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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
BLACKBURN v. ALABAMA.
No. 50.
Argued December 10, 1959.
Decided January 11, 1960.
Truman Hobbs argued the cause and filed a brief for petitioner.
Paul T. Gish, Jr., Assistant Attorney General of Alabama, árguéd the cause for respondent. With him on the brief was MacDonald Gallion, Attorney General of Alabama.
Mr. Chief Justice Warren
delivered the opinion of the Court.
Jesse Blackburn was tried in the Circuit Court of Colbert County, Alabama, on a charge of robbery, found guilty, and sentenced to 20 years’" imprisonment. By far the most damaging piece of evidence against him was his confession, which he persistently maintained had not been made voluntarily. The record seemed to provide substantial support for this contention, and we granted cer-tiorari because of a grave doubt whether the judgment could stand if measured against the mandate of the Fourteenth Amendment to the Constitution of the United States. 359 U. S. 1010. Plenary hearing has hardened this doubt into firm conviction: Jesse Blackburn has been deprived of his liberty without due process of law.
The crime with which Blackburn was charged was the robbery of a mobile store on April 19, 1948. By that date Blackburn, a 24-year-old Negro, had suffered a lengthy siege of mental illness. He had served in the armed forces during World War II, but had been discharged in 1944 as permanently .disabled by a psychosis. He" was thereupon placed in an institution and given medical treatment over extended periods until February 14, 1948, when he was released from a Veterans Administration hospital for a ten-day leave in the care of his sister. He failed to return to the hospital and consequently was discharged on May 24, 1948. The robbery of which he stands convicted occurred during this period of unauthorized absence from a mental ward. Blackburn’s medical records further disclose that from 1946 he was classified by the Veterans Administration as 100 percent “incompetent” and that at the time of his discharge from the hospital both his diagnosis of “schizor phrenic reaction, paranoid type” and his characterization as “incompetent” remained unchanged.
This does not by any means end the record of Blackburn’s history of mental illness. He was arrested shortly following the robbery, and some time after his confession on May 8, 1948, the Sheriff reported to the circuit judge that Blackburn had exhibited symptoms, of insanity. The judge thereupon had Blackburn examined by three physicians, and after receiving their report he concluded that there was “reasonable ground to believe that the defendant was insane either at the time of the commission of [the] offense or at the present time.” In accordance with the procedure prescribed by Alabama law, the judge then directed the Superintendent of the Alabama State Hospitals to convene a lunacy commission. When the commission unanimously declared Blackburn insane, the judge committed him to the Alabama State Hospital for the mentally ill until he should be “restored to his right mind.” Blackburn escaped from the hospital once, only to be apprehended on another charge, declared insane by a second Alabama circuit judge, and sent back to the hospital. Before his return he was examined by another set of doctors who diagnosed his mental condition as “Schizophrenic; reaction, paranoid type” and declared that he was “Insane, incompetent, and should be placed in [an]' insane hospital.” Except for this brief interlude, Blackburn remained in the hospital for over four years, from July 1948 to October 1952, at which time he was declared mentally competent to stand trial.
At his trial, Blackburn entered pleas of not guilty and not guilty by reason of insanity. He testified that he could remember nothing about the alleged crime, the circumstances surrounding it, his arrest, his confession, his commitment to the State Hospital, or the early period of his treatment there. He denied the truth of the confession, but admitted that the signature on it appeared to be his. According to a 1944 Army medical report, one aspect of Blackburn’s illness was recurrent “complete amnesia concerning his behaviour.” .
When the prosecutor proposed to introduce Blackburn’s confession into evidence, his attorney objected, and the judge held a hearing to determine its admissibility. Blackburn’s counsel submitted to the judge the depositions of two of the three doctors who had served on the lunacy commission and who had observed Blackburn during his period of treatment at the State Hospital. These depositions incorporated copies of three significant documents. The first was the court order directing examination of Blackburn by a lunacy commission. This order mentioned Blackburn’s previous treatment in a mental ward and two of his prior commitments to mental institutions. The second paper was the lunacy commission’s report, in which three state-employed doctors, had expressed their opinion that Blackburn wás. insane both at the time of his admission to the hospital on July 29, 1948, and at the time of the robbery on April 19, 1948. Finally, the depositions set forth the order which permanently committed Blackburn to the State Hospital. In addition to attesting to the accuracy of these documents, the deponents set forth in detail their opinion of Blackburn’s mental condition. Dr; Harry S. Rowe, the Assistant Superintendent of the Hospital, who had worked since 1923 exclusively with psychopathic patients, stated that ás a member of the lunacy commission he had participated'in its • investigation and in the submission of its report. Dr. Rowe also said that he had interviewed Blackburn on many occasions since his commitment and that he not only still thought Blackburn had been insane on the date of the crime but also believed he “most probably [had been] insane and incompetent” on May 8, 1948,, when he had confessed. These opinions of Dr. Rowe were seconded by Dr. J. S. Tarwater, a psychiatrist who was Superintendent of the Alabama State Hospitals.
To counter this evidence, the prosecutor introduced the deposition of the third member of the lunacy commission, Dr. A. M. Richards, a general practitioner who had spent .the previous twelve years treating mental patients and who was a staff member of the State Hospital. The doctor’s answers to petitioner’s interrogatories were in harmony with the depositions of Drs. Tarwater and Rowe: Dr. Richards acknowledged that he had served on the lunacy commission, that he had signed the report, and that he had concurred in the finding that Blackburn had been insane on the date of the crime. He disclaimed having any other information of value, and notéd in response to a cross-interrogatory that Blackburn had been “up on the criminal ward and he was such a nuisance until I didn’t see him often.” In his answers to other cross-interrogatories, however, Dr. Richards executed an astonishing about-face by opining that Blackburn had been “normal” since he first saw him, that his mental condition was “normal” on the date of the crime and “good” on the date of the confession, and that he had never seen Blackburn suffer “psychotic episodes.” Even this portion of the deposition is not without incongruity, however, for Dr. Richards’ response ' to one cross-interrogatory was that he did not believe Blackburn had experienced lucid intervals.
Evidence concerning the circumstances surrounding the making of the confession was supplied by the Chief Deputy Sheriff. He testified that the interrogation had consumed “something like, maybe five or six hours” on May 8, 1948, and that no one' had threatened Blackburn in any way. The Chief Deputy, composed the statement in narrative form on the basis of Blackburn’s answers to the various questions asked by the officers, and Blackburn signed the confession two days later. When asked about Blackburn’s behavior, the witness responded that Blackburn had “answered like any normal person I have examined.” After the judge ruled that the confession would be admitted, but before it was actually admitted, the Chief Deputy described in somewhat greater detail— this time to the jury — the manner in which the confession had been obtained. It developed that the examination had begun at approximately one o’clock in the afternoon and had continued until ten or eleven o’clock that evening, with about an hour’s break for dinner. Thus it was established’that the quéstioning went on for eight or nine hours rather than five or six. Apparently most of the interrogation took place in closely confined quarters — a room about four by six or six by eight feet — in which as many ás three officers had at times been present with Blackburn. The Chief Deputy conceded that Blackburn said he had been a patient in a mental institution, but claimed that Blackburn also stated he .had been released, and avowed that Blackburn “talked sensible and give [sic] sensible answers,” was clear-eyed, and did not appear nervous.
Blackburn’s counsel again objected to admission of the statement, but the objection was overruled and the confession was submitted to the jury. After the Alabama Court of Appeals affirmed the judgment and held that the Fourteenth Amendment did not require exclusion of the confession, Blackburn petitioned this Court for cer-tiorari. Thus was the constitutional issue raised, decided,, and presented to' this Court for review.
After according all of the deference to the trial judge’s decision which is compatible with our duty to determine .constitutional questions, we are unable to escape the-conclusion that Blackburn’s confession can fairly be characterized only as involuntary. Consequently the conviction must be set aside, since this Court, in a line of decisions beginning in 1936 with Brown v. Mississippi, 297 U. S. 278, and including cases by now too well known and too numerous to bear citation, has established the principle that the Fourteenth Amendment is grievously breached when an involuntary confession is obtained by state officers and introduced into evidence in a criminal prosecution which culminates in a conviction.
Since Chambers v. Florida, 309 U. S. 227, this Court has recognized that coercion can be mental as well as physical, and that the blood óf the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of “persuasion.” A prolonged interrogation of an accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror. Thus the range of inquiry in this type of case must be broad, and this Court.has insisted that the judgment in each instance be based upon consideration of “[t]he totality of the circumstances.” Fikes v. Alabama, 352 U. S. 191, 197.
It is also established that the Eourteenth Amendment forbids “fundamental unfairness in the use of evidence, whether true or false.” Lisenba v. California, 314 U. S. 219, 236. Consequently,'we have rejected the argument that introduction of an involuntary confession is immaterial where other evidence establishes guilt or corroborates the confession-. E. g., Spano v. New York, 360 U. S. 315, 324; Payne v. Arkansas, 356 U. S. 560, 567-568; Watts v. Indiana, 338 U. S. 49, 50, n. 2; Haley v. Ohio, 332 U. S. 596, 599. As important as it is that persons who have committed crimes be convicted, there are con-, siderations which transcend the question of güilt or innocence. Thus, in cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are sacrificed, where an agency of the government, in the course.of securing a conviction, wrings a confession out of an accused against his will. This insistence upon putting the government to the task of proving guilt by means other than inquisition was engendered by historical abuses which are quite familiar. See Chambers v. Florida, supra, at 235-238; Watts v. Indiana, supra, at 54-55.
But neither the likelihood that the confession is untrue nor the preservation of the individual’s freedom of will is the sole interest at stake. As we said just last Term, “The abhorrence of society to the use of involuntary confessions . . . also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal-methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, supra, at 320-321. Thus a complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, this Court terms involuntary, and the role played by each in any situation varies according to the particular circumstances of the case.'
In the case at bar, the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a- most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice .of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion. And when the other pertinent circumstances are considered — the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn’s friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff rather than by Blackburn — the chances, of the confession’s having been the product of a rational intellect and a free will become even more remote and the denial of due process even more egregious.
' It is, of course, quite true that we are dealing here with probabilities. It is possible, for example, that Blackburn confessed during a period of complete mental competence. Moreover, these probabilities are gauged in this instance primarily by the opinion evidence of medical experts. But this case is novel only in the sense that the evidence of insanity here is compelling, for this Court has in the past reversed convictions where psychiatric evidence revealed that the person who had confessed was “of low mentality, if not mentally ill,” Fikes v. Alabama, supra, at 196, or had a “history of emotional instability,” Spano v. New York, supra, at 322. And although facts such as youth and' lack of education are more easily ascertained than the imbalance of a human mind, we cannot say that this has any appreciable bearing upon the difficulty of the ultimate judgment as to the effect these various circumstances have upon independence of will, a judgment which must by its nature always be one of probabilities.
Of course, this case is no different from other involuntary confession cases in another respect — where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact. It is- this proposition upon which respondent’s principal argument rests, for the trial judge’s decision is said to be inviolable because of an alleged conflict between the depositions of Dr. Richards on the one hand and Drs. Tarwater and Rowe on the other. We need not in this case consider the relevance of the fact that the trial judge, like ourselves, had no opportunity to witness the demeanor of these doctors. It is sufficient to observe that the deposition of Dr. Richards is in such hopeless internal conflict that it raises no genuine issue of fact. It would be unreasonable in the extreme to .base a determination upon those portions in which the doctor proclaimed Blackburn normal while ignoring those portions in which he judged Blackburn insane. Nor have we overlooked the testimony of the Chief Deputy that Blackburn “talked sensible,” was clear-eyed, and did not appear nervous. But without any evidence in the record indicating that these observed facts bore any relation to Blackburn’s disease or were symptoms of a remission of his illness, we are quite unable to conclude that such an inference .can be drawn. The Fourteenth Amendment would be an illusory safeguard indeed if testimony of this nature were, held to raise a “conflict” which would preclude appellate review of a case where the evidence of insanity is as compelling as it is here.
We take note also of respondent’s argument that our decision must be predicated solely upon the evidence introduced by defendant before admission of the confession. As we have • indicated, this evidence consisted of the depositions, the copies of the documents incorporated therein, and the testimony of the Chief Deputy. The other relevant evidence, which included the detailed medical record of Blackburn’s mental illness prior to his arrest, was introduced at a later stage of the trial. It is quite true .that Blackburn’s counsel, so far as the record shows, made no request that the judge reconsider his ruling on the basis of this additional data. The Alabama Court of Appeals decided that under these circumstances this further documentation of Blackburn’s insanity was not, under state law, material to the Fourteenth Amendment question.
Even if respondent’s argument were meritorious our decision would be the same, since the evidence introduced prior to admission of the confession was ample to establish its involuntariness. But we reject the notion that the scope of our review can be thus restricted. Where the involuntariness of a confession is conclusively demonstrated at any stage of a trial, the defendant is deprived of due process by entry of judgment of conviction without exclusion of the confession. An argument similar to respondent’s was disposed of in Brown v. Mississippi, 297 U. S. 278, in the following words:
“That contention rests upon the failure of counsel for the accused, who had objected to the admissibility of the confessions-, to move for their exclusion after they had been- introduced and the fact of coercion had been proved. It is a contention which proceeds upon a misconception of the nature of petitioners’ ' complaint. That complaint is not of the commission of mere error, but of a.wrong so fundamental' that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. ... We are not concerned with a mere question of state practice, or whether counsel assigned to petitioners were competent or mistakenly assumed that their first-objections were sufficient. . . .
“In the instant case, the trial court was fully advised by the undisputed evidence of the way in which the confessions had been procured. The trial court knew that there was no other evidence upon which conviction and sentence could be based. Yet. it proceeded to permit conviction and to pronounce 'sentence. The conviction and sentence were void for want of the- essential elements of due process . . . Id., at 286-287. .
Just as in Brown, the evidence here clearly estáblishes that the confession most probably was not the product of any meaningful act of volition. Therefore, the use of this evidence to convict Blackburn transgressed the imperatives of fundamental justice which find their expression in the Due Process Clause of the Fourteenth Amendment, and the judgment must be
Revérsed.
Mr. Justice Clark concurs in the result.
The only other adverse evidence of any significance tended to prove that Blackburn and two others had traveled to Alabama from Illinois around the date of the robbery; that they were driving a maroon Buick; and that the crime was committed by persons who drove a maroon Buick with an Illinois license plate.
Ala. Code, 1940, Tit. 15, § 425.
We later set forth in detail the opinions of the members of this • lunacy commission, Drs. Tarwater, Rowe, and Richards. As will appear, the evidence they supplied is of critical importance in this case.
The Alabama Court of Appeals wrote two opinions in this case. After the first, 38 Ala. App. 143, 88 So. 2d 199, and after the Alabama Supreme Court had denied certiorari, 264 Ala. 694, 88 So. 2d 205, we’granted certiorari, 352 U. S. 924, and later vacated the judgment and remanded the case to the Court of Appeals because we were uncertain whether that court had passed upon the federal question. 354 U. S. 393. The Court of Appeals reaffirmed the judgment of conviction, 40 Ala. App. -, 109 So. 2d 736, and the Alabama Supreme Court again denied certiorari, 268 Ala. 699, 109 So. 2d 738. The case was then ripe for our review, and we granted certiorari once more. 359 U. S. 1010.
It is well established, of course, that although this Court will accord respect to the conclusions of the state courts in cases of this nature, we cannot escape the responsibility of scrutinizing the record ourselves. E. g., Spano v. New York, 360 U. S. 315, 316; Pierre v. Louisiana, 306 U. S. 354, 358; Chambers v. Florida, 309 U. S. 227, 228-229.
E. g., Spano v. New York, 360 U. S. 315; Fikes v. Alabama, 352 U. S. 191; Watts v. Indiana, 338 U. S. 49; Turner v. Pennsylvania; 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68; Ashcraft v. Tennessee, 322 U. S. 143.
Lack of education is a factor frequently present in this type of case; and in Haley v. Ohio, supra, the fact that the accused was a 15-year-old youth weighed heavily in the Court’s judgment.
It is interesting to note that Blackburn’s medical records disclose that in 1944 he was given a diagnosis of “Psychosis, manic depressive, manic phase,” and yet was said to answer questions “relevantly and coherently.” Dr. Rowe stated that it was clear Blackburn “was suffering ■ from schizophrenia of the paranoic type. They . . . entertain delusions . . . .”
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_treat
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
SAGINAW BROADCASTING CO. v. FEDERAL COMMUNICATIONS COMMISSION (GROSS et al., Intervenors).
No. 6990.
United .States Court of Appeals for the District of Columbia.
Decided March 16, 1938.
Herbert M. Bingham and Guilford S. Jameson, both of Washington, D. C., for appellants.
Hampson- Gary, George Porter, Fanney Neyman, and Frank U. Fletcher, all of Washington, D. C., for appellee.
Philip G. Loucks, Arthur W. Scharfeld, and Joseph F. Zias, all of Washington, D. C., for interveners.
Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
STEPHENS, Associate Justice.
This is an appeal taken under Section 402(b) (1) of the Communications Act of 1934, 47 U.S.C.A. § 402(b) (l), from an order of the Broadcast Division of the Federal Communications Commission denying the application of the appellant for a radio station construction permit, and granting the application of the intervenors for such a permit.
On September 30, 1935, the Saginaw Broadcasting Company, the appellant (hereinafter referred to as such), filed an application for a permit to construct a radio station in Saginaw, Michigan, to operate on the frequency of 1200 kilocycles with a power of 250 watts until local sunset and 100 watts at night. The hours of operation were to be those portions of the broadcast day not occupied by WMPC, a station already in operation on the same frequency in Lapeer, Michigan, a city 40 miles from Saginaw. On February 21, 1936, Harold F. Gross and Edmund C. Shields, the intervenors (hereinafter referred to as such),filed an application for a permit to construct a station in Saginaw to operate on the frequency of 950 kilocycles with a power of 500 watts. Continuous operation was proposed during the day until local sunset; no broadcasts were to be made at night.
In March, 1936, the Broadcast Division designated these applications for hearing and later a joint hearing was held thereon before a trial examiner. The examiner recommended that the appellant’s application be granted, and that that of the intervenors be denied. Oral argument was had before the Broadcast Division on exceptions to the examiner’s report. The Division refused to adopt the recommendation of the examiner and entered an order on February 9, 1937, granting the application of the intervenors and denying that of the appellant. The effective date of the order was stated therein to be March 16, 1937. The order, as it appears in the record, contains no findings of fact, but states merely that “The Commission will issue and publish at a subsequent date an opinion setting forth a statement of the facts appearing of record and the grounds for the decision herein reached.” The Commission’s statement of facts and grounds for decision was filed on March 16, 1937, the effective date of the order. On April 2, 1937, the appellant filed an application for rehearing. This was denied by the Commission on June 2, 1937. On June 18, 1937, the appellant filed its notice of appeal and reasons therefor. Within proper time the intervenors filed notice of intention to intervene in the appeal, as provided by Section 402(d) of the Act.
1. At the outset we are confronted by a motion of the Commission to dismiss the appeal upon the ground that the notice of appeal was not filed within the time limit fixed by the statute. Section 402 of the Communications Act provides that an appeal may be taken from decisions of the Commission to the United States Court of Appeals for the District of Columbia, and further that:
“Such appeal shall be taken by filing with said court within twenty days after the decision complained of is effective, notice in writing of said appeal and a statement of the reasons therefor, . . . Unless a later date is specified by the Commission as part of its decision, the decision complained of shall be considered to be effective as of the date on which public announcement of the decision is made at the office of the Commission in the city of Washington. ...”
Section 5 of the Act, 47 U.S.C.A. § 155, provides that the Commission may divide its members into not more than three divisions, each of which shall have all the jurisdiction and powers of the Commission itself, that any order made or action taken by any division shall have the same force and effect as if made or taken by the Commission, subject to rehearing by the full Commission as provided in Section 405 of the Act, 47 U.S.C.A. § 405, for rehearing cases decided by the full Commission. Section 405 provides :
“After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time make application for rehearing of the same, or any matter determined therein, and it shall be lawful for the Commission in its discretion to grant such a rehearing if sufficient reason therefor be made to appear: Provided, however, That in the case of a decision, order, or requirement made under title III, [containing the provisions relating to radio] the time within which application for rehearing may be made shall be limited to twenty days after the effective date thereof, and such application may be made by any party or any person aggrieved or whose interests are adversely affected thereby. Applications for rehearing shall be governed by such general rules as the Commission may establish. No such application shall excuse any person from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without the special order of the Commission. . . . ”
The Commission contends that the right of appeal is governed wholly by the statute and that since the notice of appeal was not filed until June 18, 1937, or more than 20 days after March 16, 1937, the effective date of the order, the right of appeal has been lost. The appellant contends that by filing a petition for rehearing on April 2, 1937, which was within the 20 days allowed by Section 405 for the filing of such petitions, the running of the period within which an appeal might be taken was suspended, and that since the notice of appeal was filed within 20 days after the Commission’s final decision on the petition for rehearing; the taking of the appeal was timely.
In the Federal courts the rule is well established that in judicial proceedings the filing of a petition for rehearing, or of a motion for new trial, will suspend the running of the period within which an appeal may be taken, and that this period then begins to run anew from the date on which final action is taken on the petition or motion, whether it be denied or granted. The rule as above stated applies even though a statute fixes the time within which appeal may be taken as a definite period from the entry of judgment. See Wayne United Gas Co. v. Owens-Illinois Glass Co., 1937, 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557, and cases therein cited; Morse v. United States, 1926, 270 U.S. 151, 153, 154, 46 S.Ct. 241, 242, 70 L.Ed. 518, and cases therein cited; cf. Citizens Bank v. Opperman, 1919, 249 U.S. 448, 39 S.Ct. 330, 63 L.Ed. 701.
This rule has been applied by this court, as well as'by other circuit courts of appeals, to proceedings before the Board of Tax Appeals. Helvering v. Continental Oil Co., 1933, 63 App.D.C. 5, 68 F.2d 750; Helvering v. Louis, 1935, 64 App.D.C. 263, 77 F.2d 386, 99 A.L.R. 620; Commissioner v. Lincoln-Boyle Ice Co., 7 Cir., 1937, 93 F.2d 26; Burnet v. Lexington Ice & Coal Co., 4 Cir., 1933, 62 F.2d 906; Griffiths v. Commissioner, 7 Cir., 1931, 50 F.2d 782. In these cases the pertinent sections of the Revenue Act provided that the decision of the Board might be reviewed on appeal “within six months after the decison is rendered” and further, that “a decision' . . . shall be held to be rendered upon the date that an order specifying the amount of the deficiency is entered in the records of the Board.” In each case the appeal was taken more than six months after the order had been entered, but less than six months after the final decision of the Board upon a petition for rehearing. The courts held, nevertheless, that the appeals were timely.
It is an often quoted principle of statutory construction that the literal words ’of a statute are to be read in the light of the purpose of the statute taken as a whole, and' that the literal meaning will not be followed when it appears that to do so would, in view of the purpose of the statute, lead to an absurd or unjust result. See United States v. Katz, 1926, 271 U.S. 354, 357, 46 S.Ct. 513, 514, 70 L.Ed. 986; Hawaii v. Mankichi, 1903, 190 U.S. 197, 212, 213, 23 S.Ct. 787, 47 L.Ed. 1016; Church of the Holy Trinity v. United States, 1892, 143 U.S. 457, 459, 12 S.Ct. 511, 36 L.Ed. 226. The purpose of Congress in providing the administrative remedy of a rehearing must be considered in interpreting the sections of the statute which govern the right of appeal. The object of statutes providing for petitions for rehearing or motions for new trial is to afford opportunity to commissions and trial courts to correct errors or to hear newly discovered evidence before an appeal; but the function of such petitions and motions is not to supplant, but to supplement, that of appellate review. And if the statute here be construed so that a petition for rehearing does not suspend the running of the statutory period for appeal, the administrative benefit to the Commission of such petitions may well be destroyed. Litigants may be discouraged from filing petitions for rehearing because of fear that the right of judicial review may be lost; for it is hardly to be expected' that within 20 days a petition for rehearing may be properly prepared by counsel for a defeated applicant, substantially considered by the Commission, and i;uled on. It is doubtful, moreover, whether this court would have jurisdiction to entertain an appeal while such a petition was pending before the Commission. Cf. Voorhees v. Noye Manufacturing Co., 1894, 151 U.S. 135, 14 S.Ct. 295, 38 L.Ed. 101; Vincent v. Vincent, 1884, 3 Mackey 320, 14 D. C. 320; Brown v. Evans, 18 F. 56, C.C.D. Nev., 1883.
The Communications Act differs substantially from the Revenue Act involved in the cases hitherto cited only in the provision of Section 405 that “No such application [for rehearing] shall excuse any person from complying with or obeying any decision, order, or requirement of the Commission, or operate in any manner to stay or postpone the enforcement thereof, without' the special order of the Commission.” We think that the legislative history of this section of the Communications Act indicates that its inclusion ought not require a different result. The provisions of Section 405 as a whole are substantially those of Section 16a of the Interstate Commerce Act [34 Stat. 592, 49 U.S.C. § 16a (1934), 49 U.S.C.A. § 16a], and the provision above quoted was adopted almost verbatim. The Interstate Commerce Act makes no provision for direct appellate review of orders by the Interstate Commerce Commission. Hence the language of Section 16a could not, as used in that statute, have been intended to defeat the general rule that a petition for rehearing will suspend the running of the appeal period. We do not think that Congress intended to enlarge the meaning of this language when it was used in the Communications Act.
Accordingly, we hold that the filing of a petition for rehearing suspends the running of the appeal period, and that an applicant has 20 days from the date of final action on the petition for rehearing within which to file his notice and reasons for appeal. The motion to dismiss the appeal herein is therefore denied.
2. The appellant assigns as reasons for its appeal numerous alleged errors of the Commission in making, and in failing to make, specific findings of fact from the evidence adduced at the hearing. These assignments require an inquiry into the purpose and necessary content of findings of fact under the Communications Act.
The Act in Section 319(a), 47 U.S.C.A. § 319(a), provides that the Commission may -grant a construction permit for a radio station, if public convenience, interest, or necessity will be served. Section 402(b) of the Act provides .that an appeal may be taken to this court from a denial of an application for a construction permit. Section 402(c) provides that within 30 days after the filing by the unsuccessful applicant of a notice of appeal and a statement of the reasons therefor, the Commission shall file with the court the originals or certified copies of all papers and evidence presented to it upon the application involved in the appeal, and a like copy of the Commission’s decision, and that the Commission shall within 30 days there- . after file “a full statement in writing of the facts and grounds for its decision as found and given by it.” Section 402(e) provides that the review by this court shall be limited to questions of law, and that findings of fact .by the Commission, if supported by substantial evidence, shall be conclusive unless they shall clearly appear to be arbitrary or . capricious. Thereby the Act has set out a criterion to govern the Commission' in granting or refusing to grant a construction permit, has required a full statement in writing of the facts and grounds for its decision, and has provided the standards for judicial review.
The requirement that courts, and commissions acting in a quasi-judicial capacity, shall make findings of fact, is a means provided by Congress for guaranteeing that cases shall be decided according to the evidence and the law, rather than arbitrarily or from extralegal considerations; and findings of fact serve the additional purpose, where provisions for review are made, of apprising the parties and the reviewing tribunal of the factual basis of the action of the court or commission, so that the parties and the reviewing tribunal may determine whether the case has been decided upon the evidence and the law or, on the contrary, upon arbitrary'or extralegal considerations. When a decision is accompanied by findings of fact, the reviewing court can decide whether the decision reached by the court or commission follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence. In the absence of findings of fact the reviewing tribunal can determine neither of these things. The requirement of findings is thus far from a technicality. On the contrary, it is to insure against Star Chamber methods, to make certain that justice shall be administered according to facts and law. This is fully as important in respect of commissions as it is in respect of courts.
In discussing the necessary content of findings of fact, it will be helpful to spell out the process which a commission properly follows in reaching a decision. The process necessarily includes at least four parts: (1) evidence must be taken and weighed, both as to its accuracy and credibility; (2) from attentive consideration of this evidence a determination of facts of a basic or underlying nature must be reached; (3) from these basic facts the ultimate facts, usually in the language of the statute, are to be inferred, or not, as the case may be; (4) from this finding the decision will follow by the application of the statutory criterion. For example, before the Communications Commission may grant a construction permit it must, under the statute, be'convinced that the public interest, convenience, or necessity will be served. An affirmative or negative finding on this topic would be a finding of ultimate fact. This ultimate fact, however, will be reached by inference from basic facts, such as, for example, the probable existence or non-existence of electrical interference, in view of the number of other stations operating in the area, their power, wave length, and the like. These basic facts will themselves appear or fail to appear, as the case may be, from the evidence introduced when attentively considered. Thus, upon the issue of electrical interference evidence may be introduced con'cerning power and wave length of a proposed station and of existing stations, and expert opinion based upon this evidence may be offered as to the likelihood of interference; and expert opinion based on evidence of field measurements of signal strength of existing stations may also he offered. This testimony may conflict. It is the Commission’s duty to find from such evidence the basic facts as to the operation of the proposed and present stations in respect of power, wave length, and the like, and whether -or not electrical interference will result from the operation of the proposed station, and then to find as an ultimate fact whether public interest, convenience, or necessity will be served by granting or not granting the application.
We ruled in Missouri Broadcasting Corporation v. Federal Communications Commission, 68 App.D.C. 154, 94 F.2d 623, 1937, and again in Heitmeyer v. Federal Communications Commission, 68 App.D.C. 180, 95 F.2d 91, 1937, that findings of fact in the broad terms of public convenience, interest, or necessity, the criterion set up by Section 319(a) of the Act, were not sufficient to support an order of the Commission. We now rule that findings of fact, to be sufficient to support an order, must include what have been above described as the basic facts, from which the' ultimate facts in the terms of the statutory criterion are inferred. It is not necessary for the Commission to recite the evidence, and it is not necessary that it set out its findings in the formal style and manner customary in trial courts. It is enough if the findings be unambiguously stated, whether in narrative or numbered form, so that it appears definitely upon what basic -facts the Commission reached the ultimate facts and came to its decision.
Our conclusions on this topic are, we think, confirmed by the decisions of the Supreme Court- which consider what findings of fact are necessary in reports of the Interstate Commerce Commission. Section 14 of the Interstate Commerce Act, 34 Stat. 589, 49 U.S.C. § 14 (1934), 49 U.S.C.A. § 14, -requires only that the report of the Commission shall state its conclusions, unless damages are to be awarded. Nevertheless, the Supreme Court has laid down the rule that, although under this section formal findings of fact are not required, substantial findings of the basic and essential facts necessary to support the order must appear. See United States v. Baltimore & Ohio R. Co., 1935, 293 U.S. 454, 465, 55 S.Ct. 268, 273, 79 L.Ed. 587. In Florida v. United States, 1931, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291, the order of the Commission was one regulating intrastate rates upon the shipment of logs. The Commission based its power to make the order upon Section 13(4) of the Interstate Commerce Act, 49 U.S.C.A. § 13(4), and made a general finding in the language óf that section that the intrastate rates in force before the order resulted in “unjust discrimination against interstate commerce.”' The Court pointed out that the Commission made no findings as to the revenue which had been derived by the carrier from the traffic in question, or which could reasonably be expected under the increased rates, and' made no finding that the alteration of the-intrastate rates would produce additional income necessary to- prevent an undue burden upon the carrier’s interstate revenue. The Court then said:
“The question is not merely one of the absence of elaboration or of a suitably complete statement of the grounds of the Commission’s determination, to the importance of which this Court has recently adverted . . . but of the lack of the basic or essential findings required to support the Commission’s order. In the absence of such; findings, we are not called upon to. examine-the evidence in order to resolve opposing; contentions as to what it shows or to spell out and state such conclusions of fact as it may permit. The Commission is the fact-finding body and the Court examines the evidence not to make findings for the Commission but to ascertain whether its findings are properly supported.” [282 U.S. 194, at page 215, 51 S.Ct. 119, 125, 75 L.Ed. 291],
Similarly, in United States v. Chicago, M., St. P. & P. R. Co., 1935, 294 U.S. 499, 55 S.Ct. 462, 79 L.Ed. 1023, Mr. Justice Cardozo stated, in reversing an order of the Commission becatise of its failure to find the necessary facts:
“In brief, a schedule of lowered tariffs has been canceled though the facts that control the validity of the reduction have yet to be determined. . . . We would not be understood as saying that there do not lurk in this report phrases or sentences suggestive of a different meaning. One gains at places the impression that the Commission looked upon the proposed reduction as something more than a disruptive tendency; that it found unfairness in the old relation of parity between Brazil and Springfield; and that the new schedule in its judgment would confirm Milwaukee in the enjoyment of an undue proportion of the traffic. The difficulty is that it has not said so with the simplicity and clearness through which a halting impression ripens into reasonable certitude. In the end we are left to spell out, to argue, to choose between conflicting inferences. Something more precise is requisite in the quasi-jurisdictional findings of an administrative agency, [citations] We must know what a decision means before the duty becomes ours to say whether it is right or wrong.” 294 U.S. 499, at pages 510, 511, 55 S.Ct. 462, at page 467, 79 L.Ed. 1023.
Decisions of state courts also support our conclusions. Thus in Kewanee & G. Ry. Co. v. Illinois Commerce Comm, 1930, 340 Ill. 266, 172 N.E. 706, a certificate of public convenience and necessity was granted to a motor carrier for the transportation of freight between certain cities and towns in Illinois. This action was based upon findings:
“ . . . that the existing facilities for the transportation of property between . . . [named towns and cities] are inadequate and insufficient for the convenience and necessity of the public and that the public utilities now occupying some parts of this territory cannot reasonably be required to provide the necessary frequency of service; that the public convenience and necessity require the operation of motor vehicles for the transportation of property between the points hereinabove named.” [340 Ill. 266, at page 268, 172 N.E. 706, at page 707] The court held that these findings were insufficient to support the order, saying:
“The findings made by the commission express a mere conclusion that the present facilities for the transportation of property between all these communities are inadequate and insufficient for the convenience and necessity of the public and that public convenience and necessity require the operation of motor vehicles for the transportation of property between said communities. These findings are not specific enough to enable the court to review intelligently the decision of the commission and ascertain if the facts on which the commission has based its order afford a reasonable basis for it [citations], and the order is therefore void, [citations].” [340 Ill. 266, at pages 269, 270, 172 N.E. 706, at page 708]
These decisions show that a reviewing court cannot properly exercise its function upon findings of ultimate fact alone, but must require also findings of the basic facts which represent the determination of the administrative body as to the meaning of the evidence, and from which the ultimate facts flow. Such findings are, we think, just as necessary in cases involving the application of the statutory criterion of public convenience, interest, or necessity set up by the Communications Act, as in those cases which under the Interstate Commerce Act require the application of the standard of unjust discrimination, or in those cases which under state public utility statutes require the application of the criterion of public convenience and necessity.
3. With these principles in mind we turn to the appellant’s specific reasons for appeal. In the view which we take of the case, however, it is necessary for us to consider only those reasons which relate to two issues of fact, namely, the proposed schedule of hours of operation and the financial qualifications of the intervenors.
As to hours of operation, the appellant first asserts that the Commission erred in finding that:
“The hours which the applicant [the appellant] proposed to use would preclude broadcasts from 10 a. m. to 2 p. m.; from 3:30 p. m. to 6:30 p. m.; and from 7:30 p. m. to 10:30 p. m.”
for the reason that such finding is contrary to the undisputed evidence. This assertion by the appellant is borne out by the record. The contents of the appellant’s application were made a part of the evidence by stipulation. The application contained, among other proposed hours, the following:
“Thursday: 6 a. m. to 10 a. m.; 2 p. m. to 3:30 p. m.; 6 p. m. to 1 a. m. . . . ; Saturday: 6 a. m. to 1 a. m. (19 hours); . . . ”
Comparison of the two statements shows that that of the Commission is erroneous in that the appellant’s proposed hours of broadcasting do include those between 7:30 p. m. and 10:30 p. m. on Thursday and Saturday, and between 10 a. m. and 2 p. m. and between 3:30 p. m. and 6:30 p. m. on Saturday. The Commission’s brief admits that the statement of the Commission above quoted was erroneous, but argues that the error was not prejudicial because there are many places in the record which accurately set forth the hours of 'operation proposed, and urges that all of these were before the Commission while it was deciding the case. But this is an argument which, if pressed to a not too remote logical conclusion, would disable the court from reversing an order of the Commission which was based on findings contrary to the evidence, if the evidence would justify other findings upon which the order could be upheld. The question is not whether a correct finding could have been made the basis for the same decision by the Commission, but whether the finding on which the decision was actually based was a correct one. And if the evidence in the record which accurately showed the proposed hours of operation had in fact been considered by the Commission, it seems extremely unlikely that the error in its statement would have occurred. In determining whether the public convenience, interest, or necessity would be served, proposed schedules of operation are an important factor. If, as we cannot but conclude in view of the statement, the Commission weighed the merits of the schedules proposed by the appellant and by the intervenors with an erroneous conception of those schedules, the error was prejudicial.
Further as to the hours of operation, the appellant asserts that the Commission erred in its finding that:
“It is considered that the needs of the area in and about Saginaw, Michigan, are such as to require that uninterrupted broadcast until local sunset, which is proposed by Messrs. Gross and Shields [the intervenors].”
This finding is not sufficiently specific to fulfil the requirements we have set forth above. It is an inference and does not set forth the facts from which the Commission drew it. Hence we cannot determine whether or not such facts are supported "by the evidence. Even if we could consider the statement a proper finding, the evidence referred to by the Commission’s brief as supporting it is irrelevant. The brief suggests that the evidence showed that there are seven stations serving Saginaw at night against three during the day; that the retail trade area about Saginaw is within a 25 or 50 mile radius; and that the daytime signal of the station proposed by the intervenors would cover more of this area than the daytime signal of the station proposed by the appellants. There is such evidence in the record, but it is difficult to see how it bears on the question of what hours of operation were best suited for the local programs proposed by both the appellant and the intervenors. It is undisputed that the seven stations presently serving Saginaw at night and the three serving it during the day are all outside stations, and that a station is needed in Saginaw only to present programs of local rather than outside interest. The ratio between the number of outside stations which may be heard at night and the number of outside stations which may be heard during the day seems to have no probative force to show that the daytime hours are best suited for local programs. Neither is the size of the trade area nor the extent to which the daytime signals of the proposed stations will cover that area relevant to that question. The statement as to hours of operation appears from the Commission’s opinion to have been among the important considerations which influenced the Commission in its determination that the public convenience, interest, or necessity would be better served by granting the intervenors’ application and denying that of the appellant. We think that the action of the Commission in reaching its determination upon such a conclusion unsupported by findings of fact and without relevant evidence was erroneous.
As to financial qualifications, the appellant urges as error the Commission’s finding that “both applicants are possessed of the requisite . . . financial qualifications.” The question of financial qualification has at least two aspects: first, has the applicant enough resources to construct the station and to operate it for a brief period of time; and second, is there a reasonable likelihood of financial profit to be expected from the operation of the station, or are the applicant’s personal resources such that he is able and willing to operate a station for a considerable period of time at a loss. The Commission’s finding that the intervenors are financially qualified is an inference rather than a finding of fact, and does not disclose any facts bearing on either of the above aspects of the question of financial qualifications. Heitmeyer v. Federal Communications Commission, supra. The Commission did make findings as to the present resources of the intervenors, which we think are adequately supported by the record. The appellant urges, however, that the Commission erred in failing to find that a station operated as proposed by the intervenors would not receive sufficient commercial support to justify its operation. As to the likelihood of such commercial support the Commission said .only that “It is anticipated that the monthly income expected to be derived from the station’s operation would approximate $5,500.” This statement can hardly be characterized as a finding as to the commercial support which the intervenors’ station might fairly expect. It is not even coupled with a statement as to the monthly expenses of the proposed station from which by inference the conclusion could be drawn that the station would have a reasonable likelihood of operating at a profit. Even though there may be evidence in the record — upon this we do not pass' — from which the Commission might have concluded that the intervenors would receive adequate commercial support in the sense above stated, this does not excuse the Commission from its duty of making a finding as the result of its consideration of that evidence. The language of Mr. Justice Butler in Atchison, T. & S. F. Ry. Co. v. United States, 295 U.S. 193, 55 S.Ct. 748, 79 L.Ed. 1382, that:
“This court will not search the record to ascertain whether, by use of what there may be found, general and ambiguous statements in the report intended to serve as findings may by construction be given a meaning sufficiently definite and certain to constitute a valid basis for the order. In the absence of a finding of essential basic facts, the order cannot be sustained.” 295 U.S. 193, at pages 201, 202, 55 S.Ct. 748 at page 752, 79 L.Ed. 1382.
seems pertinent. It is not the duty of the court to make findings for the Commission and when the Commission has failed in its duty to make such findings, it is impossible for the court to review its conclusion. This too we regard as reversible error.
4. The appellant also complains of several inaccuracies in the Commission’s statement. One complaint refers to a statement by the Commission that the trial examiner recommended the denial of both applications. This statement is clearly incorrect. The record shows that the examiner recommended that the application of the appellant be granted. Another complaint of the appellant is that the Commission erroneously stated that the testimony of the appellant’s engineer' — as to the likelihood that the operation of the appellant’s station would produce objectionable interference' — ■ was based upon actual field measurements covering eight hours distributed over three nights. This statement by the Commission is also clearly incorrect. The record shows that the measurements covered a period of seventeen hours distributed over nine nights; and even if only the measurements taken in the vicinity of Saginaw be considered, these, according to the record, occupied five nights. We do not say that these inaccuracies would alone be sufficient to reverse the Commission’s order. But we call attention to them in passing in order to emphasize the necessity of careful consideration by the Commission of the evidence before it. This court, under the statute, does not have the function of passing upon the evidence in the sense of weighing it as to accuracy and credibility, but only in the sense of determining whether it substantially supports the findings. The function of weighing the evidence has been entrusted by Congress to the Commission, in order that technical controversies may be determined on the facts by a body of experts. But Congress intended that an applicant should have, and an applicant is entitled to have, careful consideration of the evidence which he has presented and the considered judgment of the Commission upon that evidence. Even though the inaccuracies alluded to may have been caused solely by inadvertence rather than by arbitrary or capricious action, they nevertheless show that the Commission’s decision was not based upon that careful consideration of the evidence which is properly to he expected from an unbiased body of experts discharging a function so important from the standpoint of both the parties and, the public.
Reversed and remanded.
48 Stat. 1064 — 1105, as amended by 50 Stat. 189-198, 47 U.S.C.A. .§§ 151-609 (Supp.1937).
The minutes of the Broadcast Division for February 9, 1937, recite, however, that “Upon consideration of the application, record and evidence in these cases, . . . the Broadcast Division this day found that the public interest, convenience, and necessity would not be served by granting the application of Saginaw Broadcasting Co., for construction permit, and that public interest, convenience, and necessity would be served by granting the application of Harold F. Gross and Edmund G. Shields, . . . ” This appears in the brief of the Commission, not in the record. But even if it were in the record, it does not, as will appear below, constitute a sufficient finding of fact.
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_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
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Arlean I. HERR, Respondent in No. 13,811, and Robert F. Herr, Respondent in No. 13,812.
Nos. 13811, 13812.
United States Court of Appeals Third Circuit.
Argued March 23, 1962.
Decided May 29, 1962.
Joseph Kovner, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson, Atty., Department of Justice, Washington, D. C., on the brief), for petitioner.
Robert R. Batt, Philadelphia, Pa. (William R. Spofford, Philadelphia, Pa., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., of counsel, on the brief), for respondents.
Before GOODRICH, McLAUGHLIN and SMITH, Circuit Judges.
GOODRICH, Circuit Judge.
This case involves the question of what is a present interest in a trust for a minor under section 2503(c) of the Internal Revenue Code of 1954, 26 U.S.C. § 2503(c). The issue arises in connection with the gift tax return of the settlor of a trust. The settlor in 1954 set up four trusts, all the same except for the identity of the beneficiaries, who were his grandchildren. He made additions to each trust in 1955. As to each of the trusts, the trustee was to pay over the income to the beneficiary until his arrival at age thirty and then to pay over the principal. By Article Third of the trust the trustee was to retain the income payable to any minor, reinvesting it and paying over so much of the income and principal as he deemed necessary for the maintenance and support of the minor. All unexpended sums of accumulated income were to be paid to the minor at his majority.
The Commissioner disallowed the annual exclusions on the gift tax return for 1955 on the ground that the transfers were gifts of future interests. The Tax Court held, in a very able opinion by Judge Raum, that those parts of the gifts which were of income during minority were present interests entitling the taxpayers to the claimed deductions. 35 T.C. 732 (1961). The Commissioner has appealed and we are told that this is the first case to reach an appellate court under this provision of the 1954 Code. There is no dispute on the facts and the question is a very narrow one.
The statutory reference is section 2503 (c) of the Internal Revenue Code of 1954, which is quoted verbatim. Here it is:
“(c) Transfer for the benefit of minor.—No part of a gift to an individual who has not attained the age of 21 years on the date of such transfer shall be considered a gift of a future interest in property for purposes of subsection (b) if the property and the income therefrom—
“(1) may be expended by, or for the benefit of, the donee before his attaining the age of 21 years, and
“(2) will to the extent not so expended—
“(A) pass to the donee on his attaining the age of 21 years, and
“(B) in the event the donee dies before attaining the age of 21 years, be payable to the estate of the donee or as he may appoint under a general power of appointment as defined in section 2514(c).”
The regulations merely repeat the words of the statute. The question in this case is limited to the tax-free nature of the trust income to the minor during minority. There is no claim that the income following majority up to age thirty and the right to the principal at age thirty are present interests. The Government’s argument turns upon the phrase “if the property and the income therefrom.” It argues strenuously that “property” is equivalent to “corpus,” and therefore both the corpus and the income must meet both statutory conditions in order not to be treated as a future interest.
The problem comes in the use of the term “property.” The introductory note to the Restatement of Property discusses its use of the word “property”:
“The word ‘property’ is used in this Restatement to denote legal relations between persons with respect to a thing. The thing may be an object having physical existence or it may be any kind of an intangible such as a patent right or a choose [sic] in action. The broader meanings of the word ‘property’, which include any relationship having an exchange value, are not used.”
It is apparent that when the thing in question is a piece of land the term “property” may include several different interests. One may lease the land for a term of years and have a lessee’s interest which is certainly an interest in property. Then there may be an estate for life, an estate per autre vie, a contingent remainder and a vested remainder. The Supreme Court in Fondren v. Commissioner, 324 U.S. 18, 21, 65 S.Ct. 499, 89 L. Ed. 668 (1945), recognizes that there can be a present interest and a future interest in the same thing.
To bring out our problem here, let us suppose this case: A settlor creates a trust, the income of which is to go to M, a minor, until M is twenty-one. When M is twenty-one the corpus of the trust is to be given to X. Can there be any doubt that in this ease the income of the trust is a “present interest” to M as he receives the payments year after year? If we add an additional provision that the minor is to receive, until he is twenty-one, so much of the income as is necessary for his support and that any undistributed income and interest thereon is to go to him at twenty-one, does he not still have a present interest?
If this is right, does it change the situation, if instead of the corpus going to X when M is twenty-one, it is to go to M when he is thirty? That is this, case. We think the Tax Court was right in looking at this problem in the light of division of interest in the thing (corpus) in the way it did. The right to income during minority is a present interest ; the right to income and principal after minority are future interests.
If that conclusion is not correct we have a very incongruous set of results, in the distinction between the right of a stranger to receive the future interest and the right to receive the future interest when it is to go to the one entitled to the income during his minority.
The decisions of the Tax Court will he affirmed.
. The settlor is Mr. Herr. Mrs. Herr is involved in this litigation only because of her consent in her gift tax return to have one-half of her husband’s gifts treated as having been made by her.
. The annual exclusion is provided for in § 2503(b) of the Internal Revenue Code of 1954. That section reads, in pértinent part: “In the case of gifts (other than gifts of future interests in property) made to any person by the donor during the calendar year 1955 and subsequent calendar years, the first $3,000 of such gifts to such person shall not * * * be included in the total amount of gifts made during such year.”
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_state
|
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 "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
In re PAN AMERICAN PAPER MILLS, INC., Debtor, Appellant.
No. 79-1583.
United States Court of Appeals, First Circuit.
Argued March 11, 1980.
Decided April 11, 1980.
Nelson I. Fishman, Baltimore, Md., with whom Howard A. Rubenstein, Baltimore, Md., was on brief, for appellant.
Marta Quinones de Torres, Asst. Sol. Gen., Dept, of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellee.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and WYZANSKI, Senior District Judge.
Of the District of Massachusetts, sitting by designation.
WYZANSKI, Senior District Judge.
This appeal involves a tax priority claim made in bankruptcy proceedings. The question presented is whether unpaid “premiums” assessed under the Puerto Rico Workmen’s Accident Compensation Act, 11 •L.P.R.A., § 26, par. 3, for a period when an employer was covered but not insured constitute “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4).
§ 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4) provides:
(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be . (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof. .
The Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A., §' 1, et seq. (hereinafter the “WAC Act”) establishes a comprehensive, compulsory insurance system which the parties agree covered Pan American Paper Mills, Inc., (Pan American) and its employees during the years relevant to this case. See § 2. § 8 provides that the act shall be administered by a Manager who shall create a State Insurance Fund (hereinafter called “the Fund”). § 19 obliges every covered employer to insure his employees “in” the Fund. § 28 makes it the duty of every covered employer to file no later than July 20 of each year a “statement” or report showing the wages paid during the fiscal year that ended on the previous June 30. § 26 authorizes the Manager to assess premiums for the year following the report period, and provides that “said premiums shall be collected semi-annually in advance.” However, the premium for the first semester (July 1 to December 31) is not due until a date specified in the notice of assessment, and the premium for the second semester (January 1 to June 30) is not due until January 2. See § 26.
If the employer does not pay the premium before the end of the relevant semester, the employer is not insured against any accident that occurs during that semester. § 28, par. 6; The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, 61 P.R.R. 303, 308 (1943). Under the original form of the WAC Act, as enacted in the Puerto Rico Act of April 18, 1935, if the employer did not pay the premium before the end of the semester, then, because he was not insured for that semester, he was totally excused from any obligation to pay the premium at any time. The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, supra. However, the Puerto Rico Act of May 9,1942 amended the WAC Act to provide in the third paragraph of § 26 11 L.P.R.A.
In case any employer covered by this Act [chapter] fails to insure properly, the Manager may assess and levy on, and collect from him premiums for all such time as said employer may have remained uninsured, in the same manner as if he were insured.
Both before and after the 1942 amendment, a covered employee of a covered employer had the benefits of the WAC Act even though his employer was uninsured because he had failed promptly to pay a premium he owed. See § 16. That is, the employee was free to proceed to recover from the Fund accident compensation for any covered injury and, in turn, the Fund was entitled to be compensated by the uninsured, but covered employer for all costs thus incurred by the Fund. § 16; The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra.
Pan American failed to pay its WAC Act premiums amounting to $68,250.61 for the years 1972 through 1976. On account of covered injuries which Pan American employees sustained during those years, the Fund paid them $50,897.05.
June 26, 1975 Pan American filed a petition for relief under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701, et seq. The Bankruptcy Judge allowed the petition and continued Pan American as a debtor in possession. The Fund filed two claims which were consolidated; the first or priority claim sought $68,250.61 on account of unpaid premiums which the Fund alleged were “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4); and the second or' unsecured claim sought $50,897.05 on account of compensation for what the Fund had paid to Pan American employees.
The Bankruptcy Judge entered an order allowing both claims and according a § 64(a)(4) tax priority to the first claim. The District Judge affirmed the order, and Pan American appealed.
Pan American’s appeal is based on its argument that The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra held, and Central Boca Chica, Inc. v. Treasurer, 54 P.R.R. 404, 417 (1939) implied that an obligation imposed upon an uninsured employer to pay a “premium” to the Fund established under the Workmen’s Accident Compensation Act would be a penalty, and that therefore such an obligation cannot be a tax under § 64(a) of the Bankruptcy Act. We reject Pan American’s argument and affirm the District Court.
The question whether an obligation is a tax entitled to priority under § 64(a)(4) of the Bankruptcy Act is a federal question. City of New York v. Feiring, 313 U.S. 283, 285, 61 S.Ct. 1028, 1029, 85 L.Ed. 1333 (1941); New Jersey v. Anderson, 203 U.S. 483, 491, 27 S.Ct. 137, 139, 51 L.Ed. 284 (1906).
It is undisputed and we hold that under federal law for purposes of Bankruptcy Act § 64(a)(4) Puerto Rico is a subdivision of the United States. What is disputed'is whether a premium claim covering an elapsed period is a claim for “taxes.”
The Supreme Court, taking a broad view of what constitutes “taxes” within the meaning of § 64(a)(4), has ruled that “the priority commanded ,by § 64 extends to those pecuniary obligations laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it.” Ibid; United States v. New York, 315 U.S. 510, 515-516, 62 S.Ct. 712, 714-715, 86 L.Ed. 998 (1942).
That broad approach led lower courts to hold that where, pursuant to an unemployment compensation law, a state exacts from an employer so-called “contributions” a state’s claim for such contributions is entitled to priority as a claim for taxes under Bankruptcy Act § 64(a)(4). Re William Akers, Jr. Co., 121 F.2d 846 (3rd Cir. 1941); Matter of Siegelbaum’s Inc., 38 F.Supp. 1009 (D.Conn.1941); Matter of Mid America Co., 31 F.Supp. 601 (S.D.Ill.1939); Re Oshkosh Foundry Co., 28 F.Supp. 412 (D.Wis. 1939).
We see no reason not to apply the same approach to situations where pursuant to a workmen’s compensation law a state or subdivision of the United States exacts from an employer so-called “premiums.” State Industrial Accident Commission v. Aebi, 177 Or. 361, 162 P.2d 513, 161 ALR 211 (1945). The reason that such premiums should be treated as taxes within § 64(a)(4) of the Bankruptcy Act is that they are pecuniary obligations imposed by the government for the purpose of defraying the expenses of an undertaking which it authorized.
Appellant’s argument in the case at bar that the Fund’s priority claim of $68,250.61 for premiums is not a tax because in return for the premiums involved in the claim Pan American received no insurance protection rests upon a misconception. Bankruptcy Act § 64 gives priority to a premium claim if it has certain tax characteristics not because it has insurance characteristics. The pertinent questions about a so-called premium are whether the government compelled the employer to pay the exaction and whether the payment was for a public purpose.
In determining whether the premiums were “taxes” under Bankruptcy Act § 64(a)(4) it is of no consequence that had Pan American been prompt in paying the premiums it would have had as a quid pro quo insurance protection; nor is it of any consequence that since the corporation failed to make prompt payment it had no insurance protection. Pan American is not, except in a colloquial and inexact sense, punished in any way because of its delay. Pan American is merely failing to get a benefit that it would have enjoyed had it paid its premiums promptly.
Appellant’s contention that Pan American’s own dilatoriness converted a tax obligation into a “penalty” as that term is used in § 57(j) of the Bankruptcy Act, 11 U.S.C. § 93(j), is reminiscent of one of the unsuccessful contentions in United States v. New York, supra. There it was argued that 90% of the Title IX, Social Security Tax on employers was, for purposes of §§ 57 and 64 of the Bankruptcy Act, a penalty and not a tax because that 90% was payable to the federal government only if it were not used as a credit on account of payments made by the taxpayer to a state unemployment compensation fund. See United States v. New York, 315 U.S. 510, 516-517, 62 S.Ct. 712, 715, 86 L.Ed. 998 (1942). In rejecting that argument, Mr. Justice Byrnes said at p. 517, 62 S.Ct. at p. 715: “Although the employer is free to obtain a credit against it [90% of the Title IX tax] by contributing to his state fund, it cannot be said that it is any the less a tax because the employer has failed, either through choice or lack of resources, to make such a contribution.” So here although the employer is free by paying promptly to obtain insurance protection, it cannot be said that his premium obligation is any the less a tax because the employer has failed, either through choice or lack of resources, to make his premium payment promptly.
From the preceding analysis it follows that the Fund’s priority claim of $68,250.61 was appropriately allowed. Nor do we perceive any reason for reversing the allowance of the Fund’s unsecured claim of $50,-897.05, Puerto Rico in § 16 of the WAC Act imposed upon a covered but uninsured employer an obligation to compensate the Fund for whatever it had paid his employees while he was uninsured; § 26 of that act imposed upon him an obligation to pay “premiums.” We are not aware of any principle or of any authority which precludes the Puerto Rico legislature from imposing those obligations cumulatively. The cumulative obligations underline the point that the employer’s so-called premium obligation is not the conventional premium familiar in ordinary cases of insurance, (see 5 Couch on Insurance § 30:1 (2nd ed. I960)), but is indeed a tax which is payable even if it is not advantageous to the employer.
There is no merit in appellant’s preposterous contention that only so much of Pan American’s overdue premiums is payable as represents what the Fund was required to expend to pay Pan American’s employees for the period when the premiums were due but remained unpaid. If adopted, appellant’s contention would have the absurd consequence of giving to Pan American a financial advantage for not having paid its premiums promptly.
Affirmed.
. Appellant does not directly present the question whether premiums paid by an employer for a period when he was insured constitute “taxes” under Bankruptcy Act § 64.
. Those two cases were decided with respect to the WAC Act as it stood before the 1942 amendment added paragraph 3 to § 26. Hence those cases could at best offer dicta rather than holdings as to what is the meaning of the present version of § 26.
. Two early cases, Matter of Farrell, 211 F. 212 (W.D.Wash.1914) and Re Eureka Paper Co., 44 Am.Bank Rep. (F) 179 (D.C.Ref.1919) held that a payment by an employer to a workmen’s compensation act fund is not a tax. The reason given in Farrell (p. 213), that the exaction is “an assessment against a class for the benefit of a class”, is in the spirit of the subsequent decision involving the Agricultural Adjustment Act, United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1935), virtually overruled by the Social Security Act cases, Carmichael v. So. Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed, 1245 (1937), Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937).
. See State Industrial Accident Commission v. Aebi, supra, which rejected the argument that an exaction from an employer to contribute to a workmen’s compensation act fund could not be a tax for the purposes of Bankruptcy Act § 64 because “under the Workmen’s Compensation Law the employer is paying for insurance which directly benefits him whereas under Unemployment Compensation Law the employer is- simply contributing to a fund, which is to be expended for the general welfare.” (162 P.2d at p. 516).
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
UNITED SAVINGS ASSOCIATION OF TEXAS v. TIMBERS OF INWOOD FOREST ASSOCIATES, LTD.
No. 86-1602.
Argued December 1, 1987
Decided January 20, 1988
Scalia, J., delivered the opinion for a unanimous Court.
H. Miles Cohn argued the cause and filed briefs for petitioner.
Leonard H. Simon argued the cause for respondent. With him on the brief were Daphne Levey and Timothy J. Henderson.
Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Willard, and Deputy Solicitor General Cohen; for the California League of Savings Institutions et al. by John A. Graham; for the National Commercial Finance Association by A. Bruce Schimberg, Rex E. Lee, J. Ronald Trost, Shalom L. Kohn, and Frank R. Kennedy; and for Thomas H. Jackson, pro se.
Briefs of amici curiae urging affirmance were filed for Global Marine Inc. by Harvey R. Miller, D. J. Baker, and Martin J. Bienenstock; and for the National Association of Credit Management et al. by Richard Levin and Kenneth N. Klee.
Raymond T. Nimmer, pro se, and Edward L. Ripley, pro se, filed a brief for themselves as amici curiae.
Justice Scalia
delivered the opinion of the Court.
Petitioner United Savings Association of Texas seeks review of an en banc decision of the United States Court of Appeals for the Fifth Circuit, holding that petitioner was not entitled to receive from respondent debtor, which is undergoing reorganization in bankruptcy, monthly payments for the use value of the loan collateral which the bankruptcy stay prevented it from possessing. In re Timbers of Inwood Forest Associates, Ltd., 808 F. 2d 363 (1987). We granted certiorari, 481 U. S. 1068 (1987), to resolve a conflict in the Courts of Appeals regarding application of §§361 and 362(d)(1) of the Bankruptcy Code, 11 U. S. C. §§361 and 362(d)(1) (1982 ed. and Supp. IV). Compare Grundy Nat. Bank v. Tandem Mining Corp., 754 F. 2d 1436, 1440-1441 (CA4 1985); In re American Mariner Industries, Inc., 734 F. 2d 426, 432-435 (CA9 1984); see also In re Briggs Transp. Co., 780 F. 2d 1339, 1348-1351 (CA8 1985).
I
On June 29, 1982, respondent Timbers of Inwood Forest Associates, Ltd., executed a note in the principal amount of $4,100,000. Petitioner is the holder of the note as well as of a security interest created the same day in an apartment project owned by respondent in Houston, Texas. The security interest included an assignment of rents from the project. On March 4, 1985, respondent filed a voluntary petition under Chapter 11 of the Bankruptcy Code, 11 U. S. C. § 101 et seq. (1982 ed. and Supp. IV), in the United States Bankruptcy Court for the Southern District of Texas.
On March 18, 1985, petitioner moved for relief from the automatic stay of enforcement of liens triggered by the petition, see 11 U. S. C. § 362(a), on the ground that there was lack of “adequate protection” of its interest within the meaning of 11 U. S. C. § 362(d)(1). At a hearing before the Bankruptcy Court, it was established that respondent owed petitioner $4,366,388.77, and evidence was presented that the value of the collateral was somewhere between $2,650,000 and $4,250,000. The collateral was appreciating in value, but only very slightly. It was therefore undisputed that petitioner was an undersecured creditor. Respondent had agreed to pay petitioner the postpetition rents from the apartment project (covered by the after-acquired property clause in the security agreement), minus operating expenses. Petitioner contended, however, that it was entitled to additional compensation. The Bankruptcy Court agreed and on April 19, 1985, it conditioned continuance of the stay on monthly payments by respondent, at the market rate of 12% per annum, on the estimated amount realizable on foreclosure, $4,250,000 — commencing six months after the filing of the bankruptcy petition, to reflect the normal foreclosure delays. In re Bear Creek Ministorage, Inc., 49 B. R. 454 (1985) (editorial revision of earlier decision). The court held that the postpetition rents could be applied to these payments. See id., at 460. Respondent appealed to the District Court and petitioner cross-appealed on the amount of the adequate protection payments. The District Court affirmed but the Fifth Circuit en banc reversed.
We granted certiorari to determine whether undersecured creditors are entitled to compensation under 11 U. S. C. § 362(d)(1) for the delay caused by the automatic stay in foreclosing on their collateral.
II
When a bankruptcy petition is filed, § 362(a) of the Bankruptcy Code provides an automatic stay of, among other things, actions taken to realize the value of collateral given by the debtor. The provision of the Code central to the decision of this case is § 362(d), which reads as follows:
“On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
“(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
“(2) with respect to a stay of an act against property under subsection (a) of this section, if—
“(A) the debtor does not have an equity in such property; and
“(B) such property is not necessary to an effective reorganization.”
The phrase “adequate protection” in paragraph (1) of the foregoing provision is given further content by § 361 of the Code, which reads in relevant part as follows:
“When adequate protection is required under section 362 ... of this title of an interest of an entity in property, such adequate protection may be provided by—
“(1) requiring the trustee to make a cash payment or periodic cash payments to such entity, to the extent that the stay under section 362 of this title . . . results in a decrease in the value of such entity’s interest in such property;
“(2) providing to such entity an additional or replacement lien to the extent that such stay . . . results in a decrease in the value of such entity’s interest in such property; or
“(3) granting such other relief... as will result in the realization by such entity of the indubitable equivalent of such entity’s interest in such property.”
It is common ground that the “interest in property” referred to by § 362(d)(1) includes the right of a secured creditor to have the security applied in payment of the debt upon completion of the reorganization; and that that interest is not adequately protected if the security is depreciating during the term of the stay. Thus, it is agreed that if the apartment project in this case had been declining in value petitioner would have been entitled, under § 362(d)(1), to cash payments or additional security in the amount of the decline, as § 361 describes. The crux of the present dispute is that petitioner asserts, and respondent denies, that the phrase “interest in property” also includes the secured party’s right (suspended by the stay) to take immediate possession of the defaulted security, and apply it in payment of the debt. If that right is embraced by the term, it is obviously not adequately protected unless the secured party is reimbursed for the use of the proceeds he is deprived of during the term of the stay.
The term “interest in property” certainly summons up such concepts as “fee ownership,” “life estate,” “co-ownership,” and “security interest” more readily than it does the notion of “right to immediate foreclosure.” Nonetheless, viewed in the isolated context of § 362(d)(1), the phrase could reasonably be given the meaning petitioner asserts. Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, see, e. g., Sorenson v. Secretary of Treasury, 475 U. S. 851, 860 (1986), or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, see, e. g., Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 54 (1987); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U. S. 609, 631-632 (1973); Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307-308 (1961). That is the case here. Section 362(d)(1) is only one of a series of provisions in the Bankruptcy Code dealing with the rights of secured creditors. The language in those other provisions, and the substantive dispositions that they effect, persuade us that the “interest in property” protected by § 362(d)(1) does not include a secured party’s right to immediate foreclosure.
Section 506 of the Code defines the amount of the secured creditor’s allowed secured claim and the conditions of his receiving postpetition interest. In relevant part it reads as follows:
“(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property,. . . and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. . . .
“(b) To the extent that an allowed secured claim is secured by property the value of which ... is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose.”
In subsection (a) of this provision the creditor’s “interest in property” obviously means his security interest without taking account of his right to immediate possession of the collateral on default. If the latter were included, the “value of such creditor’s interest” would increase, and the proportions of the claim that are secured and unsecured would alter, as the stay continues — since the value of the entitlement to use the collateral from the date of bankruptcy would rise with the passage of time. No one suggests this was intended. The phrase “value of such creditor’s interest” in § 506(a) means “the value of the collateral.” H. R. Rep. No. 95-595, pp. 181, 356 (1977); see also S. Rep. No. 95-989, p. 68 (1978). We think the phrase “value of such entity’s interest” in §361(1) and (2), when applied to secured creditors, means the same.
Even more important for our purposes than § 506’s use of terminology is its substantive effect of denying undersecured creditors postpetition interest on their claims — just as it denies oversecured creditors postpetition interest to the extent that such interest, when added to the principal amount of the claim, will exceed the value of the collateral. Section 506(b) provides that “[t]o the extent that an allowed secured claim is secured by property the value of which ... is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim.” (Emphasis added.) Since this provision permits postpetition interest to be paid only out of the “security cushion,” the undersecured creditor, who has no such cushion, falls within the general rule disallowing postpetition interest. See 11 U. S. C. § 502(b)(2). If the Code had meant to give the undersecured creditor, who is thus denied interest on his claim, interest on the value of his collateral, surely this is where that disposition would have been set forth, and not obscured within the “adequate protection” provision of § 362(d)(1). Instead of the intricate phraseology set forth above, § 506(b) would simply have said that the secured creditor is entitled to interest “on his allowed claim, or on the value of the property securing his allowed claim, whichever is lesser.” Petitioner’s interpretation of § 362(d)(1) must be regarded as contradicting the carefully drawn disposition of § 506(b).
Petitioner seeks to avoid this conclusion by characterizing § 506(b) as merely an alternative method for compensating oversecured creditors, which does not imply that no compensation is available to undersecured creditors. This theory of duplicate protection for oversecured creditors is implausible even in the abstract, but even more so in light of the historical principles of bankruptcy law. Section 506(b)’s denial of postpetition interest to undersecured creditors merely codified pre-Code bankruptcy law, in which that denial was part of the conscious allocation of reorganization benefits and losses between undersecured and unsecured creditors. “To allow a secured creditor interest where his security was worth less than the value of his debt was thought to be inequitable to unsecured creditors.” Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 164 (1946). It was considered unfair to allow an undersecured creditor to recover interest from the estate’s unencumbered assets before unsecured creditors had recovered any principal. See id., at 164, 166; Ticonic Nat. Bank v. Sprague, 303 U. S. 406, 412 (1938). We think it unlikely that § 506(b) codified the pre-Code rule with the intent, not of achieving the principal purpose and function of that rule, but of providing over-secured creditors an alternative method of compensation. Moreover, it is incomprehensible why Congress would want to favor undersecured creditors with interest if they move for it under § 362(d)(1) at the inception of the reorganization process — thereby probably pushing the estate into liquidation — but not if they forbear and seek it only at the completion of the reorganization.
Second, petitioner’s interpretation of § 362(d)(1) is structurally inconsistent with 11 U. S. C. § 552. Section 552(a) states the general rule that a prepetition security interest does not reach property acquired by the estate or debtor postpetition. Section 552(b) sets forth an exception, allowing postpetition “proceeds, product, offspring, rents, or profits” of the collateral to be covered only if the security agreement expressly provides for an interest in such property, and the interest has been perfected under “applicable non-bankruptcy law.” See, e. g., In re Casbeer, 793 F. 2d 1436, 1442-1444 (CA5 1986); In re Johnson, 62 B. R. 24, 28-30 (CA9 Bkrtcy. App. Panel 1986); cf. Butner v. United States, 440 U. S. 48, 54-56 (1979) (same rule under former Bankruptcy Act). Section 552(b) therefore makes possession of a perfected security interest in postpetition rents or profits from collateral a condition of having them applied to satisfying the claim of the secured creditor ahead of the claims of unsecured creditors. Under petitioner’s interpretation, however, the undersecured creditor who lacks such a perfected security interest in effect achieves the same result by demanding the “use value” of his collateral under § 362. It is true that § 506(b) gives the oversecured creditor, despite lack of compliance with the conditions of § 552, a similar priority over unsecured creditors; but that does not compromise the principle of § 552, since the interest payments come only out of the “cushion” in which the oversecured creditor does have a perfected security interest.
Third, petitioner’s interpretation of § 362(d)(1) makes nonsense of § 362(d)(2). On petitioner’s theory, the under-secured creditor’s inability to take immediate possession of his collateral is always “cause” for conditioning the stay (upon the payment of market rate interest) under § 362(d)(1), since there is, within the meaning of that paragraph, “lack of adequate protection of an interest in property.” But § 362(d)(2) expressly provides a different standard for relief from a stay “of an act against property,” which of course includes taking possession of collateral. It provides that the court shall grant relief “if . . . (A) the debtor does not have an equity in such property [i. e., the creditor is undersecured]; and (B) such property is not necessary to an effective reorganization.” (Emphasis added.) By applying the “adequate protection of an interest in property” provision of § 362(d)(1) to the alleged “interest” in the earning power of collateral, petitioner creates the strange consequence that § 362 entitles the secured creditor to relief from the stay (1) if he is under-secured (and thus not eligible for interest under § 506(b)), or (2) if he is undersecured and his collateral “is not necessary to an effective reorganization.” This renders § 362(d)(2) a practical nullity and a theoretical absurdity. If § 362(d)(1) is interpreted in this fashion, an undersecured creditor would seek relief under § 362(d)(2) only if his collateral was not depreciating (or it was being compensated for depreciation) and he was receiving market rate interest on his collateral, but nonetheless wanted to foreclose. Petitioner offers no reason why Congress would want to provide relief for such an obstreperous and thoroughly unharmed creditor.
Section 362(d)(2) also belies petitioner’s contention that undersecured creditors will face inordinate and extortionate delay if they are denied compensation for interest lost during the stay as part of “adequate protection” under § 362(d)(1). Once the movant under § 362(d)(2) establishes that he is an undersecured creditor, it is the burden of the debtor to establish that the collateral at issue is “necessary to an effective reorganization.” See § 362(g). What this requires is not merely a showing that if there is conceivably to be an effective reorganization, this property will be needed for it; but that the property is essential for an effective reorganization that is in prospect. This means, as many lower courts, including the en banc court in this case, have properly said, that there must be “a reasonable possibility of a successful reorganization within a reasonable time.” 808 F. 2d, at 370-371, and nn. 12-13, and cases cited therein. The cases are numerous in which § 362(d)(2) relief has been provided within less than a year from the filing of the bankruptcy petition. And while the bankruptcy courts demand less detailed showings during the four months in which the debtor is given the exclusive right to put together a plan, see 11 U. S. C. §§ 1121(b), (c)(2), even within that period lack of any realistic prospect of effective reorganization will require § 362(d)(2) relief.
III
A
Petitioner contends that denying it compensation under § 362(d)(1) is inconsistent with sections of the Code other than those just discussed. Petitioner principally relies on the phrase “indubitable equivalent” in § 361(3), which also appears in 11 U. S. C. § 1129(b)(2)(A)(iii). Petitioner contends that in the latter context, which sets forth the standards for confirming a reorganization plan, the phrase has developed a well-settled meaning connoting the right of a secured creditor to receive present value of his security — thus requiring interest if the claim is to be paid over time. It is true that under § 1129(b) a secured claimant has a right to receive under a plan the present value of his collateral. This entitlement arises, however, not from the phrase “indubitable equivalent” in § 1129(b)(2)(A)(iii), but from the provision of § 1129(b)(2)(A)(i)(II) that guarantees the secured creditor “deferred cash payments ... of a value, as of the effective date of the plan, of at least the value of such [secured claimant’s] interest in the estate’s interest in such property.” (Emphasis added.) Under this formulation, even though the undersecured creditor’s “interest” is regarded (properly) as solely the value of the collateral, he must be rendered payments that assure him that value as of the effective date of the plan. In § 361(3), by contrast, the relief pending the stay need only be such “as will result in the realization... of the indubitable equivalent” of the collateral. (Emphasis added.) It is obvious (since §§361 and 362(d)(1) do not entitle the secured creditor to immediate payment of the principal of his collateral) that this “realization” is to “result” not at once, but only upon completion of the reorganization. It is then that he must be assured “realization ... of the indubitable equivalent” of his collateral. To put the point differently: similarity of outcome between § 361(3) and § 1129 would be demanded only if the former read “such other relief ... as will give such entity, as of the date of the relief, the indubitable equivalent of such entity’s interest in such property.”
Nor is there merit in petitioner’s suggestion that “indubitable equivalent” in §361(3) connotes reimbursement for the use value of collateral because the phrase is derived from In re Murel Holding Corp., 75 F. 2d 941 (CA2 1935), where it bore that meaning. Murel involved a proposed reorganization plan that gave the secured creditor interest on his collateral for 10 years, with full payment of the secured principal due at the end of that term; the plan made no provision, however, for amortization of principal or maintenance of the collateral’s value during the term. In rejecting the plan, Murel used the words “indubitable equivalence” with specific reference not to interest (which was assured), but to the jeopardized principal of the loan:
“Interest is indeed the common measure of the difference [between payment now and payment 10 years hence], but a creditor who fears the safety of his principal will scarcely be content with that; he wishes to get his money or at least the property. We see no reason to suppose that the statute was intended to deprive him of that in the interest of junior holders, unless by a substitute of the most indubitable equivalence.” Id., at 942.
Of course Murel, like § 1129, proceeds from the premise that in the confirmation context the secured creditor is entitled to present value. But no more from Murel than from § 1129 can it be inferred that a similar requirement exists as of the time of the bankruptcy stay. The reorganized debtor is supposed to stand on his own two feet. The debtor in process of reorganization, by contrast, is given many temporary protections against the normal operation of the law.
Petitioner also contends that the Code embodies a principle that secured creditors do not bear the costs of reorganization. It derives this from the rule that general administrative expenses do not have priority over secured claims. See §§ 506(c), 507(a). But the general principle does not follow from the particular rule. That secured creditors do not bear one kind of reorganization cost hardly means that they bear none of them. The Code rule on administrative expenses merely continues pre-Code law. But it was also pre-Code law that undersecured creditors were not entitled to post-petition interest as compensation for the delay of reorganization. See supra, at 373; see also infra, at 381.' Congress could hardly have understood that the readoption of the rule on administrative expenses would work a change in the rule on postpetition interest, which it also readopted.
Finally, petitioner contends that failure to interpret § 362 (d)(1) to require compensation of undersecured creditors for delay will create an inconsistency in the Code in the (admittedly rare) case when the debtor proves solvent. When that occurs, 11 U. S. C. § 726(a)(5) provides that postpetition interest is allowed on unsecured claims. Petitioner contends it would be absurd to allow postpetition interest on unsecured claims but not on the secured portion of undersecured creditors’ claims. It would be disingenuous to deny that this is an apparent anomaly, but it will occur so rarely that it is more likely the product of inadvertence than are the blatant inconsistencies petitioner’s interpretation would produce. Its inequitable effects, moreover, are entirely avoidable, since an undersecured creditor is entitled to “surrender or waive his security and prove his entire claim as an unsecured one.” United States Nat. Bank v. Chase Nat. Bank, 331 U. S. 28, 34 (1947). Section 726(a)(5) therefore requires no more than that undersecured creditors receive postpetition interest from a solvent debtor on equal terms with unsecured creditors rather than ahead of them — which, where the debtor is solvent, involves no hardship.
B
Petitioner contends that its interpretation is supported by the legislative history of §§361 and 362(d)(1), relying almost entirely on statements that “[s]ecured creditors should not be deprived of the benefit of their bargain.” H. R. Rep. No. 95-595, at 339; S. Rep. No. 95-989, at 53. Such generalizations are inadequate to overcome the plain textual indication in §§ 506 and 362(d)(2) of the Code that Congress did not wish the undersecured creditor to receive interest on his collateral during the term of the stay. If it is at all relevant, the legislative history tends to subvert rather than support petitioner’s thesis, since it contains not a hint that § 362(d)(1) entitles the undersecured creditor to postpetition interest. Such a major change in the existing rules would not likely have been made without specific provision in the text of the statute, cf. Kelly v. Robinson, 479 U. S. 36, 47 (1986); it is most improbable that it would have been made without even any mention in the legislative history.
Petitioner makes another argument based upon what the legislative history does not contain. It contends that the pre-Code law gave the undersecured creditor relief from the automatic stay by permitting him to foreclose; and that Congress would not have withdrawn this entitlement to relief without any indication of intent to do so in the legislative history, unless it was providing an adequate substitute, to wit, interest on the collateral during the stay.
