasible” alternative to construction of the Three Sisters Bridge. This exemption applies, as the Supreme Court indicated in Citizens to Preserve Overton Park, Inc. v. Volpe, only if the Secretary finds that “as a matter of sound engineering it would not be feasible to build the highway along any other route.” It could still be argued, however, that the Secretary rejected each of the feasible alternatives because none of them was “prudent.” In construing this second exemption, the Supreme Court pointed out that the very existence of the statute indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in' a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems. Our review of the Secretary’s determination is hindered not only by the lack of any formal findings, but also by the absence of a “meaningful administrative record within the Department of Transportation evidencing the fact that proper consideration has been given to the requirements of this section.” However regrettable, the failure to provide explicit findings indicating why all possible alternatives to the bridge would be unfeasible or imprudent does not, in itself, invalidate the Secretary’s action. But the complete non-existence of any contemporaneous administrative record is more serious. Absent a record, judicial review of the Secretary’s action can be little more than a formality unless the District Court takes the disfavored step of requiring the Secretary to testify as to the basis of his decision. And even the Secretary’s “post hoe rationalizations,” filtered through a factfinder’s understandable reluctance to disbelieve the testimony of a Cabinet officer, will rarely provide an effective basis for review. Furthermore, it is hard to see how, without the aid of any record, the Secretary could satisfactorily make the determinations required by statute. The absence of a record, in other words, simultaneously obfuscates the process of review and signals sharply the need for careful scrutiny. Secretary Volpe’s testimony before the District Court did little to allay the doubts generated by the lack of an administrative record. Indeed, his testimony — on occasion uncertain and inconsistent with the testimony of others —itself gives rise to at least a serious question whether he considered all possible alternatives to the plan eventually approved. It is clear, moreover, that the Department of Transportation failed to apply its own procedures generally applicable to determinations under § 138. That failure is especially disquieting since the procedures at issue were designed specifically to insure that determinations under § 138 would be made, in the Secretary’s words, only after “a great amount of real independent and genuine review [by] people who were not particularly highway oriented. ” Furthermore, an apparent misconception about our earlier decision may itself have distorted the Secretary’s determination under § 138. The government has read our earlier opinion to mean that a bridge must be built, albeit in accordance with the provisions of title 23, somewhere in the vicinity of the proposed Three Sisters Bridge. Congress did direct, as we previously indicated, “that a bridge be built over the Potomac following the general configurations laid out in the cost estimates.” Viewed in context, however, the statement does not convey the meaning which the government suggests, for we held that “nothing in the statute indicates that Congress intended the Bridge to be built contrary to its own laws.” If the bridge cannot be built consistently with applicable law, then plainly it must not be built. It is not inconceivable, for example, that the Secretary might determine that present and foreseeable traffic needs can be handled (perhaps by expansion of existing bridges) without construction of an additional river crossing. In that case, an entirely prudent and feasible alternative to the Three Sisters Bridge might be no bridge at all, and its construction would violate § 138. Thus, the Secretary may have disregarded one possible prudent and feasible alternative to the use of parkland and historic sites on the mistaken assumption that that alternative was foreclosed by our earlier decision. While these difficulties give rise to at least a substantial inference.that the Secretary failed to comply with § 138, that inference ripens into certainty when one turns to the second determination required by § 138. Before the project can begin, the Secretary must determine that all possible planning has been done to minimize harm to the affected parkland and historic sites. Yet the District Court found, and the Secretary apparently concedes, that final design of the ramps and interchanges is not yet complete. Thus, when Secretary Volpe purportedly complied with § 138 in August, 1969, he could at best have been “satisfied * * * that the designs which would be developed based on the preliminary plans would result in a minimum taking of parkland,” but he could not have concluded that the necessary planning had already been'done. The District Court reasoned that the expectation of future planning could satisfy § 138. But that reasoning seems inconsistent with the Supreme Court’s subsequent admonition that § 138 can be obeyed “only if there has been ‘all possible planning to minimize harm’ to the park.” Moreover, the District Court approved the § 138 determination on the basis of the Secretary’s testimony that a “minimum of parkland would be taken” for the ramps and interchanges. More is at stake, however, than the “minimum taking” of parkland. Section 138 speaks in terms of minimizing “harm” to parkland and historic sites, and the evaluation of harm requires a far more subtle calculation than merely totaling the number of acres to be asphalted. For example, the location of the affected acres in relation to the remainder of the parkland may be a more important determination, from the standpoint of harm to the park, than determining the number of affected acres. The Secretary has not yet determined which acres will be taken. In addition, a project which respects a park’s territorial integrity may still, by means of noise, air pollution and general unsightliness, dissipate its aesthetic value, crush its wildlife, defoliate its vegetation, and “take” it in every practical sense. Absent a finalized plan for the bridge, it is hard to see how the Department could make a meaningful evaluation of “harm.” Furthermore, Secretary Volpe did not consult with other planning agencies to coordinate efforts to minimize harm to the park and historic sites. He also made no studies of potential air pollution damage to the park. His approval of the project under § 138 was, in short, entirely premature, and we hold that he must make new determinations consistent with the statutory standards. B. Requirements of § 134 The Secretary cannot approve federally-assisted highway projects in urban areas unless he finds “that such projects are based on a continuing comprehensive transportation planning process” carried out in conformance with Congress’s objective of promoting the development of transportation systems. The Secretary reasoned, and the District Court approved his reasoning, that the bridge project was consistent with such a planning process since the bridge had been approved by, and was subject to the continuing scrutiny of, the Transportation Planning Board (TPB) of the Metropolitan Washington Council of Governments. Plaintiffs, on the other hand, emphatically deny compliance with § 134 on the grounds that the “comprehensive transportation plan promulgated by the National Capital Planning Commission (NCPC) in December 1968, specifically ‘rejects the Three Sisters Bridge. as being both unnecessary and undesirable.’ ” While plaintiffs point out that NCPC is the official planning agency for the District of Columbia and that it alone has prepared a comprehensive transportation plan, the government contends that the Council of Governments, unlike the NCPC, is a regional organization which must consider the interests of the surrounding jurisdictions. We are unwilling to resolve this dispute by some abstract balancing of NCPC disapproval against TPB approval. That approach would, we are convinced, entirely miss the point of § 134. That section does not suggest that the Secretary has satisfied his statutory responsibility as soon as he has found a single plan which incorporates a proposed highway project. Nor can it reasonably be interpreted to mean that the project must be approved by every plan applicable to the affected region. The section speaks, after all, in terms of “planning,” not “plans,” and it is not our function to decide that one plan has merit while another does not. Rather, it is for the Secretary to determine whether a particular project will be consistent with sound transportation planning for the region. Decisionmaking responsibility under § 134 has been delegated by Secretary Volpe to the Public Roads Division Engineer, Mr. Hall. Mr. Hall disregarded NCPC disapproval of the project because he believed that “TPB [was] the primary agency to which he should look in making his finding.” The District Court approved his finding on that same reasoning. But that reasoning cannot do service for the more sophisticated determination required by the statute. In making his “mental” finding of compliance with § 134, Mr. Hall apparently did no more than adopt TPB’s conclusion that the project was “consistent with comprehensive planning” for the region. Yet that is precisely the determination that the Department of Transportation, taking into account the recommendations of local plans, must make. The statute plainly does not permit the Department to delegate its statutory responsibility to a local planning agency. On remand, the Department must reevaluate the project in light of the purposes of § 134. Since the determination was not grounded on a correct understanding of the statute’s requirements, we need not now decide whether the substantive result, if reached pursuant to appropriate procedures, would itself be supportable. But to aid the Department’s redetermi-nation under § 134, we should make clear our misgivings about the result and our doubts that it could be upheld on the present record even under the constrained standard of substantive review. TPB approved the bridge project in 1967, two years before Mr. Hall made his finding under § 134. No comprehensive transportation plan had been adopted at that time, either by TPB or any other planning agency. NCPC, which did not formulate its plan until December, 1968, was on record at the time of TPB’s action in 1967 as approving- the bridge project. TPB approved the project not under § 134, but under the Demonstration Cities and Metropolitan Development Act of 1966. NCPC, on the other hand, developed a transportation plan in response to President Johnson’s call for the development of a “comprehensive plan for a D.C. highway system” which would permit the Department of Transportation to determine whether the Three Sisters Bridge and other projects would be “appropriate links” in such a plan; it then rejected the bridge proposal. And even if TPB approval were not — at least on its face — stale, inapposite, and unsupported by any underlying, comprehensive plan, we would still have difficulty accepting the Department’s finding without some explanation of how the § 134 determination could be made before plans for the bridge are finalized. Nothing in the record suggests that TPB approval— whatever its other apparent shortcomings — embraced each conceivable design that might eventually be adopted. C. Requirements of § 109(a) The Secretary’s approval of plans for a federally-assisted highway project is conditioned on a determination that the proposed facility will “adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance.” The District Court held that planning for the Three Sisters Bridge had not “proceeded to a sufficient degree for the responsible officials to determine that the planned facility is structurally feasible.” Accordingly, the Court enjoined construction of the bridge until the planning had advanced to a stage where structural feasibility was assured. We find the District Court’s judgment consistent with the statute' and the facts presented, and it is therefore affirmed. Plaintiffs also argue, however, that the project was approved before the Secretary could be certain, first, that river bed conditions would support the bridge, and second, that no safety hazard would arise from the increase in air pollution attributable to traffic on the bridge. Again, we are unable to accept the District Court’s disposition. With regard to river bed conditions, the District Court noted that [bjefore the construction of a bridge, it is necessary to make extensive investigations of subsurface conditions to determine if they are sufficient to support the foundations for the bridge piers. This is done primarily by means of borings. * * * At the time Mr. Hall approved the plans, specifications and estimates for the pier construction, these borings had not been completed, and subsequently problems developed so that the plans for the project had to be modified. Called to testify before the District Court, Mr. Hall still could not be certain “that the present planned foundation is adequate.” Nevertheless, the District Court found compliance with § 109(a) because of Mr. Hall’s testimony “that there is no question that the piers can be built to support the bridge as presently planned.” The Department of Transportation is obviously unwilling to construct a bridge known to be unsafe, and during the course of construction the Department would surely verify the suitability of the river bed conditions. But § 109(a) requires not only that the bridge be safe, but also — and no less important — that its safety be ascertained before the Secretary approves the project. That requirement minimizes the safety hazards and at the same time insures that public funds will not be squandered on a demonstrably unsafe proposal. Where planning reveals defects in design or location, those defects can be corrected on paper rather than on steel and concrete. The District Court’s findings are not entirely clear as to whether questions about the safety of river bed conditions could be more fully resolved before construction resumes. We hold that if such questions do exist, the Secretary must take steps to resolve them to the fullest practical extent before granting approval of the project under § 109(a). Plaintiffs' second contention under § 109(a) concerns the dangers of air pollution. The District Court concluded that evidence of a potential air pollution hazard was insufficient to support a finding “that the defendants are required to undertake a study of such [air pollution] effects.” We can find no basis in the statute’s language or purpose for the conclusion that certain hazards are, as a matter of law, immaterial to the Secretary’s evaluation of a project’s safety. The District Court would surely agree that Congress did not intend to permit construction of a bridge in a situation, however rare, where air pollution would be a significant threat to safety. It does not follow, of course, that air pollution will be a significant hazard in all — or even any — highway projects. And the District Court apparently concluded that no extraordinary dangers are likely to arise from the Three Sisters Bridge. Still, the gathering and evaluation of evidence on potential pollution hazards is the responsibility of the Secretary of Transportation, and he undertook no study of the problem. His staff has far greater resources and expertise on this matter than the District Court, and it is possible that a study by the Department would reveal significant dangers which had escaped the attention of the District Court. Inquiry into this issue cannot be foreclosed merely because the District Court found no significant evidence of air pollution hazards. That determination must be made in the first instance by the Secretary of Transportation. D. Requirements of § 128 Section 128 requires that public hearings be held before construction can begin. In the earlier appeal we specifically held applicable to the Three Sisters Bridge project not only § 128, but also the Department of Transportation’s implementing regulations. Those regulations require, in certain specified situations, a hearing on project location and a hearing on project design. After exhaustive consideration of the record, the District Court concluded that the Department had not complied with the design hearing requirement, but that the location hearing requirement had been satisfied. While the government did not admit error with regard to the design hearing, it nevertheless chose to hold the necessary hearing in a commendable effort to reduce the number of issues outstanding. Since the question has now been mooted, we express no opinion on the District Court’s conclusion. As for the location hearing, the District Court reasoned that a hearing held in 1964 satisfied the requirement, even though different proposals were the subject of that hearing, since the change in plan was “so insubstantial that the public would not be affected any differently than by the original proposal which formed the basis for the first hearing. ” We have no quarrel with the District Court’s reasoning, but on the present record we are unable to accept its application to this case. Of the proposals submitted at the 1964 hearing, the one most similar to current plans for the bridge was still off by 1500 feet on the District of Columbia shore and 950 feet on the Virginia shore. Ramps and interchanges as well as the routing of traffic have also been substantially redesigned. Nevertheless, the District Court could not “conceive how many members of the public would be affected differently by the present location than by one of the three” considered in 1964. It is entirely conceivable to us that the differences in the plans would, in fact, have a substantially different impact on persons on both shores. We would be reluctant, of course, to disturb the District Court’s finding of fact on this point if it were clear that a finding had actually been made. But there is no indication in the record before us that the District Court gathered evidence on this issue, and we have nothing to support the conclusion but the conclusion itself. Moreover, in making the determinations required by this opinion, the Secretary may conclude that current plans must be abandoned in favor of a new location. Accordingly, we remand this issue to the District Court for clarification of the factual basis of its conclusion, and for reconsideration in light of any further location changes the Secretary of Transportation may order. E. Requirements of § 817 If the Secretary determines that lands owned by the United States are needed for a proposed highway project, he must file with the Secretary of the Department supervising the administration of such lands or interests in lands a. map showing the portion of such lands or interests in land which it is desired to appropriate. After concluding that the bridge project would use federal parklands under the jurisdiction of the Interior Department’s National Park Service, and after noting defendant's admission that a map had not been filed, the District Court still found “compliance with the spirit, if not' the letter, of § 317.” The court based its findings on the consultation between the Transportation and Interior Departments with regard to this project, and on the issuance by the latter of permits for the use of the parkland. We agree with the District Court that the failure to supply a map should not be an absolute bar to the construction of the bridge if the purposes of § 317 have in fact been realized. That section is designed, as the District Court acknowledged, to require the Secretary of Transportation to give notice to the Secretary of the Department having control of the land, and provide a means by which the latter may protect any governmental interest in use of the property for purposes other than highway construction. We need not decide whether the District Court erred in finding compliance with the spirit of § 317. In view of our conclusion that the case must be remanded for new determinations, it would not appear to be a significant burden on the Department to remove all doubts under this section by filing the appropriate map. F. Provisions Other Than Title 23 At the hearing below, the District Court barred plaintiffs from presenting evidence on ■ a number of allegations in their complaint because those allegations related to statutory provisions which the District Court found inapplicable to the Three Sisters Bridge project. Thus, the Court concluded that the project was exempted by Congress from compliance with certain provisions of the federal Code, as well as provisions of the District of Columbia Code. In 1968 we held in D.C. Federation of Civic Associations, Inc. v. Airis that this project must comply with pertinent requirements of the D.C.Code. Later that year, Congress directed, in Section 23 of the Federal-Aid Highway Act, that [notwithstanding any other provision of law or any court decision or administrative action to the contrary... construction [of the Three Sisters Bridge] shall be undertaken as soon as possible... and shall be carried out in accordance with all applicable provisions of Title 23 of the United States Code. The District Court then held explicitly that the Three Sisters Bridge had been exempted from all of the pre-eonstruetion provisions of title 23, and implicitly that the bridge had been exempted from the comparable provisions of the D.C. Code. On appeal from that decision, we held that the bridge must comply with all applicable provisions of title 23. Our opinion did not indicate flatly, however, that the project must also comply with non-title 23 provisions. In view of the District Court’s conclusion that compliance with nontitle 23 provisions is not required, we must now resolve the ambiguity arguably left by our earlier opinion. The applicability of these provisions was not squarely faced in the parties’ briefs, nor was it discussed at oral argument. While our earlier opinion did make one specific reference to the issue, the parties now draw opposite conclusions from that reference. Discussing section 23’s directive that the bridge be built “notwithstanding any * * * court decision * * * to the contrary,” we pointed out that [presumably the “court decision” language refers to our decision in Airis [holding D.C.Code provisions applicable to the Three Sisters Bridge], but the reference is mistaken since that decision was not “to the contrary.” Under these circumstances, we are reluctant to resolve the dispute without providing the parties an opportunity to discuss the question on the merits. Accordingly, we defer judgment on this issue to permit the parties to file, within twenty days from the date of this opinion, memoranda dealing with the question. II As Part I of this opinion makes clear, the Secretary’s determinations failed to comply with a significant num- • ber of title 23 provisions applicable to the Three Sisters Bridge. Taken as a whole, the defects in the Secretary’s determinations — in particular, his effort to make the determinations before plans for the bridge were complete — lend color to plaintiffs’ contention that the repeated and public threats by a few.Congressional voices did have an impact on the Secretary’s decisions. As the District Court pointed out, [t]here is no question that the evidence indicates that strong political pressure was applied by certain members of Congress in order to secure approval of the bridge project. Congressman Natcher stated publicly and made no secret of the fact that he would do everything that he could to withhold Congressional appropriations for the District of Columbia rapid transit system, the need for which is universally recognized in the Washington metropolitan area, until the District complied with the 1968 Act. When funds for the subway were, in fact, blocked, Representative Natcher made his position perfectly clear, stating that “as soon as the freeway project gets under way beyond recall then we will come back to the House and recommend that construction funds for rapid transit be approved.” The author of this opinion is convinced that the impact of this pressure is sufficient, standing alone, to invalidate the Secretary’s action. Even if the Secretary had taken every formal step required by every applicable statutory provision, reversal would be required, in my -opinion, because extraneous pressure intruded into the calculus of considerations on which the Secretary’s decision was based. Judge Fahy, on the other hand, has concluded that since critical determinations cannot stand irrespective of the allegations of pressure, he finds it unnecessary to decide the ease on this independent ground. In my view, the District Court clearly and unambiguously found as a fact that the pressure exerted by Representative Natcher and others did have an impact on Secretary Volpe’s decision to approve the bridge. The Court pointed out that [t]he statement issued by the Secretary at the time he directed the Federal Highway Administrator to restore the bridge to the Interstate System indicates that the pressure on the rapid transit funds was a consideration at that time. The Court also found, on the basis of the Secretary's contemporaneous statements and his testimony before the Court, that There is no question that the pressure regarding the rapid transit appropriations was given some consideration at the time of the approval of the project in August, 1969. The Secretary’s testimony indicated, as the court below pointed out, that “his decision was based on the merits of the project and not solely on the extraneous political pressures.” Notwithstanding these findings of fact, the Court determined as a matter of law that since the Secretary was not acting in a judicial or quasi-judicial capacity, his decision would be invalid only if based -solely on these extraneous considerations. I cannot accept that formulation of the applicable legal principle. While Judge Fahy is not entirely convinced that the District Court ultimately found as a fact that the extraneous pressure had influenced the Secretary’s decision — a point which is for me clear- — he has authorized me to note his concurrence in my discussion of the controlling principle of law: namely, that the decision would be invalid if based in whole or in part on the pressures emanating from Representative Natcher. Judge Fahy agrees, and we therefore hold, that on remand the Secretary must make new determinations based strictly on the merits and completely without regard to any considerations not made relevant by Congress in the applicable statutes. The District Court was surely correct in concluding that the Secretary’s action was not judicial or quasi-judicial, and for that reason we agree that much of the doctrine cited by plaintiffs is inap-posite. If he had been acting in such a capacity, plaintiffs could have forcefully argued that the decision was invalid because of the decisionmaker’s bias, or because he had received ex parte communications. Well-established principles could have been invoked to support these arguments, and plaintiffs might have prevailed even without showing that the pressure had actually influenced the Secretary’s decision. With regard to judicial de-cisionmaking, whether by court or agency, the appearance of bias or pressure may be no less objectionable than the reality. But since the Secretary’s action was not judicial, that rationale has no application here. If, on the other hand, the Secretary’s action had been purely legislative, we might have agreed with the District Court that his decision could stand in spite of a finding that he had considered extraneous pressures. Beginning with Fletcher v. Peck, the Supreme Court has maintained that a statute cannot be invalidated merely because the legislature’s action was motivated by impermissible considerations (except, perhaps, in special circumstances not applicable here). Indeed, that very principle requires us to reject plaintiffs’ argument that the approval of the bridge by the District of Columbia City Council was in some sense invalid. We do not sit in judgment of the motives of the District’s legislative body, nor do we have authority to review its decisions. The City Council’s action constituted, in our view, the approval of the project required by statute. Thus, the underlying problem cannot be illuminated by a simplistic effort to force the Secretary’s action into a purely judicial or purely legislative mold. His decision was not “judicial” in that he was not required to base it solely on a formal record established at a public hearing. At the same time, it was not purely “legislative” since Congress had already established the boundaries within which his discretion could operate. But even though his action fell between these two conceptual extremes, it is still governed by principles that we had thought elementary and beyond dispute. If, in the course of reaching his decision, Secretary Volpe took into account “considerations that Congress could not