The premise of this argument is flawed. As petitioner itself concedes, Brief for Petitioner 20, the undersecured creditor had no absolute entitlement to foreclosure in a Chapter X or XII case; he could not foreclose if there was a reasonable prospect for a successful rehabilitation within a reasonable time. See, e. g., In re Yale Express System, Inc., 384 F. 2d 990, 991-992 (CA2 1967) (Chapter X); In re Nevada Towers Associates, 14 Collier Bankr. Cas. (MB) 146, 151-156 (Bkrtcy. Ct. SDNY 1977) (Chapter XII); In re Consolidated Motor Inns, 6 Collier Bankr. Cas. (MB) 18, 31-32 (Bkrtcy. Ct. ND Ga. 1975) (same). Thus, even assuming petitioner is correct that the undersecured creditor had an absolute entitlement to relief under Chapter XI, Congress would have been faced with the choice between adopting the rule from Chapters X and XII or the asserted alternative rule from Chapter XI, because Chapter 11 of the current Code “replaces chapters X, XI and XII of the Bankruptcy Act” with a “single chapter for all business reorganizations.” S. Rep. No. 95-989, at 9; see also H. R. Rep. No. 95-595, at 223-224. We think § 362(d)(2) indicates that Congress adopted the approach of Chapters X and XII. In any event, as far as the silence of the legislative history on the point is concerned, that would be no more strange with respect to alteration of the asserted Chapter XI rule than it would be with respect to alteration of the Chapters X and XII rule.
Petitioner’s argument is further weakened by the fact that it is far from clear that there was a distinctive Chapter XI rule of absolute entitlement to foreclosure. At least one leading commentator concluded that “a Chapter XI court’s power to stay lien enforcement is as broad as that of a Chapter X or XII court and that the automatic stay rules properly make no distinctions between the Chapters.” Countryman, Real Estate Liens in Business Rehabilitation Cases, 50 Am. Bankr. L. J. 303, 315 (1976). Petitioner cites dicta in some Chapter XI cases suggesting that the undersecured creditor was automatically entitled to relief from the stay, but the-courts in those cases uniformly found in addition that reorganization was not sufficiently likely or was being unduly delayed. See, e. g., In re Briec of America, Inc., 4 Collier Bankr. Cas. (MB) 34, 39-40 (Bkrtcy. Ct. MD Fla. 1975); In re O. K. Motels, 1 Collier Bankr. Cas. (MB) 416, 419-420 (Bkrtcy. Ct. MD Fla. 1974). Moreover, other Chapter XI cases held undersecured creditors not entitled to foreclosure under reasoning very similar to that used in Chapters X and XII cases. See In re Coolspring Estates, Inc., 12 Collier Bankr. Cas. (MB) 55, 60-61 (Bkrtcy. Ct. ND Ind. 1977); In re The Royal Scot, Ltd., 2 Bankr. Ct. Dec. (CRR) 374, 376-377 (Bkrtcy. Ct. WD Mich. 1976); In re Mesker Steel, Inc., 1 Bankr. Ct. Dec. (CRR) 235, 236-237 (Bkrtcy. Ct. SD Ind. 1974). The at best divided authority under Chapter XI removes all cause for wonder that the alleged departure from it should not have been commented upon in the legislative history.
The Fifth Circuit correctly held that the undersecured petitioner is not entitled to interest on its collateral during the stay to assure adequate protection under 11 U. S. C. § 362(d)(1). Petitioner has never sought relief from the stay under § 362(d)(2) or on any ground other than lack of adequate protection. Accordingly, the judgment of the Fifth Circuit is
Affirmed.
See, e. g., In re Findley, 76 B. R. 547, 555 (Bkrtcy. Ct. ND Miss. 1987) (6½ months); In re Efcor, Inc., 74 B. R. 837, 843-845 (Bkrtcy. Ct. MD Pa. 1987) (4½ months); In re Belton Inns, Inc., 71 B. R. 811, 818 (Bkrtcy. Ct. SD Iowa 1987) (1 year); In re Louden, 69 B. R. 723, 725-726 (Bkrtcy. Ct. ED Mo. 1987) (10 months); In re Playa Development Corp., 68 B. R. 549, 556 (Bkrtcy. Ct. WD Tex. 1986) (7½ months); In re Cablehouse, Ltd., 68 B. R. 309, 313 (Bkrtcy. Ct. SD Ohio 1986) (11½ months); In re Pacific Tuna Corp., 48 B. R. 74, 78 (Bkrtcy. Ct. WD Tex. 1985) (9 months); In re Development, Inc., 36 B. R. 998, 1005-1006 (Bkrtcy. Ct. Haw. 1984) (6 months); In re Boca Development Associates, 21 B. R. 624, 630 (Bkrtcy. Ct. SDNY 1982) (7½ months); In re Sundale Associates, Ltd., 11 B. R. 978, 980-981 (Bkrtcy. Ct. SD Fla. 1981) (5 months); In re Clark Technical Associates, Ltd., 9 B. R. 738, 740-741 (Bkrtcy. Ct. Conn. 1981) (9 months).
See, e. g., In re Anderson Oaks (Phase I) Limited Partnership, 77 B. R. 108, 109, 110-113 (Bkrtcy. Ct. WD Tex. 1987) (“immediately after the bankruptcy filings”); In re New American Food Concepts, Inc., 70 B. R. 254, 262 (Bkrtcy. Ct. ND Ohio 1987) (3 months); In re 6200 Ridge, Inc., 69 B. R. 837, 843-844 (Bkrtcy. Ct. ED Pa. 1987) (3 months); In re Park Timbers, Inc., 58 B. R. 647, 651 (Bkrtcy. Ct. Del. 1985) (2 months); In re Bellina’s Restaurants II, Inc., 52 B. R. 509, 512 (Bkrtcy. Ct. SD Fla. 1985) (1 month); In re Anchorage Boat Sales, Inc., 4 B. R. 635, 641 (Bkrtcy. Ct. EDNY 1980) (4 months); In re Terra Mar Associates, 3 B. R. 462, 466 (Bkrtcy. Ct. Conn. 1980) (2 months).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_procedur
|
C
|
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.
Miss Florence Ella HATTON et al., Plaintiffs-Appellants, v. COUNTY BOARD OF EDUCATION OF MAURY COUNTY, TENNESSEE, et al., Defendants-Appellees.
Nos. 19388, 19614.
United States Court of Appeals, Sixth Circuit.
Feb. 26, 1970.
No. 19388:
Conrad K. Harper, New York City, Avon N. Williams, Jr., Z. Alexander Looby, Nashville, Tenn., Jack Greenberg, James M. Nabrit, III, Franklin E. White, W. Haywood Burns, New York City, on brief, for appellants.
Charles A. Trost, Columbia, Tenn., Pride Tomlinson, Jr., Maury County Atty., Columbia, Tenn., on brief; Courtney & Trost, Columbia, Tenn., of counsel, for appellees.
No. 19614:
Jack Kershaw, Nashville, Tenn., for appellants.
Sylvia Drew, New York City, Jack Greenberg, James M. Nabrit, III, Norman J. Chachkin, New York City, Avon N. Williams, Jr., Nashville, Tenn., on brief, for appellees.
Before PHILLIPS, Chief Judge, CELEBREZZE, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
PHILLIPS, Chief Judge.
Two separate appeals have been perfected in this school desegregation case involving the school system of Maury County, Tennessee.
In No. 19,388 the appellant is Miss Florence Ella Hatton, a Negro school teacher who was discharged by the County Board of Education. She sought an injunction to compel her reinstatement as a teacher in the Maury County School system with backpay from the date of her dismissal until the date of reinstatement, claiming deprivation of her rights under the Due Process and Equal Protection clauses of the Fourteenth Amendment and Sec. 601 of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d. The District Court denied relief. Miss Hatton appeals.
In No. 19,614 the appellants are five petitioners who sought to intervene in the school desegregation action as defendants and cross-plaintiffs and as citizens of Maury County for the purpose of opposing the desegregation plan submitted by the County Board of Education in compliance with the order of the District Court. The District Court refused to grant leave to intervene. Petitioners appeal from the order of the District Court denying intervention.
No. 19,388
Miss Hatton was graduated from Tennessee State University with the degree of bachelor of science and holds a certificate as an elementary school teacher issued by the Tennessee Department of Education. At the time of her discharge she had been employed by the County Board of Education for six years and was entitled to all tenure rights provided by the State Teachers’ Tenure Law, T.C.A. Sec. 49-1401 et seq. She acquired tenure at the conclusion of the 1965-66 school year when she taught in an all-Negro two-teacher elementary school. For two years prior to her discharge Miss Hatton had been assigned to the all-Negro Macedonia elementary school as part of an all-Negro faculty. She served as fourth grade homeroom teacher, instructor of health and physical education and social studies and part-time librarian. This position was funded under a federal program providing educational opportunities to disadvantaged and economically deprived children, known as Title One of Public Law 89-10, 20 U.S.C.A. § 241a et seq. Miss Hatton was re-employed by the County Board of Education to teach at the Macedonia school for the 1968-69 school year and participated in the in-service training program from August 21, 1968, to August 26, 1968. Two days before the opening of school she was notified that her position at the Macedonia school had been eliminated due to declining enrollment and a decrease in Title One funds.
The District Court held that the failure of the Board of Education to re-employ Miss Hatton was not due to the fact that she was a member of the Negro race. The Board contended that Miss Hatton is an incompetent teacher. The District Court declined to make a finding on the question of incompeteney, pointing out that this could become an issue under the Tennessee Teachers’ Tenure Law.
We reverse for failure of the Board of Education to comply with the standards required by this Court in Rolfe v. County Board of Education of Lincoln County, Tennessee, 391 F.2d 77 (6th Cir.), which we consider to be controlling in the present case. See also Hill v. Franklin County Board of Education, 390 F.2d 583 (6th Cir.). Rolfe involved two non-tenure Negro teachers. Miss Hatton is in a stronger position to claim the right of continued employment because she is a tenure teacher. Although the remedies under the State Teachers’ Tenure Law are in the State courts and not the federal courts, we find it significant in the present case that non-tenure white teachers have been employed in the Maury County School System after the discharge of Miss Hatton, while she, a Negro tenure teacher, remained unemployed. T.C.A. Sec. 49-1410 provides that a tenure teacher who has been dismissed because of abolition of position shall be placed on a preferred list for re-employment in the first vacancy he or she is qualified by training and experience to fill. If the Board of Education discharged this teacher because of incompetence, the Tenure law prescribes the procedure to be followed, including a written notice and copy of charges, T.C.A. Sec. 49-1415, and a hearing before the Board of Education, T.C.A. Sec. 49-1416. The term “incompetence” is defined in the State statute. T.C.A. Sec. 49-1401(9). These prcedures were not followed with respect to Miss Hatton.
We reverse the judgment in No. 19,-388 and remand the case to the District Court with instructions to issue an appropriate order directing the reinstatement of Miss Florence Ella Hatton as a teacher in the Maury County School System and that she be paid from the date of her dischárge to the date of reinstatement at not less than the salary contracted for the 1968-69 school year.
No. 19,614
We hold that the District Judge did not abuse his discretion in refusing to permit petitioners to intervene and that these petitioners were not entitled to intervene as a matter of right under Rule 24(a), Fed.R.Civ.P. We agree with the order of the District Court, which is made an appendix to this opinion.
The judgment of the District Court in No. 19,388 is reversed and remanded. The order in No. 19,614 is affirmed.
APPENDIX
ORDER
At the conclusion of a hearing held in this case on October 8 and 9, 1968, this court held, inter alia, that the freedom-of-choice plan under which the defendant County Board of Education of Maury County, Tennessee, had been operating the County’s public schools had failed to dismantle effectively the dual system of education in the county. Therefore, in accordance with the recent Supreme Court decisions in Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed. 2d 716 (1968) and its companion cases, the court directed the Board of Education to submit a plan designed to effect the complete desegregation of all the schools in the County school system by the beginning of the 1969-70 school year.
Defendants filed such a plan with the court on February 7, 1969. On that same date a motion to intervene was filed by five petitioners who assert that they are citizens of Maury County, and that they are parents of children attending the County’s public schools. Plaintiffs have filed a brief in opposition to the proposed intervention.
In their proposed pleading petitioners assert that they represent “the large majority” of the citizens of Maury County, “ * * * who believe that they should have the right to choose the school they wish to patronize, regardless of race, creed, or color, and that they should not be compelled to attend a school for purpose of achieving racial balance.” By their petition, they seek, in substance, to re-litigate the issues heretofore decided by the Supreme Court in its various school desegregation cases, by offering evidence which would tend to indicate that “ * * * compulsory association in the schools will work great injury upon members of both races.”
1. Intervention of Right. — Petitioners maintain that they should be permitted to intervene as of right under Rule 24(a) of the Federal Rules of Civil Procedure. That rule provides in relevant part:
“(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * *
(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
The first requirement of the Rule is that the applicant have an interest in the subject matter of the action. The provision on interest quoted above was added by the 1966 amendments to the Federal Rules of Civil Procedure. Since the amendment there has been a dearth of cases defining the kind of interest required by the Rule. The only Supreme Court case touching on the question is Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967). In that case the Court did not provide clear guidelines to follow in determining the sufficiency of an applicant’s interest. However, a fair interpretation of the decision would indicate that the term “interest” in the amended Rule 24(a) should be construed liberally.
In this case the only interest claimed by the petitioners is that they are residents of Maury County and parents of children enrolled in the County’s public schools. Although the interest claimed is of a general and indefinite character, it would seem to the Court to be sufficient to permit intervention under the liberal construction of the Rule suggested in Cascade.
Although petitioners would seem to have a sufficient interest in the suit to intervene, this is not dispositive of their motion, for Rule 24(a) further requires the applicant to show that his interest is not adequately represented by existing parties to the litigation. Upon consideration, the court is of the opinion that petitioners have failed to make this showing of inadequate representation.
There is nothing in petitioner’s motion papers to indicate that their interests as residents of Maury County and parents of children attending the public schools are not being adequately represented by the present defendants. The record indicates that the defendants have advanced every reasonable defense to this action, and petitioners have made no allegation of collusion, bad faith, or gross negligence on the part of the Board of Education in defending the suit.
Petitioners seem to rely on the fact that, because the plaintiffs had standing as parents to bring suit against the School Board, they, as parents, should be allowed to intervene. This contention is without merit. Intervention is concerned with something more than standing to sue. It is concerned with protecting an interest which can only be protected through intervention in the current proceeding. This is not the situation here. Accordingly, therefore, petitioners’ motion to intervene as of right under Rule 24(a) is denied. Hobson v. Hansen, 44 F.R.D. 18 (D.D.C. 1968).
2. Permissive Intervention. — Petitioners also contend that they should be permitted to intervene permissively under Rule 24(b) of the Federal Rules. That Rule provides, in relevant part:
“(b) Permissive Intervention. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
As the Rule clearly indicates, permissive intervention is, by definition, in the discretion of the trial court. See 4 Moore’s Federal Practice ¶ 24.10 [4] (2d ed. 1968). Upon consideration, the court is of the opinion that to permit intervention here would unduly delay and prejudice the rights of the present plaintiffs, particularly since the legal position which the petitioners seek to advance is well settled adversely to them. Accordingly, petitioners’ motion to intervene permissively under Rule 24(b) is denied.
It is so ordered.
. Raney v. Board of Education of Gould School District, 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968); Monroe v. Board of Commissioners of Jackson, Tenn., 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).
. In its original order, entered October 17, 1968, the court ordered the defendants to submit two plans, one calling for the desegregation of Grades 7 through 12 at the beginning of the second semester of the current school year, and one providing for the complete desegregation of all grades by the beginning of the 1969-70 school year. Defendants were permitted to offer reasons why desegregation of Grades 7 through 12 could not be accomplished effectively during the current school year. Defendants submitted a plan as called for in the order of October 17, 1968, and a hearing was held at which defendants offered evidence to establish that mid-year desegregation of Grades 7 through 12 could not be accomplished. By order entered December 13, 1968, the court ruled that defendants had established that mid-year desegregation could not be effectively accomplished.
. The petitioners are Leonard C. Hickman, Jack Loveless, W. H. Thomas, James Bryant and John G. Whitehead.
. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Green v. County School Board of New Kent County, supra; and eases cited in note 1, supra.
. The Fifth Circuit has held that “* * intervention in school cases is not a matter of right but of discretion upon good cause being shown.” Stell v. Savannah Chatham County Board of Education, 333 F.2d 55, 60 (5th Cir.), cert. denied, 379 U.S. 933, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964), citing St. Helena Parish School Board v. Hall, 287 F.2d 376 (5th Cir.), cert. denied, 368 U.S. 830, 82 S.Ct. 52, 7 L.Ed.2d 33 (1961). However these decisions were reached prior to the 1966 revision of Buie 24(a).
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_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.
Richard D. HERNDON, Defendant, Appellant, v. UNITED STATES of America, Appellee.
No. 7175.
United States Court of Appeals First Circuit.
Dec. 19, 1968.
Ralph Davis, Boston, Mass., by appointment of the Court, for appellant.
Albert F. Cullen, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.
Before STALEY, Senior Circuit Judge, McENTEE and COFFIN, Circuit Judges.
Of the Third Circuit, sitting by designation.
PER CURIAM.
Appellant, Richard D. Herndon, was convicted by a jury of selling lysergic acid diethylamide (LSD) in violation of 21 U.S.C. § 331 (q) (2). It is from the judgment of conviction that this appeal is now taken.
The gist of appellant’s argument here is that since the federal government has seen fit to grant a special exemption to the Native American Church, a religious organization of Indians, to use the hallucinogen peyote in connection with their religious services, it is a denial of equal protection of the laws and a form of religious discrimination to prohibit appellant, an alleged minister of the Neo American Church, from selling the hallucinogen LSD to a man who was introduced to him as a gangster interested in buying and distributing LSD.
We have carefully examined the record in this case, and it is quite obvious that appellant was involved solely in an illegal commercial transaction, not a protected religious practice. There is absolutely no evidence of any infringement of Herndon’s constitutional rights.
Accordingly the judgment of the district court will be 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_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Manja T. BRONNER, Plaintiff, Appellant, v. Arthur L. GOLDMAN et al., Appellees.
No. 6583.
United States Court of Appeals First Circuit.
May 19, 1966.
Peter R. Tritsch, Boston, Mass., for appellant.
Henry M. Leen, Boston, Mass., with whom Thomas J. Carens and Roche & Leen, Boston, Mass., were on brief, for appellees.
Before ALDRICH, Chief Judge, and HASTIE and McENTEE, Circuit Judges.
Sitting by designation.
HASTIE, Circuit Judge.
This is a suit by the maker of a $184,-000 promissory note against the payee for cancellation of the note and for the value of securities posted as collateral and sold after the note became overdue.
The plaintiff is a business woman, the owner and operator of a substantial ladies’ apparel retail business. The defendants are members of Roberts & Co., the payee of the note, a partnership engaged as a factor in the lending of money. The defendant Goldman is the managing partner and personally handled the transactions here in question.
Another principal in the venture, though not a party here, was Anton Hornsey, a broker who was a member of the New York Stock Exchange and the managing general partner of the stock brokerage firm of du Pont Hornsey & Co. For several years, before and after the transactions in suit, the plaintiff bought and sold stocks rather extensively through various brokers. In 1958, she became a customer of du Pont Hornsey & Co., with Hornsey acting as the firm’s customer’s man for her account. He also became her trusted friend and investment adviser.
Hornsey also engaged in the purchase and sale of marketable securities for his own account. In this connection he borrowed sums of money from time to time from Roberts & Co., pledging stock certificates to secure the loans. In November, 1959 Hornsey borrowed about $182,000 from Roberts & Co. and undertook to pledge 2,000 shares of American Motors common stock as security. A week later he gave the defendants a demand note for the amount he had borrowed. However, he had pledged only 1,000 shares of stock as collateral.
At the same time, earlier borrowings by Hornsey from the defendants also remained unpaid, making his total indebtedness to the firm about $330,000. Concerned about Hornsey’s ability to repay the large sum, Goldman, the managing partner, suggested that Hornsey get someone else to take over the recent transaction represented by the $182,000 loan.
To this end, Hornsey turned to the plaintiff. She had traded profitably from time to time in American Motors stock. Moreover, on one occasion she had borrowed money to finance the purchase of stock in a profitable venture in association with Hornsey. So, in the present case she acquiesced in Hornsey’s suggestion that she buy 2,000 shares of American Motors, financing the purchase through a loan secured by negotiable securities. It was agreed that they would share any trading gains equally, but plaintiff was to receive all dividends on the stock and Hornsey agreed to save her harmless from any trading loss.
The transaction was carried out at a meeting of the plaintiff and Hornsey with Goldman. On that occasion the plaintiff borrowed $184,000 from Roberts & Co., giving her note for that amount and promising to deliver 2,000 shares of American Motors plus other negotiable securities as collateral. Goldman then delivered to the plaintiff his firm’s check for $184,000 which she endorsed to Hornsey in payment for 2,000 shares of American Motors. After the plaintiff had left the meeting, Hornsey in turn endorsed the check to the defendants in repayment of his most recent borrowing. During the meeting Goldman advised the plaintiff that he had already received 1,000 shares of American Motors as collateral and expected to receive the promised additional 1,000 in a few days. The prior receipt of 1,000 shares was also acknowledged in writing and 1,200 additional shares- of American Motors were delivered to Roberts & Co. as collateral some weeks later.
Thereafter, for almost a year Hornsey paid the interest due oh the loan, more collateral was delivered to the defendants and all apparently went well. Then came Hornsey’s downfall. The New York Stock Exchange suspended him and his brokerage firm. He and his firm were forced into receivership and ultimately he was jailed for criminal misconduct in the operation of his business.
When Hornsey defaulted, the defendants called upon the plaintiff for interest due on her $184,000 note. When she did not pay, the defendants called the note and disposed of the collateral much of which, particularly the American Motors stock, had declined substantially in value.
This suit followed. The district court found that the defendants had not wronged or injured the plaintiff and the plaintiff has now appealed from the court’s judgment.
In the court below and upon this appeal the plaintiff has attempted at great length to show that she has been victimized by a fraudulent and conspiratorial scheme in which Hornsey and the defendants joined. But the record does not substantiate this claim.
The plaintiff relies heavily upon the fact that Goldman suggested to Hornsey that he have someone else take over the transaction involving the $182,000 loan. But the lender’s desire to reduce its large holdings of Hornsey’s paper does not indicate that to it the American Motors speculation then appeared in any way improper or even to be a losing venture. Obviously, if American Motors stock had appreciated substantially in market value the venture would have yielded a capital gain, as the plaintiff anticipated in the light of her previous profitable experience in trading in this stock and in another venture in similar association with Hornsey. Moreover, the terms of the venture were very favorable to her, even more favorable than her prior profitable venture with Hornsey. The plaintiff was lending her credit but contributing no capital other than the money borrowed. Hornsey, apparently a reputable and successful financier, contracted to secure her against loss and to pay all interest on her borrowing. Her profit would be one half of any ultimate capital gain plus all dividends declared on the stock while she owned it. She could not lose so long as Hornsey remained solvent. She had no reason to doubt that she was making a very good bargain and neither did Goldman, assuming he knew the details of the arrangements between Hornsey and the plaintiff.
The only other circumstance said to indicate conspiracy is the failure of the defendants to inform the plaintiff that she was in effect taking over a stock purchase and a related borrowing already made by Hornsey rather than making and financing a new purchase in the open market. But there was nothing to indicate to the defendants either that the plaintiff did not fully understand what was being done or that an open market purchase would be more advantageous than the acquisition actually made. We have already pointed out that the guarantee provided by Hornsey made the actual transaction extraordinarily favorable to the plaintiff. In that respect, an open market purchase would have been less advantageous. And finally, the defendants did inform the plaintiff, both orally and in the agreement for the deposit of collateral, that 1,000 of the 2,000 shares primarily involved in the transaction had already been deposited with it. It is difficult to square this disclosure with any contention that the defendants were party to any concealment of the fact that Hornsey already owned the stock.
The plaintiff makes a separate contention that the defendants have not fully accounted for or credited her with the proceeds of her collateral, particularly her American Motors stock. To begin with, the record establishes 2,200 shares as the amount of this stock pledged to the defendants. A two to one stock split while the pledge was in effect increased the number of shares to 6,600. The defendants sold 6,000 shares and gave the plaintiff full credit for the proceeds. Hornsey, whom plaintiff had authorized to handle the transaction, had been permitted to make a temporary withdrawal of some collateral. His subsequent redeposrt failed to include 600 shares of American Motors. Accordingly, the defendants claimed and recovered the value of these shares in the Hornsey receivership, and credited the plaintiff with the full amount. By taking bits of evidence, including answers to interrogatories, out of context, the plaintiff has sought to create the impression that additional American Motors stoek was involved and not accounted for. In the view of the court below she failed in that endeavor and our own study of the record has led us to the same conclusion. There is simply no persuasive evidence that more than 2,200 shares of American Motors — 6,600 after the stock split— were ever delivered to the defendants by or for the plaintiff.
We have not overlooked the claim that other stock belonging to the plaintiff and valued at $33,000 was wrongfully delivered to the defendants by Hornsey as security for Hornsey’s own borrowings and, on liquidation, credited to Hornsey. It is clear that the plaintiff entrusted this stock to Hornsey as her agent with a stock power signed by her. Assuming her right to reimbursement for misappropriation of this stock can be extended beyond Hornsey, the court below properly took into account that the New York Stock Exchange has paid the plaintiff $116,000 to compensate her for her broker’s various defalcations. She has failed utterly to prove that this payment did not cover the items now in suit. A representative of the Stock Exchange testified in this case that the $116,000 payment covered these items. On the witness stand, the plaintiff herself, when asked whether this was not the fact, replied merely that she did not know.
In addition to the common law wrongs which we have discussed, the plaintiff complains that the defendants have violated provisions of the Securities Exchange Act of 1934. It is asserted that defendants’ loans violated the margin requirements of Regulation T, 12 C.F.R. § 220, promulgated under authority of section 7 of the Securities Exchange Act, 15 U.S.C. § 78g. However, section 7 (c) and the implementing regulation apply only to “any member of a national securities exchange or a broker or dealer who transacts a business in securities through the medium of any such member”. The court below properly concluded that the defendants, a money lending partnership, were not such a broker or dealer. Regulation T, borrowing from section 3(a) (4) of the Act itself, 15 U.S.C. § 78c(a) (4), defines “broker” as “any person engaged in the business of effecting transactions in securities for the account of others * * It is true that in the course of its factoring business, the defendants accepted securities owned by borrowers as collateral. But their business was lending money and not trading in securities. When they sold or rehypothecated securities they did so in their own interest as a secured creditor and not in the course of trading for and in the interest of a client or customer. Thus, Roberts & Co. was not acting as a broker within the meaning of the statute and the regulation. See In the Matter of Sutro Bros. & Co., 1963, S.E.C. Release #7052, 1961-64 Decs. CCH Securities Law Reporter para. 76,913 at 81,382, 81,384; 2 Loss, Securities Regulations 1257. The only case cited by the plaintiff as supporting her position, S. E. C. v. Guild Films Co., 2d Cir. 1960, 279 F.2d 485, is an inapposite decision upon the meaning of the term “underwriters”.
The plaintiff also seems to argue that the defendants have in some way violated section 7(d) of the Act, 15 U.S.C. § 78g(d), which makes unlawful any extension of credit by persons other than brokers and dealers for the purchase of securities in violation of credit restrictions imposed by the Federal Reserve Board. But the Board has not seen fit to exercise its power by restricting any such extension of credit by a factor as we have here.
Separately, the plaintiff contends that the defendants violated the Securities Exchange Act by aiding and abetting a violation by Hornsey. The plaintiff reasons that section 7(c) of the Act prohibits a broker from arranging credit for a customer except on terms which conform to the margin and credit requirements of Regulation T and that the defendants instigated and participated in Hornsey’s arrangement for the plaintiff .to borrow money from them for the purpose of purchasing securities. This is said to make Roberts & Co. an aider and abettor of Hornsey’s violation of his duty as a broker. Therefore, reasons the plaintiff, the defendants are civilly liable for any damage the plaintiff suffered as a result of the transaction.
For present purposes we assume, but do not decide, that both Hornsey’s arrangement of the loan and the defendants' recommendation that Hornsey follow such a course were violations of restrictions upon broker participation in such a transaction as this. However, we think it does not follow that the plaintiff is entitled to rescind the loan or recover damages from the defendants.
We start with the consideration that, as an extension of credit by a lender who was not a broker to a borrower seeking to finance a purchase of stock, the transaction between the defendants and the plaintiff was lawful. We have already shown that no fraud or conspiracy was involved and that the proscriptions of Regulation T are inapplicable. We find no other relevant prohibition. Thus, the alleged wrong of the defendants was merely in causing Hornsey’s participation as a broker in an otherwise proper transaction between a lender and a borrower. The law reflects a strong policy against a broker playing a role in such a loan, not a policy of invalidating force against the credit transaction itself. We think effect should and can be given to both the policy permitting the loan itself and the policy proscribing broker participation in it. The validity of the loan can be recognized by denying the borrower as against the lender any such recision or damages as this action seeks. On the other hand, the policy against broker arrangement of otherwise proper loans can be enforced through the various administrative disciplinary sanctions provided by the Act, or by injunctive relief or even criminal prosecution as such sanctions may be applicable in particular circumstances to a broker or anyone who aids and abets his misconduct. See e. g. In the Matter of Sutro Bros. & Co., supra. Cf. Associated Securities Corp. v. S. E. C., 10th Cir. 1961, 293 F.2d 738; S. E. C. v. Timetrust Inc., N.D.Cal.1939, 28 F.Supp. 34.
In urging that the civil remedies of recision and damages should be available to her against the defendants because they aided and abetted Hornsey’s arrangements of the loan, the plaintiff relies principally upon Remar v. Clayton Securities Corp., D.Mass.1949, 81 F.Supp. 1014. But that decision turns upon the existence of the very circumstance, the absence of which here impedes the plaintiff’s claim. In Remar a broker arranged for an extension of credit by a bank to the plaintiff. In the circumstances of that ease, different from the present case, the bank loan itself was within the category of credit transactions prohibited by the Federal Reserve Board. Thus, in the view of the court, the broker who arranged and thus caused the independently illegal loan could properly be required to respond in damages for injury the borrower suffered through the illegal transaction. Here the loan was lawful and we see no reason to give the borrower civil relief from the consequences of her bargain as if the extension of credit had been unlawful or the lender had taken some advantage of her.
The appellant has argued several additional points. We have considered all of them and conclude that they do not demonstrate any reversible error.
The judgment is affirmed.
. We And it unnecessary to consider whether sufficient basis exists for giving a borrower a right to recover damages against his broker -who has violated Regulation T by arranging a valid unregulated factor loan for him.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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songer_appbus
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "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.
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
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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.
BRAFFITH v. PEOPLE OF VIRGIN ISLANDS.
Circuit Court of Appeals, Third Circuit
December 10, 1928.
No. 3881.
D. H. Jackson, of Christiansted, St. Croix, Virgin Islands, for appellant.
James C. Fox, of Christiansted, St. Croix, Virgin Islands, for the People.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
PER CURIAM.
This appeal under the laws of the Virgin Islands is compulsory. Braffith v. People of Virgin Islands (C. C. A.) 26 F.(2d) 646. In view of the prisoner’s plea 'of guilty entered to a charge of murder in the first degree, our inquiry on this appeal has been directed, and limited, to a search for fundamental irregularities in the proceeding and to a possible abuse by the court of its discretion in determining the punishment. Braffith v. People of Virgin Islands, supra. On our review of the record, made with a care which the gravity of the case required, we found no errors of either kind.
The judgment must therefore be affirmed.
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_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.
I.T.O. CORPORATION OF BALTIMORE, Employer, and Liberty Mutual Insurance Company, Carrier, Petitioners, v. BENEFITS REVIEW BOARD, U. S. DEPARTMENT OF LABOR, Respondent, William T. Adkins, Respondent, International Longshoremen’s Association, Amicus Curiae. NATIONAL ASSOCIATION OF STEVEDORES and California Stevedore & Ballast Co., Carolina Shipping Company, The Chesapeake Operating Company, Cilco Terminal Co., Inc., John T. Clark & Son of Boston, Bernard S. Costello, Inc., Dixie Stevedores, Inc., Eller & Company, Inc., Global Terminal & Container Services, Inc., Federal Marine Terminals, Inc., Gulf Stevedore Corp., Harrington & Company, Inc., Howland Hook Marine Terminal Corp., Independent Pier Co., International Great Lakes Shipping Co., International Terminal Operating Co., Inc., Lake Charles Stevedores, Inc., Lavino Shipping Co., Luckenbach Steamship Co., Inc., McCabe, Hamilton & Renny Co., Ltd., John W. McGrath Corp., Maher Terminals, Inc., Matson Terminals, Inc., Metropolitan Stevedore Co., Nacirema Operating Co., Inc., New Bedford Stevedoring Corp., Northeast Marine Terminal Co., Inc., Old Dominion Stevedoring Corp., John J. Orr & Son, Inc., Palmetto Shipping & Stevedoring Co., Inc., Pate Stevedoring Co., P. C. Pfeiffer Co., Inc., Pittston Stevedoring Corp., Port Stevedoring Company, Inc., Ryan-Walsh Stevedoring Co., Inc., Shippers Stevedoring Co., T. Smith & Son, Inc., Strachan Shipping Co., Transoceanic Terminal Corp., Universal Maritime Service Corp., Westfall Stevedore Co., Wilmington Shipping Co., Young and Company of Houston, Its member companies, Petitioners, v. BENEFITS REVIEW BOARD, U. S. DEPARTMENT OF LABOR, Respondent, William T. Adkins, Respondent.
Nos. 75-1051 and 75-1088.
United States Court of Appeals, Fourth Circuit.
Submitted July 28, 1977.
Decided Sept. 22, 1977.
David R. Owen, Baltimore, Md. (Francis J. Gorman, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for petitioners in No. 75-1051.
Donald A. Krach, Baltimore, Md. (William C. Stifler, III, Paul B. Lang, Niles, Barton & Wilmer, Baltimore, Md., Thomas D. Wilcox, Washington, D.C., on brief), for petitioners in No. 75-1088.
Linda L. Carroll, Atty., Washington, D.C. (William J. Kilberg, Sol. of Labor, Washington, D.C., Marshall H. Harris, Associate Sol., Philadelphia, Pa., George M. Lilly, Karen L. Gilbert, Attys., U.S. Dept. of Labor, Washington, D.C., on brief), for respondents in No. 75-1051.
Amos I. Meyers, Baltimore, Md. (Terry Paul Meyers, Baltimore, Md., on brief), for respondents in Nos. 75-1051 and 75-1088.
Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER and HALL, Circuit Judges, sitting in banc.
PER CURIAM:
5We reversed the award made to William T. Adkins under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., as amended in 1972, in I.T.O. Corp. of Baltimore v. Adkins, 529 F.2d 1080 (4 Cir.1975), modified in banc, 542 F.2d 903 (4 Cir.1976). Thereafter, the Supreme Court of the United States granted a writ of certiorari, vacated our judgment and remanded the cause “for further consideration in light of Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).” 432 U.S. -, 97 S.Ct. 2967, 53 L.Ed.2d 1088 (1977).
Upon reconsideration, we are persuaded that the award to Adkins must be sustained because he satisfied both the status and situs requirements of the 1972 amendments to the Act, as interpreted in Northeast Marine, at the time that he was injured. We adhere to our view, however, that the Director, Office of Workers’ Compensation Programs, Department of Labor, is not a proper respondent in a petition for review under 33 U.S.C. § 921(c), although upon application and for good cause shown he may be permitted to intervene therein.
AFFIRMED.
As part of these appeals, we sustained awards to Donald D. Brown and Vernie Lee Harris by an equally divided court. Certiorari in their cases was denied. Maritime Terminals, Inc. v. Brown, — U.S.-, 97 S.Ct. 2972, 53 L.Ed.2d 1092 (1977).
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_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Mrs. Emma Jean HALPHEN, Plaintiff-Appellee, v. JOHNS-MANVILLE SALES CORPORATION, Defendant-Appellant.
No. 82-3388.
United States Court of Appeals, Fifth Circuit.
July 26, 1984.
Clark, Chief Judge, filed dissenting opinion.
Strong, Pipkin, Nelson, Parker & Bissell, John G. Bissell, Michael L. Baker, Beaumont, Tex., for defendant-appellant.
Kermit A. Doucet, Lafayette, La., Helm, Pletcher, Hogan & Burrow, Stephen W. Hanks, Houston, Tex., for plaintiff-appel-lee.
Robert S. Rooth, New Orleans, La., for amicus curiae Owens-Illinois, Inc.
Before CLARK, Chief Judge, POLITZ and JOHNSON, Circuit Judges.
POLITZ, Circuit Judge:
This Louisiana diversity case occasions an examination of Louisiana strict products liability law, particularly the parameters of the requirement of foreseeability, as applied to a case involving asbestos-related cancer. Johns-Manville appeals a verdict awarding damages for the illness and death of Samuel J. Halphen who succumbed to malignant mesothelioma, which the jury found was caused by exposure to asbestos products manufactured by Johns-Manville. Finding no basis for reversal, we affirm.
Facts
Samuel J. Halphen contracted and died from malignant mesothelioma, a rare form of cancer commonly caused by exposure to asbestos. Halphen worked in environments laden with asbestos dust, some emanating from products manufactured and supplied by Johns-Manville. During 1944 Halphen was employed by Asbestos and Magnesia Materials Company, a subcontractor who installed Johns-Manville manufactured asbestos insulation in the Consolidated Shipyard in Orange, Texas. In later years, Halphen worked as a mechanic and flight engineer for the United States Air Force. He may have been exposed to asbestos dust during that time.
Interrogatories were propounded to Hal-phen during his terminal period of hospitalization. In response to the interrogatories, Halphen stated that he worked in the Livingston Shipyards, not the Consolidated Shipyards. Halphen’s recollection during the final stage of his life was not supported by his social security employment records or by a cousin who testified that he had in fact worked at Consolidated.
Halphen filed suit against 16 asbestos products manufacturers seeking recovery under the theory of strict liability. All defendants except Johns-Manville were dismissed before trial. After Halphen’s death, his widow, Emma Jean Halphen; was substituted as party-plaintiff. The jury returned a verdict against Johns-Man-ville.
Discussion
A. Foreseeability in Strict Liability
Stripped to its essentials, Johns-Manville’s primary contention is that it cannot be held strictly liable for injuries incurred due to its failure to warn of potential dangers of its product because it could not foresee the particular harm. Specifically, Johns-Manville maintains that it cannot be held strictly accountable for asbestos-related diseases caused by its products because, when it marketed the products, it did not know that asbestos would cause serious illnesses. Johns-Manville urges the “state of the art” defense, asserting that it did not know of the product’s defect, nor did anyone else, and furthermore, there was no way that it could have known. The thrust of the state of the art defense is that scientific knowledge and methods of research were not advanced enough to permit discovery of the defect.
In this diversity case we are obliged to apply Louisiana’s substantive law. Louisiana law on strict products liability is of relatively recent vintage, but the infant quickly grew to adulthood. This body of law is essentially jurisprudential, although drawing its genesis from revered codical provisions.
The seminal case in which the Supreme Court of Louisiana adopted strict liability for manufacturers in products cases is Weber v. Fidelity & Casualty Ins. Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971). Johns-Manville advances what it perceives to be an inconsistency or confusion in the language of the Weber holding on the critical question of foreseeability. The Louisiana Supreme Court held:
A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by the defect in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated.
Id. at 755 (emphasis added). Johns-Man-ville argues from this language that not only must the injury be foreseeable but the defect must also be foreseeable. However, the Louisiana high court continued:
If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.
Id. at 756 (emphasis added). This holding imposes a presumption of knowledge of the defect which requires no showing of foreseeability.
A careful reading of the Louisiana cases reflects the distinction between foreseeability of the defect and foreseeability of the harm that might flow from the defect. For example, in Hunt v. City Stores, Inc., 387 So.2d 585, 589 (La.1980), the court stated:
[T]he plaintiff in a products liability suit must only prove that the product was defective, i.e., unreasonably dangerous to normal use; that the product was in normal use at the time the injury occurred; that the product’s defect might cause his injury; and that the injury might reasonably have been anticipated by the manufacturer. It is unnecessary to prove that the manufacturer was negligent' because he knew or should have known of the dangerous condition of the product at the time of the manufacture or sale. The focus is on the product itself and whether it is unreasonably dangerous to normal use.
(Emphasis added). These two sentences, which leave a mite to be desired for precision writing, are logically consistent only if the foreseeability element is taken to mean that the injury must be foreseeable when viewed in light of the knowledge of the dangerous defect. The injury must be foreseeable; the defect need not be. That interpretation is internally consistent and is consistent with the holdings in other Louisiana cases. See, e.g., Philippe v. Browning Arms Company, 395 So.2d 310 (La. 1980).
Foreseeability of the risk, as distinguished from the foreseeability of injury once the risk is actually or constructively known, is the hallmark of a negligence action; it is the antithesis of a strict products liability action: “The distinction between the two theories of recovery lies in the fact that the inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence.” Hunt at 588. See also, Entrevia v. Hood, 427 So.2d 1146 (La.1983).
The thrust of Louisiana law is certain — in a strict products liability case, the manufacturer is presumed to know the defects of its product. The presumption suffices; no proof is necessary. The injured party need only show that the injury would reasonably be foreseeable to one with knowledge (actual or imputed) of the defect. The Louisiana Supreme Court bright-lined this rule in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982):
In products liability cases, the manufac-' turer is presumed to know the dangerous propensities of its product and is strictly liable for injuries resulting from the product’s unreasonable risk of injury in normal use. The claimant nevertheless must prove that the product presented an unreasonable risk of injury in normal use (regardless of the manufacturer’s knowledge), thus in effect proving the manu facturer was negligent in placing the product in commerce with (presumed) knowledge of the danger.
Id. at 498 n. 6 (emphasis in original).
Johns-Manville invites our attention to Lartigue v. R.J. Reynolds Tobacco Company, 317 F.2d 19 (5th Cir.1963), as a controlling precedent for its state of the art, lack of foreseeability defense. In La-rtigue, we predicted that Louisiana would not hold a cigarette manufacturer strictly liable for failure to warn of the dangers of cigarette smoking. Lartigue no longer has precedential value. First, eight years after our Lartigue prognostication Louisiana adopted the rule of strict liability for products. Second, Lartigue relied on a prior draft of § 402(a) of the Restatement of Torts which related only to foodstuffs. The current Restatement section encompasses any unreasonably dangerous product. Third, the restrictive view of strict liability taken in Lartigue did not correctly anticipate the direction taken by the Louisiana courts. When Lartigue was decided, only 19 states had adopted the Restatement’s view. Now virtually all jurisdictions have adopted rules on strict liability. Louisiana has adopted a broad, liberal view. See, e.g., Robertson, “Manufacturers’ Liability for Defective Products in Louisiana Law,” 50 Tul.L.Rev. 50 (1975). Our prediction in Lartigue missed the mark; Louisiana opted for a different course.
It is our present perception of Louisiana law that a manufacturer is presumed to know the defects in its product. Foreseeability is not an element in that equation. Foreseeability, in a Louisiana products liability case, applies only to the question of injury. See, e.g., DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981). The essential inquiry, then, is whether a manufacturer, with knowledge of the defect, should reasonably anticipate the injury. In this case, Johns-Manville was presumed to know that its product was defective, specifically, Johns-Manville was presumed to know that its product would cause, exacerbate or enhance carcinomatous growths. With that presumed knowledge, the suggestion that Johns-Manville could not foresee Halphen’s malignant me-sothelioma falls of its own weight.
B. Sufficiency of Evidence
Johns-Manville next maintains that there was insufficient evidence to support a finding that its asbestos products played a substantial part in Halphen’s illness and death. We disagree.
There is no dispute that Halphen died of mesothelioma. There is no dispute that this particularly rare type of cancer is linked to and is most prevalent among persons who have been exposed to asbestos particles. The evidence showed that Hal-phen was employed by a company at a time when that company was using Johns-Man-ville’s asbestos products. The evidence also showed the likelihood that Halphen was exposed to the asbestos during this employment.
The jury found sufficient evidence to connect Halphen’s mesothelioma to Johns-Manville’s . asbestos products. We will reject a jury’s factual findings only when the “facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict.” Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969). The jury’s findings in the instant case pass Boeing v. Shipman muster.
C. Inconsistency of Interrogatories
In its final argument, Johns-Manville contends that the testimony given by Annie Wilson, Halphen’s cousin, that Halphen worked in the Consolidated Shipyard in Orange, Texas, as well as the testimony given by other former employees of Consolidated about the working conditions should have been excluded. In an answer to an interrogatory made shortly before his death, Halphen stated that he had worked in the Livingston Shipyard, not the Consolidated Shipyard. Johns-Manville, relies on Fed.R.Civ.P. 26(e)(2), which states:
A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which (A) he knows that the response was incorrect when made, or (B) he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Johns-Manville asserts that the failure to amend the answer to the interrogatory after Halphen died, when it became clear to Mrs. Halphen and her counsel that the answer was incorrect, constituted a knowing concealment.
The evidence does not support the charge of knowing concealment. Johns-Manville was: (1) supplied with copies of Halphen’s social security records which showed his employment at Consolidated, (2) informed by appropriate pre-trial notice of plaintiffs intent to call as witnesses two former Consolidated employees, and (3) was afforded proper notice of plaintiffs intent to call Annie Wilson as a witness.
The standard under Rule 26(e)(2) is whether the party was “prejudicially surprised.” Shelak v. White Motor Co., 581 F.2d 1155, 1159 (5th Cir.1978). The rule seeks to prevent “trial by ambush.” Dilmore v. Stubbs, 636 F.2d 966, 969 n. 2 (5th Cir.1981). A reversal under this rule is only justified when a party seeks to introduce a completely new issue or an unidentified witness. F & S Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104 (5th Cir.1981). We do not find knowing concealment within the intendment of Rule 26(e)(2).
AFFIRMED.
. This appeal is not stayed as a consequence of the Johns-Manville petition for a Chapter 11 reorganization in bankruptcy court in the Southern District of New York, having been authorized by the bankruptcy court with the understanding that the plaintiff will look solely to the supersedeas bond in satisfaction of judgment.
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_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Marvin W. BROWN, Appellant, v. GASTON COUNTY DYEING MACHINE COMPANY, Appellee.
No. 71-1268.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 6, 1971.
Decided March 28, 1972.
Rehearing En Banc Denied May 22, 1972.
Robert Belton, Charlotte, N. C., (J. LeVonne Chambers, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., Jack Greenberg, William L. Robinson, New York City, and Chambers, Stein, Ferguson, & Lanning, Charlotte N. C., on brief), for appellant.
Brown Hill Boswell, Charlotte, N. C. (J. W. Alexander, Jr., Blakeney, Alexander, & Machen, Charlottte, N. C., on brief), for appellee.
Before CRAVEN and BUTZNER, Circuit Judges, and DUPREE, District Judge.
BUTZNER, Circuit Judge:
This is an appeal from the district court’s dismissal of an individual claim and class action alleging racial discrimination in hiring, promotion, pay, and other terms and conditions of employment. The suit is founded on Title VII, § 703(a) of the Civil Rights Act of 1964, and 42 U.S.C. § 1981, derived from the Civil Rights Act of 1866. We modify the judgment concerning the individual claim, vacate the judgment dismissing the action brought on behalf of the class, and remand the case for further proceedings.
I
The defendant, Gaston County Dyeing Machine Co., manufactures and installs custom-made machines for dyeing textile yarns or threads under high pressure. The machines, essentially large vessels weighing several tons with numerous fittings and connections, are assembled by welder-fabricators who must be able to read blueprints and weld to exacting tolerances. Welder-fabricators are among the company’s best paid employees.
Marvin Brown, the individual plaintiff, claims that he was denied promotion to higher paying welder-fabricator classifications because he is black. The company counters that Brown was offered unfettered opportunity to advance, but that he lacked the ability and temperament to do the work required of him. Resolution of these conflicting claims depended largely upon the credibility of witnesses, and since the district judge’s findings are supported by the evidence, they are binding upon us. Fed.R.Civ.P. 52(a).
In 1960, Brown, who had finished a welding course at North Carolina Agricultural and Technical College, was hired by the company for one of its lower paying jobs. The district judge found that
“Brown asked for employment as a welder and was given to understand by supervisory people that it was premature to try to place a Negro in a job as welder with the defendant.
“However, in 1961, [the company’s president] instructed his plant managers to give Brown a job as a welder and try to help him make progress in that work. . . .” 325 F.Supp. at 542.
The president’s directions were followed and Brown was promoted to welder-trainee. He then progressed through various steps to welder-fabricator, class B.
The district judge’s findings establish that the company violated 42 U.S.C. § 1981 by denying Brown a welding job because of his race from the time he applied in 1960 until he was employed as a welder-trainee in 1961. Brown, therefore, is entitled to back pay measured by the difference between the wages he would have earned had he been initially employed as a welder-trainee and his actual wages. Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th Cir.), cert. denied, United Order of Am. Bricklayers and Stone Masons, Local 21 v. Waters, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970).
The district judge, for reasons fully stated in his opinion, found that Brown was not a victim of racial discrimination after he was employed as a welder-trainee. This finding also depended largely upon the credibility of witnesses. It, too, is supported by the record and is binding upon us. Since this finding covers the period Brown worked for the company after the effective date of the Civil Rights Act of 1964, he is not entitled individually to the relief he seeks under Title VII of the Act, and his remedy is limited to § 1981 for the earlier period.
II
While Brown has not proved his own Title VII claim, the class of employees he represents is not for this reason deprived of a remedy. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970); cf. Jenkins v. United Gas Corp., 400 F.2d 28, 31 (5th Cir. 1968). The district court, cognizant of this rule, considered the class action on'its merits. Rejecting the company’s claim -that the evidence demonstrates no discrimination against minorities, the district court said, “[A]t least in prior years, welding and high pay in the defendant’s shop were not for black men.” 325 F.Supp. at 543. However, it found that the company, possibly spurred by this suit, had recently undertaken a number of measures to eliminate the racial discrimination it practiced in the past. Consequently, the court dismissed the action for lack of evidence to support relief for the class.
Although the company has employed black workers for many years in low paying jobs, it was not until 1961, when Brown was promoted to welder-trainee, that any had been assigned to welding. From 1958 to 1968, the company offered an after-hours training program for welding, blueprint reading, and shop math. Only one black employee was admitted to the program in that decade. For at least six years, it has employed three black leadmen, but these three are paid less than other leadmen who are white. The company advertises that it is an “equal opportunity employer,” but it has no objective, formal guidelines for hiring, promotion, and transfer, or for giving notice of vacancies within the plant except by word of mouth.
Starting in the late 1950’s, the company integrated its facilities, sports, and social functions. Since 1965 it has made affirmative efforts to recruit black workers as a part of its routine employment procedure, and it has provided opportunities for black employees to transfer into welder-fabricator or machine shop classifications. Some have accepted the transfers; others, after initially accepting, returned at their own request to lower paying jobs.
The district court found that Gaston County where the defendant’s plant is located, has a black population of approximately 13 percent. In September 1969, black employees constituted less than ten percent of the defendant’s total work force. As of the same date they comprised approximately 13 percent of the hourly rate production employees, but this percentage had slipped to less than 11 percent by the time of the trial in October 1970. The following table shows employment by race in each of the company’s job classifications of hourly rate production employees as of September 1969:
Analysis of these statistics shows that of the 45 job classifications, black workers are employed in only 11. Slightly less than half of these employees are relegated to two positions, grinding and pickling, and industrial ■maintenance (janitors). Both of these jobs are rated ''near the bottom of the company’s pay scale, and neither affords employees much opportunity for advancement to higher paid positions. Significantly, both of these classifications are almost completely segregated. Each has six black employees and only one white employee. Sandblaster is the classification of another comparatively low paying job, and it, too,' is filled by black employees. In contrast, although 55 persons are employed in welding jobs, only one is black. And in the top 18 classifications having a pay range exceeding $3.00 an hour, there are 102 white and three black employees. But even these three, who are classified as leadmen, receive less than $3.00 an hour while their white counterparts are paid at a rate in excess of $3.00.
Courts have often observed that proof of overt racial discrimination in employment is seldom direct. E. g., United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Marquez v. Omaha District Sales Office, Ford Division, 440 F.2d 1157, 1162 (8th Cir. 1971); Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584 (1954). Recognizing this, we have found “error in limiting Title VII to present specific acts of racial discrimination,” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970), and it is now well established that courts must also examine statistics, patterns, practices and general policies to ascertain whether racial discrimination exists. United States v. Jacksonville Terminal Co., 451 F.2d 418, 442 (5th Cir. 1971); Graniteville Co. v. EEOC, 438 F.2d 32, 41 (4th Cir. 1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971); United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970); United States v. Hayes International Corp., 415 F.2d 1038, 1044 (5th Cir. 1969). We need not decide whether the 1969 statistics, revealing as they are, should be regarded as conclusively showing violation of Title VII or whether they establish a prima facie case. It is sufficient to hold that they have not been rebutted by the company’s efforts since 1965 to hire and promote black employees.
In United States v. Bethlehem Steel Corp., 446 F.2d 652, 655 (2nd Cir. 1971), the court identified the lack of “fixed or reasonably objective standards and procedures for hiring” as a discriminatory practice. Gaston’s employment policies suffer the same deficiency. The company lacks objective guidelines for hiring, for pay increases within job classifications, and for promotion or transfer from one job to another. Employment and promotion policies that operate without objective standards for the direction of supervisory personnel may appear impartial, but recently we cautioned: “Practices, policies or patterns, even though neutral on their face, may operate to segregate and classify on the basis of race at least as effectively as overt racial discrimination. Particularly is this so if a history of past discrimination is developed.” United States v. Dillon Supply Co., 429 F.2d 800, 804 (4th Cir. 1970). Elusive, purely subjective standards must give way to objectivity if statistical indicia of discrimination are to be refuted. “Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.” Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971).
Here, in the absence of objective criteria applied to all workers alike, the statistics indicate that race is the only identifiable factor explaining the disparity between the jobs held by white employees and those held by black employees. The proof discloses no objective standards based on education, experience, ability, length of service, reliability, or aptitude to account for the preferential employment of white workers. Cf. United States v. Jacksonville Terminal Co., 451 F.2d 418, 449 (5th Cir. 1971).
Moreover, the record discloses that notices of vacancies are not posted, and news of them is passed along by word of mouth. When job classifications are as segregated as they are in this company, delay in learning about a vacancy in an all white category may in itself discriminate against a black employee who hears of it only after it has been filled. This practice resembles the lack of a formal transfer system which we criticized in Dillon. 429 F.2d at 802, 804. It differs little from a hiring policy of referral by employees that has been condemned because it favors the family and friends of white employees over black job seekers who have no way of knowing about an opening. Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970); United States v. Sheet Metal Workers, Local 36, 416 F.2d 123, 137 (8th Cir. 1969); see Developments in the Law — Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L. Rev. 1109, 1152 (1971).
In sum, the lack of objective guidelines for hiring and promotion and the failure to post notices of job vacancies are badges of discrimination that serve to corroborate, not to rebut, the racial bias pictured by the statistical pattern of the company’s work force.
III
The district court was impressed with' the efforts of the company to remedy the discrimination of prior years. Counsel for the plaintiff, though pressing for full injunctive relief, candidly acknowledges that the company has recently improved many of its practices. But the transition to a shop free from discrimination is as yet incomplete. Progress already made has chiefly occurred since the institution of this suit. If this litigation is prematurely terminated, members of the class run the risk that this progress will abruptly end. Therefore, we will adopt the remedy fashioned in Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428 (8th Cir. 1970), which the plaintiff somewhat reluctantly proposes as an alternative measure. There the court of appeals directed the district judge to retain the case on his docket a reasonable time to insure continuance of the company’s policy of equal employment opportunities.
Accordingly, the case is remanded to the district court for retention on its docket for a reasonable time. If, at the end of this period, the court finds that the company’s employment policies have completely eliminated the unlawful practices prohibited by § 703(a), it may dismiss this action. However, if any unlawful employment practices remain, the court must order appropriate injunc-tive relief. In either event, the plaintiff is entitled to recover his costs and reasonable counsel fees. Robinson v. Lorillard Corp., 444 F.2d 794 (4th Cir. 1971); Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham, supra, 433 F.2d at 429.
The judgment is affirmed in part, vacated in part, and the case is remanded for further proceedings consistent with this opinion.
. Brown v. Gaston County Dyeing Machine Co., 325 F.Supp. 541 (W.D.N.C.1970). This case was previously here on appeal of the issue of exhaustion of remedies. Brown v. Gaston County Dyeing Machine Co., 405 F.2d 887 (4th Cir. 1968), cert. denied, Pilot Freight Carriers, Inc. v. Walker, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451 (1969).
. Section 703(a) of the Act, 42 U.S.C. § 2000e-2(a) (1970), provides:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) fo limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
. 42 U.S.C. § 1981 provides:
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
. Compare Parham v. Southwestern Bell Telephone Company, 433 F.2d 421, 426 (8th Cir. 1970) (statistics as a matter of law establish a violation of Title VII), with Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245, 247 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (1971) (statistics create a prima facie case of discrimination). See Developments in the Law — Employment Discrimination and Title VII of the Civil Bights Act of 1964, 84 Harv.L.Rev. 1109, 1154 (1971).
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
songer_geniss
|
F
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
POLYMERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 602, 603, Dockets 32204, 32205.
United States Court of Appeals Second Circuit.
Argued May 21, 1969,
Decided July 24, 1969.
Francis J. Vaas, Boston, Mass. (Nelson G. Ross, Ropes & Gray, Boston, Mass., on the brief), for petitioner.
Elliott Moore, Atty., National Labor Relations Board, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert E. Williams, Atty., National Labor Relations Board, Washington, D. C., on the brief), for respondent.
Before LUMBARD, Chief Judge, FEINBERG, Circuit Judge, and TIMBERS, District Judge.
Chief Judge of the District of Connecticut, sitting by designation.
TIMBERS, District Judge:
This case presents chiefly the question whether the National Labor Relations Board should have set aside a representation election because of alleged irregularities in its conduct, the Board having concluded that “desirable election standards were met and that no reasonable possibility of irregularity inhered in the conduct of this election.” (Emphasis added.) Subordinate questions presented are whether the Board should have held a hearing on the company’s objections to the election and whether the Board was justified in refusing the company’s request to inspect a Board document entitled “A Guide to the Conduct of Elections.”
Polymers, Inc., a Vermont corporation engaged at Middlebury in the manufacture, sale and distribution of synthetic fibers, has petitioned for review of an order of the Board which directed it to cease and desist from refusing to bargain collectively with Teamsters, Chauffeurs, and Warehousemen’s Local 597, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America. The Board has cross-petitioned for enforcement of its bargaining order. The key issue is whether the Board’s certification of the union is valid; if so, the company’s admitted refusal to bargain violated Section 8(a)(5) and (1) of the Act.
We hold that the Board did not abuse its discretion in finding, without a hearing, that the alleged irregularities in the conduct of the representation election, considered in light of all the facts and circumstances surrounding the election, did not raise a reasonable possibility of irregularity and thus did not require that the election be set aside. We also hold under the circumstances of this case that the Board was justified in refusing to produce the Guide.
Accordingly, we deny the petition of the company to set aside the order of the Board, and we enforce the Board’s order.
I.
The essential facts regarding the conduct of the election are not in dispute. A split session election was held on November 15, 1966 at the company’s plant in Middlebury. After the first morning session, the ballot box was sealed, taped and signatures were affixed. The Board agent in charge of the election then placed the box in the rear of his station wagon, along with a leather brief case containing blank ballots. The station wagon was locked. The agent, along with the company and union observers, walked to a nearby diner for coffee. The ballot box and blank ballots remained in the locked station wagon parked 50 to 75 feet from the diner during the 30 to 45 minute period that the agent and observers were in the diner.
After the midmorning voting session, the ballot box again was sealed and signatures were affixed. The Board agent placed it under a sweater in the rear of his station wagon which he again locked. Taking the brief ease with the blank ballots along with him, he remained away from the station wagon from approximately 11 A.M. to 2 P.M.
No objections were interposed, nor suspicions voiced, by the company to these procedures until after the ballots were counted and the union victory was made known. The company thereafter asserted that the failure of the Board agent to adhere to appropriate safeguards in the sealing and custody of the ballot box, and in the security of the blank ballots, required that the election be set aside due to the existence of a “possibility of irregularity.” Specific alleged deficiencies included (1) sealing of ballot box edges and slot with (easily removable) masking tape instead of gummed paper; (2) signing of names wholly on tape without continuation onto cardboard surface of ballot box; (3) taping of slot and signatures without extending tape 'onto cardboard surfaces; (4) failure of Board agent to ask observers whether they were satisfied with the manner of sealing; and (5) failure of Board agent to retain box in his custody between polling periods.
In addition to the above specific alleged deficiencies, the company’s sus-pieions were aroused by the appearance of many ballots in neatly creased stacks at the time of initial tabulation, and the shift in sentiment from the results of a previous election, contrary to indications the company is said to have had from its employees. On the basis of these factors, the company objected to the election.
II.
The regional director conducted an investigation into the alleged irregularities. The Board affirmed his findings. Although the Board recognized that the conduct of the election did not comport with optimal safeguards of accuracy and security, and it acknowledged that the sealing of the ballot box could have been improved upon, it concluded that “desirable election standards, were met and that no reasonable possibility of irregularity inhered in the conduct of this election.” (Emphasis added.) Enlarging upon its specification of the “reasonableness” of the possibility as a determinative factor, the Board stated:
“We do not think, however, that the word ‘possibility’ could ever be construed in this context to have the connotation of ‘conceivable.’ The concept of reasonableness of the possibility must be imported into this test in order for it to have meaning.”
Thus, the Board declined to apply a standard which would disregard the remoteness of the possibility of irregularity. On the facts before it, the Board concluded that there was only a remote possibility of the occurrence of two unlikely events: that someone had entered the Board agent’s locked station wagon during either the first session (when both ballot box and blank ballots were there) or the second session (when only the ballot box was there); and that such person had tampered with the box without leaving a trace of visible irregularity.
III.
Polymers does not contend that the failure of the Board agent to adhere to insignificant procedures for safeguarding an election requires that it be set aside; but it urges, since the procedures of sealing and custody are so crucial to the ability of the interested parties to “know with certainty” that tampering has not occurred, that election results should not be certified when such deviations occur.
In the past the Board has refused to certify election results where a possibility of irregularity existed. Although the “reasonableness” standard applied in the instant election has not been articulated explicitly in previous Board decisions, its applicability is evident both from the opinions themselves and from the instances in which the Board, as here, has declined to set aside elections.
Briefly, elections have been set aside where (1) three days after a discrepancy in the number of ballots was discovered, the ballots were found, the room having been locked during the three day period; (2) the Board agent, while being transported between polling places by company and union observers, failed to seal or tape the ballot box; (3) an unsealed package of blank ballots was left unguarded for twenty minutes in a polling area; and, most recently, an unsealed ballot box remained unattended from two to five minutes.
On the other hand, election results have been certified even though (1) blank ballots were in the voting area while the Board agent was not; (2) an unsealed ballot box was in the possession of the agent and the company observer, the union observer having suddenly departed; and (3) the Board agent was temporarily absent from the polling place.
This line of conflicting precedents reflects the principle that each possibility must be assessed upon its own unique facts and circumstances, under expert analysis by the Board, to determine whether to certify or set aside. A per se rule of possibility would impose an overwhelming burden in a representation case. If speculation on conceivable irregularities were unfettered, few election results would be certified, since ideal standards cannot always be attained.
The rule of absolute possibility, urged by Polymers, recently has been rejected by the Fifth Circuit in affirming a certification order of the Board. NLRB v. Capitan Drilling Co., 408 F.2d 676 (5 Cir. 1969), enforcing 167 N.L.R.B. No. 18, 66 L.R.R.M. 1015 (1967). The company there alleged that a seam of the ballot box was not sealed with masking tape and that enough space remained to insert or remove ballots during the time the box was in the custody of the Board agent (pending the counting of the ballots on the subsequent day):
“In essence, the Company’s sole argument rests upon one missing strip of tape, and the uncorroborated speculation, based on that fact, that the ballot box could have been tampered with. We do not think that this offer of proof is sufficient to necessitate an evidentiary hearing or the setting aside of the election.” 408 F.2d at 677.
IV.
The burden of setting aside an election is a heavy one and falls upon the party attacking it. In the instant case, the decision of the Board to certify the union was neither arbitrary nor capricious, nor did it represent a departure from the principles by which the Board had made similar determinations in the past. The essence of the company’s complaint was the ease with which the masking tape used on the ballot box could have been removed and the blank ballots inserted with fraudulent votes. These allegations presupposed a spontaneous reaction by unknown parties to the fortuity of the ballot box and blank ballots remaining in an unguarded but locked station wagon, and the perfect execution of a plan to tamper. (Worthy of a Holmes or Hitchcock plot, but hardly of labor-management relations in Vermont!) That such possibility is remote is simply beyond dispute. Rejection of the per se possibility rule advocated by the company requires rejection of its claims. The Board evaluated the possibility; if its expertise means anything, it should be given weight in determining, as here, whether procedures were adequate to safeguard a common part of its everyday operations.
V.
Hearings need not be held on objections to representation elections unless by prima facie evidence the moving party presents substantial and material factual issues which, if resolved in its favor, would warrant setting aside the election. In NLRB v. Joclin Mfg. Co., 814 F.2d 627, 631-32 (2 Cir. 1963), we recognized that the Board’s discretion in determining whether or not to hold a hearing was not unfettered, but we held that it could condition the right to a hearing on the existence of substantial and material issues: “[This] requirement [is] not only proper but necessary to prevent dilatory tactics by employers or unions disappointed in the election returns.” Where, as here, the Board accepts the factual allegations of the company, and no additional facts remain to be developed, a hearing is unnecessary. Conclusory allegations based upon undisputed facts and questions raised regarding ultimate interpretations by the regional director, do not raise material and substantial issues requiring a hearing. Absent a change in circumstances, not present here, the Board’s refusal to permit the introduction of additional evidence in an unfair labor practice proceeding, where the company has had full opportunity to present its claims to the regional director, will not be disturbed. The inferences and conclusions which the company here wished to have drawn regarding the conduct of the election could be, and were, made known to the Board without the necessity of a hearing. The company’s offer of proof was insufficient. As indicated above, accepting the facts as true, there was no warrant for setting aside the election. The request for a hearing was properly denied.
VI.
The company sought, and was denied, access to a Board document entitled “A Guide to the Conduct of Elections.” The Board’s denial is challenged as in contravention of the Freedom of Information Act of 1966, 5 U.S.C. § 552, and in violation of due process. As to the statutory claim, § 552(a)(2)(C) requires an agency to make available “administrative staff manuals and instructions to staff that affect a member of the public.” This provision, however, is subject to certain limitations; § 552(b)(2) excepts from the operation of the statute matters that are “related solely to the internal personnel rules and practices of an agency.” The House Report interpreted this exception to cover “[Operating rules, guidelines and manuals of procedure for government investigators or examiners. . . . ”
The Guide is said to be an internal advisory document for the use of Board personnel and plays no significant role in the Board’s adjudication of election disputes. As such it appears to fall within the further exception specified in 5 U.S.C. § 552(b)(5) as an “intra-agency memorandum.”
While the interest of the Board in refusing to produce the Guide is not clear, its relevance to the instant controversy is even less clear. We do not hold that under no circumstances would the Board be required to produce the Guide; but in the context of the instant case we will not disturb the refusal of the Board to produce the Guide.
Enforced.
. The decision and order of the Board, issued March 14, 1968, is reported at 170 N.L.R.B. No. 33, 67 L.R.R.M. 1433 (1968) . A further decision on the company’s motion for reconsideration, issued January 31, 1969, is reported at 174 N.L.R.B. No. 42, 70 L.R.R.M. 1148 (1969).
. The company contends that it was unaware of the “critical significance” of the manner in which the ballot box was sealed until it later was informed of the “slipshod and careless manner” in which the Board agent had retained custody of the box. While no waiver or estoppel arises from the company’s first making its objections known after the ballots were tabulated, the Board agent was given no opportunity to rectify the alleged procedural deficiencies of the election. Cf. United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952), cited in NLRB v. Thompson Transport Co., 406 F.2d 698, 701 (10 Cir. 1969): “. . . courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice.”
. The employee vote in favor of the union at the November 15, 1966 election was 73 to 51. At the 1965 election, many of the same employees having voted, the union was defeated 92 to 29.
. New York Telephone Co., 109 N.L.R.B. 788 (1954). The newly discovered ballots brought the total number of recorded votes to the proper figure. The Board noted that a more prompt and thorough check of the room at the time the discrepancy arose would have avoided the ensuing complications.
. Tidelands Marine Services, Inc., 116 N.L.R.B. 1222 (1956). The Board held that retention by the agent of the unsealed ballot box during the time he was away from the polling place, under conditions which permitted access, created a serious irregularity, even though no challenge was made to his personal integrity.
. Hook Drugs, Inc., 117 N.L.R.B. 846 (1957). Notwithstanding the absence of any evidence that the unsealed package had been disturbed, the Board held that the failure to seal, coupled with the ease of accessibility, constituted a serious irregularity. The election was set aside.
. Austin Waxed Paper Co., 169 N.L.R.B. No. 169, 67 L.R.R.M. 1366 (1968). Rejecting speculation on what might have happened during this period, and with the stated purpose of maintaining high standards and avoiding any taint in the election process, the Board set aside the election.
. General Electric Co. (Clock and Timer Dept.), 119 N.L.R.B. 544 (1957), rev’g, 118 N.L.R.B. 805. In distinguishing Hook Drugs, supra note 6, the Board noted it had been established that at no time did anyone other than the Board agent touch the blank ballots which, along with the ballot box, were in the voting area in full view of the observers. Its initial decision that tampering might have occurred was reversed (over a strong dissent) in light of the evidence before it.
. Crown Drug Co., 123 N.L.R.B. 336 (1959). After a few seconds the box was sealed and the Board found that no improper access was possible during this brief interval.
. Anchor Coupling Co., 171 N.L.R.B. No. 156, 68 L.R.R.M. 1235 (1968). The Board, distinguishing Austill Waxed Paper, supra note 7, held that such absence provided an insufficient basis upon which to set aside the election. There was no allegation of actual tampering and the employer’s observer conceded that the ballot box had been protected during this interval.
. NLRB v. Mattison Machine Works, 365 U.S. 123 (1961) (per curiam); Southwestern Portland Cement Co. v. NLRB, 407 F.2d 131, 134 (5 Cir. 1969), petition for cert. filed, 37 U.S.L.W. 3477 (U.S. May 14, 1969) (No. 1392).
. While it is true that a Board agent could walk around town in between shift balloting with the ballot box padlocked to his wrist, some more practical approach to the problems of security in 8200 elections per year must be devised, especially where no contemporaneous objection is interposed to the procedures visibly employed.
. Under 29 C.F.R. § 102.69(c), challenges to representation elections are considered by the regional director “on the basis of an administrative investigation or, if it appears to the regional director that substantial and material factual issues exist which can be resolved only after a hearing, he shall issue and cause to be served on the parties a notice of hearing on said issues before a hearing officer.” See Bausch & Lomb, Inc. v. NLRB, 404 F.2d 1222, 1226 (2 Cir. 1968); NLRB v. Capitan Drilling Co., supra, at 677; Southwestern Portland Cement Co., supra note 11, at 135, citing NLRB v. O.K. Van Storage, Inc., 297 F.2d 74, 76 (5 Cir. 1961):
“Nowhere in the Act is there a specific requirement that the Board conduct post-election hearings on objections to the conduct of elections; rather, it is implicit in the Act that questions preliminary to the establishment of the bargaining relationship be expeditiously resolved, with litigious questions reserved for the proceedings for review or enforcement of Board orders. The Board nonetheless makes it a practice to hold post-election hearings on objections to elections, but in keeping with the spirit of the Act does so only when it appears that the allegations relied on to overturn the election have a basis in law and that there is evidence to support them. The opportunity for protracted delay of certification of the results of representation elections which would exist in the absence of reasonable conditions to the allowance of a hearing on objections is apparent. An objecting party who fails to satisfy such conditions has no cause for complaint when and if his demand for a hearing is denied.”
See also NLRB v. Geneseo, Inc., 406 F.2d 393 (5 Cir. 1969); NLRB v. Smith Industries, Inc., 403 F.2d 889, 892 (5 Cir. 1968); Sonoco Products Co. v. NLRB, 399 F.2d 835, 839 (9 Cir. 1968).
. See Sonoco Products Co. v. NLRB, supra note 13.
. NLRB v. Bata Shoe Co., 377 F.2d 821 (4 Cir.), cert. denied, 389 U.S. 917 (1967).
. NLRB v. Difco Laboratories, Inc., 389 F.2d 663 (6 Cir.), cert. denied, 393 U.S. 828 (1968); Macomb Pottery Co. v. NLRB, 376 F.2d 450, 452 (7 Cir. 1967).
. Pepsi-Cola Buffalo Bottling Co. v. NLRB, 409 F.2d 676, 681 (2 Cir. 1969).
. A parallel request for production of the “NLRB Case Handling Manual” was granted by the Board.
. 1966 U.S.Code Cong. & Ad.News, 2418, 2427. But see Benson v. General Services Administration, 289 F.Supp. 590, 594-95 (W.D.Wash.1968), criticizing the interpretation of the House Report and discussing the Senate Report, which interpreted the phrase “internal personnel rules and practices” as relating to “parking facilities, . . . lunch hours, statements of policy as to sick leave, and the like.”
. The House Report found merit in the contention of agency personnel that “Exchange of ideas among agency personnel would not be completely frank if they were forced to ‘operate in a fishbowl.’” 1966 U.S.Code Cong. & Ad.News, supra note 19. See also American Mail Line, Ltd. v. Gulick, 311 F.2d 696, 703 (D.C.Cir. 1969).
We are not insensitive to the importance of withholding intra-agency memo-randa from public disclosure in appropriate circumstances. See In the Matter of the Appeal of the SEC, 226 F.2d 501 (6 Cir. 1955) (Brief for Appellants, 36-37, 62, 77-79, 84-86).
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_state
|
06
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
In re U. S. FINANCIAL SECURITIES LITIGATION.
Michael FABRIKANT and Milton Binswanger, Petitioners-Appellants, v. BACHE & CO., Basle Securities Corp. et al., Respondents/Appellees. FIRST NATIONAL BANK OF TOLEDO, etc. et al., Petitioners/Appellants, v. R. H. WALTER, J. B. Halverson, R. G. Steward et al., Respondents/Appellees. MELLON BANK, N. A., (“Mellon”) et al., Petitioners/Appellants, v. U. S. FINANCIAL, Salmon Bros, et al., Respondents/Appellees. Petition of Charles D. PRUTZMAN, Jr. Petition of UNION BANK. Petition of TOUCHE ROSS AND COMPANY. Petition of Angelo ADAMS. Petition of BROWN, Wood, Ivey, Mitchell & Petty. Petition of SOCIETE GENERALE DE BANQUE, RENTINVEST, et al. COLONIAL GROWTH SHARES, INC., Petitioner/Appellant, v. TOUCHE ROSS & CO. et al., Respondents/Appellees. Michael FABRIKANT and Milton Binswanger, Plaintiffs/Appellees, v. Philip HAMPTON, Philip D. Reed et al., Defendants/Appellants. Michael FABRIKANT and Milton Biswanger, Plaintiff/Appellees, v. John WEINBERG, etc. et al., Defendants/Appellants.
Nos. 77-2993 to 77-2995, 77-3063, 77-3064, 77-3093, 77-3099, 77-3121, 77-3122, 77-3333, 77-3344 and 77-3345.
United States Court of Appeals, Ninth Circuit.
Dec. 10, 1979.
Mitchell L. Lathrop, Los Angeles, Cal., for Richard Gant & V. Frank Asaro.
Charles D. Siegal, Los Angeles, Cal., for Charles D. Prutzman.
James W. Colbert, III, Los Angeles, Cal., for Union Bank.
Robert F. Brown, for Crosby, Fox, et al.
Stephen D. Miller, Beverly Hills, Cal., for Angelo Adams.
James M. Shaughnessy, New York City, for Societe Generale de Banque etc.
J. Asa Rountree, New York City, for Philip Hampton, Philip D. Reed, et al.
Winthrop J. Allegaert, New York City, for Colonial Growth Shares, etc.
Irwin F. Woodland, Los Angeles, Cal., for Touche Ross & Co.
Before KILKENNY and ANDERSON, Circuit Judges, and BYRNE, District Judge.
The Honorable William M. Byrne, United States District Judge for the Central District of California, sitting by designation.
J. BLAINE ANDERSON, Circuit Judge:
This appeal presents a challenge which strikes at the heart of this country’s system of jurisprudence. Simply stated, we are asked to decide whether there is a “complexity” exception to the Seventh Amendment right to a jury trial in civil cases. We answer this question in the negative and reverse the decision of the district court.
I. PROCEEDINGS BELOW
U.S. Financial (USF) was a high-flying real estate development company which began losing altitude in 1972 and finally crashed in 1973. This spawned an abundance of lawsuits. The present case concerns twenty separate suits filed by a variety of plaintiffs who were on the most part purchasers or representatives of purchasers of the different stock and debenture offerings made by USF. The various defendants include USF, certain closely-related companies, assorted USF insiders, underwriters, outside attorneys and accountants. All of the lawsuits present common issues relating to the allegations of federal and state securities law violations, common law fraud and negligence.
The different lawsuits were filed in federal court for the Southern District of California and four other federal judicial districts. The Judicial Panel on Multidistrict Litigation found that the prevalence of common issues and allegations justified transfer of the several cases to the Southern District of California for coordinated or consolidated pretrial proceedings. In re U. S. Financial Securities Litigation, 385 F.Supp. 586 (Jud.Pan.Mult.Lit.1974); In re U. S. Financial Securities Litigation, 375 F.Supp. 1403 (Jud.Pan.Mult.Lit.1974).
On its own motion, the court below struck all demands for jury trial in these consolidated cases. Judge Turrentine reasoned that the legal and factual issues were of such complexity as to be beyond the practical abilities and limitations of a jury. In re U. S. Financial Securities Litigation, 75 F.R.D. 702 (S.D.Cal.1977). Recognizing the importance of the jury trial question, it was certified for interlocutory appeal under 28 U.S.C. § 1292(b). By an order filed on August 29, 1977, this court granted permission to appeal.
II. BACKGROUND
In order to place this case and the question presented by it in perspective, its background is developed more fully than is normally necessary. Recently, there has been considerable controversy surrounding the Seventh Amendment’s guarantee of civil jury trial and the abilities of jurors as fact-finders in complex lawsuits. We therefore briefly sketch the history of USF, the status of the present litigation, the analysis used by the court below, and that used by the other federal district courts which have lately addressed the same issue.
1. History of USF
USF grew slowly for the first three years after it was incorporated in 1962 as West Coast Financial. Initially, it was primarily engaged in small accounts receivable financing. In 1964 the USF name was adopted and the company expanded into real estate financing and title insurance. USF also made its first public stock offering and filed a registration statement with the SEC in 1964.
USF’s growth and expansion began in earnest when R. H. Walter was appointed president in 1966. Walter brought his two real estate development companies and the joint venture concept with him to USF. That same year, USF formed U.S. Mortgage as a subsidiary to make long-term loans on real estate projects.