have intended to make relevant,” his action proceeded from an erroneous premise and his decision cannot stand. The error would be more flagrant, of course, if the Secretary had based his decision solely on the pressures generated by Representative Natcher. But it should be clear that his action would not be immunized merely because he also considered some relevant factors. It is plainly not our function to establish the parameters of relevance. Congress has carried out that task in its delegation of authority to the Secretary of Transportation. Nor are we charged with the power to decide where or when bridges should be built. That responsibility has been entrusted by Congress to, among others, the Secretary, who has the expertise and information to make a decision pursuant to the statutory standards. So long as the Secretary applies his expertise to considerations Congress intended to make relevant, he acts within his discretion and our role as a reviewing court is constrained. We do not hold, in other words that the bridge can never be built. Nor do we know or mean to suggest that the information now available to the Secretary is necessarily insufficient to justify construction of the bridge. We hold only that the Secretary must reach his decision strictly on the merits and in the manner prescribed by statute, without reference to irrelevant or extraneous considerations. For the purposes of the foregoing discussion, we have assumed that pressures exerted by Congressional advocates of the bridge are irrelevant to the merits of the questions presented to Secretary Volpe. It does not seem possible to make even a colorable argument of relevance except with regard to § 138. But it might be argued that the potential loss of the subway was the type of “unique problem” and cost of “extraordinary magnitude” that the Secretary could properly consider in deciding, pursuant to § 138, that there were no prudent alternatives to the use of parkland for the bridge. The Secretary plainly understood that the price of abandoning, modifying, or even delaying construction of the bridge was the loss of appropriations for the District’s subway. He undoubtedly viewed the prospect of that loss with understandable alarm, and may have concluded that the destruction of parkland was inescapable and appropriate in the face of Representative Natcher’s clear and enforceable threat. We cannot agree, however, that a determination grounded on that reasoning would satisfy the requirements of § 138. Neither the section’s legislative history nor the Supreme Court’s decision in Overton Park indicates clearly whether or not this sort of consideration should be deemed relevant. We are persuaded, however, that holding these pressures relevant would effectively emasculate the statutory scheme. The purpose of § 138, in our view, was to preserve parkland by directing the Secretary to reject its use except in the most unusual situation where no alternative would be available. The “unusual situation” posited here is entirely the product of the action of a small group of men with strongly-held views on the desirability of the bridge, who, it may be assumed, are acting with the interests of the public at heart. They may well be correct in concluding that a new bridge is needed and that no alternative location is available. But no matter how sound their reasoning nor how lofty their motives, they cannot usurp the function vested by Act of Congress in the Secretary of Transportation. Until the statute is amended or repealed by another Act of Congress, the Secretary must himself decide, bearing in mind the statute’s mandate for the preservation of parkland, whether a prudent alternative is available. Congress could not have contemplated that an alternative would be “imprudent” merely because persons who are convinced that parkland should be used have the power to decree that all alternatives to the use of that parkland shall henceforth be agonizing. Our interpretation of § 138 is essential if the Secretary is to be insulated from extraneous pressures that have no relevance to his assigned statutory task. To avoid any misconceptions about the nature of our holding, we emphasize that we have not found — nor, for that matter, have we sought — any suggestion of impropriety or illegality in the actions of Representative Natcher and others who strongly advocate the bridge. They are surely entitled to their own views on the need for the Three Sisters Bridge, and we indicate no opinion on their authority to exert pressure on Secretary Volpe. Nor do we mean to suggest that Secretary Volpe acted in bad faith or in deliberate disregard of his statutory responsibilities. He was placed, through the action of others,. in an extremely treacherous position. Our holding is designed, if not to extricate him from that position, at least to enhance 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_weightev
A
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOLLYWOOD BRANDS, INC., a Minnesota corporation, Respondent. No. 16414. United States Court of Appeals Seventh Circuit. July 17, 1968. Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy Sherman, Atty., N. L. R. B., Washington, D. C., Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Vivian Asplund, Atty., N. L. R. B., for petitioner. Arthur R. Donovan, Harry P. Dees, Joseph A. Yocum, Evansville, Ind., for respondent; Kahn, Dees, Donovan & Kahn, Evansville, Ind., of counsel. Before SCHNACKENBERG, KILEY and CUMMINGS, Circuit Judges. SCHNACKENBERG, Circuit Judge. National Labor Relations Board, petitioner, requests enforcement of its order requiring Hollywood Brands, Inc., a Minnesota corporation, respondent, to bargain collectively with a union as the exclusive bargaining representative of the production and maintenance employees in its business at Centralia, Illinois. The order is based in part upon findings made in a representation proceeding under § 9 of the National Labor Relations Act, 29 U.S.C. § 151 et seq. A secret ballot election was held among respondent’s employees, who chose the union to represent them. Timely objections to alleged union conduct affecting the election results were filed with the Board, which, upon notice to the parties, held an investigation. The objections were then overruled by the Board, which certified the union. Thereafter, a complaint, initiated by the union, was issued, alleging that respondent refused to bargain on request, in violation of § 8(a) (5) and (1) of the Act. Respondent’s answer denied that the union was the exclusive bargaining representative of its employees and the unfair labor practices. Pursuant to existing Board regulations (29 C.F.R. § 102.24), an order to show cause why disposition should not be made on the pleadings was issued by a trial examiner, who, after considering all responses to the motion, found that, according to established Board policy, no issues required a hearing. Accordingly, the examiner concluded that respondent had refused to bargain. The decision was affirmed by the Board which ordered respondent to cease and desist from engaging in the unfair labor practices found, to bargain with the union, and to post appropriate notices. Respondent’s objections to union conduct prior to the representation election raise the sole issue whether the Board properly found the charged violation. Respondent’s counsel has argued here that the facts entitle it to an order setting aside the election or a hearing as to the issues raised by its objections. The objections were made to two statements in a union circular distributed by the union the night before the election. One statement read: DON’T DO IT CLAYTON! “There is a story going the rounds that Clayton Martoccio [the Company’s vice president] is planning some drastic changes at Hollywood Brands. One of them we are told, (and we hope it is untrue), is that he plans to get rid of many of the older employees by instituting a series of physical examinations that a lot of workers would be unable to pass. This procedure has been used successfully elsewhere. It is used to get rid of oldtimers and those the company just doesn’t want for one reason or another. “The Union will bitterly oppose any such plan proposed or even contemplated by management. The seniority clause in the union contract would protect employees with years of loyal service and see that they were allowed to continue on the job as long as they could perform their work reasonably well. “JOB SECURITY is the number one aim of the Teamsters for all its members. We urge you to gain real job security by voting ‘Yes.’ You need the support of the world’s strongest union. YOU CAN’T BARGAIN ALONE.” As to this statement, respondent charged the union with “attempting to create an atmosphere of fear and coercion” because it stated “not only an extremely false assertion as though it were a statement of fact, but in addition in a very pointed way threatens the Employer’s ‘older employees’ with discharge if Petitioner did not win the election.” Further, respondent asserts that the statement enfetters the employees’ free choice of representatives, particularly the older employees who would be unable to rationally evaluate the statement’s truth. Another statement in the circular read: “Mr. Martoccio, the Teamsters do not have to know how to make candy to help your employees. The Teamsters have over a hundred thousand contracts with employers around the country. Most of them used the same ‘line.’ When we organized 5,000 employees in the Sikorsky Helicopter Company a few years ago, they said ‘What can Mr. Hoffa do for you, he doesn’t know how to make a helicopter.’ “What Mr. Hoffa has, Mr. Martoccio, is the power to ask the public not to buy your product and to see that it does not get delivered. This is the only power a boss seems to understand. The Stamper Company a few years ago began a fight to keep their employees from joining the Teamsters. Mr. Hoffa had hundreds of Teamster members stand in front of the big chain stores and ask the public not to buy ‘Banquet’ brand frozen foods. Pretty soon the store began throwing out their products. They did not want people giving but leaflets about anything they sold. Immediately Mr. Stamper got in touch with the Teamsters and signed a contract covering some 2,500 of his employees. He did this because he got hurt in the pocketbook. This can happen to candy bars too, Mr. Martoccio. Money isn’t everything Mr. Martoccio, ‘you can’t take it with you.’ ” As to this statement, respondent objected to the threat that if it did not agree to union demands, not only would it be hurt, but the employees’ jobs would be severely affected, hinting at unlawful secondary boycotts and compelling the public not to buy its products. The Board’s investigation established first, that a rumor of unknown origin was circulated among the employees immediately prior to the election, and second, that is could not conclude that the employees were unable to evaluate the union’s report of the rumor. Also established was the fact that respondent sent a number of letters to employees discussing strikes and their consequences which stressed the union’s only recourse was to strike if its demands were rejected. 1. This court has stated the rule, recognized by respondent, which is applicable here. Thus, in N. L. R. B. v. National Survey Service, Inc., 7 Cir., 361 F.2d 199, 208 (1966), we said allegations in objections must raise substantial and material issues of fact. If respondent has failed to present sufficient evidence to raise substantial and material issues of fact which warrant a hearing or an order setting aside the election, its conclusion is without merit, and no evidentiary hearing is required. Macomb Pottery Company v. National Labor Relations Board, 7 Cir., 376 F.2d 450, 452 (1967). We have examined the statement regarding the rumor and hold respondent’s conclusion to be unwarranted. It has not alleged that the union started the rumor. Thus, while the conclusion may be true, according to facts or other information of which it alone is privy, such facts must be contained in its objections. Denial of the rumor and the conclusion that the union’s campaign “ * * * reeks of intimidation and coercion amounting to terror” raise no issue of fact because on its face the statement is mere campaign material. Real concern for the origin of the rumor or, as to the “boycott” statement, the union’s implication in that statement requires respondent to produce facts which when presented warrant a hearing. See N.L. R.B. v. National Survey Service, Inc., supra, where, in a like situation we said: “In the absence of some showing of reasonable effort and failure to obtain evidence, or a convincing demonstration that such efforts would necessarily involve risk of illegal action or inequitable or insuperable difficulty, we hold that, under the facts in this case, the failure to provide a hearing on allegations which do not raise substantial and material issues of fact was not fundamentally unfair.” 2. Respondent charges that the plain import of the union statement, that it has the power to enforce its demands, threatens an unlawful secondary boycott, were the respondent to win the election. We agree with the Board, that it does not. Here, both union and respondent stipulated that an election would determine whether its employees would be represented by the union. Picketing by the union were it to lose the election is a false premise. That part of the statement — “to see that it does not get delivered” — alone might imply coercion and threats of violence. However, here, we should impute no wrongdoing'if there is an equally lawful construction. Actually, the union’s illustration of its power, repels such a conclusion, since peaceful secondary picketing of retail stores directed solely toward appealing to consumers to refrain from buying the primary employer’s product is lawful. In N.L.R.B. v. Fruit and Vegetable Packers, 377 U.S. 58 at 63-64, 84 S.Ct. 1063, at 1066,12 L.Ed.2d 129 (1964) the Supreme Court stated: “ * * * the legislative history * * reflects the difference between such conduct [secondary boycotts] and peaceful picketing at the secondary site directed only at the struck product. In the latter case, the union’s appeal to the public is confined to its dispute with the primary employer, since the public is not asked to withhold its patronage from the secondary employer, but only to boycott the primary employer’s goods. On the other hand, a union appeal to the public at the secondary site not to trade at all with the secondary employer goes beyond the goods of the primary employer, and seeks the public’s assistance in forcing the secondary employer to cooperate with the union in its primary dispute.” Respondent further demonstrates this distinction with respect to its case in describing union activity following the union’s failure to bargain, by concluding: “ * * * they [the union] have made their threat and for some months past have been trying to carry it out.” Thus, the Board’s rejection of these objections and denial of a hearing did not deny respondent due process of law. Accordingly, absent any evidence to the contrary, the Board’s order will be enforced. Order enforced. . Chauffeurs and Helpers Local No. 50, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America. . The Board’s decision and order are reported at 163 NLRB No. 107. . In its brief, at p. 70, dehors the record, respondent states: “ * * * It is interesting to note that the union in this case, since the time of the above affidavit, has through its international headquarters taken, among other things, the following action: (1) Under Mr. Hoffa’s signature sent approximately 16,000 letters to Respondent’s, jobbers and wholesalers asking them not to purchase our product; (2) Circulated leaflets and other handouts at shopping centers; (3) Published ads in its, international magazine and in the press asking its membership and the public not to buy our products; (4) Made direct and indirect assertions to customers of Respondent that they had ‘better not’ handle or purchase our product; (5) Caused customers of Respondent through the above to discontinue purchase of Respondents product until things get ‘ironed out’ particularly in the part of the country where union power is great, i. e., urban areas.; * * (Italics added for emphasis.) Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_1-3-1
R
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". Mickey D. STAGGS, Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Appellee. No. 20194. United States Court of Appeals, Eighth Circuit. Aug. 6, 1970. Mickey D. Staggs filed brief pro se. Bert C. Hurn, U. S. Atty., and Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., filed brief of appellee. Before VAN OOSTERHOUT, JOHN-SEN and HEANEY, Circuit Judges. PER CURIAM. Petitioner, Mickey D. Staggs, appeals pro se from a judgment of the United States District Court for the Western District of Missouri denying his petition for a writ of habeas corpus. On June 17, 1963, the petitioner was sentenced under the provisions of the Federal Youth Corrections Act, 18 U.S. C. § 5017(c), in the United States District Court for the Middle District of Tennessee. Section 5017 (c) provides that: “A youth offender committed under 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.” Subsequently, the petitioner’s conviction was vacated, and on February 2, 1965, he was again convicted and resentenced under 18 U.S.C. § 5017(c). He was given no credit for time served under the initial sentence. On June 1, 1966, the petitioner was conditionally released with supervision to continue to February 1, 1971. He was subsequently arrested and convicted on two separate charges in the state courts of Tennessee. On the basis of these convictions, a Parole Violator Warrant issued on January 11, 1968, and was executed on June 5, 1969, at the Tennessee State Penitentiary. The petitioner was committed to the Federal Correctional Institution, Texarkana, Texas; he was given a parole revocation hearing in Texarkana; and his parole was revoked. The petitioner subsequently was transferred to the Medical Center in Springfield, Missouri. On appeal, the petitioner raises six issues previously raised in the District Court. His primary contention is that he should have been given credit at the time he was resentenced on February 2, 1965, for time served under his June 17, 1963, sentence for the same offense. This contention has been mooted by the petitioner’s release from the Medical Center on July 3, 1970, in accordance with current policy giving credit for time served on vacated sentences. See, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Beufve v. United States, 374 F.2d 123 (5th Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 122, 19 L.Ed.2d 175 (1967). The petitioner’s remaining five contentions concern the validity of his sentence and the validity of his parole revocation. We do not decide these questions here as they either have been mooted by the petitioner’s release or properly should have been brought before the sentencing court on a § 2255 motion. Judgment accordingly. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_district
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SMITH & WESSON, Respondent. No. 7459. United States Court of Appeals, First Circuit. April 21, 1970. Baruch A. Fellner, Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, Washington, D. C., were on brief, for petitioner. Martin E. Skoler, Springfield, Mass., with whom Glazier & Skoler, Springfield, Mass., was on brief, for respondent. Before ALDRICH, Chief Judge, COFFIN, Circuit Judge, and BOWNES, District Judge. PER CURIAM. This is a petition to enforce an NLRB order based on violations of section 8(a) (3) and (1) of the act, 29 U.S.C. § 158 (a) (3) and (1). The Board found that the company had engaged in certain threats of reprisals and other related anti-union conduct and that it subsequently discharged one William Dau-plaise because of his union activity. The company’s opposition in this court is based on the claim that the evidence did not warrant the findings. For reasons not necessary to detail, the single contradicted incident of supervisor Haines’ initially telling Dauplaise that he would be “sorry” if the union lost, does not greatly impress us. In addition, the trial examiner’s finding it unlikely that leadman Parker would joke when he saw the word “Subpoena” on a paper seems, in all candor, unrealistic. Nor are we enthusiastic about holding the company for an isolated remark by an employee of so little authority as Parker. If not jocose, his statement not to pay attention to Board subpoenas seems self-generated, and unauthorized by any general company conduct or policy. If this were all there were to the Board’s case we would find it of dubious strength. However, this inclination evaporates when we come to the principal issue. The Board’s finding with respect to Dauplaise’s termination is so strongly supported that we cannot regard the company’s resistance thereto as anything but frivolous. In spite of much protesting, there is not only no evidence that any previous employee had been terminated because he made his request for extended leave orally rather than in writing, but no solid reason appears for such rigidity. This is not even a case where there was a question as to the oral request. On the contrary, all witnesses not only agree that it was made, but that the employee was told he could have his job back as soon as he had his doctor’s certificate. Furthermore, on the company’s own evidence, the rule was not self-operating, and might be waived. Finally, apart from anti-union animus, there was a strong reason why Dauplaise should be retained, rather than let go. This, of course, is the guts of the case. Some penalty should attach to taking up our time with such a meritless contention. The order will be enforced, and pursuant to FRAP 38 the Board will recover, in addition to its regular costs, the sum of $500 for expense. 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_casesource
158
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. WENGLER v. DRUGGISTS MUTUAL INSURANCE CO. et al. No. 79-381. Argued. February 25, 1980 Decided April 22, 1980 White, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, Marshall, BlackmtjN, and Powell, JJ., joined. SteveNS, J., filed an opinion concurring in the judgment, post, p. 154. Rehnquist, J., filed a dissenting statement, post, p. 153. John W. Reid II argued the cause and filed a brief for appellant. Ralph C. Kleinschmidt argued the cause for appellees. With him on the brief was Gerre S. Langton Ruth Bader Ginsburg filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Solicitor General McCree, Assistant Attorney General Days, Stuart A. Smith, Brian K. Landsberg, and Mark L. Gross filed a brief for the United States as amicus curiae. Mr. Justice White delivered the opinion of the Court. This case challenges under the Equal Protection Clause of the Fourteenth Amendment a provision of the Missouri workers’ compensation laws, Mo. Rev. Stat. § 287.240 (Supp. 1979), which is claimed to involve an invalid gender-based discrimination. I The facts are not in dispute. On February 11, 1977, Ruth Wengler, wife of appellant Paul J. Wengler, died in a work-related accident in the parking lot of her employer, appellee Dicus Prescription Drugs, Inc. Appellant filed a claim for death benefits under Mo. Rev. Stat. § 287.240 (Supp. 1979) , under which a widower is not entitled to death benefits unless he either is mentally or physically incapacitated from wage earning or proves actual dependence on his wife’s earnings. In contrast, a widow qualifies for death benefits without having to prove actual dependence on her husband’s earnings. Appellant stipulated that he was neither incapacitated nor dependent on his wife’s earnings, but argued that, owing to its disparate treatment of similarly situated widows and widowers, § 287.240 violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The claim was administratively denied, but the Circuit Court of Madison County reversed, holding that § 287.240 violated the Equal Protection Clause because the statutory restriction on a widower’s recovery of death benefits did not also apply to a surviving wife. Dicus and its insurer, appellee Druggists Mutual Insurance Co., were ordered to pay death benefits to appellant in the appropriate amount. App. to Juris. Statement A22-A25. The Missouri Supreme Court, distinguishing certain cases in this Court, reversed the Circuit Court’s decision. The equal protection challenge to § 287.240 failed because “the substantive difference in the economic standing of working men and women justifies the advantage that [§287.240] administratively gives to a widow.” 583 S. W. 2d 162, 168 (1979). Because the decision of the Supreme Court of Missouri arguably conflicted with our precedents, we noted probable jurisdiction. 444 U. S. 924 (1979). We now reverse. II The Missouri law indisputably mandates gender-based discrimination. Although the Missouri Supreme Court was of the view that the law favored, rather than disfavored, women, it is apparent that the statute discriminates against both men and women. The provision discriminates against a woman covered by the Missouri workers’ compensation system since, in the case of her death, benefits are payable to her spouse only if he is mentally or physically incapacitated or was to some extent dependent upon her. Under these tests, Mrs. Wengler’s spouse was entitled to no benefits. If Mr. Wengler had died, however, Mrs. Wengler would have been conclusively presumed to be dependent and would have been paid the statutory amount for life or until she remarried even though she may not in fact have been dependent on Mr. Wengler. The benefits, therefore, that the working woman can expect to be paid to her spouse in the case of her work-related death are less than those payable to the spouse of the deceased male wage earner. It is this kind of discrimination against working women that our cases have identified and in the circumstances found unjustified. At issue in Weinberger v. Wiesenfeld, 420 U. S. 636 (1976), was a provision in the Social Security Act, 42 U. S. C. § 402 (g), that granted survivors’ benefits based on the earnings of a deceased husband and father covered by the Act both to his widow and to the couple’s minor children in her care, but that granted benefits based on the earnings of a covered deceased wife and mother only to the minor children and not to the widower. In concluding that the provision violated the equal protection component of the Fifth Amendment, we noted that, “ [ojbviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support.” Weinberger v. Wiesenfeld, supra, at 645, citing Kahn v. Shevin, 416 U. S. 351, 354, n. 7 (1974). But such a generalization could not itself justify the gender-based distinction found in the Act, for § 402 (g) “clearly operate[d] ... to deprive women of protection for their families which men receive as a result of their employment.” 420 U. S., at 645. The offensive assumption was “that male workers’ earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families’ support.” Id., at 643 (footnote omitted). Similarly, in Califano v. Goldfarb, 430 U. S. 199 (1977), we dealt with a Social Security Act provision providing survivors’ benefits to a widow regardless of dependency, but providing the same benefits to a widower only if he had been receiving at least half of his support from his deceased wife. 42 U. S. C. § 402 (f) (1) (D). Mr. Justice Brennan’s plurality opinion pointed out that, under the challenged section, “female insureds received less protection for their spouses solely because of their sex” and that, as in Wiesenfeld, the provision disadvantaged women as compared to similarly situated men by providing the female wage earner with less protection for her family than it provided the family of the male wage earner even though the family needs might be identical. Califano v. Goldfarb, supra, at 208. The plurality opinion, in the circumstances there, found the discrimination violative of the Fifth Amendment’s equal protection guarantee. Frontiero v. Richardson, 411 U. S. 677 (1973), involved a similar discrimination. There, a serviceman could claim his wife as a dependent without regard to whether she was in fact dependent upon him and so obtain increased quarters allowances and medical and dental benefits. A servicewoman, on the other hand, could not claim her husband as a dependent for these purposes unless he was in fact dependent upon her for over one-half .of his support. This discrimination, devaluing the service of the woman as compared with that of the man, was invalidated. The Missouri law, as the Missouri courts recognized, also discriminates against men who survive their employed wives’ dying in work-related accidents. To receive benefits, the surviving male spouse must prove his incapacity or dependency. The widow of a deceased wage earner, in contrast, is presumed dependent and is guaranteed a weekly benefit for life or until remarriage. It was this discrimination against the male survivor as compared with a similarly situated female that Mr. Justice Stevens identified in Califano v. Goldfarb, supra, as resulting in a denial of equal protection. 