In 1967, USF acquired Capital Leasing Company. It also formed another subsidiary, U. S. Realty, as a real estate sales and management company. And in 1968, USF sold 250,000 shares of common stock in an interstate offering at $10.75 per share.
During 1969 it continued to expand its operations in the real estate field. Twenty million dollars was raised from a public offering of 15,000 units, each consisting of ten shares of common stock and one 5%% convertible subordinated debenture with a face value of $1,000, due in 1989. USF organized and acquired additional title insurance companies, and expanded its real estate operations with the acquisition of San Carlos Construction Co. and Due and Elliott Development Company. Additionally, U.S. Guaranty Capital was formed to make interim construction loans.
USF continued its capital expansion in 1970 with another securities offering through U. S. Financial Overseas, N.V., a wholly-owned Netherland Antilles subsidiary of USF. The offering was for $12.5 million in 9% debentures, due 1982, guaranteed by USF, and which came with attached warrants for the purchase of ten shares of USF common stock. During 1970 USF acquired three more companies, Development Creators, Inc., an architectural firm, Mosser Construction, Inc., an Ohio corporation engaged in heavy construction, and Shelton Corporation, a Hawaiian real estate company. In keeping with its rapid growth, USF common stock was listed on the New York Stock Exchange in December of 1970.
USF’s capital growth continued in 1971 with the offering of $35 million of 5V¿% convertible subordinated debentures in this country. Unfortunately for its investors, 1971 was the last year of USF’s phenomenal growth. USF’s reported assets had risen from $338,795 in 1962 to more than $310 million in 1971, its revenues from $8,876 to more than $180 million, and its earnings from $1,215 to over $6 million. The price of USF common stock had also increased correspondingly. From a selling price of less than $5.00 per share it soared to $92.00 per share in 1969, and following a three for two split in 1969 it had risen to a price of $57.00 per share in 1971.
USF was a vertically-integrated company at the time of its downfall. It was in the business of developing, constructing, operating, marketing, and financing real estate projects, individually and as a “participant” in joint ventures. The construction and financing of the real estate developments were controlled through its subsidiary corporations. These various operations were further supplemented by USF’s wholly-owned title insurance and casualty insurance companies.
Despite some problems in 1971, the collapse did not begin until 1972 after the SEC had begun investigating the USF operations. In late 1972 the SEC suspended trading in USF securities altogether. At this time USF had approximately 4.5 million outstanding shares of common stock. In 1973, USF began a Chapter XI arrangement proceeding in bankruptcy which has since been converted into a Chapter X reorganization proceeding.
2. Status of the Present Litigation
On June 24, 1977, when the district court entered its order striking the demands for jury trial, there were eighteen consolidated cases. Subsequently, certain plaintiffs brought additional claims, increasing the total number of actions to twenty. However, several of the cases have been settled and dismissed since the district court’s order. This court has been advised that there are ten cases remaining, four of which, while still pending, have never been, and are not now, being actively pursued.
Thus, there are six remaining active cases. The appellants maintain that these six actions actually amount to only three separate prosecutions. The three remaining cases brought by Societe Generale De Banque, they contend, allege a single continuing scheme to defraud, causing damages to a class of debenture purchasers, by Touche Ross & Co., Union Bank, and Brown, Wood. Liability is predicated upon violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), Rule 10b-5, 17 C.F.R. § 240.10b-5, and also for common law fraud and negligence. The appellants contend that the two separate actions brought by Colonial Growth, and the one action by Bank of Toledo, are all based upon the same continuing scheme to defraud which forms the basis of the So-ciete Generale De Banque actions.
The appellees claim that the dismissals have done little, if anything, to reduce the complexity of the issues, the volume of the evidence, or the estimated length of trial. Furthermore, they contend that the nature and scope of the legal and factual issues remain basically the same as they were before any settlements were reached. The trier of fact will still have to decipher the financial statements and accounting procedures of USF for the period from 1966 through 1972. Since differing degrees of difficulty and complexity would not alter our ultimate decision, we accept the appel-lees’ representations.
3. District Court Decision
In a carefully thought out opinion the district court presents a persuasive argument as to why there should be an exception to the Seventh Amendment right to jury trial in this type of case. The practical difficulties created by the size and scope of these consolidated cases are vividly illustrated. Nevertheless, such practical considerations diminish in importance when they come in conflict with the constitutional right to a jury in civil cases.
The court, under the compulsion of the Seventh Amendment guarantee, acknowledged that the right to jury trial was dependent upon the legal or equitable classification of the case. After quoting several English and American court decisions with approval for their disparaging remarks about the abilities of juries, the court then reasoned somewhat as follows: If this case falls within equity jurisdiction, then there is no right to jury trial. Equity has jurisdiction over cases in which there is no adequate remedy at law. The inability of juries to handle complex cases and render a fair decision means that there is no adequate remedy at law. Therefore, complex cases are within equity jurisdiction and there exists no right to jury trial in them.
Support for this reasoning is drawn from Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), and Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). In Dairy Queen, the court made the observation that a plaintiff may bring an action for an equitable accounting only when it can be shown “... that the ‘accounts between the parties’ are of such a ‘complicated nature’ that only a court of equity can satisfactorily unravel them.” 369 U.S. at 478, 82 S.Ct. at 900. And, in the Ross decision the court noted that one of the factors used in determining whether a case was legal or equitable was “... the practical abilities and limitations of juries.” 396 U.S. at 538, n. 10, 90 S.Ct. at 738, n.10 (referred to as Ross footnote).
The decision then takes a quantum leap and establishes some general guidelines as to when the “complexity exception” will deny to a litigant his constitutional right to a civil jury trial. These are:
“First, although mere complexity is not enough, complicated accounting problems are not generally amenable to jury resolution. Although such problems often arise only during the damages portion of a trial, they sometimes are present during the liability portion as well only a case in which such a special master could not assist the jury meaningfully may be subject to removal from the province of the jury because of complex accounts.
“Second, the jury members must be capable of understanding and of dealing rationally with the issues of the case.
“And third, an unusually long trial may make extraordinary demands upon a jury which would make it difficult for the jurors to function effectively throughout the trial.”
75 F.R.D. at 711. The court found the first two guidelines satisfied based on its conclusion that a jury was not capable of either understanding or rationally reconciling the mass of data, the variety of legal theories, and the number of parties involved in the case. Since the trial time was estimated at two years, the court concluded that it would be very difficult to find a jury which could sit for that long.
4. Other District Courts
Recently, five other district courts have also faced the question of whether jury trial should be denied in complex cases. The focal point of the various inquiries has centered around the previously-mentioned footnote from the Ross decision and its consideration of the practical abilities and limitations of juries. Agreeing with the court below, thus far three of the other five courts have also found a “complexity exception” to the Seventh Amendment.
First in this line of decisions was the case of In re Boise Cascade Securities Litigation, 420 F.Supp. 99 (W.D.Wash.1976). The district court struck the demands for a jury trial because of the complicated nature of the accounting and securities issues. The order was based upon the Ross footnote which the court found to be of “constitutional dimensions.” And the court also relied in part upon the due process clause which it found required fairness in decision-making, something which a jury was incapable of doing in a case of Boise Cascade’s complexity.
The plaintiff in Radial Lip Mach., Inc., v. Intern. Carbide Corp., 76 F.R.D. 224 (N.D. 111.1977), moved to strike the defendants’ demand for jury trial. Radial Lip was a complicated trademark and patent infringement case with claims and counterclaims seeking a wide variety of legal and equitable relief. Faced with the argument based upon the Ross footnote, the court reasoned that this did not mean that the practical abilities and limitations of juries operated as an exception to the Seventh Amendment. The court also rejected the contention that the case was of such extraordinary complexity that only a court of equity could unravel the issues.
The court, in Bernstein v. Universal Pictures, Inc., 79 F.R.D. 59 (S.D.N.Y.1978), on its own motion, struck the plaintiffs’ demand for jury trial. Various composers and lyricists brought Bernstein as a class action, alleging various antitrust violations. The court based its decision on what were viewed as the court’s traditional equity powers, which were found to include “... the power to strike a jury demand when to allow it to stand would work an injustice.” 79 F.R.D. at 66. Relying principally on the Ross footnote, the court concluded that “... the sheer size of the litigation and the complexity of the relationships among the parties render it as a whole beyond the ability and competence of any jury to understand and decide with rationality.” 79 F.R.D. at 70.
In another decision from a district court in this circuit, an order was entered striking a jury demand. ILC Peripherals v. International Business Machines, 458 F.Supp. 423 (N.D.Cal.1978). ILC Peripherals was a complicated antitrust case where the court, after dismissing a hopelessly deadlocked jury, entered a directed verdict in favor of the defendant. As part of its decision, the court entered an order striking the jury demand in the event of a remand for a retrial. The court relied principally on the Ross footnote:
“It is the third factor of the equation, the practical abilities and limitations of jurors, that causes the court to conclude that the issues in this case must be considered to be equitable.”
458 F.Supp. at 445. Where the issues are beyond the abilities of a jury, the court reasoned, the legal remedy becomes inadequate and equity jurisdiction attaches. Unlike any of the other district court decisions on this issue, the ILC Peripherals court based its decision upon “its own observations during the five month trial.” 458 F.Supp. at 447.
The most exhaustive analysis of the jury issue by any court was the recent opinion, In re: Japanese Electronic Products Antitrust Litigation, 478 F.Supp. 889 (E.D.Pa. 1979). In the consolidated cases which were described as “so massive as to make them unique in the annals of United States antitrust and trade regulation litigation,” the district court refused to strike the plaintiffs’ jury demands.
III. DISCUSSION
Analytically, we are faced with three different arguments as to why the Seventh Amendment right should not apply to this class of complex civil cases. The first approach follows the historical legal-equitable test. Complex commercial litigation, such as the present case, is analogized to an “equitable accounting,” where there was no right to jury trial. The second argument, based upon the Ross footnote, asks the court to adopt a new interpretation of the Seventh Amendment and examine the practical abilities and limitations of juries. The final argument claims that due process requires trial by the court when a jury cannot comprehend the issues and evidence in the case. After a short explanation of the historical background of the Seventh Amendment, we will address each of these arguments.
1. Historical Background
Throughout this country’s history, the Seventh Amendment and the right it is designed to guarantee, has engendered neither the controversy nor the litigation that has surrounded some of the other nine Amendments forming the Bill of Rights. Nevertheless, the importance of the civil right to jury trial should not be underestimated.
The right to jury trial arrived on the shores of this country with the first English colonists. The original Jamestown charter guaranteed all the rights of Englishmen to the colonizers, including trial by jury. During the next two hundred years of development in colonial America, the right to jury trial continued to expand. The principles embodied in jury trials found a receptive atmosphere in the egalitarian principles of the colonists. By 1776, the right to jury trial existed, in one form or another, in each one of the thirteen colonies. In fact, one of the primary grievances against England at the time of the Declaration of Independence was the restriction on the right to jury trial. Colonial administrators had been circumventing the right by trying various cases, both criminal and civil, in the vice-admiralty courts.
When the Constitution was finally drafted, there was limited debate as to whether the civil right to jury trial should be included. The lack of this guarantee formed one of the primary arguments against the adoption of the new Constitution. The right to jury trial in civil cases, embodied in the Seventh Amendment, then became one of the chief reasons supporting the adoption of the Bill of Rights.
This does not mean that juries were not without their detractors. The Federalists generally opposed juries and the Seventh Amendment. Since their arguments did not carry the day, we do not believe that we should give much credence to the Federalists’ opinions about the abilities of juries as suggested on appeal.
The preceding brief historical sketch serves to illustrate the significance of the civil right to a jury. Additionally, certain general considerations pertaining to the nature and construction of the Seventh Amendment further dramatize the importance attached to it.
In Jacob v. City of New York, 315 U.S. 752, 62 S.Ct. 854, 86 L.Ed. 1166 (1942), the Supreme Court noted that:
“The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.”
315 U.S. at 752-753, 62 S.Ct. at 854. The Court has also explained that:
“Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to jury trial should be scrutinized with the utmost care.”
Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301, 79 L.Ed.2d 603 (1935), quoted with approval in Beacon Theatres v. West-over, 359 U.S. 500, 501, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). With these general considerations in mind, we turn to the question of whether the Seventh Amendment protects the right to jury trial in the present case.
2. Historical Approach
Whenever a court is called upon to interpret the Constitution, its analysis must begin with the language of the constitutional provision which it is called upon to interpret. Initially, we must therefore look to the Seventh Amendment which provides as follows:
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law.”
The surface simplicity of this provision is beguiling for the exact scope of its application was unclear even when it was first adopted.
The Seventh Amendment “preserved” the right to jury trial in all suits “at common law.” The basic purpose behind it was to maintain the right to jury trial as it existed when the Amendment as adopted in 1791. Because the Amendment speaks in terms of preservation, an historical test has been employed to determine its application. And since it refers to the common law, reference is made to the English practice as the source of this country’s common law.
The classic explanation of what was meant by “common law” was made by Justice Story almost one hundred fifty years ago:
“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence.... By common law they meant what the Constitution denominated in the third article ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit.. In a just sense, the amendment, then, may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.”
Parsons v. Bedford, 3 Pet. 433, 28 U.S. 433, 446-447, 7 L.Ed. 732 (1830).
The right to jury trial does not depend on the character of the overall action but instead is determined by the nature of the issue to be tried. Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Thus, there is a right to jury trial when the issue presented in a case would have been heard at common law. And conversely, there is no right when the issue presented in a case, viewed historically, would have been tried in the courts of equity, or in some other manner without a jury.
Thus, the basic consideration in determining when the right to jury trial applies depends on the ancient distinction between law and equity. Since the merger of law and equity in 1938, some have stated that this is the only area where the distinction has any further significance. Groome v. Steward, 79 U.S.App.D.C. 50, 142 F.2d 756 (D.C.Cir.1944).
Although the primary test depends upon the distinction between law and equity, courts are not rigidly bound to the procedural rules and forms of action as they existed in 1791. Several procedural devices developed and expanded since 1791 have infringed upon the civil jury’s historic role; nevertheless, they have been found consistent with the Seventh Amendment. Conversely, other procedural developments have limited the scope of equity jurisdiction, and expanded the right to jury trial. Additionally, it is too obvious to be doubted that the constitutional right to jury trial attaches to statutory causes of action as long as they involve legal rights and remedies. Thus, the historical test is not static, rather it is more in the nature of an historical inquiry, an inquiry which is guided by the statutory expansion of legal rights, and the procedural developments which have both expanded and retracted the role of the civil jury.
Returning to the present case, the appel-lees do not seriously contest the fact that the issues presented here are basically of a legal nature. The remedy which is sought in all of the consolidated cases is damages, which is the traditional form of relief granted by the common law courts. The substantive rights asserted are, in part, based on the common law principle of fraud and negligence. The statutory rights under the securities laws (principally Section 10(b) of the Securities Exchange Act of 1934 and the rules and regulations which form its progeny) merely create new legal duties. An action seeking damages from a breach of any of these statutory duties is analogous to a tort action at common law. From this it is clear that the present cases, where legal relief is sought and legal rights are asserted, involve suits either at common law or analogous to common law actions where the Seventh Amendment preserves the right to jury trial.
Nevertheless, the appellees claim that due to the complexity of the present case, it is analogous to an action for an equitable accounting where historically there has been no right to a jury.
This argument misses the mark. It attempts to have the legal or equitable nature of the case characterized as a whole rather than by examining the nature of the issues involved. As previously pointed out, the issues presented here are of a legal nature. The fact that resolution of the issues will involve an examination of USF’s accounts, and accounting procedures, cannot transform the case into an action for an equitable accounting.
The Supreme Court rejected a similar argument in Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). The plaintiff there had brought an action for an injunction restraining an alleged patent infringement and for an accounting for profits lost through the infringement. The Court decided that the plaintiff’s characterization of the case as an action for an equitable accounting was of no consequence. The true basis of the action, the Court found, was on a “debt allegedly due under a contract.. [or] for damages....” 369 U.S. at 477, 82 S.Ct. at 899. The opinion went on to note that in view of the ability of masters to assist the jury in complicated cases, it would be extremely difficult to satisfy one of the prerequisites for bringing an equitable accounting; that is, a showing that the accounts between the parties are of such a complicated nature that only a court of equity could unravel them.
A suit for an “accounting” was a narrow and little-used ground for establishing equitable jurisdiction. The present actions do not involve any claims for an equitable accounting. The questions in this case are of a legal character traditionally heard at common law. The fact that a case may involve accounting principles cannot magically convert the legal causes of action into an action for an equitable accounting.
3. The Ross Test
As we discussed earlier in this opinion, the Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733,24 L.Ed.2d 729 (1970), decision has been interpreted by some courts and commentators as establishing a new test for determining the right to jury trial. The court below held, and the appellees argue, that Ross establishes a test under which a court must inquire into the practical abilities and limitations of juries in resolving the Seventh Amendment question. We do not believe that Ross may be read as establishing a new test for determining when the Seventh Amendment applies.
In Ross, the plaintiffs had brought a stockholders’ derivative suit against the directors of an investment company and the company’s brokers. The complaint alleged statutory violations of the Investment Company Act of 1940, breach of fiduciary duties, and requested that the defendants return their profits to the company. Despite the fact that stockholders’ derivative suits were historically only recognized in equity, the Court held that “... the right to jury trial attaches to those issues in derivative actions as to which the corporation, if it had been suing in its own right, would have been entitled to a jury.” 396 U.S. at 532-533, 90 S.Ct. at 735. The Court viewed the prior rule which only allowed derivative suits to be brought in equity as merely a procedural obstacle which was “destroyed” by the merger of law and equity under the Federal Rules of Civil Procedure.
For our purposes here, the most important part of the Ross decision came during the discussion of Beacon Theatres v. West-over, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), where the court said this:
“The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.10 ”
396 U.S. at 538, 90 S.Ct. at 738
This statement was explained in footnote 10 as follows:
“As our cases indicate, the ‘legal’ nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly obtruse historical inquiry, is obviously the most difficult to apply. See James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963).”
Based on this footnote, this court is asked to employ an inquiry into the practical abilities and limitations of a jury as the test for determining the application of the Seventh Amendment. We decline this invitation for several reasons.
While it is unclear as to what was meant by the inclusion of the third factor, we do not believe that it stated a rule of constitutional dimensions. After employing an historical test for almost two hundred years, it is doubtful that the Supreme Court would attempt to make such a radical departure from its prior interpretation of a constitutional provision in a footnote.
Another consideration involves the two sources cited for the rule: the vague reference to “our cases” and the James article. No Supreme Court decision prior to Ross ever utilized a test even partially dependent upon an inquiry into the abilities of jurors. The only occasions even remotely resembling such an inquiry are the equitable accounting cases, the significance of which Dairy Queen limited practically to the point of extinction. The James article also fails to add any support to the use of the third factor, and, if anything, it counsels against such an inquiry. James explains that under the Constitution, judges are not free to examine what issues may be best suited for resolution by a judge or by a jury.
While the Supreme Court has never specifically repudiated the third factor in the Ross footnote, it has never met with general acceptance by the courts In the Ross decision itself, the Court did not consider the practical abilities and limitations of juries. And, although the Supreme Court has considered the Seventh Amendment question in depth on at least five occasions since Ross, the abilities of juries have never been considered. The subsequent decisions have all relied upon the traditional historical test.
Another factor which militates against our adoption of a new interpretation of the Seventh Amendment is our belief that it would be totally at odds with prior Seventh Amendment experience. To consider the practical abilities and limitations of juries within the context of complex cases would necessitate an examination of the whole case. However, the Seventh Amendment right has never been made dependent upon such an examination; it has always been the nature of the issue. When a case involves mainly equitable issues and only incidental legal issues, the right to jury trial still attaches to the legal issues. Under Seventh Amendment jurisprudence, an historical approach must still be followed. Thus, we conclude that Ross may not be read as establishing a functional interpretation of the Seventh Amendment.
4. Due Process
The appellees argue that their rights to due process under the Fifth Amendment would be violated if this case were tried to a jury. Because of the size and magnitude of the present litigation, they reason that a jury could not reach a rational decision. According to one of the briefs, due process dictates that a jury should not be required when the facts and issues are beyond a jury’s comprehension.
We assume, without deciding, that there is such a right to a “competent” fact-finder. However, we do not agree with the two assumptions upon which this argument is based, that is, the complexity and the inability of a jury to serve as fact-finder.
It should be noted that both of the arguments, discussed previously under the historical approach and the Ross test, shared the same underlying premise. With the historical approach, had we found this case analogous to an equitable accounting, then an inquiry into the ability of a jury in complex cases would have been necessary; just as it would were we to follow the suggested Ross test. Because of the manner by which we approached those arguments it was unnecessary to examine the abilities of juries in complex cases since we did not reach that step in their arguments. Had we found it necessary at that point to resolve the jury competence issue under either one of those arguments, we would have done so in the same manner as we do in the following discussion; that is, a jury is a competent fact-finder in complex cases.
A. Complexity
Many cases appear overwhelmingly complicated in their early stages. Nevertheless, by the time such cases go to trial, what had initially appeared as an impossible array of facts and issues has been synthesized into a coherent theory by the efforts of counsel. Moreover, in answering the Seventh Amendment question, courts should take into consideration the various procedural developments which serve to simplify and facilitate the trial of a “complex” case to a jury.
The assumption that attorneys cannot develop and present complex cases to a jury underestimates the abilities of the bar, especially the experienced and capable counsel associated with the present litigation. Whether a case is tried to a jury or to a judge, the task of the attorney remains the same. The attorney must organize and assemble a complex mass of information into a form which is understandable to the uninitiated. In fact, one judge has suggested
Question: In what state or territory was the case first heard?
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Answer:
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074
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
McDONALD et al. v. SANTA FE TRAIL TRANSPORTATION CO. et al.
No. 75-260.
Argued April 20, 1976
Decided June 25, 1976
MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, Powell, and Stevens, JJ., joined, and in Parts I and II of which White and Rehnquist, JJ., joined. White and Rehnquist, JJ., filed a separate statement, post, p. 296.
Henry M. Rosenblum argued the cause and filed a brief for petitioners.
C. George Niebank, Jr., argued the cause for respondent Santa Fe Trail Transportation Co. With him on the brief was Benjamin R. Rowel. Chris Dixie argued the cause and filed a brief for respondent Local No. 988 of the Teamsters Freight, Tank Line & Automobile Industry Employees.
Assistant Attorney General Pottinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Bork and Walter W. Barnett.
Briefs of amici curiae urging reversal were filed by Samuel Babinove for the American Jewish Committee; and by Gerard C. Smetana, Jerry Kronenberg, Lawrence B. Kraus, and Richard B. Berman for the Chamber of Commerce of the United States.
Briefs of amici curiae were filed by Larry M. Lavinsky, Arnold Forster, Amos Alter, and Donald A. Derfner for the Anti-Defamation League of B’nai B’rit-h; and by Jack Greenberg, Barry L. Goldstein, and Eric Schnapper for the N. A. A. C. P. Legal Defense and Educational Fund, Inc.
Mr. Justice Marshall
delivered the opinion of the Court.
Petitioners, L. N. McDonald and Raymond L. Laird, brought this action in the United States District Court for the Southern District of Texas seeking relief against Santa Fe Trail Transportation Co. (Santa Fe) and International Brotherhood of Teamsters Local 988 (Local 988), which represented Santa Fe’s Houston employees, for alleged violations of the Civil Rights Act of 1866, 42 U. S. C. § 1981, and of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., in connection with their discharge from Santa Fe’s employment. The District Court dismissed the complaint on the pleadings. The Court of Appeals for the Fifth Circuit affirmed. In determining whether the decisions of these courts were correct, we must decide, first, whether a complaint alleging that white employees charged with misappropriating property from their employer were dismissed from employment, while a black employee similarly charged was not dismissed, states a claim under Title VII. Second, we must decide whether § 1981, which provides that “[a] 11 persons... shall have the same right... to make and enforce contracts... as is enjoyed by white citizens...” affords protection from racial discrimination in private employment to white persons as well as nonwhites.
I
Because the District Court dismissed this case on the pleadings, we take as true the material facts alleged in petitioners’ complaint. Hospital Bldg. Co. v. Trustees of Rex Hospital, 425 U. S. 738, 740 (1976). On September 26, 1970, petitioners, both white, and Charles Jackson, a Negro employee of Santa Fe, were jointly and severally charged with misappropriating 60 one-gallon cans of antifreeze which was part of a shipment Santa Fe was carrying for one of its customers. Six days later, petitioners were fired by Santa Fe, while Jackson was retained. A grievance was promptly filed with Local 988, pursuant to the collective-bargaining agreement between the two respondents, but grievance proceedings secured no relief. The following April, complaints were filed with the Equal Employment Opportunity Commission (EEOC) charging that Santa Fe had discriminated against both petitioners on the basis of their race in firing them, and that Local 988 had discriminated against McDonald on the basis of his race in failing properly to represent his interests in the grievance proceedings, all in violation of Title VII of the Civil Rights Act of 1964. Agency process proved equally unavailing for petitioners, however, and the EEOC notified them in July 1971 of their right under the Act to initiate a civil action in district court within 30 days. This suit followed, petitioners joining their § 1981 claim to their Title VII allegations.
Respondents moved to dismiss the complaint, and in June 1974 the District Court issued a final modified opinion and order dismissing petitioners’ claims under both Title VII and § 1981. Turning first to the § 1981 claim, the District Court determined that § 1981 is wholly inapplicable to racial discrimination against white persons, and dismissed the claim for want of jurisdiction. Turning then to petitioners’ claims under Title VII, the District Court concluded it had no jurisdiction over Laird’s Title VII claim against Local 988, because Laird had not filed any charge against Local 988 with the EEOC. Respondent Santa Fe additionally contended that petitioners’ EEOC charges against it, filed more than 90 days after their discharge, were untimely. Apparently relying upon Fifth Circuit authority for the proposition that the 90-day period for filing with the EEOC was tolled during the pendency of grievance proceedings, however, the District Court concluded that the question of timely filing with the EEOC could not be determined without a hearing on petitioners’ allegations that they had not been notified until April 3, 1971, of the termination of the grievance proceedings. But the District Court found it unnecessary to hold such a hearing, since it concluded, quite apart from any timeliness problem, that “the dismissal of white employees charged with misappropriating company property while not dismissing a similarly charged Negro employee does not raise a claim upon which Title VII relief may be granted.” App. 117.
The Court of Appeals affirmed the dismissal, per curiam, 513 F. 2d 90 (1975), noting in regard to the Title VII claim asserted: “There is no allegation that the plaintiffs were falsely charged. Disciplinary action for offenses not constituting crimes is not involved in this case.” Id., at 90-91. We granted certiorari. 423 U. S. 923 (1975). We reverse.
II
Title YII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” §703 (a)(1), 42 U. S. C. § 2000e-2 (a)(1). Its terms are not limited to discrimination against members of any particular race. Thus, although we were not there confronted with racial discrimination against whites, we described the Act in Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971), as prohibiting “[discriminatory preference for any [racial] group, minority or majority” (emphasis added), Similarly the EEOC, whose interpretations are entitled to great deference, id., at 433-434, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would
“constitute a derogation of the Commission’s Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians.” EEOC Decision No. 7A-31, 7 FEP 1326, 1328, CCH EEOC Decisions ¶ 6404, p. 4084 (1973).
This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to “cover white men and white women and all Americans,” 110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an “obligation not to discriminate against whites,” id., at 7218 (memorandum of Sen. Clark). See also id., at 7213 (memorandum of Sens. Clark and Case); id., at 8912 (remarks of Sen. Williams). We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.
Respondents contend that, even though generally applicable to white persons, Title VII affords petitioners no protection in this case, because their dismissal was based upon their commission of a serious criminal offense against their employer. We think this argument is foreclosed by our decision in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).
In McDonnell Douglas, a laid-off employee took part in an illegal “stall-in” designed to block traffic into his former employer’s plant, and was arrested, convicted, and fined for obstructing traffic. At a later date, the former employee applied for an open position with the company, for which he was apparently otherwise qualified, but the employer turned down the application, assertedly because of the former employee’s illegal activities against it. Charging that he was denied re-employment because he was a Negro, a claim the company denied, the former employee sued under Title VII. Reviewing the case on certiorari, we concluded that the rejected employee had adequately stated a claim under Title VII. See id., at 801. Although agreeing with the employer that “[njothing in Title VII compels an employer to absolve and rehire one who has engaged in such deliberate, unlawful activity against it,” id., at 803, we also recognized:
“[T]he inquiry must not end here. While Title VII does not, without more, compel rehiring of [the former employee], neither does it permit [the employer] to use [the former employee’s] conduct as a pretext for the sort of discrimination prohibited by [the Act]. On remand, [the former employee] must... be afforded a fair opportunity to show that [the employer’s] stated reason for [the former employee’s] rejection was in fact pretext. Especially relevant to such a showing would be evidence that white employees involved in acts against [the employer] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired. [The employer] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to' members of all races.” Id., at 804.
We find this case indistinguishable from McDonnell Douglas. Fairly read, the complaint asserted that petitioners were discharged for their alleged participation in a misappropriation of cargo entrusted to Santa Fe, but that a fellow employee, likewise implicated, was not so disciplined, and that the reason for the discrepancy in discipline was that the favored employee is Negro while petitioners are white. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957) While Santa Fe may decide that participation in a theft of cargo may render an employee unqualified for employment, this criterion must be “applied, alike to members of all races,” and Title VII is violated if, as petitioners alleged, it was not.
We cannot accept respondents’ argument that the principles of McDonnell Douglas are inapplicable where the discharge was based, as petitioners’ complaint admitted, on participation in serious misconduct or crime directed against the employer. The Act prohibits all racial discrimination in employment, without exception for any group of particular employees, and while crime or other misconduct may be a legitimate basis for discharge, it is hardly one for racial discrimination. Indeed, the Title VII plaintiff in McDonnell Douglas had been convicted for a nontrivial offense against his former employer. It may be that theft of property entrusted to an employer for carriage is a more compelling basis for discharge than obstruction of an employer’s traffic arteries, but this does not diminish the illogic in retaining guilty employees of one color while discharging those of another color.
At this stage of the litigation the claim against Local 988 must go with the claim against Santa Fe, for in substance the complaint alleges that the union shirked its duty properly to represent McDonald, and instead “acquiesced and/or joined in” Santa Fe’s alleged racial discrimination against him. Local 988 argues that as a matter of law it should not be subject to liability under Title VII in a situation, such as this, where some but not all culpable employees are ultimately discharged on account of joint misconduct, because in representing all the affected employees in their relations with the employer, the union may necessarily have to compromise by securing retention of only some. We reject the argument. The same reasons which prohibit an employer from discriminating on the basis of race among the culpable employees apply equally to the union; and whatever factors the mechanisms of compromise may legitimately take into account in mitigating discipline of some employees, under Title VII race may not be among them.
Thus, we conclude that the District Court erred in dismissing both petitioners’ Title VII claims against Santa Fe, and petitioner McDonald’s Title VII claim against Local 988.
Ill
Title 42 U. S. C. § 1981 provides in pertinent part: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts... as is enjoyed by white citizens....” We have previously held, where discrimination against Negroes was in question, that § 1981 affords a federal remedy against discrimination in private employment on the basis of race, and respondents do not contend otherwise. Johnson v. Railway Express Agency, 421 U. S. 454, 459-460 (1975). See also Runyon v. McCrary, ante, at 168; Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). The question here is whether § 1981 prohibits racial discrimination in private employment against whites as well as nonwhites.
While neither of the courts below elaborated its reasons for not applying § 1981 to racial discrimination against white persons, respondents suggest two lines of argument to support that judgment. First, they argue that by operation of the phrase “as is enjoyed by white citizens,” § 1981 unambiguously limits itself to the protection of nonwhite persons against racial discrimination. Second, they contend that such a reading is consistent with the legislative history of the provision, which derives its operative language from § 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, c. 31, § 1, 14 Stat. 27. See Runyon v. McCrary, ante, at 168-170, n. 8; Tillman v. Wheaton-Haven Recreation Assn., 410 U. S. 431, 439 (1973). The 1866 statute, they assert, was concerned predominantly with assuring specified civil rights to the former Negro slaves freed by virtue of the Thirteenth Amendment, and not at all with protecting the corresponding civil rights of white persons.
We find neither argument persuasive. Rather, our examination of the language and history of § 1981 convinces us that § 1981 is applicable to racial discrimination in private employment against white persons.
First, we cannot accept the view that the terms of § 1981 exclude its application to racial discrimination against white persons. On the contrary, the statute explicitly applies to “all persons” (emphasis added), including white persons. See, e. g., United States v. Wong Kim Ark, 169 U. S. 649, 675-676 (1898). While a mechanical reading of the phrase “as is enjoyed by white citizens” would seem to lend support to respondents’ reading of the statute, we have previously described this phrase simply as emphasizing “the racial character of the rights being protected,” Georgia v. Rachel, 384 U. S. 780, 791 (1966). In any event, whatever ambiguity there may be in the language of § 1981, see cases cited, supra, at 286 n. 16, is clarified by an examination of the legislative history of § 1981’s language as it was originally forged in the Civil Rights Act of 1866. Tidewater Oil Co. v. United States, 409 U. S. 151, 157 (1972); Immigration Service v. Errico, 385 U. S. 214, 218 (1966). It is to this subject that we now turn.
The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by Senator Trumbull of Illinois as a “bill... to protect all persons in the United States in their civil rights...” (emphasis added), and was initially described by him as applying to “every race and color.” Cong. Globe, 39th Cong., 1st Sess., 211 (1866) (hereinafter Cong. Globe). Consistent with the views of its draftsman, and the prevailing view in the Congress as to the reach of its powers under the enforcement section of the Thirteenth Amendment, the terms of the bill prohibited any racial discrimination in the making and enforcement of contracts against whites as well as nonwhites. Its first section provided:
“[Tjhere shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude,... shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Id., at 211.
While it is, of course, true that the immediate impetus for the bill was the necessity for further relief of the constitutionally emancipated former Negro slaves, the general discussion of the scope of the bill did not circumscribe its broad language to that limited goal. On the contrary, the bill was routinely viewed, by its opponents and supporters alike, as applying to the civil rights of whites as well as nonwhites. The point was most directly focused on in the closing debate in the Senate. During that debate, in response to the argument of Senator Davis of Kentucky that by providing for the punishment of racial discrimination in its enforcement section, § 2, the bill extended to Negroes a protection never afforded whites, Senator Trumbull said:
“Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?” Id., at 599 (emphasis supplied).
So advised, the Senate passed the bill shortly thereafter. Id., at 606-607.
It is clear, thus, that the bill, as it passed the Senate, was not limited in scope to discrimination against nonwhites. Accordingly, respondents pitch their legislative history argument largely upon the House’s amendment of the Senate bill to add the “as is enjoyed by white citizens” phrase. But the statutory history is equally clear that that phrase was not intended to have the effect of eliminating from the bill the prohibition of racial discrimination against whites.
Representative Wilson of Iowa, Chairman of the Judiciary Committee and the bill’s floor manager in the House, proposed the addition of the quoted phrase immediately upon the introduction of the bill. The change was offered explicitly to technically “perfect” the bill, and was accepted as such without objection or debate. Id., at 1115.
That Wilson’s amendment was viewed simply as a technical adjustment without substantive effect is corroborated by the structure of the bill as it then stood. Even as amended the bill still provided that “there shall be no discrimination in civil rights or immunities among citizens of the United States in any State or Territory of the United States on account of race, color, or previous condition of slavery.” To read Wilson’s amendment as excluding white persons from the particularly enumerated civil rights guarantees of the Act would contradict this more general language; and we would be unwilling to conclude, without further evidence, that in adopting the amendment without debate or discussion, the House so regarded it.
Moreover, Representative Wilson’s initial elaboration on the meaning of Senator Trumbull’s bill, which immediately followed his securing passage of the foregoing amendment, fortifies our view that the amended bill was intended to protect whites as well as nonwhites. As Wilson described it, the purpose of the measure was to provide “for the equality of citizens... in the enjoyment of ‘civil rights and immunities.’ ” Id., at 1117. Then, speaking in particular of “immunities” as “ ‘freedom or exemption from obligation,’ ” he made clear that the bill “secures to citizens of the United States equality in the exemptions of the law.... Whatever exemptions there may be shall apply to all citizens alike. One race shall not be more favored in this respect than another/’ ibid. Finally, in later dialogue Wilson made quite clear that the purpose of his amendment was not to affect the Act’s protection of white persons. Rather, he stated, “the reason for offering [the amendment] was this: it was thought by some persons that unless these qualifying words were incorporated in the bill, those rights might be extended to all citizens, whether male or female, majors or minors.” Cong. Globe, App. 157. Thus, the purpose of the amendment was simply “to emphasize the racial character of the rights being protected,” Georgia v. Rachel, 384 U. S., at 791, not to limit its application to nonwhite persons.
The Senate debate on the House version of the bill likewise emphasizes that Representative Wilson's amendment was not viewed as limiting the bill's prohibition of racial discrimination against white persons. Senator Trumbull, still managing the bill on the floor of the Senate, was asked whether there was not an inconsistency between the application of the bill to all “citizens of every race and color'' and the statement that they shall have “the same right to make and enforce contracts... as is enjoyed by white persons,” (emphasis supplied) and it was suggested that the emphasized words were superfluous. Cong. Globe 1413. Senator Trumbull responded in agreement with the view that the words were merely “superfluous. I do not think they alter the bill....
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_numresp
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of 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.
In the Matter of the CENTRAL RAILROAD COMPANY OF NEW JERSEY, Debtor. Appeal of COMMONWEALTH OF PENNSYLVANIA and Pennsylvania Public Utility Commission, in No. 71-2162. Appeal of READING COMPANY, in No. 72-1049.
Nos. 71-2162, 72-1049.
United States Court of Appeals, Third Circuit.
Argued March 9, 1972.
Decided March 10, 1972.
Gordon P. MacDougall, Washington, D. C., Philip P. Kalodner, Pennsylvania Public Utility Commission, Harrisburg, Pa., for appellants in 71-2162.
William P. Quinn, Philadelphia, Pa., for appellant in 72-1049.
Stanley Weiss, Newark, N. J., for ap-pellee, trustee.
Pitney, Hardin & Kipp, Roger C. Ward, Newark, N. J., for appellee, Manufacturers Hanover Trust Co.
Dechert, Price & Rhoads, Matthew J. Broderick, Philadelphia, Pa., for inter-venor-appellee, Lehigh Valley Coal and Navigation Co. in 72-1049 only.
Before MeLAUGHLIN, VAN DUSEN and ALDISERT, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
We have carefully considered all the contentions presented by the various Appellants by briefs and oral argument in these expedited appeals. We do not find them persuasive to require that Order No. 441 of the Bankruptcy Court be vacated.
The Order No. 441 of the Bankruptcy Court will be affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
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songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
James W. HOOVER, Plaintiff-Appellant, v. BLUE CROSS AND BLUE SHIELD OF ALABAMA, an Alabama Corporation, Defendant, USX Corporation, A Delaware Corp., Defendant-Appellee.
Nos. 87-7494, 87-7578.
United States Court of Appeals, Eleventh Circuit.
Sept. 30, 1988.
James L. North, J. Timothy Francis, William R. Lewis, Pate, Lewis & Lloyd, P.A., William B. Lloyd, Birmingham, Ala., for plaintiff-appellant.
William G. Somerville, Jr., Lange, Simpson, Robinson & Somerville, Lawrence B. Clark, Birmingham, Ala., for Blue Cross.
James T. Carney, USX Corp., Pittsburgh, Pa., for USX Corp.
Before KRAVITCH and CLARK, Circuit Judges, and NICHOLS , Senior Circuit Judge.
Honorable Philip Nichols, Jr., Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
CLARK, Circuit Judge:
In this case the named plaintiff, James W. Hoover, brought a class action under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA). The complaint also contained some state law claims. On behalf of the class described in the complaint, Hoover sought recovery of benefits under the terms of certain employee medical insurance plans and damages for alleged breaches of fiduciary duty by the named defendants, Blue Cross and Blue Shield of Alabama, and USX Corporation (Hoover’s employer). Before ruling on the question of class certification, the district court granted motions for summary judgment filed by both named defendants. Hoover has appealed the legal rulings on which the district court based its decision, as well as rulings which denied Hoover the opportunity to join additional defendants and assert additional claims.
There is no dispute as to the essential facts. The focus of Hoover’s complaint is the co-payment provision of the USX plan under which Hoover is insured:
If a condition of illness or injury requires you to be admitted for treatment as an inpatient to a Participating Hospital of a Blue Cross Plan, benefits will be provided ... for all covered services provided and billed by the hospital which are necessary to diagnose and/or treat your condition, ... except that you will be required to pay a Hospital Inpatient Deductible, ... and 20% of the hospital’s charges in excess of the deductible.
Through a communication with Blue Cross, Hoover discovered that Blue Cross has contracts with certain “hospitals and other providers in Alabama, under which Blue Cross reimburses the providers on the basis of the lesser of the actual billed charges of the hospital and its ‘audited’ costs. In other words, Blue Cross gets a ‘discount’ from some providers.” District Court Opinion, Record Vol. I, Tab 69 at 2. When Blue Cross reimburses hospitals with which it has such arrangements, the result is that an insured’s co-payment for his or her hospitalization exceeds twenty percent of the total dollar cost (over the relevant deductible). Hoover contends that these arrangements contravene the language of the co-payment provision and that he and similarly situated insureds are entitled to share in the contractual discounts negotiated by Blue Cross by having their co-payments limited to twenty percent of the total amount paid to the relevant health care provider. The parties agree that resolution of these issues depends on a construction of the following language in the co-payment provision: “20% of the hospital’s charges.”
The parties also agree that the law governing this case is supplied by ERISA. ERISA provides that it “shall supersede any and all State laws insofar as they ... relate to any employee benefit plan described in section 1003(a).” 29 U.S.C. § 1144(a). The Supreme Court has held that the civil enforcement mechanism provided by the Act, 29 U.S.C. § 1132, provides the exclusive remedy for beneficiaries of a section 1003(a) benefit plan who believe that such a plan is not being administered in accordance with its terms or the provisions of the Act. See Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 1549 (1987); Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Accordingly, there was no legal basis for Hoover’s state law claims.
Those charged with the administration of a section 1003(a) benefit plan are termed ‘fiduciaries’ under ERISA. The duties of a plan fiduciary are described in 29 U.S.C. § 1104(a)(1), which provides, in relevant part, that
a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries ...
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims ... [and]
(D) in accordance with the documents and instruments governing the plan....
Blue Cross conceded before the district court that it is a “fiduciary” subject to these provisions.
It is well established that the actions of plan fiduciaries or administrators must be sustained as a matter of law unless a plaintiff can prove that such actions are arbitrary or capricious. See, e.g., Sharron v. Amalgamated Insurance Agency Services, Inc., 704 F.2d 562, 565 (11th Cir.1983); Anderson v. Ciba-Geigy Corp., 759 F.2d 1518, 1522 (11th Cir.) (judicial review of fiduciary actions is “highly deferential”), cert. denied, 474 U.S. 995, 106 S.Ct. 410, 88 L.Ed.2d 360 (1985). This rule clearly applies to the interpretation and implementation of a covered plan by a plan fiduciary. See Griffis v. Delta Family-Care Disability, 723 F.2d 822, 824 (11th Cir.), cert. denied, 467 U.S. 1242, 104 S.Ct. 3514, 82 L.Ed.2d 823 (1984). In light of these principles, the parties agree that the defendants’ interpretation and implementation of the co-payment clause contained in the USX plan is to be sustained as a matter of law unless the Hoover can demonstrate that the defendants’ reading of the plan is arbitrary and capricious.
We have previously isolated two factors which are relevant in determining whether a plan administrator has arbitrarily and capriciously interpreted a covered plan: the uniformity of a plan administrator’s construction of a disputed provision; and the reasonableness of the administrator’s construction. See Harris v. Pullman Standard, Inc., 809 F.2d 1495, 1498 (11th Cir.1987). It is also proper to consider a plan administrator’s good faith in deciding whether his or her conduct is arbitrary and capricious. Id.
Hoover does not contend that Blue Cross’s construction of the provision has been anything less than uniform. He concentrates instead on the reasonableness of the construction. In rejecting this and other arguments, the district court relied on the “uncontradicted affidavit” of a USX official, James Short, who was charged with drafting the plan under which Hoover is insured. According to Mr. Short, the plan
was written to provide that the employees would be responsible for 20% of the “charges” made by the hospital and that the employer would be responsible for the balance due the hospital as opposed to providing that the employer would be responsible for 80% of the hospital charges, or as opposed to providing that the employee would be responsible for 20% of the cost of hospitalization.
... [I]t would not be practical under a multi-state insurance plan to operate a co-payment system based on net cost (after discounts) when discount arrangements vary from plan to plan, and from hospital to hospital at certain plans. Discounts are even determined annually at certain plans with the amount of discount unknown at the time hospital bills are paid. This would have made it impossible for many hospitals to collect the 20% co-payments from employees which we considered desirable....
Hoover presented no evidence to rebut the content of Mr. Short’s affidavit, and the district court found that the practice of obtaining discounts was reasonable as a matter of law. The court also concluded that
[t]here is no language in [the plan] legitimately susceptible to being interpreted as a promise to participants that USX, or any administrator or sub-administrator of the plan, will pay a fixed percentage of the actual or usual charges by a provider of medical services, without obtaining any discount. Any conclusion is without support in the only documentary evidence and constitutes no more than wishful thinking.
District Court Opinion, Record Vol. I, Tab 69 at 3.
Hoover contends that the defendants’ interpretation of the plan is unreasonable because the words “cost” and “charge” are interchangeable and that a beneficiary familiar with the co-payment provision would fully expect that the twenty percent figure refers the actual, total amount of money a hospital would receive for its care of that beneficiary. Hoover’s argument fails to acknowledge that, under ERISA, the subjective expectations of a plan beneficiary do not provide the proper measure of a plan administrator’s interpretation of a disputed plan provision. If the co-payment provision is at least ambiguous, and reasonably susceptible to the interpretation given by the defendants, we must find, as a matter of law, this interpretation satisfies the arbitrary and capricious standard. See Cook v. Pension Plan for Salaried Employees, 801 F.2d 865, 871 (6th Cir.1986) (accepting plan administrator’s reasoned explanation concerning application of ambiguous provision); Edwards v. Wilkes-Barre Publishing Co. Pension Trust, 757 F.2d 52, 57 (3d Cir.) (even where beneficiary’s reading of plan language is plausible, plan fiduciary’s adoption of reasonable alternative is conclusive), cert. denied, 474 U.S. 483, 106 S.Ct. 130, 88 L.Ed.2d 104 (1985).
As we noted above, the district court took a less than charitable view of Hoover’s reading of the plan, finding no support for it whatsoever. Hoover took the position that the defendants’ reading of the plan was unreasonable as a matter of law. But he presented no evidence to counter the interpretation offered by the defendants. On appeal, he also argues that the defendants have acted in bad faith and that the arbitrary and capricious standard of review is therefore not satisfied. Hoover points us to no record evidence, however, that would reasonably support an inference of bad faith. Instead, he contends that a finding of bad faith should be inferred from the manner in which the defendants interpreted the plan and their failure to notify beneficiaries of the discount arrangements which Blue Cross has with various hospitals. If Hoover is suggesting that there remains a factual question of good faith that was sufficient to preclude entry of summary judgment against him, he is plainly wrong. Under the circumstances, Hoover was required to “go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added).
Given that there are no material issues of fact which are yet to be resolved, and because we conclude that the defendants’ reading of the disputed provision is at least reasonable, we hold that the defendants were entitled to summary judgment.
We consider one last argument made by Hoover: that district court erred in refusing to permit Hoover to join additional defendants and to assert additional claims. On April 9, 1987, Hoover filed a motion for leave to join additional parties. The district court did not rule on the motion until July 13. In the interim period, on June 15, Hoover filed, without seeking leave of court, a self-styled second amended complaint, which listed as defendants those parties Hoover had sought to join in his April 9 motion. On June 19 and June 24, USX and Blue Cross moved respectively to strike Hoover’s second amended complaint. In denying the motion to join additional parties, the district court said that the effort to join these parties was “an obvious attempt to avoid ... USX’s motion for summary judgment after that motion had been filed and after [Hoover] should have known of any claim against [them].” Rec. Vol. I, Tab 50 at 2 (emphasis added). The district court’s statement cannot be entirely correct since USX’s motion for summary judgment was filed on May 26. This error was harmless, however, because the legal claims that Hoover would have asserted against the additional parties on April 9 are those we have addressed here. Cf. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (futility of proposed amended pleading is valid ground for denying leave to amend).
As for the additional claims asserted in Hoover’s second amended complaint, it is clear that the district court did not consider itself obliged to consider them since the plaintiff did not move for leave of court to file such a pleading under Fed.R. Civ.P. 15(a). The court indicated its prospective intent to deny any such motion since this pleading would have added new theories of liability. Given the district court’s apparent view that Hoover’s delay in asserting the additional claims was without excuse, its resolution of this issue was consistent with general principles applicable to Rule 15. As Wright and Miller explain,
In general, if an amendment that cannot be made as of right is served without obtaining the court’s leave or the opposing party’s consent, it is without legal effect and any new matter it contains will not be considered unless the amendment is resubmitted for the court’s approval. However, some courts have held that an untimely amended pleading served without judicial permission may be considered as properly introduced when leave to amend would have been granted had it been sought and when it does not appear that any of the parties will be prejudiced by allowing the change. Permitting an amendment without formal application to the court under these circumstances is in keeping with the overall liberal amendment policy of rule 15(a) and the general desirability of minimizing needless formalities.
6 Federal Practice & Procedure § 1485 at 421 (1971) (emphasis added) (footnotes omitted). Here, the district court acted properly in treating Hoover’s supplemental pleading as a nullity, particularly since it was inclined to deny any motion for leave to amend that Hoover might have filed.
For the reasons expressed in this opinion, the district court’s judgment is AFFIRMED.
. Originally, there was an additional named plaintiff, Charles M. George, who sought to represent a sub-class described in the amended complaint. George filed a motion to dismiss his appeal; this motion was granted by our clerk of court pursuant to Fed.R.App.P. 42 and 11th Cir. R. 42-l(a). We therefore consider only those aspects of the lawsuit concerning Hoover.
. ERISA's coverage extends to
... any employee benefit plan if it is established or maintained—
(1) by any employer engaged in commerce or in any industry or activity affecting commerce; or
(2) any employee organization or organizations representing employees engaged in commerce or in any industry or activity affecting commerce; or
(3) by both.
29 U.S.C. § 1003(a) (emphasis added). "[E]mployee benefit plan” is defined under the Act to include any “employee welfare benefit plan." 29 U.S.C. § 1002(3). And "employee welfare benefit plan” is in turn defined to include "any plan, fund, or program which ... was established or is maintained for the purpose of providing for its participants ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident disability, death or unemployment ... benefits...." 29 U.S.C. § 1002(1)(A).
. An exception to this rule arises where the saving clauses of ERISA’s express pre-emption provisions are operative. See 29 U.S.C. § 1144(b).
. In evaluating other administrator actions, we also consider whether the action was reasonably taken to prevent unanticipated costs that may limit the resources of a covered plan. See Griffis, 723 F.2d at 825; Harris, 809 F.2d at 1498.
. After filing his notice of appeal, Hoover filed a motion pursuant to Fed.R.App.P. 10(e), asking the district court to supplement the record on appeal with an affidavit executed by Hoover. In his motion, Hoover alleged that his affidavit was "filed” in opposition to USX’s motion for summary judgment. He further alleged that “[tjhrough error or accident, this affidavit” was “omitted from the record transmitted by the clerk’s office [of the Northern District of Alabama] to the Eleventh Circuit Court of Appeals.” The district court denied the motion, finding that Hoover’s averment that he "filed” the affidavit was "erroneous.” The court also explained that Hoover’s affidavit could not be considered part of the record on appeal because such record “consists [only] of those items which where either 'filed' or formally presented by the parties to the court with a court reporter present.” The court further explained that where an item is not filed or presented to a district court through inadvertence, such item can become part of the record only if it is actually part of the proceedings before that district court. Because Hoover’s affidavit was not invoked in Hoover’s opposition to USX’s motion for summary judgment, and because Hoover filed no list of items upon which he relied in opposing Blue Cross's motion for summary judgment, the court concluded that the affidavit was not, and could not become, part of the record on appeal. Id.
Prior to oral argument before this court, Hoover filed a new Rule 10(e) motion to supplement the appellate record with his affidavit. This motion was carried with the case. We have now considered the merits of his motion, and the opposition to the motion filed by both defendants. The motion must be denied.
As the district court clearly understood, the purpose of Rule 10(e) is to ensure that the record on appeal "truly discloses what occurred in the district court.” Fed.R.App.P. 10(e); see also United States v. Smith, 493 F.2d 906, 907 (5th Cir.1974) ("Rule 10(e) exists to allow the ... court to conform the record to what happened, not to what did not.”). Hoover has given us no reason to doubt the accuracy of the district court's statement that Hoover did not in fact rely on the affidavit in opposing the defendants' motions for summary judgment. Because the record as transmitted thus discloses the content of the proceedings which actually took place before the district court, Hoover is not now entitled to supplement the record with this material on appeal. Affidavits outside the record cannot be considered on appeal. Scarborough v. Kellum, 525 F.2d 931, 933 n. 4 (5th Cir.1976).
. Before the district court ruled on the legal merits of Hoover’s complaint with regard to Blue Cross, it had already granted USX’s motion for summary judgment on the ground that Hoover had presented no evidence to support its claim. The court also concluded that it should not have "allowed [Hoover] to add USX as a defendant in the first place” because any claim against the Corporation "was and is entirely separate and distinct from the original claim brought by Blue Cross_” Hoover has challenged this ruling but we have no occasion to consider it because we have concluded that even as a proper defendant, USX was entitled to summary judgment as to the legal merits of Hoover's claim.
. We base our reading of the district court's order on the cases it cited in support of its statement that any motion for leave to amend under Rule 15(a) was likely to be denied. See National Service Industries, Inc. v. Vafla Corp., 694 F.2d 246, 249 (11th Cir.1982) (no abuse of discretion to deny leave to amend pleading where party knew of facts supporting proposed amendment at when it filed original pleading): Ferrell v. Busbee, 91 F.R.D. 225, 231 (N.D.Ga.1981) (“Plaintiff had to know of the facts upon which the amendment was based at the time the complaint was filed.").
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_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Angelo MARSIGLIA, alias Anthony Marsiglia, Appellant, v. UNITED STATES of America, Appellee.
No. 5600.
Circuit Court of Appeals, Fifth Circuit.
April 11, 1930.
R. A. Dowling, of New Orleans, La., for appellant.
Edmond E. Talbot, U. S. Atty., and P. M. Flanagan, Asst. U. S. Atty., both of New Orleans, La.
Before BRYAN and FOSTER, Circuit Judges, and HOLMES, District Judge.
Rehearing denied May 12, 1930.
PER CURIAM.
The judgment is affirmed.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_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.
PRESBYTERIAN CHURCH IN THE UNITED STATES et al. v. MARY ELIZABETH BLUE HULL MEMORIAL PRESBYTERIAN CHURCH et al.
No. 71.
Argued December 9-10, 1968.
Decided January 27, 1969.
Charles L. Gowen argued the cause for petitioners. With him on the brief were Robert B, Troutman and Frank S. Cheatham, Jr.
Owen H. Page argued the cause for respondents and filed a brief for respondents Eastern Heights Presbyterian Church et al. Richard T. Cowan, Frank B. Zeigler, and James Edward McAleer filed a brief for respondent Mary Elizabeth Blue Hull Memorial Presbyterian Church.
Briefs of amici curiae, urging reversal, were filed by George Wilson McKeag for Thompson, Stated Clerk of the General Assembly of the United Presbyterian Church in the United States et al., and by Jackson A. Dykman and Harry G. Hill, Jr., for the Right Rev. John E. Hines, Presiding Bishop of the Protestant Episcopal Church in the United States.
Briefs of amici curiae, urging affirmance, were filed by William J. McLeod, Jr., and W. J. Williamson, pro se, for Williamson, Secretary of Concerned Presbyterians, Inc., and by Alfred J. Schweppe for Laurelhurst United Presbyterian Church, Inc., et al.
Mr. Justice Brennan
delivered the opinion of the Court.
This is a church property dispute which arose when two local churches withdrew from a hierarchical general church organization. Under Georgia law the right to the property previously used by the local churches was made to turn on a civil court jury decision as to whether the general church abandoned or departed from the tenets of faith and practice it held at the time the local churches affiliated with it. The question presented is whether the restraints of the First Amendment, as applied to the States through the Fourteenth Amendment, permit a civil court to award church property on the basis of the interpretation and significance the civil court assigns to aspects of church doctrine.
Petitioner, Presbyterian Church in the United States, is an association of local Presbyterian churches governed by a hierarchical structure of tribunals which consists of, in ascending order, (1) the Church Session, composed of the elders of the local church; (2) the Presbytery, composed of several churches in a geographical area; (3) the Synod, generally composed of all Presbyteries within a State; and (4) the General Assembly, the highest governing body.
A dispute arose between petitioner, the general church, and two local churches in Savannah, Georgia — the respondents, Hull Memorial Presbyterian Church and Eastern Heights Presbyterian Church — over control of the properties used until then by the local churches. In 1966, the membership of the local churches, in the belief that certain actions and pronouncements of the general church were violations of that organization’s constitution and departures from the doctrine and practice in force at the time of affiliation, voted to withdraw from the general church and to reconstitute the local churches as an autonomous Presbyterian organization. The ministers of the two churches renounced the general church’s jurisdiction and authority over them, as did all but two of the ruling elders. In response, the general church, through the Presbytery of Savannah, established an Administrative Commission to seek a conciliation. The dissident local churchmen remained steadfast; consequently, the Commission acknowledged the withdrawal of the local leadership and proceeded to take over the local churches’ property on behalf of the general church until new local leadership could be appointed.
The local churchmen made no effort to appeal the Commission’s action to higher church tribunals — the Synod of Georgia or the General Assembly. Instead, the churches filed separate suits in the Superior Court of Chatham County to enjoin the general church from trespassing on the disputed property, title to which was in the local churches. The cases were consolidated for trial. The general church moved to dismiss the actions and cross-claimed for injunctive relief in its own behalf on the ground that civil courts were without power to determine whether the general church had departed from its tenets of faith and practice. The motion to dismiss was denied, and the case was submitted to the jury on the theory that Georgia law implies a trust of local church property for the benefit of the general church on the sole condition that the general church adhere to its tenets of faith and practice existing at the time of affiliation by the local churches. Thus, the jury was instructed to determine whether the actions of the general church “amount to a fundamental or substantial abandonment of the original tenets and doctrines of the [general church], so that the new tenets and doctrines are utterly variant from the purposes for which the [general church] was founded.” The jury returned a verdict for the local churches, and the trial judge thereupon declared that the implied trust had terminated and enjoined the general church from interfering with the use of the property in question. The Supreme Court of Georgia affirmed, 224 Ga. 61, 159 S. E. 2d 690 (1968). We granted certiorari to consider the First Amendment questions raised. 392 U. S. 903 (1968). We reverse.
It is of course true that the State has a legitimate interest in resolving property disputes, and that a civil court is a proper forum for that resolution. Special problems arise, however, when these disputes implicate controversies over church doctrine and practice. The approach of this Court in such cases was originally developed in Watson v. Jones, 13 Wall. 679 (1872), a pre-Erie R. Co. v. Tompkins diversity decision decided before the application of the First Amendment to the States but nonetheless informed by First Amendment considerations. There, as here, civil courts were asked to resolve a property dispute between a national Presbyterian organization and local churches of that organization. There, as here, the disputes arose out of a controversy over church doctrine. There, as here, the Court was asked to decree the termination of an implied trust because of departures from doctrine by the national organization. The Watson Court refused, pointing out that it was wholly inconsistent with the American concept of the relationship between church and state to permit civil courts to determine ecclesiastical questions. In language which has a clear constitutional ring, the Court said
“In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect. . . . All who unite themselves to such a body [the general church] do so with an implied consent to [its] government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.” 13 Wall., at 728-729.
The logic of this language leaves the civil courts no role in determining ecclesiastical questions in the process of resolving property disputes.
Later cases, however, also decided on nonconstitutional grounds, recognized that there might be some circumstances in which marginal civil court review of ecclesiastical determinations would be appropriate. The scope of this review was delineated in Gonzalez v. Archbishop, 280 U. S. 1 (1929). There, Gonzalez claimed the right to be appointed to a chaplaincy in the Roman Catholic Church under a will which provided that a member of his family receive that appointment. The Roman Catholic Archbishop of Manila, Philippine Islands, refused to appoint Gonzalez on the ground that he did not satisfy the qualifications established by Canon Law for that office. Gonzalez brought suit in the Court of First Instance of Manila for a judgment directing the Archbishop, among other things, to appoint him chaplain. The trial court entered such an order, but the Supreme Court of the Philippine Islands reversed and “absolved the Archbishop from the complaint.” This Court affirmed. Mr. Justice Brandéis, speaking for the Court, defined the civil court role in the following words: “In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise.” 280 U. S., at 16.
In Kedroff v. St. Nicholas Cathedral, 344 U. S. 94 (1952), the Court converted the principle of Watson as qualified by Gonzalez into a constitutional rule. Kedroff grew out of a dispute between the Moscow-based general Russian Orthodox Church and the Russian Orthodox churches located in North America over an appointment to St. Nicholas Cathedral in New York City. The North American churches declared their independence from the general church, and the New York Legislature enacted a statute recognizing their administrative autonomy. The New York courts sustained the constitutionality of the statute and held that the North American churches’ elected hierarch had the right to use the cathedral. This Court reversed, finding that the Moscow church had not acknowledged the schism, and holding the statute unconstitutional. The Court said, 344 U. S., at 116:
“The opinion [in Watson v. Jones] radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation— in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. Freedom to select the clergy, where no improper methods of choice are proven, we think, must now he said to have federal constitutional protection as a part of the free exercise of religion against state interference.” (Italics supplied.)
And, speaking of the New York statute, the Court said further, id., at 119:
“By fiat it displaces one church administrator with another. It passes the control of matters strictly ecclesiastical from one church authority to another. It thus intrudes for the benefit of one segment of a church the power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment.” (Italics supplied.)
This holding invalidating legislative action was extended to judicial action in Kreshik v. St. Nicholas Cathedral, 363 U. S. 190 (1960), where the Court held that the constitutional guarantees of religious liberty required the reversal of a judgment of the New York courts which transferred control of St. Nicholas Cathedral from the central governing authority of the Russian Orthodox Church to the independent Russian Church of America.
Thus, the First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property. And there are neutral principles of law, developed for use in all property disputes, which can be applied without “establishing” churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. Because of these hazards, the First Amendment enjoins the employment of organs of government for essentially religious purposes, Abington School District v. Schempp, 374 U. S. 203 (1963): the Amendment therefore commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine. Hence, States, religious organizations, and individuals must structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.
The Georgia courts have violated the command of the First Amendment. The departure-from-doctrine element of the implied trust theory which they applied requires the civil judiciary to determine whether actions of the general church constitute such a “substantial departure” from the tenets of faith and practice existing at the time of the local churches’ affiliation that the trust in favor of the general church must be declared to have terminated. This determination has two parts. The civil court must first decide whether the challenged actions of the general church depart substantially from prior doctrine. In reaching such a decision, the court must of necessity make its own interpretation of the meaning of church doctrines. If the court should decide that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.
Since the Georgia courts on remand may undertake to determine whether petitioner is entitled to relief on its cross-claims, we find it appropriate to remark that the departure-from-doctrine element of Georgia’s implied trust theory can play no role in any future judicial proceedings. The departure-from-doctrine approach is not susceptible of the marginal judicial involvement contemplated in Gonzalez Gonzalez’ rights under a will turned, on a church decision, the Archbishop’s, as to church law, the qualifications for the chaplaincy. It was the archbishopric, not the civil courts, which had the task of analyzing and interpreting church law in order to determine the validity of Gonzalez’ claim to a chaplaincy. Thus, the civil courts could adjudicate the rights under the will without interpreting or weighing church doctrine but simply by engaging in the narrowest kind of review of a specific church decision — i. e., whether that decision resulted from fraud, collusion, or arbitrariness. Such review does not inject the civil courts into substantive ecclesiastical matters. In contrast, under Georgia’s departure-from-doctrine approach, it is not possible for the civil courts to play so limited a role. Under this approach, property rights do not turn on a church decision as to church doctrine. The standard of departure-from-doctrine, though it calls for resolution of ecclesiastical questions, is a creation of state, not church, law. Nothing in the record suggests that this state standard has been interpreted and applied in a decision of the general church. Any decisions which have been made by the general church about the local churches’ withdrawal have at most a tangential relationship to the state-fashioned departure-from-doctrine standard. A determination whether such decisions are fraudulent, collusive, or arbitrary would therefore not answer the questions posed by the state standard. To reach those questions would require the civil courts to engage in the forbidden process of interpreting and weighing church doctrine. Even if the general church had attempted to apply the state standard, the civil courts could not review and enforce the church decision without violating the Constitution. The First Amendment prohibits a State from employing religious organizations as an arm of the civil judiciary to perform the function of interpreting and applying state standards. See Abington School District v. Schempp, supra. Thus, a civil court may no more review a church decision applying a state departure-from-doctrine standard than it may apply that standard itself.
The judgment of the Supreme Court of Georgia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The opinion of the Supreme Court of Georgia summarizes the claimed violations and departures from petitioner’s original tenets of faith and practice as including the following: “ordaining of women as ministers and ruling elders, making pronouncements and recommendations concerning civil, economic, social and political matters, giving support to the removal of Bible reading and prayers by children in the public schools, adopting certain Sunday School literature and teaching neo-orthodoxy alien to the Confession of Faith and Catechisms, as originally adopted by the general church, and causing all members to remain in the National Council of Churches of Christ and willingly accepting its leadership which advocated named practices, such as the subverting of parental authority, civil disobedience and intermeddling in civil affairs”; also “that the general church has . . . made pronouncements in matters involving international issues such as the Vietnam conflict and has disseminated publications denying the Holy Trinity and violating the moral and ethical standards of the faith.” 224 Ga. 61, 62-63, 159 S. E. 2d 690, 692 (1968).
This theory derives from principles fashioned by English courts. See, e. g., Craigdallie v. Aikman, 1 Dow 1, 3 Eng. Rep. 601 (H. L. 1813) (Scot.); Attorney General ex rel. Mander v. Pearson, 3 Mer. 353, 36 Eng. Rep. 135 (Ch. 1817). For the subsequent development of the implied trust theory in English courts, see Note, Judicial Intervention in Disputes Over the Use of Church Property, 75 Harv. L. Rev. 1142, 1148-1149 (1962).
We reject the contention of respondent local churches that no First Amendment issues were raised or decided in the state courts. Petitioner’s answer and cross-claim in each case included an express allegation that the action of respondents in appropriating the church property to their use was “in violation of the laws of Georgia, the United States of America, and the Southern Presbyterian Church.” (Italics supplied.) At trial, petitioners’ counsel objected to the admission of all testimony “pertaining to [the] alleged deviation from the faith and practice of the Presbyterian Church in the United States” because that question was “exclusively within the right of the Presbyterian Church in the United States through its proper judicial body to determine.” On appeal, petitioners again contended “that questions of an ecclesiastical nature concerning whether or not' a church has abandoned its tenents [sic] and doctrines, or some of them, are exclusively within the jurisdiction of the church courts and should not be submitted to a jury for determination as this would destroy the doctrine of separation of church and state.” Petitioners thus clearly raised claims under the First Amendment as applied to the States by the Fourteenth Amendment. Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 116, 119 (1952). The Georgia Supreme Court considered and decided these claims. “In considering this contention [that the petitions raise ecclesiastical questions which are exclusively within the jurisdiction of the church, not of civil courts, and therefore that respondents could not maintain their action],” the court said, “we are mindful that 'The traditional American doctrine of freedom of religion and separation of church and state carries with it freedom of the church from having its doctrines or beliefs defined, interpreted, or censored by civil courts.’ ” 224 Ga., at 68, 159 S. E. 2d, at 695. The court concluded, however, that the trial court did not violate the doctrine. Citing Georgia Code Ann. § 22-408, which provides: “Courts are reluctant to interpose in questions affecting the management of the temporalities of a church; but when property is devoted to a specific doctrine or purpose, the courts will prevent it from being diverted from the trust,” the court held that “a trust [in favor of the general church] is conditioned upon the general church’s adherence to its tenets of faith and practice existing when the local church affiliated with it and ... an abandonment of, or departure from, such tenets is a diversion from the trust, which the civil courts will prevent.” 224 Ga., at 68, 159 S. E. 2d, at 695.
“Watson v. Jones, although it contains a reference to the relations of church and state under our system of laws, was decided without depending upon prohibition of state interference with the free exercise of religion. It was decided in 1871 [sic], before judicial recognition of the coercive power of the Fourteenth Amendment to protect the limitations of the First Amendment against state action. It long antedated the 1938 decisions of Erie R. Co. v. Tompkins and Ruhlin v. New York Life Ins. Co., 304 U. S. 64 and 202, and, therefore, even though federal jurisdiction in the case depended solely on diversity, the holding was based on general law rather than Kentucky law.” Kedroff v. St. Nicholas Cathedral, 344 U. S. 94, 115-116 (1952).
Accord, see, e. g., decisions involving Presbyterian churches, Trustees of Pencader Presbyterian Church v. Gibson, 26 Del. Ch. 375, 22 A. 2d 782 (1941); Bramlett v. Young, 229 S. C. 519, 93 S. E. 2d 873 (1956); St. John’s Presbytery v. Central Presbyterian Church of St. Petersburg, 102 So. 2d 714 (Fla. 1958); see also Northside Bible Church v. Goodson, 387 F. 2d 534 (C. A. 5th Cir. 1967). See generally for an examination of the development and growth of the rules for settling church property disputes, Note, Judicial Intervention in Disputes Over the Use of Church Property, 75 Harv. L. Rev. 1142 (1962); 54 Va. L. Rev. 1451 (1968); Duesenberg, Jurisdiction of Civil Courts Over Religious Issues, 20 Ohio St. L. J. 508 (1959) ; Comment, Judicial Intervention in Church Property Disputes— Some Constitutional Considerations, 74 Yale L. J. 1113 (1965).
See, e. g., Bouldin v. Alexander, 15 Wall. 131 (1872); Brundage v. Deardorf, 55 F. 839 (C. C. N. D. Ohio 1893).
We have no occasion in this case to define or discuss the precise limits of review for “fraud, collusion, or arbitrariness” within the meaning of Gonzalez.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_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.
FOGLE et al. v. GENERAL CREDIT, Inc.
No. 7468.
United States Court of Appeals for the District of Columbia.
Decided Jan. 29, 1940.
P. Michael Cook, of Washington, D.C, for appellants.
William R. Lichtenberg and Joseph B. Danzansky, both of Washington, D.C., for appellee.
Before STEPHENS, VINSON, and RUTLEDGE, Associate Justices. .
PER CURIAM.
This is a suit in equity in which the appellant, the plaintiff below, sought a decree declaring void a lien asserted by the. appellee, the defendant below, upon a certain automobile, and sought also to compel the appellee to deliver a certificate of title to the car. There was a counterclaim by the appellee which sought delivery of the car to it or in lieu thereof damages in the sum of $350. The decree was for the appellee.
In its decree, the trial court said:
“This cause coming on to be heard at this term of Court upon the pleadings, and admitted evidence as submitted to the Court by counsel in open Court, and the Court having jurisdiction of the subject matter and the parties, and upon consideration of the admitted facts, and it appearing to the Court that the defendant, General Credit, Inc., is the holder of a recorded chattel mortgage on a certain 1938 Plymouth Sedan Automobile, Serial Number 10542389, Motor Number P6-128183, in the amount of $350.00, and that the automobile is in the possession of the plaintiffs, and it further appearing to the Court that the defendant is entitled to the automobile by virtue of its recorded chattel mortgage or in lieu thereof the satisfaction of its lien in the amount of $350.00, it is, by the Court, this 23rd day of May, 1939, adjudged * * [Italics supplied]
There is nothing in the record indicating what the admitted evidence was, or what the court found as admitted facts. If the foregoing recital was intended to be a finding of facts, it was but partial. Numerous other items of fact were in issue under the pleadings.
Rule 52 of the Rules of Civil Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c, requires that; "In all actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; * * */’
In the absence of the evidence upon which the case was decided and of findings of fact, the case is not in a condition to be reviewed. See Boss v. Hardee, 1937, 68 App.D.C. 75, 93 F.2d 234, upon the necessity of findings.
The decree is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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sc_adminaction
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117
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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.
KREMENS, HOSPITAL DIRECTOR, et al. v. BARTLEY et al.
No. 75-1064.
Argued December 1, 1976
Decided May 16, 1977
Norman J. Watkins, Deputy Attorney General of Pennsylvania, argued the cause for appellants. With him on the briefs were Robert P. Kane, Attorney General, Barry A. Roth, Assistant Attorney General, and J. Justin Blewitt, Jr., Deputy Attorney General.
David Ferleger argued the cause and filed a brief for appellees.
Bernard G. Segal argued the cause for the Supreme Court of Pennsylvania as amicus curiae. With him on the brief was James D. Crawford.
Briefs of amici curiae urging reversal were filed by Curt T. Schneider, Attorney General, and Bruce A. Roby for the State of Kansas; and by Bruce A. Miller for the Michigan Association of Emotionally Disturbed Children.
Briefs of amici curiae urging affirmance were filed by Lawrence E. Walsh, John H. Lashly, and Michael S. Lottman for the American Bar Assn.; by Stanley C. Van Ness for the Department of the Public Advocate, Division of Mental Health Advocacy of New Jersey; by Gary J. Kolb for Michigan Legal Services et al.; and by Robert L. Walker and Peter B. Sandmann for the Youth Law Center.
Briefs of amici curiae were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Brian K. Landsberg, and Judith E. Wolf for the United States; by Patricia M. Wald and Paul R. Friedman for the American Orthopsychiatric Assn, et al.; by Allen R. Snyder for the American Psychiatric Assn, et al.; by Bayard M. Graf, Harold E. Kohn, Samuel E. Klein, and Frank E. Hahn, Jr., for the Devereux Foundation et al.; by Michael A. Wolff for the National Juvenile Law Center; and by Stephen P. Berzon, Marian Wright Edelman, Stephen Wizner, and Joseph J. Levin, Jr., for the plaintiffs in Poe et al. v. Mathews et al. and other cases.
Mr. Justice Rehnquist
delivered the opinion of the Court.
I
Appellees Bartley, Gentile, Levine, Mathews, and Weand were the named plaintiffs in a complaint challenging the constitutionality of Pennsylvania statutes governing the voluntary admission and voluntary commitment to Pennsylvania mental health institutions of persons 18 years of age or younger. The named plaintiffs alleged that they were then being held at Haver ford State Hospital, a Pennsylvania mental health facility, and that they had been admitted or committed pursuant to the challenged provisions of the Pennsylvania Mental. Health and Mental Retardation Act of 1966, Pa. Stat. Ann., tit. 50, §4101 et seq. (1969). Various state and hospital officials were named as defendants.
Plaintiffs sought to vindicate not only their own constitutional rights, but also sought to represent a class consisting of
“all persons under eighteen years of age who have been, are, or, may be admitted or committed to Haverford State Hospital and all other state mental health facilities under the challenged provisions of the state statute.” App. 10a-lla (complaint ¶7).
A three-judge United States District Court for the Eastern District of Pennsylvania struck down the statutes as violative of the Due Process Clause of the Fourteenth Amendment. 402 F. Supp. 1039 (1975). The court also entered a broad order requiring the implementation of detailed procedural protections for those admitted under the Pennsylvania statutes. On December 15, 1975, this Court granted appellants' application for a stay of the judgment of the District Court. On March 22, 1976, we noted probable jurisdiction. 424 U. S. 964.
In general, the 1966 Act, which has been superseded to a significant degree, provides for three types of admission to a mental health facility for examination, treatment, and care: voluntary admission or commitment (§§402 and 403), emergency commitment (§405), and civil court commitment (§ 406). At issue here was the constitutionality of the voluntary admission and commitment statutes, §§ 402 and 403, as those statutes regulate the admission of persons 18 years of age or younger. The statutes provide that juveniles may be admitted upon the application of a parent, guardian, or individual standing in loco parentis and that, unlike adults, the admitted person is free to withdraw only with the consent of the parent or guardian admitting him.
There have been two major changes in the Pennsylvania statutory scheme that have materially affected the rights of juveniles: the promulgation of regulations under the 1966 Act, and the enactment of the Mental Health Procedures Act in 1976. At the time the complaint was filed, the 1966 Act made little or no distinction between older and younger juveniles. Each of the named plaintiffs was at that time between 15 and 18 years of age. After the commencement of this action, but before class certification or decision on the merits by the District Court, the Pennsylvania Department of Public Welfare promulgated regulations which substantially increased the procedural safeguards afforded to minors 13 years of age or older. The regulations, promulgated pursuant to statutory authority, became effective September 1, 1973. The major impact of the regulations upon this litigation stems from the fact that the regulations accord significant procedural protections to those 13 and older, but not to those less than 13. The older juveniles are given notification of their rights, the telephone number of counsel, and the right to institute a § 406 involuntary commitment proceeding in court within two business days. Under § 406, a judicial hearing is held after notice to the parties. The younger juveniles are not given the right to a hearing and are still remitted to relying upon the admitting parent or guardian.
Although the regulations sharply differentiate between juveniles of less than 13 years of age and those 13 to 18, on April 29, 1974, the District Court nonetheless certified the following class to be represented by the plaintiffs:
“This action shall be maintained as a class action under Rule 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of the class comprised of all persons eighteen years of age or younger who have been, are or may be admitted or committed to mental health facilities in Pennsylvania pursuant to the challenged provisions of the state mental health law (i. e., 50 P. S. §§ 4402 and 4403). This definition of the class is without prejudice to the possibility that it may be amended or altered before the decision on the merits herein.” App. 270a.
On July 9, 1976, after the decision below and after this Court had noted probable jurisdiction, Pennsylvania enacted a new statute substantially altering its voluntary admission procedures. Mental Health Procedures Act, Pa. Act No. 143. The new Act completely repeals the provisions declared unconstitutional below except insofar as they relate to mentally retarded persons. § 502. Under the hew Act, any person 14 years of age or over may voluntarily admit himself, but his parents may not do so; those 14 to 18 who were subject to commitment by their parents under the 1966 Act are treated essentially as adults under the new Act. § 201. Under the new Act children 13 and younger may still be admitted for treatment by a parent, guardian, or person standing in loco parentis. Ibid. Those 14 and over may withdraw from voluntary treatment “at any time by giving written notice.” § 206 (a). Those under 14 may be released by request of the parent; in addition, “any responsible party” may petition the Juvenile Division of the Court of Common Pleas to request withdrawal of the child or modification of his treatment. § 206 (b).