430 U. S., at 217-224 (opinion of Stevens, J.). Ill However the discrimination is described in this case, our precedents require that gender-based discriminations must serve important governmental objectives and that the discriminatory means employed must be substantially related to the achievement of those objectives. Califano v. Westcott, 443 U. S. 76, 85 (1979); Orr v. Orr, 440 U. S. 268, 279 (1979); Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190, 197 (1976). Acknowledging that the discrimination involved here must satisfy the Craig v. Boren standard, 583 S. W. 2d, at 164-165, the Missouri Supreme Court stated that “the purpose of the [law] was to favor widows, not to disfavor them” and that when the law was passed in 1925 the legislature no doubt believed that “a widow was more in need of prompt payment of death benefits upon her husband’s death without drawn-out proceedings to determine the amount of dependency than was a widower.” Id,., at 168. Hence, the conclusive presumption of dependency satisfied “a perceived need widows generally had, which need was not common to men whose wives might be killed while working.” Ibid. The survivor’s “hardship was seen by the legislature] as more immediate and pronounced on women than on men,” and “the substantive difference in the economic standing of working men and women justifies the advantage that [the law] administratively gives to a widow.” Ibid. Providing for needy spouses is surely an important governmental objective, Orr v. Orr, supra, at 280, and the Missouri statute effects that goal by paying benefits to all surviving female spouses and to all surviving male spouses who prove their dependency. But the question remains whether the discriminatory means employed — discrimination against women wage earners and surviving male spouses — itself substantially serves the statutory end. Surely the needs of surviving widows and widowers would be completely served either by paying benefits to all members of both classes or by paying benefits only to those members of either class who can demonstrate their need. Why, then, employ the discriminatory means of paying all surviving widows without requiring proof of dependency, but paying only those widowers who make the required demonstration? The only justification offered by the state court or appellees for not treating males and females alike, whether viewed as wage earners or survivors of wage earners, is the assertion that most women are dependent on male wage earners and that it is more efficient to presume dependency in the case of women than to engage in case-to-case determination, whereas individualized inquiries in the postulated few cases in which men might be dependent are not prohibitively costly. The burden, however, is on those defending the discrimination to make out the claimed justification, and this burden is not carried simply by noting that in 1925 the state legislature thought widows to be more in need of prompt help than men or that today “the substantive difference in the economic standing of working men and women justifies the advantage” given to widows. 583 S. W. 2d, at 168. It may be that there is empirical support for the proposition that men are more likely to be the principal supporters of their spouses and families, Weinberger v. Wiesenfeld, 420 U. S., at 645, but the bare assertion of this argument falls far short of justifying gender-based discrimination on the grounds of administrative convenience. Yet neither the court below nor appellees in this Court essay any persuasive demonstration as to what the economic consequences to the State or to the beneficiaries might be if, in one way or another, men and women, whether as wage earners or survivors, were treated equally under the workers’ compensation law, thus eliminating the double-edged discrimination described in Part II of this opinion. We think, then, that the claimed justification of administrative convenience fails, just as it has in our prior cases. In Frontiero v. Richardson, 411 U. S., at 689-690, the Government claimed that, as an empirical matter, wives are so frequently dependent upon their husbands and husbands so rarely dependent upon their wives that it was cheaper to presume wives to be dependent upon their husbands while requiring proof of dependency in the case of the male. The Court found the claimed justification insufficient to save the discrimination. And in Reed v. Reed, 404 U. S. 71, 76 (1971), the Court said “[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause. . . .” See also Califano v. Goldfarb, 430 U. S., at 219-220 (opinion of Stevens, J.). It may be that there are levels of administrative convenience that will justify discriminations that are subject to heightened scrutiny under the Equal Protection Clause, but the requisite showing has not been made here by the mere claim that it would be inconvenient to individualize determinations about widows as well as widowers. IV Thus we conclude that the Supreme Court of Missouri erred in upholding the constitutional validity of § 287.240. We are left with the question whether the defect should be cured by extending the presumption of dependence to widowers or by eliminating it for widows. Because state legislation is at issue, and because a remedial outcome consonant with the state legislature’s overall purpose is preferable, we believe that state judges are better positioned to choose an appropriate method of remedying the constitutional violation. Accordingly, we reverse the decision of the Supreme Court of Missouri and remand the case to that court for further proceedings not inconsistent with this opinion. So ordered. Mr. Justice Rehnquist, continuing to believe that Califano v. Goldfarb, 430 U. S. 199 (1977), was wrongly decided, and that constitutional issues should be more readily reexamined under the doctrine of stare decisis than other issues, dissents and would affirm the judgment of the Supreme Court of Missouri. Missouri Rev. Stat. § 287.240 (Supp. 1979) provides in its entirety (emphasis added): “If the injury causes death, either with or without disability, the compensation therefor shall be as provided in this section: “(1) In all cases the employer shall pay direct to the persons furnishing the same the reasonable expense of the burial of the deceased employee not exceeding two thousand dollars. But no person shall be entitled to compensation for the burial expenses of a deceased employee unless he has furnished the same by authority of the widow or widower, the nearest relative of the deceased employee in the county of his death, his personal representative, or the employer, who shall have the right to give the authority in the order named. All fees and charges under this section shall be fair and reasonable, shall be subject to regulation by the division or the commission and shall be limited to such as are fair and reasonable for similar ■ service to persons of a like standard of living. The division or the commission shall also have jurisdiction to hear and determine all disputes as to the charges. If the deoeased employee leaves no dependents the death benefit in this subdivision provided shall be the limit of the liability of the employer under this chapter on account of the death, except as herein provided for burial expenses and except as provided in section 287.140; provided, that in all cases when the employer admits or does not deny liability for the burial expense, it shall be paid within thirty days after written notice, that the service has been rendered, has been delivered to the employer. The notice may be sent by registered mail, return receipt requested, or may be made by personal delivery; “(2) The employer shall also pay to the total dependents of the employee a death benefit on the basis of sixty-six and two-thirds percent of the employee’s average weekly earnings during the year immediately preceding the injury as provided in section 287.250. Compensation shall be payable in installments in the same manner that compensation is required to. be paid under this chapter, but in no case be less than at the rate of sixteen dollars per week nor more than one hundred twenty dollars per week or as provided in section 287.160. If there is a total dependent, no death benefit shall be payable to partial dependents or any other persons except as provided in subdivision (1); “(3) If there are partial dependents, and no total dependents, a part of the death benefit herein provided in the case of total dependents, determined by the proportion of his contributions to all partial dependents by the employee at the time of the injury, shall be paid by the employer to each of the dependents proportionately; “(4) The word ‘dependent’ as.used in this chapter shall be construed to mean a relative by blood or marriage of a deceased employee, who is actually dependent for support, in whole or in part, upon his wages at the time of the injury. The following persons shall be conclusively presumed to be totally dependent for support upon a deceased employee and any death benefit shall be payable to them to the exclusion of other total dependents: “(a) A wife upon a husband legally liable for her support, and a husband mentally or physically incapacitated from wage earning upon a wife; provided, that on the death or remarriage of a widow or widower, the death benefit shall cease unless there be other total dependents entitled to any death benefit under this chapter. In the event of remarriage, a lump sum payment equal in amount to the benefits due for a period of two years shall be paid to the widow or widower. Thereupon the periodic death benefits shall cease unless there are other total dependents entitled to any death benefit under this chapter in which event the periodic benefits to which said widow or widower would have been entitled had he or she not died or remarried, shall be divided among such other total dependents and paid to them during their period of entitlement under this chapter; “(b) A natural, posthumous, or adopted child or children, whether legitimate or illegitimate, under the age of eighteen years, or over that age if physically or mentally incapacitated from wage earning, upon the parent legally hable for the support or with whom he is living at the time of the death of the parent. In case there is a wife or a husband mentally or physically incapacitated from wage earning, dependent upon a wife, and a child or more than one child thus dependent, the death benefit shall be divided among them in such proportion as may be determined by the commission after considering their ages and other facts bearing on the dependency. In all other eases questions of total or partial dependency shall be determined in accordance with the facts at the time of the injury, and in such other cases if there is more than one person wholly dependent the death benefit shall be divided equally among them. The payment of death benefits to a child or other dependent as provided in this paragraph shall cease when the dependent dies, attains the age of eighteen years, or becomes physically and mentally capable of wage earning over that age, or until twenty-two years of age if the child of the deceased is in attendance and remains as a full-time student in any accredited educational institution, or if at eighteen years of age the dependent child is a member of the armed forces of the United States on active duty; provided, however, that such dependent child shall be entitled to compensation during four years of full-time attendance at a fully accredited educational institution to commence prior to twenty-three years of age and immediately upon cessation of his active duty in the armed forces, unless there are other total dependents entitled to the death benefit under this chapter; “(5) The division or the commission may, in its discretion, order or award the share of compensation of any such child to be paid to the parent, grandparent, or other adult next of kin or legal guardian of the child for the latter’s support, maintenance and education, which order or award upon notice to the parties may be modified from time to time by the commission in its discretion with respect to the person to whom shall be paid the amount of the order or award remaining unpaid at the time of the-modification; “(6) The payments of compensation by the employer in accordance with the order or award of the division or the commission shall discharge the employer from all further obligations as to the compensation; “(7) All death benefits in this chapter shall be paid in installments in the same manner as provided for disability compensation; “(8) Every employer shall keep a record of the correct names and addresses of the dependents of each of his employees, and upon the death of an employee by accident arising out of and in the course of his employment shall so far as possible immediately furnish the division with said names and addresses.” At the time of her death Mrs. Wengler’s wages were $69 per week. Had appellant prevailed in his attempt to receive full death benefits under the statute, his compensation would have been $46 per week. App. to Juris. Statement A23; see Mo. Rev. Stat. §287.240 (2) (Supp. 1979). These benefits would have continued until appellant's death or remarriage. §287.240 (4) (a). Recent decisions in three States have held unconstitutional workers’ compensation statutes with presumptions of dependency identical to that at issue in this case. Arp v. Workers’ Compensation Appeals Board, 19 Cal. 3d 395, 563 P. 2d 849 (1977); Passante v. Walden Printing Co., 53 App. Div. 2d 8, 385 N. Y. S. 2d 178 (1976); Tomarchio v. Township of Greenwich, 75 N. J. 62, 379 A. 2d 848 (1977). The workers’ compensation laws of the vast majority of States now make no distinction between the eligibility of widows and widowers for death benefits. In Kahn v. Shevin, the Court upheld a Florida annual $500 real estate tax exemption for all widows in the face of an equal protection challenge. The Court believed that statistics established a lower median income for women than men, a discrepancy that justified "a state tax law reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden.” 416 U. S., at 355. As in Kahn we accept the importance of the state goal of helping needy spouses, see infra, at 151, but as described in text the Missouri law in our view is not “reasonably designed” to achieve this goal. Thus the holding in Kahn is in no way dispositive of the case at bar. As noted previously, see n. 3, supra, three state courts have recently held unconstitutional workers’ compensation statutes with presumptions of dependency identical to that at issue in this case. In each of the three cases the court characterized the statute’s discrimination as against both working wives and surviving husbands. See Arp v. Workers’ Compensation Appeals Board, 19 Cal. 3d, at 406, 563 P. 2d, at 855 ("[I]t is noteworthy that the conclusive presumption in favor of widows discriminates not only against the widower but against the employed female as well”); Passante v. Walden Printing Co., 53 App. Div. 2d, at 12, 385 N. Y. S. 2d, at 181 (the statute “compels dissimilar treatment both for surviving husbands and working wives, respectively, vis-á-vis widows and working males”); Tomarchio v. Township of Greenwich, 75 N. J., at 75, 379 A. 2d, at 854 (statute unconstitutionally discriminates against both working women and surviving husbands). Appellees attempt to draw support from the fact that Goldfarb and Wiesenfeld arose in the context of the Social Security program. First, they argue, the statute at issue here, unlike a social insurance system that provides blanket survivorship benefits, seeks to compensate for specific economic loss to the worker or his dependents, and appellant can claim no such loss. Relatedly, a widower who suffers and can prove any loss of support is entitled to a corresponding level of benefits under § 287.240, whereas Mr. Goldfarb, under the Social Security Act provision, had to show that he had received at least one-half of his support from his wife at the time of her death. These arguments rely on the fact that covered widowers suffering provable economic loss will receive benefits corresponding to that loss under § 287.240, but they ignore the statute’s discriminatory effect on working women by providing them with less protection for their families than working men. Appellees also argue that, unlike the Social Security program, the workers’ compensation system is not based on mandatory contributions from past wage earnings of the employee. Thus appellant’s late wife was not deprived of a portion of her earnings to contribute to a fund out of which her husband would not benefit. But we have before rejected the proposition that “the Constitution is indifferent to a statute that conditions the availability of noncontributory welfare benefits on the basis of gender,” Califano v. Westcott, 443 U. S. 76, 85 (1979), and we refuse to part ways with our earlier decisions by applying a different standard of review in this case simply because the system is funded by employer rather than employee contributions. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_weightev
D
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". J. William FRENTZ et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16946. United States Court of Appeals Sixth Circuit. March 7, 1967. Arthur Clark, Jr., Cincinnati, Ohio, for petitioners, Frank E. Haddad, Jr., Louisville, Ky., on the brief. Robert I. Waxman, Dept, of Justice, Washington, D. C., for respondent, Richard M. Roberts, Acting Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews, Attys., Dept, of Justice, Washington, D. C., on the brief. Before EDWARDS, CELEBREZZE and PECK, Circuit Judges. ORDER. Petitioners claimed as deductions in their 1960 income tax returns their pro rata shares of losses sustained by Ken-tuckiana Broadcasting, Inc., an electing small business corporation under Sub-chapter S of the Internal Revenue Code of 1954, during the fiscal year ending October 31, 1960. The required election in the name of Kentuckiana was filed by petitioners, along with their consent as shareholders, on November 30, 1959. Kentuckiana’s charter was issued by the State of Kentucky subsequent to the purported election, and respondent disallowed the claimed deductions. From an adverse decision by the Tax Court petitioners appeal. It being the opinion of the Court that the findings of fact by the Tax Court are not clearly erroneous, and that the ruling by the Tax Court that there must be “strict compliance” with the statutory requirements is correct, It is ordered that the decision of the Tax Court, entered June 28, 1965, be and hereby is affirmed for the reasons set forth in Judge Bruce’s opinion, reported in 44 T.C. 485. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_numresp
1
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Lueleni MAKA, dba Maka’s Akamai Service, and Maka’s Akamai Service Inc., Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 89-70030. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 12, 1990. Decided June 4, 1990. George Noguchi, Honolulu, Hawaii, for petitioner. Karen Fletcher, Office of Immigration Litigation, U.S. Dept, of Justice, Washington, D.C., for respondent. Before FARRIS, PREGERSON and RYMER, Circuit Judges. RYMER, Circuit Judge: Maka’s Akamai Service petitions this court to review an order of the Chief Administrative Hearing Officer finding Maka in violation of the Immigration Reform and Control Act of 1986 (IRCA), Pub.L. No. 99-603, 100 Stat. 3359 (1986) (codified in scattered sections of 8 U.S.C.). The order found that Maka had violated § 274A(a)(l)(A) of the Act, 8 U.S.C. § 1324a(a)(l)(A), for unlawfully employing, after November 6,1986, an alien not authorized for employment in the United States. The order also found Maka in violation of § 274A(a)(l)(B) of the Act, 8 U.S.C. § 1324a(a)(l)(B), for failing to comply with the Act’s formal verification requirements. We affirm. I Maka is an immigrant alien from Tonga who operates both a tree trimming and ground maintenance business and a farm. On August 27, 1987 an agent for the Immigration and Naturalization Service (INS) made an educational visit to Maka’s residence and furnished a Handbook for Employers. During this visit the agent noted that he “saw about 10 people there. One claimed to be a new hire.” On August 28, 1987, the INS issued a Notice of Inspection to Maka’s Akamai Service, that was served at Maka’s residence on Maka’s mother on August 31, 1987. The Notice of Inspection stated in part: Section 274A of the Immigration and Nationality Act, as amended by the Immigration Reform and Control Act of 1986, requires employers to hire only American citizens and aliens who are authorized to work in the United States. Employers must verify employment eligibility of persons hired after November 6, 1986, using the Employment Eligibility Verification Form (1-9). You have been selected for a compliance review and audit by the Immigration and Naturalization Service (INS) on Thursday September 3, 1987.... During this review, Special Agent Robert Lasack will discuss the requirements of the law with you and inspect your 1-9 Forms. The purpose of this review is to assess your compliance with the provisions of the law. On September 1, 1987, Maka’s attorney, responding to the Notice, informed the INS that “Maka’s Akamai Service has hired no one after November 6, 1986 and therefore has nothing available for review on any employment eligibility verification form (I-9).” INS agents arrived at Maka’s residence on September 3, 1987, for the scheduled audit, but were unable to conduct the inspection because neither Maka nor a representative of his company was present. On September 18, 1987, the INS issued a second Notice of Inspection, informing Maka that an inspection was scheduled for September 23, 1987. This Notice was served on Maka’s wife. On September 23, the INS agents arrived at Maka’s residence to conduct their inspection, but again Maka was not present and the agents were unable to proceed. On October 20,1987, a Citation, pursuant to 8 U.S.C. § 1324a(i)(2), was served on Maka’s Akamai Service for failure to present Forms (1-9) at the scheduled inspections. This citation was Maka’s first violation of IRCA during the 12-month first citation period for “statutory immunization” purposes. On October 26, 1987, the INS issued a third Notice of Inspection, informing Maka that a compliance audit would take place on October 30, 1987. This Notice was personally served on Maka’s attorney. The INS also requested that Maka provide employee and payroll records. On October 30, the parties met for the scheduled inspection. Maka’s attorney presented the INS agents with a letter stating that Maka’s Akamai Service had not hired anyone after November 6, 1986, and therefore no 1-9 Forms were on file. Attached to the letter was a hand-written list of all employees who had worked for Maka’s Akamai Service since November 6, 1986. This list did not include the name of Feaomoeata Kapetaua. Also on October 30, the INS conducted a raid on Maka’s workers at the Marine Corps Air Station in Kaneohe. Maka’s employee Kapetaua was interviewed at the scene. He stated that he was hired “last week Monday” (October 19, 1987). Kape-taua could not provide any documentation that he was lawfully in the United States or working with authorization from the government. The INS served a subpoena on Maka through his attorney on November 5, 1987. The subpoena ordered Maka to produce, on November 10, 1987, personnel and payroll records for all of Maka’s employees as of November 6,1986, as well as personnel and payroll records for all employees hired after November 6, 1986. The subpoena also requested Maka to present 1-9 employment eligibility forms for Kapetaua and three other individuals. Maka’s attorney responded to the subpoena, in a letter dated November 9, as follows: In response to your question... my client alleges that no employee records exist for any and all employees as of November 6, 1987. As stated to your agent... my client is trying to reconstruct all his cash payments and other remuneration paid to his employees since 1982 in order to file his taxes and to account to various Federal and State agencies for his failure to file and pay certain employee assessments. In good faith, we provided... a list of substantially all employees who were on the payroll in November 1987.... [A]ll of them were working prior to November 6, 1986 and as such need not fill out the 1-9 form. As to your request for 1-9 forms for the individuals listed therein, we answer as follows: 1. Feaomoeta Kapetaua — No 1-9 form is required because this individual has worked for my client prior to Nov. 6, 1986. Since Nov. 6, 1986 he has worked only two to five days per month_ His name was inadvertently omitted from the list given to agent Kirk due to his infrequent employment. Maka was served with a Notice of Intent to Fine on January 4, 1988, pursuant to 8 C.F.R. § 274a.9(c). Maka answered the Notice on February 3, 1988, and requested a hearing before an Administrative Law Judge (ALT). The United States filed a complaint against Maka on February 23, 1988, and amended the complaint on July 11, 1988. In the amended complaint Maka was charged with two counts involving Ka-petaua: First, Maka was charged with violating 8 U.S.C. § 1324a(a)(l)(A) which makes it unlawful, after November 6, 1986, for a person or other entity to hire, for employment in the United States, an alien knowing the alien is unauthorized for employment in the United States. Second, Maka was charged with violating 8 U.S.C. § 1324a(a)(l)(B) which makes it unlawful, after November 6, 1986, for a person or other entity to hire, for employment in the United States, an individual without complying with the requirements of section 274A(b) of the Act, 8 U.S.C. § 1324a(b), and 8 C.F.R. §§ 274a.2(b)(l)(i) and (ii). After a hearing, the ALT filed his Findings of Fact and Conclusions of Law. The ALT found that Maka “was not in violation of the Immigration Reform and Control Act of 1986, specifically sections 274A(a)(l)(A) and 274A(a)(l)(B) of the Immigration and Nationality Act.” The AU found that the evidence established that Maka had continuously employed Kapetaua “from prior to November 6, 1986 until approximately March 1988 as either a tree trimmer, grounds maintenance man, or agricultural worker.” Therefore, Maka did not violate the IRCA because Kapetaua was a grandfathered employee, and thus §§ 1324a(a)(l)(A) and (a)(1)(B) did not apply to Kapetaua’s employment. On November 18, 1988, the INS filed a request with the Chief Administrative Hearing Officer (CAHO) for an administrative review of the AU’s decision pursuant to 8 U.S.C. § 1324a(e)(7). The CAHO vacated the AU’s decision. The CAHO held that [t]he evidence in this proceeding clearly establishes that Kapetaua ‘quit’ working for Maka’s sometime in December 1986, and thereby terminated his employment relationship with [Maka]. Thus, Kape-taua forfeited his ‘grandfathered employee status’ under Section 274A(a)(3). 8 U.S.C. 1324a(a)(3). Accordingly, [Maka] violated Sections 274A(a)(l)(A) and (a)(1)(B) of the INA when he rehired Ka-petaua in the Summer of 1987 knowing that he was an alien unauthorized for employment in the United States. The CAHO levied fines totalling $3,000 against Maka, the same amount the INS assessed in the Notice of Intent to Fine. Maka appeals. II The standard of review for agency decisions under IRCA is the same standard of review applied under the Administrative Procedure Act (APA). Mester Mfg. Co. v. INS, 879 F.2d 561, 565 (9th Cir.1989). We must affirm the agency’s findings of fact that are supported by substantial evidence. Id. Substantial evidence is “more than a mere scintilla. It means such relevant evidence, as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citation omitted). “In assessing whether a finding is supported by substantial evidence, we must consider the record as a whole.” Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir.1986). Under the substantial evidence standard, the task of this court is to review the CAHO’s decision, not the decision of the AU. Id. The substantial evidence standard “is not modified in any way” merely because the CAHO and the AU disagree. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951); Howard v. Heckler, 782 F.2d at 1487. However, “evidence supporting [the CAHO’s] conclusion may be less substantial when an impartial, experienced examiner [like the AU] has observed the witnesses and lived with the case has drawn [different] conclusions_” Universal Camera, 340 U.S. at 496, 71 S.Ct. at 468. The CAHO may disagree with the credibility findings of the AU but only if there is substantial evidence undercutting the reliability of the testimony, evidence which “a reasonable mind might accept as adequate to support a conclusion” that the administrative law judge was wrong about the credibility of the witness, in spite of the advantage of having heard the testimony and lived with the case. Beavers v. Secretary of H.E.W., 577 F.2d 383, 388 (6th Cir.1978) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). When the CAHO rejects the credibility findings of the AU, “it must state its reasons for doing so, and the reasons must be based upon substantial evidence in the record.” Howard v. Heckler, 782 F.2d at 1487. We review de novo an agency’s conclusions of law. Mester Mfg. Co., 879 F.2d at 565. “Within the de novo framework we give a certain amount of deference to an agency’s reasonable construction of a statute it is charged with administering.... If an agency’s construction is reasonable and consistent with congressional intent, we will accept it.” Id. III The IRCA grants the Attorney General authority to modify or vacate the initial decision of the AU. 8 U.S.C. § 1324a(e)(7) (West Supp.1990). The Attorney General explicitly delegated part of this review power to CAHO. Maka first argues that 28 C.F.R. § 68.52, the regulation implementing the CAHO’s authority to review the initial ALJ decision, is void for vagueness. Maka argues that this regulation is unconstitutionally vague because it allows the CAHO “standardless discretion” in reversing factual findings of the trial judge. Maka’s argument fails because the CAHO’s review pursuant to § 68.52 is subject to the provisions of the APA. The APA provides that, on review of an AU decision, the agency shall have “all the powers which it would have in making the initial decision_” 5 U.S.C. § 557(b) (1982). The statute authorizes the agency to decide all issues de novo. Containerfreight Transp. Co. v. I.C.C., 651 F.2d 668, 670 (9th Cir.1981). Additionally, § 556 of the APA provides that “[a] sanction may not be imposed or rule or order issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in accordance with the reliable, probative, and substantive evidence.” 5 U.S.C. § 556(d). Therefore, the APA mandates that in making its decision, the CAHO consider the whole record and base its decision on “reliable, probative, and substantial evidence.” See id. The CAHO did not have standard-less discretion to reverse the findings of the AU. Maka next argues that § 68.52’s provision that a party may file with the CAHO within five days of the decision a written request for review of any issue of law with supporting arguments provides an inadequate opportunity for the prevailing party to file an argument opposing reversal of the AU’s decision. The five day statutory time limit did not violate Maka’s right to due process. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965)). Due process requires some form of hearing “before an individual is finally deprived of a property interest.” Id. Maka was given a full evi-dentiary hearing before the AU. The review at the CAHO stage did not nullify this hearing. The CAHO does not receive evidence, but reviews on the administrative record. In this case the administrative record included Maka’s arguments, both oral and written, made before the AU. Therefore, the challenged procedure did not deprive Maka of due process. Maka next argues that the service of the Notices of Inspection and the Notice of Intent to Fine was defective and therefore violated Maka’s right to due process. The INS served three Notices of Inspection: the first, on August 27, 1987, was served on Maka’s mother; the second, on September 8, 1987, was served on Maka’s wife; and the third, on October 26, 1987, was served on Maka’s attorney. Maka argues that service of the three Notices of Inspection violates due process because the Notices were not served on the proper party. Maka’s argument fails. The INS’s method of serving Maka with the Notices of Inspection does not implicate the due process clause because the Notices did not lead to the final deprivation of property from Maka. See Mester Mfg. Co. v. INS, 879 F.2d 561, 569 (9th Cir.1989). The Notice of Intent to Fine, not the Notice of Inspection, initiates the adjudicatory proceedings. Id. Therefore, the due process clause is not implicated when a Notice of Inspection is issued. Once the Notice of Intent to Fine is issued, and proceedings are initiated, 8 C.F.R. § 103.5a sets out the prescribed methods of service. This regulation provides that delivery of the notice to the attorney effectuates service. 8 C.F.R. § 103.5a(a)(2)(iii). The Notice of Intent to Fine was served upon Maka’s attorney. Additionally, the Notice of Intent to Fine was incorporated in the complaint filed against Maka on February 23, 1988. The CAHO found, and Maka makes no argument to the contrary, that the complaint was properly served on Maka on March 4, 1988. Consequently, service of the Notice of Intent to Fine was proper under both the due process clause and the regulations. Next Maka challenges the CAHO’s imposition of a $3,000 civil penalty. IRCA specifically provides that in “determining the amount of the penalty, due consideration shall be given to the size of the business of the employer being charged, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.” 8 U.S.C. § 1324a(e)(5). “[imposition of a penalty without consideration of all relevant factors is improper.” Holiday Food Serv. v. Dept of Agriculture, 820 F.2d 1103, 1105 (9th Cir.1987). “Consideration of these factors is possible only if there is evidence bearing on them in the record.” Id. at 1106. In this case, the record contains adequate evidence bearing on each of the factors noted above to support the penalty. Maka next argues that the Notice of Intent to Fine was invalid, prematurely issued and contrary to the intent of Congress. The enactment of IRCA radically changed immigration law. Congress, therefore, provided for its gradual implementation. The IRCA was implemented in three phases. First, “the six-month period following enactment in November 1986 was a public information period; the appropriate agencies were to disseminate forms and information to employers during this period, and no enforcement action was to take place.” Mester Mfg. Co., 879 F.2d at 563. See 8 U.S.C. § 1324a(i)(l). Second, the subsequent twelve-month period, June 1, 1987 to May 31, 1988, was a partial enforcement period. For first violations of the statute during this period, only a warning citation would issue. The INS would “not conduct any proceeding, nor issue any order, under [the statute] on the basis of such alleged violation or violations.” 8 U.S.C. § 1324a(i)(2). A second violation during this period, however, subsequent to the issuance of a warning citation, could trigger an enforcement proceeding. See 8 C.F.R. § 274a.9(e). Finally, after June 1, 1988, the full enforcement period began. At this time, warning citations no longer were required as a prerequisite to the institution of enforcement proceedings. This case arose during the partial enforcement period. During this period, the issuance of a valid warning citation was necessary before a valid Notice of Intent to Fine could issue. Thus, Maka had one free shot at violating the IRCA before the INS could issue a Notice of Intent to Fine initiating adjudicatory proceedings. Maka argues that because there was no basis for the issuance of the warning citation, he was denied his one free shot at an IRCA violation, and, therefore, the Notice of Intent to Fine was prematurely issued. The citation issued against Maka on October 20, 1987 was based upon Maka’s failure to “furnish 1-9 forms at the time of the audit.” The INS concluded from this failure that Maka was in violation of 8 U.S.C. § 1324a(a)(l)(B) (failure to comply with the IRCA’s paperwork requirements). Maka first argues that there was no basis to issue a warning citation because Maka’s attorney, responding to the first Notice of Inspection, stated that no new hires had taken place after November 6, 1986, therefore, no 1-9 forms had to be kept as part of Maka’s business records. Maka’s theory is that if an attorney presents a letter to the INS stating that the company has no 1-9 forms, the INS has no basis to conduct any further action against the company. This argument has no merit. The function of the Notice of Inspection is to allow the INS an opportunity to review a company’s records and 1-9 forms for the purpose of assessing a company’s compliance with the IRCA. Maka’s unwillingness to allow the INS to conduct a compliance review and audit prevented the INS from making a compliance determination, thereby effectively precluding enforcement of the IRCA with regards to Maka. Preventing the INS from performing a compliance audit gave the INS reason to issue a warning citation. Maka next argues that the violations alleged in the Notice of Intent to Fine with respect to Kapetaua were the same violations alleged in the citation. Since the law provides that no action or proceeding can arise out of the first violation, the same violation cannot be the basis for the warning citation and the enforcement proceeding. The same violation, however, was not the basis for the warning citation and the enforcement proceeding. The warning citation was rooted in Maka’s failure to allow the INS to perform a compliance audit. The enforcement proceeding concerned Maka’s employment of Kapetaua. Therefore, Maka’s argument fails. The CAHO found that Maka violated 8 U.S.C. § 1324a(a)(l)(A) which makes it unlawful, after November 6, 1986, to hire for employment in the United States an alien, knowing the alien is unauthorized for employment in the United States. Maka argues that there is insufficient evidence in the record to satisfy the knowledge element of the statute. The record supports the conclusion that Kapetaua was an unauthorized alien, within the meaning of 8 U.S.C. § 1324a(a)(l)(A). Further, although Maka knew that Kapetaua had entered the United States without work authorization on a nonimmigrant visitor visa, Maka hired Kapetaua as an employee. Therefore, Maka hired for employment an alien knowing that the alien was unauthorized for employment. The issue, however, is whether Maka knowingly hired Kapetaua for employment after November 6, 1986. This turns on whether Maka had notice that Kapetaua had quit working for Maka’s Akamai Service. The CAHO found that Maka had constructive notice, if not actual notice. First, Kapetaua told Maka’s crew of his intention to quit. Second, as the CAHO stated, “Maka knew that Kapetaua had ‘quit’ in December 1986, because when the Aliamanu job came in the Summer of 1987, Maka only had one coconut tree ‘climber’ and was forced to go personally to Kape-taua’s house and ask him to come back to work for Maka’s.” Substantial evidence supports the CAHO’s conclusion that Maka had notice that Kapetaua had quit. Therefore, it did not err in finding that Maka knowingly hired Kapetaua after November 6, 1986, in violation of 8 U.S.C. § 1324a(a)(l)(A). The CAHO also found that Maka violated 8 U.S.C. § 1324a(a)(l)(B) which makes it unlawful, after November 6, 1986, to hire for employment in the United States an individual, without complying with the requirements of the employer verification system. See 8 U.S.C. § 1324a(b). Pursuant to § 1324a(a)(l)(B), the employer has the responsibility to prepare, retain and present for inspection an 1-9 Form for each employee hired after November 6, 1986. Maka did not complete an 1-9 form for Kapetaua. Therefore, Maka violated § 1324a(a)(l)(B). The IRCA provides for a “good faith” defense to the charge that an employer knowingly hired an unauthorized alien. The statute provides that [a] person or entity that establishes that it has complied in good faith with the requirements of [the employer verification requirements of 8 U.S.C. § 1324a(b)] with respect to the hiring... of an alien in the United States has established an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring.... 8 U.S.C. § 1324a(a)(3). Since Maka did not complete the 1-9 verification form for Ka-petaua, the good faith defense is not available to him. Maka argues that in good faith he believed that no 1-9 Forms had to be completed for his employees, because all of his employees were hired prior to November 6, 1986. This argument has no merit because, as the record shows, Maka knowingly hired Kapetaua after November 6, 1986. The IRCA also contains a “grandfather” provision that exempts employers from IRCA violations for employees hired before the IRCA’s enactment. GRANDFATHER PROVISION FOR CURRENT EMPLOYEES (A) SECTION 274(a)(1) of the Immigration and Nationality Act [8 U.S.C. 1324a(a)(l) ] shall not apply to the hiring, or recruiting or referring of an individual for employment which has occurred before the date of the enactment of this Act [Nov. 6, 1986]. (B) Section 274A(a)(2) of the Immigration and Nationality Act shall not apply to continuing employment of an alien who was hired before the date of the enactment of this Act. Pub.L. No. 99-603, § 101(a)(3), 1986 U.S. Code Cong. & Admin.News (100 Stat.) 3372; 8 U.S.C. § 1324a (note). The regulations set forth the test to determine whether an employee has lost his or her grandfather status. [A]n employee who was hired prior to November 7, 1986 shall lose his or her pre-enactment status if the employee: (1) Quits; or (2) Is terminated by the employer; the term termination shall include, but is not limited to, situations in which an employee is subject to seasonal employment; or (3) Is excluded or deported from the United States or departs the United States under a grant of voluntary departure. 8 C.F.R. § 274a.7(b). Maka argues that Kapetaua was a grandfathered employee and therefore Maka was not subject to the requirements of the IRCA with respect to the hiring of Kapetaua. The ALJ found that the evidence established that Maka continuously employed Kapetaua “from prior to November 6, 1986, until approximately March 1988, as either a tree trimmer, ground maintenance man, or agricultural worker.” Consequently, Kapetaua was a grandfathered employee and Maka did not violate the IRCA with respect to Kapetaua’s employment. The CAHO reversed, holding that the record did not support the AU’s conclusion. As stated above, this court reviews the CAHO’s decision under the substantial evidence standard. The CAHO held that the record clearly establishes that Kapetaua quit working for Maka, both as a tree trimmer and as a farmhand, to work for a new employer, Isileli (“Isi”) Fantupo. The CAHO based this holding on Kapetaua’s testimony that he started work for Maka in 1983 as a tree trimmer, but later quit to work full time for another employer. The CAHO rejected the AU’s conclusion that “[although Ka-petaua testified that he quit Maka’s as a tree trimmer, there is no evidence that he quit working on the farm or piggery from prior to November 6, 1986 to March 1988.” First, the CAHO cited Kapetaua’s testimony as evidence that Kapetaua had quit working on the farm. The AU apparently did not consider this testimony as evidence that Kapetaua had quit working on the farm. Further, although Kapetaua’s testimony is confused as to the specific period of time that he worked for Isi, the AU did not rule that his testimony was not credible. In fact, the AU accepted Kapetaua’s testimony that he quit working for Maka as a tree trimmer. Therefore, since the AU made no credibility finding with respect to Kapetaua’s testimony, the CAHO’s consideration of Kapetaua’s testimony was not a rejection of the credibility findings of the AU. Second, the CAHO held that the AU had “placed undue weight on Mr. Tukutau’s testimony in reaching [the] conclusion that Kapetaua continued to work at Maka’s farm and piggery from November 1986 to March 1988.” The CAHO discounted this testimony because 1) there was no evidence in the record that Kapetaua received wages or other remuneration for farm work during this period; and 2) “the farm was a place where Tongans could fraternize rather than a business enterprise.” Therefore, Kapetaua’s mere presence at the farm did not establish that an employment relationship existed between Kapetaua and Maka. Further, the nature of Maka’s employment practices also supports the CAHO’s conclusion. Maka’s business depends upon winning bids on government contracts to trim trees. Maka hires employees under oral contracts based upon specific job requirements. Employees work on a particular job in an informal employment-at-will arrangement. Generally, Maka’s foremen confirm on a daily basis the names of the men who had worked that day and the number of hours worked. When the work on a particular job is complete, the employees go to another job whenever the next job comes up. In between jobs, employees are not on retainer. Employment with Maka can be sporadic and irregular. Maka’s employees generally have no assurance of regular and continuous employment. Additionally, Maka does not expect an employee to forego other employment and remain on-call. Thus, Maka’s employment practices could reasonably be characterized as providing a new oral contract of employment to each employee who works on a new job, at the time the new job comes up. There is substantial evidence in the record to support the CAHO’s conclusion that Kapetaua quit his employment with Maka at some point after the IRCA’s enactment. Therefore, Kapetaua forfeited his “grandfathered employee status” under § 274A(a)(3). Maka next argues that Kapetaua maintained his grandfathered status under IRCA because although Kapetaua worked for other employers during 1987, he remained an employee of Maka. In other words, Maka loaned Kapetaua to other employers. The test of an employer-employee relationship is the employer’s right to control the employee’s actions. See Restatement (Second) of Agency § 220(1). The CAHO held that “Maka did not have the right to control Kapetaua during the time he worked for Isi.” Substantial evidence, specifically Maka’s testimony that he relinquished his power to supervise and direct employees loaned to other employers, supports the CAHO’s finding. IV CONCLUSION First, the CAHO authority to review the AU’s decisions is subject to the provisions of the APA. Therefore, the CAHO does not have standardless discretion to reverse the ALJ’s findings. Second, the statutory-requirements of the IRCA do not violate due process. The IRCA provides for a full evidentiary hearing before an employer is deprived of a property interest. Third, the INS did not violate due process or the IRCA’s personal service requirements when serving Maka with the Notices of Inspection. In the IRCA’s statutory scheme, the issuance of the Notice of Intent to Fine initiates adjudicatory proceedings and triggers the personal service requirements of the statute. The Notice of Intent to Fine, in this case, was both properly served on Maka’s attorney and incorporated in a properly served complaint. Fourth, the record contains adequate evidence that the CAHO considered all relevant factors to support the penalty assessed against Maka. Fifth, the INS issued a valid warning citation prior to issuing the Notice of Intent to Fine. Therefore, the INS complied with the statutory requirements of the partial enforcement period. Finally, substantial evidence supports the CAHO’s decision that Maka violated §§ 1324a(a)(l)(A) and 1324a(a)(l)(B) of the Act. Maka knowingly hired Kapetaua for employment after November 6, 1986 and failed to comply with the employer verification requirements. Further, substantial evidence supports the CAHO’s finding that Kapetaua was not a grandfathered employee for purposes of the Act. Therefore, the decision of the CAHO is affirmed. AFFIRMED. . To further IRCA the INS initiated a program to educate employers regarding the provisions of the statute. INS agents would contact employers and educate them regarding their obligations and responsibilities under IRCA and provide them with the Handbook for Employers. . Section 274A(b) of the Act makes it unlawful, after November 6, 1986, for a person or other entity to hire or recruit or refer for employment an individual, alien or U.S. citizen, without first examining certain documents establishing the individual’s identity and authorization to work. . Section 1324a(e)(7) provides: Administrative Appellate Review. The decision and order of an administrative law judge shall become the final agency decision and order of the Attorney General unless, within 30 days, the Attorney General modifies or vacates the decision and order, in which case the decision Question: What is the total number of respondents in the case? Answer with a number. 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. Cornelius BELL, Plaintiff-Appellant, v. E. T. GROAK, Chairman, Board of Appeals and Review, U. S. Civil Service Commission, J. A. Connor, Regional Director, Chicago Regional Office, U. S. Civil Service Commission, John Macy, Chairman, Civil Service Commission, Ludwig Andolsek and Robert Hampton, Commissioners, Civil Service Commission, Defendants-Appellees. No. 15625. United States Court of Appeals Seventh Circuit. Dec. 8, 1966. William Robinson Fishman, Arthur DeBofsky, Fishman & Fishman, Chicago, 111., for appellant. Alan S. Rosenthal, Asst. Atty. Gen., Martin Jacobs, Attorney, Department of Justice, Washington, D. C., Edward V. Hanrahan, U. S. Atty., Chicago, 111., J. William Doolittle, Acting Asst. Atty. Gen., for appellees. Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge and SWYGERT, Circuit Judge. DUFFY, Senior Circuit Judge. Plaintiff seeks a declaratory judgment that the United States Civil Service Commission must accept his appeal and grant him a hearing on the merits of his “discharge” as a post office employee. The District Court entered an order dismissing the complaint on the ground that it lacked jurisdiction to grant the relief sought. In September 1949, plaintiff was employed as a distribution clerk at the United States Post Office in Chicago. He worked there through August 2, 1962. On that date he signed papers resigning his position of employment. On August 4 and December 9, 1962, and on January 17, 1963, plaintiff wrote to the United States Post Office Department seeking reinstatement to his position. These requests were denied in separate letters. The first answer was from the acting postmaster stating — “Based upon your previous record, your request of August 4, 1962, for reinstatement will not be granted.” The second answer by the postmaster stated — “Based upon your previous record, your request for reinstatement, dated December 9, 1962, will not be granted.” The third answer was also by the postmaster and stated — “Your request for reinstatement, dated January 7, 1963, will not be granted, due to your previous unsatisfactory record.” Plaintiff claims that on March 20, 1964, upon learning that the United States Civil Service Commission had authority over his resignation, he appealed to the Civil Service Commission, Chicago Regional office. In his appeal, plaintiff stated he was questioned by two postal inspectors on August 2, 1962, and was advised that he had only two choices; either resign, or the inspectors would bring proceedings against him. Plaintiff charged he was not given any opportunity to consult with others as to the course he should take. On March 23, 1964, the Regional Director of the Chicago Region of the Civil Service Commission answered, requesting additional information, including an inquiry as to why an earlier appeal had not been filed. Plaintiff replied setting forth events which he claimed occurred in connection with his resignation. By letter dated April 10, 1964, defendant Connor, the Regional Director of the United States Civil Service Commission, informed the plaintiff that the normal time limit for acceptance of appeals by the Commission expires at the end of ten days from the effective date of the action appealed. The Commissioner stated this time limit could be extended by the Commission when it is established that circumstances beyond the control of the employee prevent him from filing an appeal within the ten-day period. The Regional Director then stated that plaintiff’s appeal, taken nineteen months after the date of the action being appealed, was not considered to have been filed within a reasonable time. He also stated — “Although you allege you were extremely busy working and training for a new career, this is not a sufficient reason for your delay in filing an appeal to the Commission.” The letter further stated that an appeal could be taken from the action of the Regional Director to the Board of Appeals and Review. On April 13, 1964, the plaintiff appealed the adverse decision to the Board of Appeals and Review of the Civil Service Commission. By letter dated May 6, 1964, defendant Groak, Chairman of the Board of Appeals and Review, denied plaintiff’s appeal. Although plaintiff seeks a declaratory judgment, the relief prayed for is in the nature of a writ of mandamus. Plaintiff asks this Court to decree that the United States Civil Service Commission must accept an appeal from plaintiff in this cause. Before the District Court, plaintiff contended the Court had jurisdiction under the Tucker Act, 28 U.S.C. § 1346 (a) (2). Apparently, this claim has been abandoned, as no mention thereof is made in the amended complaint. In any event, that claim could not be sustained. Wells v. United States, 9 Cir., 280 F.2d 275, 277. In the District Court, after the Government had objected that the individual members of the Civil Service Commission must be parties to the suit, the complaint was amended to name the Commissioners as party-defendants. However, no attempt was made to obtain service on any one of them. The Supreme Court has considered this question in Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534. The Court said on page 515, 72 S.Ct. page 412: “Since the Civil Service Commission is not a corporate entity which Congress has authorized to be sued, a suit involving the action of the Commission generally must be brought against the individual Commissioners as members of the United States Civil Service Commission. No such suit was brought here, and no service was had upon the individuals comprising the Civil Service Commission. Therefore, neither the individuals comprising the Civil Service Commission nor the Commission as a suable entity was before the District Court.” The Blackmar case also held that an action against, the Commissioners could be brought only in the District of Columbia. Congress has since extended the venue provisions so that suit may be brought in other districts. 28 U.S.C. § 1391(e). This section also provides for service “ * * * by certified mail beyond the territorial limits of the district in which the action is brought.” Thus, it is clear that the requirement of service upon the individual Commissioners is still essential, and that the amendment of the complaint to name them as defendants was not sufficient to confer jurisdiction. As was said by this Court in Rabiolo v. Weinstein, 7 Cir., 357 F.2d 167, 168, “ * * * the presence of venue does not dispense with the necessity for service in order to acquire personal jurisdiction.” As a general proposition, in cases where there is an issue as to the voluntariness of the resignation of a government employee, we are of the view that the Civil Service Commission should hold a hearing unless such a hearing is barred by laches. See Dabney v. Freeman, 123 U.S.App.D.C. 166, 358 F.2d 533, 534-535. However, we do not reach that question in this case. We are here confronted with the fact that the members of the United States Civil Service Commission were not served with process. Under the Blackmar case, we must hold that the District Court did not have any jurisdiction to order the United States Civil Service Commission to do anything. It follows that the District Court was correct in dismissing the amended complaint for want of jurisdiction. Affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_constit