Because we have concluded that the claims of the named appellees are mooted by the new Act, and that the claims of the unnamed members of the class are not properly presented for review, we do not dwell at any length upon the statutory scheme for voluntary commitment in Pennsylvania or upon the rationale of the District Court’s holding that the 1966 Act and regulations did not satisfy due process.
II
This case presents important constitutional issues — issues that were briefed and argued before this Court. However, for reasons hereafter discussed, we conclude that the claims of the named appellees are mooted by the new Act and decline to adjudicate the claims of the class certified by the District Court. That class has been fragmented by the enactment of the new Act and the promulgation of the regulations.
Constitutional adjudication being a matter of “great gravity and delicacy,” see Ashwander v. TVA, 297 U. S. 288, 345 (1936) (Brandeis, J., concurring), we base our refusal to pass on the merits on “the policy rules often invoked by the Court 'to avoid passing prematurely on constitutional questions. Because {such] rules operate in “cases confessedly within [the Court’s] jurisdiction”... they find their source in policy, rather than purely constitutional, considerations.’ ” Franks v. Bowman Transportation Co., 424 U. S. 747, 756 n. 8 (1976).
A
At the time the complaint was filed, each of the named plaintiffs was older than 14, and insofar as the record indicates, mentally ill. The essence of their position was that, as matters stood at that time, a juvenile 18 or younger could be “voluntarily” admitted upon application of his parent, over the objection of the juvenile himself. Thus, appellees urged in their complaint that the Due Process Clause required that they be accorded the right to a hearing, as well as other procedural protections, to ensure the validity of the commitment. App. 21a-22a (complaint ¶ 46).
The fact that the Act was passed after the decision below does not save the named appellees’ claims from mootness. There must be a live case or controversy before this Court, Sosna v. Iowa, 419 U. S. 393, 402 (1975), and we apply the law as it is now, not as it stood below. Fusari v. Steinberg, 419 U. S. 379 (1975); Sosna v. Iowa, supra. Thus the enactment of the new statute clearly moots the claims of the named appellees, and all others 14 or older and mentally ill.
These concerns were eradicated with the passage of the new Act, which applied immediately to all persons receiving voluntary treatment. § 501. The Act, in essence, treats mentally ill juveniles 14 and older as adults. They may voluntarily commit themselves, but their parents may not do so, § 201, and one receiving voluntary treatment may withdraw at any time by giving written notice. § 206. With respect to the named appellees, the Act completely repealed and replaced the statutes challenged below, and obviated their demand for a hearing, and other procedural protections, since the named appellees had total freedom to leave the hospital, and could not be forced to return absent their consent. After the passage of the Act, in no sense were the named appellees “detained and incarcerated involuntarily in mental hospitals,” as they had alleged in the complaint, App. 21a.
B
If the only appellees before us were the named appellees, the mootness of the case with respect to them would require that we vacate the judgment of the District Court with instructions to dismiss their complaint. United States v. Munsingwear, 340 U. S. 36 (1950). But as we have previously indicated, the District Court certified, pursuant to Fed. Rule Civ. Proc. 23, the class described supra, at 125-126.
In particular types of class actions this Court has held that the presence of a properly certified class may provide an added dimension to our Art. Ill analysis, and that the mootness of the named plaintiffs’ claims does not “inexorably” require dismissal of the action. Sosna, supra, at 399-401. See also Franks v. Bowman Transportation, Inc., supra, at 752-757; Gerstein v. Pugh, 420 U. S. 103, 110-111, n. 11 (1975). But we have never adopted a flat rule that the mere fact of certification of a class by a district court was sufficient to require us to decide the merits of the claims of unnamed class members when those of the named parties had become moot. Cf. Sosna, supra, at 402. Here, the promulgation of the regulations materially changed, prior to class certification, the controverted issues with respect to a large number of unnamed plaintiffs; prior to decision by this Court, the controverted issues pertaining to even more unnamed plaintiffs have been affected by the passage of the 1976 Act. We do not think that the fragmented residual of the class originally certified by the District Court may be treated as were the classes in Sosna and Franks.
There is an obvious lack of homogeneity among those unnamed members of the class originally certified by the District Court. Analysis of the current status of the various subgroups reveals a bewildering lineup of permutations and combinations. As we parse it, the claims of those 14 and older and mentally ill are moot. They have received by statute all that they claimed under the Constitution. Those 14 and older and mentally retarded are subject to the 1966 Act, struck down by the District Court, but are afforded the protections of the regulations. Their claims are not wholly mooted, but are satisfied in many respects by the regulations. Those 13 and mentally ill are subject to the admissions procedures of the new Act, arguably supplemented by the procedural protection of the regulations. The status of their claims is unclear. Those 13 and mentally retarded are subject to the 1966 Act and the regulations promulgated thereunder. Their claims are satisfied in many respects. Those younger than 13 and mentally ill are unaided by the regulations and are subject to the admissions procedures of the 1976 Act, the constitutional effect of which has not been reviewed by the District Court. Those younger than 13 and mentally retarded are subject to the 1966 Act, unaffected by the regulations. This latter group is thus the only group whose status has not changed materially since the outset of the litigation. These fragmented subclasses are represented by named plaintiffs whose constitutional claims are moot, and it is the attorneys for these named plaintiffs who have conducted the litigation in the District Court and in this Court.
The factors which we have just described make the class aspect of this litigation a far cry indeed from that aspect of the litigation in Sosna and in Franks, where we adjudicated the merits of the class claims notwithstanding the mootness of the claims of the named parties. In Sosna, the named plaintiff had by the time the litigation reached this Court fulfilled the residency requirement which she was challenging, but the class described in the District Court’s certification remained exactly the same. In that case, mootness was due to the inexorable passage of time, rather than to any change in the law. In Franks, a Title VII discrimination lawsuit, the named plaintiff had been subsequently discharged for a nondiscriminatory reason, and therefore before this Court that plaintiff no longer had a controversy with his employer similar to those of the unnamed members of the class. But the metes and bounds of each of those classes remained the same; the named plaintiff was simply no longer within them.
Here, by contrast, the metes and bounds of the class certified by the District Court have been carved up by two changes in the law. In Sosna and Franks, the named plaintiffs had simply “left” the class, but the class remained substantially unaltered. In both of those cases, the named plaintiff's mootness was not related to any factor also affecting the unnamed members of the class. In this case, however, the class has been both truncated and compartmentalized by legislative action; this intervening legislation has rendered moot not only the claims of the named plaintiffs but also the claims of a large number of unnamed plaintiffs. The legislation, coupled with the regulations, has in a word materially changed the status of those included within the class description.
For all of the foregoing reasons, we have the gravest doubts whether the class, as presently constituted, comports with the requirements of Fed. Rule Civ. Proc. 23 (a), And it is only a “properly certified” class that may succeed to the adversary position of a named representative whose claim becomes moot. Indianapolis School Comm’rs v. Jacobs, 420 U. S. 128 (1975).
In addition to the differences to which we have already adverted, the issues presented by these appellees, unlike that presented by the appellant in Sosna, supra, are not “capable of repetition, yet evading review.” In the latter case there is a significant benefit in according the class representative the opportunity to litigate on behalf of the class, since otherwise there may well never be a definitive resolution of the constitutional claim on the merits by this Court. We stated in Franks that “[gjiven a properly certified class action,... mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists.” 424 U. S., at 755-756. We noted that the “evading review” element was one factor to be considered in evaluating the adequacy of the adversary relationship in this Court. Id., at 756 n. 8. In this case, not only is the issue one that will not evade review, but the existence of a “properly certified class action” is dubious, and the initial shortcomings in the certification have multiplied. See Indianapolis School Comm’rs v. Jacobs, supra.
In sum, none of the critical factors that might require us to adjudicate the claims of a class after mootness of the named plaintiff’s claims are present here. We are dealing with important constitutional issues on the merits, issues which are not apt to evade review, in the context of mooted claims on the part of all of the named parties and a certified class which, whatever the merits of its original certification by the District Court, has been fragmented by the enactment of legislation since that certification. While there are “live” disputes between unnamed members of portions of the class certified by the District Court, on the one hand, and appellants, on the other, these disputes are so unfocused as to make informed resolution of them almost impossible. Cf. Fusari v. Steinberg, 419 U. S. 379 (1976). We accordingly decline to pass on the merits of appellees’ constitutional claims.
We conclude that before the “live” claims of the fragmented subclasses remaining in this litigation can be decided on the merits, the case must be remanded to the District Court for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims.
Because the District Court will confront this task on remand, we think it not amiss to remind that court that it is under the same obligation as we are to “stop, look, and listen” before certifying a class in order to adjudicate constitutional claims. That court, in its original certification, ignored the effect of the regulations promulgated by appellants which made a dramatic distinction between older and younger juveniles, and, according to the District Court, 402 F. Supp., at 1042, accorded the named appellees all of the protections which they sought, save two: the right to a precommitment hearing, and the specification of the time for the postcommitment hearing.
This distinction between older and younger juveniles, recognized by state administrative authorities (and later by the Pennsylvania Legislature in its enactment of the 1976 Act), emphasizes the very possible differences in the interests of the older juveniles and the younger juveniles. Separate counsel for the younger juveniles might well have concluded that it would not have been in the best interest of their clients to press for the requirement of an automatic precommitment hearing, because of the possibility that such a hearing with its propensity to pit parent against child might actually be antithetical to the best interest of the younger juveniles. In the event that these issues are again litigated before the District Court, careful attention must be paid to the differences between mentally ill and mentally retarded, and between the young and the very young. It may be that Pennsylvania’s experience in implementing the new Act will shed light on these issues.
Ill
This disposition is made with full recognition of the importance of the issues, and of our assumption that all parties earnestly seek a decision on the merits. As Mr. Justice Brandéis stated in his famous concurrence in Ashwander v. TVA, 297 U. S., at 345:
“The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules....”
And, as we have more recently observed in the context of “ripeness”:
“All of the parties now urge that the ‘conveyance taking’ issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live ‘Case or Controversy,’ we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the ‘Case or Controversy’ sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties.” Regional Rail Reorganization Act Cases, 419 U. S. 102, 138 (1974). (Footnote omitted.)
Our analysis of the questions of mootness and of our ability to adjudicate the claims of the class in this case is consistent with the long-established rule that this Court will not “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm’rs, 113 U. S. 33, 39 (1885). The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Haverford State Hospital was initially named as a defendant but was dismissed by mutual agreement. 402 F. Supp. 1039, 1043 n. 6 (ED Pa. 1975).
The principal distinction between the sections is that a voluntary commitment is not to exceed 30 days, with successive periods not to exceed 30 days each, as long as care or observation is necessary. There is no time limitation following a voluntary admission to a facility. See id., at 1054r-1055, n. 3 (dissenting opinion). See also n. 4, infra. There has been no distinction between the two sections for purposes of this lawsuit. Hence, unless otherwise indicated, we shall use the words “admitted” and “committed” interchangeably.
The statutes provide:
§ 402. “Voluntary admission; application, examination and acceptance; duration of admission
“(a) Application for voluntary admission to a facility for examination, treatment and care may be made by:
“(1) Any person over eighteen years of age.
“(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
“(b) When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he may be admitted.
“(c) Except where application for admission has been made under the provisions of section 402 (a) (2) and the person admitted is still eighteen years of age or younger, any person voluntarily admitted shall be free to withdraw at any time. Where application has been made under the provisions of section 402 (a) (2), only the applicant or his successor shall be free to withdraw the admitted person so long as the admitted person is eighteen years of age or younger.
“(d) Each admission under the provisions of this section shall be reviewed at least annually by a committee, appointed by the director from the professional staff of the facility wherein the person is admitted, to determine whether continued care is necessary. Said committee shall malee written recommendations to the director which shall be filed at the facility and be open to inspection and review by the department and such other persons as the secretary by regulation may permit.
“Where the admission is under the provisions of section 402 (a) (2), the person admitted shall be informed at least each sixty days of the voluntary nature of his status at the facility.” Pa. Stat. Ann., tit. 50, § 4402 (1969) (footnote omitted).
§ 403. “Voluntary commitment; application, examination and acceptance; duration of commitment
“(a) Application for voluntary commitment to a facility for examination, treatment and care may be made by:
“(1) Any person over eighteen years of age.
“(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
“ (b) The application shall be in writing, signed by the applicant in the presence of at least one witness. When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he shall be committed for a period not to exceed thirty days. Successive applications for continued voluntary commitment may be made for successive periods not to exceed thirty days each, so long as care or observation is necessary.
“(c) No person voluntarily committed shall be detained for more than ten days after he has given written notice to the director of his intention or desire to leave the facility, or after the applicant or his successor has given written notice of intention or desire to remove the detained person.
“(d) Each commitment under the provisions of this section shall be reviewed at least annually by a committee, appointed by the director from the professional staff of the facility wherein the person is cared for, to determine whether continued care and commitment is necessary. Said committee shall make written recommendations to the director which shall be filed at the facility and be open to inspection and review by the department and such other persons as the secretary by regulation shall permit.
“Where the commitment is under the provisions of section 403 (a) (2), the person committed shall be informed at least each sixty days of the voluntary nature of his status at the facility.” Pa. Stat. Ann., tit. 50, §4403 (1969) (footnote omitted).
With respect to those voluntarily admitted, the 1966 Act explicitly distinguishes between adults, who are free to withdraw at any time, and those 18 and younger, who may withdraw only with the consent of the admitting parent or guardian. § 402 (c). However, §403 (c), relating to withdrawal after voluntary commitment, does not explicitly make an age distinction, and, on its face, would allow either the person committed or the applicant {i. e., the parent or guardian) to effect the withdrawal. However, neither the court below nor the parties have read the statute as containing this distinction. E. g., Brief for Appellants 25.
§ 201 (2) of the 1966 Act.
Relevant portions of the regulations are set forth in the District Court’s opinion. 402 F. Supp., at 1042-1043, n. 5.
Section 406 is the statute that provides for the hearing procedures to be used in an involuntary civil court commitment. Pa. Stat. Ann., tit. 50, §4406 (1969).
Section 201 provides:
“Any person 14 years of age or over who believes that he is in need of treatment and substantially understands the nature of voluntary commitment may submit himself to examination and treatment under this act, provided that the decision to do so is made voluntarily. A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child. Except as otherwise authorized in this act, all of the provisions of this act governing examination and treatment shall apply.”
Section 206 provides:
“(a) A person in voluntary inpatient treatment may withdraw at any time by giving written notice unless, as stated in section 203, he has agreed in writing at the time of his admission that his release can be delayed following such notice for a period to be specified in the agreement, provided that such period shall not exceed 72 hours.
“(b) If the person is under the age of 14, his parent, legal guardian, or person standing in loco parentis may effect his release. If any responsible party believes that it would be in the best interest of a person under 14 years of age in voluntary treatment to be withdrawn therefrom or afforded treatment constituting a less restrictive alternative, such party may file a petition in the Juvenile Division of the court of common pleas for the county in which the person under 14 years of age resides, requesting a withdrawal from or modification of treatment. The court shall promptly appoint an attorney for such minor person and schedule a hearing to determine what inpatient treatment, if any, is in the minor’s best interest. The hearing shall be held within ten days of receipt of the petition, unless continued upon the request of the attorney for such minor. The hearing shall be conducted in accordance with the rules governing other Juvenile Court proceedings.
“(c) Nothing in this act shall be construed to require a facility to continue inpatient treatment where the director of the facility determines such treatment is not medically indicated. Any dispute between a facility and a county administrator as to the medical necessity for voluntary inpatient treatment of a person shall be decided by the Commissioner of Mental Health or his designate.” (Footnote omitted.)
The following notations are found in various medical records and evaluations in the record: (a) appellee Bartley, “Admission Note: Organic Brain Syndrome with epilepsy” (App. 137a); (b) appellee Gentile, “Schizophrenia” (id., at 145a); appellee Levine, “functioning within the average range of intelligence” (id., at 167a); appellee Weand, “dull normal range of intelligence” (id., at 169a); appellee Mathews, “functioning on a lower average range of intelligence, giving evidence of bright, normal and even superior learning capacities” (id., at 175a).
Given our view that the Act moots the claims of the named appellees, we need not address the issue of whether the promulgation of the new regulations had previously mooted their claims.
Mr. Justice Brennan suggests that none of this is relevant to our adjudication of the case. Post, at 140-142. Implicit in this suggestion is the conclusion that in the present posture of this case certification of a class represented by these named plaintiffs would be acceptable. This approach disregards the prerequisites to class actions contained in Fed. Rule Civ. Proc. 23 (a), see n. 14, infra, and pushed to its logical conclusions would do away with the standing requirement of Art. III. See, e. g., Bailey v. Patterson, 369 U. S. 31, 33 (1962) (parties may not “represent a class of whom they are not a part”); Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 216 (1974) (class representative must “possess the same interest and suffer the same injury” as members of class).
Mr. Justice Brennan, post, at 142, seeks to minimize the extent of the changes in
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:
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songer_typeiss
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CARPENTERS UNION, LOCAL 131; Carpenters Union, Local 1289; Seattle District Council of Carpenters, affiliated with The United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Teamsters, Chauffeurs and Helpers, Local Union No. 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; International Union of Operating Engineers, Local 302, AFL-CIO; and Local 404, International Hod Carriers, Building and Common Laborers’ Union of America, AFL-CIO, Appellants, v. CISCO CONSTRUCTION CO., an Oregon corporation, Appellee.
No. 15593.
United States Court of Appeals Ninth Circuit.
April 13, 1959.
Samuel B. Bassett, Bassett, Davies & Roberts, Seattle, Wash., for Carpenters Union, Local 131, and others.
L. Presley Gill, Seattle, Wash., for appellant Union of Operating Engineers, Local 302, AFL-CIO.
Roy E. Jackson, Seattle, Wash., for appellant Int. Hod Carriers, Building & Common Laborers’ Union of America, Local 440, AFL-CIO.
McDonnell Brown, Portland, Or., Hugo Metzler, Jr., Tacoma, Wash., for appellee.
Before POPE, FEE and CHAMBERS, Circuit Judges.
CHAMBERS, Circuit Judge.
Cisco, the general contractor, mainly makes its case seeking damages for unfair labor practices (committed by five locals and a labor council) from pressure conduct away from two job sites and usually at the places of business of Cisco’s subcontractors. This “secondary” activity supplemented a stationary picket line at the job sites and roving picketing following Cisco’s trucks established by a local of the carpenters’ union.
Cisco had no contract with any union. It had contracts and “arrangements” with a number of subcontractors all of whom except one operated “union” shops. It had two separate United States army contracts at sites in Washington — the Redmond project and the Young’s Lake project.
Generally, it may be said that the away-from-the-job site pressure, if it must be kept uncommingled with the job site picketing, did no substantial damage. The damage which Cisco did suffer would appear to have been caused because the subcontractors’ union men just would not cross the picket lines at the job sites. The trial court expressly found that the first picket line as originally established was not illegal. And we think it implicit in the court’s decision, findings of fact and conclusions of law, that if there had been nothing more than picketing, without the addition of other activity directed at or through the subcontractors, then recovery might have been denied. So it appears that the primary question here is whether we may take a concept of the totality of effort, charging all damage to defendants.
To us, the resolution of the problem mainly depends on how one reads four successive cases of the Supreme Court in the October Term, 1950. The eases are N.L.R.B. v. International Rice Milling Co., Inc., 341 U.S. 665, 71 S.Ct. 961, 95 L.Ed. 1284; N.L.R.B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284; International Brotherhood of Electrical Workers v. N.L.R.B., 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299; and Local 74, United Brotherhood of Carpenters & Joiners of America v. N.L.R.B., 341 U.S. 707, 71 S.Ct. 966, 95 L.Ed. 1309. From our analysis of these cases, we conclude that the defendants may be judged by their total activity during a period of time, provided the illegal activity is not de minimis.
The story of the trouble of the parties here begins on October 28, 1954, when the carpenter defendants (primarily the Seattle District Council) established pickets at the Redmond project. Picketing began a few days later at Young’s Lake. The banners of the pickets read: “Cisco Construction Company unfair to wages and working conditions — District Council of Carpenters A.F.L.” Also, roving pickets in cars followed Cisco’s trucks, mainly back and forth from job site to the Cadman sand and gravel plant. The picketing continued until the jobs were completed late in 1955. All picketing seems to have been in the name of and actively directed by the district council of carpenters. There were minor and sporadic incidents of picketing occurring in the vicinity of two plants of subcontractors.
The work requiring carpenters was principally to be done by the general contractor and their place on the building schedule was much earlier than that of the trades of most of the subcontractors with their iron and metal workers, plumbers, electricians and painters.
As to Cisco, none of the defendants was a “bargaining representative” as defined by the Taft-Hartley Act. The first picketing began at Redmond after a carpenters’ business agent approached the management of Cisco complaining that the employees on the job (some of whom were union carpenters) were not receiving overtime pay, certain transportation pay, and such fringe benefits as payments to the welfare funds of their unions, payments of the type that were ordinarily made by members of the Associated General Contractors of whom Cisco, an Oregon corporation, was one. Cisco was not ready to, and never did, accede to these demands. As a result, principally of the picket lines, Cisco could not get any of the subcontractors (except electrical which was nonunion) with their workers on to the job sites. Most of the subcontractors had signed written contracts with Cisco. Some subcontractors tested the picket line. When their union men turned back, they made no effort to force them to cross. Others did not even attempt to do that which was obviously useless. Gravel, sand, and mixed concrete were under subcontracts with “union” contractors and so were other segments of the job. The subcontractors would have made their own deliveries. As it was, Cisco had to take delivery in trucks it had leased and manned with nonunion drivers. Cisco had to find nonunion carpenters, painters, plumbers, iron and metal workers, machine operators and common labor to do behind the picket lines the work which ordinarily the subcontractors’ union men would have done. There were many months of delay in completing the projects and the cost ran many thousands of dollars beyond the contract prices and Cisco’s estimates. The defendants produced testimony to the effect that the whole loss was due almost entirely to bad management. But Cisco had a version which placed the fault of almost all of the delay on the defendants. Its witnesses said Cisco was hurt by difficulties and delays in getting men and by getting men unskilled for jobs they were undertaking to do. Then there was an unusually high turnover of men due, it said, to necessity to discharge many men who proved unsuitable. The only real means of getting men was by advertisements in newspapers. The trial court was unwilling, on the evidence, to trace all of the losses and delays to the defendants. But believing that there was substantial damage chargeable to the defendants and announcing that it found the damage from defendants’ act to be “not less than $75,-000,” judgment was therefore ordered in that amount.
There was activity of business agents of the defendants on the secondary front with the subcontractors, which was obviously credited by the trial court, that shows a concert of action among the defendants to bring pressure on those who had no dispute with defendants to cause them to cease doing business with it. These acts consisted of one or two, usually two, agents of various defendants either bringing pressure on the workmen of the subcontractors or on the subcontractors directly to stop doing business with the plaintiff. If the agents of defendants had been credited on the stand by the court the agents were doing nothing except “trying to be helpful.” If the trial court had ascribed substantial damage to these secondary or backyard activities, which it must have thought were quite real, then a greater detailing of facts would be appropriate. But as it is, we believe it sufficient to say on the evidence most favorable to Cisco, which view must be taken because of the findings below, these activities away from the job site show the concert of all defendants, that the acts were rather aggressive and calculated to cause others than carpenters to cease doing business with Cisco.
Judgment having been entered against the defendants, they have appealed.
The defendants’ first point is that the case should be remanded for the trial court to make sharper findings. Of course, the purpose of findings is to tell someone else how the court reached its decision. Whether this court was wrong or right in its decision in Irish v. United States, 9 Cir., 225 F.2d 3, (relied on by defendants) there was an uncertainty there among the appellate judges as to how the trial court had reached its decision. Therefore, this court asked the trial court to make additional findings. Here it seems all too apparent that the defendants have been held liable by the trial court not for actual damage from the activities away from the job site but because of difficulties mainly at or behind the picket line. But the court has allowed the plaintiff to totalize defendants’ concerted effort and the bad to infect that which was originally good. We take the view that the trial court has already done what defendants want us to force the trial court to do more explicitly. Taking this view, sending the case back for further findings would be a useless act.
The Rice Milling, the Denver Building, the Electrical Workers and the Carpenters Union cases, cited supra, all arise under Section 8(b)(4) of the Labor-Management Relations Act and began as proceedings before the N.L.R.B. However, Section 303 used here, is the identical twin for use in civil actions for damages where there is secondary activity.
Of course, if the activities of the defendants must be strictly compartmentalized and the activities treated as wholly severable, then this court could be wrong. (Still it would always appear that the purposes of the original picket lines at a very early date acquired the secondary object as something very much in the forefront.) To us it seems that one of the purposes of the Taft-Hartley Act was to permit a union to picket and to strike without interruption so long as it played the game fair and “according to the book.” But the right is unfair if there is wholesale violence on the picket line (there was not here) or if the union vigorously sets out in a concerted effort to keep other subcontractors from doing business with the contractor. Although in Rice Milling, it was held there was no concerted conduct, it would seem the following extracts, 341 U.S. 665 at page 671, 71 S.Ct. 961, at page 964, 95 L.Ed. 1284 are apposite: “ * * * The limitation of the complaint to an incident in the geographically restricted area near the mill is significant, although not necessarily conclusive. * * * A union’s inducements or encouragement reaching individual employees of neutral employers only as they happen to approach the picketed place of business generally are not aimed at concerted, as distinguished from individual conduct by such employees. Generally, therefore, such actions do not come within the proscription of § 8(b)(4), and they do not here.” (Emphasis supplied.)
Perhaps the strongest case for plaintiff is the Denver Building Council. There the principal activity was a nonviolent picket line. The general contractor and most of the subcontractors were “union” companies with no difficulties of their own with the building council. But there was an electrical subcontractor on the job who operated nonunion. The board found the purpose of the pickets was to get the electrical company off of the job by bringing pressure on the general contractor and the other subcontractors. This was held to be a wrongful object. So in Cisco’s troubles it would appear that the initial object of better conditions for carpenters became one of forcing Cisco to do more than to improve the lot of carpenters on the job. But most important the means became too aggressive although they remained nonviolent. The efforts aimed at subcontractors took on a substantial character far beyond incidental. If a picket line at the job can take on an unfair objective, it would seem to follow that one at the job can be spoiled because of away-from-the-job activity.
The Electrical Workers case is quite similar to the Denver case. Nothing could have done the union general contractor any damage except the picket line. While not a damage case, the picket line supplemented by some activity away from the job site was held illegal. So the test is not merely: Is there a picket line ? But: What is the object and what is the whole situation?
Again the Carpenters Union case involved a picket at a subcontractor’s place of business, plus activity of union agents at the job site. There was no picket at the job site. Doubtless the pickets at the place of business, without more, did not violate any provision of the Labor Management Act. But the object of the totality of action resulted in the finding of an unfair labor practice on the part of the union. The statute was not effective until after the picketing began, but the original lawful action was held to have become illegal after the act. Some legitimate objectives did not save the activity from being a violation of law.
In our view, United Brick & Clay Workers v. Deena Artware, 6 Cir., 198 F.2d 637, supports our conclusion that the totality of the effort may be considered and shows that when one of the real objects becomes to reach the contractor through an innocent third party (by concerted action, of course) then he who has suffered may recover. The finding of concert of action in Cisco’s case was not required, but certainly on the evidence was not error.
Defendants specify certain rulings on the admission of evidence. We have carefully gone over the rulings and find no reversible error. In one instance evidence was admitted without objection, but later made the subject of a motion to strike. In another instance it was only cumulative evidence, even if it should have been rejected. Certain exhibits were admitted over objection as not being properly identified. We are convinced the exhibits come well within the shop book rule. See 28 U.S.C.A. § 1732. There was some valid argument that the exhibits shouldn’t be given much weight. But that was up to the trial court.
Objection also is made to the fact that the trial court adopted by reference certain findings made by the National Labor Relations Board in the parallel unfair labor practice “cease and desist” case. Our examination of the findings convinces us that the trial court did not accept the findings as a matter of res judicata but as a shorthand method of relating that it too found the same thing. The key portion attacked reads as follows:
“ * * * [T] he conduct of defendants by their agents directed at plaintiff’s subcontractors and their employees is set forth in detail in the reported National Labor Relations Board decision, Seattle District Council of Carpenters, et al., and Cisco Construction Company, 114 NLRB 27, Case No. 19-CC-72, dated September 9, 1955, which said findings in said decision and report are adopted by this Court herein and by this reference are made a part of these findings of fact; * * * ”
The judgment is affirmed.
. Tho action was brought under Sections 301 and 303 of the Labor Management Relations Act of 1947, 29 U.S.C.A. §§ 185, 187. Section 303 is commonly referred to as one of the secondary boycott provisions. In pertinent part the latter section reads as follows:
“(a) It shall be unlawful * * * for any labor organization to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the conrse of their employment to * * * work on any goods * * * or to perform any services, where an object thereof is
“(1) forcing or requiring any employer * * * to cease using * * * or otherwise dealing in the products of any other producer * * * or to cease doing business with any other person;
“(2) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization lias been certified as the representative of such employees * * *;
“(3) forcing or requiring any employer to recognize or bargain with a particular labor organization * * *;
“(4) forcing or requiring any employer to assign particular work to employees in a particular labor organization
“(b) Whoever shall be injured in his business or property by reason of any violation of subsection (a) of this section may sue therefor in any district court of the United States * * * without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost of the suit.”
The Labor Management Relations Act, commonly known as tho Taft-Hartley Act, was adopted as Public Law 101 of the 80th Congress. See 1947 U.S. Code Congressional Service, p. 135 et seq.
. No minimum amount of damage or diversity of citizenship is required. See United Brick & Clay Workers v. Deena Artware, 6 Cir., 198 F.2d 637, cited infra. However, diversity of citizenship probably existed in this case.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
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sc_issue_4
|
A
|
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.
ADDINGTON v. TEXAS
No. 77-5992.
Argued November 28, 1978
Decided April 30, 1979
Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the case.
Martha L. Boston, by appointment of the Court, 436 U. S. 916, argued the cause for appellant. With her on the brief were Robert Plotkin and Paul R. Friedman.
James F. Hury, Jr., argued the cause and filed a brief for appellee.
Joel I. Klein argued the cause and filed a brief for the American Psychiatric Assn, as amicus curiae urging affirmance.
Ronald M. Soskin filed a brief for the National Center for Law and the Handicapped as amicus curiae urging reversal.
Briefs of amici curiae were filed by William J. Scott, Attorney General, Bernard Carey, Alan Grischke, Special Assistant Attorney General, and Henry A. Hauser for the State of Illinois; and by John Townsend Rich for the National Assn, for Mental Health et al.
Me. Chief Justice Burgee
delivered the opinion of the Court.
The question in this case is what standard of proof is required by the Fourteenth Amendment to the Constitution in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital.
I
On seven occasions between 1969 and 1975, appellant was committed temporarily, Tex. Rev. Civ. Stat. Ann., Arts. 5547-31 to 5547-39 (Vernon 1958 and Supp. 1978-1979), to various Texas state mental hospitals and was committed for indefinite periods, Arts. 5547-40 to 5547-57, to Austin State Hospital on three different occasions. On December 18, 1975, when appellant was arrested on a misdemeanor charge of “assault by threat” against his mother, the county and state mental health authorities therefore were well aware of his history of mental and emotional difficulties.
Appellant’s mother filed a petition for his indefinite commitment in accordance with Texas law. The county psychiatric examiner interviewed appellant while in custody and after the interview issued a Certificate of Medical Examination for Mental Illness. In the certificate, the examiner stated his opinion that appellant was “mentally ill and require [d] hospitalization in a mental hospital.” Art. 5547-42 (Vernon 1958).
Appellant retained counsel and a trial was held before a jury to determine in accord with the statute:
“(1) whether the proposed patient is mentally ill, and if so
“(2) whether he requires hospitalization in a mental hospital for his own welfare and protection or the protection of others, and if so
“(3) whether he is mentally incompetent.” Art. 5547-51 (Vernon 1958).
The trial on these issues extended over six days.
The State offered evidence that appellant suffered from serious delusions, that he often had threatened to injure both of his parents and others, that he had been involved in several assaultive episodes while hospitalized and that he had caused substantial property damage both at his own apartment and at his parents’ home. From these undisputed facts, two psychiatrists, who qualified as experts, expressed opinions that appellant suffered from psychotic schizophrenia and that he had paranoid tendencies. They also expressed medical opinions that appellant was probably dangerous both to himself and to others. They explained that appellant required hospitalization in a closed area to treat his condition because in the past he had refused to attend outpatient treatment programs and had escaped several times from mental hospitals.
Appellant did not contest the factual assertions made by the State’s witnesses; indeed, he conceded that he suffered from a mental illness. What appellant attempted to show was that there was no substantial basis for concluding that he was probably dangerous to himself or others.
The trial judge submitted the case to the jury with the instructions in the form of two questions:
“1. Based on clear, unequivocal and convincing evidence, is Frank O’Neal Addington mentally ill?
“2. Based on clear, unequivocal and convincing evidence, does Frank O’Neal Addington require hospitalization in a mental hospital for his own welfare and protection or the protection of others?”
Appellant objected to these instructions on several grounds, including the trial court’s refusal to employ the “beyond a reasonable doubt” standard of proof.
The jury found that appellant was mentally ill and that he required hospitalization for his own or others’ welfare. The trial court then entered an order committing appellant as a patient to Austin State Hospital for an indefinite period.
Appellant appealed that order to the Texas Court of Civil Appeals, arguing, among other things, that the standards for commitment violated his substantive due process rights and that any standard of proof for commitment less than that required for criminal convictions, i. e., beyond a reasonable doubt, violated his procedural due process rights. The Court of Civil Appeals agreed with appellant on the standard-of-proof issue and reversed the judgment of the trial court. Because of its treatment of the standard of proof, that court did not consider any of the other issues raised in the appeal.
On appeal, the Texas Supreme Court reversed the Court of Civil Appeals’ decision. 557 S. W. 2d 511. In so holding the Supreme Court relied primarily upon its previous decision in State v. Turner, 556 S. W. 2d 563 (1977), cert. denied, 435 U. S. 929 (1978).
In Turner, the Texas Supreme Court held that a “preponderance of the evidence” standard of proof in a civil commitment proceeding satisfied due process. The court declined to adopt the criminal law standard of “beyond a reasonable doubt” primarily because it questioned whether the State could prove by that exacting standard that a particular person would or would not be dangerous in the future. It also distinguished a civil commitment from a criminal conviction by noting that under Texas law the mentally ill patient has the right to treatment, periodic review of his condition, and immediate release when no longer deemed to be a danger to himself or others. Finally, the Turner court rejected the “clear and convincing” evidence standard because under Texas rules of procedure juries could be instructed only under a beyond-a-reasonable-doubt or a preponderance standard of proof.
Reaffirming Turner, the Texas Supreme Court in this case concluded that the trial court’s instruction to the jury, although not in conformity with the legal requirements, had benefited appellant, and hence the error was harmless. Accordingly, the court reinstated the judgment of the trial court.
We noted probable jurisdiction. 435 U. S. 967. After oral argument it became clear that no challenge to the constitutionality of any Texas statute was presented. Under 28 U. S. C. § 1257 (2) no appeal is authorized; accordingly, construing the papers filed as a petition for a writ of certiorari, we now grant the petition.
II
The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to “instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” In re Winship, 397 U. S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.
The intermediate standard, which usually employs some combination of the words "clear,” "cogent,” “unequivocal” and “convincing,” is less commonly used, but nonetheless “is no stranger to the civil law.” Woodby v. INS, 385 U. S. 276, 285 (1966). See also C. McCormick, Evidence § 320 (1954); 9 J. Wigmore, Evidence § 2498 (3d ed. 1940). One typical use of the standard is in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof. Similarly, this Court has used the “clear, unequivocal and convincing” standard of proof to protect particularly important individual interests in various civil cases. See, e. g.; Woodby v. INS, supra, at 285 (deportation); Chaunt v. United States, 364 U. S. 350, 353 (1960) (denaturalization) ; Schneiderman v. United States, 320 U. S. 118, 125, 159 (1943) (denaturalization).
Candor suggests that, to a degree, efforts to analyze what lay jurors understand concerning the differences among these three tests or the nuances of a judge’s instructions on the law may well be largely an academic exercise; there are no directly relevant empirical studies. Indeed, the ultimate truth as to how the standards of proof affect decisionmaking may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a “standard of proof is more than an empty semantic exercise.” Tippett v. Maryland, 436 F. 2d 1153, 1166 (CA4 1971) (Sobeloff, J., concurring in part and dissenting in part), cert, dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U. S. 355 (1972). In cases involving individual rights, whether criminal or civil, “[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.” 436 F. 2d, at 1166.
Ill
In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976); Speiser v. Randall, 357 U. S. 513, 525-526 (1958).
A
This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U. S. 715 (1972); Humphrey v. Cady, 405 U. S. 504 (1972); In re Gault, 387 U. S. 1 (1967); Specht v. Patterson, 386 U. S. 605 (1967). Moreover, it is indisputable that involuntary commitment to a mental hospital after a finding of probable dangerousness to self or others can engender adverse social consequences to the individual. Whether we label this phenomena “stigma” or choose to call it something else is less important than that we recognize that it can occur and that it can have a very significant impact on the individual.
The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. Under the Texas Mental Health Code, however, the State has no interest in confining individuals involuntarily if they are not mentally ill or if they do not pose some danger to themselves or others. Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings.
The expanding concern of society with problems of mental disorders is reflected in the fact that in recent years many states have enacted statutes designed to protect the rights of the mentally ill. However, only one state by statute permits involuntary commitment by a mere preponderance of the evidence, Miss. Code Ann. § 41-21-75 (1978 Supp.), and Texas is the only state where a court has concluded that the preponderance-of-the-evidence standard satisfies due process. We attribute this not to any lack of concern in those states, but rather to a belief that the varying standards tend to produce comparable results. As we noted earlier, however, standards of proof are important for their symbolic meaning as well as for their practical effect.
At one time or another every person exhibits some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable. Obviously, such behavior is no basis for compelled treatment and surely none for confinement. However, there is the possible risk that a factfinder might decide to commit an individual based solely on a few isolated instances of unusual conduct. Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior. Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.
The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.
B
Appellant urges the Court to hold that due process requires use of the criminal law’s standard of proof — “beyond a reasonable doubt.” He argues that the rationale of the Winship holding that the criminal law standard of proof was required in a delinquency proceeding applies with equal force to a civil commitment proceeding.
In Winship, against the background of a gradual assimilation of juvenile proceedings into traditional criminal prosecutions, we declined to allow the state’s “civil labels and good intentions” to “obviate the need for criminal due process safeguards in juvenile courts.” 397 U. S., at 365-366. The Court saw no controlling difference in loss of liberty and stigma between a conviction for an adult and a delinquency adjudication for a juvenile. Winship recognized that the basic issue— whether the individual in fact committed a criminal act — was the same in both proceedings. There being no meaningful distinctions between the two proceedings, we required the state to prove the juvenile’s act and intent beyond a reasonable doubt.
There are significant reasons why different standards of proof are called for in civil commitment proceedings as opposed to criminal prosecutions. In a civil commitment state power is not exercised in a punitive sense. Unlike the delinquency proceeding in Winship, a civil commitment proceeding can in no sense be equated to a criminal prosecution. Cf. Woodby v. INS, 385 U. S., at 284-285.
In addition, the “beyond a reasonable doubt” standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the “moral force of the criminal law,” In re Winship, 397 U. S., at 364, and we should hesitate to apply it too broadly or casually in noncriminal cases. Cf. ibid.
The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free. Patterson v. New York, 432 U. S. 197, 208 (1977). The full force of that idea does not apply to a civil commitment. It may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction, 5 J. Wigmore, Evidence § 1400 (Chadboum rev. 1974). However, even though an erroneous confinement should be avoided in the first instance, the layers of professional review and observation of the patient’s condition, and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected. Moreover, it is not true that the release of a genuinely mentally ill person is no worse for the individual than the failure to convict the guilty. One who is suffering from a debilitating mental illness and in need of treatment is neither wholly at liberty nor free of stigma. See Chodoff, The Case for Involuntary Hospitalization of the Mentally Ill, 133 Am. J. Psychiatry 496, 498 (1976); Schwartz, Myers, & Astrachan, Psychiatric Labeling and the Rehabilitation of the Mental Patient, 31 Arch. Gen. Psychiatry 329, 334 (1974). It cannot be said, therefore, that it is much better for a mentally ill person to “go free” than for a mentally normal person to be committed.
Finally, the initial inquiry in a civil commitment proceeding is very different from the central issue in either a delinquency proceeding or a criminal prosecution. In the latter cases the basic issue is a straightforward factual question — did the accused commit the act alleged? There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists. Given the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous. See O’Connor v. Donaldson, 422 U. S. 563, 584 (1975) (concurring opinion); Blocker v. United States, 110 U. S. App. D. C. 41, 48-49, 288 F. 2d 853, 860-861 (1961) (opinion concurring in result). See also Tippett v. Maryland, 436 F. 2d, at 1165 (Sobeloff, J., concurring in part and dissenting in part); Note, Civil Commitment of the Mentally Ill: Theories and Procedures, 79 Harv. L. Rev. 1288, 1291 (1966); Note, Due Process and the Development of “Criminal” Safeguards in Civil Commitment Adjudications, 42 Ford. L. Rev. 611, 624 (1974).
The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for “factfinding” is a “reasonable medical certainty.” If a trained psychiatrist has difficulty with the categorical “beyond a reasonable doubt” standard, the untrained lay juror — or indeed even a trained judge — who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care. See ibid. Such “freedom” for a mentally ill person would be purchased at a high price.
That practical considerations may limit a constitutionally based burden of proof is demonstrated by the reasonable-doubt standard, which is a compromise between what is possible to prove and what protects the rights of the individual. If the state was required to guarantee error-free convictions, it would be required to prove guilt beyond all doubt. However, “[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Patterson v. New York, supra, at 208. Nor should the state be required to employ a standard of proof that may completely undercut its efforts to further the legitimate interests of both the state and the patient that are served by civil commitments.
That some states have chosen — either legislatively or judicially — to adopt the criminal law standard gives no assurance that the more stringent standard of proof is needed or is even adaptable to the needs of all states. The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum. See Monahan & Wexler, A Definite Maybe: Proof and Probability in Civil Commitment, 2 Law & Human Behavior 37, 41-42 (1978); Share, The Standard of Proof in Involuntary Civil Commitment Proceedings, 1977 Detroit College L. Rev. 209, 210. We conclude that it is unnecessary to require states to apply the strict, criminal standard.
C
Having concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable-doubt standard is not required, we turn to a middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state. We note that 20 states, most by statute, employ the standard of “clear and convincing” evidence; 3 states use “clear, cogent, and convincing” evidence; and 2 states require “clear, unequivocal and convincing” evidence.
In Woodby v. INS, 385 U. S. 276 (1966), dealing with deportation, and Schneiderman v. United States, 320 U. S., at 125, 159, dealing with denaturalization, the Court held that “clear, unequivocal, and convincing” evidence was the appropriate standard of proof. The term “unequivocal,” taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases. The issues in Schneiderman and Woodby were basically factual and therefore susceptible of objective proof and the consequences to the individual were unusually drastic — loss of citizenship and expulsion from the United States.
We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term “unequivocal” is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the factfinder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases.
We noted earlier that the trial court employed the standard of “clear, unequivocal and convincing” evidence in appellant’s commitment hearing before a jury. That instruction was constitutionally adequate. However, determination of the precise burden equal to or greater than the “clear and convincing” standard which we hold is required to meet due process guarantees is a matter of state law which we leave to the Texas Supreme Court. Accordingly, we remand the case for further proceedings not inconsistent with this opinion.
Vacated and remanded.
Mr. Justice Powell took no part in the consideration or decision of this case.
See Kulko v. California Superior Court, 436 U. S. 84 (1978); Hanson v. Denckla, 357 U. S. 235 (1958); May v. Anderson, 345 U. S. 528 (1953). As in those cases, we continue to refer to the parties as appellant and appellee. See Kulko v. California Superior Court, supra, at 90 n. 4.
Compare Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B. U. L. Rev. 507 (1975) (reasonable doubt represented a less strict standard than previous common-law rules), with May, Some Rules of Evidence, 10 Am. L. Rev. 642 (1875) (reasonable doubt constituted a stricter rule than previous ones). See generally Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L. J. 1299 (1977).
There have been some efforts to evaluate the effect of varying standards of proof on jury factfinding, see, e. g., L. S. E. Jury Project, Juries and the Rules of Evidence, 1973 Crim. L. Rev. 208, but we have found no study comparing all three standards of proof to determine how juries, real or mock, apply them.
The State of Texas confines only for the purpose of providing care designed to treat the individual. As the Texas Supreme Court said in State v. Turner, 556 S. W. 2d 563, 566 (1977):
“The involuntary mental patient is entitled to treatment, to periodic and recurrent review of his mental condition, and to release at such time as he no longer presents a danger to himself or others.”
Haw. Rev. Stat. § 334-60 (b) (4) (I) (Supp. 1978); Idaho Code § 66-329 (i) (Supp. 1978); Kan. Stat. Ann. §59-2917 (1976); Mont. Rev. Codes Ann. § 38-1305 (7) (Supp. 1977); Okla. Stat., Tit. 43A, § 54.1 (C) (Supp. 1978); Ore. Rev. Stat. §426.130 (1977); Utah Code Ann. §64r-7-36 (6) (1953); Wis. Stat. § 51.20 (14) (e) (Supp. 1978-1979); Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271, 372 N. E. 2d 242 (1978); Proctor v. Butler, 117 N. H. 927, 380 A. 2d 673 (1977); In re Hodges, 325 A. 2d 605 (D. C. 1974); Lausche v. Commissioner of Public Welfare, 302 Minn. 65, 225 N. W. 2d 366 (1974), cert. denied, 420 U. S. 993 (1975). See also In re J. W., 44 N. J. Super. 216, 130 A. 2d 64 (App. Div.), cert. denied, 24 N. J. 465, 132 A. 2d 558 (1957); Denton v. Commonwealth, 383 S. W. 2d 681 (Ky. App. 1964) (dicta).
Ariz. Rev. Stat. Ann. § 36-540 (1974); Colo. Rev. Stat. § 27-10-111 (1) (Supp. 1976); Conn. Gen. Stat. § 17-178 (c) (1979); Del. Code Ann., Tit. 16, §5010 (2) (Supp. 1978); Ga. Code §88-501 (u) (1978); Ill. Rev. Stat., ch. 911/2, §3-808 (Supp. 1977); Iowa Code §229.12 (1979); La. Rev. Stat. Ann. §28:55E (West Supp. 1979); Me. Rev. Stat. Ann., Tit. 34, § 2334 (5) (A) (1) (1978); Mich. Stat. Ann. §14.800 (465) (1976); Neb. Rev. Stat. §83-1035 (1976); N. M. Stat. Ann. §43-1-11C (1978); N. D. Cent. Code § 25-03.1-19 (1978); Ohio Rev. Code Ann. § 5122.15 (B) (Supp. 1978); Pa. Stat. Ann., Tit. 50, § 7304 (f) (Purdon Supp. 1978-1979); S. C. Code § 44-17-580 (Supp. 1978); S. D. Comp. Laws Ann. § 27A-9-18 (1977); Vt. Stat. Ann., Tit. 18, §7616 (b) (Supp. 1978); Md. Dept, of Health & Mental Hygiene Reg. 10.21.03G (1973); In re Beverly, 342 So. 2d 481 (Fla. 1977).
N. C. Gen. Stat. § 122-58.7 (i) (Supp. 1977); Wash. Rev. Code § 71.05.310 (1976); State ex rel. Hawks v. Lasaro, 157 W. Va. 417, 202 S. E. 2d 109 (1974).
Ala. Code § 22-52-10 (a) (Supp. 1978); Tenn. Code Ann. § 33-604 (d) (Supp. 1978).
See Webster's Third New International Dictionary 2494 (1961).
We noted earlier the court’s holding on harmless error. See supra, at 422.
Question: What is the issue of the decision?
A. due process: miscellaneous (cf. loyalty oath), the residual code
B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights)
C. due process: hearing, government employees
D. due process: prisoners' rights and defendants' rights
E. due process: impartial decision maker
F. due process: jurisdiction (jurisdiction over non-resident litigants)
G. due process: takings clause, or other non-constitutional governmental taking of property
Answer:
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songer_respond2_1_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
ARROW DRILLING COMPANY, Appellant, v. Richard T. BROOKS and Bituminous Casualty Corporation, Appellee.
No. 19299.
United States Court of Appeals Fifth Circuit.
May 25, 1962.
Otto Atchley, Victor Hlavinka, Atchley, Russell, Hutchinson & Waldrop, Texarkana, Tex., for appellant.
Franklin Jones, Sr., Marshall, Tex., L. L. Lockard, Shreveport, La., Larry Oubre, Dallas, Tex., Franklin Jones, Jr., Marshall, Tex. (Jones, Brian & Jones, Marshall, Tex., of counsel), for appellees.
Before TUTTLE, Chief Judge, and HUTCHESON and WISDOM, Circuit Judges.
PER CURIAM.
This is an appeal from a verdict and judgment for plaintiff in a suit for personal injuries received in Texas by appellee, as the employee of Griggs Casing Crews Co., Inc., a sub-contractor of appellant, the drilling contractor.
The grounds of negligence alleged were: (1) furnishing unsafe equipment used in the work performed by the Griggs crew; (2) employing a method of work which was unsafe; and (3) arranging the derrick and its appurtenances so as to cause a condition of danger and hazard.
In addition to these specific allegations of negligence, there was a general claim of negligence based upon res ipsa loquitur.
The defendant denied generally and pleaded contributory negligence and voluntary assumption of risk. In addition to these defenses, the defendant relied below and relies here upon two affirmative defenses styled First Defense-A and First Defense-B. These defenses in effect were a plea of res judicata based upon a judgment for compensation obtained by appellee in Louisiana and under its laws against Griggs Casing Crews, Inc. and its compensation carrier in Louisiana, and the claim that under Louisiana Workmen’s Compensation laws it was a statutory employer of appellee, liable solidarily with Griggs Casing Crews, Inc. for injuries suffered by plaintiff; and the compensation judgment was a bar to this suit against defendant.
The district judge, on a full hearing, struck these defenses on the ground that there was no final judgment in the Louisiana case. The cause was submitted to the jury, a verdict for plaintiff resulting; and defendant is here attacking the submission of the cause to the jury and the verdict as unsupported by the evidence, and, in addition, insisting: that defendant’s defenses A and B should have been sustained, and a verdict for defendant should have been directed on the defense of voluntary assumption of risk.
Appellee vigorously contests defendant’s claim on its special defenses A & B on the ground (1) that the district judge correctly held that the judgment in Louisiana disposing of plaintiff’s workmen’s compensation insurance was not shown to be a final judgment; and (2) that in no event could the Louisiana judgment for workmen’s compensation insurance deprive appellee-plaintiff of his right to bring a third party action for damages in Texas under the express authority of its compensation act. Appellee further insists that there was ample testimony to sustain the jury’s finding in favor of plaintiff-appellee on the assumed risk issue and the defendant’s motion for directed verdict was therefore properly denied.
The special defenses aside, we think it clear that the case was one for a jury verdict and that the defendant’s insistence that a verdict for defendant should have been directed on the ground that plaintiff, as matter of law, assumed the risk of injury is without sound basis. The issue was submitted to the jury on evidence which made it a jury issue, and the jury found for plaintiff.
As to the special defenses, based on the compensation award in Louisiana, we agree with appellee and the district judge that when the plea of estoppel and res judicata was disposed of by the judge, there was no final judgment in the cause, and the district judge was, therefore, right in rejecting the special defenses. We, therefore, find it unnecessary to inquire into and determine whether, as urged by defendant, if there had been a final judgment in the compensation suit, it would have been a bar to the Texas action.
The judgment is
Affirmed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
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sc_certreason
|
L
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA v. DANIEL
No. 77-753.
Argued October 31, 1978
Decided January 16, 1979
Powell, J., delivered the opinion of the Court, in which Brennan, Stewart, White, Marshall, BlackmüN, and RehNquist, JJ., joined, and in all but the last paragraph of Part III-A of which, Burger, C. J., joined. Burger, C. J., filed a concurring opinion, post, p. 570. Stevens, J., took no part in the consideration or decision of the cases.
Sidney Dickstein argued the cause for petitioner in No. 77-753. With him on the briefs were George Kaujmann and Bernard Weisberg. Sherman Carmell argued the cause and filed briefs for petitioners in No. 77-754.
Lawrence Walner and Peter J. Barack argued'the cause and filed a brief for respondent in both cases.
Jacob H. Stillman argued the cause for the Securities and Exchange Commission as amicus curiae. With him on the brief were Harvey L. Pitt and Paul Gonson.
Together with No. 77-754, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. Daniel, also on certiorari to the same court.
Briefs of amid curiae urging reversal were filed by William H. Smith, D. Bret Carlson, and Stephen R. Kroll for the American Bankers Assn.; by Stanley T. Kaleczyc and Robert W. Blanchette for the Chamber of Commerce of the United States; by Peter G. Nash and George J. Pantos for the ERISA Industry Committee; and by Paul S. Berger, Melvin Spaeth, and Gerald M. Feder for the National Coordinating Committee for Multiemployer Plans.
Briefs of amici curiae urging affirmance were filed by Bruce K. Miller for the Gray Panthers; and by Arthur L. Fox II for PROD et al.
Lawrence J. Lotto filed a brief for the American Academy of Actuaries as amicus curiae.
Mr. Justice Powell
delivered the ¡opinion of the Court.
This case presents the question whether a noncontributory, compulsory pension plan constitutes a “security” within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934 (Securities Acts).
I
In 1954 multiemployer collective bargaining between Local 705 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America and Chicago trucking firms produced a pension plan for employees represented by the Local. The plan was compulsory and noncontributory. Employees had no choice as to participation in the plan, and did not have the option of demanding that the employer’s contribution be paid directly to them as a substitute for pension eligibility. The employees paid nothing to the plan themselves.
The collective-bargaining agreement initially set employer contributions to the Pension Trust Fund at $2 a week for each man-week of covered employment. The Board of Trustees of the Fund, a body composed of an equal number of employer and union representatives, was given sole authority to set the level of benefits but had no control over the amount of required employer contributions. Initially, eligible employees received $75 a month in benefits upon retirement. Subsequent collective-bargaining agreements called for greater employer contributions, which in turn led to higher benefit payments for retirees. At the time respondent brought suit, employers contributed $21.50 per employee man-week and pension payments ranged from $425 to $525 a month depending on age at retirement. In order to receive a pension an employee was required to have 20 years of continuous service, including time worked before the start of the plan.
The meaning of “continuous service” is at the center of this dispute. Respondent began working as a truckdriver in the Chicago area in 1950, and joined Local 705 the following year. When the plan first went into effect, respondent automatically received 5 years’ credit toward the 20-year service requirement because of his earlier work experience. He retired in 1973 and applied to the plan’s administrator for a pension. The administrator determined that respondent was ineligible because of a break in service between December 1960 and July 1961. Respondent appealed the decision to the trustees, who affirmed. Respondent then asked the trustees to waive the continuous-service rule as it applied to him. After the trustees refused to waive the rule, respondent brought suit in federal court against the International Union (Teamsters), Local 705 (Local), and Louis Peick, a trustee of the Fund.
Respondent’s complaint alleged that the Teamsters, the Local, and Peick misrepresented and omitted to state material facts with respect to the value of a covered employee’s interest in the pension plan. Count I of the complaint charged that these misstatements and omissions constituted a fraud in connection with the sale of a security in violation of § 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j (b), and the Securities and Exchange Commission’s Rule 10b-5, 17 CFR § 240.10b-5 (1978). Count II charged that the same conduct amounted to a violation of § 17 (a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U, S. C. § 77q. Other counts alleged violations of various labor-law and common-law duties. Respondent sought to proceed on behalf of all prospective beneficiaries of Teamsters pension plans and against all Teamsters pension funds.
The petitioners moved to dismiss the first two counts of the complaint on the ground that respondent had no cause of action under the Securities Acts. The District Court denied the motion. 410 F. Supp. 541 (ND Ill. 1976). It held that respondent’s interest in the Pension Fund constituted a security within the meaning of § 2 (1) of the Securities Act, 15 U. S. C. § 77b (1), and § 3 (a) (10) of the Securities Exchange Act, 15 U. S. C. § 78c (a) (10), because the plan created an “investment contract” as that term had been interpreted in SEC v. W. J. Howey Co., 328 U. S. 293 (1946). It also determined that there had been a “sale” of this interest to respondent within the meaning of § 2 (3) of the Securities Act, as amended, 15 U. S. C. § 77b (3), and § 3 (a) (14) of the Securities Exchange Act, 15 U. S. C. § 78c (a) (14). It believed respondent voluntarily gave value for his interest in the plan, because he had voted on collective-bargaining agreements that chose employer contributions to the Fund instead of other wages or benefits.
The order denying the motion to dismiss was certified for appeal pursuant to 28 IT. S. C. § 1292 (b), and the Court of Appeals for the Seventh Circuit affirmed. 561 F. 2d 1223 (1977). Relying on its perception of the economic realities of pension plans and various actions of Congress and the SEC with respect to such plans, the court ruled that respondent’s interest in the Pension Fund was a “security.” According to the court, a “sale” took place either when respondent ratified a collective-bargaining agreement embodying the Fund or when he accepted or retained covered employment instead of seeking other work. The court did not believe the subsequent enactment of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, 29 U. S. C. § 1001 et seg., affected the application of the Securities Acts to pension plans, as the requirements and purposes of ERISA were perceived to be different from those of the Securities Acts. We granted certiorari, 434 U. S. 1061 (1978), and now reverse.
II
“The starting point in every case involving construction of a statute is the language itself.” Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring); see Ernst & Ernst v. Hochfelder, 425 U. S. 185, 197, 199, and n. 19 (1976). In spite of the substantial use of employee pension plans at the time they were enacted, neither § 2 (1) of the Securities Act nor § 3 (a) (10) of the Securities Exchange Act, which define the term “security” in considerable detail and with numerous examples, refers to pension plans of any type. Acknowledging this omission in the statutes, respondent contends that an employee’s interest in a pension plan is an “investment contract,” an instrument which is included in the statutory definitions of a security.
To determine whether a particular financial relationship constitutes an investment contract, “[t]he test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” Howey, 328 U. S., at 301. This test is to be applied in light of “the substance — the economic realities of the transaction— rather than the names that may have been employed by the parties.” United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 851-852 (1975). Accord, Tcherepnin v. Knight, 389 U. S. 332, 336 (1967); Howey, supra, at 298. Cf. SEC v. Variable Annuity Life Ins. Co., 359 U. S. 65, 80 (1969) (Brennan, J., concurring) (“[0]ne must apply a test in terms of the purposes of the Federal Acts...”). Looking separately at each element of the Howey test, it is apparent that an employee’s participation in a noncontributory, compulsory pension plan such as the Teamsters’ does not comport with the commonly held understanding of an investment contract.
A. Investment of Money
An employee who participates in a noncontributory, compulsory pension plan by definition makes no payment into the pension fund. He only accepts employment, one of the conditions of which is eligibility for a possible benefit on retirement. Respondent contends, however, that he has “invested” in the Pension Fund by permitting part of his compensation from his employer to take the form of a deferred pension benefit. By allowing his employer to pay money into the Fund, and by contributing his labor to his employer in return for these payments, respondent asserts he has made the kind of investment which the Securities Acts were intended to regulate.
In order to determine whether respondent invested in the Fund by accepting and remaining in covered employment, it is necessary to look at the entire transaction through which he obtained a chance to receive pension benefits. In every decision of this Court recognizing the presence of a “security” under the Securities Acts, the person found to have been an investor chose to give up a specific consideration in return for a separable financial interest with the characteristics of a security. See Tcherepnin, supra (money paid for bank capital stock); SEC v. United Benefit Life Ins. Co., 387 U. S. 202 (1967) (portion of premium paid for variable component of mixed variable- and fixed-annuity contract); Variable Annuity Life Ins. Co., supra (premium paid for variable-annuity contract) ; Howey, supra (money paid for purchase, maintenance, and harvesting of orange grove); SEC v. C. M. Joiner Leasing Corp., 320 U. S. 344 (1943) (money paid for land and oil exploration). Even in those cases where the interest acquired had intermingled security and nonsecurity aspects, the interest obtained had “to a very substantial degree elements of investment contracts... Variable Annuity Life Ins. Co., supra, at 91 (Brennan, J., concurring). In every case the purchaser gave up some tangible and definable consideration in return for an interest that had substantially the characteristics of a security.
In a pension plan such as this one, by contrast, the purported investment is a relatively insignificant part of an employee’s total and indivisible compensation package. No portion of an employee’s compensation other than the potential pension benefits has any of the characteristics of a security, yet these noninvestment interests cannot be segregated from the possible pension benefits. Only in the most abstract sense may it be said that an employee “exchanges” some portion of his labor in return for these possible benefits. He surrenders his labor as a whole, and in return receives a compensation package that is substantially devoid of aspects resembling a security. His decision to accept and retain covered employment may have only an attenuated relationship, if any, to perceived investment possibilities of a future pension. Looking at the economic realities, it seems clear that an employee is selling his labor primarily to obtain a livelihood, not making an investment.
Respondent also argues that employer contributions on his behalf constituted his investment into the Fund. But it is inaccurate to describe these payments as having been “on behalf” of any employee. The trust agreement used employee man-weeks as a convenient way to measure an employer’s overall obligation to the Fund, not as a means of measuring the employer’s obligation to any particular employee. Indeed, there was no fixed relationship between contributions to the Fund and an employee’s potential benefits. A pension plan with “defined benefits,” such as the Local’s, does not tie a qualifying employee’s benefits to the time he has worked. See n. 3, supra. One who has engaged in covered employment for 20 years will receive the same benefits as a person who has worked for 40, even though the latter has worked twice as long and induced a substantially larger employer contribution. Again, it ignores the economic realities to equate employer contributions with an investment by the employee.
B. Expectation of Profits From a Common Enterprise
As we observed in Forman, the “touchstone” of the Howey test “is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” 421 U. S., at 852. The Court of Appeals believed that Daniel’s expectation of profit derived from the Fund’s successful management and investment of its assets. To the extent pension benefits exceeded employer contributions and depended on earnings from the assets, it was thought they contained a profit element. The Fund’s trustees provided the managerial efforts which produced this profit element.
As in other parts of its analysis, the court below found an expectation of profit in the pension plan only by focusing on one of its less important aspects to the exclusion of its more significant elements. It is true that the Fund, like other holders of large assets, depends to some extent on earnings from its assets. In the case of a pension fund, however, a far larger portion of its income comes from employer contributions, a source in no way dependent on the efforts of the Fund’s managers. The Local 705 Fund, for example, earned a total of $31 million through investment of its assets between February 1955 and January 1977. During this same period employer contributions totaled $153 million. Not only does the greater share of a pension plan’s income ordinarily come from new contributions, but unlike most entrepreneurs who manage other people’s money, a plan usually can count on increased employer contributions, over which the plan itself has no control, to cover shortfalls in earnings.
The importance of asset earnings in relation to the other benefits received from employment is diminished further by the fact that where a plan has substantial preconditions to vesting, the principal barrier to an individual employee’s realization of pension benefits is not the financial health of the fund. Rather, it is his own ability to meet the fund’s eligibility requirements. Thus, even if it were proper to describe the benefits as a “profit” returned on some hypothetical investment by the employee, this profit would depend primarily on the employee’s efforts to meet the vesting requirements, rather than the fund’s investment success. When viewed in light of the total compensation package an employee must receive in order to be eligible for pension benefits, it becomes clear that the possibility of participating in a plan’s asset earnings “is far too speculative and insubstantial to bring the entire transaction within the Securities Acts,” Forman, 421 U. S., at 856.
III
The court below believed that its construction of the term “security” was compelled not only by the perceived resemblance of a pension plan to an investment contract but also by various actions of Congress and the SEC with regard to the Securities Acts. In reaching this conclusion, the court gave great weight to the SEC’s explanation of these events, an explanation which for the most part the SEC repeats here. Our own review of the record leads us to believe that this reliance on the SEC’s interpretation of these legislative and administrative actions was not justified.
A. Actions of Congress
The SEC in its amicus curiae brief refers to several actions of Congress said to evidence an understanding that pension plans are securities. A close look at each instance, however, reveals only that Congress might have believed certain kinds of pension plans, radically different from the one at issue here, came within the coverage of the Securities Acts. There is no evidence that Congress at any time thought noncontributory plans similar to the one before us were subject to federal regulation as securities.
The first action cited was the rejection by Congress in 1934 of an amendment to the Securities Act that would have exempted employee stock investment and stock option plans from the Act’s registration requirements. The amendment passed the Senate but was eliminated in conference. The legislative history of the defeated proposal indicates it was intended to cover plans under which employees contributed their own funds to a segregated investment account on which a return was realized. See H. R.. Conf. Rep. No. 1838, 73d Cong., 2d Sess., 41 (1934); Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., pt. 1, pp. 895-896 (1941). In rejecting the amendment, Congress revealed a concern that certain interests having the characteristics of a security not be excluded from Securities Act protection simply because investors realized their return in the form of retirement benefits. At no time, however, did Congress indicate that pension benefits in and of themselves gave a transaction the characteristics of a security.
The SEC also relies on a 1970 amendment of the Securities Act which extended § 3’s exemption from registration to include “any interest or participation in a single or collective trust fund maintained by a bank... which interest or participation is issued in connection with... a stock bonus, pension, or profit-sharing plan which meets the requirements for qualification under section 401 of title 26,...” § 3 (a) (2) of the Securities Act, as amended, 84 Stat. 1434, 1498, 15 U. S. C. § 77c (a) (2). It argues that in creating a registration exemption, the amendment manifested Congress’ understanding that the interests covered by the amendment otherwise were subject to the Securities Acts. It interprets “interest or participation in a single... trust fund... issued in connection with... a stock bonus, pension, or profit-sharing plan” as referring to a prospective beneficiary’s interest in a pension fund. But this construction of the 1970 amendment ignores that measure’s central purpose, which was to relieve banks and insurance companies of certain registra-tration obligations. The amendment recognized only that a pension plan had “an interest or participation” in the fund in which its assets were held, not that prospective beneficiaries of a plan had any interest in either the plan’s bank-maintained assets or the plan itself.
B. SEC Interpretation
The court below believed, and it now is argued to us, that almost from its inception the SEC has regarded pension plans as falling within the scope of the Securities Acts. We are asked to defer to what is seen as a longstanding interpretation of these statutes by the agency responsible for their administration. But there are limits, grounded in the language, purpose, and history of the particular statute, on how far an agency properly may go in its interpretative role. Although these limits are not always easy to discern, it is clear here that the SEC's position is neither longstanding nor even arguably within the outer limits of its authority to interpret these Acts.
As we have demonstrated above, the type of pension plan at issue in this case bears no resemblance to the kind of financial interests the Securities Acts were designed to regulate. Further, the SEC’s present position is flatly contradicted by its past actions. Until the instant litigation arose, the public record reveals no evidence that the SEC had ever considered the Securities Acts to be applicable to noncontributory pension plans. In 1941, the SEC first articulated the position that voluntary, contributory plans had investment characteristics that rendered them “securities” under the Acts. At the same time, however, the SEC recognized that noncontributory plans were not covered by the Securities Acts because such plans did not involve a “sale” within the meaning of the statutes. Opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed. Sec. L. Serv. ¶ 75,195 (1941) ; Hearings before the House Committee on Interstate and Foreign Commerce on Proposed Amendments to the Securities Act of 1933 and to the Securities Exchange Act of 1934, 77th Cong., 1st Sess., 895, 896-897 (1941) (testimony of Commissioner Purcell).
In an attempt to reconcile these interpretations of the Securities Acts with its present stand, the SEC now augments its past position with two additional propositions. First, it is argued, noncontributory plans are “securities” even where a “sale” is not involved. Second, the previous concession that noncontributory plans do not involve a “sale” was meant to apply only to the registration and reporting requirements of the Securities Acts; for purposes of the antifraud provisions, a “sale” is involved. As for the first proposition, we observe that none of the SEC opinions, reports, or testimony cited to us address the question. As for the second, the record is unambiguously to the contrary. Both in its 1941 statements and repeatedly since then, the SEC has declared that its “no sale” position applied to the Securities Acts as a whole. See opinions of Assistant General Counsel, [1941-1944 Transfer Binder] CCH Fed. Sec. L. Serv. ¶ 75,195, p. 75,387 (1941); Hearings before the House Committee on Interstate and Foreign Commerce, supra, at 888, 896-897; Institutional Investor Study Report of the Securities and Exchange Commission, H. R. Doc. No. 92-64, pt. 3, p. 996 (1971) (“[T]he Securities Act does not apply...”); Hearings before the Subcommittee on Welfare and Pension Funds of the Senate Committee on Labor and Public Welfare on Welfare and Pension Plans Investigation, 84th Cong., 1st Sess., pt. 3, pp. 943-946 (1955). Congress acted on this understanding when it proceeded to develop the legislation that became ERISA. See, e. g., Interim Report of Activities of the Private Welfare and Pension Plan Study, 1971, S. Rep. No. 92-634, p. 96 (1972) (“Pension and profit-sharing plans are exempt from coverage under the Securities Act of 1933... unless the plan is a voluntary contributory pension plan and invests in the securities of the employer company an amount greater than that paid into the plan by the employer”) (emphasis added). As far as we are aware, at no time before this case arose did the SEC intimate that the antifraud provisions of the Securities Acts nevertheless applied to noncontributory pension plans.
IV
If any further evidence were needed to demonstrate that pension plans of the type involved are not subject to the Securities Acts, the enactment of ERISA in 1974, 88 Stat., 829, would put the matter to rest. Unlike the Securities Acts, ERISA deals expressly and in detail with pension plans. ERISA requires pension plans to disclose specified information to employees in a specified manner, see 29 U. S. C. §§ 1021-1030, in contrast to the indefinite and uncertain disclosure obligations imposed by the antifraud provisions of the Securities Acts, see Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 474-477 (1977); TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438 (1976). Further, ERISA regulates the substantive terms of pension plans, setting standards for plan funding and limits on the eligibility requirements an employee must meet. For example, with respect to the underlying issue in this case— whether respondent served long enough to receive a pension— § 203 (a) of ERISA, 29 U. S. C. § 1053 (a), now sets the minimum level of benefits an employee must receive after accruing specified years of service, and § 203 (b), 29 U. S. C. § 1053 (b), governs continuous-service requirements. Thus, if respondent had retired after § 1053 took effect, the Fund would have been required to pay him at least a partial pension. The Securities Acts, on the other hand, do not purport to set the substantive terms of financial transactions.
The existence of this comprehensive legislation governing the use and terms of employee pension plans severely undercuts all arguments for extending the Securities Acts to noncontributory, compulsory pension plans. Congress believed that it was filling a regulatory void when it enacted ERISA, a belief which the SEC actively encouraged. Not only is the extension of the Securities Acts by the court below unsupported by the language and history of those Acts, but in light of ERISA it serves no general purpose. See Califano v. Sanders, 430 U. S. 99, 104-107 (1977). Cf. Boys Markets, Inc. v. Retail Clerks, 398 U. S, 235, 250 (1970). Whatever benefits employees might derive from the effect of the Securities Acts are now provided in more definite form through ERISA.
V
We hold that the Securities Acts do not apply to a noncontributory, compulsory pension plan. Because the first two counts of respondent’s complaint do not provide grounds for relief in federal court, the District Court should have granted the motion to dismiss them. The judgment below is therefore
Reversed.
Mr. Justice Stevens took no part in the consideration or decision of these cases.
For examples of other noneontributory, compulsory pension plans, see Allied Structural Steel Co. v. Spannaus, 438 U. S. 234, 236-237 (1978); Malone v. White Motor Corp., 435 U. S. 497, 500-501 (1978); Alabama Power Co. v. Davis, 431 U. S. 581, 590 (1977).
Contributions were tied to the number of employees rather than the amount of work performed. For example, payments had to be made even for weeks where an employee was on leave of absence, disabled, or working for only a fraction of the week. Conversely, employers did not have to increase their contribution for weeks in which an employee worked overtime or on a holiday. Trust Agreement, Art. 3, § 1, App. 62a.
Because the Fund made the same payments to each employee who qualified for a pension and retired at the same age, rather than establishing an individual account for each employee tied to the amount of employer contributions attributable to his period of service, the plan provided a “defined benefit.” See 29 U. S. C. § 1002 (35); Alabama Power Co. v. Davis, supra, at 593 n. 18.
Respondent was laid off from December 1960 until April 1961. In addition, no contributions were paid on his behalf between April and July 1961, because of embezzlement by his employer’s bookkeeper. During this 7-month period respondent could have preserved his eligibility by making the contributions himself, but he failed to do so.
Count III charged the Teamsters and the Local with violating their duty of fair representation under § 9 (a) of the National Labor Relations Act, 29 U. S. C. § 159 (a), and Count V (later amended as Count VI) charged the Teamsters, the Local, Peick, and all other Teamsters Pension Fund trustees with violating their obligations under § 302 (c) (5) of the Labor Management Relations Act, 29 U. S. C. § 186 (c) (5). Count IV accused all defendants of common-law fraud and deceit.
As of the time of appeal to the Seventh Circuit the District Court had not yet ruled on any class-certification issues.
Section 2 (1) of the Securities Act, as amended, 15 U. S. C. § 77b (1), defines a “security” as
“any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a'security/ or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.”
The definition of a “security” in § 3 (a) (10) of the Securities Exchange Act is virtually identical and, for the purposes of this case, the coverage of the two Acts may be regarded as the same. United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 847 n. 12 (1975); Tcherepnin v. Knight, 389 U. S. 332, 342 (1967).
Section 2 (3) of the Securities Act provides, in pertinent part, that “[t]he term ‘sale’ or ‘sell’ shall include every contract of sale or disposition of a security or interest in a security, for value.” Section 3 (a) (14) of the Securities Exchange Act states that “[t]he terms'sale’ and'sell’ each include any contract to sell or otherwise dispose of.” Although the latter definition does not refer expressly to a disposition for value, the court below did not decide whether the Securities Exchange Act nevertheless impliedly incorporated the Securities Act definition, cf. n. 7, supra, as in its view respondent did give value for his interest in the pension plan. In light of our disposition of the question whether respondent’s interest was a “security,” we need not decide whether the meaning of “sale” under the Securities Exchange Act is any different from its meaning under the Securities Act.
The Court of Appeals and the District Court also held that § 17 (a) of the Securities Act provides private parties with an implied cause of action for damages. In light of our disposition of this case, we express no views on this issue.
Respondent did not have any cause of action under ERISA itself, as that Act took effect after he had retired.
Respondent also argues that his interest constitutes a “certificate of interest or participation in any profit-sharing agreement.” The court below did not consider this claim, as respondent had not seriously pressed the argument and the disposition of the “investment contract” issue made it unnecessary to decide the question. 561 F. 2d 1223, 1230 n. 15 (CA7 1977). Similarly, respondent here does not seriously contend that a “certificate of interest... in any profit-sharing agreement” has any broader meaning under the Securities Acts than an “investment contract.” In Forman, supra, we observed that the Howey test, which has been used to determine the presence of an investment contract, “embodies the essential attributes that run through all of the Court’s decisions defining a security.” 421 U. S., at 852.
This is not to say that a person’s “investment,” in order to meet the definition of an investment contract, must take the form of cash only, rather than of goods and services. See Forman, supra, at 852 n. 16.
Under the terms of the Local’s pension plan, for example, respondent received credit for the five years he worked before the Fund was created, even though no employer contributions had been made during that period.
In addition, the Fund received $7,500,000 from smaller pension funds with which it merged over the years.
See Note, The Application of the Antifraud Provisions of the Securities Laws to Compulsory, Noncontributory Pension Plans After Daniel v. International Brotherhood of Teamsters, 64 Va. L. Rev. 305, 315 (1978).
See Note, Interest in Pension Plans as Securities: Daniel v. International Brotherhood of Teamsters, 78 Colum. L. Rev. 184, 201 (1978).
The amendment would have added the following language to §4 (1) of the Securities Act:
“As used in this paragraph, the term 'public offering’ shall not be deemed to include an offering made solely to employees by an issuer or by its affiliates in connection with a bona fide plan for the payment of extra compensation or stock investment plan for the exclusive benefit of such employees.” 78 Cong. Rec. 8708 (1934).
Section 17 (c) of the Securities Act, 15 U. S. C. § 77q (c), and § 10 (b) of the Securities Exchange Act, 15 U. S. C. § 78j (b) (when read with §§ 3 (a) (10) and (12) of that Act), indicate that the antifraud provisions of the respective Acts continue to apply to interests that come within the exemptions created by § 3 (a) (2) of the Securities Act and § 3 (a) (12) of the Securities Exchange Act.
See S. Rep. No. 91-184, p. 27 (1969); Hearings before the Senate Committee on Banking and Currency on Mutual Fund Legislation of 1967, 90th Cong., 1st Sess., pt. 3, pp. 1341-1342 (1967); Mundheim & Henderson, Applicability of the Federal Securities Laws to Pension and Profit-Sharing Plans, 29 L. & Contemp. Probs. 795, 819-837 (1964); Saxon & Miller, Common Trust Funds, 53 Geo. L. J. 994 (1965). The SEC argues that the addition by the House of the language “single or” before "common trust fund” indicated an intent to cover the underlying plans that invested in bank-maintained funds. The legislative history, however, indicates that the change was meant only to eliminate the negative inference suggested by the unrevised language that banks would have to register the segregated investment funds they administered for particular plans. Because the provision as a whole dealt only with the relationship between a plan and its bank, the revision did not affect the registration status of the underlying pension plan. See 116 Cong. Rec. 33287 (1970). This was consistent with the SEC’s interpretation of the provision. Hearings, supra, at 1326. The subsequent addition of another provision excepting from the exemption funds “under which an amount in excess of the employer’s contribution is allocated to the purchase of securities... issued by the employer or by any company directly or indirectly controlling, controlled by or under common control with the employer” appears to have been simply an additional safeguard to confirm the SEC’s authority to require such plans, and only such plans, to register. See H. R. Conf. Rep. No. 91-1631, p. 31 (1970).
It is a commonplace in our jurisprudence that an administrative agency’s consistent, longstanding interpretation of the statute under which it operates is entitled to considerable weight. United States v. National Assn. of Securities Dealers, 422 U. S. 694, 719 (1975); Saxbe v. Bustos, 419 U. S. 65, 74 (1974); Investment Company Institute v. Camp, 401 U. S. 617, 626-627 (1971); Udall v. Tollman, 380 U. S. 1, 16 (1965). This deference is a product both of an awareness of the practical expertise which an agency normally develops, and of a willingness to accord some measure of flexibility to such an agency as it encounters new and unforeseen problems over time. But this deference is constrained by our obligation to honor the clear meaning of a statute, as revealed by its language, purpose, and history. On a number of occasions in recent years this Court has found it necessary to reject the SEC’s interpretation of various provisions of the Securities Acts. See SEC v. Sloan, 436 U. S. 103, 117-119 (1978); Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 41 n. 27 (1977); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 212-
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. IBARRA
No. 90-1713.
Decided October 15, 1991
Per Curiam.
The United States District Court for the District of Wyoming ordered that certain evidence which the Government proposed to use in respondent’s pending criminal trial be suppressed. The Government appealed the order to the Court of Appeals for the Tenth Circuit, but that court dismissed the Government’s appeal. It held that the 30-day period in which to file an appeal began to run on the date of the District Court’s original suppression order, rather than on the date the District Court denied the Government’s motion for reconsideration. 920 F. 2d 702 (1990). We grant the Government’s petition for certiorari and vacate the judgment of the Court of Appeals.
h—
Respondent was indicted for possession of cocaine with intent to distribute. The circumstances leading to the indictment are largely uncontested. Law enforcement officers stopped respondent’s car for a suspected operating violation. The officers questioned respondent and asked for permission to search the car. Respondent granted the request and a brief search was conducted but no cocaine was identified or seized. However, noting that neither respondent nor his passenger had a valid operator’s license, the officers impounded the car and transported respondent and his passenger to a Western Union office. The officers then went to the towing service lot and searched the car a second time. They found cocaine in the trunk. Respondent filed a pretrial motion to suppress the evidence found in the second search. Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent’s continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government’s abandonment of the continuing consent theory. 725 F. Supp. 1195, 1200 (Wyo. 1989). On December 13,1989, the Government filed with the District Court a “Motion for Reconsideration of Suppression Order.” The sole basis for the Government’s motion was its reassertion of the continuing consent theory. On January 3, 1990, the District Court denied the motion. The Government noticed its appeal on January 30, 1990, less than 30 days after the denial of the motion for reconsideration but 76 days after the initial suppression order.
A divided panel of the Tenth Circuit dismissed the appeal as untimely, holding that the Government’s motion to reconsider did not “toll” the 30-day period to appeal which began to run on the date of the initial order. In the course of its opinion, the Court of Appeals rejected the Government’s argument that this Court’s decisions in United States v. Healy, 376 U. S. 75 (1964), and United States v. Dieter, 429 U. S. 6 (1976) (per curiam), controlled the decision.
In United States v. Healy, supra, we said:
“The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the Court disposes of the petition — in other words whether in such circumstances the 30-day period . . . begins to run from the date of entry of judgment or the denial of the petition for rehearing.” 376 U. S., at 77-78.
The Court answered this question by saying that under the “well-established rule in civil cases,” id., at 78, the 30-day period begins with the denial of the petition for rehearing and by further observing that this Court’s consistent practice had been to treat petitions for rehearing as having the same effect in criminal cases. Id., at 78-79. More than 12 years later, we decided United States v. Dieter, supra (per curiam). There, too, the Court of Appeals for the Tenth Circuit dismissed as untimely the Government’s appeal from a District Court’s order dismissing an indictment. Although the Government’s notice of appeal had been filed within 30 days of a District Court order denying its “Motion to Set Aside Order of Dismissal,” it was not filed within 30 days after the order of dismissal itself. The Court of Appeals held that our decision in Healy, supra, governed only in cases of claimed errors of law, whereas the basis of the Government’s motion for reconsideration in Dieter was mistake or inadvertence.
We vacated and remanded the decision of the Court of Appeals, saying that it “misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment non-final for purposes of appeal for as long as the petition is pending.” 429 U. S., at 8. We pointed out the presumed benefits of this rule — district courts are given the opportunity to correct their own alleged errors, and allowing them to do so prevents unnecessary burdens being placed on the courts of appeals. We concluded that “the Court of Appeals’ law/ fact distinction — assuming such a distinction can be clearly drawn for these purposes — finds no support in Healy.” Ibid.
The Court of Appeals in the present case nonetheless determined that the 30-day period was not affected by the Government’s motion to reconsider. It instead created a special rule for motions that seek reconsideration of previously disavowed theories because it concluded that suspending the time to appeal upon such motions does not further the goals described in Dieter. Because such motions do not serve to permit the district court to reconsider matters initially overlooked, the Court of Appeals thought that delaying the appellate process pending resolution of such motions is unlikely to contribute to judicial efficiency. 920 F. 2d, at 706. It also noted that Government motions to reconsider a position conceded during appellate litigation are viewed with disfavor when filed before an appellate tribunal. Ibid. (citing United States v. Smith, 781 F. 2d 184 (CA10 1986)).
II
We think the Court of Appeals has misread our decisions in Healy, supra, and Dieter, supra. The first of these decisions established that a motion for rehearing in a criminal case, like a motion for rehearing in a civil case, renders an otherwise final decision of a district court not final until it decides the petition for rehearing. In Dieter, we rejected an effort to carve out exceptions to this general rule in the case of petitions for rehearing which do not assert an alleged error of law. We think that the Court of Appeals' present effort to carve out a different exception to the general rule laid down in Healy must likewise be rejected.
It may be that motions to reconsider based on previously abandoned grounds are not apt to fare well either in the district court or on appeal to the court of appeals. But if such a judgment as to the merits were allowed to play a part in deciding the time in which a denial of the motion may be appealed, it is difficult to see why a similar merits analysis should not be undertaken for all motions for reconsideration. The result would be, as the dissenting judge below pointed out, to "graf[t] a merits inquiry onto what should be a bright-line jurisdictional inquiry." 920 F. 2d, at 710 (Baldock, J., dissenting).
Undoubtedly some motions for reconsideration are so totally lacking in merit that the virtues of the rule established in Healy are not realized by delaying the 30-day period. If it were possible to pick them out in advance, it would be better if litigants pursuing such motions were made to go sooner, rather than later, on their fruitless way to the appellate court. But there is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit, and which do not. Given this, it is far better that all such motions be subsumed under one general rule — the rule laid down in Healy. Without a clear general rule litigants would be required to guess at their peril the date on which the time to appeal commences to run. Prudent attorneys would be encouraged to file notices of appeal from orders of the district court, even though the latter court is in the course of considering a motion for rehearing of the order. Cf. United States v. Ladson, 774 F. 2d 436, 438-439, n. 3 (CA11 1985). Less prudent attorneys would find themselves litigating in the courts of appeals whether a motion for reconsideration filed in the district court had sufficient potential merit to justify the litigant’s delay in pursuing appellate review. Neither development would be desirable.
The Court of Appeals’ opinion can be read to hold that because the Government did not initially urge the argument which it made in its motion for reconsideration, that motion was not a “true” motion for reconsideration which would extend the time for appeal. But this method of analysis, too, would break down into subcategories the more general category of “motions for reconsideration” described in our previous opinions. Here, the Government’s motion before the District Court sought to “ ‘reconsider [a] question decided in the case’ in order to effect an ‘alteration of the rights adjudicated.’” Dieter, 429 U. S., at 8-9 (quoting Department of Banking of Neb. v. Pink, 317 U. S. 264, 266 (1942)). That is sufficient under Healy and Dieter.
The petition for certiorari is granted, respondent’s motion to proceed in forma pauperis is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings.
It is so ordered.
Federal Rule of Appellate Procedure 4(b) provides, inter alia:
“When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant.”
Statutory authorization for the United States to appeal a suppression order is found at 18 U. S. C. §3731:
“An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence.
“The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.”
The Court of Appeals’ decision discusses the issue as a matter of whether the motion for reconsideration “tolled” the 30-day period that, by assumption, began to run with the District Court’s first decision. We believe the issue is better described as whether the 30-day period began to run on the date of the first order or on the date of the order denying the motion for reconsideration, rather than as a matter of tolling. Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped. See Cada v. Baxter Healthcare Corp., 920 F. 2d 446 (CA7 1990) (discussing principles of equitable tolling). Thus, in the present case for example, a motion to reconsider filed after 20 days, if it tolled the 30-day period to appeal, would leave at most only 10 days to appeal once the reconsideration motion was decided. However, we previously made clear that would-be appellants are entitled to the full 30 days after a motion to reconsider has been decided. United States v. Dieter, 429 U. S. 6, 7-8 (1976) (per curiam) (“[T]he 30-day limitation period runs from the denial of a timely petition .. . rather than from the date of the order itself”).
Two other concerns that animate the Tenth Circuit’s decision are simply inapposite to the present case. First, there is no assertion that the Government’s abandonment and reassertion of the consensual search theory was done in bad faith. We thus have no occasion to consider whether instances of bad faith might require a different result'. See United States v. Healy, 376 U. S. 75, 80, n. 4 (1964). Second, only a single motion for reconsideration was filed. We thus also have no occasion to consider whether it is appropriate to refuse to extend the time to appeal in cases in which successive motions for reconsideration are submitted. See United States v. Marsh, 700 F. 2d 1322 (CA10 1983).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - taxes, patents, copyright - federal tax - business income tax (includes corporate and parnership). Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
ENTERPRISES UNLIMITED, INC., a Nevada Corporation, and Josephine C. Zelasko, Appellants, v. Dalmon DAVIS, District Director of the Internal Revenue Service of the United States, for the District of Nevada, Appellee.
No. 19324.
United States Court of Appeals Ninth Circuit.
Jan. 7, 1965.
Dermot R. Long, Los Angeles, Cal., for appellants.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, George F. Lynch, William A. Friedlander, Dept, of Justice, Washington, D. C., John W. Bonner, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.
Before ORR, IIAMLEY and KOELSCH, Circuit Judges.
HAMLEY, Circuit Judge.
Josephine C. Zelasko and her wholly-owned corporation, Enterprises Unlimited, Inc., seek to enjoin collection from them of federal income taxes assessed against John and Josephine Toscano for the years 1947, 1949, 1950 and 1953. Additionally, they seek an order cancel-ling tax liens imposed on their property in connection with these taxes, and recovery of $2,400 assertedly seized by the United States from the bank account of the corporation.
Upon motion of defendant Dalmon Davis, District Director of Internal Revenue, District of Nevada, the district court dismissed the action for lack of jurisdiction. Plaintiffs appeal.
Josephine Zelasko is the same individual who is referred to in the joint tax returns for the years in question as •Josephine Toscano. Notwithstanding these facts, however, plaintiffs assert that neither of them is liable for taxes assessed against John and Josephine Toscano. They also assert that neither of them has any of the property of John Toscano subject to seizure and sale for payment of those taxes.
The allegations relied upon as requiring these conclusions may be briefly summarized. Josephine Zelasko lived in a meretricious relationship with John Toscano for twenty-three years, including the tax years in question, but was never married to him, nor was she his common-law wife. None of the income reported on the joint returns of John and Josephine Toscano was the income of Josephine Zelasko, but was income earned by John Toscano in the operation of his restaurant-bar in Culver City, California. Her signatures upon the joint tax returns are either forgeries or were obtained by coercion. She has only a third grade education and cannot read or understand tax documents. She had no knowledge of the Tax Court proceedings in which a settlement for the years in question was reached and did not agree to, nor accept, such settlement.
Plaintiffs allege further that the Internal Revenue Service seeks to collect from Josephine Zelasko $38,411.35 plus interest, assessed against John and Josephine Toscano on the ground that she is in fact Josephine Toscano; that the Service seeks to collect this sum from the corporation on the ground that it is the alter ego of Josephine Zelasko; and that the property upon which tax liens have been imposed, either in the name of Josephine Zelasko or in the name of the corporation, is the separate property of Josephine Zelasko and acquired by her earnings and savings.
One of the grounds on which defendant moved to dismiss the action was that the injunctive relief sought is barred by section 7421(a) of the Internal Revenue Code of 1954 (Code), 26 U.S.C. § 7421(a) (1958). This statute provides that, with express exceptions not here relevant, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.
Josephine Zelasko argues that this statute is not applicable to her because she is not one of the taxpayers against whom the taxes were assessed and therefore has a right to prevent the taking of her property to satisfy the tax liability of others, namely John and Josephine Toscano.
If Josephine Zelasko has the status of a third party non-taxpayer, § 7421(a) would not bar injunctive relief. Shaw v. United States, 9 Cir., 331 F.2d 493, 496-497. Under the facts alleged, however, the taxes have been assessed against her on the ground that she is the individual named in the tax returns as Josephine Toscano. She does not deny this, but argues that the tax was not validly assessed against her under any name because she was never the wife of John Toscano and never earned any of the income reported in the joint returns.
Whatever the merits of this argument may be, it does not tend to show that she, under the name of Josephine Toscano, was not the person against whom the Internal Revenue Service intended to assess taxes. It tends only to show that the tax may have been illegally assessed against her under either name. The case therefore does not fall under the judicially-created non-taxpayer exception to § 7421(a). Under this exception the validity of the tax assessment is not in issue. See 9 Mertens, Law of Federal Income Taxation (Zimet Rev.) § 49.213.
Notwithstanding section 7421 (a), a taxpayer may enjoin the collection of a tax if, but only if, he can establish that (1) under the most liberal view of the law and facts the United States cannot establish its claim, and (2) the taxpayer has no adequate remedy at law. See Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6-8, 82 S.Ct. 1125, 8 L.Ed.2d 292; Walker v. Internal Revenue Service, 9 Cir., 333 F.2d 768, 771.
We cannot say, on the basis of the information available to the Government at the time of suit, that under the most liberal view of the law and facts, the United States cannot establish its claim against Josephine Zelasko. Moreover, a remedy is available in the form of a civil action for a refund, brought pursuant to section 7422 of the Code, 26 U.S. C. § 7422 (1958). See Walker v. Internal Revenue Service, supra, 333 F.2d at 771. Plaintiffs do not allege that this remedy is inadequate. It follows that the exception to section 7421(a), referred to in Enochs, is not applicable here.
As for relief other than an injunction, the ground on which it is sought involves, in effect, a review of a decision of the Tax Court. But such a review is available only in the Court of Appeals, the District Court having no jurisdiction in such matters. Section 7482(a) of the Code, 26 U.S.C. § 7482(a) (1958), Jefferson Loan Co., Inc. v. Arundell, 106 U.S.App.D.C. 370, 273 F.2d 105.
Affirmed.
. During oral argument in the district court, counsel for plaintiffs stated: “If the Government, in any instance, can show me that Josephine Zelasko is Josephine Toscano I will stipulate to judgment right now. * * * ” He also stated: “To my knowledge, there is no Josephine Toscano in existence.” But the oral argument as a whole, and the allegations of the complaint, make it clear that the point counsel sought to make was that Josephine Zelasko was never married to John Toscano, and Josephine Toscano was never her legal name.
Question: What is the second general issue in the case, other than economic activity and regulation - taxes, patents, copyright - federal tax - business income tax (includes corporate and parnership)?
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_r_bus
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Roy B. McKNIGHT, Jr., Trustee in Bankruptcy of the Charlotte Valve and Pump Company, Inc., Bankrupt, Appellant, v. M. & J. FINANCE CORPORATION, and J. F. Wyatt and Franklin Lindon, Trading as S. & J. Motor Company, Appellees.
No. 7443.
United States Court of Appeals Fourth Circuit.
Argued June 13, 1957.
Decided Aug. 1, 1957.
Ernest S. Delaney, Jr., Charlotte, N. C. (Bell, Bradley and Gebhardt & De-Laney, Charlotte, N. C., on brief), for appellant.
No oral argument or brief for appellees.
Before PARKER, Chief Judge, and SOPER and SOBELOFF, Circuit Judges.
SOBELOFF, Circuit Judge.
A trustee in bankruptcy here seeks to avoid as a preference the transfer of an automobile by a bankrupt corporation to one of its creditors.
The state court appointed a receiver for the Charlotte Valve and Pump Company on October 23, 1954. This was followed by an involuntary petition in bankruptcy on November 2, an adjudication on November 19, and the election of Roy B. McKnight, Jr., as trustee on December 31, 1954.
On the preceding July 28, the bankrupt had purchased a Ford automobile from one of the defendants, the S. & J. Motor Company, and the automobile was duly titled in its name. To secure a balance of $2520.00 on the purchase price, a chattel mortgage to the Motor Company was prepared. The mortgagor, however, was not shown as the Valve Company, but as James E. Medlin. He was in fact the president of the company, but he was not so described anywhere in the instrument, and the Company’s name nowhere appeared therein. The chattel mortgage was later assigned by the Motor Company to the other defendant, M. & J. Finance Company.
Three days after the appointment of the receiver by the state court, Mr. Medlin and a Mr. Owens, an employee of the Valve Company, went to the office of the Finance Company, advised it that the Valve Company was in receivership, and sought to arrange for the automobile to be taken over by Owens. On the same day the Finance Company obtained possession of the automobile and later resold it to the defendant Motor Company, for the balance then due on the mortgage, which the bankrupt had not substantially reduced since the original transaction in July. The value of the automobile when the Motor Company obtained possession of it was $2200.00, almost enough to cover the indebtedness. The claims of the other creditors amounted to $49,-000.00, but there was only about $9300.-00 available for payment of their claims.
The trustee instituted an action against both the Finance Company and the Motor Company for $2200.00, on the theory that the transfer of this property by the bankrupt to the Finance Company, was a preference voidable by the trustee. It was his position that the chattel mortgage executed by Mr. Medlin individually, and not by the automobile’s owner, the Valve Company, created no valid lien which the trustee was bound to respect.
At the trial in the District Court, the above facts were not in dispute. The trustee’s demand for a peremptory charge to the jury in his favor, the equivalent of a motion for a directed verdict under Rule 50, Fed.Rules Civ. Proc. 28 U.S.C.A., was denied. Instead, the Judge directed a verdict in favor of one defendant, the Finance Company, and as to the other, the Motor Company, submitted to the jury the issue as to whether or not a preference had been obtained by that defendant. The jury found for the defendant Motor Company on this issue. When the judge later denied motions of the trustee for judgments n. o. v., the trustee appealed.
Section 60, sub. a(l) of the Bankruptcy Act defines a preference as “a transfer * * * of any of the property of a debtor to * * * a creditor for * * * an antecedent debt, * * * while insolvent and within four months before the filing by or against him of the petition [in bankruptcy], the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.” 11 U.S.C.A. § 96, sub. a(1).
It seems to us decisive that, on the face of the mortgage instrument in question, the Valve Company executed no chattel mortgage on the automobile, and that the Motor Company (later the Finance Company as its assignee), was a general creditor only. The delivery of the bankrupt’s automobile to the creditor on October 26, a few days before the petition in bankruptcy was, under the circumstances, a preference within the condemnation of the Statute. However, even if the chattel mortgage executed by Medlin be deemed the act of the bankrupt, - we must likewise reach the conclusion that there was a voidable preference.
In respect to personal property, the bankruptcy law provides that a transfer “shall be deemed to have been made or suffered at the time when it became so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee.” It is further provided that “if any transfer of [personal] property is not so perfected against such liens by legal or equitable proceedings prior to the filing of a petition * * *, it shall be deemed to have been made immediately before the filing of the petition.” 11 U.S.C.A. § 96, sub. a(2).
Amplification of these provisions is found in Subsection a(7) of Section 96, which in pertinent part is as follows:
“(7) Any provision in this subsection a to the contrary notwithstanding if the applicable law requires a transfer of property other than real property for or on account of a new and contemporaneous consideration to be perfected by recording, delivery, or otherwise, in order that no lien described in paragraph (2) of this subsection could become superior to the rights of the transferee therein, * * * the time of transfer shall be determined by the following rules:
“I. Where (A) the applicable law specifies a stated period of time of not more than twenty-one days after the transfer within which recording, delivery, or some other act is required, and compliance therewith is had within such stated period of time; or where (B) the applicable law specifies no such stated period of time or where such stated period of time is more than twenty-one days, and compliance therewith is had within twenty-one days after the transfer, the transfer shall be deemed to be made or suffered at the time of the transfer.
“II. Where compliance with the law applicable to the transfer is not had in accordance with the provisions of subparagraph I of this paragraph, the transfer shall be deemed to be made or suffered at the time of compliance therewith, and if such compliance is not had prior to the filing of the petition initiating a proceeding under this title, such transfer shall be deemed to have been made or suffered immediately before the filing of such petition.”
The legal effect of the foregoing provisions is that a transfer, even for a present consideration, if not perfected as required, is deemed to be for an antecedent debt; and if the petition in bankruptcy is filed within four months, it becomes a voidable transfer.
We must therefore consider whether under North Carolina law the chattel mortage executed and recorded in Medlin’s name was a transfer of the bankrupt’s property “sufficiently perfected” to withstand attack as a preference under the above sections of the Bankruptcy Act.
To begin with, we find that under North Carolina law an unrecorded chattel mortgage is given no effect against lien creditors. N.C.Gen.Stat. (1950) Sec. 47-20, as amended 1953, c. 1190, § 1; and proper indexing is carefully provided for. One statute prescribes the indexing requirements for conveyances of both realty and personalty. N.C.Gen. Stat. (1952) Secs. 161-21 and 22.
Here we have no chattel mortgage recorded or indexed in the name of the bankrupt debtor, the Valve Company, which owned the automobile. The chattel mortgage, which was executed by Medlin, was recorded and indexed under his name only, and a search of the records by any person interested in the affairs of the bankrupt would not have disclosed the existence of a mortgage on its automobile.
We think it clear from the tenor of the North Carolina decisions that recording and indexing a mortgage executed by one not the owner of the property mentioned therein will not give constructive notice binding upon third parties dealing with the true owner. It is, at least as to third parties, as though no mortgage had been made. In its interpretation of the North Carolina recording statutes, the Supreme Court of that State has insisted on strict compliance.
Thus, the Court has held that a conveyance by J. Frank Crowell, indexed under the name of J. L. Crowell, was not notice that J. Frank Crowell had conveyed the property. Dorman v. Goodman, 213 N.C. 406, 196 S.E. 352. And a deed of trust indexed in the full name of one of several grantors, with the others indicated under the abbreviation “et als.,” was not adequate notice to purchasers at a sale under a subsequent deed of trust properly indexed in the names of all the grantors. Woodley v. Gregory, 205 N.C. 280, 171 S.E. 65. Close in point, too, is a holding that recording a deed to “Mary Paramore, wife of W. B. Paramore” was no notice that W. B. Paramore was the owner. Smith v. Turnage-Winslow Co., 212 N.C. 310, 193 S.E. 685.
It is certain, therefore, that recordation under Medlin’s name was not constructive notice under the North Carolina law, and did not perfect the transfer within the time required by Section 96, and the transfer therefore is deemed to have been made “immediately before the filing of the petition.”
Moreover, treating the Medlin mortgage as an equitable lien cannot aid the appellees in this proceeding, for whatever may have been the earlier law, it is clear, since the amendments of 1938 and 1950, that by Section 96, sub. a(6) “The recognition of equitable liens where available means of perfecting legal liens have not been employed * * * is declared to be contrary to the policy of this section.” Cases decided under the preexisting law must therefore be viewed with circumspection. The allowance of equitable liens, to the extent that this was permitted before the amendments, is not pertinent here.
On the uncontested facts and the applicable law, therefore, it appears that all the elements of a transfer voidable as a preference are here present. Whether we look only to the event of October 26, the repossession of the automobile, or turn to the defectively executed and recorded instrument, the result is the same. In either view, the transfer was on account of what the law regards as an antecedent debt; it was made while the debtor was, to the knowledge of the transferee, insolvent; it was made within four months before the petition was filed; and its effect was to give one creditor a greater percentage of its debt than other creditors of the same class.
The District Court should have directed a verdict for the trustee against both defendants, for under Section 60, sub. b of the Bankruptcy Act, 11 U.S. C.A. § 96, sub. b “the trastee may recover the property, or, if it has been converted, its value from any person who has received or converted such property.”
Reversed and remanded.
. “No deed of trust or mortgage of real or personal property, or conditional sales contract of personal property in which the title is retained by the vendor, shall be valid to pass any property as against lien creditors or purchasers for a valuable consideration from the grantor, mortgagor or conditional sales vendee, but from the time of registration thereof as provided in this article.”
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
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songer_applfrom
|
A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
DIMENSTEIN v. NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS.
No. 10600.
Circuit Court of Appeals, Fifth Circuit.
Nov. 3, 1943.
Rehearing Denied Dee. 6, 1943.
James L. Permutt, Griffith R. Harsh Jr., and Francis H. Hare, all of Birmingham, Ala., for appellant.
Borden Burr, of Birmingham, Ala., for appellee.
Before SIBLEY, McCORD, and WALLER, Circuit Judges.
WALLER, Circuit Judge.
Finding that the policy had lapsed for nonpayment of premiums, the court below directed a verdict against the appellant, in her suit on an $8,000 policy of insurance on the life of her husband wherein appellant was the beneficiary. The policy was issued on April 13, 1938, in consideration of the payment of an annual premium of $204 with the privilege of paying the premiums in quarterly installments plus six per cent, interest in lieu of the lump sum payment. Assured elected to pay on the quarterly basis and managed, by the use of the soliciting agent’s credit and the use of a $37.44 dividend, to pay the first five quarterly installments. He failed, however, to pay the quarterly installments that fell due on July 13, October 13, and January 13, in the second year of the policy, and died on January 23 of that year. Grace periods of thirty-one days were permitted for the payment of any premium, quarterly or otherwise. His death was within the grace period permitted under the January 13, 1940, quarterly installment.
If kept in force for two years the policy would have had a cash or loan value of $152.48 Failure to pay any premium or premium note when due or during the period of grace caused the policy to cease to be in force and have no value except as provided by the nonforfeiture and loan provisions.
It was provided that upon the payment of the second annual premium, each year thereafter, while the policy was in force, the policy would be' credited with such share of the surplus as was apportioned by the company, and which surplus, at the option of the holder of the policy, should be payable: (A) in cash; (B) applied in reduction of premiums; (C) used to purchase a paid-up participating addition; or (D) left with the company to accumulate with interest; and that if no election was made the share for that year would be held by the company as provided in option (D), but that if any premium remained unpaid the company would apply the accumulated surplus, if sufficient to make said payment in full, to the payment of unpaid premiums. But no surplus had been apportioned by the company during the second year of the policy in question.
The following provisions in the policy relating to premium loans produce the main controversy: “After one full annual premium has been paid, and while this Policy is in force, upon receipt of the loan agreement, duly executed, pledging the Policy, and until otherwise directed, the amount of any premium which thereafter becomes due and remains unpaid will be charged against the Policy as a premium loan, with interest at six per cent per annum, provided the entire indebtedness on the Policy with interest shall not exceed the cash value.”
The policy also provided that after two full annual premiums had been paid, the holder, within thirty-one days after default in payment of a subsequent premium, could elect, in writing: (a) to surrender the policy and receive in cash the value of the .policy, less any indebtedness; (b) to take participating paid-up insurance for such amount as the cash value of the policy would purchase as a net single premium; (3) to have the policy continued as paid-up insurance for such term as the then cash value of the policy, less any indebtedness, would purchase as a net single premium.
None of these last three options were available to the insured because the second annual premium had not been paid in full. The policy had not been in force two years at the time of the default in the payment of the premiums, nor at the time of his death. However, appellant contends that under the premium loan provisions quoted above the policy had a value which was sufficient to carry the policy until after the date of the death of the insured, or that it was at least sufficient to cover the second and third quarterly premiums of July 13 and October 13 respectively, and that the insured died within the grace period of the fourth quarter-annual premium of the second year.
This contention is predicated upon the premium loan provisions of the policy and the offer of the company to make a premium loan of $143 to the assured for the purpose of paying the remainder of the second annual premium, provided the assured would pay in cash the sum of $8.84. The total of the premium loan note of $143, plus $8.84, added to the $52.16 paid for the first quarterly premium of that year, totaled $204, the amount of the annuial premium. The assured did not execute the loan agreement nor return the policy nor pay the $8.84, nor did he ever pay any of the quarterly premiums of the second year except the first.
Appellant insists that- assured had the right to pay the premiums quarterly and that the proposal by the company to make the loan and to exact the $8.84 in cash would have required the assured to pay the premium annually, contrary to the contract, and that the assured had the right to take advantage of the loan provisions for the payment of any premium, quarterly or otherwise, notwithstanding the provision of the policy, relative to premium loans, that the indebtedness should not exceed the cash value of the policy.
It is evident that the policy had no cash surrender value, or all-purpose loan value (as distinguished from premium loan value), at the time of the failure to pay the July quarterly premium, for the policy had been in effect only eighteen months, instead of the requisite two years.
It appears from the testimony of an actuary produced by the plaintiff that prior to the expiration of two years such a policy would have an interpolated, or reserve, value and that at the end of the first premium year the policy would have a reserve, or interpolated, value of $11.75 per thousand, and that such value would increase at the rate of approximately $3 per quarter during the second year. We need not concern ourselves as to the total interpolated value at the end of the second year because that time was not reached. The interpolated, or reserve, value at the time the sixth quarterly premium became due, ac-c rding to- the actuary, was approximately $17.85 per thousand, making a total of $142.00 of reserve, or interpolated, value for the $8,000 policy, in which situation the additional sum of $8.84, which the company provided should be added to this interpolated value, would have totaled the balance of the entire premium for the second year of $204.
The proposal of the company to make the premium loan was satisfactory to the insured and an appropriate premium note was forwarded to him, but he never executed it, nor sent in the policy, nor paid the $8.84. Doubtless, he would have had the right to have borrowed, for premium purposes only, any portion of the $142 of reserve, or interpolated, value at the time that his July 13 premium was due, but he made no such request. Instead he instructed the local or soliciting agent to go ahead and effectuate the proposal to lend him a sufficient amount, when $8.84 in cash was paid by him, to pay the premium for the balance of the year. Not having requested of the company or its agent a loan sufficient only to pay the sixth quarterly premium, but on the contrary having acquiesced in the proposal made by the company, which he failed to comply with, it seems clear that he elected to allow his policy to lapse.
The premium loan provision was not automatic. The reserve, or interpolated value, was not available for any loan, except to pay premiums, nor did it have a cash surrender value, and it was available for premium payments only upon receipt of the loan agreement, duly executed, pledging the policy, provided the loan did not exceed the cash value of the policy. In view of the proposal of the company to make the premium loan when the policy had no actual cash value or cash surrender value until after the policy had been in force for two full years, and in view of the undisputed testimony of the actuary that the policy did have a reserve, or interpolated, value, it would appear that the use of the term “cash value” in the premium loan provision of the policy was inaccurate, or else the offer of the company to make the loan when the policy had no cash value was a concession by the company beyond the express provisions of the policy. The policy does not read: “Provided the indebtedness shall not exceed the cash value or ‘reserve, or interpolated, value’ ”. Under the strict wording of the policy the insured was not entitled to demand a premium loan prior to the end of two full years because the policy had no cash value prior to that time, but only a reserve, or interpolated, value. The loan which the company offered to make would have been based on the reserve, instead of the cash, value of the policy, and if the loan had been made the indebtedness would have exceeded the cash value as that term is elsewhere used throughout the policy. However, this is unimportant because the assured did not avail himself of the offer made nor did he request the right to execute a premium note only for the amount of the quarterly premium then due. No other conclusion can be reached but that he abandoned his policy.
The lower court was without error in directing a verdict for the defendant and the judgment is affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_district
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
ZIM’S FOODLINER, INC., d/b/a Zim’s IGA Foodliner, and S&O, Inc., d/b/a Paul’s IGA Foodliner, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 73-1199.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 16, 1974.
Decided April 4, 1974.
Thomas D. Burlage, Samuel W. Wit-wer, Jr., and Lawrence S. Wick, Chicago, 111., for petitioners.
Elliott Moore, Deputy Associate Gen. Counsel, Joseph E. Mayer, William Gaus, Corinna Metcalf, Attys., National Labor Relations Board, Washington, D. C., for respondent.
Before HASTINGS, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
HASTINGS, Senior Circuit Judge.
The principal question presented by this case is whether fragmentation of a collective bargaining unit, caused by the piecemeal sale of business assets, precludes the National Labor Relations Board from finding “suceessorship” and imposing attendant labor obligations upon the successor employer.
Two employers are involved in the instant petition for review. Petitioner Zim’s Foodliner, Inc. (hereinafter “Zim’s”) was found by the Board to have violated § 8(a)(5) of the National Labor Relations Act, Title 29 U.S.C. § 158(a)(5), by refusing to bargain with two unions representing appropriate units of its employees, and by unilaterally changing certain terms and conditions of employment. Zim’s also was found to have violated § 8(a)(1) of the Act, Title 29 U.S.C. § 158(a)(1), by engaging in the above § 8(a)(5) violations and by threatening to go out of business in order to discourage employee support for the unions. Petitioner S&O, Inc., doing business as Paul’s IGA Foodliner (hereinafter “Paul’s”), was found to have violated §§ 8(a)(5) and 8(a)(1) through its refusal to bargain with a single union representative of its employees. Paul’s was not found to have instituted unilateral changes or committed independent § 8(a)(1) violations.
Since the underlying facts were quite similar as to each employer, the complaints against both petitioners were consolidated for hearing before an administrative law judge, and a single decision issued. The judge’s findings, conclusions and recommended order were subsequently adopted by the Board. The Board order, 201 NLRB No. 141 (1973), is the present subject of review. The Board here cross-petitions for enforcement of its order.
In the summer of 1971, the Kroger Company, a manufacturer, distributor and retailer of food products, undertook to terminate its retail operations in the State of Wisconsin. Pursuant to this undertaking, buyers were sought for its 57 retail outlets in the state.
On July 19, 1971, Kroger executed sales agreements covering two of its Wisconsin supermarkets. The Kroger store in the city of Monroe was purchased by Lowell Zimmer, and the store in Edgerton was purchased jointly by Paul Sanderson and Fred Oreel. Both Monroe and Edgerton are located in the general vicinity of Madison, Wisconsin, and each has a population of less than 10,000. Both businesses were subsequently incorporated by their new owners. The agreements provided for the sale of certain tangible personal property at each store, primarily inventories and equipment, and for the assignment of Kroger’s leasehold interests in the store buildings. The purchasers did not agree to buy Kroger good will or other intangibles, and did not generally assume Kroger liabilities. In particular, the agreements contained no provisions for the buyers’ assumption of outstanding labor agreements.
On July 24, Kroger ceased all operations at the two stores, and on July 26, bills of sale and lease assignments were executed in fulfillment of the July 19 agreements. Both the Monroe and Edg-erton stores were opened for business by their new owners on July 27 under the names “Zim’s IGA Foodliner” and “Paul’s IGA Foodliner,” respectively.
The record reveals little regarding the labor relations history of the two stores while operated by Kroger. It appears that for some years prior to 1971 Kroger maintained a bargaining relationship with two unions representing multi-store units which included the Monroe and Edgerton stores. These unions were Retail Clerks Union Local No. 1401 (hereinafter “Retail Clerks”) and Amalgamated Meat Cutters & Butcher Workmen of North America Local No. 444 (hereinafter “Meat Cutters”). At the time of the 1971 sales, two collective bargaining agreements of relevance here were in effect. The first contract, executed November 17, 1970, and effective until June 30, 1973, was negotiated with the Retail Clerks and covered employees other than meat department and supervisory personnel at both stores. Employees at nine other Kroger stores in the Madison area were covered by this same agreement, bringing the total number of stores included in the bargaining unit to 11. A second contract, covering meat and delicatessen employees at the Monroe store, was negotiated with the Meat Cutters and executed by the parties on May 4, 1971. Four other stores were covered by this contract, which was to be effective through March 24, 1973. The record does not reveal the total number of employees in either multi-store unit.
Both the Retail Clerks and Meat Cutters agreements contained- union security clauses providing for union shops. The record indicates, and the administrative law judge so found, that Zimmer, Sanderson and Oreel were all aware of these contracts at the time they purchased the former Kroger stores.
Immediately prior to the July 1971 sales, 16 employees of the Monroe store and 14 employees of the Edgerton store were covered by the Retail Clerks agreement. The Meat Cutters contract applied to three meat department employees of the Monroe store.
Following Kroger’s closedown on July 24, a two day hiatus occurred during which the new owners cleaned and restocked their stores for opening. By the time Zim’s opened for business on the 27th, the entire former Kroger complement of employees had been hired, i. e., 16 grocery employees and 3 meat department personnel. In addition, the Kroger store manager was retained in his former position. Paul’s, on the other hand, hired only 9 of the 14 former Kroger grocery employees at the Edgerton store..With the exception of part-time helpers in the form of Sanderson’s wife, son and daughter, however, these 9 comprised the entire employee complement at Paul’s outside of the meat department. Like Zim’s, Paul’s continued to employ the former Kroger store manager.
On July 23, 1971, the Retail Clerks mailed letters to Zimmer and Oreel, informing them of “successor language” in the Kroger collective bargaining agreement and demanding that the agreement be honored. The letters advised that “[t]he successor employer * * * may not unilaterally change wages, hours, [or] working conditions without committing an unfair labor practice and subjecting itself to a back pay order.” The letters concluded by stating that if any “special circumstances” existed of which the union was not aware, it was willing to meet with the purchasers and discuss them. Sand-erson received a similar letter on July 28.
On August 20, 1971, the Meat Cutters mailed a letter to Zimmer advising him of his obligation to recognize and bargain with the union with respect to Zim’s meat department employees, as well as to “honor, adopt and enforce” the Kroger collective bargaining agreement.
Zim’s refused to recognize and bargain with either union; Paul’s adopted the same position with respect to the Retail Clerks. Likewise, both employers refused to adopt or be bound by the Kroger collective bargaining agreements, The parties stipulated that Paul’s, on July 27, unilaterally reduced wage rates and work hours beiow those provided by the Kroger-Retail Clerks agreement. On that date Paul’s informed its employees 0f their wages and working hours and subsequently maintained those wages and hours at their announced levels.
As for Zim’s alleged unilateral changes, the parties stipulated that in mid-August, “about three weeks after the opening for business on July 27, 1971,” the employer unilaterally reduced wage rates of grocery department employees, and reduced work hours of both grocery and meat department employees, below the levels specified by the Kroger agreements. During the three week period, Zim’s had continued the wages and hours in effect under Kroger. Zim’s subsequently maintained the new wages and hours established in mid-August.
Unfair labor practice charges against Zim’s were filed by the Retail Clerks and the Meat Cutters on August 27 and September 16, 1971, respectively. Each charge alleged that Zim’s had refused to recognize the union as collective bargaining representative of its employees; had unilaterally changed terms and conditions of employment without bargaining; and had refused to abide by the terms of the Kroger collective bargaining agreement. On September 22, 1971, the Retail Clerks filed a charge against Sanderson with respect to Paul’s, which was subsequently amended on November 24, 1971, to allege violations similar to those attributed to Zim’s. The Acting Regional Director issued complaints against both employers. The cases were consolidated for hearing on January 18 and 19, 1972, along with a third case arising out of the sale of the Kroger supermarket in Middleton, Wisconsin.
As to the latter store, the administrative law judge found that the union majority was dissipated as a result of the transfer, and accordingly dismissed the complaint. As to Zim’s and Paul’s, however, the judge found that the units of grocery and meat employees at the respective stores were appropriate for collective bargaining, and that the new owners stood “as the legal successor to Kroger.” He thus concluded that petitioners were guilty of the unfair labor practices hereinabove set forth. The judge’s decision recommended the usual remedies, including an order that Zim’s and Paul’s bargain with the unions and that Zim’s make whole its employees for any losses caused by its unilateral changes in wages and hours. Back pay and interest were to be computed according to established Board formulae. As noted above, the Board adopted in their entirety the findings, conclusions and recommended order of the administrative law judge.
Petitioners’ basic contention here is succinctly stated in their brief:
Petitioners submit that, for them to be found successors, a majority of their employees at each store must have been a majority of predecessor Kroger’s employees in the entire mul-ti-store units.
In addition, petitioners argue that the change of employers from a “hierarchical corporation” — Kroger—to small, independent operations owned and managed locally, has essentially changed the nature of the employing industry and has thereby precluded successorship. The Board, on the other hand, contends that a rebuttable presumption of continued majority support for an established bargaining representative applies to, and is not rebutted by, an ownership change such as occurred here. The result, says the Board, is that Zim’s and Paul’s are successor employers and are required to bargain with unions which previously represented a majority of their employees.
I.
Before proceeding to the successorship issues, we initially confront Zim’s contention that the Board’s finding of certain independent § 8(a)(1) violations is unsupported by law or substantial evidence. The consequences of such finding are limited in this case to a cease and desist order and the inclusion of appropriate repentant language in the notice to employees.
The administrative law judge found that on or about August 23, 1971, Lowell Zimmer separately told three grocery employees that he could not afford to pay the wages provided in the Retail Clerks’ contract and would go out of business if the employees voted for the Retail Clerks as their bargaining representative. While the reported conversations varied as to each employee, our review of the record indicates that the judge’s conclusion regarding the import of the conversations is supported by substantial, and indeed uncontradicted, evidence on the record as a whole.
Zim’s argues, however, that the statements were “legitimate economic predictions” and as such are protected by § 8(c) of the Act. Such claim is more than merely colorable, since the statements in context seem to indicate a good faith concern about high labor costs and an inability to compete. It is undisputed that Zimmer shortly thereafter did in fact reduce wages substantially-
Nevertheless, Zim’s argument overlooks the severe burden which has been placed upon employers seeking to justify such statements by NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969):
“* * * [A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’ He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. * * * We therefore agree with the court below that ‘[conveyance of the employer’s belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.’ 397 F.2d 157, 160. * * * ” 395 U. S. at 618-619, 89 S.Ct. at 1942.
Gissel recognizes that employer predictions of closedown upon unionization are inherently fraught with overtones of reprisal. Furthermore, “a reviewing court must recognize the Board’s competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship.” 395 U.S. at 620, 89 S.Ct. at 1943. The burden has been placed upon the employer to justify such statements by objective evidence. NLRB v. Sinclair Co., 1 Cir., 397 F.2d 157, 161 (1968), aff’d sub nom. NLRB v. Gissel Packing Co., supra; Mon River Towing, Inc. v. NLRB, 3 Cir., 421 F.2d 1, 11 (1969). Since Zim’s made no attempt to meet this burden before the Board, we conclude that its finding of a § 8(a)(1) violation is supported by substantial evidence. NLRB v. Lenkurt Electric Co., 9 Cir., 438 F.2d 1102 (1971), relied upon by Zim’s, is not contra since there the record affirmatively indicated an objective basis in fact for the employer’s statements. 438 F.2d at 1108. Compare also, NLRB v. River Togs, Inc., 2 Cir., 382 F.2d 198 (1967).
Finally, the fact that the statements were made in the context of a successorship dispute, rather than during an active union organizational campaign, does not relieve the employer of liability. NLRB v. Polytech, Inc., 8 Cir., 469 F.2d 1226, 1231 (1972); cf. Mon River Towing, Inc., supra, 421 F.2d at 11.
II.
Our starting point on the successor-ship question is NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). In Burns, the Supreme Court approved a Board bargaining order against a successor employer where 27 of the 42 employees in the successor’s starting work force had been employed by the predecessor and where the predecessor employees had been represented by a recently certified union. The Court concluded that “[i]n these circumstances, it was not unreasonable for the Board to conclude that the union certified to represent all employees in the unit still represented a majority of the employees and that Burns could not reasonably have entertained a good-faith doubt about that fact.” Id. at 278, 92 S.Ct. at 1577. This was true even though, as the dissenters point out, it was “by no means mathematically demonstrable that the union was the choice of 'a majority of the 42” successor employees. Id. at 297, 92 S.Ct. at 1587. Predictably, there was no indication in the Burns record that all 27 former employees of the predecessor had voted for the union in the recent certification election, or that any of the 15 new employees favored such representation.
Burns thus recognizes that in at least some circumstances, the democratic principle embodied in § 9 of the National Labor Relations Act is not offended,by procedures which leave some doubt as to the actual, immediate desires of employees with regard to representation. On a previous occasion the Supreme Court held that even clear and undisputed evidence that a majority of employees do not desire a particular bargaining representative may not suffice to upset "Board procedures designed to promote stability in the bargaining relationship. Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). Decisions both in this circuit and elsewhere have recognized this occasional tension between democracy and stability in the labor relations area, and have granted the Board some measure of discretion in achieving a fair balance. NLRB v. Montgomery Ward & Co., 7 Cir., 399 F.2d 409, 412 (1968); NLRB v. Frick Co., 3 Cir., 423 F.2d 1327, 1332 (1970).
Three factors distinguish our present situation from that in Burns. First, the successor in Bums began operations within the one-year period during which the prior certification created an “irre-buttable” presumption of continuing union majority. Here, the record does not reveal whether either union was ever formally certified, and it is undisputed that such certification, if any, occurred “a number of years” prior to the successor’s takeover. Second, no issue was raised in Bums concerning changes in the nature of the employer. Both predecessor and successor apparently operated on a large scale. Here, petitioners strenuously argue that the change from large to small corporate employers is of controlling significance. Third, the bargaining units in Burns were identically defined and of roughly equal size both before and after the employer change. Both units consisted of plant guards employed to fulfill a service contract covering a single plant. The units at Zim’s and Paul’s, in contrast to the multi-store predecessor units, consisted of employee groups at single stores.
Since Burns leaves unresolved these several problems raised by the peculiar facts of this case, we turn to the substantial body of relevant law developed by the Board and the Courts of Appeal.
It is well established that a Board certification creates an almost conclusive presumption of continued majority status for a reasonable period of time, usually one year. Thereafter, there exists a rebuttable presumption of majority representation. Brooks v. NLRB, supra; NLRB v. Burns International Security Services, Inc., supra, 406 U.S. n. 3 at p. 279, 92 S.Ct. 1571. Board orders based on such rebuttable presumption have been enforced on numerous occasions by the Courts of Appeal, including our own. See, e. g., NLRB v. John S. Swift Co., 7 Cir., 302 F.2d 342 (1962); Bally Case & Cooler, Inc. v. NLRB, 6 Cir., 416 F.2d 902 (1969), cert. denied, 399 U.S. 910, 90 S.Ct. 2201, 26 L.Ed.2d 562 (1970); Terrell Machine. Co. v. NLRB, 4 Cir., 427 F.2d 1088, cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970); NLRB v. Tesoro Petroleum Corp., 9 Cir., 431 F.2d 95 (1970). Furthermore, it is now recognized that the bargaining relationship need not be established by formal certification in order for the presumption to apply. NLRB v. Denham, 9 Cir., 469 F.2d 239 (1972), vacated on other grounds, 411 U.S. 945, 93 S.Ct. 1925, 36 L.Ed.2d 407 (1973); NLRB v. Frick Co., 3 Cir., 423 F.2d 1327 (1970); NLRB v. Master Touch Dental Laboratories, Inc., 2 Cir., 405 F.2d 80 (1968). In Denham, supra, the court applied Burns and enforced a Board bargaining order against a successor where the union had been recognized on the basis of a card check almost 30 years prior to the ownership change. 469 F.2d at 244. See also, NLRB v. Bachrodt Chevrolet Co., 7 Cir., 468 F.2d 963, 968 (1972), vacated on other grounds, 411 U.S. 912, 93 S.Ct. 1547, 36 L.Ed.2d 304 (1973).
The rebuttable presumption does not prevent the employer from petitioning the Board for a new election. NLRB v. Laystrom Manufacturing Co., 7 Cir., 359 F.2d 799 (1966); NLRB v. Auto Ventshade, Inc., 5 Cir., 276 F.2d 303 (1960). Nor does it affect the employees’ statutory right to seek a decertification election upon the requisite showing of substantial interest. See 29 U.S.C. § 159(c)(1) (A) (ii). The effect of the presumption is merely to require the employer to bargain with the previously recognized representative unless it can show (1) that the union in fact has lost its majority, or (2) at the least, that reasonable grounds exist for good faith doubt as to continuing majority support for the representative. Celanese Corp., 95 NLRB 664 (1951); Terrell Machine Co. v. NLRB, supra.
Since some risk is involved in a refusal to bargain, the Board has stated that the better practice is for the employer to continue to bargain while petitioning for a new election. United States Gypsum Co., 90 NLRB 964, 966 (1950). In a successorship case, where grounds for good faith doubt were lacking, the Fifth Circuit observed that “[t]he employer’s proper course is to recognize the prima facie union representation of the employees and to continue to deal with the union, but to petition the Board for a new election.” NLRB v. Auto Ventshade, Inc., supra, 276 F.2d at 307. This may conflict with the Board’s subsequent position that some objective grounds for doubting the union’s majority also must be shown in order to raise a § 9(c) “question of representation.” United States Gypsum Co., 157 NLRB 652 and 161 NLRB 601 (1966). In either event, however, the burden imposed upon employers or employees by Board policy in this area is hardly severe.
Where the Board invokes successorship to impose a bargaining obligation upon a party with no previous relations with the union, it has determined, in effect, that the fact of ownership change does not vitiate the otherwise applicable presumptions of continuing majority. This is made clear by decisions which treat good faith doubt regarding majority status as a defense to the imposition of successorship obligations. See Burns, 406 U.S. at 278, 92 S.Ct. 1571, quoted supra; Tom-A-Hawk Transit, Inc. v. NLRB, 7 Cir., 419 F.2d 1025, 1028 (1969); NLRB v. Interstate 65 Corp., 6 Cir., 453 F.2d 269, 275 (1971); NLRB v. Valleydale Packers, Inc., 5 Cir., 402 F.2d 768, 769 (1968), cert. denied, 396 U.S. 825, 90 S.Ct. 66, 24 L.Ed.2d 75 (1969). In the present case, the administrative law judge specifically found that petitioners did not base their refusals to bargain on good faith doubt. Setting aside the question whether diminution in unit size or changes in the corporate structure of the employer per se should be regarded as justifying such doubts, this finding is not disputed here and is, in fact, well supported by the record.
The Board has held that even informal employee statements to the employer regarding employee sentiment may provide a basis for good faith doubt. Wallace Co., 174 NLRB 416 (1969). Evidence that the employees were represented by a different union prior to their recent inclusion in a multi-store unit, or that other unions are demanding recognition, may also support such doubt. Cf. NLRB v. Downtown Bakery Corp., 6 Cir., 330 F.2d 921 (1964). Nothing comparable was presented here. Indeed, Zimmer’s various attempts to convince his employees to oppose the union might support an inference that he, at least, believed that employee sentiment was pro-union.
As to the problems of unit size and corporate structure, it matters not whether we analyze them in terms of per se doubts regarding union majority, or in terms of their effect upon continuity in the employing industry, the traditional determinant of successorship. See NLRB v. Colten, 6 Cir., 105 F.2d 179 (1939). In either case, the applicable policies are those set forth in Brooks, supra: (1) the employees’ right to select their bargaining representative, (2) the promotion of stable bargaining relationships, and (3) a “due regard to administrative prudence.” 348 U.S. at 103, 75 S.Ct. at 181.
Over the years, the most important element in a successorship determination has been the employee complement of the purported successor. See Goldberg, The Labor Law Obligations of a Successor Employer, 63 Nw.U.L.Rev. 735, 793-799 (1969). Here, all of the employees in the new units were previously employed by the unionized predecessor, and at the same locations. In this respect, the Board’s case is even stronger than in Bums.
There is, however, some authority for petitioners’ contention that a change in the size and operational methods of the employer is also a relevant consideration. See International Association of Machinists v. NLRB, 134 U.S.App.D.C. 239, 414 F.2d 1135, cert. denied, 396 U. S. 889, 90 S.Ct. 174, 24 L.Ed.2d 163 (1969); NLRB v. Alamo White Truck Service, Inc., 5 Cir., 273 F.2d 238 (1959); Atlantic Technical Services Corp., 202 NLRB No. 13 (1973); B&E Supermart, 195 NLRB 349 (1972). Substantial changes in the employing industry may be expected to alter employee expectations and needs, thereby changing employee sentiment with respect to representation. NLRB v. Armate, 7 Cir., 199 F.2d 800, 803 (1952).
The administrative law judge heard considerable testimony respecting the changes instituted by Zim’s and Paul’s subsequent to their takeover of the former Kroger stores. He concluded that:
“Kroger and each Respondent operated at the same location, with substantially the same physical plant and equipment; both sought and served the same customers with the same type of products; and the employees of both had the same primary job functions, immediate supervision, and working conditions, with only minor modifications. While each Respondent’s control of the enterprise and the employees is more localized, this difference is not of such magnitude as to be given controlling effect. Vis-a-vis the employees in light of their statutory bargaining rights, it cannot he held that the nature of the employing industry in each case — that of a retail grocery supermarket — has basically changed.” [Footnotes omitted.]
The changes relied on by the employers here are similar to those found insufficient to defeat successorship in NLRB v. Zayre Corp., 5 Cir., 424 F.2d 1159 (1970), and in NLRB v. Interstate 65 Corp., supra. It is apparent that the.administrative law judge considered petitioners’ contentions but concluded that the changes accompanying this business transfer were not such as to significantly affect employee attitudes. Since such determination is primarily factual and is here supported by substantial evidence, we see no reason to disturb it.
Petitioners also argue that the change here in unit size and definition should bar successorship. Such change, like the change in the size of the employer, permits the possibility that a minority or even none of the employees at Zim’s and Paul’s may now support the unions.
As exemplified by Burns, however, the courts and the Board have imposed the bargaining obligation in situations where mathematics alone might indicate a reasonable basis for doubting continued majority. Numerous cases hold that employee turnover, standing alone, does not give rise to good faith doubts regarding a union’s majority status. See, e. g., NLRB v. Bachrodt Chevrolet Co., supra, 468 F.2d at 968; NLRB v. John S. Swift Co., supra, 302 F.2d at 345; NLRB v. Little Rock Downtowner, Inc., 8 Cir., 414 F.2d 1084, 1091 (1969).
Likewise, mere diminution in the employee complement of the bargaining unit does not relieve the successor of his duty to bargain. Rohlik, Inc., 145 NLRB 1236 (1964) (successor’s work force one-third as large as predecessor’s); Western Freight Association, 172 NLRB 303 (1968) (work force reduced from 500 to 110); Royal Brand Cutlery Co., 122 NLRB 902 (1959) (work force reduced from 296 to 134). Indeed, this court has enforced a Board bargaining order where the successor retained only 8 of its predecessor’s 25 employees. NLRB v. Armato, 7 Cir., 199 F.2d 800 (1952). We there held:
“While the work force was considerably reduced, that factor standing alone did not justify the refusal to bargain. Those employees of [the successor] in the unit defined in the certification were all former [predecessor] employees and members of the union. The fact that they found themselves fewer in number than before warrants no implication that they no longer desired the union to represent them. * * * ” 199 F.2d at 803.
Armato is dispositive of petitioners’ contention that, in order to be held a successor, an employer cannot have hired less than a majority of the employees in the predecessor unit. The case holds, in effect, that the Board may treat a much-reduced bargaining unit as a miniature of the former unit.
Once it is determined that the successor unit is appropriate for bargaining, a change in unit definition, from large to smaller units, would seem not to raise any additional considerations beyond those disposed of in Armato. We therefore do not believe that the Board may be faulted for imposing the same obligation to bargain in the present situation. Cf. NLRB v. Geronimo Service Co., 10 Cir., 467 F.2d 903 (1972). There is here no dispute regarding the appropriateness of the new units. Compare Burns, supra, 406 U.S. at 297-298, 92 S.Ct. 1571 (dissenting opinion); Emerald Maintenance, Inc. v. NLRB, 5 Cir., 464 F.2d 698, 702 (1972). Nor is there any evidence that the employees of the single stores were originally brought within the multi-store unit by accretion, as in Atlantic Technical Services Corp., 202 NLRB No. 13 (1973). The record positively indicates that the grocery employees, at least, were already represented by the Retail Clerks prior to the merger of union locals which gave rise to the 11 store predecessor unit. See note 2, supra. Finally, the Board’s action here is consistent with its previous treatment of a multi-store predecessor unit in the retail food industry. See Avenue Meat Center, 184 NLRB No. 94 (1970).
Petitioners rely upon several Board cases, viz.: Atlantic Technical Services Corp., supra; American Concrete Pipe of Hawaii, Inc., 128 NLRB 720 (1960); B&E Supermart, 195 NLRB 349 (1972); and Thomas Cadillac, Inc., 170 NLRB 884 (1968) enf’d sub nom. International Association of Machinists v. NLRB, supra. We have considered these cases but are not persuaded that they dictate a contrary result.
We accept as true, as we must on the record before us, that no election has ever been held to directly determine the desires of the employees in the presently defined units. Nevertheless, the unavoidable fact is that the new units were composed entirely of former Kroger employees who had been represented for a considerable period of time by these unions, and that petitioners offered no evidence to indicate that such representation was no longer desired by the employees of these particular stores. Under these circumstances the Board acted within its authority in ordering petitioners to bargain.
We hold, therefore, that the change in unit size here presented does not per se relieve petitioners of their duty to bargain. The Board has balanced the competing considerations involved by requiring an employer who succeeds to a portion of a multi-store bargaining unit and who does not choose to bargain with the existing union to show, at the least, some objective basis for doubting the union’s continued representative status. Such requirement accords with the realities of the situation, is true to the policies of the Act, and is an appropriate exercise of Board authority.
III.
We recently held in NLRB v. Bachrodt Chevrolet Co., 7 Cir., 468 F.2d 963 (1972), that a successor employer which unilaterally changes terms and conditions of employment after its bargaining obligation has matured commits an unfair labor practice.
The Bachrodt decision was subsequently vacated by the Supreme Court and remanded to the Board for further proceedings in light of Burns. 411 U.S. 912, 93 S.Ct. 1547, 36 L.Ed.2d 304 (1973). Although our decision in Bach-rodt was rendered after Burns, the Board order which it enforced predated Burns. In its brief remand order, the Supreme Court cited two cases which require that review of an administrative agency decision be limited to the grounds upon which the agency itself purported to act. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 245-250, 92 S.Ct. 898, 31 L.Ed. 2d 170 (1972); SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943). On the unilateral changes question, our Bachrodt decision relied in part on a concept propounded in dicta in Bums which the Board had not previously considered.
The original Bachrodt decision was reaffirmed by the Board on remand, 205 NLRB No. 122 (1973), and is now pending here upon the Board’s application for enforcement. The Board’s supplemental decision adopted the reasoning of the Supreme Court as interpreted and applied by the majority in Bachrodt.
Although it would appear that the Supreme Court’s action in Bachrodt was based purely on institutional considerations, we need not pre-judge that case in order to resolve the present controversy. The point of contention in Bachrodt, as emphasized by Judge Stevens’ dissenting opinion, concerned whether the successor was bound by the predecessor’s terms where the successor announced changes on the first day he owned the business. 468 F.2d at 970-972. The majority felt that no changes could be unilaterally instituted subsequent to the formation of the new owner’s intention to hire the predecessor employees, which occurred three days prior to the changeover. Id. at 969.
Here, in contrast, petitioner Zim’s did not institute the challenged wage and hour reductions until some three weeks after its July 27 takeover of the Monroe store. The terms which were changed, while identical to those previously binding on Kroger, had been voluntarily assumed by Zim’s as its own initial terms of employment. Paul’s, in contrast, instituted its changes simultaneously with takeover and accordingly was found by the Board to have acted lawfully. See note 6, supra.
To thus distinguish between Zim’s and Paul’s on the basis of the timing of wage and hour reductions is not contrary to the teachings of Bums. There, the Court held that in the interest of promoting business transfers, a successor may not be compelled to adopt the terms of its predecessor’s labor contract. Commenting on the Board’s alternative theory of unilateral changes, the Court stated, in pertinent part:
“ * * * It is difficult
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_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
EDWARDS v. PACIFIC FRUIT EXPRESS CO.
No. 465.
Argued March 14, 1968.
Decided April 8, 1968.
Arne Werchick argued the cause for petitioner. With him on the briefs was David S. Levinson.
John J. Corrigan argued the cause for respondent. With him on the brief was Donald O. Roy.
Clifton Hildebrand filed a brief for the Brotherhood of Railway Carmen of America et al., as amici curiae, urging reversal.
Mr. Justice Black
delivered the opinion of the Court.
The Federal Employers’ Liability Act provides that every common carrier by railroad engaged in interstate commerce shall be liable in damages for the injury or death of its employees resulting in whole or in part from the negligence of the railroad or its agents or resulting from defects in its equipment due to its negligence. The question in this case is whether the respondent Pacific Fruit Express Company is a “common carrier by railroad.”
The respondent is the largest company of its kind in the United States. It owns, maintains, and leases refrigerator cars to railroads to transport perishable products in commerce. Because it repairs its own cars, it also owns buildings, plants, switching tracks, and equipment to make these repairs. While the railroads to which its cars are leased transport them as directed, the respondent Express Company reserves the right to have the cars diverted to carry out its own business plans. The petitioner Edwards works as an iceman at one of respondent’s repair and concentration plants. His duties are to transport ice and help store it in cars for carriage by the railroads. While driving a company motor vehicle in the performance of his duty as an employee for respondent, he was thrown violently to the ground, covered with burning gasoline and severely burned. He later brought this action against respondent, charging it was a “common carrier by railroad” and liable for damages under the Federal Employers’ Liability Act. Contending that it was not a railroad within the meaning of the Act, respondent company moved for a summary judgment which the District Court granted. The Court of Appeals affirmed, 378 F. 2d 54, and we granted cer-tiorari. 389 U. S. 912. We agree with both courts and affirm.
In conducting its business of providing and servicing insulated railroad cars for the carriage of perishable commodities, it is undoubtedly true that respondent performs some railroad functions. For example, it maintains and takes care of railroad cars which are leased to railroads for transportation in interstate commerce. It services these cars while in transit and controls their eventual destination. And respondent has yards and facilities for the repair and storage of its refrigerator cars. The question is whether such functions as these are sufficient to constitute respondent a “common carrier by railroad.” For the answer to this question we must look to past judicial decisions interpreting the Federal Employers’ Liability Act and also the legislative history surrounding the Act.
This Court has held that the words “common carrier by railroad” mean “one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by the mention of cars, engines, track, roadbed and other property pertaining to a going railroad . . . .” Wells Fargo & Co. v. Taylor, 254 U. S. 175, 187-188. (Emphasis added.) This interpretation of the Act with its references to “operat[ing] a railroad” and a “going railroad” would indicate that the business of renting refrigerator cars to railroads or shippers and providing protective service in the transportation of perishable commodities is not of itself that of a “common carrier by railroad.” And indeed the Wells Fargo decision held that express companies were not within the coverage of the Act. In an even earlier case, Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, this Court held that a Pullman car porter was not an employee of a railroad, hence, not within the coverage of the Act. These decisions are based on the rationale that there exist a number of activities and facilities which, while used in conjunction with railroads and closely related to railroading, are yet not railroading itself. In fact, this Court pointed out in the Robinson case, in discussing the coverage of the Federal Employers’ Liability Act, that, “It was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the Act.” 237 U. S., at 94.
In 1939 Congress substantially amended the Federal Employers’ Liability Act. Because of such decisions as Wells Fargo, supra, and Robinson, supra, one of the proposed amendments would have changed the coverage language of § 1 of the Act to read as follows: “Every common carrier by railroad, including every express company, freight forwarding company, and sleeping-car company, engaged in commerce . . . .” Obviously the proposal was designed to nullify this Court’s construction of the Act which had excluded employees of sleeping-car companies and express companies. In committee the proposal received little support and was even opposed by certain segments of organized labor, and it failed to pass. By refusing to broaden the meaning of railroads, Congress declined to extend the coverage of the Act to activities and facilities intimately associated with the business of common carrier by railroad.
Equally significant is the fact that in the years immediately preceding the 1939 amendment to the Federal Employers’ Liability Act, Congress had enacted other major labor and social transportation legislation in which refrigerator car companies were expressly included. For example, in the decade of the 1930’s Congress passed the following Acts which specifically extend coverage to “any company . . . which operates any equipment or facilities or performs any service ... in connection with . . . refrigeration or icing ... of property transported by railroad . . (1) An amendment to the Railway Labor Act, 48 Stat. 1185 (1934), 45 U. S. C. § 151. The Act as originally passed, 44 Stat. 577 (1926), did not specifically include refrigerator car companies. Congress amended it to do so. (2) The Railroad Retirement Act of 1934, 48 Stat. 1283, held unconstitutional in Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935). (3) The Railroad Retirement Act (1935), 49 Stat. 967, and (4) The Carriers’ Taxing Act, 49 Stat. 974 (1935), both of which were passed to overcome the constitutional objection to the Act of 1934. (5) The Railroad Retirement Act of 1937, 50 Stat. 307, 45 U. S. C. § 228a et seq. (1937). (6) The Carriers’ Taxing Act of 1937, 50 Stat. 435. (7) The Railroad Unemployment Insurance Act, 52 Stat. 1094, 45 U. S. C. § 351 et seq. (1938). Yet in 1939, when it came to the amendment of the Federal Employers’ Liability Act, Congress made no mention of refrigerator car companies.
In light of this history it is not surprising that there are only four reported cases where suits have been filed alleging that refrigerator car companies like respondent are covered by the Federal Employers’ Liability Act— all refusing to hold liability under the Act. The first was Gaulden v. Southern Pacific Co., 174 F. 2d 1022 (C. A. 9th Cir. 1949), where suit was brought by an iceman employed by the very refrigerator car company involved here. The Court of Appeals affirmed the District Court’s opinion (78 F. Supp. 651) holding that such a refrigerator car company was not a “common carrier by railroad.” In a subsequent case the Third Circuit, citing the Gaulden opinion, held that another refrigerator car company “which conducted a business similar in all critical aspects to that of” Pacific Fruit Express Company, was not a “common carrier by railroad.” Hetman v. Fruit Growers Express Co., 346 F. 2d 947 (C. A. 3d Cir. 1965). There have also been two state cases involving this very respondent which denied liability. In both Aguirre v. Southern Pacific Co., 232 Cal. App. 2d 636, 43 Cal. Rptr. 73, and Moleton v. Union Pac. R. Co., 118 Utah 107, 219 P. 2d 1080, cert. denied, 340 U. S. 932, the courts concluded that respondent was not a “common' carrier by railroad.”
Thus, for 60 years the Federal Employers’ Liability Act has been administered with the understanding that refrigerator car companies are not included within the terms of the Act. During that time injured employees have been taken care of under state compensation laws. In fact the petitioner here has already drawn more than $6,000 under the California compensation law. The question of whether employees shall rely on state compensation or on the Federal Employers’ Liability Act is a pure question of legislative policy, concerning which apparently even the labor organizations most interested have been divided. Under these circumstances we do not think this Court should depart from 60 years of history to do what is a job for Congress.
Affirmed.
35 Stat. 65, as amended, 45 U. S. C. § 51.
Express companies were again excluded in the subsequent case of Jones v. New York Cent. R. Co., 182 F. 2d 326 (C. A. 6th Cir. 1950), relying on the Wells Fargo decision.
S. 1708, 76th Cong., 1st Sess. (1939).
Hearings before Subcommittee of the Senate Committee on the Judiciary on Amending the Federal Employers’ Liability Act, 76th Cong., 1st Sess., 57, 58 (1939).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
In re TRANSLUX MOVIES CORPORATION et al. KNECHTEL v. H. KELLY & CO.
Nos. 7096, 7097.
Circuit Court of Appeals, Sixth Circuit
Nov. 11, 1935.
W. W. Brashear, of Detroit, Mich. (Frederick B. Darden, of Detroit, Mich., on the brief), for Knechtel, Trustee.
M. Hubert O’Brien, of Detroit, Mich., for H. Kelly & Co.
Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.
MOORMAN, Circuit Judge.
The appellee installed air-conditioning equipment in a building belonging to the Daylight Theaters Company. The installation was made under a written contract which provided that the appellee would furnish and install the equipment for $6,750, $4,500 of which was to be paid upon the completion of the installation, and the balance in six monthly installments commencing sixty days thereafter. Fifteen hundred dollars of the $4,500 was paid after the equipment was installed, and upon the later adjudication of the theaters company as a bankrupt the appellee filed a petition to reclaim the equipment, alleging that it was the owner and entitled to possession of it. After hearing proofs, the referee dismissed the petition. Upon review on a certificate of the evidence, the trial court found that the written contract had been modified by a parol agreement for the retention of title to the equipment in the seller, and entered an order granting the reclamation.
The written contract was executed for the appellee by Byrnes, its Detroit manager, and for the theaters company by Joyce, its president. Both testified at the hearing before the referee. Neither claimed that anything was incorporated into or left out of the contract by fraud or mistake. Byrnes testified that he objected to signing it because it contained no title-retaining clause, but when assured that “there was $4,500 in the bank waiting for us” when the installation was substantially completed, “I figured that I could take a gamble on the balance, which was something like $2,250, or whatever it was,” and did not insist upon inserting the clause into the contract. He was corroborated as to his objection to signing the contract and the promise of a prompt payment of the $4,500 by Tolton, another employee of the appellee.
The finding of the court was based on the testimony of Byrnes and Tolton to the effect that after the theaters company had failed to pay the $4,500 upon the completion of the installation, they called upon Joyce and inquired what protection the appellee had in case the theaters company failed, to which Joyce replied: “You have got the same protection as though you had a title-retaining contract.” Byrnes said that Joyce assured them twice during the conversation that the equipment “belonged to us and would continue to belong to us * * * just the same as if * * * the title-retaining clause was included in our contract.” Joyce denied making these statements. We assume for the purpose of decision that he made them, but we are nevertheless of opinion that there was no modification of the original contract of sale. At that time the title to the equipment was in the theaters company, and it cannot be held that statements such as it is said Joyce made had the effect of transferring it back to the appellee. There was no ambiguity in the contract. Its language was clear. Nothing was done or said to indicate a purpose to abrogate it or to amend it by making it a title-retaining contract; certainly nothing was done to pass the title back to the vendor. The statement of Joyce was at most merely a statement of his view of the legal effect of the written contract about which the appellee’s representatives knew as much as he. Mutual Life Insurance Co. v. Phinney, 178 U. S. 327, 342, 20 S. Ct. 906, 44 L. Ed. 1088. Moreover, there v/as no evidence to show that the appellee acted on the statement or assented to it. It was not a promise, but if it be assumed that it was, there is nothing in the record to show that it was accepted or that there was a consideration for it. It is true, of course, that at the time a substantial part of the promised initial payment was overdue, and also that forbearance to sue on an overdue indebtedness may constitute a consideration for a new promise or for an additional obligation. There is nothing in the record, though, to show that there was either an express or an implied agreement to refrain from bringing suit on the indebtedness. The consideration for the installation was a promise on the part of the theaters company to pay a stipulated sum. When the appellee performed its part of the contract, the obligation of the theaters company to pay this sum matured. This obligation the appellee had the right to enforce according to its terms, but it could not create a new obligation or acquire new rights under the contract without a supporting consideration (sections 2461, 2464, Page on Contracts), and even if Joyce’s statement may be regarded as a promise to retransfer title to the appellee, it is unenforceable because not supported by a consideration. In re Dubois’ Estate, 176 Mich. 407, 411, 142 N. W. 561. See, also, Empire State Surety Co. v. Hanson (C. C. A.) 184 F. 58; Brunswig Grain Co. v. Anchor Grain Co. (C. C. A.) 10 F(2d) 304, 306; Moss v. Aetna Life Ins. Co. (C. C. A. 6) 73 F(2d) 339.
The order of the court granting the reclamation is reversed, and the petition dismissed
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
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songer_casetyp1_1-3-1
|
K
|
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 v. EVERSOLE.
No. 10868.
United States Court of Appeals, Seventh Circuit.
Jan. 19, 1954.
Rehearing Denied Feb. 17, 1954.
Cecil C. Tague, Sr., Brookville, Ind., Jacob H. Martin, Sydney G. Craig, Chicago, 111., for appellant.
Jack C. Brown, U. S. Atty., Stephen Leonard and William H. Sparrenberger, Asst. U. S. Attys., Indianapolis, Ind., for appellee.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
DUFFY, Circuit Judge.
Defendant was convicted of violating 26 U.S.C.A. § 2803(a) by having in his possession a gallon of distilled spirits in a container which did not have a stamp attached showing payment of Internal Revenue taxes.
On the basis of an alleged unreasonable search and seizure, an oral motion was made at the beginning of the trial, and renewed during the trial, to suppress Exhibit I, being the jug of distilled spirits. Each motion to suppress was denied and after a trial to the court the defendant was found guilty as charged. On this appeal the sole error urged is that the jug of distilled liquor was obtained as a result of an unreasonable search and seizure. Defendant claims that the search was indiscriminate, conducted without probable cause, and in violation of his rights under the Fourth Amendment.
Chappel Road is a country highway about three miles in length, located in Franklin County, Indiana, one end of which intersects State Highway 52, which is a heavily traveled highway. On September 2, 1951, Indiana State and County police authorities and one federal officer placed road blocks near both ends of Chappel Road. The record does not disclose who was in charge of the officers, but the idea of the road block was apparently that of Sheriff Hixon of Franklin County. It is clear that the State and federal authorities were cooperating.
Considering the evidence most favorable to the government, Sheriff Hixon had received a number of complaints of drunkenness and fighting in the Chap-pel Road area, and had received reports that on previous Sundays, moonshine whiskey had been taken from the area in vehicles of various kinds. It had been reported to the Sheriff that Anderson Eversole had been seen several times in the Chappel Road area. The Sheriff knew Eversole, and that some 20 years previously he had been convicted of bootlegging. On the afternoon of Sunday, September 2, 1951, the officers who were located near the end of Chappel Road, about % of a mile distant from Highway 52, stopped an Oldsmobile car, searched it, and found moonshine whiskey.
On said date defendant had been visiting at the Richmond home located on Chappel Road. Because of a disabled leg, he had requested a ride home from one Hunter, who owned a Ford pick-up truck. Hunter asked a young man, Oliver Quinlan, to drive defendant home, and Quinlan, Dewey Richmond, and defendant started to drive down Chappel Road in the truck. They had traveled only a quarter of a mile when they came to where the Oldsmobile was standing in the road. Quinlan stopped the truck, and almost immediately thereafter saw one of the officers on the road. Quinlan and Richmond got out of the truck and as they did so one of the officers saw a glass jug on the floor board of the truck, next to defendant’s feet. The jug was taken from the truck, the federal officer examined it, smelled it, and identified it as moonshine whiskey. All three occupants of the truck were placed under arrest.
Defendant contends that at least eight automobiles and trucks were stopped by the officers in an indiscriminate search that was nothing more than a fishing expedition. In support of his claim that such search was unreasonable and illegal, he relies upon statements of the Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
In the Carroll case the court said, 267 U.S. at pages 153-154, 45 S.Ct. at page 285, “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. * * * those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”
In Brinegar, the court, after construing the Carroll case, said, 338 U.S. at pages 176-177, 69 S.Ct. at page 1311, “Both cases involve freedom to use public highways in swiftly moving vehicles for dealing in contraband, * * *. In such a case the citizen who has given no good cause for believing he is engaged in that sort of activity is entitled to proceed on his way without interference. But one who recently and repeatedly has given substantial ground for believing that he is engaging in the forbidden transportation in the area of his usual operations has no such immunity, if the officer who intercepts him in that region knows that fact at the time he makes the interception and the circumstances under which it is made are not such as to indicate the suspect is going about legitimate affairs. This-does not mean, as seems to be assumed, that every traveler along the public highways may be stopped and searched at the officers’ whim, caprice or mere suspicion.”
An interesting viewpoint is presented in Justice Jackson’s dissent in Brinegar, supra, 338 U.S. at pages 182-183, 69 S. Ct. at page 1314, were he stated he would strive hard to sustain a road block where officers were searching every car in order to apprehend a kidnapper and his child victim, but the Justice observed, “But I should not strain to sustain such a road block and universal search to salvage a few bottles of bourbon and catch a bootlegger.”
The defendant also cites Jones v. United States, 10 Cir., 131 F.2d 539, at page 540, where the court said: “This constitutional provision brings within its sweep the indiscriminate stopping and searching of automobiles on the highways on the mere chance that they contain contraband liquor.”
We think the proof to support probable cause in the case at bar is much weaker than in the Carroll and Brinegar ■cases, supra. Here there was considerable evidence that the search was indiscriminate and that several automobiles other than the Oldsmobile and the Ford truck were searched. The line between suspicion and probable cause is often ■difficult to draw. Even considering only the evidence most favorable to the government, it is doubtful that in the instant case probable cause was established within the standards of Carroll v. United States, supra, and Brinegar v. United States, supra.
However, it is unnecessary to rest our •decision in this case on the basis of unreasonable search and seizure, as we are convinced that the defendant is not and was not in a position to invoke the constitutional protection of the Fourth Amendment. The truck in which defendant was riding did not belong to him. It was owned by Hunter and was in the custody of Quinlan. At the trial •defendant protested strongly that the jug of whiskey was not his and that he knew nothing of it until it was seized by the officers. His motion to suppress did not include a request that the property be returned to him.
One who has no proprietary or .possessory interests in the premises searched or the property seized is not in .a position to claim that his constitutional rights have been violated by an unreasonable search and seizure. United States v. Pisano, 7 Cir., 193 F.2d 361, 365; Haywood v. United States, 7 Cir., 268 F. 795, 803-804. One who disclaims any title or interest in property which he seeks to challenge as evidence by reason •of an unreasonable search and seizure deprives himself of any standing to invoke the constitutional amendment. Rossi v. United States, 7 Cir., 60 F.2d 955; Scoggins v. United States, D.C.Cir., 202 F.2d 211; Connolly v. Medalie, 2 Cir., 58 F.2d 629. Judgment affirmed.
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:
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songer_genapel2
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
NATIONAL RAILROAD PASSENGER CORPORATION, Plaintiff-Appellee, v. Robert W. BLANCHETTE et al., Defendants-Appellants.
No. 76-1829.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 29, 1976.
Decided Feb. 15, 1977.
Carl Helmetag, Jr., Philadelphia, Pa., for defendants-appellants.
Andrew J. Valentine, Washington, D. C., Karl J. Stipher, Charles T. Richardson, Indianapolis, Ind., for plaintiff-appellee.
Before HASTINGS and MOORE, Senior Circuit Judges, and SPRECHER, Circuit Judge.
The Honorable Leonard P. Moore, Senior United States Circuit Judge of the United States Court of Appeals for the Second Circuit, is sitting by designation.
HASTINGS, Senior Circuit Judge.