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant. Lester L. LUHRING and Betty W. Luhring, Appellants, v. Clifford W. GLOTZBACH, District Director of Internal Revenue, Appellee. No. 8527. United States Court of Appeals Fourth Circuit. Argued March 22, 1962. Decided May 28, 1962. George H. Bowers, Jr., Norfolk, Va. (William C. Baskett and Bowers & Baskett, Norfolk, Va., on brief), for appellants. Giora Ben-Horin, Attorney, Department of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Meyer Rothwacks, Attorneys, Department of Justice, Claude V. Spratley, Jr., U. S. Atty., and Roger T. Williams, Asst. U. S. Atty., on brief), for appellee. Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges. SOPER, Circuit Judge. Lester L. and Betty W. Luhring, husband and wife, brought suit against the District Director of Internal Revenue at Richmond, Virginia, to enjoin the collection of additional income taxes assessed against them for the taxable years 1957 and 1958. They alleged that notices of deficiency had not been mailed to them at their “last known address” under 26 U.S.C. § 6212(b) and hence that the assessment of the taxes and their collection was illegal and subject to injunction under 26 U.S.C. § 6213(a) . A temporary restraining order was issued by the District Court and a hearing was held on the taxpayers’ motion for a preliminary injunction at which the testimony of Walter G. Grigg, Jr., an Internal Revenue agent assigned to the District Director at Richmond, was received; but, on November 9, 1961, the District Court denied the motion, and from that ruling the taxpayers appeal. There is little if any dispute over the facts which may be summarized as follows. In 1958 and 1959 the taxpayers filed timely joint federal income tax returns for the taxable years 1957 and 1958, respectively, with the District Director at Richmond, Virginia, giving their address in the former return as 121 Sir Oliver Road, Norfolk, Virginia, and in the latter, as 628 Barcliff Road, Norfolk, Virginia. In June, 1959, the taxpayers moved to 941 Eucalyptus Street, Sebring, Florida, and in March, 1960, they moved from that address to 245 Algiers Avenue, Lauder-dale-by-the-Sea-, Florida. They filed a forwarding address with the Post Office in Sebring, but no change of address for either move was ever filed with the District Director at Richmond. In April of 1960, the taxpayers filed a joint return with the District Director at Jacksonville, Florida, for the taxable year 1959, which stated their address correctly in Lauderdale-by-the-Sea, and refunds subsequently found to be due thereon were mailed to them at that address from the Internal Revenue Service Center in Kansas City, Missouri. In December of that year they also, received at their Lauderdale address an instruction booklet, “Federal Income Tax Forms For 1960”, containing income tax return forms. Again in 1961 the taxpayers filed a return for the taxable year 1960, and received a refund in the same manner as in 1960. In late 1960 or early 1961, Agent Grigg, while investigating the returns of the taxpayers for the years 1957 and 1958, discovered that they no longer lived in Norfolk. He asked Lester L. Luhring’s brother for the taxpayers’ new address, but the brother refused to disclose it. Thereafter, the agent learned of the taxpayers' Sebring, Florida, address from the Post Office Department in Norfolk, and prior to April 1, 1961, a statutory notice of deficiency was mailed to the taxpayers at that address by certified mail. However, the certified mail was not called for and was returned to the District Director at Richmond on or about April 20, 1961, marked “unclaimed". No other notice of deficiency was mailed to the taxpayers, and they did not at any time receive a copy of the notice. In July, 1961, the taxpayers received on Forms 17-A notices and demands of payment of additional taxes assessed on July 14, 1961, in the amount of $1,-296.04, plus interest, for the year 1957, and $1,390.73, plus interest, for the year 1968. These forms had been mailed from the District Director at Richmond to the taxpayers' Sebring, Florida, address, and had been forwarded to them at their Lauderdale-by-the-Sea address by the Post Office. Shortly thereafter, on August 4, 1961, the taxpayers instituted the present action. The sole question is whether the notice of deficiency for the years 1957 and 1958 was mailed to the last known address of the taxpayers within the meaning of the statute. If this was done the notice was valid even though it was not actually received by the taxpayers. Pfeffer v. Commissioner, 2 Cir., 272 F.2d 383; Commissioner v. Rosenheim, 3 Cir., 132 F.2d 677. Ordinarily a notice of deficiency is sent to the address of the taxpayer shown on his return. In this case the taxpayers had moved from the Norfolk address shown on their return without notifying the District Director. The Internal Revenue agent in charge of the examination of the returns found that the taxpayers were no longer at the Norfolk address and, upon inquiry at the Norfolk Post Office, was given their Sebring address. In his report on the case he gave this address to the District Director and, accordingly, the notice of deficiency for the years 1957-1958 was sent to Sebring. The taxpayers do not dispute that the notice was sent to the address last known to the tax officials at Richmond, but they contend that this was not their last known address within the meaning of the statute because their later address at Lauderdale-by-the-Sea was known to the tax officials who processed their tax returns for subsequent years, and since the notice was not sent to this address their liability for additional taxes has not been validly established. We are in agreement with the District Judge that this position is untenable. We must bear in mind the vast domain over which the Commissioner of Internal Revenue, as the delegate of the Secretary of the Treasury, presides in the performance of his duties, and the numerous tax officials whom a taxpayer, moving from place to place within the United States may encounter in the examination of the tax returns which he is obliged to file from year to year. The statute, 26 U.S.C. § 6091(b) (1) requires that individual returns shall be made in the Internal Revenue District in which is located the legal residence or principal place of business of the person making the return; and when the examination of a return by the tax officials in that District indicates that there is a deficiency in the tax shown in the return, certain procedural steps, looking toward an adjustment, are customarily taken and if they fail the notice of deficiency provided by § 6212 must be sent to the taxpayer. This is a most important step since an assessment and collection of additional taxes cannot be made without it, and it fixes the liability of the taxpayer for the deficiency unless he contests it by a timely petition to the Tax Court for re-determination of the deficiency under § 6213, dr pays the deficiency and sues for refund under § 7422. The statute, however, does not require service of actual notice upon the taxpayer but merely the mailing of the notice to him by certified or registered mail at his last known address. Obviously this procedure is designed to take care of the continual movement of taxpayers throughout the country in following their pursuits, and it gives warning to them of the risk they take if they change the residence or place of business shown en the return without notifying the tax officials in the place where the return has been filed. No one questions the power of Congress to make this provision in consideration of the administrative difficulties involved in the discharge of the Commissioner’s duties, and we think that the statute should be so construed as to hold a notice of deficiency valid if it is sent to the address shown on the taxpayer’s return and the local officials have no knowledge of a change of address, even though the tax officials in another District have been notified that the address has been changed. Especially must this be so if the new address appears on the tax returns filed in the new District of which the tax officials in the old District have no knowledge. In the case at bar the notice was adequate since it was sent to the address last known to the agents in the District where the return was filed. The prevailing opinion of the courts has recognized this point of view. Thus, in Clark’s Estate v. Commissioner, 2 Cir., 173 F.2d 13, it was held that a notice of deficiency in estate taxes sent to the administratrix of the estate at the address in New York City given on her estate tax return was sufficient although she subsequently moved to Boston, Mass., and there filed personal income tax returns giving her address in that city. Moreover, she had communicated with the Internal Revenue at New York in regard to taxes on gifts made in Massachusetts, giving her Boston address, and the attorney acting for her in her capacity as administratrix had written to the New York tax officials asking for an extension of time to file a protest and stating that the extension was needed because the taxpayer then resided in Boston. In Marcus v. Commissioner, 12 T.C. 1071, the taxpayers in 1946 filed a tax return for 1945 in Brooklyn, N. Y., and later in 1946 moved to California where they subsequently filed tax returns, for 1946, giving their California address and stating that their return for 1945 had been filed in New York. The Commissioner sent a notice of tax deficiency for 1945 to their New York address and this was held to be a sufficient compliance with the statute. See also Commissioner v. Rosenheim, 3 Cir., 132 F.2d 677; Birnie v. Commissioner (1951), 16 T.C. 861; Goldstein v. Commissioner (1954), 22 T.C. 1233. The authorities on which the taxpayers rely are not actually at variance with this position. They emphasize particularly Welch v. Schweitzer, 9 Cir., 106 F.2d 885, where it was held that a notice of deficiency was invalid which had been sent to the taxpayer’s address in Los Angeles shown on his return for the taxable year, filed with the Collector of Internal Revenue in that city, for the reason that the taxpayer had moved to a new address in the city and had set it out in his tax returns for subsequent years to the same Collector. In addition, the examining agents connected with the Los Angeles office had audited the return for the earlier years at the taxpayer’s new address and had reported this address to the supervising Internal Revenue Agent at San Francisco. Obviously, the information contained in the later tax returns and that acquired by the responsible examining agents of the Internal Revenue in the area were properly imputable to the Commissioner of Internal Revenue. Slavin v. United States, (D.C.C.D.Cal.1952), 45 AFTR 1168 and 1256, and Carbonne v. Commissioner, (1947), 8 TC 207, cited by taxpayers, throw no additional light oil the problem. The judgment of the District Court is affirmed. Affirmed. . “§ 6212. Notice of Deficiency “(a) In general. — If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail. “(b) Address for notice of deficiency.— “ (1) Income and gift taxes.— * * * notice of a deficiency in respect of a tax imposed by subtitle A or chapter 12, if mailed to the taxpayer at his last known address, shall be sufficient for purposes of subtitle A, chapter 12, and this chapter, even if such taxpayer is deceased, or is under a legal disability, or, in the case of a corporation, has terminated its existence.” (as amended Sept. 2, 1958, 72 Stat. 1681. 1665) . "§ 6213. * * * “(a) Time for filing petition and restriction on assessment. — Within 90 days * * * after the notice of deficiency authorized in section 6212 is mailed * *, the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. * * * no assessment of a deficiency in respect of any tax imposed by subtitle A or B and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer * * *. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.” . The apposite decisions here cited were rendered under provisions of the Internal Revenue laws prior to the Internal Revenue Code of 1954. However, that Code reenacted the provisions of the 1939 Code in substantially identical language and the legislative history records that no material change from the then existing law was intended. 1954 U.S.Code Cong, and Adm.News, pp. 4552, 5222; and see Gregory v. United States, 57 F.Supp. 962, 973-974, 102 Ct.Cl. 642, for prior legislative history. Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant? A. Issue not discussed B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant D. The resolution of the issue had mixed results for the appellant and respondent Answer:
songer_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. J. Morton ROSENBLUM, Trustee, Appellant, v. UNITED STATES of America et al., Appellees. No. 5899. United States Court of Appeals First Circuit. April 4, 1962. Frederic T. Greenhalge, Pittsfield, N. H., with whom Booth, Wadleigh, Langdell, Starr & Peters, Manchester, N. H., was on brief, for appellant. John J. Gobel, Attorney, Department of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Joseph Kovner, Attorneys, Department of Justice, and William H. Craig, U. S. Atty., were on brief, for United States of America, appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. A trustee in bankruptcy has taken this appeal from an order of the United States District Court for the District of New Hampshire denying his petition for leave to intervene in an action brought by the United States under § 6332(b) of Title 26 U.S.C. to impose personal liability upon four debtors of the bankrupt for their failure to honor federal tax levies duly served upon them prior to bankruptcy. At the outset we are confronted with the question of our appellate jurisdiction, for not every order denying leave .to intervene is appealable. Mr. Justice Murphy, speaking for the Court in Brotherhood of Railroad Trainmen v. Baltimore and Ohio Railroad Company, 331 U.S. 519, 524, 525, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947), spelled out the applicable rule of appealability in detail. Summarizing his discussion he wrote: "Our jurisdiction to consider an appeal from an order denying intervention thus depends upon the nature of the applicant’s right to intervene. If the right is absolute, the order is appealable and we may judge it on its merits. But if the matter is one within the discretion of the trial court and if there is no abuse of discretion, the order is not appealable and we lack power to review it. In other words, our jurisdiction is identified by the necessary incidents of the right to intervene in each particular instance. We must therefore determine the question of our jurisdiction in this case by examining the character of the Brotherhood’s right to intervene in the proceeding brought under § 16(12) of the Interstate Commerce Act.” This rule was followed in Sutphen Estates, Inc., v. United States, 342 U.S. 19, 20, 72 S.Ct. 14, 96 L.Ed. 19 (1951). But see Cameron v. President and Fellows of Harvard College, 157 F.2d 993, 997 (C.A. 1, 1946). To determine our jurisdiction over this appeal we therefore turn to consideration of the “nature” or “character” of the trustee’s right to intervene to see whether he has an absolute right or is only privileged to intervene in the discretion of the court below. The trustee does not invoke the provisions of subsection (b) of Rule 24, Fed.R. Civ.P., 28 U.S.C., dealing with permissive intervention his only claim is of an absolute right to intervene under subsection (a) (3) of the above Rule quoted in the margin. Conceding, as he must, that the statutory lien of the United States for taxes can be asserted against intangible personal property such as debts, see United States v. Eiland, 223 F.2d 118, 121 (C.A. 4, 1955), and cases cited, he rests his assertion of an absolute right to intervene on the proposition that the Notices of Levy (Form 668-A) served by the United States on the four debtors of the bankrupt pursuant to § 6331 of Title 26 U.S.C., did not reduce the government’s claims against them to “possession” within the meaning of § 67, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 107, sub. c quoted in material part in the margin below. Wherefore, the trustee says, the bankrupt’s claims against the four debtors came into his possession as an officer of the bankruptcy court and that if the United States should prevail in its action and recover the claims he will be adversely affected in his official capacity because it will be impossible for him to distribute the proceeds of the claims in accordance with statutory priorities. The decisive issue is a narrow one. It is whether the government, by simply serving the notices of levy authorized by § 6331 of Title 26 U.S.C. upon debtors of a bankrupt, reduces its claims against the debtors to “possession” thereby preventing the trustee in bankruptcy from subordinating the government’s claims against the debtors to the payment of the expenses of administering the bankrupt's estate and claims against the bankrupt for wages. The trustee, in support of his contention that mere notice of levy is not enough but that in addition thereto a “warrant of distraint” must also be served upon a debtor in order to reduce the government’s claim against the debt- or to “possession,” relies primarily upon two cases decided under § 3692 of the Internal Revenue Code of 1939, 26 U.S.C. § 3692, United States v. O’Dell, 160 F.2d 304 (C.A. 6, 1947), and Givan v. Cripe, 187 F.2d 225 (C.A.7, 1951). These cases, however, do not stand unquestioned. The late Chief Judge Parker, writing for his court in United States v. Eiland, supra at 121, disagreed with the O’Dell and Givan cases relied upon, by the trustee and in a carefully reasoned opinion held that it was not necessary to serve a “warrant of distraint” upon a debtor in order to reduce the government’s claim to “possession;” that under the 1939 Code notice of levy alone was enough to accomplish that end. Moreover, all of these cases were decided under the Internal Revenue Code of 1939 and split upon the meaning to be given to a specific reference to a “warrant” in its § 3692 which we quote in material part in the margin, whereas in the comparable provision of the Internal Revenue Code of 1954, with which we are here concerned, there is no reference whatever to a “warrant.” Indeed, § 6331 ■(b) of the current code specifically provides under the subtitle “Seizure and sale ■of property” that: “The term ‘levy’ as ■used in this title includes the power of distraint and seizure by any means.” It seems clear to us that in the 1954 Code Congress resolved the problem under the 1939 Code which split the courts in the cases relied upon by the trustee ■and the court in the Eiland case. In .short we agree with the rationale of Judge Foley in the recent case of United States v. Manufacturers National Bank, 198 F.Supp. 157 (N.D.N.Y.1961), the only case in point under the 1954 Code that we have found, and with his conclusion that the omission of any mention in § ■6331 of the present code, or in the regulations, of any form of warrant establishes that the effectiveness of federal tax liens does not depend upon service of a warrant of distraint, Our conclusion therefore is that the “nature” or “character” of the trustee’s claim is such that he does not have an absolute right to intervene. On the authority of Brotherhood of Railroad Trainmen v. Baltimore and Ohio Railroad Company, cited at the beginning of this opinion: An order will be entered dismissing the appeal for lack of appellate jurisdiction. . Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: “ * * * (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property which is in the custody or subject to the control or disposition of the court or an officer thereof.” . “Where not enforced by sale before the filing of a petition initiating a proceeding under this title, and except where the estate of the bankrupt is solvent: * * * statutory liens, including liens for taxes or debts owing to the United States * * *, on personal property not accompanied by possession of such property, * * * shall be postponed in payment to the debts specified in clauses (1) and (2) of subdivision (a) of section 104 of this title * * *.” . “In case of neglect or refusal under section 3690, the collector may levy, or by warrant may authorize a deputy collector to levy upon all property and rights to property, * * (Italics added.) Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_genresp1
H
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. 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. Martha MOLTON, Administrator for the Estate of William Molton, Plaintiff-Appellee, Cross-Appellant, v. CITY OF CLEVELAND, Unnamed Employees, Officers and Agents of the City of Cleveland, Defendants-Appellants, Cross-Appellees. Nos. 85-3927, 85-3959. United States Court of Appeals, Sixth Circuit. Argued March 27, 1987. Decided Feb. 1, 1988. Rehearing and Rehearing En Banc Denied April 12, 1988. Irving Berger (argued), Robert M. Wolff, Craig S. Cobb, Asst. Directors of Law, Cleveland, Ohio, for defendants-appellants, cross-appellees. Bruce C. Allen (argued), Allen & Hodg-man, Cleveland, Ohio, for plaintiff-appellee, cross-appellant. Before KENNEDY, RYAN, and NORRIS, Circuit Judges. RYAN, Circuit Judge. Before us are cross-appeals by the defendant City of Cleveland, and plaintiff Martha Molton, Administrator for the estate of William Molton. Cleveland appeals from a jury verdict in plaintiff’s favor on state wrongful death and assault and battery actions, and a 42 U.S.C. § 1983 deliberate indifference claim. Plaintiff appeals the district court’s judgment notwithstanding the verdict (j.n.o.v.) in favor of defendant on a § 1983 excessive use of force claim, and the lower court’s refusal to grant prejudgment interest or a new trial on damages. I. It is well to remember, as the facts of this case are related, that the only claims before us are against the City of Cleveland and not against any named individuals. The City’s version of the events that culminated in the tragic suicide of the plaintiff’s decedent contrast sharply with the version presented by the plaintiff; but the jury returned a verdict for plaintiff, including interrogative verdicts, suggesting strongly that the jury disbelieved the City’s account of the evidence and believed the version presented by plaintiff’s witnesses. Therefore, in examining the evidence for sufficiency, we take the facts in a light most favorable to plaintiff. Cf. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Bill Molton was a recovering alcoholic. After leaving work on August 2, 1981, he accompanied some co-employees and friends to several local bars and became intoxicated. After leaving the last bar, Molton drove his van through a red light. Two Cleveland police officers, Juan Camacho and Kevin Cielec, ordered Molton to pull over to the side of the road. When he did, the officers demanded Molton’s driver’s license and registration. Molton slipped the papers through a slightly opened window. He was uncooperative and cursed at the officers, so they called for backup assistance. Officers Robert Haug and James Walsh came to the scene. The officers requested Molton to step out of the van. He refused. Officer Haug then forced open the side vent window, reached inside, and opened the door. As Haug reached in to unlock the door, Molton struck the officer’s arm. The officers then forcibly removed Molton from the van. Immediately after Molton had been pulled from the van, one of the van’s occupants, Charles Anderson, heard several loud crashes against the side of the vehicle. Shortly thereafter, the occupants stepped out of the van and saw Molton on the ground, doubled over, holding his ribs. When Anderson, who was living with Mol-ton, attempted to get the keys to Molton’s apartment so that he could go home, the officers said to him: “If you don’t keep walking the same thing is going to happen to you.” The officers cuffed Molton’s hands behind his back and drove him to the police station. Molton had to be dragged out of the car and into the police station because he resisted. When he was brought into the station booking area, there were three other prisoners present being booked on unrelated matters: Darren Roe, Kevin Roe, and Mark Shefcheck. None of the three knew Molton. Molton continued to shout profanities at the officers, and refused to cooperate. At trial, Darren and Kevin Roe and Shefcheck testified that the officers threw Molton against a wall several times, smashing his face up against the glass window in the booking area. While Molton, who was still handcuffed, was pleading with the officers to leave him alone, one of the officers knocked Molton’s feet from under him causing him to fall to the floor. Several more officers then rushed in from the office area and kicked and punched Molton repeatedly. Lisseth Keener, the jailer, shouted “kick his ass!” and struck Molton with a flashlight. Throughout the beating, Molton had his hands cuffed behind his back. At about that time Carlin Roe arrived at the public report counter of the precinct in order to post bail for his brothers Kevin and Darren. When Carlin heard the policemen beating Molton, he thought they were beating his brothers. He yelled to the officers to stop beating his brothers, whereupon he was arrested for disorderly conduct. The officers took Carlin into the booking area and, pointing to Molton, asked, “Is this your brother?” Carlin Roe, now a prisoner himself, was booked and placed in a cell directly across from Molton. Molton told Carlin that “he couldn’t stand the pain from the policemen beating him,” and that he was going to hang himself. As Molton, using his shirt, was attempting to rig a noose in order to hang himself from the upper part of the cell, Carlin Roe began shouting loudly for help. Molton failed at his first effort to hang himself because his shirt tore; however, upon the second attempt he was successful and ended his life. Medical experts testified that it took several minutes for Molton to die from the hanging. Although Darren and Kevin Roe and Shefcheck heard the shouts for help from the booking area, no officer responded. Carlin shouted for some ten to fifteen minutes before one of the officers told Keener to “go see what he wants.” Keener found Molton hanging from the cell bars, and the officers cut him down. The administrator of Molton’s estate sued the City, and the jury returned a verdict in favor of plaintiffs in the total amount of $78,200. The jury returned both a general verdict and a series of interrogative verdicts. It found the City liable on the § 1983 claim for deliberate indifference to a strong likelihood that Molton would commit suicide, and on the state wrongful death claim based on the City’s negligence. The jury allocated twenty percent of the causal negligence to Molton and eighty percent to the City of Cleveland. The jury also concluded that the officers exercised unconstitutionally excessive force in beating Molton, and found the City liable for the assault and battery of Molton. The jury awarded $10,000 for the assault and battery claim, $45,000 for the state wrongful death action, $20,000 for the § 1983 deliberate indifference action, and $3,200.00 for the medical and funeral expenses. The district judge granted the City’s motion for judgment notwithstanding the verdict on plaintiff’s excessive use of force claim on the ground that plaintiff had failed to meet the “severity of injury” requirement. Defendant’s Appeal II. Under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), a prison official’s deliberate indifference to the serious medical needs of inmates amounts to cruel and unusual punishment, and violates the eighth amendment. To sustain such a claim, it is not necessary that the prison officials consciously sought to inflict pain by withholding treatment; it is sufficient to show deliberate indifference to an inmate’s serious medical needs. Westlake v. Lucas, 537 F.2d 857, 860 n. 3 (6th Cir.1976). A pretrial detainee’s constitutional rights under the eighth and fourteenth amendments are denied by deliberate indifference to his serious medical needs just as such indifference denies the corresponding rights of a convicted prisoner. Anderson v. City of Atlanta, 778 F.2d 678, 686-87 n. 12 (11th Cir.1985); Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir.1985). Plaintiff’s § 1983 “deliberate indifference” claim is that a policy of the City of Cleveland caused the officers to be deliberately indifferent to the strong likelihood that Molton would commit suicide. There is some support for this theory of liability. See Partridge v. Two Unknown Police Officers of Houston, 791 F.2d 1182 (5th Cir.1986); Roberts v. City of Troy, 773 F.2d 720 (6th Cir.1985); State Bank of St. Charles v. Camic, 712 F.2d 1140, 1145 n. 3 (7th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983). In Roberts, 773 F.2d at 724-25, this court determined that in a § 1983 action against a city for failing to prevent the suicide of a pretrial detainee, a plaintiff must prove deliberate indifference; and that deliberate indifference constitutes the purposeful punishment necessary for finding a fourteenth amendment violation. We specifically rejected the contention that such an action could be maintained on a theory of mere negligence. The conduct for which liability attaches must be more than negligence, Estelle v. Gamble, 429 U.S. at 105-06, 97 S.Ct. at 291-92, it must demonstrate deliberateness tantamount to an intent to punish. III. The City attacks the jury’s verdict in favor of plaintiff on the deliberate indifference claim on a number of grounds. We consider only one of them, however, because we conclude therefrom that we must set aside the jury’s verdict because plaintiff introduced no evidence proving the City had a custom or policy which caused the officers to be deliberately indifferent to Molton’s serious medical needs. Cleveland cannot be held vicariously liable under § 1983 for damages inflicted by its officers. Rather, the municipality may be required to respond in damages under § 1983 only for its own actions. Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Court stated that: [T]he touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution.... 