We are concerned here with various issues arising out of an order by the district court, entered on March 24, 1976, confirming an arbitration award compelling the restoration of certain tracks by Penn Central Transportation Company (Penn Central); and also with the judgment entry and memorandum order by the district court entered on June 25, 1976, granting the motion of the National Railroad Passenger Corporation (Amtrak) for summary judgment in a declaratory judgment action, thereby enforcing the district court’s previous order of confirmation. Penn Central has appealed.
I
For purposes of clarity we first mention three relevant substantive legislative enactments of the Congress:
1. The Bankruptcy Act of 1898, which was amended in 1933 by adding Section 77 thereto, which provided for the reorganization of railroads. Section 77 furnished the structural framework by which Penn Central commenced its reorganization proceedings before the United States District Court for the Eastern District of Pennsylvania (Reorganization Court). Bankruptcy Act of 1898, as amended, 11 U.S.C. § 205; Reorganization of Railroads.
2. The Rail Passenger Service Act of 1970, 45 U.S.C. § 501, et seq., which created the National Railroad Passenger Corporation, a for-profit corporation, pursuant to the District of Columbia Business Corporation Act, to provide intercity rail passenger service over a designated basic national rail passenger system, as a private enterprise, but with federal financial assistance. The need for such a corporation arose from the specific Congressional finding that a modern, efficient, intercity railroad passenger service was a necessary part of a balanced transportation system and was in the national interest. The National Railroad Passenger Corporation (Amtrak) was authorized to contract with each railroad operating passenger trains in a basic system, for use by Amtrak of railroad tracks, facilities and services “on such terms and conditions as the parties may agree.” See 45 U.S.C. § 562(a). Subsequent amendments to 45 U.S.C. § 501, et seq., have merely supplemented the basic legislation. See Amtrak Improvement Act of 1974 (Public Law 93— 496, October 28, 1974, 88 Stat. 1527). The Amtrak Improvement Act of 1974, supra, amended the name of the Railroad Passenger Service Act of 1970 to become the Rail Passenger Service Act. See Section 12 of the 1974 amendment. The Act is referred to by the parties and will herein be referred to simply as the “Amtrak Act.”
3. The Regional Rail Reorganization Act of 1973, 45 U.S.C. § 701, et seq. (Public Law 93 — 236, January 2, 1974, 87 Stat. 986), referred to by the parties and by our court as the “Rail Act,” provided for the establishment of the United States Railway Association and the Consolidated Rail Corporation (ConRail), both with enumerated powers and duties. The United States Railway Association was created as a Government corporation, incorporated under the District of Columbia Nonprofit Corporation Act, and was empowered to prepare and implement a Final System Plan. ConRail was created as a for-profit corporation, incorporated under the laws of a state, with its principal office in Philadelphia, Pennsylvania. Pursuant to Section 742, ConRail was to acquire, operate, rehabilitate and maintain efficient rail service over the rail lines designated in the Final System Plan.
Amtrak brought the instant declaratory judgment action on May 5, 1976, pursuant to 28 U.S.C. §§ 2201 and 2202, alleging both diversity of citizenship and federal question jurisdiction. The relief sought was an order to show cause upon Penn Central why a quarterly work schedule for the restoration of 360 miles of Penn Central tracks had not been submitted to Amtrak on May 3, 1976, as required by the order of confirmation and the arbitration award referred to earlier. This declaratory action was brought in the United States District Court for the Southern District of Indiana, Indianapolis Division.
Amtrak initiated arbitration proceedings on August 18, 1972, in the Reorganization Court, pursuant to a broad arbitration clause entered into by the parties in The National Railroad Passenger Corporation Agreement of April 16, 1971. This agreement is referred to by the parties as the “Basic Agreement,” and was mandated by Section 561(a) of the Amtrak Act, 45 U.S.C. § 501, et seq., whereby Amtrak was directed to contract with the railroad “to relieve the railroad of its entire responsibility for the provision of intercity rail passenger service” under “such terms and conditions as necessary to permit the Corporation [Amtrak] to undertake passenger service on a timely basis.”
Under the terms of the Basic Agreement, Amtrak undertook to assume the intercity rail passenger responsibilities of the Trustees of Penn Central and all other contracting railroads, and Penn Central undertook to render certain services to Amtrak and to maintain its rail lines used by Amtrak at an agreed upon “level of utility.”
Under Article Six of the Basic Agreement any “claim or controversy” between Amtrak and Penn Central was to be resolved by binding arbitration in accordance with the provisions of The National Railroad Passenger Corporation Arbitration Agreement separately contracted to by the parties on April 16, 1971. Referred to by the parties as the “Arbitration Agreement,” Section 4.2 provides:
“* * * [A]ny arbitration award hereunder made by a majority of the members of any .Arbitration Panel shall be binding upon the parties thereto. Any arbitration award hereunder shall declare the rights of the parties thereto and may make awards of money, or enjoin or otherwise operate in such a way as to require specific performance by a party of any act or obligation.” (Emphasis added.)
Section 4.3 of the Arbitration Agreement further provides:
“Judgment may be entered upon any arbitration award hereunder * * * in any United States District Court.”
A dispute arose between Amtrak and Penn Central concerning the “level of utility” of about 360 miles of certain rail lines of Penn Central connecting Kankakee, Illinois, with Louisville, Kentucky, and Cincinnati, Ohio, via Indianapolis, Indiana, under the Basic Agreement of 1971. Amtrak’s . claim that Penn Central had defaulted in its obligation to maintain the track was duly submitted to the National Arbitration Panel.
After the parties submitted extensive written memoranda and oral testimony was heard, the arbitration was interrupted by an “Emergency Order”- of the Federal Railroad Administration on August 1, 1974. This emergency order terminated Amtrak’s service on the above-mentioned Penn Central line because the track had been found to be “in an unsafe condition,” creating “an emergency situation involving a hazard of death or injury to persons affected by the use thereof.”
Without objection from Penn .Central and in accordance with its rules, the Panel began additional hearings, accepted a revised request for an award from Amtrak, and received additional evidence on September 11, September 24, September 29 and December 16, 1975, and January 20, 1976. Thereafter, on February 3, 1976, the National Arbitration Panel issued a written award in NAP Case No. 11, In Re: Level of Utility, with the following declarations and awards:
First, the Panel declared that Amtrak had a contract right to have the Penn Central rail lines connecting Kankakee with Cincinnati and with Louisville via Indianapolis kept “at no less than the level of utility” which existed on May 1, 1971.
Second, the Trustees of Penn Central had defaulted in keeping this bargain.
Third, the Trustees were ordered to “cause” the restoration of these lines to their proper condition by January 1,1978, in accordance with a “Panel Program,” which provided, inter alia, for a detailed work schedule to be submitted to Amtrak within ninety days of this award.
The estimates of the cost of these repairs ranged from 22 million dollars, based upon independent evaluation, to 11 million dollars, estimated by Penn Central using its own employees. Costs were estimated in terms of October 1975. The Panel’s award further provided that Penn Central would bear the entire financial burden of the repairs.
A dissenting opinion was handed down by Panel Member Johnson, recommending the denial of Amtrak’s claim for specific performance. He noted that in 1971 the rail lines were already in a state of deterioration and that the present award would upgrade the lines beyond the May 1, 1971, level at the total expense of Penn Central. Although conceding that Penn Central had in fact defaulted by permitting the lines to deteriorate generally since 1971, Arbitrator Johnson stated that, upon the record, the issue of what constituted maintenance on the one hand and rehabilitation on the other, had not been answered. Johnson, therefore, concluded that the inequity of ordering Penn Central to pay the entire cost of the “Panel Program” was an arbitrary interpretation of Section 4.2, supra, and suggested that the expense of the program be shared equally.
On February 4,1976, pursuant to 9 U.S.C. § 9, United States Arbitration Act, and Section 4.3 of the Arbitration Agreement, supra, Amtrak petitioned the United States District Court for the Southern District of Indiana, Indianapolis Division, for confirmation of the arbitration award. However, on February 17, 1976, Penn Central petitioned the Reorganization Court in the Eastern District of Pennsylvania for an order requiring Amtrak to show cause “why it should not be required * * * to comply with the provisions of Order No. 238 and, pending the filing of said petition, why it should not be enjoined from proceeding further in the [Confirmation Proceeding].”
In authorizing the Trustees of Penn Central to enter into the Basic Agreement with Amtrak, the Reorganization Court in Order No. 238, in pertinent parts, stated:
“1. The Trustees are authorized to execute a contract with Amtrak in substantially the form submitted to the Court at the hearing, PROVIDED, however, * * (b) that whenever any matter is resolved by arbitration pursuant to the Main Agreement or the Arbitration Agreement, the decision shall be submitted to this court for review and approval before becoming finally binding upon the Trustees or the Debtor, during the pendency of these reorganization proceedings.
# * # 9ft * *
“4. The Court reserves jurisdiction over said contract for the purpose of directing such actions and granting such further relief as may be necessary to protect the interests of the Debtor’s Estate.”
The Reorganization Court, however, never ruled on Penn Central's February 17, 1976, petition to show cause, because the Trustees of Penn Central subsequently consented to the entry of a judgment in the Indiana Court. The consent of the Trustees, and by implication that of the Reorganization Court, was induced by the assurances of counsel for Amtrak that it was only attempting to liquidate its claim in the Indiana court, and that Amtrak was well aware of and, in fact, accepted the primary jurisdiction of the Reorganization Court.
Language from Amtrak’s memorandum, as it appears in the record in the Reorganization Court, reads:
“any judgment entered by the Indianapolis District Court upon Amtrak’s Petition to Confirm will not serve to make the award of the National Arbitration Panel finally binding upon the Trustees. To become finally binding, execution on the judgment would be necessary. Yet execution in any court other than this Reorganization Court would so manifestly interfere with the Court’s exclusive jurisdiction to control the administration of the estate that it would be impossible to support in law or fact. Therefore, in order for Amtrak to make the award finally binding upon the Trustees, the entire matter will eventually have to be submitted in the bankruptcy proceedings * * * The mere fact that the arbitration claim has been reduced to a judgment will not prevent this Court from making an inquiry since the merger of a claim into a judgment does not change its nature as far as provability is concerned.”
Thereafter, the Trustees consented to the entry of judgment in the Confirmation Proceedings in Indiana, based upon the above assertions in the Reorganization Court, that the Indiana Court would review the arbitration proceedings “to see that the award was a proper award and that the arbitrators acted honestly and did not exceed their powers.” Thereafter, the Indiana Court entered an Order of Confirmation on March 24, 1976.
On April 9, 1976, Amtrak petitioned the Reorganization Court for enforcement of the now confirmed Arbitration Award. Penn Central, thereafter, filed an answer to the petition for enforcement, asserting that the award could not be enforced against Penn Central because the rail tracks in question had been conveyed to ConRail pursuant to the Rail Act, and therefore, Penn Central’s obligation to restore the tracks was terminated. Amtrak secured an indefinite postponement of its petition in the Reorganization Court, returned to the Indiana Court and filed its instant declaratory judgment action in Indiana.
During the arbitration proceedings between the litigants, Congress supplemented Section 77 of the Bankruptcy Act with the Rail Act, as herein earlier set out. The Rail Act, like the Amtrak Act, was designed to revitalize the nation’s rail system, and the rail lines in issue here were designated for transfer to ConRail. Penn Central contends that such a transfer to ConRail relieved it of the responsibility to restore the 360 miles of track, and that, in any event, the issue was one in the exclusive jurisdiction of the Reorganization Court pursuant to its Order 238, supra.
At the center of this controversy is the Indiana Court’s conclusion of law that:
“5. The judgment upon the arbitration award of the National Arbitration Panel entered by this Court on March 24, 1976, is res judicata concerning and is a conclusive bar against any further legal claims which may be made by the Trustees that:
(a) the award of the National Arbitration Panel and judgment of this Court entered thereon is invalid and nonenforceable because of the provisions of the Regional Rail Reorganizar tion Act of 1973; or
(b) the rehabilitation of the rail lines which are the subject of this controversy at the sole cost of the Trustee is unreasonable or inequitable in view of the April 1,1976, transfer of these lines to ConRail; or
(c) the judgment should not be carried out because of any facts, circumstances or legal defenses which could have been or ought to have been asserted during the confirmation proceedings as a ground for vacating the award under the provisions of Section 10 of the Federal Arbitration Act or for modifying or correcting this award under Section 11 of the Federal Arbitration Act, 9 U.S.C. §§ 10 and 11.”
It is quite clear to us that the Indiana Court intended to and did set up its judgment upon the arbitration award as a final and conclusive judgment, holding that it was res judicata concerning the arbitration award and a complete bar to further consideration of the claims set out in- subparagraphs (a), (b) and (c) above.
At this point it appears relevant to report a late happening. On September 30, 1976, Judge Fullam of the Reorganization Court entered Order No. 2569 which denied Amtrak’s petition for an order authorizing, instructing and directing the Trustees of Penn Central to carry out the judgment of the Indiana District Court to restore or cause to be restored certain rail lines in Indiana. Judge Fullam further enjoined Amtrak, pursuant to Order 238, supra, as follows:
“The Petitioner, National Rail Passenger Corporation (‘Amtrak’), is enjoined from instituting or furthering any legal proceeding for the assertion or enforcement against the Trustees or the estate of the Debtor of any alleged obligation or liability for track maintenance or improvement, in any jurisdiction or before any tribunal except this Court, (or, if appropriate, in the Special Court), or as otherwise ordered by this Court. Nothing in this order shall be deemed to apply to the appeal now pending in the Circuit Court of Appeals of the Seventh Circuit, nor to any appeal from this or any other Order of this Court.” (Emphasis added).
On October 1,1976, Judge Fullam handed down a Memorandum and Order with respect to his Order No. 2569. This appears in Appendix F of Amtrak’s brief filed here in the instant appeal. Judge Fullam, inter alia, gave an analysis of the procedural history of this proceeding with respect to the Indiana Court. He fully considered the effect of the Rail Act as it related to Con-Rail. He paid his respects to Amtrak’s intentions, absent the injunctive restrictions hereinabove set out, to return to the Indiana Court, or perhaps other courts in an attempt to obtain a further expansion of the confirmed arbitrator’s award, or perhaps in some other fashion to obtain “reparations.” Judge Fullam, stating that he was unable to fully understand the legal theory or basis for Amtrak’s attempts, held that the injunction should remain in effect.
II
We first consider whether the Indiana Court had jurisdiction by declaratory judgment or any other judicial means to circumscribe the jurisdiction of the Pennsylvania Reorganization Court, as to the enforcement of an arbitration award which was subsequently confirmed by the Indiana Court.
At the outset it seems quite clear to us that in a railroad reorganization, the power to resolve all disputes involving the estate and to determine the enforceability and status of all claims is vested exclusively in the Reorganization Court. See the injunctive powers in Section 77(j) of the Bankruptcy Act, 11 U.S.C. § 205(j). Baker v. Gold Seal Liquors, 417 U.S. 467, 477, 94 S.Ct. 2504, 41 L.Ed.2d 243 (1974), Mr. Justice Stewart concurring. Baker was a Penn Central reorganization case in which the Seventh Circuit was reversed. In the New Haven Inclusion Gases, 399 U.S. 392, 90 S.Ct. 2054, 26 L.Ed.2d 691 (1970), a similar question was presented concerning a railroad reorganization under Section 77. Two groups of creditors sought relief in different tribunals. The two courts reached different decisions as to the proper compensation. The Supreme Court on review of the proceedings, first addressed itself to the conflict of jurisdiction and found that it rested exclusively in the Reorganization Court. New Haven Cases, 399 U.S. at 426, 428-429, 90 S.Ct. 2054.
We find that the plenary and exclusive jurisdiction of the Reorganization Court to determine issues that directly affect and concern the reorganization, including the enforcement of the Arbitration Award, is exemplified by In Re New York, New Haven and Hartford Railroad Co., 2 Cir., 457 F.2d 683 (1972), cert. denied, Smith v. Baker, 409 U.S. 890,93 S.Ct. 106, 34 L.Ed.2d 147, reh. denied, 409 U.S. 1019, 93 S.Ct. 430, 34 L.Ed.2d 311 (1972). The court there was presented with the “conflict of jurisdiction between two federal courts each claiming jurisdiction to affect interests in certain property over which, under a literal reading of § 77(a), one federal court has ‘exclusive jurisdiction.’ ” 457 F.2d at 687.
The court held that the New Haven Railroad Reorganization Court was without jurisdiction to establish a lien against the Penn Central properties in favor of the New Haven. The court further held that the exclusive jurisdiction to determine how claims or rights should be enforced in the Penn Central reorganization rested solely in the Penn Central Reorganization Court. The court was careful to stress the Congressional purpose behind the enactment of Section 77 in general and the necessity to award the overlapping jurisdiction of numerous courts. To hold otherwise “would tend greatly to foment conflicts between coordinate courts * * 457 F.2d at 688-689. (Citations omitted.)
This is not to say that the Reorganization Court may not delegate to other forums the resolution of factual disputes while retaining jurisdiction in itself over the enforcement of factual determinations made elsewhere. In its Order No. 771, the Reorganization Court recognized that the merits of a contractual dispute are clearly severable from the reorganization proceeding itself, so long as that court retains to itself the jurisdiction to decide at a later stage, if necessary, all issues concerning the implementation of any relief which may be granted in the state court action. In the New Haven Inclusion Cases, 399 U.S. at 433-34, 90 S.Ct. 2054, the Supreme Court gave its imprimatur to such a practice.
This practice is further evidenced by the Reorganization Court’s authorization to the Trustees to enter into the Basic Agreement with Amtrak, which contained a provision for the arbitration of disputes arising from the interpretation of the Agreement, and retaining to itself jurisdiction over the enforcement of any arbitration awards (Order No. 238).
In support of their motion for summary judgment in the Indiana Court, Amtrak relied upon The Hartbridge, 2 Cir., 57 F.2d 672, 673 (1932), cert. denied, Munson S. S. Line v. North of England S. S. Co., Ltd., 288 U.S. 601, 53 S.Ct. 320, 77 L.Ed. 977 (1933), to support their position that because the Trustees have had their “day in court,” they could not then seek review in the Reorganization Court of matters previously litigated. The Hartbridge, however, only goes so far as to say that where a party to an arbitration award has not opposed a proceeding to confirm it, that party cannot later move to vacate the award. Here the Trustees did not seek to have the award vacated. The Trustees say they were satisfied that the arbitrators acted properly in confining their inquiry to the determination of the Trustees’ obligations under the agreement, leaving to the Reorganization Court the enforcement of the award. The analogy drawn between the decision of the court in Hartbridge and the instant case is misplaced.
Of direct interest here is Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1040). Kalb arose under the provisions of Section 75 of the Bankruptcy Act, 11 U.S.C. § 203 (the Frazier-Lemke Act). Kalb, a farmer, filed a petition for the composition and extension of time to pay his debts. Two mortgagees began foreclosure proceedings against Kalb’s Wisconsin farm while the petition was pending. Kalb’s land was sold by the sheriff under a judgment of foreclosure. Kalb took no steps to stay the foreclosure or the action to enforce it. On appeal from the judgment of the Supreme Court of Wisconsin in favor of the mortgagees, the jurisdiction of the Wisconsin Supreme Court to proceed as it did was presented to the Supreme Court of the United States. Id. at 436, 60 S.Ct. 343.
Speaking for the Court in Kalb, Mr. Justice Black wrote, inter alia, “The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit the jurisdiction which courts, state or federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law. * * * We think the language and broad policy of the Frazier-Lemke Act conclusively demonstrate that Congress intended to, and did deprive the Wisconsin County Court of the power and jurisdiction to continue or maintain in any manner the foreclosure proceedings * * * without the consent after hearing of the bankruptcy court in which the farmer’s petition was then pending.” Id. 308 U.S. at 439-440, 60 S.Ct. at 346.
It seems quite clear to us that the Indiana Court was without jurisdiction by declaratory judgment, or other judicial means, to circumscribe the jurisdiction of the Pennsylvania Reorganization Court as to the enforcement of an arbitration award which was subsequently confirmed by the Indiana Court, and we now so hold.
III
Penn Central questions whether the Indiana Court had before it a “controversy” which would give it jurisdiction under the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, to determine the effect of its earlier order. In short, Penn Central contends that the declaratory judgment here is an advisory opinion and a nullity under the Declaratory Judgment Act.
In view of opr disposition of this appeal we shall assume that there was a “controversy” before the Indiana Court which enabled it to proceed. Whether the actions it took were proper is quite another question.
IV
We next proceed to the question of whether the Indiana Court was correct in holding that its earlier confirmation order was res judicata in the proceedings which earlier had been commenced in the Reorganization Court to enforce the confirmed order.
As hereinabove indicated in Part I of this opinion, the Indiana Court expressly held that its judgment of March 24, 1976, upon the arbitration award was a final and conclusive judgment and was res judicata concerning and was a conclusive bar against any further legal claims which may be made by the Trustees and explicitly set out the nature of the claims so barred.
Amtrak’s complaint sought a declaratory judgment from the Indiana Court as to whether issues raised in the Trustees’ answer to Amtrak’s petition in the enforcement proceedings were barred by res judicata.
We are unable to find any precedent, and none has been cited to us, for referring back to the court of first adjudication (the Indiana Court) the question of whether its judgment is res judicata in another court, here, the Reorganization Court. The law is to the contrary. That is, in this case the Reorganization Court has the responsibility to decide whether the issues before it are barred by the prior adjudication in the Indiana Court. Cf. Donovan v. City of Dallas, 377 U.S. 408, 412, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), citing Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922).
The Trustees left no doubt as to their position and the record clearly shows that the Confirmation Proceeding had the limited purpose to review the arbitration proceedings “to see that the award was a proper award and that the arbitrators acted honestly and did not exceed their powers.” To that limited extent only the Indiana Court acted within its powers. See 9 U.S.C. §§ 9, 10 and 11.
We find nothing in the Act of Congress that expresses any intent that the Reorganization Court was to be divested of its plenary powers in preference to the declaratory judgment power of the Indiana Court.
In passing, we note here that the Arbitration Panel held that it was without jurisdiction to decide the ConRail issue. The issue was not raised before the Indiana Court. Yet, Amtrak urged and the Indiana Court held that the Trustees could not raise the issue of the transfer of the subject rail lines to ConRail.
We are therefore compelled to the conclusion that the Indiana Court erred in finding that the enumerated bars against the Trustees were res judicata of the matters set out in its Conclusion of Law No. 5, supra, and we so hold.
IN SUMMARY
In view of the foregoing, we hold that the Declaratory Judgment of the Indiana Court was an improper exercise of its limited jurisdiction and was wrong on the merits. Accordingly, the judgment of the Indiana Court is reversed. This case is remanded to the Indiana Court with directions to vacate its declaratory judgment.
The issues hereinabove discussed are within the exclusive jurisdiction of the Pennsylvania Reorganization Court and it may now proceed therewith.
REVERSED.
REMANDED WITH DIRECTIONS.
This opinion was written and approved by the panel and sent to Midwest Law Printing Co., Inc., for printing prior to Judge Hastings’ death on February 7, 1977.
. United States District Court for the Southern District of Indiana, Indianapolis Division, the Honorable William E. Steckler, Chief Judge, presiding.
. The National Arbitration Panel is a special arbitration panel created in Article One of the Arbitration Agreement of April 16, 1971. The panel is composed of three arbitrators representing both railroad and Amtrak interests, and convenes in Washington, D. C. The jurisdiction of the panel is limited to “claims or controversies” that may arise under the Basic Agreement.
. As the Supreme Court recognized in the Regional Rail Reorganization Act Cases, 419 U.S. 102, 153, 95 S.Ct. 335, 363, 42 L.Ed.2d 320 (1974):
“Congress, in enacting those provisions, clearly intended to legislate pursuant to the
bankruptcy power. The Rail Act, like § 77 of the Bankruptcy Act, which the Rail Act supplements, merely ‘advances another step in the direction of liberalizing the law on the subject of bankruptcies,’ . . . (Citations omitted.)
. Amtrak has in fact appealed from Judge Fullam’s Order No. 2569, as we were advised by counsel during oral argument. This appeal is now pending before the Court of Appeals for the Third Circuit.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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sc_petitioner
|
028
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
MISSOURI et al. v. JENKINS et al.
No. 88-1150.
Argued October 30, 1989
Decided April 18, 1990
White, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III and IV, in which Brennan, Marshall, Blackmun, and Stevens, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined, post. p. 58.
H. Bartow Farr III argued the cause for petitioners. With him on the briefs were William Webster, Attorney General of Missouri, James B. Deutsch, Deputy Attorney General, Michael J. Fields, Assistant Attorney General, and David R. Boyd.
Allen R. Snyder argued the cause for respondents. With him on the brief for respondents Kalima Jenkins et al. were DavidS. Tatel, Walter A. Smith, Jr., Patricia A. Brannan, Shirley W. Keeler, Arthur A. Benson II, James S. Liebman, Julius L. Chambers, James M. Nabrit III, Theodore M. Shaw, and Norman J. Chachkin. Michael D. Gordon and Lawrence A. Poltrock filed a brief for respondent American Federation of Teachers, Local 691.
Briefs of amici curiae urging reversal were filed for the State of New Mexico by Hal Stratton, Attorney General, Randall W. Childress, Deputy Attorney General, Charles R. Peifer, Chief Assistant Attorney General, and Paul Farley, Assistant Attorney General; for Jackson County, Missouri, by John B. Williams and Russell D. Jacobson; for the National Governors’ Association et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Andrew D. Hurwitz; and for Icelean Clark et al. by Mark J. Bredemeier and Jerald L. Hill.
Peter S. Hendrixson filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus curiae urging affirmance.
Justice White
delivered the opinion of the Court.
The United States District Court for the Western District of Missouri imposed an increase in the property taxes levied by the Kansas City, Missouri, School District (KCMSD) to ensure funding for the desegregation of KCMSD’s public schools. We granted certiorari to consider the State of Missouri’s argument that the District Court lacked the power to raise local property taxes. For the reasons given below, we hold that the District Court abused its discretion in imposing the tax increase. We also hold, however, that the modifications of the District Court’s order made by the Court of Appeals do satisfy equitable and constitutional principles governing the District Court’s power.
I
In 1977, KCMSD and a group of KCMSD students filed a complaint alleging that the State of Missouri and surrounding school districts had operated a segregated public school system in the Kansas City metropolitan area. The District Court realigned KCMSD as a party defendant, School Dist. of Kansas City v. Missouri, 460 F. Supp. 421 (WD Mo. 1978), and KCMSD filed a cross-claim against the State, seeking indemnification for any liability that might be imposed on KCMSD for intradistrict segregation. After a lengthy trial, the District Court found that KCMSD and the State had operated a segregated school system within the KCMSD. Jenkins v. Missouri, 593 F. Supp. 1485 (1984).
The District Court thereafter issued an order detailing the remedies necessary to eliminate the vestiges of segregation and the financing necessary to implement those remedies. Jenkins v. Missouri, 639 F. Supp. 19 (1985). The District Court originally estimated the total cost of the desegregation remedy to be almost $88 million over three years, of which it expected the State to pay $67,592,072 and KCMSD to pay $20,140,472. Id., at 43-44. The court concluded, however, that several provisions of Missouri law would prevent KCMSD from being able to pay its share of the obligation. Id., at 44. The Missouri Constitution limits local property taxes to $1.25 per $100 of assessed valuation unless a majority of the voters in the district approve a higher levy, up to $3.25 per $100; the levy may be raised above $3.25 per $100 only if two-thirds of the voters agree. Mo. Const., Art. X, §§ 11(b),(c). The “Hancock Amendment” requires property tax rates to be rolled back when property is assessed at a higher valuation to ensure that taxes will not be increased solely as a result of reassessments. Mo. Const., Art. X, § 22(a); Mo. Rev. Stat. §137.073.2 (1986). The Hancock Amendment thus prevents KCMSD from obtaining any revenue increase as a result of increases in the assessed valuation of real property. “Proposition C” allocates one cent of every dollar raised by the state sales tax to a schools trust fund and requires school districts to reduce property taxes by an amount equal to 50% of the previous year’s sales tax receipts in the district. Mo. Rev. Stat. §164.013.1 (Supp. 1988). However, the trust fund is allocated according to a formula that does not compensate KCMSD for the amount lost in property tax revenues, and the effect of Proposition C is to divert nearly half of the sales taxes collected in KCMSD to other parts of the State.
The District Court believed that it had the power to order a tax increase to ensure adequate funding of the desegregation plan, but it hesitated to take this step. It chose instead to enjoin the effect of the Proposition C rollback to allow KCMSD to raise an additional $4 million for the coming fiscal year. The court ordered KCMSD to submit to the voters a proposal for an increase in taxes sufficient to pay for its share of the desegregation remedy in following years. Jenkins v. Missouri, 639 F. Supp., at 45.
The Court of Appeals for the Eighth Circuit affirmed the District Court’s findings of liability and remedial order in most respects. Jenkins v. Missouri, 807 F. 2d 657 (1986) (in banc). The Court of Appeals agreed with the State, however, that the District Court had failed to explain adequately why it had imposed most of the cost of the desegregation plan on the State. Id., at 684, 685. The Eighth Circuit ordered the District Court to divide the cost equally between the State and KCMSD. Id., at 685. We denied certiorari. Kansas City, Missouri, School Dist. v. Missouri, 484 U. S. 816 (1987).
Proceedings before the District Court continued during the appeal. In its original remedial order, the District Court had directed KCMSD to prepare a study addressing the usefulness of “magnet schools” to promote desegregation. Jenkins v. Missouri, supra, at 34-35. A year later, the District Court approved KCMSD’s proposal to operate six magnet schools during the 1986-1987 school year. The court again faced the problem of funding, for KCMSD’s efforts to persuade the voters to approve a tax increase had failed, as had its efforts to seek funds from the Kansas City Council and the state legislature. Again hesitating to impose a tax increase itself, the court continued its injunction against the Proposition C rollback to enable KCMSD to raise an additional $6.5 million. App. 138-142.
In November 1986, the District Court endorsed a marked expansion of the magnet school program. It adopted in substance a KCMSD proposal that every high school, every middle school, and half of the elementary schools in KCMSD become magnet schools by the 1991-1992 school year. It also approved the $142,736,025 budget proposed by KCMSD for implementation of the magnet school plan, as well as the expenditure of $52,858,301 for additional capital improvements. App. to Pet. for Cert. 120a-124a.
The District Court next considered, as the Court of Appeals had directed, how to shift the cost of desegregation to KCMSD. The District Court concluded that it would be “clearly inequitable” to require the population of KCMSD to pay half of the desegregation cost, and that “even with Court help it would be very difficult for the KCMSD to fund more than 25% of the costs of the entire remedial plan.” Id., at 112a. The court reasoned that the State should pay for most of the desegregation cost under the principle that “ ‘the person who starts the fire has more responsibility for the damages caused than the person who fails to put it out/” id. át Illa, and that apportionment of damages between the State and KCMSD according to fault was supported by the doctrine of comparative fault in tort, which had been adopted by the Missouri Supreme Court in Gustafson v. Benda, 661 S. W. 2d 11 (1983). The District Court then held that the State and KCMSD were 75% and 25% at fault, respectively, and ordered them to share the cost of the desegregation remedy in that proportion. To ensure complete funding of the remedy, the court also held the two tortfeasors jointly and severally hable for the cost of the plan. App. to Pet. for Cert. 113a.
Three months later, the District Court adopted a plan requiring $187,450,334 in further capital improvements. 672 F. Supp. 400, 408 (WD Mo. 1987). By then it was clear that KCMSD would lack the resources to pay for its 25% share of the desegregation cost. KCMSD requested that the District Court order the State to pay for any amount that KCMSD could not meet. The District Court declined to impose a greater share of the cost on the State, but it accepted that KCMSD had “exhausted all available means of raising additional revenue.” Id., at 411. Finding itself with “no choice but to exercise its broad equitable powers and enter a judgment that will enable the KCMSD to raise its share of the cost of the plan,” ibid., and believing that the “United States Supreme Court has stated that a tax may be increased if ‘necessary to raise funds adequate to... operate and maintain without racial discrimination a public school system/” id., at 412 (quoting Griffin v. Prince Edward County School Bd., 377 U. S. 218, 233 (1964)), the court ordered the KCMSD property tax levy raised from $2.05 to $4.00 per $100 of assessed valuation through the 1991-1992 fiscal year. 672 F. Supp., at 412-413. KCMSD was also directed to issue $150 million in capital improvement bonds. Id., at 413. A subsequent order directed that the revenues generated by the property tax increase be used to retire the capital improvement bonds. App. to Pet. for Cert. 63a.
The State appealed, challenging the scope of the desegregation remedy, the allocation of the cost between the State and KCMSD, and the tax increase. A group of local taxpayers (Clark Group) and Jackson County, Missouri, also appealed from an order of the District Court denying their applications to intervene as of right. A panel of the Eighth Circuit affirmed in part and reversed in part. 855 F. 2d 1295 (1988). With respect to the would-be intervenors, the Court of Appeals upheld the denial of intervention. Id., at 1316-1317. The scope of the desegregation order was also upheld against all the State’s objections, id., at 1301-1307, as was the allocation of costs, id., at 1307-1308.
Turning to the property tax increase, the Court of Appeals rejected the State’s argument that a federal court lacks the judicial power to order a tax increase. The Court of Appeals agreed with the District Court that Griffin v. Prince Edward County School Bd., supra, at 233, had established the District Court’s authority to order county officials to levy taxes. Accepting also the District Court’s conclusion that state law prevented KCMSD from raising funds sufficient to implement the desegregation remedy, the Court of Appeals held that such state-law limitations must fall to the command of the Constitution. 855 F. 2d, at 1313.
Although the Court of Appeals thus “affirm[ed] the actions that the [District] [C]ourt has taken to this point,” id., at 1314, it agreed with the State that principles of federal/state comity required the District Court to use “minimally obtrusive methods to remedy constitutional violations.” Ibid. The Court of Appeals thus required that in the future, the District Court should not set the property tax rate itself but should authorize KCMSD to submit a levy to the state tax collection authorities and should enjoin the operation of state laws hindering KCMSD from adequately funding the remedy. The Court of Appeals reasoned that permitting the school board to set the levy itself would minimize disruption of state laws and processes and would ensure maximum consideration of the views of state and local officials. Ibid.
The judgment of the Court of Appeals was entered on August 19, 1988. On September 16, 1988, the State filed with the Court of Appeals a document styled “State Appellants’ Petition for Rehearing En Banc.” App. 489-502. Jackson County also filed a “Petition... for Rehearing by Court En Banc,” id., at 458-469, and Clark Group filed a “Petition for Rehearing En Banc with Suggestions in Support.” Id., at 470-488. On October 14, 1988, the Court of Appeals denied the petitions with an order stating as follows: “There are now three petitions for rehearing en banc pending before the Court. It is hereby ordered that all petitions for rehearing en banc are denied.” App. to Pet. for Cert. 53a. The mandate of the Court of Appeals issued on October 14.
On December 31, 1988, 78 days after the issuance of the order denying rehearing and 134 days after the entry of the Court of Appeals’ judgment, Jackson County presented to this Court an application for extension of time in which to file a petition for certiorari. The Clerk of this Court returned the application to Jackson County as untimely. App. 503. According to the Clerk, the 90-day period in which Jackson County could petition for certiorari began to run on August 19, 1988, and expired on November 17, 1988. The Clerk informed Jackson County that although the timely filing of a “petition for rehearing” with the Court of Appeals tolls the running of the 90-day period, the filing of a “petition for rehearing en banc” does not toll the time.
On January 10,1989, the Clerk of the Eighth Circuit issued an order amending the order of October 14, 1988. The amended order stated:
“This Court’s mandate which was issued on October 14, 1988, is hereby recalled.
“There are three (3) petitions for rehearing with suggestions for rehearing en banc pending before the Court. It is hereby ordered that the petitions for rehearing and the petitions for rehearing with suggestions for rehearing en banc are denied.
“This order is entered nunc pro tunc effective October 14, 1988. The Court’s mandate shall now issue forthwith.” Id., at 513 (emphasis added).
The State, Jackson County, and Clark Group filed petitions for certiorari within 90 days of the October 14, 1988, order. The State’s petition argued that the remedies imposed by the District Court were excessive in scope and that the property tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We denied the petitions of Jackson County and Clark Group. 490 U. S. 1034 (1989). We granted the State’s petition, limited to the question of the property tax increase, but we requested the parties to address whether the petition was timely filed. 490 U. S. 1034 (1989).
II
We deal first with the question of our own jurisdiction. Title 28 U. S. C. § 2101(c) requires that a petition for certiorari in a civil case be filed within 90 days of the entry of the judgment below. This 90-day limit is mandatory and jurisdictional. We have no authority to extend the period for filing except as Congress permits. Unless the State’s petition was filed within 90 days of the entry of the Court of Appeals’ judgment, we must dismiss the petition.
Since Department of Banking of Nebraska v. Pink, 317 U. S. 264 (1942), it has been the consistent practice of the Court to treat petitions for rehearing timely presented to the Courts of Appeals as tolling the start of the period in which a petition for certiorari must be sought until rehearing is denied or a new judgment is entered on the rehearing. As was explained in Pink, “[a] timely petition for rehearing... operates to suspend the finality of the... court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Id., at 266. To put the matter another way, while the petition for rehearing is pending, there is no “judgment” to be reviewed. Cf. Zimmern v. United States, 298 U. S. 167, 169 (1936); Leishman v. Associated Wholesale Electric Co., 318 U. S. 203, 205 (1943).
But as respondents point out, it has also been our consistent practice to treat suggestions for rehearing in banc presented to the United States Courts of Appeals that do not also include petitions for rehearing by the panel as not tolling the period for seeking certiorari. Our Rule 13.4 now expressly incorporates this practice. See n. 13, supra. This practice rests on the important distinction between “petitions for rehearing,” which are authorized by Rule 40(a) of the Federal Rules of Appellate Procedure, and “suggestions for rehearing in banc,” which are permitted by Rule 35(b). In this case, the State styled its filing as a “Petition for Rehearing En Banc.” There is technically no provision for the filing of a “Petition for Rehearing En Banc” in the Rules of Appellate Procedure. A party may petition for rehearing before the panel under Rule 40, file a suggestion for a rehearing in banc under Rule 35, or do both, separately or together. The State’s filing on its face did not exactly comport with any of these options. If the filing was no more than a suggestion for rehearing in banc, as respondents insist, the petition for certiorari was untimely. But if, as the State argues, its papers qualified for treatment as a petition for rehearing within the meaning of Rule 40 as well as a suggestion for rehearing in banc under Rule 35, the 90-day period for seeking certiorari began on October 14, 1988, and the State’s petition for certiorari was timely filed.
Though the matter is not without difficulty, we conclude that the State has the better of the argument. It appears to us that the Court of Appeals interpreted and actually treated the State’s papers as including a petition for rehearing before the panel. If the Eighth Circuit had regarded the State’s papers as only a suggestion for rehearing in banc, without a petition for panel rehearing as well, Rules 35(c) and 41(a) of the Federal Rules of Appellate Procedure would have required the court to issue its mandate within 21 days of the entry of the panel’s judgment. The Court of Appeals did not issue the mandate within 21 days of the panel’s judgment, but issued it only upon its October 14 order denying the State’s petition. Nor did the Court of Appeals issue an order extending the time for the issuance of the mandate, as it may do under Rule 41(a).
Respondents insist that the Eighth Circuit routinely withholds the mandate during the pendency of a suggestion for rehearing in banc even without the order contemplated by Rule 41(a) and point us to United States v. Samuels, 808 F. 2d 1298, 1299 (1987), where the Chief Judge of that court wrote separately respecting the denial of rehearing in banc to emphasize that the Eighth Circuit has done so. The Court of Appeals may not on every occasion have observed the technicalities of Rules 35(c) and 41(a), but we cannot conclude from the respondents’ submission that the Eighth Circuit has engaged in a systematic practice of ignoring those formalities. We presume that the Eighth Circuit withheld the mandate because, under Rule 41(a), it must do so when a petition for panel rehearing is pending.
It is true that the Eighth Circuit’s original October 14 order stated that there were three “petitions for rehearing en banc pending before the Court” and that all “petitions for rehearing en banc” were denied. Only after this Court’s Clerk informed Jackson County that its application for extension of time was untimely did the Court of Appeals amend its October 14 order nunc pro tunc to state that there were “petitions for rehearing with suggestions for rehearing en banc pending before the Court” and that those “petitions for rehearing... with suggestions for rehearing en banc” were denied. Respondents argue that the original order is more probative of the Eighth Circuit’s contemporaneous treatment of the State’s petition, and they contend that order clearly does not treat the petition as requesting panel rehearing. They insist that the Eighth Circuit cannot, post hoc, amend its order to make it appear that it took an action which it never took.
The Court of Appeals of course cannot make the record what it is not. The time for applying for certiorari will not be tolled when it appears that the lower court granted rehearing or amended its order solely for the purpose of extending that time. Cf. Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U. S. 131, 137 (1937); Conboy v. First National Bank of Jersey City, 203 U. S. 141, 145 (1906); Credit Co. v. Arkansas Central R. Co., 128 U. S. 258, 261 (1888). But, as we see it, that is not what happened in this case: the Eighth Circuit originally entered an order denying the “petitions for rehearing en banc” because the papers filed with the court were styled as “petitions for rehearing en banc.” When it was subsequently brought to the Eighth Circuit’s attention that it had neglected to refer to those papers in its order as petitions for rehearing with suggestions for rehearing in banc, the court amended its order nunc pro tunc to ensure that the
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_direct1
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
NORTHERN METAL CO., Appellant, v. UNITED STATES of America.
No. 15070.
United States Court of Appeals Third Circuit.
Argued March 29, 1965.
Decided Aug. 27, 1965.
Marvin Comisky, Blank, Rudenko, Klaus & Rome, Philadelphia, Pa. (John B. Brumbelow, Goncer M. Krestal, Philadelphia, Pa., on the brief), for appellant.
Martin Jacobs, U. S. Department of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Drew J. T. O’Keefe, U. S. Atty., Sherman L. Cohn, Attorney, Department of Justice, Washington, D. C., on the brief), for appellee.
Before HASTIE and FREEDMAN, Circuit Judges, and WEBER, District Judge.
FREEDMAN, Circuit Judge.
This is an appeal from a judgment entered in favor of respondent on the ground that the libel was filed more than two years after the cause of action arose and thus was barred under the Suits in Admiralty Act, § 5, as amended, 46 U.S.C. § 745, which provides: “Suits as authorized by this chapter may be brought only within two years after the cause of action arises. * * * ”
The facts are presented in rather fragmentary form. From the sparse record they may be briefly summarized. On April 30, 1957 libelant entered into a contract to perform terminal stevedoring and processing operations for the United States Army. The contract was performed and invoices were issued which were promptly paid by the Government. Later the Army claimed that it had been overcharged in the amount of $530.96, for which it demanded repayment.
On November 24, 1961 libelant submitted to the Army an invoice amounting to $24,647.21 for similar services performed under a subsequent contract. On November 30, 1961 the Government paid the invoice after deducting the amount of the alleged overcharge on the prior contract. Libelant protested the deduction and on March 9, 1962 the contracting officer decided the dispute and issued his findings and decision that libelant had been overpaid on the earlier contract and that the deduction was proper. Libelant appealed to the Armed Services Board of Contract Appeals, which affirmed the decision of the contracting officer on August 7, 1963. On November 27, 1963 libelant brought this action to recover the $530.-96, claiming that the decision of the Board was arbitrary, capricious and so grossly erroneous as to imply bad faith, and was unsupported by substantial evidence. The action thus was instituted a few days after the expiration of the two-year period if computed from the date of the invoice and a few days prior to its expiration if computed from the date when the Government made the deduction.
On these facts the learned District Judge granted respondent’s motion for summary judgment.
Libelant first contends that its cause of action arose on November 30, 1961 when the Government made the deduction, rather than on November 24, 1961 when the invoice was submitted to it. If this is correct the action was timely. The second contention is that the cause of action arose only after the administrative remedy required by the contract was completed. Finally, it is argued that the statute was tolled during the pendency of the administrative remedy.
I
Libelant clearly has a claim for the unpaid balance of the present contract, a claim which was due on November 24, 1961 when the invoice was submitted.
Libelant argues, however, that when the Government’s failure to pay is based on an alleged overpayment in an earlier transaction two causes of action exist, one for “a failure to pay the full amount of current charges” and the other for a “wrongful deduction”. Thus the designation of the claim in the libel would determine the time of commencement of the statutory period. It is clear, however, that whether the libel describes the cause of action as a failure of respondent to pay the current bill in full or as a wrongful deduction from the payment makes no difference and the case would not be altered on the Government’s assertion that the reason for the withholding is the overcharge on an earlier contract. For in any event the reason which led the Government not to pay the invoice in full does not, when expressed, create a new cause of action. The Government’s nonpayment of this sum — or its deduction, as libelant calls it — is not a tort for which a separate cause of action arose. It is nothing other than the nonpayment of part of the contract price.
The cases on which libelant relies are inapplicable. They are not suits brought in admiralty. They were brought under § 322 of the Transportation Act of 1940, 49 U.S.C. § 66, which expressly authorizes the Government to pay transportation charges on presentation of bills and before audit, but reserves to it the right to deduct the amount of any later discovered overpayment from unrelated claims admittedly due to the carrier. Thus the carrier is paid immediately upon submission of its bill instead of waiting for audit, and in return is required to refund all overcharges which the Government later claims. Thereupon the parties are restored to their original footing and the carrier is obliged to collect the sum refunded by establishing the correctness of its bill to the Government agency or by proving it in the courts.
In United States v. N. Y., N. H. & H. R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957), the carrier sought to relieve itself of the burden of proof by framing its pleading as a claim for payment in full of the current bill rather than the repayment of the deduction which represented the earlier overcharges. The Government, however, in its answer pleaded a credit for the overcharges and alleged that it had paid the balance by check. In response, plaintiff was compelled to admit that it received the check, leaving a balance due and unpaid. The Court rejected artificialities in pleading which would obscure the true issue, saying: “* * * [Conventional principles of contractual setoff should not govern the determination of the carrier’s burden of proof in this action merely because the complaint frames an action for recovery of the full amount of the 1950 bill rather than the amount deducted therefrom. * * * The true dispute between the parties, arising from the determination and collection of the over-payments as authorized by § 322, involves the lawfulness of the 1944 bills. It is the substance, not the form, which should be our concern.” (pp. 262-263, 78 S.Ct. p. 218). In cases under the Transportation Act, therefore, the so-called deduction by the Government is a significant act; it is the congressionally authorized recoupment of the overpayment made before audit.
The Suits in Admiralty Act, however, does not contemplate that the Government will raise the propriety of earlier overcharges by a deduction from the current bill. The Government’s position in admiralty cases is the same as that of any private maritime litigant. It may plead a setoff only if it arises out of the same transaction. In a case such as this, where the Government’s claim is on an unrelated transaction, the proper remedy in admiralty is to raise the issue affirmatively in a separate action. United States v. Isthmian Steamship Co., 359 U.S. 314, 79 S.Ct. 857, 3 L.Ed.2d 845 (1959); Grace Line, Inc. v. United States, 255 F.2d 810 (2 Cir. 1958).
The parties each rely on different aspects of Isthmian Steamship Co. v. United States, 302 F.2d 69 (2 Cir. 1962). There as in the present case libelant had entered into successive contracts with the Government, an earlier contract had been performed, the Government had paid the full amount of the appropriate invoice, and when libelant submitted its invoice on a subsequent contract the Government refused to make full payment but instead deducted an amount which it claimed to be an overpayment it had discovered on the post audit of the earlier invoice. More than two years after the presentation of the second invoice, but less than two years after the Government’s deduction of the overpayment, libelant sued for the difference deducted. The Court of Appeals for the Second Circuit in a per curiam opinion affirmed the decision below that the claim was barred by the expiration of the two-year period.
Libelant seeks to distinguish this decision as based on a libel which clearly claimed a failure to pay the current charges. The case was heard twice in the district court. In the first instance, Isthmian Steamship Co. v. United States, 191 F.Supp. 335 (S.D.N.Y.1957), the Government’s motion to dismiss was denied on the ground that the libel had alleged that the Government had made an unlawful deduction which constituted the cause of action and was within the statutory period. At the trial of the case, Isthmian Steamship Co. v. United States, 191 F.Supp. 338 (S.D.N.Y.1961), this ruling was put aside on the ground that it had resulted from a reading of the libel as pleading payment in full and a subsequent unlawful deduction, whereas the trial had made it clear that the claim was for charges accrued for which payment had not been made in full rather than for “later deductions after payment”. We believe that such refinements serve no useful purpose and that cases such as this should be governed by the real nature of the claim.
It clearly appears, therefore, that libel-ant had a claim against the Government on November 24, 1961 when it submitted its invoice, a claim which the Government did not pay in full, and that the action brought on November 27, 1963 for the unpaid balance was filed after the statutory period had run. The suit, therefore, is barred unless, as libelant claims, the administrative proceedings in some way extended the statutory time.
II
Libelant first contends that its cause of action did not arise until the determination of the appeal by the Armed Services Board of Contract Appeals on August 7, 1963 and that its libel filed on November 27,1963 therefore was within the prescribed two-year period. A similar contention was rejected in McMahon v. United States, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26 (1951), an action by a seaman for damages for injuries resulting from negligence and unseaworthiness and for maintenance and cure. The Supreme Court held that the time fixed in the Suits in Admiralty Act ran from the date of the injury rather than the date when the claim was administratively denied, even though the Clarification Act of 1943 (50 U.S.C.App. § 1291(a)) provided that such claims were enforceable “ * * * if administratively disallowed in whole or in part * * * The same principle is equally applicable here. See States Marine Corp. of Delaware v. United States, 283 F.2d 776, 778 (2 Cir. 1960).
There remains the question whether the running of the statutory period was tolled during the pendency of the administrative proceedings.
Statutes of limitations are statutes of repose. On their face they seek to create a time bar which is mechanical and has no relation to the merits of the claim or whether, as in laches, any harm has resulted to the defendant from the delay. The easy solution of a chronological time limit has proven impossible in practice. Many situations have arisen where courts of justice have been compelled to recognize the right to sue even though by the clock alone the time has run. So it early came to be recognized that the statute of limitations would not begin to run against an action for fraud until its discovery by plaintiff. Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1874). More burdensome to a defendant have been those cases where the operation of the statute was held to be suspended during the period when plaintiff could not be aware of the accumulating injury resulting from defendant’s wrongful conduct. See Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Daniels v. Beryllium Corporation, 211 F.Supp. 452 (E.D.Pa.1962), 227 F.Supp. 591 (E.D.Pa.1964). Similarly, where the negligence of a surgeon l’emains unknown until its ill effects generate discovery of the cause, the statute has been held by some courts to begin to run only when the effect of the negligence became manifest. Urie v. Thompson, supra; Daniels v. Berryllium Corporation, supra; Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).
In all these cases the modern view is to hold that the period of limitations is tolled because of the plaintiff’s innocence, even though the defendant had no knowledge that a claim would be made against him. This view has been more readily applied in cases where a common law right is limited by a statutory time bar. Such a statute is clearly remedial. It does not affect the cause of action, but merely affords a defense which one who is sued may plead affirmatively (F.R.Civ. P. § 8(c)) or waive, as he chooses. It has been thought more difficult to relax the requirements where the time limitation is fixed by the same statute which creates the cause of action. It has been said that in such a case the time limit is an inherent element of the right and the cause of action is extinguished automatically on the expiration of the specified time. Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926); Williams v. United States, 228 F.2d 129 (4 Cir. 1955); Damiano v. Pennsylvania Railroad Co., 161 F.2d 534 (3 Cir. 1947). Since both the limitation and the right to sue are created by the Suits in Admiralty Act it has been characterized as belonging to this latter category.
As in the case of the remedial statutes of limitations, the so-called “substantive” statutes have been impossible to enforce without exception. Although it was at first held that the statutes are mandatory and not even the fraud of the defendant could extend the statutory time, later decisions have discredited this view as harsh and unjust. Thus in Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959), the three-year statutory period of limitations fixed by the Federal Employers’ Liability Act was held inapplicable because defendant had fraudulently induced plaintiff’s delay by representing that he had seven years in which to sue.
The Supreme Court very recently indicated that the distinction between the remedial and substantive time limitations should not be given undue weight in deciding questions dealing with the extension of the time limit. In Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), the Court held that where a timely FELA action brought in a state court having jurisdiction was dismissed for improper venue, the FELA statute of limitations was tolled during the pendency of the state suit. Mr. Justice Goldberg made it clear that the fundamental test in both classes of cases is the congressional intention, which is to be determined by examining the purposes and policies which underlie the limitation provision and the statute of which it is a part: “Statutes of limitations are primarily designed to assure fairness to defendants. Such statutes ‘promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have ■disappeared. The theory is that even if ■one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.’ Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 88 L.Ed. 788. Moreover, the courts ought to be relieved of the burden of ■trying stale claims when a plaintiff has slept on his rights.
“This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff’s rights.” (p. 428, 85 S.Ct. p. 1054).
Here the Government itself imposed in its vast procurement program a standard Disputes Clause which required that its contracting officer should decide on the job any factual controversy that may arise and made such a determination binding on the contractor unless he appeals to the Armed Services Board of Contract Appeals, whose decision in turn is also binding unless it is arbitrary, capricious and so grossly erroneous as to •imply bad faith, or is not supported by substantial evidence. This procedure has been held to be exclusive and ordinarily must be exhausted before a contractor may appeal to the Courts. The present language of the Disputes Clause combines earlier versions and the limited scope of judicial review of departmental decisions required by the so-called “Wunderlich” Act of 1954, 41 U.S.C. § 321. The Act, while slightly extending judicial review to cases other than fraud, nevertheless declared that departmental decisions under the Disputes Clause shall in general be final and conclusive. It would be' anomalous to require that a contractor must bring suit even though the exclusive governmental procedure, thus recognized by Congress, is still going on. A number of decisions have indeed held that before the two-year period has expired a “protective” action must be brought, although it will be stayed and remain dormant until the administrative proceedings are concluded. Wessel, Duval & Co. v. United States, 126 F.Supp. 79 (S.D.N.Y.1954), approved in States Marine Corp. of Delaware v. United States, 283 F.2d 776, 779 (2 Cir. 1960). We do not believe it would be in accord with the congressional purpose to require the bringing of a “protective” libel in cases such as this. The dockets of the courts are too crowded for Congress to have intended that suits must be brought while the governmental tribunal is engaged in ascertaining the facts which will determine whether the Government will pay the claim.
In the present case libelant has been aware of its rights from the beginning and is chargeable with knowledge of the requirement that a suit in admiralty must be brought within two years. On the other hand, while the Government did not affirmatively mislead libelant its procurement requirements established a method for preliminary determination of disputes and required libelant to pursue this administrative remedy. Since the Government through its contracting officer and the Armed Services Board of Contract Appeals not only was aware of the claim but was engaged in deciding its merits, it would be harsh and out of harmony with the purpose and intention of Congress to hold that the statutory time ran during the pendency of the administrative proceedings.
It is urged upon us that this will give the contractor the power to alter the period of limitations because the Disputes Clause does not fix a time within which a disputed issue of fact must be presented to the contracting officer. Where the time is tolled after a cause of action has arisen, no right is given to the contractor to extend indefinitely the period of suspension of the statute. On the contrary, the time would run during the contractor’s delay in presenting the dispute and would be tolled only during its pendency before the contracting officer and the Armed Services Board of Contract Appeals, a period which is in the control of the Government’s employees and not of the contractor.
We hold, therefore, that the limitations time was suspended while the controversy was pending before the contracting officer and the Armed Services Board of Contract Appeals. The libel accordingly was filed within the statutory time.
The judgment of the court below will be reversed.
. The Government deducted a small amount not here involved, in addition to the amount of the alleged overcharge.
. The date and manner in which the dispute was brought to the contracting officer and the text of his decision do not appear in the record.
. Neither the date on which the appeal was taken nor the text of the decision of the Board appears in the record.
. United States v. N. Y., N. H. & H. R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L.Ed.2d 247 (1957); Baggett Transportation Co. v. United States, 319 F.2d 864 (Ct.Cl.1963); Baltimore and Ohio Railroad Co. v. United States, 158 F.Supp. 862 (Ct.Cl.1958); Eastern Freight Ways, Inc. v. United States, 155 F.Supp. 22 (S.D.N.Y.1957).
. See United States v. Isthmian Steamship Co., 359 U.S. 314, 319 n. 3, 79 S.Ct. 857, 3 L.Ed.2d 845 (1959).
. See 31 U.S.C. § 227.
. This question was left open in McMahon v. United States, 342 U.S. 25, 72 S.Ct. 17, 96 L.Ed. 26 (1951), because it did not appear that the determination of the question would affect the result.
. States Marine Corp. of Delaware v. United States, 283 F.2d 776 (2 Cir. 1960); Abbattista v. United States, 95 F.Supp. 679 (D.N.J.1951).
. Damiano v. Pennsylvania Railroad Co., 161 F.2d 534 (3 Cir. 1947); Pollen v. Ford Instrument Co., 108 F.2d 762 (2 Cir. 1940).
. The Court approved the earlier decision to the same effect in Scarborough v. Atlantic Coast Line R. Co., 178 F.2d 253 (4 Cir. 1949). See also Osbourne v. United States, 164 F.2d 767 (2 Cir. 1947), where the two-year statute of limitations under the Suits in Admiralty Act was tolled during plaintiff’s internment as a prisoner of war.
. 32 C.F.R. § 7.103-12 establishes and requires a Disputes Clause in Government contracts in general; see also 32 C.F.R.. § 596.103-12, relating to contracts of the Department of the Army.
Ths Disputes Clause in the present contract reads as follows: “Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Secretary, and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall, unless determined by a court of competent juris■diction to have been fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence, be final and conclusive; provided that, if no such appeal is taken, the decision of the Contracting Officer shall be final and conclusive. * * * ”
. In United States v. Joseph A. Holpuch Co., 328 U.S. 234, 239-240, 66 S.Ct. 1000, 1003, 90 L.Ed. 1192 (1945) the Court said of the Disputes Clause: “Solely through its operation may claims be made and adjudicated as to matters arising under the contract. * * * [a]nd in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court.” See also United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 (1944); United States v. Peter Kiewit Sons’ Co., 345 F.2d 879, 884 (8 Cir. 1965).
. The Act overcame the decision in United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951), which held that departmental decisions under the Disputes Clause as then written were final unless founded on fraud. See United States v. Carlo Bianchi & Co., Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963).
The Act provides: “No provision of any contract entered into by the United States, relating to the finality or conclusiveness of any decision of the head of any department or agency or his duly authorized representative or board in a dispute involving a question arising under such contract, shall be pleaded in any suit now filed or to be filed as limiting judicial review of any such decision to cases where fraud by such official or his said representative or board is alleged : Provided, however, That any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321.
. This point was made in McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951), but was restricted to the question whether the cause of action did not arise until the administrative decision was made.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
sc_casesource
|
025
|
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.
VELLA v. FORD MOTOR CO.
No. 73-1994.
Argued February 18-19, 1975—
Decided April 15, 1975
Brennan, J., delivered the opinion for a unanimous Court.
Leonard C. Jaques argued the cause and filed a brief for petitioner.
John A. Mundell, Jr., argued the cause and filed a brief for respondent.
Mr. Justice Brennan
delivered the opinion of the Court.
We granted certiorari in this case limited to the question whether a shipowner’s duty to furnish an injured seaman maintenance and cure continues from the date
the seaman leaves the ship to the date when a medical diagnosis is made that the seaman’s injury was permanent immediately after his accident and therefore incurable. 419 U. S. 894 (1974).
Petitioner was a seaman aboard respondent’s Great Lakes vessel, S. S. Robert S. McNamara. He was discharged and left the ship on June 29, 1968. Thereafter he filed this suit in the District Court for the Eastern District of Michigan, Southern Division, based on a claim that on April 4, 1968, while replacing a lower engineroom deck plate, he slipped and fell on the oily floor plate causing his head to suffer a severe blow when it struck an electrical box. The complaint included a count, among others, for maintenance and cure. The medical testimony at the trial was that petitioner suffered from a vestibular disorder defined as damage to the balancing mechanism of the inner ear. The testimony of respondent’s medical witness, Dr. Heil, an otolaryngologist, supplied the only medical diagnosis as to the time when the disorder became permanent and not susceptible of cura-tive treatment. Dr. Heil testified on April 27, 1972, that he had recently examined petitioner. . He conceded that a severe blow to the head, such as alleged by petitioner, could have caused the disorder. He said, however, that the disorder is not a condition that can be cured by treatment. The jury awarded petitioner maintenance and cure in the amount of $5,848. Respondent moved for a judgment notwithstanding the verdict on the ground that the award was not within the permissible scope of maintenance and cure. The District Court denied the motion and stated: “While it is true that maintenance and cure is not available for a sickness declared to be permanent, it is also true that maintenance and cure continues until such time as the incapacity is declared to be permanent.” App. 20a. The Court of Appeals for the Sixth Circuit reversed without a published opinion, 495 F. 2d 1374 (1974). The Court of Appeals held that “once the seaman reaches ‘maximum medical recovery/ the shipowner’s obligation to provide maintenance and cure ceases,” App. 28a, and since “ [t]he record in this case does not permit an inference other than that [petitioner’s] condition was permanent immediately after the accident,” id., at 29a, the District Court’s holding impermissibly extended the shipowner’s obligation.
We disagree with the Court of Appeals and therefore reverse. The shipowner’s ancient duty to' provide maintenance and cure for the seaman who becomes ill or is injured while in the service of the ship derives from the “unique hazards [which] attend the work of seamen,” and fosters the “combined object of encouraging marine com-
merce and assuring the well-being of seamen.” Aguilar v. Standard Oil Co., 318 U. S. 724, 727 (1943). To further that “combined object” we have held that the duty arises irrespective of the absence of shipowner negligence and indeed irrespective of whether the illness or injury is suffered in the course of the seaman’s employment. Calmar S. S. Corp. v. Taylor, 303 U. S. 525, 527 (1938). And, “[s]o broad is the shipowner’s obligation, . . . negligence or acts short of culpable misconduct on the seaman’s part will not relieve [the shipowner] of the responsibility.” Aguilar v. Standard Oil Co., supra, at 730-731. Thus, the breadth and inclusiveness of the shipowner’s duty assure its easy and ready administration for “[i]t has few exceptions or conditions to stir contentions, cause delays, and invite litigations.” Farrell v. United States, 336 U. S. 511, 516 (1949).
Denial of maintenance and cure when the seaman’s injury, though in fact permanent immediately after the accident, is not medically diagnosed as permanent until long after its occurrence would obviously disserve and frustrate the “combined object of encouraging marine commerce and assuring the well-being of seamen.” A shipowner might withhold vitally necessary maintenance and cure on the belief, however well or poorly founded, that the seaman’s injury is permanent and incurable. Or the seaman,, if paid maintenance and cure by the shipowner, might be required to reimburse the payments, if it is later determined that the injury was permanent immediately after the accident. Thus uncertainty would displace the essential certainty of protection against the ravages of illness and injury that encourages seamen to undertake their hazardous calling. Moreover, easy and ready administration of the shipowner’s duty would seriously suffer from the introduction of complexities and uncertainty that could “stir contentions, cause delays, and invite litigations.”
The Shipowners’ Liability Convention, made effective for the United States on October 29, 1939, Farrell v. United States, supra, at 517, buttresses our conclusion that the District Court correctly held that “maintenance and cure continues until such time as the incapacity is declared to be permanent.” That holding tracks the wording of Art. 4, ¶[ 1, of the Convention which provides: “The shipowner shall be liable to defray the expense of medical care and maintenance until the sick or injured person has been cured, or until the sickness or incapacity has been declared of a permanent character.” 54 Stat. 1696. (Emphasis supplied.) The aim of the Convention “was not to change materially American standards but to equalize operating costs by raising the standards of member nations to the American level.” Warren v. United States, 340 U. S. 523, 527 (1951). Thus Art. 4, ¶ 1, is declaratory of a longstanding tradition respecting the scope of the shipowner’s duty to furnish injured seamen maintenance and cure, Farrell v. United States, supra, at 518, and therefore the District Court’s interpretation was correct.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
This question is subsumed in Question I presented in the petition for writ of certiorari:
“Is a disabled seaman who contracted by trauma a permanent disease while in the service of a vessel entitled to maintenance and cure payments during the interim between the period the incident occurred and the time the disease was medically diagnosed and proclaimed incurable?”
Petitioner also sought damages under counts founded on the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, and on unseaworthiness under general maritime law. The Court of Appeals affirmed the judgment in favor of respondent entered on a jury verdict of no cause for action on either count. We denied review of the judgment of the Court of Appeals in respect of that affirmance when we denied the petition for writ of certiorari as respects Question II presented in the petition.
When asked whether petitioner might be cured by treatment, Dr. Heil testified:
“No, not really. Treatment is primarily symptomatic for this condition. That is, people with a vestibular disorder are apt to have intermittent episodes of dizziness which, on occasion, are somewhat more severe. Treatment is limited to those times when the patient is particularly dizzy. They can obtain some symptomatic relief with medication. Other than that, there is no specific cure or treatment.”
On this record maintenance and cure could have been claimed to continue from June 29, 1968, the date petitioner left the vessel, to April 27, 1972, the date Dr. Heil testified that the vestibular disorder was permanent immediately after the accident and not susceptible of curative treatment. The jury, however, awarded petitioner maintenance and cure at $8 per day only for the period from June 29, 1968, to June 29, 1970. Petitioner’s appeal to the Court of Appeals did not, however, draw into question a claim of entitlement.to maintenance and cure for the longer period. App. 25a. In that circumstance petitioner is not entitled to the relief respecting the longer period sought by him in this Court, Brief for Petitioner 19. See Le Tulle v. Scofield, 308 U. S. 415, 421-422 (1940). Moreover, in light of our holding that the shipowner’s duty continued until Dr. Heil’s testimony, it is not necessary to address the question whether the jury award might also be sustained on the ground that the shipowner’s duty in any event obliged him to provide palliative medical care to arrest further progress of the condition or to reduce pain, and we intimate no view whatever upon the shipowner’s duty in that regard. Compare Ward v. Union Barge Line Corp., 443 F. 2d 565, 572 (CA3 1971), with the opinion of the Court of Appeals in this case. App. 29a n. 1. Nor do we express any view whether a seaman may forfeit his right to maintenance and cure by not reporting a known injury or malady, or by refusing from the outset to allow proper medical examination, or by discontinuing medical care made available.
See Desmond v. United States, 217 F. 2d 948, 950 (CA2 1954): “The shipowner is liable for maintenance and cure only until the disease is cured or recognized as incurable” (emphasis supplied); Vitco v. Joncich, 130 F. Supp. 945, 949 (SD Cal. 1955), aff’d, 234 F. 2d 161 (CA9 1956): “The shipowner’s obligation to furnish maintenance is coextensive in time with his duty to furnish cure . . . and neither obligation is discharged until the earliest time when it is reasonably and in good faith determined by those charged with the seaman’s care and treatment that the maximum cure reasonably possible has been effected” (emphasis supplied).
It is therefore unnecessary to address the conflict between commentators whether the Convention is applicable to Great Lakes shipping. Compare G. Gilmore & C. Black, The Law of Admiralty 323 (2d ed. 1975) (“Evidently the Convention was not to apply to . . . Great Lakes shipping”), with 4 E. Benedict, Admiralty 296 (6th ed. 1940) ("[T]he Convention would seem to apply to the Great Lakes, which are not ‘inland waters’ in the usual sense . . .”). The United States’ reservation to the Convention provides: “[T]he United States Government understands and construes the words ‘maritime navigation’ appearing in this Convention to mean navigation on the high seas only.” 54 Stat. 1704.
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_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".
IOWA STATE UNIVERSITY RESEARCH FOUNDATION, INC., Intervenor-Appellant, v. HONEYWELL, INC., Plaintiff-Appellee, v. SPERRY RAND CORPORATION et al., Defendants-Appellees.
No. 71-1531.
United States Court of Appeals, Eighth Circuit.
Submitted April 11,1972.
Decided May 3, 1972.
Jerome F. Fallon, Timothy L. Tilton, Dawson, Tilton, Fallon & Lungmus, Chicago, Ill., for intervenor-appellant.
Frank Claybourne, Doherty, Rumble & Butler, St. Paul, Minn., H. Francis DeLone, Harvey Bartle, III, Dechert, Price & Rhoads, Philadelphia, Pa., Thomas M. Ferrill, Jr., Blue Bell, Pa., for appellees, Sperry Rand Corp. and Ill. Scientific Developments, Inc.
Before VAN OOSTERHOUT, ME-HAFFY and STEPHENSON, Circuit Judges.
PER CURIAM.
This is a timely appeal by Iowa State University Research Foundation, Inc. (ISURF) from an order, 54 F.R.D. 594, denying it a right to intervene in litigation pending between Honeywell, Inc., and Sperry Rand Corporation, et ah, relating to the validity and infringement of Patent No. 3,120,606 issued to Eckert and Mauehly, inventors, and assigned to Illinois Scientific Developments, Inc., a wholly owned subsidiary of Sperry Rand.
The patent, issued February 4, 1964, involves a high speed, large scale digital computer known as the ENIAC computer. The Honeywell suit was commenced on May 26, 1967. Extensive discovery proceedings were engaged in during the next three and one-half years. Many depositions were taken; over 30,000 exhibits were identified. Honeywell’s brief, setting forth its factual and legal claims, contains 1,167 pages. Trial commenced on June 1, 1971.
ISURF on July 21, 1971, a month and one-half after the commencement of the trial on the merits, filed a motion for leave to intervene under Rule 24(a), Fed.R.Civ.P., tendering a petition raising the issue that John V. Atanasoff was a joint inventor of Patent No. 3,120,606 (along with Eckert and Mauehly) and seeking an order to correct the patent record under 35 U.S.C.A. § 256 to show Atanasoff to be a joint inventor. ISURF is assignee of Atana-soff’s rights in the patent. ISURF and its assignor have been aware of this litigation since shortly after the inception of this action in 1967.
Sperry Rand vigorously opposed the intervention, asserting that the intervention raises an entirely new issue, to wit, that Atanasoff was a co-inventor and that to fairly investigate and present evidence on this issue will acquire investigation, discovery and a considerable amount of time and will disrupt the complex and lengthy trial in progress and cause indeterminable delay. Honeywell employed Atanasoff to assist it in a defense that the patent was derived from Atanasoff. Honeywell made no contention that the patent was a joint one of Atanasoff, Eckert and Mauehly. Honeywell took a neutral position on the intervention.
Judge Larson, after affording the parties a full hearing on the motion for leave to intervene, on August 4, 1971, entered an order denying leave to intervene. The unreported memorandum opinion properly sets out the applicable law and the findings upon which the denial is based. Included in such opinion is the following:
“In the instant case intervenor knew about the lawsuit long before it made any effort to intervene. Intervention has been requested after all discovery is complete and, indeed, after Mr. Atanasoff has testified. It seems unwise to this Court in a case of this magnitude to permit at such a late date the intrusion of additional issues. It would be difficult, if not impossible, for counsel to modify the conduct of the trial to encompass the additional issues. Any efforts to conduct additional discovery and to recall witnesses would result in substantial delay and might very well interfere with the orderly presentation of evidence in the present parties’ primary cases. Under such circumstances it is the opinion of this Court that the motion by Iowa State University Research Foundation to intervene in this matter must be denied.”
The opening clause of Rule 24(a) dealing with intervention of right reads “Upon timely application. . ” An application for intervention whether asserted as a matter of right or judicial discretion must be timely. Lumbermens Mutual Cas. Co. v. Rhodes, 10 Cir., 403 F.2d 2, 5; Janousek v. Wells, 8 Cir., 303 F.2d 118, 122; Kap-lan v. Guardian Life Ins. Co. of America, W.D.Mo., 231 F.Supp. 874, 876-877.
As stated in Kozak v. Wells, 8 Cir., 278 F.2d 104, 109, “Timeliness is to be determined from all the circumstances shown.”
The application for leave to intervene was filed more than four years after the commencement of the action and after extensive discovery had been completed, and after the trial on the merits had proceeded for one and one-half months. The reason asserted by ISURF for its belated effort to intervene is that its right to relief is based on the decision of the Fourth Circuit in Iowa State University Research Foundation, Inc., v. Sperry Rand Corp., 444 F.2d 406, decided June 22, 1971. That case involves a separate and distinct patent from the one here involved, but presents a claim for the same basic relief here sought by the intervenor. No issue of timeliness of the intervention is raised in the Fourth Circuit case. The reported opinion reflects that ISURF raised by intervention in the trial court the same basic issue it raises in its proposed intervention here. It is apparent from the Fourth Circuit case that ISURF knew of its potential rights here asserted long before the present trial on the merits commenced. No valid reason appears why ISURF could not have asserted its right to intervene at a much earlier time.
We are abundantly satisfied that the trial court did not abuse its discretion in denying ISURF’s untimely application for leave to intervene. The judgment is affirmed upon the basis stated by Judge Larson in his well-considered memorandum opinion, 54 F.R.D. 593.
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_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.
J. L. ENOCHS, District Director of Internal Revenue, Appellant, v. T. U. SISSON, Appellee.
No. 18979.
United States Court of Appeals Fifth Circuit.
April 4, 1962.
Robert E. Hauberg, U. S. Atty., E. R. Holems, Jr., Asst. U. S. Atty., Jackson, Miss., Thomas A. Frazier, Atty., Dept, of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz, Carolyn R. Just, Daniel K. Mayers, Attys., Dept, of Justice, Washington, D. C., for appellant.
G. E. Estes, Jr., Gulfport, Miss., for appellee.
Before RIVES, CAMERON and BELL, Circuit Judges.
PER CURIAM.
The question presented by this appeal is whether a summary judgment granted before the expiration of ten days after the time fixed for hearing is a valid judgment. Appellee Sisson filed this action for a refund of taxes for the calendar years 1953 and 1954 under the Federal Insurance Contribution Act. After the appellant Enochs, District Director of Internal Revenue, had filed his answer, appellee moved for summary judgment with supporting affidavit. The record shows that the motion was served upon the appellant, but the certificate of service is omitted and it is not contended that any time was fixed for the hearing of the motion. Some months after the motion was filed the court below granted summary judgment in favor of appellee.
It is provided under Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A., that a motion for summary judgment “shall be served at least 10 days before the time fixed for the hearing.” No time was ever fixed for the hearing of this motion, and it is undisputed that the trial court did not have any rule fixing such time. See Rule 78, F.R.Civ.P. We do not think that the order entered by the court below, in the absence of a notice to the appellant of the time fixed for the hearing, was within its juridiction under the quoted portion of Rule 56. And cf. also Rule 6, F.R.Civ.P., and Bowdidge v. Lehman, District Director of Immigration, 6 Cir., 1958, 252 F.2d 366.
The judgment appealed from is, therefore, vacated and the cause remanded.
Reversed and remanded.
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_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.
Antoinette BORNHOLDT et al., Appellants, v. SOUTHERN PACIFIC COMPANY, a corporation, et al., Appellees.
No. 18535.
United States Court of Appeals Ninth Circuit.
Jan. 24, 1964.
LeRoy A. Broun and Bernard M. King, Fremont, Cal., for appellant.
Randolph Karr and Roy Jerome, San Francisco, Cal., for appellee.
Before POPE, MERRILL and KOELSCH, Circuit Judges.
KOELSCH, Circuit Judge.
This is a diversity action removed from the Superior Court of Contra Costa County, California to the Federal District Court, pursuant to 28 U.S.C. § 1332. Jurisdiction of the appeal is based on 28 U.S.C. §§ 1291, 1294(1).
Plaintiffs, heirs of the original owners of certain real property in the Walnut Creek area of California, seek declaratory relief quieting title against defendant Southern Pacific Company to all or a portion of the property at issue. In the alternative, plaintiffs ask damages for an alleged inverse condemnation.
Uncontroverted evidence adduced at trial by the judge, sitting without jury, shows defendant Railroad acquired the disputed property by deed dated August 6, 1890 from plaintiff’s predecessors in interest. The property consists of a 100-foot strip of land immediately adjacent to the defendant’s right-of-way known as the San Ramon Branch Line. Containing approximately 4.04 acres, this strip was acquired as a location for a railroad station. Defendant, shortly after acquisition, erected and has operated a station on this strip for well over half a century. Since the entire parcel was not required for station purposes the defendant granted leases to unused portions of the property from time to time. These leases in no way obstructed or interfered with operations of the railroad. On September 23, 1952 defendant leased 1.139 acres of the disputed parcel to McDonald Products Co. for a term of five years. The lease contained no provisions for its earlier termination. Use of the leased premises was confined to parking lot purposes. The Emporium Capwell Company is presently in possession by virtue of an assignment.
Fundamental to our consideration is a proviso in the conveyance which reads in pertinent part: “Provided that if ever party of the second part, or its successors, shall cease to occupy said premises for railroad purposes, then all of the right, title and interest herein conveyed shall revert to parties of the first part, their heirs or assigns.”
The trial court found that, despite the lease, the property has always been devoted to railroad purposes and will continue to be so used. It further found that the forfeiture provision contained in the deed was intended to secure the benefit of accessible rail service to the surrounding property retained by grantors. Other evidence established and the trial court found that the land was needed for future expansion of the railroad after expiration of the five year lease. The court below then concluded there had been no breach of the forfeiture provision.
Presented for decision is the question whether this non-terminable five year lease of a fractional portion of the original grant, which neither interfered with existing operations nor barred projected railroad expansion, constituted cessation of occupation of the property for railroad purposes so as to bring the forfeiture provision of the deed into operation.
A condition involving a forfeiture must be strictly interpreted against the party for whose benefit it is created. Cal.Civ.Code § 1442. Forfeitures are not favored so we must construe liberally in favor of the holder of the estate and strictly against forfeiture. Behlow v. Southern Pacific R. R., 130 Cal. 16, 62 P. 295 (1900). Where there are two possible constructions, one of which leads to a forfeiture and the other avoids it, the rule of law is well settled, both in the interpretation of ordinary contracts and instruments transferring property, that the construction which avoids forfeiture must be made if it is at all possible. Ballard v. MacCallum, 15 Cal.2d 439, 441, 101 P.2d 692, 695 (1940); Brant v. Bigler, 92 Cal.App.2d 730, 208 P.2d 47 (1949). These controlling principles bespeak a general legislative and judicial hostility to divesture of properties long held by grantees. Various grounds are ascribed to defeat divesture in the cases. Some find a waiver, often with few facts indicative of an intentional relinquishment of the right. Others declare flatly that no breach has occurred. Candor compels our confession that these cases appear to involve breaches but breaches best described as de minimis or merely technical in nature and therefore insufficient to revert the estate.
We believe the facts demonstrate substantial compliance with the deed condition under consideration. The trial court found the condition was inserted in the deed to secure benefits for the surrounding lands which were then still retained by the grantor. A need of the property for future railroad expansion after the term of the lease was also found by the court. Comporting ourselves to the mandate of Rule 52, F.R.Civ.P. we are unable to say such findings are clearly erroneous. No one disputes that the major portion ■of this property has been used for railroad purposes for well over threescore .years. Plans produced at trial which were drafted before any threat of suit indicate defendant will continue and extend this use. In short, the foregoing circumstances show sufficient compliance with the deed condition.
Appellants contend that the doctrine of partial reversion, recognized in Tamalpais Land and Water Co. v. Northwestern Pac. R. R. Co., 73 Cal.App.2d 917, 167 P.2d 825 (1946), should be applied here. Our opinion, while not wholly •consistent with the doctrine, is not in fatal collision with it, inasmuch as our •case is distinguishable on its facts. In Tamalpais, the railroad had initially used "but later withdrew from the disputed portion. Abandonment was indicated because the railroad tore up and removed its tracks. No plans for future use of the premises by the railroad were shown. In the case at bar the defendant railroad has never used the disputed portion but rather has leased it periodically. It has never leased the disputed portion for so long a period as to make it unavailable for projected or anticipated needs. On the contrary, the railroad intends to (Utilize the contested parcel after the termination of the lease. The doctrine of partial reversion is based on the court’s desire to avoid forfeiture whenever possible and should only be applied when no other means of avoiding a forfeiture are possible. Quatman v. McCray, 128 Cal. 285, 60 P. 855 (1900); See Cal.Jur.2d, Covenants, Conditions and Restrictions § 77 at 86 (1954). The facts before us do not indicate this is a proper case for its application.
Under the view we take of the case, it is unnecessary to intimate any position on alternative grounds of affirmance set forth in the opinion of the District Court.
Affirmed.
. The suit was removed prior to the amendment of § 1332 in 1958.
. Examination of prior leases reveals each has provision for termination on short notice. Plaintiffs concede that such provision puts a lease for any purpose and for whatever period within the deed requirement. They therefore ceased dispute at trial as to a second parcel, not in contention here, that had such a provision. Apparently due to this concession, defendant no longer urged in the trial court that the deed requirement had been waived by virtue of plaintiffs’ acquiescence in the prior leases.
. This puts the case in its strongest posture for plaintiffs. In the court below defendant contended that General Order No. 69 of the California Public Utilities Commission made the lease terminable on short notice. By its express terms, said order applies to easements, licenses and permits. We do not believe that leases fall within its embrace. However, under the view we take of the case, it is unnecessary to extensively discuss the merits of this contention.
. The trial court therefore concluded that, because plaintiffs retained no interest in surrounding property, they lack standing to bring this action. Authority for that position is found in 19 Am.Jur. Estates § 91 at 553 (1939) where it is said:
“Where one conveys part of his land on condition subsequent that something be done which will benefit the rest of his property, a conveyance of the rest of his property is a waiver of the grantor’s right to declare a forfeiture for breach of the condition subsequent.”
Investigation of the primary authority claimed to support the text statement reveals no such rule. Merrifield v. Cobleigh, 58 Mass. (4 Cush.) 178 (1849) rested its decision on the ground that the plaintiff there had made no prior demand on the defendant so as to put him in default in performance of the deed condition. The court termed this finding decisive of the case. It merely mentioned that the trial court in that case had based its decision on a finding that the plaintiff had waived the condition by conveying the adjoining land. Underhill v. Saratoga Railroad Co., 20 Barb. 455 (N.Y.Sup.Ct.1855), held that an attempted conveyance of the possibility of reverter extinguished it. This was based on the common law doctrine of nonassignability of choses in action. This doctrine is no longer followed in California. Childs v. Newfield, 136 Cal.App.217, 28 P.2d 924 (1934); Cal.Civ.Code, § 1046.
. See Notes, Estates on Condition Subsequent—Extension of the Judicial Bias Against Forfeiture, 7 Hastings L.J. 101 (1955).
. Goodman v. Southern Pacific Company, 143 Cal.App.2d 424, 299 P.2d 321 (1956).
. Townsend v. Allen, 114 Cal.App.2d 291, 250 P.2d 292, 39 A.L.R.2d 1108 (1952); Notes, 27 So.Cal.L.Rev. 323 (1954).
. Johnson Corp. v. Pacific Electric Railroad Co., 19 Cal.App.2d 306, 65 P.2d 368 (1937); See also Hasman v. Elk Grove Union High School, 76 Cal.App. 629, 245 P. 464 (1926) ; Booth v. Los Angeles County, 124 Cal.App. 259, 12 P.2d 72 (1932); Savanna School District of Orange County v. McLeod, 137 Cal.App.2d 491, 290 P.2d 593 (1955). But see Rosecrans v. Pacific Electric R. R. Co., 21 Cal. 2d 602, 134 P.2d 245 (1943).
. 7 Hastings L.J., op. eit. supra note 5, at 106 suggests that a requirement of exclusive use must be written into the condition if the grantor intends that any other activity on the premises should work a reverter.
. Kouwenhoven v. New York Rapid Transit Corp., Per Curiam, 281 N.Y. 811, 24 N.E.2d 485 (1939); Motion for Reargument Denied, 282 N.Y. 593, 25 N.E.2d 147 (1940), affirming 256 App.Div. 253, 9 N.Y.S.2d 629 (1939); City of Santa Monica v. Jones, 104 Cal.App.2d 463, 232 P.2d 55 (1951); Sheets v. Vandalia R. R. Co., 74 Ind.App. 597, 127 N.E. 609 (1920) which held erection and maintenance of railroad and depot for 65 years sufficient compliance with deed condition requiring permanent maintenance. The court refused to decree a breach when business exigencies made it necessary to close the depot and cease service. See 1 Tiffany, Real Property § 203 (3d ed. 1939).
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_summary
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Emil B. MILO, M.D., and Donald L. Reid, M.D., Plaintiffs-Appellants, v. CUSHING MUNICIPAL HOSPITAL, an Oklahoma non-profit corporation, d/b/a Cushing Regional Hospital, et al., Defendants-Appellees.
No. 86-1519.
United States Court of Appeals, Tenth Circuit.
April 22, 1988.
D. Gregory Bledsoe (Cameron M. Spra-dling, of W.C. Sellers, Inc., Sapulpa, Okl., with him on the brief), Tulsa, Okl., for plaintiffs-appellants.
Dale Reneau (Robin A. Wiens, of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., with him on the brief), of Fen-ton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for defendants-appellees.
Before HOLLOWAY, Chief Judge, and McKAY and TACHA, Circuit Judges.
TACHA, Circuit Judge.
This case involves the question whether a hospital’s suspension of a physician’s medical staff privileges constitutes the requisite state action to support a claim under 42 U.S.C. § 1983. The City of Cushing (City) owns Cushing Municipal Hospital (Hospital). The City leases the Hospital to the Cushing Hospital Authority (Authority), a public trust created pursuant to Oklahoma law. The Authority has entered into an operating agreement with the Masonic Hospital Association, Inc. (Association), a private corporation which provides hospital management services. Under the contract, the Association operates the Hospital, including handling medical staff privilege and discipline matters.
The Hospital summarily suspended Drs. Milo and Reid. The physicians allege that the Hospital took this action because they reported misconduct by a fellow staff physician. In their section 1983 suit, the doctors claim that the Hospital’s action infringed their rights to free speech and due process under the First and Fourteenth Amendments. The defendants are the Hospital, the Association, various members of the Boards of the Hospital and the Association, and the Hospital’s administrator. The defendants claim that there was no requisite state action to support plaintiffs’ section 1983 claims because the action was taken by the Association, not the City or the Authority. The district court granted the defendants’ motion for summary judgment. Plaintiffs appeal. We reverse.
In deciding the state action issue, the district court applied the test set out by this court in Gilmore v. Salt Lake Community Action Program, 710 F.2d 632 (10th Cir.1983). Application of the Gilmore test, however, is inappropriate because that case involved a different issue than the one presently before the court. Gilmore involved an employment decision by a community action agency organized under state law as a private nonprofit corporation. Thus the Gilmore court was called upon to determine whether the activity of a nominally private entity constituted state action; it was not necessary for the court to decide the preliminary question of whether the agency was a public or a private organization.
In the present case, the issue before the court is whether the hospital is public or private. In deciding whether an entity is public or private, we examine the structure of the entity and its relationship to a governmental unit. Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In the present case, the City, the Authority, and the Association are all involved with the Hospital. The district court thoroughly examined the record and accurately described the relationship between the City, the Authority, and the Association regarding the Hospital.
In this case, it cannot be disputed that some kind of relationship exists between the City of Cushing and Cushing Municipal Hospital. There is evidence that the City of Cushing has substantially participated in the funding, creation, and financial structure of the Hospital. In 1973, the City of Cushing issued bonds to fund improvements and enlargement of the Cushing Municipal Hospital. In 1978, the City of Cushing issued bonds to retire the principal and interest on the bonds issued in 1973. The Cushing Hospital Authority (“Authority”) was created pursuant to a Trust Indenture for the benefit of the City of Cushing and is governed by five Trustees. The Authority is a public trust and an agency of the State of Oklahoma pursuant to 60 O.S.A. § 176, et seq. (1981). The five Trustees governing the Authority are three City Commissioners and two members of the Masonic Association. The Hospital is leased by the City to the Authority for the operation and maintenance of the Hospital. Simultaneously with the creation of the leasing agreement the Authority executed an operating agreement with the Masonic Association. However, although the Masonic Association is responsible for the operation of the Hospital, it must utilize its revenues from operations according to the terms set forth in the 1978 Bond Indenture.
The City and the Authority have the typical, financially rewarding, lease/purchase agreement. The Hospital is leased by the City for a specified term or until all indebtedness of the Authority has been retired or a provision for payment made. To insure the financial stability of the Hospital, the City required the Authority to covenant in the 1978 Bond Indenture to establish rates and fees to attain net revenues in each fiscal year at a percentage of the average annual debt service requirements on all bonds issued for the City’s initial funding of the Hospital. Further, upon an event of default under the terms of the leasing agreement, the bondholders would appoint a trustee or receiver; neither the bondholders, Trustee Bank, nor any trustee or receiver has the power to sell the property included in the Hospital. The City, as beneficiary under the Trust Indenture, has the exclusive option to purchase the Hospital in the event of a default. Similarly, any net earnings of the Authority may not inure to the benefit of any person other than the City, and the Authority was created under the Trust Indenture to accomplish one or more public purposes specifically enumerated in the Trust Indenture.
Milo v. Cushing Mun. Hosp., No. CIV-84-2592-E, slip op. at 5-6 (W.D.Okla. Feb. 4, 1986).
In Tarabishi v. McAlester Regional Hosp., 827 F.2d 648 (10th Cir.1987), this court addressed the question whether a hospital organized as a public trust under Oklahoma law was a public or a private institution. We noted that the enabling legislation providing for the creation of the hospital designates the hospital trustees as public officers acting as an agency of the state. In the absence of any dispute on the facts, we held that the hospital in Tarabi-shi was a public hospital as a matter of law.
The situation in the present case is very similar to the situation presented in Tara-bishi. Both cases involve a public trust created under Oklahoma law. There are, however, differences between the two situations. The question we face is whether these differences dictate a different outcome. First, the Hospital in the present case was not created as a public trust and is not owned by the Authority. Rather it was created by the City and leased to the Authority. This difference does not dictate a different outcome because the City is a governmental entity also, and whether the action of the hospital is attributed to the City or the Authority makes no difference because the actions of both constitute state action. Burton, 365 U.S. 715, 81 S.Ct. 856.
The second difference is more problematic. The Authority did not actually operate the hospital as was the case in Tarabishi. Here the Authority contracted with the Association, which is a private entity, to run the facility. The defendants argue that the suspension of the physicians’ staff privileges was an action of the Association and not the City or the Authority. In Jatoi v. Hurst-Euless-Bedford Hosp. Auth., 807 F.2d 1214 (5th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988), the Fifth Circuit addressed a similar situation. In Jatoi, a hospital authority leased the facility to a private entity for day-to-day operations. The defendants alleged that the private entity controlled staff privilege matters and that the hospital authority had no involvement. The court noted that the hospital facilities were publicly owned and constructed with public funds. The hospital authority repaid bonds it had issued in part from hospital revenues and thus received a direct financial benefit from the private lessee. Although the lessee operated the hospital on a day-to-day basis, the hospital authority retained control of and responsibility for the facility. Id. at 1221. The court concluded that the hospital could not insulate itself from liability by delegating its responsibility to operate the hospital to a private entity.
The Authority cannot benefit from private management of the hospital and at the same time insulate itself from liability for [a violation of section 1983] by that manager. The private defendants cannot receive public funds, utilize public facilities, and serve a public purpose, yet insist that their private status forestalls any connection of a violation of the constitutional rights of their medical staff.
Id. at 1221-22.
We find no significant difference between the facts of Jatoi and the facts of the present case. If leasing a hospital to a private entity will not insulate state actors from liability, then merely contracting for day-to-day management will not accomplish this goal. The defendants cannot escape liability by delegating responsibility to another party. See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Burton, 365 U.S. 715, 81 S.Ct. 856. We conclude that the Hospital is a public institution and its suspension of the plaintiffs’ medical staff privileges constitutes the requisite state action to support a section 1983 claim. Therefore the district court erred in granting defendants’ motion for summary judgment.
REVERSED AND REMANDED.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
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.
Carrie L. CHANDLER, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Defendant-Appellee.
No. 738, Docket 84-2322.
United States Court of Appeals, Second Circuit.
Submitted April 8, 1985.
Decided May 30, 1985.
Carrie L. Chandler, pro se.
Robert Abrams, Atty. Gen., State of N.Y., New York City (Howard L. Zwickel, Marla Tepper, Asst. Attys. Gen., New York City on brief), for defendant-appellee.
Before MANSFIELD, KEARSE and PRATT, Circuit Judges.
KEARSE, Circuit Judge:
Plaintiff pro se Carrie L. Chandler appeals from a final judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, dismissing her complaint pursuant to 42 U.S.C. § 1983 (1982) seeking declaratory and injunctive relief against defendant Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services (hereinafter the “State”) on the ground that a State regulation limiting the amount of postage that the State will pay for an inmate in any of its correctional institutions unduly restricts the inmates’ access to the courts. The district court dismissed the complaint for failure to state a claim upon which relief may be granted, finding that the limitation was facially reasonable because the State (a) allows inmates to send additional mail at their own expense and (b) in its discretion, may advance inmates credit to send mail in excess of that paid for by the State if they lack the funds to pay such excess postage. On appeal, Chandler contends that the authority relied on by the district court was inapposite and that at least an evidentiary hearing should have been held as to the reasonableness of the limitation and the facts as to the State’s exercise of its discretion. We agree that the court did not properly dismiss the complaint for failure to state a claim and we therefore vacate and remand for further proceedings.
I. Background
According to the complaint, filed on behalf of all indigent inmates of New York State correctional institutions who wish to file papers in a court, Chandler was convicted of crimes in state court in 1981 and was given leave by the Appellate Division of the State Supreme Court to appeal in forma pauperis. She was required to file with that court eight copies of her brief on appeal and the transcript of the lower court proceedings. In August 1983, Chandler, then an inmate at the Bedford Hills Correctional Facility (“BHCF”), attempted unsuccessfully to mail these documents at the expense of the State. Pursuant to State policy, she was required to pay the postage of approximately $12 out of her own funds; she had at that time less than $60 in her BHCF institutional account. In January 1984, Chandler prepared a reply brief on her appeal, which she was required to mail at her own expense at a time when she had less than $10 in her BHCF account. She alleged that she anticipated further mailings in pursuit of her state appeal for which the State, pursuant to its policies, would refuse to pay postage.
Chandler alleged that she had filed a petition for habeas corpus in the district court in December 1983 asserting that she had been denied a fair trial in state court and that she anticipated having to make further mailings in support of that petition. She alleged that she also had prepared two actions to be filed in federal court pursuant to 42 U.S.C. § 1983 but that she would be unable to file the required seven copies of her complaints because she would not be able to afford the postage. She alleged that she had been able to file certain papers with the federal court only because other more affluent inmates had lent her money for postage.
The complaint alleged that the State’s refusal to pay for Chandler’s postage was based on its Department of Correctional Services Directive 4422 entitled “INMATE CORRESPONDENCE PROGRAM” (“Directive 4422”). Paragraph III.D.l. of Directive 4422 limits the amount of free postage to be provided by the State to five one-ounce letters per week; 11 III.D.3. states that the State will not provide free postage for legal briefs:
1. The Department will provide free regular first class postage for five letters of one ounce or less per letter per week to all inmates____ Inmates may send more than five letters a week, but will be required to pay postage for all correspondence in excess of five letters in any week. Inmates may not accumulate credit for unused postage.
3. All postage for items such as packages, legal briefs, letters in excess of one ounce, or any other form not covered by Item 1 will be sent at the expense of the inmate____
Quoting the statement of the United States Supreme Court in Bounds v. Smith, 430 U.S. 817, 824-25, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977), that “[i]t is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notarial services to authenticate them, and with stamps to mail them,” the complaint asserted that the State had wrongfully refused to pay the postage for Chandler’s state court appeal and that its continued refusal to pay postage would result in a deprivation of her access to the federal court, in violation of her due process right to such access. Chandler moved for a preliminary injunction to prohibit the State from persisting in its refusal.
The State filed an answer in which it asserted, inter alia, that the complaint failed to state a claim upon which relief may be granted, and it opposed the motion for a preliminary injunction on grounds stated in an affidavit and a memorandum of law. The State’s affidavit of Assistant Attorney General Marla Tepper (“Tepper Affidavit”) submitted a copy of Directive 4422 and stated in addition that inmates having insufficient funds to pay postage for legal mail could request an advance in order to mail such documents:
4. Upon information and belief, if an inmate has insufficient funds to mail legal correspondence, the inmate may request an advance. I have spoken to personnel at the facility who informed me that plaintiff presently has a negative balance in her account reflecting that advances have been made to her, albeit not necessarily for legal mail. If plaintiff chooses, she may make a request for an advance for postage and the facility will determine whether she is eligible for an advance based on her spending patterns and the responsibility she has demonstrated with regard to advances.
The district court denied Chandler’s motion for a preliminary injunction and dismissed the complaint for failure to state a claim, on the ground that the State’s limitations, including its discretionary granting of advances, were facially reasonable. The court’s Memorandum and Order, dated September 19, 1984, read as follows:
Plaintiff’s motion for a preliminary injunction docketed June 29,1984 is denied, and the complaint dismissed for failure to state a claim.
An inmate of the New York State correctional system, plaintiff is entitled to a free postage allotment from the state which permits the mailing of five letters per week. She is required under regulations of the Department of Correctional Services (“DOCS”) to pay the actual postage rates imposed by the U.S. Postal Service, for items of mail in excess of that number, and individual items weighing more than one ounce. Such excess postage is charged to her inmate account. Authority and discretion exists [sic] at the institution to advance postage even where there is a negative balance in the inmate’s account, where undue hardship would ensue.
Plaintiff alleges in this action pursuant to 42 U.S.C. § 1983 that the procedure followed with respect to free mail violates her right of unlimited access to the federal courts, assured by the Constitution. The argument is frivolous and trivializes the Constitution. The amount of free postage paid for by the State is facially reasonable; a vast amount of litigation could be conducted with five first class letters per week. See generally, Bach v. Coughlin, 508 F.2d 303, 307 (7th Cir.1974), finding a similar regulation to be reasonable.
The Clerk shall enter a final judgment dismissing the action.
On appeal, Chandler contends that (1) five one-ounce letters per week is insufficient to provide adequate access to the courts, (2) the requirements of due process are not satisfied by the State’s discretionary practice of sometimes advancing postage for legal mail, (3) Bach v. Coughlin is readily distinguishable from the present case, and (4) the district court erred in dismissing the complaint without an evidentiary hearing. We agree with plaintiff’s last two points and remand to the district court for consideration of the first two.
II. Discussion
We have several difficulties, procedural and substantive, with the district court’s dismissal of Chandler’s complaint.
A. Procedure
First, Fed.R.Civ.P. 12(b)(6) provides that if the court wishes to consider matters outside the complaint in ruling on a motion to dismiss for failure to state a claim, it must treat the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56 and give the nonmoving party an opportunity to present evidence in opposition to the motion. See, e.g., Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985); Grand Union Co. v. Cord Meyer Development Corp., 735 F.2d 714, 716-17 (2d Cir.1984) (per curiam). Here, although the district court stated that it was dismissing the complaint for failure to state a claim, it relied on information presented only in the Tepper Affidavit, basing its dismissal in large part on the existence of the correctional authorities’ “discretion ... to advance postage even where there is a negative balance in the inmate’s account, where undue hardship would ensue.”
The Tepper Affidavit was submitted to the court in support of the State’s opposition to Chandler’s motion for a preliminary injunction, and Chandler responded to it on that basis. There is no indication in the record, however, that the court advised Chandler that it would accept as true the statements set forth in the Tepper Affidavit in ruling on the motion to dismiss the complaint. Thus, we conclude that Chandler was denied the opportunity to present controverting or enlightening evidence as to the State’s exercise of its discretion— perhaps to submit affidavits of other indigent inmates that might show the existence of a genuine issue of fact as to whether they have arbitrarily been denied advances for the mailing of legal materials to the courts.
Second, the Tepper Affidavit is at once second-hand and factually sparse, and had the State formally moved for summary judgment, the affidavit should not have been deemed sufficient to warrant the granting of that motion. Rule 56(e) provides that
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
The Tepper Affidavit’s description of the State’s discretion to grant an inmate an advance for postage, set forth in full in Part I above, was stated to be “[u]pon information and belief” and appears to contain no first-hand information. It did not comply with Rule 56(e).
Further, even if the Tepper Affidavit had been based on Tepper’s first-hand knowledge, its substance would not justify the entry of summary judgment. As discussed in Part II.B. below, there is no indication of the rationale for some of Directive 4422’s restrictiveness. Further, the Affidavit’s only suggestion that the State has formulated any guidelines to inform the exercise of its discretion to make advances is the bare statement that “the facility will determine whether [an inmate] is eligible for an advance based on her spending patterns and the responsibility she has demonstrated with regard to advances.” This statement provides insufficient substance or information to permit us to infer whether the State’s discretion is exercised reasonably or arbitrarily. Though the Memorandum and Order of the district court seems to suggest that the State’s discretion is exercised to grant the inmate an advance “where undue hardship would ensue,” that suggestion goes beyond what is found in the Tepper Affidavit.
B. Due Process
As a matter of due process, prisoners must be afforded access to the courts “in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.” Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974); see Johnson v. Avery, 393 U.S. 483, 485-87, 89 S.Ct. 747, 748-749, 21 L.Ed.2d 718 (1969). “Regulations and practices that unjustifiably obstruct ... the right of access to the courts are invalid.” Procunier v. Martinez, 416 U.S. at 419, 94 S.Ct. at 1814. In Bounds v. Smith, the Supreme Court, in considering to what extent the State was required to provide inmates with law libraries, stated that “[t]he inquiry is ... whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts,” 430 U.S. at 825, 97 S.Ct. at 1496, and observed that “ ‘meaningful access’ to the courts is the touchstone,” id. at 823, 97 S.Ct. at 1495 (quoting Ross v. Moffitt, 417 U.S. 600, 611, 612, 615, 94 S.Ct. 2437, 2444, 2446, 41 L.Ed.2d 341 (1974)).
In its opinion in Bounds, the Court also stated that “[i]t is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents ... and with stamps to mail them.” 430 U.S. at 824-25, 97 S.Ct. at 1496. Although this statement itself was unqualified, we do not read it as requiring that the indigent inmate be provided unlimited free postage, but only that he not be denied “a reasonably adequate” (id. at 825, 97 S.Ct. at 1496) amount of postage to present his claimed violations of fundamental constitutional rights to the courts. Accord Twyman v. Crisp, 584 F.2d 352, 359 (10th Cir.1978) (per curiam); Guajardo v. Estelle, 580 F.2d 748, 762-63 (5th Cir.1978); Bach v. Coughlin, 508 F.2d at 307. Thus, a state is entitled to adopt reasonable postage regulations in light of, for example, prison budgetary considerations. Id. at 307-08; cf. Bounds v. Smith, 430 U.S. at 825, 97 S.Ct. at 1496 (Court’s determination that adequate library facilities must be provided was “not to say that economic factors may not be considered ... in choosing the methods used to provide meaningful access”).
The question here is whether the restrictions imposed by the State’s Directive 4422 are reasonable. The district court found Directive 4422 “facially reasonable,” citing its similarity to the regulation found reasonable in Bach v. Coughlin. Although Directive 4422 is in some respects similar to the regulation in Bach, the differences are sufficiently great that the decision in Bach cannot justify a judgment of dismissal as a matter of law here. In Bach, the regulation at issue not only provided that the inmate could send at state expense three one-ounce letters per week to legislative officials or to his attorneys, it also “provided free and unlimited postage for correspondence with federal and state courts and the Department of Corrections.” Id. at 307. In the present ease, in contrast, Directive 4422 expressly provides, inter alia, that the State will not pay postage for any legal briefs. The approval of a regulation that expressly provides that the State will provide postage for communications to the courts hardly seems adequate precedent for the approval of a regulation that expressly provides that the State will not provide postage for legal briefs.
Indeed, we think Directive 4422 on its face raises questions as to the State’s regulation. If the restrictions set forth in Directive 4422 are based on budgetary constraints, it is not apparent why an inmate may send five one-ounce letters per week at state expense but may not accumulate credit for unused postage or send one five-ounce document in a week in which he mails nothing else. If there is some other rationale for this restriction, there is no indication of it in the record. The record is also silent as to any rational basis for the blanket refusal to pay postage for any legal brief, even one that weighs less than one ounce. Further, the Directive provides that although the State will pay postage for five one-ounce “letters” per week, it will not pay postage for items in “any other form.” Thus, if a one-ounce motion addressed to a court were presented for mailing, it appears that the State would refuse to pay postage for it because it is not in the form of a letter. Such a formal distinction seems on its face arbitrary. We doubt that these questions as to the reasonableness of Directive 4422 are susceptible to resolution against the plaintiff on summary judgment, and they are among those that remain to be answered.
Conclusion
The judgment of the district court dismissing the complaint is vacated and the matter is remanded for further proceedings not inconsistent with this opinion. Costs to appellant.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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, Plaintiff-Appellee, v. Abe BENDER, Defendant-Appellee.
No. 11168.
United States Court of Appeals, Seventh Circuit.
Jan. 12, 1955.
Rehearing Denied Feb. 15, 1955.
Maurice J. Walsh, Chicago, Ill., Ezra F. Ressman, Chicago, Ill., for appellant.
Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.
Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
SWAIM, Circuit Judge.
The defendant, Abe Bender, was convicted, under 26 U.S.C.A. § 145(b), of wilfully and knowingly attempting to evade payment of income tax by filing a false return. This appeal is from that conviction.
The Government’s evidence consisted of cancelled checks payable to the defendant, receipted statements of account, and testimony, all of which indicated that the defendant during the year 1946 had gross receipts from the sale of syrup far in excess of the gross income from that source which he reported in his income tax return. The defendant limited his defense to cross-examination of the Government’s witnesses and to attacks on the Government’s evidence. At the close of the Government’s case defendant’s counsel announced that the defendant would introduce no evidence.
The defendant first contends that the court erred in denying his motion for acquittal at the close of the Government’s case. The ground for the motion was the contention that the Government had not proved beyond a reasonable doubt that there was tax due, which required establishing not only undisclosed income but also a lack of any compensating deductions or exclusions. The defendant seems to contend that the Government here must prove all the facts necessary to show unpaid tax on net income in excess of all business costs and expenses and personal exemptions. But that is not required.
The taxpayer’s costs and other factors which would lessen his tax liability are peculiarly within his own knowledge. Accordingly, the law has placed upon him the burden of going forward with the evidence once the Government has established receipts in excess of those reported in his income tax return. As this court said in United States v. Hornstein, 7 Cir., 176 F.2d 217, 220: “The figures of cost of goods sold, as they were used in preparing his tax returns, were at least admissions by the defendant which the government could utilize in making a prima facie case. The defendant was chargeable with them until he offered credible evidence to show that the figures were in error, and that his costs were greater.”
If the defendant had additional costs or expenses that offset the unreported income established by the Government’s case, the burden was on him to prove that as part of his defense. In his brief on appeal the defendant insists that this rule of law improperly shifts part of the burden of proof from the Government to him. But as we have pointed out, the Government satisfies its burden of proof when it shows that the taxpayer has received more income than was reported. It is then the taxpayer’s burden to show, if he can, that, even though he received more income than he reported, he does not owe any additional tax. This rule is grounded on the realization that it would be virtually impossible for the Government to show the negative fact that a taxpayer had no unreported deductions or exclusions. In such a case the Government, having shown unreported income, is aided by the presumption that the deductions and exclusions listed by a taxpayer in his return are all that exist. This presumption is based upon reasonable experience (taxpayers would not knowingly fail to report all valid deductions), and has the effect of shifting the burden of going forward with the evidence to the defendant, when the Government has shown unreported income. Clark v. United States, 8 Cir., 211 F.2d 100; United States v. Link, 3 Cir., 202 F.2d 592; United States v. Zimmerman, 7 Cir., 108 F.2d 370.
The presumption may be rebutted by any substantial evidence but, since the defendant introduced no evidence, the jury was justified in finding that there was tax for 1946 which the defendant had not paid.
The defendant claims that the admission of Government Exhibit 55 was error. Exhibit 55 is a work sheet, prepared by defendant’s own accountant from can-celled checks, receipts, etc., in the course of preparing defendant’s income tax return. It lists all the individual expenditures and income declared by Bender in his syrup business for the year of 1946. The total “Sales” and “Purchases” listed on the Exhibit are the same as those in Bender’s tax return.
Defendant’s first complaint is that this is an “extra-judicial confession,” and as such cannot be used, uncorroborated, to establish part of the corpus delicti of the crime charged. This argument finds no support in either the law or the facts involved here. The exhibit was corroborated both by Bender’s tax return and by the cancelled checks which were in evidence. Furthermore, as already made clear, the corpus delicti of income tax evasion is prima facie established when the Government shows that the defendant has received more money than he reported. This was done before Exhibit 55 was introduced, and defendant did nothing to upset that prima facie case. Since Exhibit 55 was not necessary to establish the corpus delicti, it need not have been corroborated. Auerbach v. United States, 6 Cir., 136 F.2d 882, 885.
Bender’s contention that Exhibit 55 was improperly obtained by the Government is also without merit. The record shows that Government agents did not obtain the work sheet with, as Bender claims, the promise of dropping the criminal charges against him. They obtained it from Mr. Pos to whom Bender had granted his power of attorney. Mr. Pos told Government investigators that he thought the auditor’s work sheet contained mathematical errors which would explain the discrepancies between Bender’s actual income and that listed on his tax return. The investigators said that if this proved to be true, they would, of course, drop the criminal charges. It was after this conversation that Mr. Pos gave the investigators the work sheet which later became Exhibit 55. As it turned out, the work sheet did not explain the deficiency, and Bender was indicted. There was nothing improper in the Government agents’ conduct. Careful examination of the record shows that Bender’s attorney, Mr. Pos, gave the document to the Government voluntarily in the hope that it would explain the deficiencies on the tax return. As attorney for the defendant, he had the authority to do this. For another criminal tax case in which the admission of similar evidence, obtained by the Government from the defendant’s attorney, was held proper, see Banks v. United States, 8 Cir., 204 F.2d 666.
The defendant objects to the limitation placed upon him by the trial judge with regard to his closing argument concerning a $6,800.00 refund he made to one of his syrup customers. The following took place while the defendant’s attorney was addressing the jury with regard to the $6,800.00 refund.
“Mr. Walsh: * * * He didn’t take that back to resell it. That isn’t the inference you must take from the evidence. He took it back because it was no good.
“Mr. Kralovec: I object. There is no testimony that it was no good.
“Mr. Walsh: The testimony is that it was unsatisfactory merchandise, and I think it is a fair argument.
“Mr. Kralovec: Counsel has stated what he believes is a fact, from the testimony, and there was no such testimony to that effect. It was testified, I submit, that that was reported on the books as a sale. There is no indication or characterization of what condition that merchandise was in.
“The Court: I do not recall any evidence of the fact that the goods were not satisfactory, Mr. Walsh.
“I will sustain the objection and ask the jury to disregard that phase of Mr. Walsh’s argument.”
Actually the evidence showed that the syrup was returned because it was unsatisfactory. Mr. Waller, Vice President and Treasurer of Sunset, Incorporated, the company which returned the syrup in question, testified that “it was a return of merchandise which we had purchased that we found unsatisfactory.” Apparently the defendant was trying to make the jury think that the deficiency in income reported on his tax return should be reduced by $6,800.00 because he had to refund that amount and received in return syrup that was of no value. If this was defendant’s purpose, the court was correct in striking out his statement. The evidence we have set out above was that Sunset returned the syrup because it was “unsatisfactory,” and to us this means not suited for Sunset’s purposes. This description does not necessarily mean that the returned syrup was valueless to the defendant as his term, “no good,” would indicate.
The entire objection is without merit, however, because, if the defendant could have reduced by $6,800.00 the amount of the deficiency proved against him, there would still have been some $17,000.-00 of unreported income.
The Government introduced witnesses who had done business with the defendant. These witnesses identified statements of accounts received from and checks paid to defendant for goods received, and testified as to the particular transactions in which the Government claimed the defendant received unreported income. On cross-examination the defendant’s attorney asked questions about other transactions between the witnesses and the defendant which had not been mentioned in direct examination, and about the witnesses’ business operations in general. The Government’s objections to these questions were sustained in each instance and the defendant claims that this was reversible error.
The extent of cross-examination is a matter within the discretion of the trial judge and this court will review the exercise of that discretion only to determine whether or not it has been abused. Bell v. United States, 4 Cir., 185 F.2d 302, 310, 311; Wright v. United States, 87 U.S.App.D.C. 67, 183 F.2d 821; United States v. Fotopulos, 9 Cir., 180 F.2d 631, 640; Minnehaha County, S. D. v. Kelley, 8 Cir., 150 F.2d 356, 360-361.
It is the trial judge’s duty to so control the presentation of evidence to the jury that it will be as well organized and understandable as possible. The traditional procedure is for the moving party to present its case and then for the defendant to present his defense. As each witness testifies, it is important that the opposing party have an opportunity to test his truthfulness and competency. But it is also important that the regular procedure of the trial be maintained. As a result, each party is allowed to cross-examine his opponent’s witnesses but he must ordinarily confine his cross-examination to the subject matter brought out on direct examination. United States v. Fotopulos, supra; Chevillard v. United States, 9 Cir., 155 F.2d 929, 934-935; Kincade v. Mikles, 8 Cir., 144 F.2d 784, 787. If the cross-examiner wants to use the witness to prove other matters, he must wait until it is time to present his case and then call the witness as his own. In this way each party is given an opportunity to challenge the other’s witnesses, but the jury is not unnecessarily confused by being presented with evidence as to the contentions of both parties so intermingled as to make the evidence unintelligible.
Under some circumstances extraneous matter may be explored on cross-examination for the purpose of testing the credibility of the witness. United States v. Lawinski, 7 Cir., 195 F.2d 1, 6. The extent to which counsel may go in such an attempt is, again, within the discretion of the trial judge who must balance the party’s right to impeach his opponent’s witnesses against the need to prevent the confusion which may be created by delving into matters which were not examined in the direct examination.
The trial judge’s duty to see that the evidence is presented to the jury in as orderly and understandable a manner as possible requires that he have broad discretion in such matters. The defendant gave no definite reasons for his attempted examinations. He made no offers of proof. In each case he merely said that he thought the questions were proper and in each case the questions sought information on matters not raised on direct examination. We find in this record no abuse of discretion on the part of the trial judge in refusing to permit the witnesses to answer these questions.
The defendant further complains that the Government changed the theory of the- case and greatly confused him by amending its bill of particulars several times, the last of which times was the day before the trial. He further complains that the Government introduced evidence of income from sources which were not even mentioned in the bill of particulars.
As regards the amendments, Rule 7(f) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., provides: « * * * A bill of particulars may be amended at any time subject to such conditions as justice requires.” Whether or not an amendment should be allowed is in the discretion of the trial court and we will review its decision only for abuse of discretion. United States v. Chapman, 7 Cir., 168 F.2d 997, 999.
The bill of particulars listed the income which the Government expected to prove that defendant did not report on his tax return. It was amended three times. The first amendment increased the amount allegedly received from one customer and dropped the entire amount allegedly received from another. The second amendment stated that “The term ‘gross income’ as used in * * * the Amended Bill of Particulars * * * is intended to have the same meaning as the words ‘gross receipts’ and ‘gross payments.’ ” The day before trial the court ordered, on motion of the Government, “that leave be and is hereby given to the Government to withdraw all of the assertions contained in the Supplemental Amended Bill of Particulars [second amendment] and to re-affirm all of the assertions made in the Bill of Particulars * * This last minute defining and redefining of terms had no effect on the matters necessary for Bender’s defense. It did not amount to a surprise allegation which defendant was not given time to meet. It was therefore not an abuse of the trial court's discretion to allow these amendments to be made.
Of all the objections now made to the introduction of evidence of facts not included in the bill of particulars, a careful review of the record shows that the defendant objected to such evidence only once during the trial. We will not review the admission of evidence to which there was no objection made at the trial. Boyle v. Bond, 88 U.S.App.D.C. 178, 187 F.2d 362; Mutual Benefit Health & Accident Association v. Francis, 8 Cir., 148 F.2d 590. The admission of evidence of facts not shown by the bill of particulars certainly did not constitute such obvious or damaging error that we must notice them in the absence of proper objections.
The defendant did object, however, to the admission of evidence concerning money received from the Jerome Company which was not mentioned in the bill of particulars. The Government made its case by proving all the income received by Bender from the sale of syrup and comparing that with the amount declared on his income tax return. The bill of particulars purported to list only that income which was not reported on defendant’s tax return. The income from the Jerome Company was listed on Bender’s tax return and, therefore, was properly omitted from the bill of particulars. This objection was therefore properly overruled.
Defendant cannot for the first time on appeal object to the instructions given to the jury by the trial court. Rule 30, Federal Rules of Criminal Procedure, 18 U.S.C.A.; United States v. Angel, 7 Cir., 201 F.2d 531, 534. At the trial the defendant did object in a general way to certain of the instructions, but his objections fell far short of being specific enough to give the trial court an opportunity to correct the alleged errors now complained of on appeal.
The defendant now objects to the court’s instructions on three subjects: circumstantial evidence, the proper determination of tax due, and the testimony of a single witness. We will quote from the only statements of the defense attorney that could be construed as giving reasons for his objections, Record 427-428:
“Mr. Walsh: * * * The defendant objects to the statement that the case need not be proved by direct and positive evidence.
“The defendant objects to the use of the word ‘positive’ and objects on the ground that the word ‘positive’ may lead the jury to believe that the proof need not be affirmative.
“The defendant objects to the statement by the Court that the law demands a conviction in certain instances. Circumstantial evidence is one where it could be identified, contains a statement argumentative and prejudicial to the defendant.
******
“As I heard it, I believe the instruction contained a statement that Krane’s testimony was controlling. That may be an error.
“The Court: That wording was not used. I think you are mistaken.
“Mr. Walsh: I say, I may be mistaken.
******
“Mr. Walsh: It may be that I misunderstood that. I think I probably did.”
We find it impossible, from the above, to determine what the defendant’s objections were and we doubt that the trial judge was able to understand them. The objections must be called to the trial judge’s attention with sufficient specificity to apprise him of the question of law raised by the objector. If the District Court was not given an opportunity to rule on the specific objection, we need not consider it on appeal. Reeve Brothers v. Guest, 5 Cir., 131 F.2d 710.
Since we have found no prejudicial errors, the judgment of the District Court is
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_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.
Gary E. ROSS and Kay Ross, Appellants, v. Mahlon MARTIN, Director of the Department of Finance & Administration of the State of Arkansas, in his official capacity, Appellee.
No. 86-1338.
United States Court of Appeals, Eighth Circuit.
Submitted Aug. 14, 1986.
Decided Sept. 15, 1986.
John Wesley Hall, Jr., Little Rock, Ark., for appellants.
Joseph V. Svoboda, Little Rock, Ark., for appellee.
Before McMILLIAN, ARNOLD and BOWMAN, Circuit Judges.
Simmons First National Bank of Pine Bluff, Arkansas, was a plaintiff in the District Court, and the United States of America, Internal Revenue Service, was a defendant. As these parties are not interested in the appeal, we have omitted them from the caption in our Court.
ARNOLD, Circuit Judge.
Gary E. and Kay Ross appeal from an order of the District Court granting summary judgment in favor of Mahlon Martin, Director of the Department of Finance and Administration of the State of Arkansas (DFA), and rejecting the Rosses’ challenge to the constitutionality of the Arkansas Tax Procedure Act, Ark.Stat.Ann. §§ 84-4701-4744 (Repl.1980 & Supp.1985). Because we agree that the Act, both on its face and as applied to the Rosses, satisfies the requirements of the Due Process Clause , of the Fourteenth Amendment, we affirm the judgment of the District Court.
In April 1984, the Rosses received a notice from the DFA stating that because the Internal Revenue Service had adjusted their reported taxable income for 1980, they needed to file an amended state income-tax return to reflect the change in tax liability. The notice explained that failure to file an amended return within sixty days would result in an assessment of the tax due, plus a penalty and interest.
On July 30, 1984, having received no response from the Rosses, the DFA sent a second notice indicating that a proposed assessment of $306.45 was being made in accordance with Ark.Stat.Ann. § 84-4718. In addition to explaining the basis for the deficiency, the notice advised the Rosses that if they did not agree with the proposed assessment, they could file a written protest with the Commissioner of Revenues within thirty days, and request an adminis--trative hearing. The notice further explained that failure to submit a written protest would constitute a waiver of any protest to the assessment, and that a final assessment would then be made.
The Rosses did not request an administrative hearing or submit payment after receiving the notice of proposed assessment. Accordingly, the DFA sent the Rosses a final assessment and demand for payment on October 5, 1984. The Rosses were advised that failure to make payment within ten days would result in the filing of a certificate of indebtedness against them in the Circuit Court of Jefferson County, and that entry of such a certificate would constitute a judgment against them. The Rosses responded by letter on October 11, 1984, offering no objection to the final assessment of $306.45, but indicating that they were unable to pay the entire amount. They asked the DFA to arrange for payment on an installment basis so that they could satisfy the liability without the filing of a certificate of indebtedness.
The parties subsequently agreed on a payment schedule, but the Rosses failed to make payments as arranged. Therefore, on December 17, 1984, the DFA filed a certificate of indebtedness in the Jefferson County Circuit Court. A copy of the certificate was mailed to the Rosses, together with a letter explaining that execution of the judgment would be withheld if the Rosses took action to make payments in accordance with the parties’ agreement. Thereafter, the Rosses submitted two $50.00 payments.
In February 1985, Simmons First National Bank of Pine Bluff, Arkansas, brought a foreclosure action in a state court against the Rosses, who had defaulted on a mortgage the bank held on their home. The bank also sued the IRS and the DFA, seeking a declaration that existing federal and state tax liens were inferior to the mortgage. The Rosses filed a cross-complaint against the IRS, and a third-party complaint against Mahlon Martin in his official capacity as Director of DFA. The federal government removed the entire action to the District Court for the Eastern District of Arkansas, which granted summary judgment in favor of the bank on its claims, and granted the government’s motion to dismiss the Rosses’ cross-complaint against the IRS.
In their third-party complaint against Mahlon Martin, the claim at issue on this appeal, the Rosses challenged the constitutionality of the Arkansas Tax Procedure Act. Asserting jurisdiction under 42 U.S.C. § 1983, they sought a declaration that the State’s tax lien was void, claiming that the certificate-of-indebtedness procedure violated their right to due process of law. Both sides moved for summary judgment on this issue. The District Court granted Martin’s motion, noting that the State can file a certificate of indebtedness only after the taxpayer has had an opportunity to seek relief from the Commissioner’s decision. The Court concluded that the Arkansas Tax Procedure Act complies with the fairness requirements of the Due Process Clause, and entered judgment in the amount of $206.45 in favor of the State of Arkansas. This appeal followed.
The Rosses now argue that the State deprived them of property without due process by filing a certificate of indebtedness and creating a judgment against them without adequately informing them of appeal procedures available under the Arkansas Tax Procedure Act. They complain that, although taxpayers receive notice of their right to file a protest with the Commissioner of Revenues, they are not informed that the hearing on their protest will be conducted by an independent hearing officer, or that they may seek de novo judicial review of a final administrative decision. The Rosses suggest that the State be required to attach a copy or summary of all relevant statutory provisions to notices of proposed and final assessments, so that taxpayers will not have to seek legal assistance. In short, the Rosses do not challenge the adequacy of protest and appeal procedures provided under the Act, but argue that due process requires that taxpayers be given actual and individual notice of the entire appeal procedure.
We do not agree. The procedures for protesting and appealing tax assessments are clearly set forth in Ark.Stat.Ann. §§ 84-4719-4721, and, as the District Court noted, all persons are generally presumed to know the law. See, e.g., Atkins v. Parker, 472 U.S. 115, 105 S.Ct. 2520, 2530, 86 L.Ed.2d 81 (1985); North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953 (1925) (“All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them____”). Admittedly, the State may not rely on the presumption of knowledge of the law in all circumstances. For example, the presumption may be overcome in cases where a statute has been amended without providing a sufficient “grace period” to give persons affected by the change an opportunity to familiarize themselves with the law, see Texaco, Inc. v. Short, 454 U.S. 516, 532-33, 102 S.Ct. 781, 793-94, 70 L.Ed.2d 738 (1982), or where sanctions may be imposed on an individual for failing to act, but the individual is in no way alerted to the consequences of his inaction. See, e.g., Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (ordinance making it an offense for a convicted felon to remain in Los Angeles more than five days without registering with the police could not be applied to a person who neither knew nor could reasonably have been expected to know of his legal obligation). The Arkansas Tax Procedure Act, however, does not comparably strain the requirements of due process. Indeed, § 84-4718 of the Act re-, quires the DFA to notify taxpayers of a proposed assessment, the basis for that assessment, and their right to file a protest with the Commissioner of Revenues before a final assessment is made. We see no reason why taxpayers so notified should not be expected to take the initiative to find out the extent of any additional appeal rights under the Act and assert them. The Act is not unconstitutional because it fails to require actual notice of the entire appeal procedure.
Nor can we say that the Act as applied in this case violated the Rosses’ right to due process of law. The notice of proposed assessment the Rosses received in July 1984 informed them of their right to file a protest and request an administrative hearing. That notice also advised the Rosses that failure to challenge the proposed assessment would constitute waiver of any further protest or claim against the State on account of the assessment. When the Rosses did not request administrative review, the DFA sent a notice of final assessment and demand for payment which explained that failure to submit payment within ten days would result in the filing of a certificate of indebtedness. It was not until another two months had passed and the Rosses had failed to comply with an agreed-upon schedule for payments that the DFA issued a certificate of indebtedness. In short, the State obtained a tax lien only after giving the Rosses notice and an opportunity to be heard.
In the circumstances, we reject the Ross-es’ challenge to the constitutionality of the Arkansas Tax Procedure Act, both on its face and as applied in this instance. Accordingly, the judgment of the District Court is affirmed.
. The Hon. Henry Woods, United States District Judge for the Eastern District of Arkansas.
. Section 84-4718 provides in pertinent part:
If any taxpayer fails to file any return as required by any State tax law, the Commissioner, from any information in his possession or obtainable by him, may determine the correct amount of tax for the taxable period. If a return has been filed, the Commissioner shall examine the return and make any audit or investigation that he considers necessary. When no return has been filed and the Commissioner determines that there is a tax due for the taxable period, or when a return has been filed and the Commissioner determines that the tax disclosed by the return is less than the tax disclosed by his examination, the Commissioner shall propose the assessment of additional tax plus penalties, as the case may be, and shall give notice -of the proposed assessment to the taxpayer. The notice shall explain the basis for the proposed assessment and shall state that a final assessment, as provided by Section 12 [§ 84-4712], will be made if the taxpayer does not protest such proposed assessment as provided at [by] Section 19 [§ 84-4719].
Section 84-4719 provides:
(a) Any taxpayer who wishes to seek relief from any proposed assessment of taxes by the Commissioner shall follow the procedure provided by this section.
(b) A taxpayer may at his option either request the Commissioner to consider his request for relief solely upon written documents furnished by the taxpayer or upon the written documents and any evidence produced by the taxpayer at a hearing. A taxpayer who requests the Commissioner to render his decision based upon written documents is not entitled by law to any other administrative hearing prior to the Commissioner’s rendering of his decision, and, if necessary, the issuing [of] a final assessment and demand for payment or issuing of a certificate of indebtedness.
(c) Within thirty (30) days after the service of notice of the proposed assessment or action, the taxpayer may file with the Commissioner a written protest under oath, signed by himself or his duly authorized agent, setting forth the taxpayer’s reasons for opposing the proposed assessment.
(d) The Commissioner may in his discretion extend the time for filing a protest for any period of time not to exceed an additional ninety (90) day period.
. In their motion for summary judgment filed in December 1985, the Rosses indicated that they filed a written protest and that an administrative hearing was held. However, it does not otherwise appear from the record on appeal that the Rosses actually protested the proposed assessment. Furthermore, the Rosses in effect admitted the facts recited in text through a letter from their attorney dated November 5, 1985. App. A-14, A-16.
. In 1983, the IRS filed a federal tax lien against the Rosses because of a deficiency in their federal income tax for 1980.
. Section 84-4720 provides in part:
(a) The Commissioner shall appoint a Hearing Officer to review all written protests submitted by taxpayers, hold all hearings, and make written findings as to the applicability of the proposed assessment. Decisions of the Hearing Officer shall be final, unless revised by the Commissioner.
******
(b) The Commissioner may appoint one [1] or more Hearing Officers, but the person or persons occupying that appointment shall not contemporaneously with the holding of that appointment have any other administrative duties within the Division of Revenues of the Department of Finance and Administration.
. Section 84-4721 provides in part:
(a) Within thirty (30) days of the issuance of the Notice and Demand for payment of a deficiency in tax established by a final determination of the Hearing Officer or the Commissioner under Section 20 [§ 84-4720] of this Act, a taxpayer may seek judicial relief from such final determination by either:
(1) Paying under protest the amount of the deficiency, plus penalty and interest determined by the Commissioner to be due, and filing a suit to recover such amount within one (1) year from the date of payment under protest, or
(2) Filing with the Commissioner a bond in double the amount of the tax deficiency due and by filing suit within thirty (30) days thereafter to stay the effect of the Commissioner's determination. The bond shall be subject to the condition that the taxpayer shall file suit within thirty (30) days after filing the bond, shall faithfully and diligently prosecute the suit to a final determination and shall pay any deficiency found by the court to be due and any court cost assessed against him. Taxpayer's failure to file suit, diligently prosecute the suit, or pay any tax deficiency and court costs, as required by this subsection, shall result in the forfeiture of the bond in the amount of the assessment and assessed court costs.
(b) Jurisdiction for a suit to contest a determination of the Commissioner shall be in the Pulaski County Chancery Court, or the Chancery Court of the County in which the taxpayer resides or has his principal place of business, where the matter shall be tried de novo. An appeal will lie from the Chancery Court to the Supreme Court of Arkansas as in other cases now provided by law.
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:
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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. Paul Albert ASKEW, a/k/a, Theodore Eugene Kelley, Defendant-Appellant.
No. 77-1549.
United States Court of Appeals, Tenth Circuit.
Argued and Submitted May 10, 1978.
Decided Oct. 10, 1978.
Jeffrey A. Hyman, Denver, Colo., for defendant-appellant.
Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on the brief), for plaintiff-appel-lee.
Before SETH, Chief Judge, and LEWIS and DOYLE, Circuit Judges.
LEWIS, Circuit Judge.
The defendant appeals from a judgment entered following a court trial in which he was found guilty of three counts of interstate transportation of forged securities under 18 U.S.C. § 2314. Defendant asserts that he was denied his constitutional rights to a speedy trial and due process of law. He also assigns error to the trial court in admitting evidence relating to other crimes committed by the defendant and allowing the prosecution to comment on the failure of the defendant to produce handwriting exemplars. For reasons hereinafter stated we affirm the judgment below.
Defendant was indicted for the above-mentioned offenses on December 13, 1974. After a number of continuances were granted the defendant due to poor health, an omnibus hearing was held on April 15, 1975, and the defendant was arraigned on May 19. On June 12, the defendant was ordered to provide the Government with certain handwriting exemplars, but upon his refusal in open court to comply, the defendant was ordered held in contempt on July 1, 1975. The trial was continued until such time as the defendant purged himself of contempt. Over nineteen months later, on February 22,1977, the defendant moved for dismissal based on denial of his right to a speedy trial. This motion was denied on March 3, 1977, and the ease was reset for trial based on indications by the Government that it was willing to try the case without the requested exemplars. Following further continuances the case was tried to the court on May 10, 1977.
I.
The record in this case reveals that the defendant has not suffered a deprivation of his Sixth Amendment right to a speedy trial. The Supreme Court has prescribed a balancing test in speedy trial cases which calls for an ad hoc appraisal of the following factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101. While the length of delay in this case was substantial, that alone does not require dismissal on Sixth Amendment grounds. The greater part of the delay was caused by the defendant himself, due to his poor health in the early stages of the litigation and later by his refusal to comply with the court order to submit handwriting exemplars. The defendant will not be heard to complain about delay for which he was the cause. United States v. Key, 10 Cir., 458 F.2d 1189, cert. denied, 408 U.S. 927, 92 S.Ct. 2510, 33 L.Ed.2d 339. The order to produce the handwriting exemplars was lawful, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1171; United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99, and the court possessed “inherent power” to enforce compliance through civil contempt. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622. Defendant’s reliance on Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215, in support of his assertion that it was improper to postpone the trial during his confinement for contempt is misplaced. The Hovey court held merely that a defendant could not properly be subjected to a default judgment due to inability to file an answer while being confined in contempt. No such judgment was entered against defendant in this case. A trial court must be empowered to continue proceedings until the defendant is purged of contempt, or the efficacy of the court’s valid orders would be substantially vitiated. See, United States v. Mitchell, 6 Cir., 556 F.2d 371.
The case was set for trial on March 15, 1977, but was delayed due to unavailability of three government witnesses and conflicting obligations of the prosecutor. This is sufficient justification for some delay. Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. Defendant did not raise his speedy trial arguments until February 22, 1977, and he has shown no prejudice from the delay. Under Barker, prejudice to the defendant is assessed in terms of the following interests which the speedy trial right is intended to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id., at 532, 92 S.Ct. at 2193 (footnote omitted). During most of the pendency of this case the defendant was in custody for charges pending against him in the Western District of Missouri, which were not dismissed until April 14, 1977. Further, the defendant produced no evidence at trial and has made no showing that his defense was at all prejudiced by the delay. While we do not minimize the anxiety and concern to which the defendant was subjected in awaiting trial, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, we hold that the total circumstances presented here do not amount to deprivation of the Sixth Amendment right to a speedy trial. United States v. Mackay, 10 Cir., 491 F.2d 616, cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640.
II.
Defendant contends that he was denied due process of law by what he deems an unreasonable government delay in determining that the case could be prosecuted without the sought handwriting exemplars. We are provided with no authority in support of this proposition, and we find it to be without merit. The handwriting exemplars sought by the Government would have unquestionably been highly relevant and useful in the prosecution of this case, even if they were not absolutely essential, and the trial judge found the Government’s case to be substantially weakened without them. In light of defendant’s prolonged recalcitrance, however, the Government may well have concluded that it faced even greater risk from faded memories of witnesses if prosecution were to be delayed further. The belated decision to proceed without the desired exemplars was thus reasonable under the circumstances, and defendant was not deprived of due process of law.
III.
At trial evidence was presented that in 1971 the defendant was convicted of violation of 18 U.S.C. § 2314, the same statutory offense involved here. The offenses with which defendant was here charged occurred within a few months after he was released from the sentence imposed after the earlier conviction. The trial judge ruled that evidence of the prior conviction was admissible under Fed.R.Evid. 404(b) to show knowledge, intent, and the absence of mistake or accident. The judge further ruled that the probative value of the evidence of prior conviction greatly outweighed its possible prejudicial effect. This determination was properly within the trial judge’s discretion, and the admittance of this evidence does not call for reversal. United States v. Nolan, 10 Cir., 551 F.2d 266, cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191.
IV.
The final appellate argument presented here is that the trial court erred in allowing the Government to comment on defendant’s refusal to produce exemplars as tending to prove his guilt of the offense charged. The sole authority cited by defendant is an opinion from another circuit. United States v. White, 7 Cir., 355 F.2d 909, cert. denied, 389 U.S. 1052, 88 S.Ct. 796, 19 L.Ed.2d 846. The great weight of authority, however, holds such comment proper. United States v. Blakney, 10 Cir., 581 F.2d 1389 (1978); United States v. Franks, 6 Cir., 511 F.2d 25, 35-36, cert. denied sub nom. Mitchell v. United States, 422 U.S 1042, 95 S.Ct. 2656, 45 L.Ed.2d 693, and Britton v. United States, 422 U.S. 1048, 95 S.Ct. 2667, 45 L.Ed.2d 701; United States v. Nix, 5 Cir., 465 F.2d 90, cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307, reh. denied, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704; United States v. Doe, 2 Cir., 405 F.2d 436. We likewise hold that comment on defendant’s refusal to comply with a lawful order to produce handwriting exemplars as an indication of guilt was proper in this case. The disobeyed order did not violate defendant’s Fifth Amendment privilege against self-incrimination, and the trial court was justified in drawing an inference of guilt from defendant’s refusal to comply.
AFFIRMED.
. The cited case requires a comment.
The Sixth Circuit remanded in Mitchell for resentencing holding that a sentence for civil contempt for failure to produce exemplars was limited under 28 U.S.C. § 1826(a) to a period of eighteen months and applied to defendants as well as to recalcitrant witnesses. Mitchell was ordered to be given credit against his principal sentence for time served in excess of eighteen months for his contempt. We reserve this basic question of statutory interpretation for in the case at bar the defendant was given credit for his entire sentence imposed for contempt.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_appnatpr
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DALLAS CITY PACKING COMPANY, Respondent.
No. 15677.
United States Court of Appeals Fifth Circuit.
Feb. 29, 1956.
Borah, Circuit Judge, dissented.
Norton J. Come, Atty., Marcel Mallet-Prevost, Asst. Gen. Counsel, Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Arnold Ordman, Morris A. Solomon, Attys., N. L. R. B., Washington, D. C., for petitioner.
Emil Corenbleth, Dallas, Tex., for respondent.
Before BORAH and JONES, Circuit Judges, and DAWKINS, Sr., District Judge.
JONES, Circuit Judge.
Two questions are presented by this proceeding for enforcement of an order of the National Labor Relations Board directing the respondent, Dallas City Packing Company, to bargain collectively with a union which had been certified by the Board as the bargaining representative of employees. One of these questions arises from a challenge to the Board’s jurisdiction, the respondent claiming it is not doing business in interstate commerce. The other question is whether the respondent’s request for a formal hearing on its objections to the conduct of the election of the Union as a bargaining representative should have been granted by the Board.
The respondent is a partnership composed of Milton Rubin, Rose Rubin, Herman Waldman, and Bernice Rubin Wald-man. It operates a meat packing and processing business in Dallas, Texas. It buys all of its live stock in Texas. During the year 1954, the year with which we are here concerned, the respondent bought $4,200,000 of live stock, all of which was purchased in Texas. Spices and supplies were bought outside Texas for which about $18,000 was paid. Meat and meat products and by-products were sold entirely in Texas, the amount of the sales being approximately $5,000,000. The respondent sold hides to purchasers doing business out of Texas for about $200,000.
Cattle are slaughtered on a killing floor where the hide is removed from the animal by four of respondent’s em-, ployees. The hide drops to the floor. The employees who are engaged in the meat processing and packing operations have no more to do with the hides. The respondent has one employee whose activities are primarily if not wholly devoted to handling of the hides. His job is to remove them from the killing floor to a separate building, called the hide cellar, across a road from the packing plant. In the hide cellar the hides are salted, cured and tied into bundles. When a carload of hides has accumulated, the hides are weighed by the killing foreman, loaded by itinerant labor gangs, and shipped. The respondent contends that jurisdiction over all of its employees cannot be secured merely because four per cent, of its sales volume, arising from the sale of a by-product, is in interstate commerce. The Board does not rely upon the purchases of spices in interstate commerce as conferring jurisdiction. We shall not further advert to it.
The Union (Local 528, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL) petitioned the Board for certification as bargaining representative of the respondent under Section 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c). The Board, rejecting respondent’s objections to its jurisdiction, ordered an election. On the day prior to the election the employees received from the respondent a letter or bulletin. On the day of the election Union representative distributed at the gate of respondent’s plant a mimeographed sheet or pamphlet entitled “Our Answer Herman [Herman Waldman] And Mickey [Milton Rubin]”. It referred to the respondent’s message to employees as “a slick, underhanded, method of intimidating you and your family”. In this pamphlet the Union asserted that respondent had been underpaying employees as much as ninety cents an hour for years, that employees were underpaid $31.30 each week. In this pamphlet the Union commented on the respondent’s Christmas bonus or proposed Christmas bonus by saying “What you two boys should do at Xmas-time is buy yourself a gun. At least Jesse James used a gun when he committed highway robbery”. A pistol and a hand holding it are depicted at the margin of the language last quoted.
The election was held. At the polling place within the plant as observer for the Union was stationed respondent’s employee Diamond Watson. Of the 67 employees eligible to vote, 66 participated. The tally showed 34 votes for the Union, 31 votes against the Union, and 1 ballot challenged. The respondent objected to the conduct of the election and charged that the passing out of the Union pamphlet was unlawful electioneering and an interference with the free choice of the employees, that the closeness of the vote raised a presumption that the distribution of the pamphlet affected the election, and that subsequent to the election it had learned that Diamond Watson was an organizer of the Union and an instigator of Union activities, whose presence constituted interference, restraint and coercion. By the objections it was prayed that the Union not be certified as the employees’ bargaining agent. The Regional Director of the Board reported on the respondent’s objections, finding that the Union’s-pamphlet was not interference, that the evidence did not establish that Diamond Watson was an officer of the Union but that he was an employee. The respondent objected to the report, and in some detail related the taking of the Union pamphlets into the plant and the discussions with respect to them in the plant by the employees. The Board overruled the objections and certified the Union as the bargaining representative. A motion for rehearing was made by the respondent and denied by the Board. The respondent refused to bargain with the Union, the Union filed its complaint with the Board, a hearing was had before a Board Examiner who, in an intermediate report, refused to consider the question of the validity of the election, feeling himself bound by the Board’s certification. Exceptions to the report were taken by the respondent on the grounds previously asserted. The Board entered its order directing the respondent to cease and desist from refusing to bargain with the Union and interfering with the Union’s bargaining efforts. The respondent was directed to bargain with the Union, post the notice of Union recognition and advise the Regional Director of compliance. The respondent filed with the Board its motion for rehearing and exceptions which were denied. The proceeding is before us on a petition for enforcement of the Board’s order.
The Board had jurisdiction. It is so well known that the use and disposition of by-products, including hides, is an integral part of the meat packing and processing business that such fact need not be proved. Although the amount in dollar volume received from the sale of hides is not a large percentage of total sales, yet it is substantial. Congress did not make jurisdiction dependent upon any volume of commerce affected as long as it is in an amount sufficient to avoid the operation of the de minimis rule. National Labor Relations Board v. Vulcan Forging Co., 6 Cir., 1951, 188 F.2d 927. Analogous are the holdings of this court in National Labor Relations Board v. Gulf Public Service Co., 5 Cir., 1941, 116 F.2d 852, and National Labor Relations Board v. Mid-Co. Gasoline Co., 5 Cir., 1950, 183 F.2d 451. We are not persuaded that the stripping, curing and sale of the hides should be disregarded by reason of only one full-time employee devoting all of his time to the removal and curing of the hides.
In National Labor Relations Board v. Trinity Steel Co., 5 Cir., 1954, 214 F.2d 120, an election was held where 39 votes were cast for union representation and 18 against it. There as here the employer filed Objections to the Conduct of the Election and Conduct Affecting the Results of the Election on the principal ground that the Union interfered with the employee’s free choice by making misrepresentations and promises. The objections, there as here, were overruled by the Regional Director and his action was sustained by the Board, followed by a certification of the Union as the bargaining representative. In the Trinity Steel Company case a union representative had made misrepresentations to employees regarding the employer’s efforts to get Wage Stabilization Board approval of wage increases. The court held this, coupled with promises that the Union would procure increased wages, required that the election be set aside. In the case before us the Regional Director found and the Board agreed that the distribution of the pamphlets at the gate of the respondent’s plant five hours before the election did not constitute union interference with the free choice by the employees of a bargaining agent. However, the respondent charged and was never given an opportunity to prove that these pamphlets were intended by the Union to be taken into the plant and in fact were taken into the plant, were found in the dressing room, and were much discussed off and on during the day. The question of whether or not the distribution of the pamphlets, followed by the happenings within the plant, constituted an interference with a free election involves something more than the five hours of time between distribution at or near respondent’s gate and balloting.
There is the charge by respondent, upon which it has had no opportunity to make proof, that the Union watcher at the polling place, Diamond Watson, was a union organizer and instigator who had threatened some of the employees and these facts were unknown to the respondent at the time of the election. The Regional Director found that because it was not shown that Watson was a Union official and at the time of the election he appeared to be an employee of the respondent and an eligible voter, and cast a ballot as such without objection or challenge, the respondent’s objection was without merit. We think the opportunity to make proof should have been given. If the respondent’s charges are well founded and the employees were not free from Union interference or coercion, the certification should be set aside. This is a matter for initial determination by the Board.
The case is remanded to the Board for the taking of such admissible testimony as may be relevant to a determination of whether the validity of the election may have been affected by unlawful Union interference or coercion by the distribution of the pamphlet or the activities of Diamond Watson as a Union representative. The Board will thereafter make a further Order incorporating its findings and conclusions, pending which the petition for enforcement is
Denied.
BORAH, Circuit Judge, dissents.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_district
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C
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
GLENN v. AMERICAN SURETY CO. et al.
No. 10302.
Circuit Court of Appeals, Sixth Circuit.
April 1, 1947.
MARTIN, Circuit Judge, dissenting.
Irving I. Axelrod, of Washington, D. C. (Sewall Key, Louis Monarch and Norman S. Altman, all of Washington, D. C., and David C. Walls and A. Roy Copeland, both of Louisville, Ky., on the brief), for appellant.
Robert L. Blackwell, of Louisville, Ky. (Wm. Marshall Bullitt and R, Lee Blackwell, both of Louisville, Ky., on the brief; Bullitt & Middleton, of Louisville, Ky., of counsel), for appellees.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
SIMONS, Circuit Judge.
The only substantive question that appears to be left of the controversy in the present posture of the appeal, is whether sureties for the faithful performance by a contractor after satisfying the debts of their principal, are entitled to interest upon the amounts expended, recoverable out of retained percentages as against the claim of the government for taxes asserted against the same funds. The right of the sureties to recover their expenditures in principal amount, though unsuccessfully contested below, is not here challenged. Before reaching that question, however, it becomes necessary to solve a procedural problem raised by the appellees’ motion to dismiss the appeal, and a motion of the appellant to correct the caption of the record.
The controversy arose out of the following circumstances. On October 3, 1941, one W. J. Paul entered into a contract with the Louisville Municipal Housing Commission to perform certain public housing construction work. Paul, as principal, and the appellees as sureties, delivered to the Housing Commission a faithful performance bond in the penal sum of $540,-214, guaranteeing the faithful performance of the construction work and the payment of all obligations incurred in connection with it. Paul completed the contract but defaulted in the payment of labor and material claims in amounts totaling $52,571.57. Pursuant to the terms of the contract the Housing Commission withheld from Paul $59,647.72. On August 12, 1943, Glenn, Collector of Internal Revenue for Kentucky, served a notice of levy and a warrant for distraint upon the Housing Commission for delinquent internal revenue taxes owed by Paul, in the amount of $13,029.28. The Kentucky Unemployment Compensation Commission also filed a lien against the fund, but since it has not appealed its claim of lien disappears from the case. Upon being notified that the Housing Commission proposed to pay the federal tax out of the retained percentages, the sureties brought suit to restrain the Commission from paying any money to the Collector until their claims were satisfied, and for a declaration of right that their claims were prior liens against the retained fund. A temporary restraining order was followed by a temporary injunction and the sureties paid the claims against Paul in amounts totaling $52,571.57. The Collector was made a party defendant to the suit, the United States intervened and, upon motion for summary judgment, the sureties were adjudged to have an equitable lien upon the fund which had, in the meanwhile, been deposited in the registry of the court, in an amount covering their payment of the debts of Paul with interest from the date of payment, and the clerk of the court was directed to make payment to them out of the fund on deposit in the registry. The facts are not in dispute and are sufficiently recited in the memorandum of the district judge. American Surety Co. et al. v. City of Louisville Municipal Housing Commission et al., D.C., 63 F.Supp. 486.
On March 8, 1946, and within the jurisdictional period, the Collector filed a notice of appeal. After several extensions a record was filed and the appeal docketed in the name of the United States on July 17, 1946. Subsequently, a motion was filed to correct the notice of appeal by substituting the United States, intervenor, for the Collector, and on July 29 an order was entered correcting the notice of'appeal pursuant to the motion. Thereafter, by stipulation, the order of July 29 was vacated, and on October 16 an order was entered denying the motion of July 17, but without prejudice to a consideration of the rights of the United States as they may appear at the hearing of the case upon its merits. In January, 1947, the sureties moved to docket and dismiss the appeal of Glenn because he had failed to file a record and to docket his appeal on or before the return date, as enlarged, and to dismiss the appeal of the United States because it had failed to file a notice of appeal within the required time. The United States thereupon moved that the caption of the record and docket entry be corrected by a nunc pro tunc decree substituting the Collector for the United States as the appellant.
We have, then, this situation. The Collector filed the notice of appeal but did not file a record. The United States filed a record but had failed to notice an appeal within the statutory period. The United States now seeks to correct the docket by substituting Glenn as the appellant, which the sureties oppose. The sureties seek a dismissal of the appeal because of the variance between the party filing the notice and the party perfecting the record. Rule 73(g) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, requires a docketing of the appeal within 40 days from the date of notice, and Rule 73(a) provides that the failure of the appellant to take any further steps following his notice of appeal will not affect its validity; but is ground for such remedies as may seem appropriate to the appellate court, including dismissal of the appeal. That remedy the sureties would now have us apply. Our jurisdiction attaches at the time of filing the notice of appeal, and whether a dilatory appellant should be allowed to proceed is within our discretion. Ispass v. Pyramid Motor Freight Corp., 2 Cir., 152 Fed.2d 619. This discretion could be exercised if we grant the motion of the United States to correct the caption of the record, which would make it Glenn’s record filed out of time, and this we think ought to be done for it is apparent that the caption of the record was a clerical error made by the United States Attorney who represented both the Collector and the United States as intervenor. The courts, in general, have liberally construed the rule. Mosier v. Federal Reserve Bank, 2 Cir., 132 F.2d 710; Ainsworth v. Gill Glass & Fixture Co., 3 Cir., 104 F.2d 83; National Surety Corp. v. Williams, 8 Cir., 110 F.2d 873.
A more fundamental and less technical ground for permitting the extension and correction, however, appears. The Collector, in asserting the rights of the United States to the reserved fund for the payment of Paul’s' taxes, was acting not in his individual capacity but as the agent of the United States. Second Nat’l Bank of Saginaw v. Woodworth, D.C.S.D.Mich., 54 F.2d 672, affirmed 6 Cir., 66 F.2d 170. While he was the formal party defendant, the real party in interest was the United States, which, by its intervention in the suit, likewise became a formal party thereto. The interests of the Collector and the United States were, however, identical. The tax, if collected, would be remitted to the Treasury of the United States. The appeal could have been prosecuted either by Glenn or the government. While it has been held, Sage v. United States, 250 U.S. 33, 39 S.Ct. 415, 63 L.Ed. 828, that a suit against the Collector for the recovery of an illegally held tax is not a suit against the United States, in respect to the application of the doctrine of res judicata, yet it has also been held that a judgment for or against the United States is binding upon the Collector who is the agent or trustee for the government. Second Nat’l Bank of Saginaw v. Woodworth, supra. However, it has been with great clarity pointed out that a suit against a Collector is today “an anomalous relic of bygone modes of thought” when he is engaged merely in the fulfillment of a ministerial duty. Moore Ice Cream Co. v. Rose, 289 U.S. 373, 382, 53 S.Ct. 620, 623, 77 L.Ed. 1265. There Mr. Justice Cardozo observed, “There may have been utility in such procedural devices in days when the government was not suable as freely as now (citing cases). They have little utility today, at all events where the complaint against the officer shows upon its face that in the process of collecting he was acting in the line of duty, * * * In such circumstances his presence as a defendant is merely a remedial expedient for bringing the government into court.” Whether the present appeal could be by us entertained, in the name of the United States, in view of this identity of interest between the government and the Collector, we need not now decide, but viewing the present situation realistically, we are not persuaded that the appeal should fail because the United States Attorney, through neglect, excusable or otherwise, failed to caption the record in the name of the Collector who had filed the notice of appeal. We held in Toledo Edison Co. v. McMaken, 6 Cir., 103 F.2d 72, certiorari denied, Toledo Railways & Light Co. v. McMaken, 308 U.S. 569, 60 S.Ct. 82, 84 L.Ed. 477, that while a Collector could expressly or by indirection waive the statute of limitations in a suit against him, he could not impart to such waiver the obligation which the statute, Title 28 U.S.C.A. § 842, imposes upon the government under certain circumstances to pay a judgment rendered against him- individually. Similarly, we think, a neglect by the Collector to caption a record on appeal to conform to the notice of appeal, may not deprive the government of its hearing on appeal where the government is not only the real party in interest but is likewise a formal party, and now, by its motion, seeks to have the record conform to the notice. See Porter v. Maule, 5 Cir., 160 F.2d 1. Wherefore, we conclude that the motion to dismiss the appeal must be denied and the motion to correct the caption of the record granted.
The contention of the sureties that if the Collector’s name is substituted for that of the United States upon the record and docket entry, he cannot bring this appeal because of the provisions of Title 28 U.S.C.A. § 732, which requires that all suits for recovery of taxes must be brought in the name of the United States, is, of course, without merit. The present suit was not brought by the Collector. He was made a party defendant at the suit of the sureties, and it would be novel doctrine, indeed, to hold a Collector, subjected to an adverse judgment, to be deprived, by reason of this statute, of the right to appeal. It was said in Moore Ice Cream Co. v. Rose, supra, “One who is brought before the court as sl formal party only will not be heard to object that there has been a denial of due process in enlarging the liability to be borne by someone else.” Similarly, it may be said that those who bring before the court one who is only a formal party will not be heard to challenge the right of such party to defend the suit or to review an adverse judgment.
Coming to the substantive issue of law, the appellant is in the anomalous position of declining to assail the judgment for the amount paid by the sureties, yet contesting the award of interest thereon on the ground that it violates § 3653 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev. Code, § 3653, which, with certain exceptions, forbids a suit to restrain the assessment or collection of a tax in any court. The short answer to the contention, if it is still in the case, is that given by the district judge in his preliminary memorandum of December 31, 1943, “The statute, however, applies to actions by taxpayers; it does not apply to a third party seeking to enjoin the Collector from taking his property to pay taxes of another. Tomlinson v. Smith, 7 Cir., 128 F.2d 808; Rothensies v. Ullman, 3 Cir., 110 F.2d 590; Long v. Rasmussen, Collector, D.C., 281 F. 236. See Hubbard Investment Company v. Brast, Collector, 4 Cir., 59 F.2d 709, 710.” Neither the validity nor the timeliness of the tax nor the correctness of the amount sought, is here assailed, and the plaintiffs in the suit are under no obligation to pay the tax.
There is left the contention that a surety is generally not entitled to interest upon its claim, and that the tax lien is superior to the interest charge because the latter is an unsecured claim against Paul which arose after the effective date of the tax lien. As to the first, the prevailing rule is that a surety has a right to be made whole when it fulfills its obligations under a contract of suretyship, and this includes interest upon the money expended by it in fulfilling its obligations until repaid. American Law Institute, Restatement of Security, § 104; Memphis & Little Rock R. R. Co. v. Dow, 120 U.S. 287, 7 S.Ct. 482, 30 L.Ed. 595; American Surety Co. v. Carbon Timber Co., 8 Cir., 263 F. 295. The rule that interest is not allowable on claims against a bankrupt or insolvent estate, as illustrated in Thomas v. Western Car Co., 149 U.S. 95, 13 S.Ct. 824, 37 L.Ed. 663, is not applicable here and rests upon a different principle. Where there is not enough money to pay all lienholders of the same rank entitled to share in the estate of a bankrupt or an insolvent, the disallowance of interest on all claims is but in pursuance of the rule of equitable treatment to all claimants. Nor is the rule which denies to a surety a profit on a building contract which it completes in default of its principal, available to the appellant. While interest may, in certain aspects, he considered as a profit to the lender or investor, it is not profit within the doctrine of authorities exemplified by United States Fidelity and Guaranty Co. v. Worthington & Co., 5 Cir., 6 F.2d 502, certiorari denied 269 U.S. 583, 46 S.Ct. 119, 70 L.Ed. 424; Lacy v. Maryland Casualty Co., 4 Cir., 32 F.2d 48. Nor is it within the purview of those cases which deny to the surety the right to retain funds which accrue to it by reason of a favorable compounding of the debts of its principal as illustrated in Laber v. Gall, 71 App.D.C. 345, 110 F.2d 697; Martin v. Ellerbe’s Adm’r, 70 Ala. 326; Coggeshall v. Ruggles, 62 Ill. 401. The principle applied in rendering the presently assailed judgment, is the right of the sureties to be made whole, and profit is not involved.