436 U.S. at 690, 98 S.Ct. at 2036. The Court concluded that: [A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037-38. In Monell the city was held liable because it expressly adopted a sick leave policy that discriminated against pregnant women. This expressly adopted policy was “unquestionably... the moving force of the constitutional violation....” Id. Although the Monell Court did not explore the full contours of municipal liability under § 1983, it did state that the city could be held liable either for an expressly adopted policy or for a well-settled “custom.” In Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), plaintiff brought a § 1983 claim against Oklahoma City after an officer shot and killed plaintiffs decedent. The trial court instructed the jury as follows: [A] single, unusually excessive use of force may be sufficiently out of the ordinary to warrant an inference that it was attributable to inadequate training or supervision amounting to ‘deliberate indifference’ or ‘gross negligence’ on the part of the officials in charge.... Id. at 813,105 S.Ct. at 2431. A majority of the Court joined part I of Justice Rehnquist’s opinion, for reversal, because the jury instruction allowed a finding of liability against the city based on a single act by an officer, without proof of an affirmative link between that act and a city custom or policy. A plurality joined part III of Justice Rehnquist’s opinion which further attacked the inference permitted by the trial court's instruction. But more importantly, the inference allows a § 1983 plaintiff to establish municipal liability without submitting proof of a single action taken by a municipal policy maker.... ****** Here... the “policy” that respondent seeks to rely upon is far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell.... In the first place, the word “policy” generally implies a course of action consciously chosen from among various alternatives; it is therefore difficult in one sense even to accept the submission that someone pursues a “policy” of “inadequate training,” unless evidence be adduced which proves that the inadequacies resulted from conscious choice — that is, proof that the policymakers deliberately chose a training program which would prove inadequate. And in the second place, some limitation must be placed on establishing municipal liability through policies that are not themselves unconstitutional, or the test set out in Monell will become a dead letter.... Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was “caused” by the municipal “policy.” At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged. Id. at 821-23, 105 S.Ct. at 2435-36 (footnote omitted). In Rymer v. Davis, 775 F.2d 756 (6th Cir.1985), cert. denied, — U.S. —, 107 S.Ct. 1369, 94 L.Ed.2d 685 (1987) (on remand for reconsideration in light of Tuttle, sub nom. City of Sheperdsmlle v. Rymer, 473 U.S. 901, 105 S.Ct. 3518, 87 L.Ed.2d 646 (1985)), this court determined that, although a municipality could not be held liable for a single act by a single officer unconnected to a policy or custom of the city, the city could be held liable for inadequate training or supervision of its police force if that inadequate training or supervision amounted to deliberate indifference or gross negligence on the part of the officials in charge. Evidently, this court declined to adopt Justice Rehnquist’s plurality view which was skeptical of finding a “policy” of “inadequate training.” Subsequently, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court addressed the subject of government liability for a single action taken in execution of a governmental policy. The case report summary adequately describes the relevant facts: A physician who operated a medical clinic was indicted by a grand jury for fraudulently accepting welfare payments. When two of his employees were subpoenaed as witnesses, but failed to appear before the grand jury, capiases were obtained to compel the appearance of the subpoenaed witnesses, and county deputy sheriffs attempted to serve the capiases at the physician’s clinic. The physician refused to let the deputies enter, and after being informed of the situation by the deputies, an assistant county prosecutor conferred with the county prosecutor, who told the assistant prosecutor to instruct the deputy sheriffs “to go in and get” the witnesses. The assistant prosecutor passed these instructions along to the deputies, who entered the clinic after city police officers, who had also been advised of these instructions, chopped down the door with an axe. The physician filed a civil rights action for damages against the county and other defendants, under 42 USCA § 1983, in the United States District Court for the Southern District of Ohio, alleging violations of his rights under the Fourth and Fourteenth Amendments of the Federal Constitution. The District Court dismissed the complaint. On appeal, the United States Court of Appeals for the Sixth Circuit upheld the dismissal of the claims against the county (746 F2d 337). Pembaur, 89 L.Ed.2d at 452. In a fragmented decision comprising five opinions, the Supreme Court determined that the county could be held liable under § 1983. A majority of six justices determined: 1) that the county prosecutor’s instruction to the deputy sheriff to use force to enter the premises resulted in action taken pursuant to county policy because the prosecutor was a person authorized to establish policy with respect to the action in question; and 2) that municipal liability may be imposed for action taken pursuant to a single decision by a municipal policymaker. A slightly smaller majority of five justices (Justice O’Connor withdrawing from the initial, majority of six) held that the county was subject to liability on the additional ground that the prosecutor was the final decision-maker for the county in regards to serving a capias, and therefore the county was acting through the prosecutor. Given the multiple opinions of the Supreme Court, it is less than clear, to say the least, what standard this court should use in determining whether Cleveland had a municipal policy which resulted in Molton’s suicide and thus can be the basis for § 1983 liability against the City. Plaintiff identifies the following as “inherently matters of city policy” demonstrating the City’s deliberate indifference to the strong likelihood that Molton would take his own life: (1) operation of a jail with a remote cell block; (2) failure to develop and use health screening forms; (3) permitting Lisseth Keaner, a rookie officer, to supervise the jail facility; (4) inadequately training its officers in the prevention of jail suicides; (5) failure to install an audio communication system between the cell block and the office area; (6) failure to modify cell architecture to render suicide less likely; and (7) failure to take corrective measures after eight prior suicides had occurred in the jail facility. There are essentially two problems with plaintiff’s argument. First, plaintiff never adduced evidence of a definitive City policy, custom, or usage which was an affirmative link, the moving force that animated the behavior — the acts of commission or omission — of the police officers that resulted in the constitutional violations alleged. The Supreme Court authorities, specifically Tuttle and Pembaur, require proof of a deliberate and discernible city policy to maintain an inadequately trained police department, or nonsuicide-proof, inadequately designed and equipped jails; not mere speculation that such matters are “inherently matters of city policy.” A second problem with plaintiff’s theory is that the policies she identifies describe mere negligence. The City’s failure to build a suicide-proof jail cell, and its inadequate training of its police force, may well be acts of negligent omission, but they have not been shown to be the result of municipal policy: “a deliberate choice to follow a course of action... made from among various alternatives by the official or officials responsible for establishing formal policy with respect to the subject matter in question.” Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300, 89 L.Ed.2d at 465. The City did adopt a policy. Attempting to deal with the problem of jail suicides, of which there had been eight at this precinct since 1970, the City adopted GPO 34-80 which directs officers to remove the belts from all prisoners or detainees before they are placed in cells, and to provide extra surveillance whenever a person is: (a) extremely despondent; (b) threatens self-destruction; or (c) gives any other reason to believe that he may attempt suicide. Plaintiff submitted evidence that GPO 34-80 was inadequate, and argues here that better training of the City’s officers and better jail facilities would have prevented Mol-ton’s death. Even if we were to conclude, as a number of circuits have, that the requisite policy, custom, or usage necessary to establish § 1983 liability in a municipality may arise from gross negligence or recklessness amounting to deliberate indifference, the plaintiff in this ease cannot succeed because her proofs show, at most, mere negligence by the City in failing to take adequate preventive measures to prevent jail suicides and to train its police officers adequately. See, e.g., Fiacco v. City of Rensselaer, 783 F.2d 319, 326 (2d Cir.1986), cert. denied, — U.S. —, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987) (“deliberate indifference”); Languirand v. Hayden, 717 F.2d 220, 227 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct. 2656, 81 L.Ed.2d 363 (1984) (so grossly negligent as to constitute “deliberate indifference”); Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir.1985) (“deliberate indifference” where training so grossly negligent “that police misconduct inevitably occurs”); Wellington v. Daniels, 717 F.2d 932, 937 n. 6 (4th Cir.1983) (no showing that municipality “remain[ed] indifferent to" unwarranted injury); Voutour v. Vitale, 761 F.2d 812, 820 (1st Cir.1985). The evidence in this case does not amount to proof of gross negligence or recklessness amounting to deliberate indifference. There has been no showing that City policy makers, as distinguished from the individual police officers who participated in Molton’s arrest and booking either ignored a known or apparent risk, or consciously disregarded or were deliberately indifferent to the safety of prisoners. On the contrary, the proofs regarding GPO 34-80 show that the City undertook an initiative to prevent future jail suicides, but may have done so negligently. Negligence does not establish a § 1983 claim. Estelle, 429 U.S. at 105-06, 97 S.Ct. at 291-92; Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Roberts v. City of Troy, 773 F.2d 720 (6th Cir.1985). In sum, plaintiff did not establish the existence of a City policy of gross neglect, recklessness, or deliberate indifference to the danger of Molton’s suicide, sufficient to sustain the jury’s § 1983 verdict. See also Barnier v. Szentmiklosi, 810 F.2d 594, 599 (6th Cir.1987). IV. A Although we are required to find in the City’s favor on the § 1983 claim, we conclude that the City’s appeal from the jury’s verdict on the pendent state claims is meritless. Ohio law establishes a duty on the part of jailers to exercise reasonable care for the health and safety of prisoners committed to their custody, and to guard against dangers which were known or which should have been known to the jailers. See Jenkins v. Krieger, 67 Ohio St.2d 314, 423 N.E.2d 856 (1981), cert. denied, 454 U.S. 1124, 102 S.Ct. 973, 71 L.Ed.2d 111 (1981), and Clemets v. Heston, 20 Ohio App.3d 132, 485 N.E.2d 287 (1985), as codified at Ohio Rev.Code Ann. § 341.01 (1986 Supp.). The evidence amply supports the jury’s determination that the City failed to meet that standard of care. In Jenkins, the jail cell “contained no device by which help might be summoned in an emergency,” and the officers failed to search decedent and discover he was carrying matches. The matches caused a fire to start in the inmate’s mattress while he was sleeping. The Ohio Supreme Court affirmed the appellate court’s reversal of a judgment notwithstanding the verdict in favor of defendant because the failure to discover the matches, and the fact that the deceased would have lived if he. had received prompt attention, were sufficient evidence of negligence to support the jury’s verdict. In Clemets, application of the standard of care announced in Jenkins precluded municipal liability because the decedent had left the custody of the police before he committed suicide. After the police allowed the decedent to leave, he went to his truck and shot himself in the head with a shotgun. The Ohio Court of Appeals held that the jailers were not liable because their special duty to exercise reasonable care for the health and safety of their prisoner extended to the decedent only while he was in their custody. Under Jenkins and Clemets, the police have a duty to protect the health and well-being of those in their custody against known or foreseeable dangers. Violation of this duty results in liability for negligence. In this case, the jury found the City negligently failed to perform its duty of care for Molton’s health and well-being by failing to take the necessary measures to prevent his death by suicide. The jury’s verdict was supported by abundant evidence. The officers testified they were never trained in suicide prevention. The state jail inspector, Melda Turker, testified concerning the Ohio minimum requirements for jail facilities. Although Turker was not allowed to testify that the City had failed to meet these requirements, the court allowed the jury to visit the facilities and to determine whether the requirements had been met. See also Ohio Rev.Code Ann. § 5120.10 (1986 Supp.). Turker and Dr. Danto, plaintiff’s expert, testified that the City’s attention to the safety and health of its prisoners and detainees was inadequate in a number of ways to prevent suicide. The jury’s determination that the City breached its duty of care under Ohio law is well-supported by the evidence. Nonetheless, the City argues that Mol-ton’s suicide was an independent intervening cause of his death as a matter of law. For this proposition, the City cites several cases in which liability was premised on a decedent’s exaggerated reaction to unrelated tortious conduct. In such cases, a victim’s suicide is beyond the scope of the risk created by the original tortious conduct, and no liability accrues. This is not such a case. The City was under a special duty, which arose from the City’s duty to protect the health and welfare of its prisoners and detainees. In Taylor v. Webster, 12 Ohio St.2d 53, 56, 231 N.E.2d 870 (1967), the Ohio Supreme Court announced: A rule of general acceptance is that, where the original negligence of the defendant is followed by the independent act of a third person which directly results in injurious consequences to plaintiff, defendant’s earlier negligence may be found to be a proximate cause... if... defendant could reasonably have foreseen that the intervening act was likely to happen. As Ohio Fair Plan Underwriting Association v. Arcara, 65 Ohio App.2d 169, 417 N.E.2d 115 (1979), explained: In other words, the question is whether the intervening cause and resulting damage were reasonably foreseeable by the one who was guilty of negligence. Id. at 175, 417 N.E.2d 115. Molton’s suicide was well within the scope of the risk and was therefore foreseeable. The suicide was not, therefore, an independent intervening cause. B The City next argues that as a matter of law, Molton’s contributory negligence barred any recovery for his suicide under the Ohio Comparative Negligence Act, Ohio Rev.Code Ann. § 2315.19 (1981). The statute provides that if a plaintiff's injury is caused more than fifty percent by his own acts, his contributory fault bars his recovery as a matter of law. The City contends that no rational jury could consider Molton’s suicide to be a less than fifty percent cause of his death. The City requested, and received, an instruction to the jury on comparative negligence. The jury determined that the City’s negligence was eighty percent responsible for Molton’s death, while Molton’s negligence was only twenty percent responsible. It was justified in concluding that the City was negligent in failing to adequately train its officers: 1) to avoid beating an intoxicated and handcuffed prisoner in their care, 2) to respond to signals that a pretrial detainee was a suicide risk, and 3) to respond to Carlin Roe’s calls for help while Molton was hanging himself. The jury was also justified in concluding that the City negligently failed to design, equip, and staff the jail to permit better surveillance of prisoners and thus to render less likely this ninth suicide at that facility in twelve years. Similarly, it was justified in finding those acts and omissions were a proximate cause of Molton’s death of comparatively greater degree than Molton’s negligence. In sum, the jury’s decision that the City was eighty percent responsible while Mol-ton was only twenty percent responsible has support in the record and will not be disturbed on appeal. V. A We also find the City’s challenge to the pendent state assault and battery claim to be meritless. The City contends that the jury’s verdict on the assault and battery claim cannot be reconciled with the physical evidence. The physical evidence consisted of various photographs of Molton’s body which did not show injuries as serious as the City argues would have been caused by a beating of the kind plaintiff’s witnesses described. ‘ The photographs showed some abrasions on Molton’s body, and some bruises on the right eye and both wrists. Photographs also showed blood running from his nose down along his cheeks. The City argues that, of necessity, more bruises would have appeared in the photos had Molton been beaten to the extent described by plaintiff’s witnesses. However, expert testimony maintained that bruises form over time and cease forming at the time of death. The medical witnesses testified that had Molton lived, more bruises might have formed. Furthermore, expert witnesses testified that simply because Molton had been beaten did not mean that bruises would appear wherever he had been struck. For a bruise to have formed, the blows must have been of sufficient strength to have broken blood vessels. Thus, blows could have been struck which simply did not cause bruises. In all, the medical evidence and the testimony of the expert witnesses included some inferences that favored defendant, but were not dispositive. It was the jury’s task to weigh the evidence. The individuals who testified to the beating were witnesses who had never met Molton before. The jury’s verdict is sufficiently supported. B The City next contests the jury’s finding that the officers’ tortious conduct was calculated to facilitate or promote the City’s business and argues that if this finding is unsupported, the City cannot be held vicariously liable. The claim is meritless. The City can be held liable for police misconduct under respondeat superior, in the same manner as a private corporation. Longfellow v. City of Newark, 18 Ohio St.3d 144, 480 N.E.2d 432 (1985); Enghauser Mfg. Co. v. Eriksson Engineering Ltd., 6 Ohio St.3d 31, 451 N.E.2d 228 (1983). Contrary to the City’s position: A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant’s employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant. Restatement (2d) of Agency § 245 (1958). See also Wiebold Studio, Inc. v. Old World Restorations, Inc., 19 Ohio App.3d 246, 250-51, 484 N.E.2d 280 (1985). The actions of the officers were “not unexpectable” given their duties as police officers. VI. The City asks that the jury award be reduced by twenty percent due to the contributory fault of Molton. We agree that the wrongful death award of $45,000 must be reduced by twenty percent due to Molton’s comparative negligence. But, the award based on the intentional tort cannot be so reduced. See Ohio Rev.Code Ann. § 2315.19 (1981); see also Kellerman v. J.S. Dung Co., 176 Ohio St. 320, 199 N.E. 2d 562 (1964). Plaintiffs Cross-Appeal VII. The jury found the City liable to plaintiff, under § 1983, for an excessive use of force. The district court granted defendant a judgment notwithstanding the verdict on that claim. The excessive use of force claim focused on two issues: (1) whether unconstitutionally excessive force was used, an issue which was to be resolved in the first phase of the trial, and (2) whether the use of excessive force was a result of City policy or custom. Under the district court’s pretrial order, this second issue was to be reached by the jury in the second phase of the trial only if it found for plaintiff on the first issue. The jury never reached the second question because the trial court determined in its ruling on the j.rno.v. motion, after the trial’s first phase, that there was no use of excessive force. The City defends the court’s decision to grant it j.n.o.v. on the grounds that the witnesses who testified to the beating were unreliable and that, therefore, there was no proof excessive force was used. However, the district court’s decision to grant j.n.o.v. was not based on the credibility of the witnesses, as seen by the fact the assault and battery verdict was upheld by the district court. Rather, the district court apparently granted j.n.o.v. because it felt that Shillingford v. Holmes, 634 F.2d 263 (5th Cir.198 Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_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. LOVING v. UNITED STATES No. 94-1966. Argued January 9, 1996 Decided June 3, 1996 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ., joined, and in which O’Connor and Scalia, JJ., joined as to Parts I, II, III, IV-B, and IV-C. Stevens, J., filed a concurring opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 774. Scalia, J., filed an opinion concurring in part and concurring in the judgment, in which O’Connor, J., joined, post, p. 775. Thomas, J., filed an opinion concurring in the judgment, post, p. 777. John H. Blume argued the cause for petitioner. With him on the briefs were Teresa L. Norris, Roy H. Hewitt, Fran W. Walterhouse, and Walter S. Weedman. Deputy Solicitor General Kneedler argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Miguel A. Estrada, and John F. De Pue. Ronald W. Meister, Steven R. Shapiro, and Diann Y. Rust-Tierney filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance. Briefs of amici curiae were filed for Public Citizen, Inc., by Alan B. Morrison, David C. Vladeck, and Eugene R. Fidell; for the United States Navy-Marine Corps Appellate Defense Division by John Francis Hav-ranek, Howard Barry Goodman, and Phillip Del Grissom; and for Marci A. Hamilton et. al. by David Schoenbrod, pro se. Justice Kennedy delivered the opinion of the Court. The case before us concerns the authority of the President, in our system of separated powers, to prescribe aggravating factors that permit a court-martial to impose the death penalty upon a member of the Armed Forces convicted of murder. I On December 12,1988, petitioner Dwight Loving, an Army private stationed at Fort Hood, Texas, murdered two taxicab drivers from the nearby town of Killeen. He attempted to murder a third, but the driver disarmed him and escaped. Civilian and Army authorities arrested Loving the next afternoon. He confessed. After a trial, an eight-member general court-martial found Loving guilty of, among other offenses, premeditated murder and felony murder under Article 118 of the Uniform Code of Military Justice (UCMJ), 10 U. S. C. §§918(1), (4). In the sentencing phase of the trial, the court-martial found three aggravating factors: (1) that the premeditated murder of the second driver was committed during the course of a robbery, Rule for Courts-Martial (RCM) 1004(c)(7)(B); (2) that Loving acted as the triggerman in the felony murder of the first driver, RCM 1004(c)(8); and (3) that Loving, having been found guilty of the premeditated murder, had committed a second murder, also proved at the single trial, RCM 1004(c)(7)(J). The court-martial sentenced Loving to death. The commander who convened the court-martial approved the findings and sentence. Cf. 10 U. S. C. § 860. The United States Army Court of Military Review and the United States Court of Appeals for the Armed Forces (formerly the United States Court of Military Appeals (CMA)) affirmed, 41 M. J. 213 (1994), relying on United States v. Curtis, 32 M. J. 252 (CMA), cert. denied, 502 U. S. 952 (1991), to reject Loving’s claims that the President lacked authority to promulgate the aggravating factors that enabled the court-martial to sentence him to death. We granted certiorari. 515 U. S. 1191 (1995). II Although American courts-martial from their inception have had the power to decree capital punishment, they have not long had the authority to try and to sentence members of the Armed Forces for capital murder committed in the United States in peacetime. In the early days of the Republic the powers of courts-martial were fixed in the Articles of War. Congress enacted the first Articles in 1789 by adopting in full the Articles promulgated in 1775 (and revised in 1776) by the Continental Congress. Act of Sept. 29, 1789, ch. 25, §4, 1 Stat. 96. (Congress reenacted the Articles in 1790 “as far as the same may be applicable to the constitution of the United States,” Act of Apr. 30, 1790, ch. 10, § 13, 1 Stat. 121.) The Articles adopted by the First Congress placed significant restrictions on court-martial jurisdiction over capital offenses. Although the death penalty was authorized for 14 military offenses, American Articles of War of 1776, reprinted in W. Winthrop, Military Law and Precedents 961 (reprint 2d ed. 1920) (hereinafter Winthrop); Comment, Rocks and Shoals in a Sea of Otherwise Deep Commitment: General Court-Martial Size and Voting Requirements, 35 Nav. L. Rev. 153, 156-158 (1986), the Articles followed the British example of ensuring the supremacy of civil court jurisdiction over ordinary capital crimes that were punishable by the law of the land and were not special military offenses. 1776 Articles, § 10, Art. 1, reprinted in Winthrop 964 (requiring commanders, upon application, to exert utmost effort to turn offender over to civil authorities). Cf. British Articles of War of 1765, § 11, Art. 1, reprinted in Winthrop 937 (same). That provision was deemed protection enough for soldiers, and in 1806 Congress debated and rejected a proposal to remove the death penalty from court-martial jurisdiction. Wiener, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv. L. Rev. 1, 20-21 (1958). Over the next two centuries, Congress expanded court-martial jurisdiction. In 1863, concerned that civil courts could not function in all places during hostilities, Congress granted courts-martial jurisdiction of common-law capital crimes and the authority to impose the death penalty in wartime. Act of Mar. 3, 1863, § 30, 12 Stat. 736, Rev. Stat. § 1342, Art. 58 (1875); Coleman v. Tennessee, 97 U. S. 509, 514 (1879). In 1916, Congress granted to the military courts a general jurisdiction over common-law felonies committed by service members, except for murder and rape committed within the continental United States during peacetime. Articles of War of 1916, ch. 418, § 3, Arts. 92-93, 39 Stat. 664. Persons accused of the latter two crimes were to be turned over to the civilian authorities. Art. 74, 39 Stat. 662. In 1950, with the passage of the UCMJ, Congress lifted even this restriction. Article 118 of the UCMJ describes four types of murder subject to court-martial jurisdiction, two of which are punishable by death: “Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he— “(1) has a premeditated design to kill; “(2) intends to kill or inflict great bodily harm; “(3) is engaged in an act which is inherently dangerous to another and evinces a wanton disregard of human life; or “(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson; “is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.” 10 U.S.C. §918. So matters stood until 1983, when the CMA confronted a challenge to the constitutionality of the military capital punishment scheme in light of Furman v. Georgia, 408 U. S. 238 (1972), and our ensuing death penalty jurisprudence. Although it held valid most of the death penalty procedures followed in courts-martial, the court found one fundamental defect: the failure of either the UCMJ or the RCM to require that court-martial members “specifically identify the aggravating factors upon which they have relied in choosing to impose the death penalty.” United States v. Matthews, 16 M. J. 364, 379. The court reversed Matthews’ death sentence, but ruled that either Congress or the President could remedy the defect and that the new procedures could be applied retroactively. Id., at 380-382. The President responded to Matthews in 1984 with an Executive Order promulgating RCM 1004. In conformity with 10 U. S. C. § 852(a)(1), the Rule, as amended, requires a unanimous finding that the accused was guilty of a capital offense before a death sentence may be imposed, RCM 1004(a)(2). The Rule also requires unanimous findings (1) that at least one aggravating factor is present and (2) that any extenuating or mitigating circumstances are substantially outweighed by any admissible aggravating circumstances, 1004(b). RCM 1004(c) enumerates 11 categories of aggravating factors sufficient for imposition of the death penalty. The Rule also provides that the accused is to have “broad latitude to present evidence in extenuation and mitigation,” 1004(b)(3), and is entitled to have the members of the court-martial instructed to consider all such evidence before deciding upon a death sentence, 1004(b)(6). This is the scheme Loving attacks as unconstitutional. He contends that the Eighth Amendment and the doctrine of separation of powers require that Congress, and not the President, make the fundamental policy determination respecting the factors that warrant the death penalty. III A preliminary question in this case is whether the Constitution requires the aggravating factors that Loving challenges. The Government does not contest the application of our death penalty jurisprudence to courts-martial, at least in the context of a conviction under Article 118 for murder committed in peacetime within the United States, and we shall assume that Furman and the case law resulting from it are applicable to the crime and sentence in question. Cf. Trop v. Dulles, 356 U. S. 86 (1958) (analyzing court-martial punishments under the Eighth Amendment). The Eighth Amendment requires, among other things, that “a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’” Lowenfield v. Phelps, 484 U. S. 231, 244 (1988) (quoting Zant v, Stephens, 462 U. S. 862, 877 (1983)). Some schemes accomplish that narrowing by requiring that the sentencer find at least one aggravating circumstance. 