There remains the appellant’s final contention that the claim for interest is unsecured in that it arose after the levy of the tax lien. We agree with the district judge that a surety who makes good under his contract of suretyship upon default of the principal contractor, acquires an equitable lien against the unpaid balance in the hands of the person in whose favor the bond runs, and that such equitable lien upon payment by the surety relates back to the date of the contract and is superior to a claim of the United States for unpaid taxes for periods subsequent to the date of the contract of suretyship, although prior to the date of payment by the surety. In re Zaepfel and Russell, D.C., 49 F.Supp. 709, affirmed Farmers State Bank v. Jones, 6 Cir., 135 F.2d 215; Farmers’ Bank v. Hayes, 6 Cir., 58 F.2d 34; Prairie State Nat. Bank of Chicago v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412. The cases relied upon by the appellant are not contra. People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754, involved 31 U.S.C.A. § 191, which provides that when a person indebted to the United States is insolvent and the estate insufficient to pay all debts of the deceased, those due the United States shall be first satisfied. No disposition of an insolvent’s estate is here involved, and the statute has no present application. United States v. City of Greenville, 4 Cir., 118 F.2d 963. Michigan v. United States, 317 U.S. 338, 63 S.Ct. 302, 303, 87 L.Ed. 312, is further afield. It rejected the contention that a Michigan statute declaring state taxes to be a first lien upon real property on specified dates, could create a priority against an earlier lien for federal taxes under the Supremacy Clause of the United States Constitution, Art. 1, § 8, “Hence it is not debatable that a tax lien imposed by a law of Congress, as we have held the present lien is imposed, cannot, without the consent of Congress, be displaced by later liens imposed by authority of any state law or judicial decision.” Conceiving the liens of the sureties to have been created by the contract and effective as of its date, the doctrine in the Michigan case has no present application.
The motion to dismiss the appeal is denied, the motion to correct the docket and caption of the record by substituting Seldon R. Glenn, Collector, for United States of America, is granted, and the judgment below is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_petitionerstate
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15
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
HAWAII et al. v. OFFICE OF HAWAIIAN AFFAIRS et al.
No. 07-1372.
Argued February 25, 2009
Decided March 31, 2009
Mark J. Bennett, Attorney General of Hawaii, argued the cause for petitioners. With him on the briefs were Lisa M. Ginoza, First Deputy Attorney General, Dorothy Sellers, Solicitor General, William J. Wynhoff, Deputy Attorney General, Seth P. Waxman, Jonathan E. Nuechterlein, and Jonathan G. Cedarbaum.
William M. Jay argued the cause for the United States as amicus curiae in support of petitioners. With him on the brief were former Solicitor General Garre, Assistant Attorney General Tenpas, then-Deputy Solicitor General Joseffer, Deputy Solicitor General Kneedler, David C. Shilton, and John Emad Arbab.
Kannon K. Shanmugam argued the cause for respondents. With him on the brief were Anna-Rose Mathieson, Kimberly D. Perrotta, Sherry P. Broder, Jon M. Van Dyke, Melody K. MacKenzie, William Meheula, and Hayden Aluli.
Briefs of amici curiae urging reversal were filed for the State of Washington et al. by Robert M. McKenna, Attorney General of Washington, Maureen A Hart, Solicitor General, and Jay D. Geek, Deputy Solicitor Genera], and by the Attorneys General for their respective States as follows: Troy King of Alabama, Tails J. Coldberg of Alaska, Terry Goddard of Arizona, John W. Suthers of Colorado, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Steve Six of Kansas, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, Douglas F. Gansler of Maryland, Michael A Cox of Michigan, Jim Hood of Mississippi, Jon Bruning of Nebraska, Kelly A Ayotte of New Hampshire, Gary K. King of New Mexico, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Nancy H. Rogers of Ohio, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, William, H. Sorrell of Vermont, and Bruce A. Salzburg of Wyoming; for the Commissioner of Public Lands for the State of New Mexico by Turner W. Branch; for the Center for Constitutional Jurisprudence by Anthony T. Caso, John C. Eastman, and Edwin Meese III; for the Grass-root Institute of Hawaii et al. by H. William Burgess and Shannon Lee Goessling; for the Mountain States Legal Foundation by J. Scott Detamore and William Perry Pendley; and for the Pacific Legal Foundation et al. by John H. Findley, Robert H. Thomas, and Ilya Shapiro.
Briefs of amici curiae urging affirmance were filed for the Equal Justice Society et al. by Eric K. Yamamoto; for the National Congress of American Indians by Beth S. Brinkmann, Brian R. Matsui, John E. Echohawk, and 'Kim Jerome Gottschalk; for the Native Hawaiian Legal Corp. et al. by Catherine E. Stetson and Jessica L. Ellsworth; for Abigail Kinoiki Kekaulike Kawananakoa by George W. Van Burén; and for Samuel L. Kealoha, Jr., et al. by Walter R. Schoettle and Emmett E. Lee Loy.
Briefs of amici curiae were filed for the Alaska Federation of Natives, Inc., by David S. Case, Carol II. Daniel, and Riyaz Kanji; for the Asian American Justice Center et al. by Jonathan M. Cohen, Mark A Packman, Karen Narasaki, and Vincent Eng; for Current and Former Hawaii State Officials by Virginia A. Seitz and Sarah O’Rouke Schrup; for the Hawai'i Congressional Delegation by Sri Srinivasan; and for the Sovereign Councils of the Hawaiian Homelands Assembly et al. by Charles Rothfeld, Andrew J. Pincus, and Thomas W. Merrill.
Justice Alito
delivered the opinion of the Court.
This ease presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apologize for the role that the United States played in overthrowing the Hawaiian monarchy in the late 19th century. Relying on Congress’ joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawaiians’ land claims that the court described as “unrelinquished.” We reverse.
I
A
In 1893, “[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.” Rice v. Cayetano, 528 U. S. 495, 504-505 (2000). “That government sought annexation by the United States,” id., at 505, which the United States granted, see Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, No. 55, 30 Stat. 750 (hereinafter Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii “cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind” and further “cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining” (hereinafter ceded lands). Ibid. The Newlands Resolution further provided that all “property and rights” in the ceded lands “are vested in the United States of America.” Ibid.
Two years later, Congress established a government for the Territory of Hawaii. See Act of Apr. 30, 1900, ch. 339, 31 Stat. 141 (hereinafter Organic Act). The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in “absolute fee” under that resolution. See §2, ibid. The Organic Act further provided:
“[T]he portion of the public domain heretofore known as Crown land is hereby declared to have been, on [the effective date of the Newlands Resolution], and prior thereto, the property of the Hawaiian government, and to be free and clear from any trust of or concerning the same, and from all claim of any nature whatsoever, upon the rents, issues, and profits thereof. It shall be subject to alienation and other uses as may be provided by law.” § 99, id., at 161; see also § 91, id., at 159.
In 1959, Congress admitted Hawaii to the Union. See Pub. L. 86-3, 73 Stat. 4 (hereinafter Admission Act). Under the Admission Act, with exceptions not relevant here, “the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all the public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” §5(b), id., at 5. These lands, “together with the proceeds from the sale or other disposition of [these] lands and the income therefrom, shall be held by [the] State as a public trust” to promote various public purposes, including supporting public education, bettering conditions of native Hawaiians, developing home ownership, making public improvements, and providing lands for public use. § 5(f), id., at 6. Hawaii state law also authorizes the State to use or sell the ceded lands, provided that the proceeds are held in trust for the benefit of the citizens of Hawaii. See, e. g., Haw. Rev. Stat. §§ 171-45, 171-18 (1993).
In 1993, Congress enacted a joint resolution “to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the United Church of Christ with Native Hawaiians.” Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. 103-150, 107 Stat. 1513 (hereinafter Apology Resolution). In a series of the preambular “whereas” clauses, Congress made various observations about Hawaii’s history. For example, the Apology Resolution states that “the indigenous Hawaiian people never directly relinquished their claims ... over their national lands to the United States” and that “the health and well-being of the Native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land.” Id., at 1512. In the same vein, the Apology Resolution’s only substantive section — entitled “Acknowledgement and Apology” — states that Congress:
“(1) . . . acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people;
“(2) recognizes and commends efforts of reconciliation initiated by the State of Hawaii and the United Church of Christ with Native Hawaiians;
“(3) apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17,1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination;
“(4) expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and
“(5) urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people.” Id., at 1513.
Finally, § 3 of the Apology Resolution states that “[n]othing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” Id., at 1514.
B
This suit involves a tract of former crown land on Maui, now known as the “Leiali’i parcel,” that was ceded in “absolute fee” to the United States at annexation and has been held by the State since 1959 as part of the trust established by § 5(f) of the Admission Act. The Housing Finance and Development Corporation (HFDC) — Hawaii's affordable housing agency — received approval to remove the Leiali’i parcel from the §5(f) trust and redevelop it. In order to transfer the Leiali’i parcel out of the public trust, HFDC was required to compensate respondent Office of Hawaiian Affairs (OHA), which was established to receive and manage funds from the use or sale of the ceded lands for the benefit of native Hawaiians. Haw. Const., Art. XII, §§4-6.
In this case, however, OHA demanded more than monetary compensation. Relying on the Apology Resolution, respondent OHA demanded that HFDC include a disclaimer preserving any native Hawaiian claims to ownership of lands transferred from the public trust for redevelopment. HFDC declined to include the requested disclaimer because “to do so would place a cloud on title, rendering title insurance unavailable.” App. to Pet. for Cert. 207a.
Again relying on the Apology Resolution, respondents then sued the State, its Governor, HFDC (since renamed), and its officials. Respondents sought “to enjoin the defendants from selling or otherwise transferring the Leiali’i parcel to third parties and selling or otherwise transferring to third parties any of the ceded lands in general until a determination of the native Hawaiians’ claims to the ceded lands is made.” Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 117 Haw. 174, 189, 177 P. 3d 884, 899 (2008). Respondents “alleged that an injunction was proper because, in light of the Apology Resolution, any transfer of ceded lands by the State to third-parties would amount to a breach of trust. . . .” Id., at 188, 177 P. 3d, at 898.
The state trial court entered judgment against respondents, but the Supreme Court of Hawaii vacated the lower court’s ruling. Relying on a “plain reading of the Apology Resolution,” which “dictate[d]” its conclusion, id., at 212, 177 R 3d, at 922, the State Supreme Court ordered “an injunction against the defendants from selling or otherwise transferring to third parties (1) the Leiali’i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved,” id., at 218, 177 P. 3d, at 928. In doing so, the court rejected petitioners’ argument that “the State has the undoubted and explicit power to sell ceded lands pursuant to the terms of the Admission Act and pursuant to state law.” Id., at 211, 177 P. 3d, at 921 (internal quotation marks and alterations omitted). We granted certiorari. 554 U. S. 944 (2008).
II
Before turning to the merits, we first must address our jurisdiction. According to respondents, the Supreme Court of Hawaii “merely held that, in light of the ongoing reconciliation process, the sale of ceded lands would constitute a breach of the State’s fiduciary duty to Native Hawaiians under state law.” Brief for Respondents 17. Because respondents believe that this case does not raise a federal question, they urge us to dismiss for lack of jurisdiction.
Although respondents dwell at length on that argument, see id., at 19-34, we need not tarry long to reject it. This Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983). Far from providing a “plain statement” that its decision rested on state law, id., at 1041, the State Supreme Court plainly held that its decision was “dictatefd]” by federal law — in particular, the Apology Resolution, see 117 Haw., at 212, 177 P. 3d, at 922. Indeed, the court explained that the Apology Resolution lies “[a]t the heart of [respondents’] claims,” that respondents’ “current claim for injunctive relief is ... based largely upon the Apology Resolution,” and that respondents’ arguments presuppose that the Apology Resolution “changed the legal landscape and restructured the rights and obligations of the State.” Id., at 189-190, 177 P. 3d, at 899-900 (internal quotation marks omitted). The court noted that “[t]he primary question before this court on appeal is whether, in light of the Apology Resolution, this court should issue an injunction” against sale of the trust lands, id., at 210, 177 P. 3d, at 920, and it concluded, “[b]ased on a plain reading” of the Apology Resolution, that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands,” id., at 191, 177 P. 3d, at 901.
Based on these and the remainder of the State Supreme Court’s 77 references to the Apology Resolution, we have no doubt that the decision below rested on federal law. We are therefore satisfied that this Court has jurisdiction. See 28 U. S. C. § 1257.
Ill
Turning to the merits, we must decide whether the Apology Resolution “strips Hawaii of its sovereign authority to sell, exchange, or transfer,” Pet. for Cert, i, the lands that the United States held in “absolute fee,” 30 Stat. 750, and “grant[ed] to the State of Hawaii, effective upon its admission into the Union,” 73 Stat. 5. We conclude that the Apology Resolution has no such effect.
A
“We begin, as always, with the text of the statute.” Permanent Mission of India to United Nations v. City of New York, 551 U.S. 193, 197 (2007). The Apology Resolution contains two substantive provisions. See 107 Stat. 1513-1514. Neither justifies the judgment below.
The Apology Resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifically, Congress “aeknowledge[d] the historical significance” of the Hawaiian monarchy’s overthrow, “recognize[d] and commend[ed] efforts of reconciliation” with native Hawaiians, “apologize[d] to [njative Hawaiians” for the monarchy’s overthrow, “expresse[d] [Congress’] commitment to acknowledge the ramifications of the overthrow,” and “urge[d] the President of the United States to also acknowledge the ramifications of the overthrow . .. .” §1. Such terms are not the kind that Congress uses to create substantive rights — especially those that are enforceable against the co-sovereign States. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17-18 (1981).
The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: “Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.” §3. By its terms, §3 speaks only to those who may or may not have “claims against the United States.” The court below, however, held that the only way to save §3 from superfluity is to construe it as a congressional recognition — and preservation — of claims against Hawaii and as “the foundation (or starting point) for reconciliation” between the State and native Hawaiians. 117 Haw., at 192,177 P. 3d, at 902.
“We must have regard to all the words used by Congress, and as far as possible give effect to them,” Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911), but that maxim is not a judicial license to turn an irrelevant statutory provision into a relevant one. And we know of no justification for turning an express disclaimer of claims against one sovereign into an affirmative recognition of claims against another. Cf. Pacific Bell Telephone Co. v. linkLine Communications, Inc., 555 U. S. 438, 457 (2009) (“Two wrong claims do not make one that is right”). The Supreme Court of Hawaii erred in reading § 3 as recognizing claims inconsistent with the title held in “absolute fee” by the United States, 30 Stat. 750, and conveyed to the State of Hawaii at statehood. See supra, at 167-168.
B
Rather than focusing on the operative words of the law, the court below directed its attention to the 37 “whereas” clauses that preface the Apology Resolution. See 107 Stat. 1510-1513. “Based on a plain reading of” the “whereas” clauses, the Supreme Court of Hawaii held that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands.” 117 Haw., at 191, 177 P. 3d, at 901. That conclusion is wrong for at least three reasons.
First, “whereas” clauses like those in the Apology Resolution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation . . . , a court has no license to make it do what it was not designed to do.” District of Columbia v. Heller, 554 U. S. 570, 578, n. 3 (2008). See also Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U. S. 174, 188 (1889) (“[A]s the preamble is no part of the act, and cannot enlarge or confer powers, nor control the words of the act, unless they are doubtful or ambiguous, the necessity of resorting to it to assist in ascertaining the true intent and meaning of the legislature is in itself fatal to the claim set up”).
Second, even if the “whereas” clauses had some legal effect, they did not “chang[e] the legal landscape and restructure] the rights and obligations of the State.” 117 Haw., at 190, 177 P. 3d, at 900. As we have emphasized, “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 662 (2007) (internal quotation marks omitted). The Apology Resolution reveals no indication— much less a “clear and manifest” one — that Congress intended to amend or repeal the State’s rights and obligations under the Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to “cloud” the title that the United States held in “absolute fee” and transferred to the State in 1959. On that score, we find it telling that even respondent OHA has now abandoned its argument, made below, that “Congress ... enacted the Apology Resolution and thus ... changefd]” the Admission Act. App. 114a; see also Tr. of Oral Arg. 31, 37-38.
Third, the Apology Resolution would raise grave constitutional concerns if it purported to “cloud” Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that “Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.” Idaho v. United States, 533 U. S. 262, 280, n. 9 (2001) (internal quotation marks and alteration omitted); see also id., at 284 (Rehnquist, C. J., dissenting) (“[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event... to suggest that subsequent events somehow can diminish what has already been bestowed”). And that proposition applies a fortiori where virtually all of the State’s public lands — not just its submerged ones — are at stake. In light of those concerns, we must not read the Apology Resolution’s nonsubstantive “whereas” clauses to create a retroactive “cloud” on the title that Congress granted to the State of Hawaii in 1959. See, e. g., Clark v. Martinez, 543 U. S. 371, 381-382 (2005) (the canon of constitutional avoidance “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts”).
* * *
When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” Brief for Respondents 18. But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
“Crown lands” were lands formerly held by the Hawaiian monarchy. “Public” and “Government” lands were other lands held by the Hawaiian government.
Respondents argue that the Supreme Court of Hawaii relied on the Apology Resolution “simply to support its factual determination that Native Hawaiians have unresolved claims to the ceded lands.” Brief for Respondents 21. Regardless of its factual determinations, however, the lower court’s legal conclusions were, at the very least, “interwoven with the federal law.” Michigan v. Long, 463 U. S. 1032, 1040 (1983). See 117 Haw. 174, 217, 218, 177 P. 3d 884, 927, 928 (2008) (“hold[ing]” that respondents' legal claim “arose” only when “the Apology Resolution was signed into law on November 23, 1993”); id, at 211, n. 25, 177 P. 3d, at 921, n. 25 (emphasizing that “our holding is grounded in Hawai'i and federal law”). See also n. 4, infra.
The Apology Resolution’s operative provisions thus stand in sharp contrast with those of other “apologies,” which Congress intended to have substantive effect. See, e. g., Civil Liberties Act of 1988,102 Stat. 903,50 U. S. C. App. § 1989 (2000 ed.) (acknowledging and apologizing “for the evacuation, relocation and internment” of Japanese citizens during World War II and providing $20,000 in restitution to each eligible individual); Radiation Exposure Compensation Act, 104 Stat. 920, notes following 42 U. S. C. § 2210 (2000 ed. and Supp. V) (“apologizing] on behalf of the Nation ... for the hardships” endured by those exposed to radiation from above-ground nuclear testing facilities and providing $100,000 in compensation to each eligible individual).
The court below held that respondents “prevailed on the merits” by showing that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” 117 Haw., at 212, 177 P. 3d, at 922. And it further held that petitioners failed to show that the State has the “power to sell ceded lands pursuant to the terms of the Admission Act.” Id., at 211, 177 P. 3d, at 921 (internal quotation marks and alterations omitted). Respondents now insist, however, that their claims are “nonjustidable” to the extent that they are grounded on “broader moral and political” bases. Brief for Respondents 18. No matter how respondents characterize their claims, it is undeniable that they have asserted title to the ceded lands throughout this litigation, see id., at 40, n. 15 (conceding the point), and it is undeniable that the Supreme Court of Hawaii relied on those claims in issuing an injunction, which is a legal (and hence justidable) remedy — not a moral, political, or nonjustidable one.
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_respond1_1_4
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B
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
ADAMS-ARAPAHOE JOINT SCHOOL DISTRICT NO. 28-J, Plaintiff-Appellee, Cross-Appellant, v. The CONTINENTAL INSURANCE COMPANY, a corporation, Defendant-Appellant, Cross-Appellee.
Nos. 87-1678, 87-1740.
United States Court of Appeals, Tenth Circuit.
Dec. 11, 1989.
Wiley E. Mayne (Curt Krechevsky, with him on the briefs), Holland & Hart, Denver, Colo., for plaintiff-appellee, cross-appellant.
Otto F. Becker, Thornton, Taylor & Downs, San Francisco, Cal. (Stephen E. Connor, Wood, Ris & Hames, Denver, Colo., with him on the briefs), for defendant-appellant, cross-appellee.
Before LOGAN, HENLEY and ANDERSON, Circuit Judges.
Honorable J. Smith Henley, Senior Judge, United States Court of Appeals, Eighth Circuit, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
Defendant-appellant The Continental Insurance Company (“Continental”) appeals from a judgment holding it liable under an insurance policy issued to plaintiff-appellee Adams-Arapahoe Joint School District No. 28-J (“Adams-Arapahoe” or “the District”) for expenses incurred after the partial collapse of the roof of Gateway High School in Aurora, Colorado. We affirm the trial court’s decision that the loss, if fortuitous, was covered. We reverse the judgment entered on the jury’s verdict that the loss was fortuitous, and remand for a new trial on that issue, because of a prejudicially erroneous instruction.
I. BACKGROUND
The construction of Gateway High School took place from 1972 to 1974, with the roof put up during the winter of 1972-73. R.Vol. II at 6. The original plan called for galvanized steel sheets to be placed over the roof beams, then overspread with lightweight concrete and covered with asphalt and gravel. R.Vol. II at 40. During the construction, however, the general contractor received permission to use gypsum-based concrete instead, because the material originally chosen would not cure properly in cold weather. R.Vol. VI at 8.
The roofing subcontractor discussed the proposed change with the concrete manufacturer, who said that some corrosion had been experienced when the gypsum-based concrete was applied to metal decking. R.Vol. IV at 225; Attachment to Opening Brief of Appellant at 16. The subcontractor notified the general contractor, who in turn informed the project’s architect. R.Vol. IV at 235-36. After a meeting with the contractors and a District representative, the architect decided to proceed with the change. R.Vol. VI at 11. It is not clear whether the corrosion danger was discussed at this meeting. At the trial, representatives of the District denied ever having been informed of any increased risk. R.Vol. IV at, e.g., 194-95, 201-02.
Continental issued an all-risk insurance policy for the school, effective September 1, 1982. The policy covered “all ... risks of direct physical loss,” but excluded any loss caused
“[b]y wear and tear, deterioration, rust or corrosion, mould, wet or dry rot; inherent or latent defect; ... unless such loss results from a peril not excluded in this policy. If loss by a peril not excluded in this policy ensues, then this Company shall be liable for only such ensuing loss.”
Attachment to Opening Brief of Appellant at 75 (emphasis added).
On April 23, 1984, a small portion (six to twelve square feet) of the roof collapsed. R.Vol. II at 9. An inspection revealed extensive corrosion throughout that portion of the roof which had been filled with gypsum-based concrete, making continued occupation of the building unsafe. R.Vol. II at 15, 39. Adams-Arapahoe spent about $8.8 million to remove and replace eighty thousand square feet of roofing (approximately forty percent of the total area).
After Continental denied the District’s claim, Adams-Arapahoe filed suit in state court. The action was removed to the United States District Court for the District of Colorado. The trial court granted plaintiffs motion for partial summary judgment, holding that (1) defective design and/or construction was a risk covered by the policy, and was the cause of the District’s loss, (2) the corrosion exclusion did not preclude coverage, and (3) the District’s loss included the entire corroded area of the roof.
A jury trial was held on the remaining issues. Continental argued at trial that the District expected the loss, rendering it non-fortuitous (and therefore not covered). The jury was instructed that the District bore the burden of showing fortuitousness, but that Continental bore the burden of proof on its affirmative defense of the District’s expectation, or knowledge of a substantial risk, of collapse. A verdict was returned in favor of the District for $8,674,-778.
II. DISCUSSION
The substantive law of Colorado governs our decision in this diversity case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1934); Farmers Alliance Mut. Ins. Co. v. Bakke, 619 F.2d 885, 888 (10th Cir.1980). With respect to issues which the Colorado Supreme Court has not addressed, we may consider all available resources, including Colorado appellate court decisions, other state and federal decisions, and the general trend of authority, to determine how the Colorado Supreme Court would construe the law in this case. Farmers Alliance Mut. Ins. Co. v. Bakke, 619 F.2d at 888; City of Aurora, Colo. v. Bechtel Corp., 599 F.2d 382, 386 (10th Cir.1979).
A. Partial Summary Judgment
The trial court interpreted the policy to cover the loss in question, if the loss was fortuitous. The construction of an insurance policy is a matter of law. Marez v. Dairyland Ins. Co., 638 P.2d 286, 288-89 (Colo.1982). The language of the policy is interpreted according to its common usage, with ambiguities construed against the insurer. Reed v. United States Fid. & Guar. Co., 176 Colo. 568, 491 P.2d 1377, 1379 (1971).
1. Whether defective design and/or construction was a covered risk.
An all-risk insurance policy covers any fortuitous loss not resulting from an excluded risk or from fraud by the insured. Kane v. Royal Ins. Co. of Am., 768 P.2d 678, 679 n. 1 (Colo.1989); Steamboat Dev. Corp. v. Bacjac Indus., Inc., 701 P.2d 127, 128 (Colo.Ct.App.1985); 13A G. Couch, Cyclopedia of Insurance Law § 48:141 (2d rev. ed. 1982). Continental contends, however, that defective design and/or construction is not a risk at all; it is merely a condition of the insured property.
In Wolfe v. LeVasseur-Hinson Construction Co., 147 So.2d 747 (La.Ct.App.1962), the floors of a house were negligently installed prior to the purchase of an all-risk policy. Later, the floors buckled. The court denied coverage because the acts which caused the loss occurred before the coverage began. Id. at 750; accord 80 Broad St. Co. v. United States Fire Ins. Co., 88 Misc.2d 706, 389 N.Y.S.2d 214, 215 (Sup.Ct.1975), aff'd per curiam, 54 A.D.2d 888, 390 N.Y.S.2d 768 (1976).
Yet, most of the decisions addressing this question hold that defective design and/or construction is a risk of physical peril, even if it predates the policy. See, e.g., Texas E. Transmission Corp. v. Marine Office—Appleton & Cox Corp., 579 F.2d 561, 564-66 (10th Cir.1978); Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. 978, 992-93 (S.D.Ohio 1975); Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704, 711 (Cal.1989). See generally Annotation, Property Damage Resulting from Inadequate or Improper Design or Construction of Dwelling as Within Coverage of “All Risks’’ Homeowner’s Insurance Policy, 41 A.L.R. 4th 1095 (1985). We agree with the trial court’s decision that the Colorado Supreme Court would hold that a loss so caused is covered by an all-risk policy.
Still, an all-risk policy does not cover losses which were not fortuitous. Texas E. Transmission Corp. v. Marine Office— Appleton & Cox Corp., 579 F.2d 561 at 564; Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. at 987. While this implied requirement of fortuitousness is universally recognized, Annotation, Coverage Under “All Risks” Insurance, 88 A.L.R.2d 1122, 1126 (1963), there is some disagreement regarding just what is or is not fortuitous.
One group of cases holds that a loss is not fortuitous if it was inevitable when the policy was issued. See, e.g., Greene v. Cheetham, 293 F.2d 933, 937 (2d Cir.1961); Glassner v. Detroit Fire & Marine Ins. Co., 23 Wis.2d 532, 127 N.W.2d 761, 764 (1964). Under this rule, a loss caused by defective design and/or construction which preceded the issuance of the policy is not fortuitous. Compagnie des Bauxites de Guinee v. Insurance Co. of N. Am., 566 F.Supp. 258 (W.D.Pa.1983), rev’d without opinion, 735 F.2d 1348 (3d Cir.1984). Obviously, the conclusion that a loss was inevitable at the time of contracting, and therefore non-fortuitous, often involves the use of hindsight.
A more recent line of decisions rejects the use of hindsight and holds that a loss caused by a pre-existing defect is fortuitous so long as neither party knew of the defect or expected the loss. See, e.g., Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 192 (D.Conn.1984); Fidelity & Guar. Ins. Underwriters, Inc. v. Allied Realty Co., 238 Va. 458, 384 S.E.2d 613, 615 (1989).
“A fortuitous event ... is an event which so far as the parties to the contract are aware, is dependent on chance. It may be beyond the power of any human being to bring the event to pass; it may be within the control of third persons; it may even be a past event, ... provided that the fact is unknown to the parties.”
Texas E. Transmission Corp. v. Marine Office—Appleton & Cox Corp., 579 F.2d at 564 (quoting Restatement of Contracts § 291 comment a (1932)) (emphasis added). Under this view, defective design and/or construction, even if it exists before the policy is issued, can cause a fortuitous loss. Compagnie des Bauxites de Guinee v. Insurance Co. of N. Am., 724 F.2d 369, 373 (3d Cir.1983); Kilroy Indus. v. United Pac. Ins. Co., 608 F.Supp. 847, 857-58 (C.D.Cal.1985); Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. at 992-93. These decisions represent the clear trend of authority, and we believe that the Colorado Supreme Court would choose to follow them.
Continental contends that even if a loss due to defective design and/or construction is a covered risk, coverage of the District’s loss is barred by the exclusion for loss by “inherent or latent defect.” Prior to considering this argument, we must decide whether or not it is properly before us. Adams-Arapahoe contends that Continental abandoned this issue on appeal. In fact, though, the issue was not raised and ruled upon in the trial court, so it never existed to be abandoned.
Continental’s references to the latent defect exclusion before the district court were infrequent and nonspecific. In its answer, Continental raised as an affirmative defense
“one or more of the following provisions ...: loss by wear and tear, deterioration, rust or corrision [sic], wet rot, inherent or latent defect, settling, cracking, shrinkage, bulging or expansion of pavements, foundations, walls, floors, roofs or ceilings.”
Answer, R. Vol. I at Tab 8, p. 3. Its brief in opposition to Adams-Arapahoe’s motion for summary judgment repeats this list, and also states that, because “the eventual collapse of the roof was due to no casualty or risk other than the inherent deficiency within the design of the roof itself,” the loss was not fortuitous. Memorandum Brief in Opposition to Plaintiffs Motion for Partial Summary Judgment, R. Vol. I at Tab 6, pp. 6, 9. Continental made no other references to the latent defect exclusion. A matter not pursued before the trial court, such as this one, is “inappropriate for consideration on appeal.” Stephens Ind., Inc. v. Haskins & Sells, 438 F.2d 357, 361 (10th Cir.1971).
Even if the latent defect exclusion had been raised below, it was not preserved as an issue on appeal. The only exclusion which appears in the statements of issues in Continental’s docketing statement and opening brief before this court is the corrosion exclusion. An issue not included in either the docketing statement or the statement of issues in the party’s initial brief is waived on appeal. Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.1984). Proper appellate advocacy requires early identification of the issues. Braley v. Campbell, 832 F.2d 1504, 1508 & n. 2 (10th Cir.1987). Merely mentioning inherent defects in another context is not enough.
We will not consider the issue.
2. Whether the corrosion exclusion applies.
a. “corrosion”
Continental contends that the policy excludes from coverage any loss due to corrosion. The District argues that the word “corrosion” refers only to normal or natural corrosion.
Kane v. Royal Insurance Co., 768 P.2d 678 (Colo.1989), addressed the question of whether damage caused when a man-made dam failed was covered under a policy which excluded loss caused by “flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water, or spray from any of the foregoing.” Id. at 680. The court decided that the common meaning of the word “flood” included both natural and artificial over-flowings of water. Id. at 681; accord Bartlett v. Continental Divide Ins. Co., 697 P.2d 412, 413 (Colo.Ct.App.1984), aff'd by an evenly divided court, 730 P.2d 308 (Colo.1986); see also Haines v. United Sec. Ins. Co., 43 Colo.App. 276, 602 P.2d 901, 902 (1979). The court focused on the particular exclusion at issue (“flood”), rather than considering it in the context of the other exclusions.
Our inquiry, then, is whether the common meaning of “corrosion” includes all corrosion or only naturally occurring corrosion. One source of the plain meaning of a term is the dictionary. See Kane v. Royal Ins. Co., 768 P.2d at 680-81; United Bank of Pueblo v. Hartford Accident & Indem. Co., 529 F.2d 490, 493 (10th Cir.1976) (applying Colorado law). Definitions such as “eating away,” “wearing away,” and “alteration,” Webster’s Third New International Dictionary 512 (1981); Funk & Wagnalls Standard Desk Dictionary 144 (1977), make no distinction between corrosion occurring over the natural course of a building’s life and corrosion produced by defective design and/or construction.
Other decisions construing similar exclusions confirm this construction. Arkwright-Boston Manufacturers Mutual Insurance Co. v. Wausau Paper Mills Co., 818 F.2d 591 (7th Cir.1987), dealt with a similar corrosion exclusion. After equipment was damaged by acid produced during the recovery of paper by-products, the insured argued that the corrosion exclusion did not apply because the damage occurred suddenly rather than gradually. The court rejected this argument, holding that the exclusion applied to sudden corrosion as much as to any other corrosion. Id. at 594-95; accord Twin City Hide v. Transamerica Ins. Co., 358 N.W.2d 90, 92 (Minn.Ct.App.1984); see also Resorts Int’l, Inc. v. American Home Assurance Co., 311 So.2d 806, 807 (Fla.Dist.Ct.App.1975) (per curiam). But see Cyclops Corp. v. Home Ins. Co., 352 F.Supp. 931, 936 (W.D.Pa.1973).
We conclude that under Colorado law the word “corrosion” unambiguously refers to all corrosion, however brought about.
b. “unless such loss results from a peril not excluded in this policy”
Under the policy, coverage of a loss due to an excluded cause is excluded “unless such loss results from a peril not excluded in this policy” [hereinafter “the ‘unless’ clause”]. The trial court held that, because the corrosion in this case resulted from a covered risk (defective design and/or construction), the exclusion did not apply.
The only published decision construing such a clause is Adrian Associates v. National Surety Corp., 638 S.W.2d 138 (Tex.Civ.App.1982), aff'd per curiam, 650 S.W.2d 67 (Tex.1983). In that ease, water under the surface of the ground, produced by a ruptured water main, caused the subsidence of an insured building. The all-risk policy excluded loss or damage resulting from subsidence, but the exclusion had an “unless” clause identical to the one here at issue. The court held that because the subsidence resulted from subterranean water, a non-excluded cause, the “unless” clause negated the subsidence exclusion. Id. at 141.
Like the district court, we see no other reasonable construction of the clause. Contrary to Continental’s fears, this interpretation of the “unless” clause does not render the entire exclusion nugatory. Rather, the policy still excludes losses due to corrosion with no identifiable non-excluded cause. In effect, the corrosion exclusion applies only to naturally occurring corrosion.
Accordingly, we affirm the trial court’s decision that the District’s loss, if fortuitous, was covered.
3. Whether the District’s loss included the entire corroded area, or just that portion of the roof which actually collapsed.
Continental contends that the only loss Adams-Arapahoe suffered was the collapse of a small portion of the roof. The trial court, relying upon Western Fire Insurance Co. v. First Presbyterian Church, 165 Colo. 34, 437 P.2d 52 (1968), ruled that the District’s loss included the entire corroded area, because the corrosion made the school unsafe and unusable. In First Presbyterian Church, a church was rendered uninhabitable by the accumulation of gasoline around and under the building. Even though there was no physical damage, the Colorado Supreme Court held that the loss of use resulting from the infiltration was a physical loss. Western Fire Ins. Co. v. First Presbyterian Church, 437 P.2d at 55 (citing Hughes v. Potomac Ins. Co., 199 Cal.App.2d 239, 18 Cal.Rptr. 650 (1962) (landslide did not damage house, but left it perched precariously over a cliff; the unin-habitability of the house was held to be a loss)); see also Hampton Foods, Inc. v. Aetna Cas. & Sur. Co., 787 F.2d 349, 352 (8th Cir.1986); Gibson v. Secretary of HUD, 479 F.Supp. 3, 5 (M.D.Pa.1978); Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. at 994. First Presbyterian Church controls the decision in this case. The trial court’s ruling was correct.
B. Jury Instructions
The trial court granted partial summary judgment on the issue of whether the loss, if fortuitous, was covered, but reserved the fortuitousness question for the jury. The jury received the following instructions:
“The District has the burden of proving by a preponderance of the evidence that ... a fortuitous loss took place_ Continental has the burden of proving by a preponderance of the evidence its affirmative defense that the District had knowledge, either actual or imputed, before it obtained its insurance policy, that a substantial risk already existed that the roof deck would collapse because of corrosion.”
R. Vol. V at 326-27 (emphasis added). The substance of the jury instructions in a diversity case is a matter of state law, but the question of whether an error is harmless is one of federal law. Brownlow v. Aman, 740 F.2d 1476, 1490 10th Cir.1984).
An insurer bears the burden of proving an affirmative defense which will enable it to avoid a policy. Commercial Ins. Co. v. Smith, 417 F.2d 1330, 1336 (10th Cir.1969) (citing Olinger Mut. Ben. Ass’n v. Christy, 139 Colo. 425, 342 P.2d 1000 (1959)). If, however, Continental's claim of the District's knowledge was not an affirmative defense, but was interposed only to prevent the District from meeting its burden of proving fortuitousness, then Continental did not bear the burden of proof on the knowledge issue. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947, 950 (1972) (where plaintiff had the burden of proving that insured’s death was accidental, it was erroneous to place on the insurer the burden of proving its rebuttal argument that the death was a suicide).
In its answer, Continental stated that the District’s loss was “not the result of a fortuitous event,” Answer, R. Vol. I at Tab 3, p. 3, but did not make any reference to the District’s alleged knowledge. The pretrial order is similar. See Pretrial Order, April 11, 1986, R. Vol. I at Tab 5, p. 2. We feel that Continental did not plead Adams-Arapahoe’s alleged knowledge of the increased risk of corrosion as an affirmative defense. The argument was raised merely to rebut the District’s claim that the loss was fortuitous. The affirmative defense instruction should not have been given. Even if Continental were asserting the District’s knowledge both as an affirmative defense and as a rebuttal, the instruction, without further delineation, would have been erroneous. Britt v. Travelers Ins. Co., 556 F.2d 336 (5th Cir.1977), modified, 566 F.2d 1020, 1022-23 (5th Cir.1978).
We will not reverse the judgment unless the error prejudiced Continental. Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir.), cert. denied, 479 U.S. 884, 107 S.Ct. 275, 93 L.Ed.2d 251 (1986). We must decide, then, whether the fortuitousness instruction, which was correct, rendered harmless the improper affirmative defense instruction.
In Britt v. Travelers Insurance Co., the life insurance policy on plaintiffs husband paid double indemnity for an accidental death, and had an exclusion for death caused by a mental or physical infirmity. Decedent died under circumstances which may have been accidental, and may have been caused by a mental or physical infirmity. The insurer raised decedent’s infirmities both to contest plaintiffs claim that the death was accidental, and to show that the infirmity exclusion applied. The insurer bore the burden of proof on the second issue, but not on the first.
The jury instruction correctly allocated the burden of proof regarding whether the death was accidental, but then stated that the insurer bore the burden of proving a mental or physical infirmity, without distinguishing between the two ways the insurer was using that argument. This was held to be a prejudicial error. Britt v. Travelers Ins. Co., 566 F.2d at 1022-23 & n. 3.
The trial court in Britt, by failing to distinguish between a rebuttal and an affirmative defense, shifted part of the plaintiffs burden of proving that the death was accidental onto the defendant. The affirmative defense instruction in the instant case had the same effect. In both cases, the error was prejudicial.
We realize that jury instructions are to be reviewed as a whole, and that “ ‘only in those cases where the reviewing court has a substantial doubt whether the jury was fairly guided in its deliberations should the judgment be disturbed.’ ” Lutz v. Weld County School Dist. No. 6, 784 F.2d 340, 341 (10th Cir.1986) (quoting Mid-Texas Communications v. American Tel. & Tel. Co., 615 F.2d 1372, 1390 n. 16 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980) (citations omitted)). Still, the chance that the jury was misled is too great for us to assume that the fortuitousness instruction undid the harm done by the affirmative defense instruction. See Great W. Sugar Co. v. Mrs. Alison’s Cookie Co., 749 F.2d 516, 522 (8th Cir.1984); see also Campbell v. Otis Elevator Co., 808 F.2d 429, 433 (5th Cir.1987).
This case differs from Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.1978). In that case, the trial court correctly instructed the jury on the standard by which to determine if the defendant was negligent, but then gave an instruction on the implied warranty of merchantability which imposed absolute liability for defects. The applicable state law required negligence to violate the warranty.
On appeal from a verdict for the plaintiff, the warranty instruction was found to be erroneous, but not prejudicial. The error was harmless because the trial court had not treated negligence and warranty as separate issues: “It blended both of these in with the extensive charge on negligence and reasonableness.” Id. at 786 (emphasis added). Because of this blending, “the jury very probably gave effect to the negligence charge ... since there was no statement by the court that the warranty was a separate basis for recovery.” Id. Unlike in Fox, we have no reason in this case to believe that the jury did not give effect to the improper instruction.
Finally, the District argues that the error was harmless because the evidence would not have supported any other verdict. However, there was enough evidence of the District’s knowledge to support a verdict by a properly instructed jury that the loss was not fortuitous. Therefore, “ ‘the jury might have based its verdict’ ” on the erroneously given instruction. Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1300 (10th Cir.1989) (quoting McMurray v. Deere & Co., 858 F.2d 1436, 1444 (10th Cir.1988) (emphasis added)). Even if that possibility is “very unlikely,” reversal is required. Farrell v. Klein Tools, Inc., 866 F.2d at 1301.
C. Other issues
Adams-Arapahoe filed a cross-appeal in this matter, challenging the trial court’s application of the federal post-judgment interest rate, pursuant to 28 U.S.C. § 1961, instead of the state post-judgment interest rate. Since then, this court decided in Everaard v. Hartford Accident & Indemnity Co., 842 F.2d 1186, 1193-94 (10th Cir.1988), that the federal rate applies, even in diversity actions. The trial court applied the correct rate.
The District also challenged our jurisdiction, because Continental filed this appeal more than thirty days after judgment was entered (but within thirty days of the resolution of plaintiffs motion for prejudgment interest). This argument subsequently was foreclosed by the Supreme Court’s holding in Osterneck v. Ernst & Whinney, — U.S. —, 109 S.Ct. 987, 991, 103 L.Ed.2d 146 (1989), that a motion for pre-judgment interest is a Rule 59(e) motion to alter or amend the judgment. Continental’s notice of appeal was timely.
III. CONCLUSION
The trial court correctly granted partial summary judgment in favor of the School District. If fortuitous, the loss (which included the entire corroded area) was insured against because defective design and/or construction was a covered risk, and the corrosion exclusion did not operate to exclude corrosion brought about by a covered risk. The judgment against Continental must be reversed and remanded, however, because the jury instructions erroneously and prejudicially shifted part of the District’s burden of proving fortuitousness.
The judgment is AFFIRMED in part, and REVERSED and REMANDED in part for a new trial limited to the question of whether or not the loss was fortuitous.
. During the pendency of this appeal, both parties made motions to file supplemental briefs. Both motions were granted, and both supplemental briefs were received and considered.
. Similarly, in Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 694-95, 377 P.2d 889, 894-95 (1963), the ground under an insured home subsided following the rupture of a sewer line. The court deemed irrelevant the fact that the subsidence was brought about unnaturally, and held that the exclusion of damage caused by "settling" would apply. Accord, e.g., General Ins. Co. of Am. v. Hallmark, 575 S.W.2d 134, 136 (Tex.Civ.App.1978) (following Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138 (Tex.Civ.App.1975); Bentley v. National Standard Ins. Co., 507 S.W.2d 652 (Tex.Civ.App.1974)). But see New Hampshire Ins. Co. v. Robertson, 352 So.2d 1307, 1310 (Miss.1977).
. Continental cites a number of decisions, such as Aetna Casualty & Surety Co. v. Yates, 344 F.2d 939 (5th Cir.1965), which construe ensuing loss provisions. The "unless" clause is not the policy’s ensuing loss provision; the sentence following the "unless” clause is the ensuing loss provision. Continental’s authority is inapposite.
.Because we have decided that defective design and/or construction was a covered risk, and that the corrosion which occurred was not an excluded risk, we need not consider the question of which of these risks actually caused the loss. There is no cause to consider the parties’ discussion of the last section of Kane v. Royal Insurance Co. of America, 768 P.2d at 684-86, and other cases, such as Garvey v. State Farm Fire & Casualty Co., 48 Cal.3d 395, 257 Cal.Rptr. 292, 770 P.2d 704 (1989), because the causation analysis is unnecessary if both risks are covered.
. The District’s first motion in limine, to which Continental did not object, stated that "Continental has raised as a defense to coverage” that the District knew or suspected, when it obtained the insurance policy, that the roof deck would collapse because of corrosion. R. Vol. Ill at 9-10; Plaintiff s First Motion In Limine, R. Vol. I at Tab 11, p. 2 (emphasis added). The District contends that Continental’s failure to object to either the motion or the making of such introductory remarks to the jury precludes Continental from now appealing the issue. We disagree.
The statement is ambiguous. Stating that Continental has raised the issue as "a defense” is not the same as stating that it is an affirmative defense upon which Continental bears the burden of proof.
Besides, Continental made a specific objection to the affirmative defense instruction. See R.Vol. V at 304-306. Nothing more is necessary to preserve the right to appeal the instruction. Weir v. Federal Ins. Co., 811 F.2d 1387, 1390 (10th Cir.1987).
. The exhibits included a letter from the roofing subcontractor to the general contractor that the manufacturer of the gypsum-based concrete had withdrawn its recommendation of the material as roof fill because of problems with corrosion. R. Vol. IV at 225; Attachment to Opening Brief of Appellant at 16. There was evidence that this letter was forwarded to the project architect, R. Vol. IV at 235-36; Attachment to Opening Brief of Appellant at 19, and that such issues would be discussed among the architect, the general contractor, and a representative of the District. R. Vol. VI at 11. The jury could conclude that the District had either direct or imputed knowledge of an abnormal risk of corrosion.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_appfiduc
|
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.
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.
SMALL-FERRER, Inc., et al. v. WARE (two cases). In re GAINER’S ESTATE.
Nos. 3490, 3515.
Circuit Court of Appeals, Fourth Circuit.
Jan. 4, 1934.
D. D. Stemple, of Philippi, W. Va., for appellants.
E. L. Maxwell, of Elkins, W. Va., for ap-pellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
NORTHCOTT, Circuit Judge.
This is an appeal from an order entered in March, 1933, in the District Court of the United States for the Northern District of West Virginia, in the matter of In re Glenn W. Gainer, bankrupt, confirming an order of the referee refusing to allow as secured, and allowing as common ciadme only, certain claims of creditors of said bankrupt.
Tbe record as presented is very incomplete and is not such a record as should be presented to this court. The facts can only be gathered from the opinion of the referee, and there is nothing in the record from which to ascertain the correctness of the findings. However, there seems to be no dispute as to certain facts.
The bankrupt was engaged in mercantile business and suffered a loss from fire. This loss was adjusted in the amount of $3,742.45. There were a great number of claims of different creditors, about forty of which claims were in the hands of Attorneys D. D. Stem-ple and Paul Ware for collection. On August 24, 3931, more than four months before the adjudication of the bankruptcy of the said Gainer, he (Gainer) made an assignment to the said Stemple and Ware undertaking to assign and transfer to them, for tho use and benefit of certain creditors, the funds due from the fire insurance companies liable for the fire loss to Gainer’s stock of merchandise. This assignment, while it was permitted under the laws of West Virginia to bo recorded, was not required to be recorded, and was never recorded.
After the bankruptcy of Gainer, the assignment was filed and urged as a prior lien upon the money due from the fire insurance companies. The referee found that, at the time of the assignment, the bankrupt was insolvent and that the assignees had knowledge of such insolvency, and entered an order refusing to allow the assignment as a preferred claim and allowing the claims of those creditors claiming under the assignment as common claims only. This order of the referee’s was confirmed by the judge below.
It is claimed on behalf of appellants that under section 60a of tho Bankruptcy Act as amended by Act May 27, 1926, 11 USCA § 96 (a), tbe assignment, not being required to be recorded under the laws of West Virginia and being made more than four months prior to the bankruptcy of Gainer, was valid and constituted a legal preference, even though the bankrupt was insolvent at the time the assignment was made.
A discussion of this point is found in an opinion by Judge Soper of; this court in In re Cunningham, 64 F.(2d) 296, where it was held that, notwithstanding the amendment to section 60a by the act of 1926, a trust deed, not preferential when given, did not become a. voidable preference because it was not recorded until within four months of bankruptcy; tho grantor being then insolvent, where recording was permitted by the state law.
There is, however, another point not raised in the briefs, which we think controls here. The assignment was void under the laws of West Virginia. The referee found as a fact, and we think his finding was correct, that Gainer was clearly insolvent at the time the assignment was made, and that Stemple and Ware, the assignees, knew this faet.
The referee further found that the assignment was made for the purpose of creating a preference; and there can be no question that it constituted an assignment for the benefit of creditors under which certain creditors were preferred. Wolf v. McGugin, 37 W. Va. 552, 16 S. E. 797; Pilson v. Rodeffer (C. C. A. 4th) 61 F.(2d) 976, and eases there cited. As such it was invalidated by chapter 40, article 1, section 5, of the West Virginia Code of 1931, which provides:
“Every transfer or charge made by an insolvent debtor attempting to prefer any creditor of such insolvent debtor, or to secure such a creditor or any surety or indorser for a debt to the exclusion or prejudice of any other creditor, shall be void as to such preference or security, but shall be taken to be for the benefit of all creditors of such debtor, and all the property so attempted to be transferred or charged shall be applied and paid pro rata upon all the debts owed by such debtor at the time such transfer or charge is made: Provided, That any such transfer or charge by an insolvent debtor shall be valid as to such preference or priority unless a creditor of such insolvent debtor shall institute a suit in chancery within one year after such transfer or charge was made to set aside and avoid the same and cause the property so transferred or charged to be applied toward the payment pro rata of all the debts of such insolvent debtor existing at the time such transfer or charge is made, subject, however, to the provisions hereinafter contained with reference to creditors uniting in such suit and contributing to the expenses thereof. * * * ”
And we do not think that the assignment here in question is saved from the provisions of the section quoted by the terms of the last proviso of the section, which is as follows: “Provided further, That nothing in this section contained shall be taken to affect any transfer of bonds, notes, stocks, securities or other evidences of debt in payment of, or as collateral security for the payment of, a bona fide debt, or to secure any indorser or surety, whether such transfer is made at the time such debt is contracted or indorsement made or for the payment or security of a preexisting debt.”
The assignment here was not of any “stocks, securities or other evidences of debt,” but of claims against insurance companies constituting the larger part of the property of the bankrupt. The office of the proviso quoted was evidently to protect pledges of stocks, bonds, notes, etc., the physical possession of which would be transferred to the pledgee in accordance with ordinary commercial practice, not to shield a transfer by way of assignment of incorporeal assets, made with a view of granting a preference to certain favored creditors.
The assignment was made August 24, 1931. Within less than a year thereafter the petition in bankruptcy was filed. The bankruptcy court was vested with jurisdiction to determine controversies relating to the estate of the bankrupt. 11 USO A § 11 (7). And the trustee in bankruptcy was subrogated to the rights of creditors to set aside liens which had been created. 11 USCA § 107 (b). It was the duty of the trustee to contest in the bankruptcy proceeding the allowance of any claim of lien on the propel^ of the bankrupt which could be avoided in the interest of creditors. It also appears that within one year after the transfer one of the creditors of the bankrupt actually attacked the transfer, in objections filed to the proofs of secured claims of the creditors whom the bankrupt had attempted to prefer. This complies with the requirement of the statute that suit in equity be instituted by a creditor within one year after the transfer to set aside or avoid the same, and was a sufficient attack upon the preferential transfer with re*spect to property which passed into the possession of the trustee in bankruptcy. In no aspect of the case, therefore, can there be any doubt that the preferential assignment was attacked by creditors within the one-year period prescribed by the statute.
As the proceeding below was in essence a controversy arising in bankruptcy as distinguished from a bankruptcy proceeding, the proper method of review was by appeal under section 24a of the Bankruptcy Act, 11 USCA § 47 (a) rather than by appeal under 24b, 11 USCA § 47 (b). In re Moore (C. C. A. 4th) 11 F.(2d) 62, 65; Baer v. Security Trust Co. (C. C. A. 4th) 33 F.(2d) 861, 862. On the appeal in ease 3515 the decree of the court below will accordingly be affirmed. The appeal in case No. 3490 will be dismissed.
Case No. 3490 dismissed.
Case No. 3515 affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
sc_issue_7
|
A
|
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.
UNITED STEELWORKERS OF AMERICA v. WARRIOR & GULF NAVIGATION CO.
No. 443.
Argued April 27, 1960.
Decided June 20, 1960.
David E. Feller argued the cause for petitioner. With him on the brief were Arthur J. Goldberg, Elliot Bredhoff, James P. Clowes and Carney M. Layne.
Samuel Lang argued the cause for respondent. With him on the brief were Richard C. Keenan and T. K. Jackson, Jr.
Opinion of the Court by
Mr. Justice Douglas,
announced by Mr. Justice Brennan.
Respondent transports steel and steel products by barge and maintains a terminal at Chickasaw, Alabama, where it performs maintenance and repair work on its barges. The employees at that terminal constitute a bargaining unit covered by a collective bargaining agreement negotiated by petitioner union. Respondent between 1956 and 1958 laid off some employees, reducing the bargaining unit from 42 to 23 men. This reduction was due in part to respondent contracting maintenance work, previously done by its employees, to other companies. The latter used respondent’s supervisors to lay out the work and hired some of the laid-off employees of respondent (at reduced wages). Some were in fact assigned to work on respondent’s barges. A number of employees signed a grievance which petitioner presented to respondent, the grievance reading:
“We are hereby protesting the Company’s actions, of arbitrarily and unreasonably contracting out work to other concerns, that could and previously has been performed by Company employees.
“This practice becomes unreasonable, unjust and discriminatory in lieu [sic] of the fact that at present there are a number of employees that have been laid off for about 1 and % years or more for allegedly lack of work.
“Confronted with these facts we charge that the Company is in violation of the contract by inducing a partial lock-out, of a number of the employees who would otherwise be working were it not for this unfair practice.”
The collective agreement had both a “no strike” and a “no lockout” provision. It also had a grievance procedure which provided in relevant part as follows:
“Issues which conflict with any Federal statute in its application as established by Court procedure or matters which are strictly a function of management shall not be subject to arbitration under this section.
“Should differences arise between the Company and the Union or its members employed by the Company as to the meaning and application of the provisions of this Agreement, or should any local trouble of any kind arise, there shall be no suspension of work on account of such differences but an earnest effort shall be made to settle such differences immediately in the following manner:
“A. For Maintenance Employees:
“First, between the aggrieved employees, and the Foreman involved;
“Second, between a member or members of the Grievance Committee designated by the Union, and the Foreman and Master Mechanic.
“Fifth, if agreement has not been reached the matter shall be referred to an impartial umpire for decision. The parties shall meet to decide on an umpire acceptable to both. If no agreement on selection of an umpire is reached, the parties shall jointly petition the United States Conciliation Service for suggestion of a list of umpires from which selection will be made. The decision of the umpire shall be final.”
Settlement of this grievance was not had and respondent refused arbitration. This suit was then commenced by the union to compel it.
The District Court granted respondent’s motion to dismiss the complaint. 168 F. Supp. 702. It held after hearing evidence, much of which went to the merits of the grievance, that the agreement did not “confide in an arbitrator the right to review the defendant’s business judgment in contracting out work.” Id., at 705. It further held that “the contracting out of repair and maintenance work, as well as construction work, is strictly a function of management not limited in any respect by the labor agreement involved here.” Ibid. The Court of Appeals affirmed by a divided vote, 269 F. 2d 633, the majority holding that the collective agreement had withdrawn from the grievance procedure “matters which are strictly a function of management” and that contracting out fell in that exception. The case is here on a writ of certiorari. 361 U. S. 912.
We held in Textile Workers v. Lincoln Mills, 353 U. S. 448, that a grievance arbitration provision in a collective agreement could be enforced by reason of § 301 (a) of the Labor Management Relations Act and that the policy to be applied in enforcing this type of arbitration was that reflected in our national labor laws. Id., at 456-457. The present federal policy is to promote industrial stabilization through the collective bargaining agreement. Id., at 453-454. A major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the collective bargaining agreement.
Thus the run of arbitration cases, illustrated by Wilko v. Swan, 346 U. S. 427, becomes irrelevant to our problem. There the choice is between the adjudication of cases or controversies in courts with established procedures or even special statutory safeguards on the one hand and the settlement of them in the more informal arbitration tribunal on the other. In the commercial case, arbitration is the substitute for litigation. Here arbitration is the substitute for industrial strife. Since arbitration of labor disputes has quite different functions from arbitration under an ordinary commercial agreement, the hostility evinced by courts toward arbitration of commercial agreements has no place here. For arbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself.
The collective bargaining agreement states the rights and duties of the parties. It is more than a contract; it is a generalized code to govern a myriad of cases which the draftsmen cannot wholly anticipate. See Shulman, Reason, Contract, and Law in Labor Relations, 68 Harv. L. Rev. 999, 1004-1005. The collective agreement covers the whole employment relationship. It calls into being a new common law — the common law of a particular industry or of a particular plant. As one observer has put it:
. . [I] t is not unqualifiedly true that a collective-bargaining agreement is simply a document by which the union and employees have imposed upon management limited, express restrictions of its otherwise absolute right to manage the enterprise, so that an employee’s claim must fail unless he can point to a specific contract provision upon which the claim is founded. There are too many people, too many problems, too many unforeseeable contingencies to make the words of the contract the exclusive source of rights and duties. One cannot reduce all the rules governing a community like an industrial plant to fifteen or even fifty pages. Within the sphere of collective bargaining, the institutional characteristics and the governmental nature of the collective-bargaining process demand a common law of the shop which implements and furnishes the context of the agreement. We must assume that intelligent negotiators acknowledged so plain a need unless they stated a contrary rule in plain words.”
A collective bargaining agreement is an effort to erect a system of industrial self-government. When most parties enter into contractual relationship they do so voluntarily, in the sense that there is no real compulsion to deal with one another, as opposed to dealing with other parties. This is not true of the labor agreement. The choice is generally not between entering or refusing to enter into a relationship, for that in all probability preexists the negotiations. Rather it is between having that relationship governed by an agreed-upon rule of law or leaving each and every matter subject to a temporary resolution dependent solely upon the relative strength, at any given moment, of the contending forces. The mature labor agreement may attempt to regulate all aspects of the complicated relationship, from the most crucial to the most minute over an extended period of time. Because of the compulsion to reach agreement and the breadth of the matters covered, as well as the need for a fairly concise and readable instrument, the product of negotiations (the written document) is, in the words of the late Dean Shulman, “a compilation of diverse provisions: some provide objective criteria almost automatically applicable; some provide more or less specific standards which require reason and judgment in their application; and some do little more than leave problems to future consideration with an expression of hope and good faith.” Shulman, supra, at 1005. Gaps may be left to be filled in by reference to the practices of the particular industry and of the various shops covered by the agreement. Many of the specific practices which underlie the agreement may be unknown, except in hazy form, even to the negotiators. Courts and arbitration in the context of most commercial contracts are resorted to because there has been a breakdown in the working relationship of the parties; such resort is the unwanted exception. But the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.
Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of a disagreement.
The labor arbitrator performs functions which are not normal to the courts; the considerations which help him fashion judgments may indeetl be foreign to the competence of courts.
"A proper conception of the arbitrator’s function is basic. He is not a public tribunal imposed upon the parties by superior authority which the parties are obliged to accept. He has no general charter to administer justice for a community which transcends the parties. He is rather part of a system of self-government created by and confined to the parties. . . .” Shulman, supra, at 1016.
The labor arbitrator’s source of law is not confined to the express provisions of the contract, as the industrial common law — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it. The labor arbitrator is usually chosen because of the parties’ confidence in his knowledge of the common law of the shop and their trust in his personal judgment to bring to bear considerations which are not expressed in the contract as criteria for judgment. The parties expect that his judgment of a particular grievance will reflect not only what the contract says but, insofar as the collective bargaining agreement permits, such factors -as the effect upon productivity of a particular result, its consequence to the morale of the shop, his judgment whether tensions will be heightened or diminished. For the parties’ objective in using the arbitration process is primarily to further their common goal of uninterrupted production under the agreement, to make the agreement serve their specialized needs. The ablest judge cannot be expected to bring the same experience and competence to bear upon the determination of a grievance, because he cannot be similarly informed.
The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
We do not agree with the lower courts that contracting-out grievances were necessarily excepted from the grievance procedure of this agreement. To be sure, the agreement provides that “matters which are strictly a function of management shall not be subject to arbitration.” But it goes on to say that if “differences” arise or if “any local trouble of any kind” arises, the grievance procedure shall be applicable.
Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them. Management hires and fires, pays and promotes, supervises and plans. All these are part of its function, and absent a collective bargaining agreement, it may be exercised freely except as limited by public law and by the willingness of employees to work under the particular, unilaterally imposed conditions. A collective bargaining agreement may treat only with certain specific practices, leaving the rest to management but subject to the possibility of work stoppages. When, however, an absolute no-strike clause is included in the agreement, then in a very real sense everything that management does is subject to the agreement, for either management is prohibited or limited in the action it takes, or if not, it is protected from interference by strikes. This comprehensive reach of the collective bargaining agreement does not mean, however, that the language, “strictly a function of management,” has no meaning.
“Strictly a function of management” might be thought to refer to any practice of management in which, under particular circumstances prescribed by the agreement, it is permitted to indulge. But if courts, in order to determine arbitrability, were allowed to determine what is permitted and what is not, the arbitration clause would be swallowed up by the exception. Every grievance in a sense involves a claim that management has violated some provision of the agreement.
Accordingly, “strictly a function of management” must be interpreted as referring only to that over which' the contract gives management complete control and unfettered discretion. Respondent claims that the contracting out of work falls within this category. Contracting out work is the basis of many grievances; and that type of claim is grist in the mills of the arbitrators. A specific collective bargaining agreement may exclude contracting out from the grievance procedure. Or a written collateral agreement may make clear that contracting out was not a matter for arbitration. In such a case a grievance based solely on contracting out would not be arbitra-ble. Here, however, there is no such provision. Nor is there any showing that the parties designed the phrase “strictly a function of management” to encompass any and all forms of contracting out. In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.
The grievance alleged that the contracting out was a violation of the collective bargaining agreement. There was, therefore, a dispute “as to the meaning and application of the provisions of this Agreement” which the parties had agreed would be determined by arbitration.
The judiciary sits in these cases to bring into operation an arbitral process which substitutes a regime of peaceful settlement for the older regime of industrial conflict. Whether contracting out in the present case violated the agreement is the question. It is a question for the arbiter, not for the courts.
Reversed
Mr. Justice Frankfurter concurs in the result.
Mr. Justice Black took no part in the consideration or decision of this case.
[For opinion of Mr. Justice Brennan, joined by Mr. Justice Frankfurter and Mr. Justice Harlan, see ante, p. 569.]
Section 301 (a) of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U. S. C. § 185 (a), provides:
“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without • regard to the citizenship of the parties.” See Textile Workers v. Lincoln Mills, 353 U. S. 448.
Note 1, supra.
In § 8 (d) of the National Labor Relations Act, as amended by the 1947 Act, 29 U. S. C. § 158 (d), Congress indeed provided that where there was a collective agreement for a fixed term the duty to bargain did not require either party “to discuss or agree to any modification of the terms and conditions contained in” the contract. And see Labor Board v. Sands Mfg. Co., 306 U. S. 332.
Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being the “quid pro quo” for the agreement not to strike. Textile Workers v. Lincoln Mills, 353 U. S. 448, 455.
“Contracts which ban strikes often provide for lifting the ban under certain conditions. Unconditional pledges against strikes are, however, somewhat more frequent than conditional ones. Where conditions are attached to no-strike pledges, one or both of two approaches may be used: certain subjects may be exempted from the scope of the pledge, or the pledge may be lifted after certain procedures are followed by the union. (Similar qualifications may be made in pledges against lockouts.)
“Most frequent conditions for lifting no-strike pledges are: (1) The occurrence of a deadlock in wage reopening negotiations; and (2) violation of the contract, especially non-compliance with the grievance procedure and failure to abide by an arbitration award.
“No-strike pledges may also be lifted after compliance with specified procedures. Some contracts permit the union to strike after the grievance procedure has been exhausted without a settlement, and where arbitration is not prescribed as the final recourse. Other contracts permit a strike if mediation efforts fail, or after a specified cooling-off period.” Collective Bargaining, Negotiations and Contracts, Bureau of National Affairs, Inc., 77:101.
Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1498-1499 (1959).
It is clear that under both the agreement in this case and that involved in American Manufacturing Co., ante, p. 564, the question of arbitrability is for the courts to decide. Cf. Cox, Reflections Upon Labor Arbitration, 72 Harv. L. Rev. 1482, 1508-1509. Where the assertion by the claimant is that the parties excluded from court determination not merely the decision of the merits of the grievance but also the question of its arbitrability, vesting power to make both decisions in the arbitrator, the claimant must bear the burden of a clear demonstration of that purpose.
See Celanese Corp. of America, 33 Lab. Arb. Rep. 925, 941 (1959), where the arbiter in a grievance growing out of contracting out work said:
“In my research I have located 64 published decisions which have been concerned with this issue covering a wide range of factual situations but all of them with the common characteristic — i. e., the contracting-out of work involved occurred under an Agreement that contained no provision that specifically mentioned contracting-out of work.”
Question: What is the issue of the decision?
A. arbitration (in the context of labor-management or employer-employee relations) (cf. arbitration)
B. union antitrust: legality of anticompetitive union activity
C. union or closed shop: includes agency shop litigation
D. Fair Labor Standards Act
E. Occupational Safety and Health Act
F. union-union member dispute (except as pertains to union or closed shop)
G. labor-management disputes: bargaining
H. labor-management disputes: employee discharge
I. labor-management disputes: distribution of union literature
J. labor-management disputes: representative election
K. labor-management disputes: antistrike injunction
L. labor-management disputes: jurisdictional dispute
M. labor-management disputes: right to organize
N. labor-management disputes: picketing
O. labor-management disputes: secondary activity
P. labor-management disputes: no-strike clause
Q. labor-management disputes: union representatives
R. labor-management disputes: union trust funds (cf. ERISA)
S. labor-management disputes: working conditions
T. labor-management disputes: miscellaneous dispute
U. miscellaneous union
Answer:
|
sc_issuearea
|
A
|
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.
FONG FOO et al. v. UNITED STATES.
No. 64.
Argued January 16, 1962.
Decided March 19, 1962
Arthur Richenthal argued the causes for petitioners and filed briefs for petitioner in No. 65. David E. Feller filed briefs for petitioners in No. 64.
Solicitor General Cox argued the causes for the United States. With him on the briefs were Assistant Attorney General Miller, Stephen J. Poliak, Beatrice Rosenberg, Philip R. Monahan and J. F. Bishop.
Together with No. 65, Standard Coil Products Co., Inc., v. United States, also on certiorari to the same Court.
Per Curiam.
The petitioners, a corporation and two of its employees, were brought to trial before a jury in a federal district court upon an indictment charging a conspiracy and the substantive offense of concealing material facts in a matter within the jurisdiction of an agency of the United States, in violation of 18 U. S. C. §§ 371 and 1001. After seven days of what promised to be a long and complicated trial, three government witnesses had appeared and a fourth was in the process of testifying. At that point the district judge directed the jury to return verdicts of acquittal as to all the defendants, and a formal judgment of acquittal was subsequently entered.
The record shows that the district judge’s action was based upon one or both of two grounds: supposed improper conduct on the part of the Assistant United States Attorney who was prosecuting the case, and a supposed lack of credibility in the testimony of the witnesses for the prosecution who had testified up to that point.
The Government filed a petition for a writ of mandamus in the Court of Appeals for the First Circuit, praying that the judgment of acquittal be vacated and the case reassigned for trial. The court granted the petition, upon the ground that under the circumstances revealed by the record the trial court was without power to direct the judgment in question. Judge Aldrich concurred separately, finding that the directed judgment of acquittal had been based solely on the supposed improper conduct of the prosecutor, and agreeing with his colleagues that the district judge was without power to direct an acquittal on that ground. 286 F. 2d 556. We granted certiorari to consider a question of importance in the administration of justice in the federal courts. 366 U. S. 959.
In holding that the District Court was without power to direct acquittals under the circumstances disclosed by the record, the Court of Appeals relied primarily upon two decisions of this Court, Ex parte United States, 242 U. S. 27, and Ex parte United States, 287 U. S. 241. In the first of these cases it was held that a district judge had no power to suspend a mandatory prison sentence, and that a writ of mandamus would lie to require the judge to vacate his erroneous order of suspension. In the second case the Court issued a writ of mandamus ordering a district judge to issue a bench warrant which he had refused to do, in the purported exercise of his discretion, for a person under an indictment returned by a properly constituted grand jury.
Neither of those decisions involved the guaranty of the Fifth Amendment that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” That constitutional provision is at the very root of the present case, and we cannot but conclude that the guaranty was violated when the Court of Appeals set aside the judgment of acquittal and directed that the petitioners be tried again for the same offense.
The petitioners were tried under a valid indictment in a federal court which had jurisdiction over them and over the subject matter. The trial did not terminate prior to the entry of judgment, as in Gori v. United States, 367 U. S. 364. It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, “[t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution.” United States v. Ball, 163 U. S. 662, 671.
Reversed.
Ms. Justice Whittaker took no part in the consideration or decision of these cases.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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sc_casedisposition
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
J. I. CASE CO. et al. v. BORAK.
No. 402.
Argued April 22-23, 1964.
Decided June 8, 1964.
Malcolm K. Whyte argued the cause for petitioner J. I. Case Co. With him on the briefs was Robert P. Harland. Walter S. Davis argued the cause for petitioners Barr et al. With him on the brief were Clark M. Robertson, H. Maxwell Manzer and Ray T. McCann.
Alex Elson argued the cause for respondent. With him on the brief were Arnold I. Shure, Willard J. Lassers, Aaron S. Wolff and Bruno V. Bitker.
Philip A. Loomis, Jr., by special leave of Court, argued the cause for the Securities and Exchange Commission, as amicus curiae, urging affirmance. With him on the brief were Solicitor General Cox, Stephen J. Poliak and David Berber.
Mr. Justice Clark
delivered the opinion of the Court.
This is a civil action brought by respondent, a stockholder of petitioner J. I. Case Company, charging deprivation of the pre-emptive rights of respondent and other shareholders by reason of a merger between Case and the American Tractor Corporation. It is alleged that the merger was effected through the circulation of a false and misleading proxy statement by those proposing the merger. The complaint was in two counts, the first based on diversity and claiming a breach of the directors' fiduciary duty to the stockholders. The second count alleged a violation of § 14 (a) of the Securities Exchange Act of 1934 with reference to the proxy solicitation material. The trial court held that as to this count it had no power to redress the alleged violations of the Act but was limited solely to the granting of declaratory relief thereon under § 27 of the Act. The court held Wis. Stat., 1961, § 180.405 (4), which requires posting security for expenses in derivative actions, applicable to both counts, except that portion of Count 2 requesting declaratory relief. It ordered the respondent to furnish a bond in the amount of $75,000 thereunder and, upon his failure to do so, dismissed the complaint, save that part of Count 2 seeking a declaratory judgment. On interlocutory appeal the Court of Appeals reversed on both counts, holding that the District Court had the power to grant remedial relief and that the Wisconsin statute was not applicable. 317 F. 2d 838. We granted certiorari. 375 U. S. 901. We consider only the question of whether § 27 of the Act authorizes a federal cause of action for rescission or damages to a corporate stockholder with respect to a consummated merger which was authorized pursuant to the use of a proxy statement alleged to contain false and misleading statements viola-tive of § 14 (a) of the Act. This being the sole question raised by petitioners in their petition for certiorari, we will not consider other questions subsequently presented. See Supreme Court Rule 40 (1) (d)(2); Local 1976, United Brotherhood of Carpenters v. Labor Board, 357 U. S. 93, 96 (1958); Irvine v. California, 347 U. S. 128, 129-130 (1954).
I.
Respondent, the owner of 2,000 shares of common stock of Case acquired prior to the merger, brought this suit based on diversity jurisdiction seeking to enjoin a proposed merger between Case and the American Tractor Corporation (ATC) on various grounds, including breach of the fiduciary duties of the Case directors, self-dealing among the management of Case and ATC and misrepresentations contained in the material circulated to obtain proxies. The injunction was denied and the merger was thereafter consummated. Subsequently successive amended complaints were filed and the case was heard on the aforesaid two-count complaint. The claims pertinent to the asserted violation of the Securities Exchange Act were predicated on diversity jurisdiction as well as on § 27 of the Act. They alleged: that petitioners, or their predecessors, solicited or permitted their names to be used in the solicitation of proxies of Case stockholders for use at a special stockholders’ meeting at which the proposed merger with ATC was to be voted upon; that the proxy solicitation material so circulated was false and misleading in violation of § 14 (a) of the Act and Rule 14a-9 which the Commission had promulgated thereunder; that the merger was approved at the meeting by a small margin of votes and was thereafter consummated; that the merger would not have been approved but for the false and misleading statements in the proxy solicitation material; and that Case stockholders were damaged thereby. The respondent sought judgment holding the merger void and damages for himself and all other stockholders similarly situated, as well as such further relief “as equity shall require.” The District Court ruled that the Wisconsin security for expenses statute did not apply to Count 2 since it arose under federal law. However, the court found that its jurisdiction was limited to declaratory relief in a private, as opposed to a government, suit alleging violation of § 14 (a) of the Act. Since the additional equitable relief and damages prayed for by the respondent would, therefore, be available only under state law, it ruled those claims subject to the security for expenses statute. After setting the amount of security at $75,000 and upon the representation of counsel that the security would not be posted, the court dismissed the complaint, save that portion of Count 2 seeking a declaration that the proxy solicitation material was false and misleading and that the proxies and, hence, the merger were void.
II.
It appears clear that private parties have a right under § 27 to bring suit for violation of § 14 (a) of the Act. Indeed, this section specifically grants the appropriate District Courts jurisdiction over "all suits in equity and actions at law brought to enforce any liability or duty created” under the Act. The petitioners make no concessions, however, emphasizing that Congress made no specific reference to a private right of action in § 14 (a) that, in any event, the right would not extend to derivative suits and should be limited to prospective relief only. In addition, some of the petitioners argue that the merger can be dissolved only if it was fraudulent or non-beneficial, issues upon which the proxy material would not bear. But the causal relationship of the proxy material and the merger are questions of fact to be resolved at trial, not here. We therefore do not discuss this point further.
III.
While the respondent contends that his Count 2 claim is not a derivative one, we need not embrace that view, for we believe that a right of action exists as to both derivative and direct causes.
The purpose of § 14 (a) is to prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclosure in proxy solicitation. The section stemmed from the congressional belief that “[f]air corporate suffrage is an important right that should attach to every equity security bought on a public exchange.” H. R. Rep. No. 1383, 73d Cong., 2d Sess., 13. It was intended to “control the conditions under which proxies may be solicited with a view to preventing the recurrence of abuses which . . . [had] frustrated the free exercise of the voting rights of stockholders.” Id., at 14. “Too often proxies are solicited without explanation to the stockholder of the real nature of the questions for which authority to cast his vote is sought.” S. Rep. No. 792, 73d Cong., 2d Sess., 12. These broad remedial purposes are evidenced in the language of the section which makes it “unlawful for any person . . . to solicit or to permit the use of his name to solicit any proxy or consent or authorization in respect of any security . . . registered on any national securities exchange in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.” (Italics supplied.) While this language makes no specific reference to a private right of action, among its chief purposes is “the protection of investors,” which certainly Implies the availability of judicial relief where necessary to achieve that result.
The injury which a stockholder suffers from corporate action pursuant to a deceptive proxy solicitation ordinarily flows from the damage done the corporation, rather than from the damage inflicted directly upon the stockholder. The damage suffered results not from the deceit practiced on him alone but rather from the deceit practiced on the stockholders as a group. To hold that derivative actions are not within the sweep of the section would therefore be tantamount to a denial of private i relief. Private enforcement of the proxy rules provides a 1 necessary supplement to Commission action. As in antitrust treble damage litigation, the possibility of civil dam|ages or injunctive relief serves as a most effective weapon fin the enforcement of the proxy requirements. The Commission advises that it examines over 2,000 proxy statements annually and each of them must necessarily be expedited. Time does not permit an independent examination of the facts set out in the proxy material and this results in the Commission’s acceptance of the representations contained therein at their face value, unless contrary to other material on file with it. Indeed, on the allegations of respondent’s complaint, the proxy material failed to disclose alleged unlawful market manipulation of the stock of ATC, and this unlawful manipulation would not have been apparent to the Commission until after the merger.
We, therefore, believe that under the circumstances")'^ here it is the duty of the courts to be alert to provide | such remedies as are necessary to make effective the con-f gressional purpose. As was said in Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173, 176 (1942):
“When a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted.”
See also Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U. S. 210, 213 (1944); Deitrick v. Greaney, 309 U. S. 190, 201 (1940). It is for the federal courts “to adjust their remedies so as to grant the necessary relief” where federally secured rights are invaded. “And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U. S. 678, 684 (1946). Section 27 grants the District Courts jurisdiction “of all suits in equity and actions at law brought to enforce any liability or duty created by this title . . . .” In passing on almost identical language found in the Securities Act of 1933, the Court found the words entirely sufficient to fashion a remedy to rescind a fraudulent sale, secure restitution and even to enforce the right to restitution against a third party holding assets of the vendor. Deckert v. Independence Shares Corp., 311 U. S. 282 (1940). This significant language was used:
“The power to enforce implies the power to make effective the right of recovery afforded by the Act. And the power to make the right of recovery effective implies the power to utilize any of the procedures or actions normally available to the litigant according to the exigencies of the particular case.” At 288.
See also Porter v. Warner Holding Co., 328 U. S. 395 (1946); Mitchell v. Robert DeMario Jewelry, Inc., 361 U. S. 288 (1960); Schine Chain Theatres, Inc., v. United States, 334 U. S. 110 (1948).
Nor do we find merit in the contention that such remedies are limited to prospective relief. This was the position taken in Dann v. Studebaker-Packard Corp., 288 F. 2d 201, where it was held that the “preponderance of questions of state law which would have to be interpreted and applied in order to grant the relief sought ... is so great that the federal question involved ... is really negligible in comparison.” At 214. But we believe that the overriding federal law applicable here would, where the facts required, control the appropriateness of redress despite the provisions of state corporation law, for it “is not uncommon for federal courts to fashion federal law where federal rights are concerned.” Textile Workers v. Lincoln Mills, 353 U. S. 448, 457 (1957). In addition, the fact that questions of state law must be decided does not change the character of the right; it remains federal. As Chief Justice Marshall .said in Osborn v. Bank of the United States, 9 Wheat. 738 (1824):
“If this were sufficient to withdraw a case from the jurisdiction of the federal Courts, almost every case, although involving the construction of a law, would be withdrawn . . . .” At 819-820.
Moreover, if federal jurisdiction were limited to the granting of declaratory relief, victims of deceptive proxy statements would be obliged to go into state courts for remedial relief. And if the law of the State happened to attach no responsibility to the use of misleading proxy I statements, the whole purpose of the section might be j frustrated. Furthermore, the hurdles that the victim might face (such as separate suits, as contemplated by Dann v. Studebaker-Packard Corp., supra, security