484 U. S., at 244. The narrowing may also be achieved, however, in the definition of the capital offense, in which circumstance the requirement that the sentencer “find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process.” Id., at 246. Although the Government suggests the contrary, Brief for United States 11, n. 6, we agree with Loving, on the assumption that Furman applies to this case, that aggravating factors are necessary to the constitutional validity of the military capital punishment scheme as now enacted. Article 118 authorizes the death penalty for but two of the four types of murder specified: premeditated and felony murder are punishable by death, 10 U. S. C. §§918(1), (4), whereas intentional murder without premeditation and murder resulting from wanton and dangerous conduct are not, §§918(2), (3). The statute’s selection of the two types of murder for the death penalty, however, does not narrow the death-eligible class in a way consistent with our cases. Article 118(4) by its terms permits death to be imposed for felony murder even if the accused had no intent to kill and even if he did not do the killing himself. The Eighth Amendment does not permit the death penalty to be imposed in those circumstances. Enmund v. Florida, 458 U. S. 782, 801 (1982). As a result, additional aggravating factors establishing a higher culpability are necessary to save Article 118. We turn to the question whether it violated the principle of separation of powers for the President to prescribe the aggravating factors required by the Eighth Amendment. IV Even before the birth of this country, separation of powers was known to be a defense against tyranny. Montesquieu, The Spirit of the Laws 151-152 (T. Nugent transí. 1949); 1 W. Blackstone, Commentaries *146-* 147, *269-*270. Though faithful to the precept that freedom is imperiled if the whole of legislative, executive, and judicial power is in the same hands, The Federalist No. 47, pp. 325-326 (J. Madison) (J. Cooke ed. 1961), the Framers understood that a “hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively,” Buckley v. Valeo, 424 U. S. 1, 120-121 (1976) (per curiam). “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring). Although separation of powers “ ‘d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,’” Mistretta v. United States, 488 U. S. 361, 380-381 (1989) (quoting The Federalist No. 47, supra, at 325-326 (emphasis deleted)), it remains a basic principle of our constitutional scheme that one branch of the Government may not intrude upon the central prerogatives of another. See Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 225-226 (1995) (Congress may not revise judicial determinations by retroactive legislation reopening judgments); Bowsher v. Synar, 478 U. S. 714, 726 (1986) (Congress may not remove executive officers except by impeachment); INS v. Chadha, 462 U. S. 919, 954-955 (1983) (Congress may not enact laws without bicameral passage and presentment of the bill to the President); United States v. Klein, 13 Wall. 128, 147 (1872) (Congress may not deprive court of jurisdiction based on the outcome of a case or undo a Presidential pardon). Even when a branch does not arrogate power to itself, moreover, the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties. Mistretta v. United States, supra, at 397-408 (examining whether statute requiring participation of Article III judges in the United States Sentencing Commission threatened the integrity of the Judicial Branch); Nixon v. Administrator of General Services, 433 U. S. 425, 445 (1977) (examining whether law requiring agency control of Presidential papers disrupted the functioning of the Executive). Deterrence of arbitrary or tyrannical rule is not the sole reason for dispersing the federal power among three branches, however. By allocating specific powers and responsibilities to a branch fitted to the task, the Framers created a National Government that is both effective and accountable. Article I’s precise rules of representation, member qualifications, bicameralism, and voting procedure make Congress the branch most capable of responsive and deliberative lawmaking. See Chadha, supra, at 951. Ill suited to that task are the Presidency, designed for the prompt and faithful execution of the laws and its own legitimate powers, and the Judiciary, a branch with tenure and authority independent of direct electoral control. The clear assignment of power to a branch, furthermore, allows the citizen to know who may be called to answer for making, or not making, those delicate and necessary decisions essential to governance. Another strand of our separation-of-powers jurisprudence, the delegation doctrine, has developed to prevent Congress from forsaking its duties. Loving invokes this doctrine to question the authority of the President to promulgate RCM 1004. The fundamental precept of the delegation doctrine is that the lawmaking function belongs to Congress, U. S. Const., Art. I, §1, and may not be conveyed to another branch or entity. Field v. Clark, 143 U. S. 649, 692 (1892). This principle does not mean, however, that only Congress can make a rule of prospective force. To burden Congress with all federal rulemaking would divert that branch from more pressing issues, and defeat the Framers’ design of a workable National Government. Thomas Jefferson observed: “Nothing is so embarrassing nor so mischievous in a great assembly as the details of execution.” 5 Works of Thomas Jefferson 319 (P. Ford ed. 1904) (letter to E. Carrington, Aug. 4, 1787). See also A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 529-530 (1935) (recognizing “the necessity of adapting legislation to complex conditions involving a host of details with which the national legislature cannot deal directly”). This Court established long ago that Congress must be permitted to delegate to others at least some authority that it could exercise itself. Wayman v. Southard, 10 Wheat. 1, 42 (1825). “‘The true distinction... is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’” Field, supra, at 693-694, quoting Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County, 1 Ohio St. 77, 88-89 (1852). Loving contends that the military death penalty scheme of Article 118 and RCM 1004 does not observe the limits of the delegation doctrine. He presses his constitutional challenge on three fronts. First, he argues that Congress cannot delegate to the President the authority to prescribe aggravating factors in capital murder cases. Second, he contends that, even if it can, Congress did not delegate the authority by implicit or explicit action. Third, Loving believes that even if certain statutory provisions can be construed as delegations, they lack an intelligible principle to guide the President’s discretion. Were Loving’s premises to be accepted, the President would lack authority to prescribe aggravating factors in RCM 1004, and the death sentence imposed upon him would be unconstitutional. A Loving’s first argument is that Congress lacks power to allow the President to prescribe aggravating factors in military capital cases because any delegation would be inconsistent with the Framers’ decision to vest in Congress the power “To make Rules for the Government and Regulation of the land and naval Forces.” U. S. Const., Art. I, §8, cl. 14. At least in the context of capital punishment for peacetime crimes, which implicates the Eighth Amendment, this power must be deemed exclusive, Loving contends. In his view, not only is the determination of aggravating factors a quintessential policy judgment for the Legislature, but the history of military capital punishment in England and America refutes a contrary interpretation. He asserts that his offense was not tried in a military court throughout most of English and American history. It is this historical exclusion of common-law capital crimes from military jurisdiction, he urges, that must inform our understanding of whether Clause 14 reserves to Congress the power to prescribe what conduct warrants a death sentence, even if it permits Congress to authorize courts-martial to try such crimes. See Brief for Petitioner 42-43; Brief for United States Navy-Marine Corps Appellate Defense Division as Amicus Curiae 7-12, 19-26. Mindful of the historical dangers of autocratic military justice and of the limits Parliament set on the peacetime jurisdiction of courts-martial over capital crimes in the first Mutiny Act, 1 Wm. & Mary, ch. 5 (1689), and having experienced the military excesses of the Crown in colonial America, the Framers harbored a deep distrust of executive military power and military tribunals. See Reid v. Covert, 354 U. S. 1, 23-24 (1957) (plurality); Lee v. Madigan, 358 U. S. 228, 232 (1959). It follows, Loving says, that the Framers intended that Congress alone should possess the power to decide what aggravating factors justify sentencing a member of the Armed Forces to death. We have undertaken before, in resolving other issues, the difficult task of interpreting Clause 14 by drawing upon English constitutional history. See, e. g., Reid, supra, at 23-30; O’Callahan v. Parker, 395 U. S. 258, 268-272 (1969) (determining that courts-martial only had jurisdiction of service-connected crimes); Solorio v. United States, 483 U. S. 435, 442-446 (1987) (overruling O’Callahan and taking issue with its historical analysis). Doing so here, we find that, although there is a grain of truth in Loving’s historical arguments, the struggle of Parliament to control military tribunals and the lessons the Framers drew from it are more complex than he suggests. The history does not require us to read Clause 14 as granting to Congress an exclusive, non-delegable power to determine military punishments. If anything, it appears that England found security in divided authority, with Parliament at times ceding to the Crown the task of fixing military punishments. From the English experience the Framers understood the necessity of balancing efficient military discipline, popular control of a standing army, and the rights of soldiers; they perceived the risks inherent in assigning the task to one part of the Government to the exclusion of another; and they knew the resulting parliamentary practice of delegation. The Framers’ choice in Clause 14 was to give Congress the same flexibility to exercise or share power as times might demand. In England after the Norman Conquest, military justice was a matter of royal prerogative. The rudiments of law in English military justice can first be seen in the written orders issued by the King for various expeditions. Winthrop 17-18. For example, in 1190 Richard I issued an ordinance outlining six offenses to which the crusaders would be subject, including two punishable by death: “Whoever shall slay a man on ship-board, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land he shall be bound to the dead man and buried in the earth.” Ordinance of Richard I — A. D. 1190, reprinted in id., at 903. The first comprehensive articles of war were those declared by Richard II at Durham in 1385 and Henry V at Mantes in 1419, which decreed capital offenses that not only served military discipline but also protected foreign noncombatants from the ravages of war. T. Meron, Henry’s Wars and Shakespeare’s Laws: Perspectives on the Law of War in the Later Middle Ages 91-93 (1993). Articles of War, sometimes issued by military commanders acting under royal commission in the ensuing centuries, Winthrop 19, were not fixed codes, at least through the 17th century; rather, “each war, each expedition, had its own edict,” which lost force after the cessation of hostilities and the disbanding of the army that had been formed. J. Pipón & J. Collier, Manual of Military Law 14 (3d rev. ed. 1863). Thus, royal ordinances governed the conduct of war, but the common law did not countenance the enforcement of military law in times of peace “when the king’s courts [were] open for all persons to receive justice according to the laws of the land.” 1 W. Blackstone, Commentaries *413. See also M. Hale, History of the Common Law of England 25-27 (C. Gray ed. 1971) (describing efforts of Parliament and the common-law courts to limit the jurisdiction of the military Courts of the Constable and the Marshal). “The Common Law made no distinction between the crimes of soldiers and those of civilians in time of peace. All subjects were tried alike by the same civil courts, so ‘if a life-guardsman deserted, he could only be sued for breach of contract, and if he struck his officer he was only liable to an indictment or action of battery.’” Reid, supra, at 24, n. 44 (quoting 2 J. Campbell, Lives of the Chief Justices of England 91 (1849)). See also 1 T. Macaulay, History of England 272 (n. d.) (hereinafter Macaulay). The triumph of civil jurisdiction was not absolute, however. The political disorders of the 17th century ushered in periods of harsh military justice, with soldiers and at times civilian rebels punished, even put to death, under the summary decrees of courts-martial. See C. Clode, Administration of Justice Under Military and Martial Law 20-42 (1872) (hereinafter Clode). Cf. Petition of Right of 1627, 3 Car. I, ch. 1 (protesting court-martial abuses). Military justice was brought under the rule of parliamentary law in 1689, when William and Mary accepted the Bill of Rights requiring Parliament’s consent to the raising and keeping of armies. In the Mutiny Act of 1689, Parliament declared the general principle that “noe Man may be forejudged of Life or Limbe or subjected to any kinde of punishment by Martiall Law or in any other manner then by the Judgement of his Peeres and according to the knowne and Established Laws of this Realme,” but decreed that “Soldiers who shall Mutiny or stirr up Sedition or shall desert Their Majestyes Service be brought to a more Exemplary and speedy Punishment than the usuall Forms of Law will allow,” and “shall suffer Death or such other Punishment as by a Court-Martiall shall be Inflicted.” 1 Wm. & Mary, ch. 5. In one sense, as Loving wants to suggest, the Mutiny Act was a sparing exercise of parliamentary authority, since only the most serious domestic offenses of soldiers were made capital, and the militia was exempted. See Solorio, supra, at 442. He misunderstands the Mutiny Act of 1689, however, in arguing that it bespeaks a special solicitude for the rights of soldiers and a desire of Parliament to exclude Executive power over military capital punishment. The Mutiny Act, as its name suggests, came on the heels of the mutiny of Scottish troops loyal to James II. 3 Macaulay 45-49. The mutiny occurred at a watershed time. Menaced by great continental powers, England had come to a grudging recognition that a standing army, long decried as an instrument of despotism, had to be maintained on its soil. The mutiny cast in high relief the dangers to the polity of a standing army turned bad. Macaulay describes the sentiment of the time: “There must then be regular soldiers; and, if there were to be regular soldiers, it must be indispensable, both to their efficiency, and to the security of every other class, that they should be kept under a strict discipline. An ill disciplined army... [is] formidable only to the country which it is paid to defend. A strong line of demarcation must therefore be drawn between the soldiers and the rest of the community. For the sake of public freedom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals.” Id., at 50. The Mutiny Act, then, was no measure of leniency for soldiers. With its passage, “the Army of William III. was governed under a severer Code than that made by his predecessors under the Prerogative authority of the Crown. The Mutiny Act, without displacing the Articles of War and those Military Tribunals under which the Army had hitherto been governed, gave statutory sanction to the infliction of Capital Punishments for offences rather Political than Military, and which had rarely been so punished under Prerogative authority.” Clode 9-10. See also Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435, 443, and n. 40 (1960) (noting that the Articles of War of 1662 and 1686 prohibited the infliction in peacetime of punishment costing life or limb). Indeed, it was the Crown that later tempered the excesses of courts-martial wielding the power of capital punishment. It did so by stipulating in the Articles of War (which remained a matter of royal prerogative) that all capital sentences be sent to it for revision or approval. Clode 9-10. Popular suspicion of the standing army persisted, 5 Macaulay 253-273, 393, and Parliament authorized the Mutiny Acts only for periods of six months and then a year, 3 id., at 51-53. But renewed they were time and again, and Parliament would alter the power of courts-martial to impose the death penalty for peacetime offenses throughout the next century. It withdrew the power altogether in 1713, 12 Anne, ch. 13, § 1, only to regret the absence of the penalty during the rebellion of 1715, Clode 49. The third of the Mutiny Acts of 1715 subjected the soldier to capital punishment for a wide array of peacetime offenses related to political disorder and troop discipline. Id., at 50. And, for a short time in the 18th century, Parliament allowed the Crown to invest courts-martial with a general criminal jurisdiction over soldiers even at home, placing no substantive limit on the penalties that could be imposed; until 1718, that jurisdiction was superior to civil courts. Id., at 52-53. The propriety of that general jurisdiction within the kingdom was questioned, and the jurisdiction was withdrawn in 1749. Id., at 53. Nevertheless, even as it continued to adjust the scope of military jurisdiction at home, Parliament entrusted broad powers to the Crown to define and punish military crimes abroad. In 1713, it gave statutory sanction to the Crown’s longstanding practice of issuing Articles of War without limiting the kind of punishments that might be imposed; and, in.the same Act, it delegated the power to “erect and constitute Courts Martial with Power to try hear and determine any Crime or Offence by such Articles of War and inflict Penalties by Sentence or Judgement of the same in any of Her Majesties Dominions beyond the Seas or elsewhere beyond the Seas (except in the Kingdom of Ireland)... as might have been done by Her Majesties Authority beyond the Seas in Time of War.” 12 Anne, ch. 13, §43; Winthrop 20. Cf. Duke & Vogel, supra, at 444 (noting that Parliament in 1803 gave statutory authority to the Crown to promulgate Articles of War applicable to troops stationed in England as well). See Solorio, 483 U. S., at 442 (discussing a provision in the British Articles of War of 1774 providing court-martial jurisdiction of civilian offenses by soldiers). As Loving contends, and as we have explained elsewhere, the Framers well knew this history, and had encountered firsthand the abuses of military law in the colonies. See Reid, 354 U. S., at 27-28. As many were themselves veterans of the Revolutionary War, however, they also knew the imperatives of military discipline. What they distrusted were not courts-martial per se, but military justice dispensed by a commander unchecked by the civil power in proceedings so summary as to be lawless. The latter was the evil that caused Blackstone to declare that “martial law” — by which he, not observing the modern distinction between military and martial law, meant decrees of courts-martial disciplining soldiers in wartime — “is built upon no settled principles, but is entirely arbitrary in its decisions, [and] is, as Sir Matthew Hale observes, in truth and reality no law, but something indulged rather than allowed as a law.” 1 Blackstone's Commentaries *413. See also Hale, History of the Common Law of England, at 26-27; Clode 21 (military law in early 17th-century England amounted to “the arbitrary right to punish or destroy, without legal trial, any assumed delinquent”). The partial security Englishmen won against such abuse in 1689 was to give Parliament, preeminent guardian of the British constitution, primacy in matters of military law. This fact does not suggest, however, that a legislature’s power must be exclusive. It was for Parliament, as it did in the various Mutiny Acts, to designate as the times required what peacetime offenses by soldiers deserved the punishment of death; and it was for Parliament, as it did in 1713, to delegate the authority to define wartime offenses and devise their punishments, including death. The Crown received the delegated power and the concomitant responsibility for its prudent exercise. The lesson from the English constitutional experience was that Parliament must have the primary power to regulate the Armed Forces and to determine the punishments that could be imposed upon soldiers by courts-martial. That was not inconsistent, however, with the further power to divide authority between it and the Crown as conditions might warrant. Far from attempting to replicate the English system, of course, the Framers separated the powers of the Federal Government into three branches to avoid dangers they thought latent or inevitable in the parliamentary structure. The historical necessities and events of the English constitutional experience, though, were familiar to them and inform our understanding of the purpose and meaning of constitutional provisions. As we have observed before, with this experience to consult they elected not to “freeze court-martial usage at a particular time” for all ages following, Solorio, supra, at 446, nor did they deprive Congress of the services of the Executive in establishing rules for the governance of the military, including rules for capital punishment. In the words of Alexander Hamilton, the power to regulate the Armed Forces, like other powers related to the common defense, was given to Congress “without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defence.” The Federalist No. 23, at 147 (emphasis deleted). The later-added Bill of Rights limited this power to some degree, cf. Burns v. Wilson, 346 U. S. 137, 140 (1953) (plurality opinion); Chappell v. Wallace, 462 U. S. 296, 300 (1983), but did not alter the allocation to Congress of the “primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military,” Solorio, 483 U. S., at 447-448. Under Clause 14, Congress, like Parliament, exercises a power of precedence over, not exclusion of, Executive authority. Cf. United States v. Eliason, 16 Pet. 291, 301 (1842) (“The power of the executive to establish rules and regulations for the government of the army, is undoubted”). This power is no less plenary than other Article I powers, Solorio, supra, at 441, and we discern no reasons why Congress should have less capacity to make measured and appropriate delegations of this power than of any other 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_treat
H
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. George G. GRIFFON, Petitioner, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. No. 85-4733. United States Court of Appeals, Fifth Circuit. Oct. 14, 1986. Barry M. Sax, Rockville, Md., for petitioner. John C. Hoyle, Anthony J. Steinmeyer, Attys., Civil Div., U.S. Dept. of Justice, Ronald T. Osborne, Admin. Law Judge, Dept. of H.H.S. Departmental Grant Appeals Bd., Civil Money Penalties Hearing Office, Jerry Schoppin, John Meyer, Office of Gen. Counsel, Inspector Gen. Div., Dept. of H.H.S., Washington, D.C., for respondent. Before CLARK, Chief Judge, and GOLDBERG and GARWOOD, Circuit Judges. GOLDBERG, Circuit Judge: Petitioner George Griffon was fined $44,-000 by an Administrative Law Judge (AU) for submitting 22 false claims to the Louisiana Medicaid program. The fine was imposed pursuant to provisions of the Civil Monetary Penalties Law (CMPL), 42 U.S.C. § 1320a-7a (1983), and of the implementing regulations issued by the Secretary of the Department of Health and Human Services (HHS), 45 C.F.R. §§ 101.100-101.133 (1984). Griffon challenges the regulations and statute as applied to him. In particular, he challenges retroactive application of the CMPL to fraudulent acts committed before the effective date of the statute. Because the AU did not have the authority to address such challenges, the AU did not decide the issue. Griffon then appealed to obtain review of the AU’s decision. We vacate that decision of the AU. The central issue presented in this case is whether, in the absence of any dispositive congressional intent, the Secretary of the Department of Health and Human Services (HHS) by regulation may sever and apply the procedural elements of the CMPL, thereby inferring and implementing congressional intent to apply the statute retroactively in part. Inferring the subjective intent of Congress when it has failed to speak is always fraught with peril; it is doubly hazardous when the appropriate canons of construction.fire at cross-purposes. See generally Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to be Construed, 3 Vand.L.Rev. 395, 401-06 (1950) (listing 28 pairs of equal and opposite rules of statutory construction). This case wages a conflict of first impression, which simultaneously sounds two canons: first, that in the absence of congressional intent, substantive legislation is to be given prospective application, and; second, that procedural legislation is to be given retroactive application. When a statute of mixed procedural and substantive character appears in the midst of the fray, no single rule reveals the faction to which it belongs. Because Congress has failed to provide adequate indicators of its intent regarding retroactivity, severability, or the nature of the CMPL, regulatory severance of the procedural and substantive provisions creates congressional intent out of whole cloth. The Secretary initially purports to infer a general retroactive intent of Congress, by characterizing the statute as procedural. She then attributes congressional cognizance of the inferred Due Process concerns raised by the first and second canons to subsequently infer that Congress would sever the statute, rather than apply it prospectively. Such bootstrapping by progressively linked inferences is beyond the reach of any reasonable, interpretive powers. Although the power of an administrator to interpret the sources of her authority in order to effect congressional purposes is extremely broad, she cannot fictitiously create purposes to achieve specific results. Some degree of interpretative contortion has a therapeutic effect on the law; too much contortion has a crippling effect. The Secretary here cannot simply fabricate a congressional intent to avoid concerns that otherwise would require inferred prospective application of a statute. We therefore nullify this administrative usurpation of the legislative prerogative to think clearly or not at all. I. The Procedural History and the Standard of Review On March 15, 1982, petitioner George Griffon was convicted of submitting 22 false claims to the Louisiana Medicaid program in 1979. Griffon, a pharmacist, had dispensed generic drugs to his customers under brand-name labels, and had submitted reimbursement claims based on brand-name drug prices. He was fined $110,000, $55,000 of which was characterized as restitution to Medicaid and $55,000 as a “criminal fine.” The Louisiana Supreme Court affirmed the criminal conviction and sentence on February 27, 1984. State v. Griffon, 448 So.2d 1287 (La.1984). On July 3, 1984, almost three years after passage of the CMPL, and almost ten months after the Secretary’s regulations, the Deputy Inspector General (IG) for Civil Fraud notified Griffon that HHS intended to impose a $44,000 fine under the CMPL. The IG cited numerous aggravating factors for imposing the maximum fine, and referenced the Louisiana conviction for the claims upon which the CMPL penalty was to be based. In a decision and order dated May 15, 1985, the AU imposed on Griffon the $44,-000 fine for the 22 fraud counts. The ALJ found that the IG had shown by clear and convincing evidence that Griffon had knowingly submitted 22 false claims within the scope of 45 C.F.R. § 101.102, for which Griffon could have been held liable under the False Claims Act, 31 U.S.C. §§ 3729-3731 (1983). The AU also found that there were no mitigating and numerous aggrevating factors, that Griffon had adequate notice of the penalties, that the maximum penalty was appropriate, and that an AU is not empowered to reach the validity of application of the statute. Petitioner appealed the AU’s determination, pursuant to 42 U.S.C. § 1320a-7a(d), because the Secretary’s regulations retroactively apply the statute to claims falsely submitted before enactment of the CMPL. The scope of our review of the Secretary’s construction that the CMPL is to be applied retroactively in part is extremely limited. Administrators are accorded considerable deference to effectuate the purposes of statutes. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984) (“a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations ‘has been consistently followed____’”) (quoting United States v. Shimer, 367 U.S. 374, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961)) (footnotes omitted) (emphasis added); see also Zenith Radio Corp. v. United States, 437 U.S. 443, 98 S.Ct. 2441, 2445, 57 L.Ed.2d 337 (1978); Chemical Mfrs. Assoc. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 105 S.Ct. 1102, 1108, 84 L.Ed.2d 90 (1985). A court of appeals can only invalidate an administrator’s interpretation if that interpretation is unreasonable. Chevron, 104 S.Ct. at 2783. II. The CMPL On August 13,1981, Congress passed the CMPL, a civil statute providing monetary penalties for individuals who file false Medicare or Medicaid claims. Congress passed the CMPL as an alternative procedure to existing federal and state enforcement mechanisms, after determining that those mechanisms were inadequate to combat the increasing incidence of Medicare fraud. The CMPL authorizes the Secretary of HHS to impose penalties of up to $2,000 per claim and double the claim amount on any person who presents or causes to be presented a claim or claims that the person knew or had reason to know was not provided for by statute or regulation. These sanctions expressly apply “in addition to any other penalties that may be prescribed by law____” 42 U.S.C. § 1320a-7a(a) (1983). The statute further provides that, in determining the amount of the penalty, the Secretary shall take into account “(1) the nature of claims and the circumstances under which they were presented, (2) the degree of culpability, history of prior offenses, and financial condition of the person presenting the claims, and (3) such other matters as justice may require.” 42 U.S.C. § 1320a-7a(c) (1983). The CMPL’s provisions generally track the civil penalty provision of the False Claims Act (FCA), 31 U.S.C. § 3729 (1983). The CMPL thus provides an administrative alternative to the FCA and to maximum criminal penalties of $25,000, five years imprisonment, or both, for persons convicted of specified fraudulent acts, including the filing of false Medicare and Medicaid claims, under 42 U.S.C. § 1395nn(c) (1983). The major difference of the CMPL from the FCA is that the CMPL provides the Secretary with an enforcement mechanism independant from prosecution by the Department of Justice in federal court. In addition, the CMPL creates new substantive liability if a claim-filer “has reason to know” that her claims are false, and changes the forum in and the evidentiary burdens by which the claims are prosecuted. On December 30, 1982, the Secretary of HHS promulgated proposed rules for implementing the statute by notice and comment in the Federal Register. 47 Fed. Reg. 58,309 (1982). Two years after the statute was enacted, the Secretary adopted the final rules, to be effective September 26, 1983. 48 Fed.Reg. 38,827 (1983) (codified at 45 C.F.R. §§ 101.100-101.133 (1984)). The Secretary recognized that Congress did not specifically make 42 U.S.C. § 1320a-7a retroactive, but she inferred that Congress intended retroactive application from the fact that the CMPL “was conceived as an alternative remedy to criminal prosecution of cases of fraud, which were not being prosecuted.” 48 Fed. Reg. 38,828 (1983). Attempting to avoid the Due Process problems that might arise from wholesale retroactive application of the CMPL, 48 Fed.Reg. 38, 828-29 (1983), the Secretary enacted 45 C.F.R. § 101.-114(b) (1984). Section 101.114(b) permits the retroactive application of the CMPL only to conduct that would have violated the FCA at the time of the submission of the false claim, and conforms evidentiary burdens to the FCA. The effect of the regulations is to insure that liability is imposed only on those who had notice that their conduct was illegal, albeit under a different statute, and that no substantive right pertaining to such illegal conduct is altered, amended, or abrogated. III. Unreasonable Characterization of the CMPL for Retroactivity Purposes Because of the deafening congressional silence regarding retrospective application, this interpretive conflict is controlled by the characterizations attributed to the CMPL. It appears that Congress generally intended the CMPL to be a procedural, civil alternative to ameliorate the pattern of underenforcement of criminal statutes. Because of the similarity of their provisions, it is not wholly unreasonable to adopt the Secretary’s interpretation that the CMPL was also intended to provide a procedural alternative to the FCA. Most of the CMPL provisions are procedural. However, the CMPL enlarged the scope of substantive liability, allowing prosecution of those who “had reason to know” that their claims were not provided for. Whether this substantive change so colors the nature of the Act as to make the CMPL substantive law for retroactivity purposes is the question before us. Little guidance exists on whether the statute as a whole can be characterized as procedural. In somewhat similar circumstances, this court concluded that the congressional purpose in shoring up the enforcement mechanisms of the Shipping Act of 1916, 46 U.S.C. § 801 et seq. (1970), was procedural and remedial in nature. In United States v. Blue Sea Line, 553 F.2d 445 (5th Cir.1977), we faced the question whether the government could bring a criminal prosecution under a repealed statute for acts antedating the statute’s repeal, as Congress had replaced the statute’s criminal sanctions with civil penalties and transferred jurisdiction of some claims to an administrative commission. Affirming the district court’s dismissal of the indictment and holding the amendments applicable to pre-amendment violations, the court described congressional intent as follows: By these changes Congress hoped to strengthen enforcement of the Shipping Act’s commands. The government's reduced burden of proof in civil penalty proceedings would simplify documentation of violations, increasing the likelihood of successful prosecution and diminishing the delay between violation and penalty. Both these consequences would tend to increase the Act’s deterrent impact without altering the substance of the Act’s penalties. Additionally, by authorizing Maritime Commission compromise of civil penalties, the 1972 amendments provided a tool for reducing duplicative Justice Department review and expensive federal litigation. Congress was clearly not engaged in ameliorating criminal punishment in adopting the 1972 amendments. On the contrary, its concern was to tighten enforcement of the existing monetary sanctions. The chosen mechanism was a shift in “forum”, from the criminal docket of the district courts to the halls of the Maritime Commission and, where necessary, the civil docket of the district courts. An important consequence of the shift, emphasized in the legislative history, was to reduce the Government's burden of proof. 553 F.2d at 447, 450 (citations omitted). Given this characterization of Congressional intent, the court in Blue Sea Line concluded that the amendments were “overwhelmingly procedural in nature.” Id. at 450. The Supreme Court has also treated as “procedural” a complete shift in the forum for adjudicating a particular type of claim. In Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409 (1916), the plaintiff claimed to be the sole heir of a member of the Omaha Indian tribe. Hallowell had filed suit in district court to establish his right to land the United States previously had held in trust for the decedent. While the suit was pending, Congress had removed jurisdiction over such claims from the district court and had given to the Secretary of Interior the power to ascertain the legal heirs. The court concluded that the statute had immediately divested the district court of jurisdiction, reasoning that “the reference of the matter to the Secretary... takes away no substantive right, but simply changes the tribunal that is to hear the case.” 36 S.Ct. at 203. In Alexander v. Robinson, 756 F.2d 1153 (5th Cir.1985), we characterized as procedural an allegedly retroactive application of the food stamp statutes pursuant to regulations issued by the Secretary of Agriculture. Section 113 of the 1981 Omnibus Budget Reconciliation Act provided that states should recover nonfraudulently over-issued coupon amounts by reducing monthly allotments to the overissued household. A plaintiff class challenged the implementing regulations, which offset overissuances that occurred before the effective date of the regulations. After determining that the regulations applied the statute prospectively, the court characterized the provision as procedural. Because § 113 was a “new collection tool [that] allowed [the government] to reduce current benefits to offset existing indebtedness,” that would have arisen under 1977 regulatory reimbursement provision, § 113 was “procedural or remedial in nature and may be applied retroactively.” Id. at 1156 (footnote omitted). We are unable to locate any case characterizing the CMPL, for purposes of retroactivity or otherwise. But the canons of retroactive construction themselves provide the artillery for our assault on the walls that hide congressional intent. It is beyond cavil that, as a general rule, legislation must be applied prospectively. In Union Pacific Railroad Co. v. Laramie Stock Yards Co., 231 U.S. 190, 34 S.Ct. 101, 58 L.Ed. 179 (1913), the Supreme Court declared: the first rule of construction is that legislation must be considered as addressed to the future, not to the past. The rule is one of obvious justice, and prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed. The rule has been expressed in varying degrees of strength, but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights, or by which human action is regulated, unless such be “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.” Id. 34 S.Ct. at 102 (quoting United States v. Heth, 7 U.S. (3 Cranch) 399, 413, 2 L.Ed. 479 (1806)) (citations omitted). See also, United States v. American Sugar Refining Co., 202 U.S. 563, 26 S.Ct. 717, 719, 50 L.Ed. 1149 (1906) (presumption against retrospective operation absent “clear, strong, and imperative” language in statute indicating retroactive intent) (quoting Heth, 7 U.S. (3 Cranch) at 413); Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 621-22, 11 L.Ed.2d 576 (1964). This principal has existed at least since the dicta of Chancellor Kent. The “first rule of construction” has been followed and applied in this Circuit. In United States v. Winters, 424 F.2d 113 (5th Cir.1970), this court stated: It would be most presumptuous for a court to assume Congress meant to allow retroactivity by indirection, in the face of the established presumption which requires that only prospective operation be given every statute which changes established rights unless retroactive application is the unequivocal and inflexible import of the terms of the legislation and the manifest intention of the legislature. Id. at 116 (citing Greene). The rule must be applied where retroactive application of a statute would either upset “vested” rights or interfere with settled expectations that guided an individual’s conduct. “Retroactive application of laws is undesirable where advance notice of the change in the law would motivate a change in an individual’s behavior or conduct.” Alexander, 756 F.2d at 1156. In Winfree v. Northern Pacific Railway Co., 227 U.S. 296, 33 S.Ct. 273, 57 L.Ed. 518 (1913), the Court refused to apply the Federal Employers Liability Act retroactively because the new act deprived the defendant of defenses upon which it had relied. In Greene, 84 S.Ct. at 621-22, the Supreme Court held that a government employee’s right to restitution for wrongful discharge had “matured” under a 1955 regulation, and that a subsequent regulation could not be applied to defeat that right. In United States v. Fernandez-Toledo, 749 F.2d 703 (11th Cir.1985), the court refused to retroactively apply the creation of a governmental appeal right under the Bail Reform Act, as to do so would disturb the defendant’s already “vested” right to bail. The Secretary here contends that “[t]he change that was brought about by the application of the CMPL, rather than the False Claims Act, to Griffon’s conduct is... an administrative hearing by an AU rather than... a proceeding in federal district court____ This procedural change does not interfere with any of Griffon’s legal rights.” Brief for Respondent at 15. Because the application of the CMPL is procedural in nature, the Secretary counters the first rule of construction with an opposing canon: “Granting [the application of the ‘first rule of construction,’] that canon of construction must yield to the rule here controlling that changes in statute law relating only to procedure or remedy are usually held immediately applicable to pending cases, including those on appeal from a lower court. This last mentioned rule of statutory construction defers only to a contrary [Congressional intent].” Turner v. United States, 410 F.2d 837, 842 (5th Cir.1969). United States v. Vanella, 619 F.2d 384, 385-86 (1980). The Government therefore argues that, apart from the new culpability standard, the CMPL affects procedure or remedy only and should therefore be given retroactive effect. Since the regulation applies retroactively only those procedural and remedial aspects of the CMPL, the Government argues that the regulation is fully in accord with the statute. We cannot agree. Characterization of a statute does not depend on its particular application, but on its very nature. Winfree, 33 S.Ct. at 274 (“Such defenses the statute takes away, and that none may exist in the present case is immaterial. It is the operation of the statute which determines its character.”). That retroactive application of the liability provisions of the CMPL to a plaintiff who lacked actual knowledge of the fraudulent nature of his claims could affect vested rights and result in manifest injustice cannot reasonably be disputed. Such a plaintiff would likely, given notice of those provisions, take greater care to avoid “reason to know” liability. Thus, the liability provisions of the statute must be considered substantive for retroactivity purposes. The first rule of construction therefore forbids, in the absence of explicit congressional intent, retroactive application of CMPL liability. The Secretary, however, would have us find that Congress intended to sever the liability provisions from the procedural provisions and to apply only the latter retroactively. Because Congress has not explicitly stated any such intent, we would have to attribute three levels of congressional intent to adopt the proposition. First, Congress would need a general intent to retroactively apply the statute. Second, because the substantive provisions could not be applied retroactively absent explicit intent, Congress would need to have intended not to apply those provisions retroactively. Third, Congress would need to have intended to apply the remaining provisions retroactively. Assuming arguendo that Congress intended the statute as a whole to be applied retroactively, there is no indication that Congress intended the statute to be severed to avoid these substantive retroactivity difficulties. There is no indication in the legislative history that Congress was aware of the potential Due Process concerns that might arise were the CMPL to be applied retroactively. No severance clause exists in the amendments to 42 U.S.C. §§ 1320-7 and 1320-7a. The only reason to imply such severance is to circumvent the mandated conclusion that the statute is substantive for retroactivity purposes. No legislative history warrants the inference of a congressional intent to circumvent the natural constructions of its actions or the judicial canons of statutory interpretation. Further, if the Secretary were to infer severance on the principle that portions of the statute would otherwise be prospective, she would be bound by judicial principles for construing an intent to sever. “ ‘Unless it is evident that the legislature would not have enacted those provisions which are within its power’ independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976) (quoting Champlin Refining Co. v. Corporation Comm’n, 286 U.S. 210, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932)); see also Immigration & Naturalization Service v. Chadha, 286 U.S. 210, 103 S.Ct. 2764, 2774-76, 76 L.Ed. 1062 (1983). Were the procedures applied retroactively and the substance applied prospectively, as implied by the Secretary’s argument that the CMPL was designed as a procedural alternative to the FCA, there would be no liability under the CMPL itself on which the Secretary could retroactively proceed. Rather, the Secretary would have to imply an intent to conjoin the procedural elements of the CMPL with the substantive provisions of the FCA in the same cause of action, which is nowhere mentioned in the legislative history. Alternatively, for there to be some part left of the CMPL that could be “fully operative as law,” the Secretary would be required to further imply a Congressional intent to sever the liability provisions from themselves. Again, there is no such indication of Congressional intent. Although Chevron limits our ability to substitute our judgment for that of the Secretary, nothing in Chevron permits or implies support for the proposition that an administrator can call black white, nor that the courts are rendered impotent to prevent administrative mysticism. Rather than draw our own inferences, from simple logic, that the Secretary’s construction is unreasonable because conjury cannot be permitted to overwrite the administration of government, our hand is guided by the Constitution as applied by our judiciary. The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law, for no such power can be delegated by Congress, but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute is a mere nullity. Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1936) (citations omitted). This constitutional moral holds especially true when Congress has not spoken. See generally Stewart, The Reformation of American Administrative Law, 88 Harv.L.Rev. 1669, 1677 n. 27 (1975) (listing “[t]he factors responsible for this lack of [Congressional] specificity”). In sum, the CMPL is, at least for retroactivity purposes, a substantive statute. As such, it falls within the rule of Union Pacific to be applied prospectively absent unequivocal Congressional intent. Lacking such intent or any intent to sever the statute, the CMPL cannot be applied retroactively in part, and the Secretary cannot characterize the CMPL to do so. Conclusion While we applaud both the motives and the legal ingenuity of the Secretary, we cannot allow her to perform “creative and imaginary statutory surgery” on the CMPL by prescribing 45 C.F.R. § 101.114(b). Bowsher v. Synar, — U.S.-, 106 S.Ct. 3181, 3193, 92 L.Ed.2d 583 (1986). The CMPL was not designed to be partially retroactively applied, regardless of the lack of unfairness to petitioner Griffon. Because the Secretary’s regulations, as promulgated, exceed her authority, they cannot be given effect. As a result, prosecution of Griffon under the CMPL should not have occurred. For the above reasons, the judgment against Griffon is VACATED. . Legal fiction is occasionally a useful and appropriate method by which to overwrite unforseen or troublesome legal issues to achieve specific results. See, e.g., L. Fuller, Legal Fictions, 9, 51 (1967); P. Bobbitt & G. Calabresi, Tragic Choices 24-28 (1978). It is inappropriate in this case. Spurious interpretation is an anachronism in an age of legislation. It is a fiction____ Lieber points out that it is essentially legislation. Bryce calls it simply and plainly "evasion.” It is, in truth, what we may call a general fiction. For if we look narrowly at the fictions by means of which the law has grown in the past, we may divide them into general fictions — fictions under which a general course of procedure or general doctrines have grown up; and particular or special fictions — fictions which have enabled a new rule to grow up in particular cases. In the former class, along with spurious interpretation, one might put the jus gentium, natural law, and equity. Spurious interpretation, moreover, is a fiction which has done its legitimate work. Men have long seen that special fictions are unnecessary and unsuited to a developed system of law. Pound, Spurious Interpretation, 7 Colum.L. Rev. 381 (1907) (footnotes omitted), reprinted in 4 Southerland Stat. Const. 31, 35-36 (4th ed. 1986). The Secretary here writes a special fiction. . Because we cannot permit partial retroactive application, we do not reach petitioner’s other claims: that the fines were by nature criminal, rather than civil, and thus violated the Ex Post Facto clause of the U.S. Constitution; that the fines were not intended to supplement criminal convictions; and that the amount of penalty relative to the claim is so disproportionate as to deprive Griffon of Due Process. We also pretermit the question of whether, if the CMPL as a whole were intended to be retroactive, such application would violate Due Process. To decide this question would require yet another reasonableness determination, the reasonableness of the (inferred) Congressional retroactivity decision. See K. Davis, Administrative Law Text, § 5.05, 133 (3d ed. 1972). . Chevron was decided in relation to legislative rulemaking. Because we find that the Secretary’s interpretation is unreasonable, there is no need to decide whether Chevron or a less exacting standard applies to interpretative rules. Further, because the distinction is not helpful, see note 10 infra, we prefer to avoid characterizing the Secretary’s rule in order to reach this question. But see American Medical Ass’n v. Heckler, 606 F.Supp. 1422, 1441 (S.D.Ind.1985) (applying Chevron to a rule argued in the alternative to be interpretative). . The CMPL amended sections 1128 and 1128A of Title XI, Part A of the Social Security Act, 42 U.S.C. §§ 1320a-7, 1320a-7a (1983). The CMPL was passed under Title XXI, Subtitle A, Chapter 2 of the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub.L. No. 97-35, 95 Stat. 357, 789-92 (1981) ("Other Administrative Changes" of “Provisions Relating to Medicare and Medicaid"). It appears at 42 U.S.C. §§ 1320a-7 and 1320a-7a (1986) (as amended). Only § 1320a-7a is of concern here. . What little legislative history exists focuses on the fact that the Secretary is left without adequate statutory resources to combat fraud if the Department of Justice refuses to prosecute. Current law establishes criminal penalties for persons convicted of committing specified fraudulent acts under medicare and medicaid____ Current law also requires the Secretary to suspend from medicare any practitioner convicted of a criminal offense and---allows the Secretaiy to exclude from medicare individual practitioners or providers that knowingly or willfully make or cause to be made any false statements in an application for payment____ U.S. Attorneys may refuse to accept medicare and medicaid fraud cases for any number of reasons____ Under present law, when a decision is made not to accept a case for prosecution the only recourse for the Government is to attempt recovery of the overpayment involved____ The bill authorizes the Secretary of HHS to assess a civil monetary penalty of up to $2,000 per claim against any person who he determines has filed a fraudulent claim under the medicare or medicaid programs____ Persons subject to a penalty would be given written notice and an opportunity for a hearing on the record prior to imposition of a penalty. S.Rep. No. 139, 97th Cong., 1st Sess. 461-62 (1981), reprinted in 1981 U.S. Code Cong. & Ad. News 727-28. OBRA, Summary of Senate Finance Committee Recommendations on Reconciliation, General Explanation, Authority for the Secretary to Impose Civil Money Penalties in Cases of Medicare and Medicaid Fraud). Prior to the CMPL, the Secretary lacked any independent authority to pursue fraudulent claim-filers. Due to a large volume of cases [at the Department of Justice]____ such criminal penalties have proved an ineffective deterrent to fraudulent practices under medicare and medicaid. The Secretary is currently authorized to impose a civil money penalty only in cases where such a penalty has been recommended by a Professional Standards Review Organization. H.R.Rep. No. 97-158, 97 Cong., 1st Sess., vol. Ill, 327 (1981). The CMPL thus was "intended to provide an alternative to criminal proceedings so as to increase the effectiveness of enforcement in the medicare and medicaid programs... [and] to provide the Secretary [of Health and Human Services] with additional flexibility in pursuing cases of fraud under the programs." H.R.Rep. No. 97-158, 97th Cong., 1st Sess., vol. II, 344 (1981); see also H.R.Rep. No. 97-158, 97th Cong., 1st Sess., vol. Ill, 329 (1981). . Any person (including an organization, agency, or other entity) that— (1) presents or causes to be presented to an officer, employee, or agent of the United States, or of any department or agency thereof, or of any State agency (as defined in subsection (h)(1) of this section), a claim (as defined in subsection (h)(2) of this section) that the Secretary determines is for a medical or other item or service— (A) that the person knows or has reason to know was not provided as claimed, or (B) payment for which may not be made under the program under which such claim was made, pursuant to a determination by the Secretary under section 1320a-7, 1320c-9(b), or 1395y(d) of this title, or pursuant to a determination by the Secretary under section 1395cc(b)(2) of this title with respect to which the secretary has initiated termination proceedings; or (2) presents or causes to be presented to any person a request for payment which is in violation of the terms of (A) an assignment under section 1395u(b)(3)(B)(ii) of this title, or (B) an agreement with a State agency not to charge a person for an item or service in excess of the amount permitted to be charged, shall be subject, in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than $2,000 for each item or service. In addition, such a person shall be subject to an assessment of not more than twice the amount claimed for each such item or service in lieu of damages sustained by the United States or a State agency because of such claim. 42 U.S.C. § 1320a-7a(a) (1983). . The Secretary noted, in final implementing rules, that "[s]ection 1128A is closely modeled on that statute." 48 Fed.Reg. 38,828 (1983). The legislative history of the CMPL does not reference the FCA, notwithstanding the obvious similarity of their provisions. The legislative history, moreover, makes clear that the CMPL was intended as a civil alternative to existing criminal enforcement mechanisms. The FCA is a civil liability statute. . It is unclear whether these rules are interpretative or legislative rules, conveying the retroactive intent of Congress or the retroactive intent of the Secretary pursuant to her statutory authority. Interpretative rules do not require notice and comment rulemaking, 5 U.S.C. § 553(b)(3)(A), and cannot be retroactive because they effectuate the intent of the statute. Because this distinction, like many in administrative law, is wholly formal and often incoherent, it cannot form the basis for our decision on the reasonableness of the Secretary’s decision to apply the CMPL retroactively. Anderson, Clayton & Co. v. United States, 562 F.2d 972, 985 n. 30 (5th Cir.1977), cert. denied, 436 U.S. 944, 98 S.Ct. 2845, 56 L.Ed.2d 785 (1978), clarifies this point: [I]t seems unrealistic to suppose that many interpretative regulations merely express the one correct and intended interpretation of the statute under which they were promulgated. Many interpretative regulations will make explicit the answers to questions that Congress did not anticipate____ Professor Davis writes: "[A] significant portion of what is called ‘interpretation’ is not interpretation at all but is in truth creative law making____” K. Davis, Administrative Law Text, § 5.05, 135 (3d ed. 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: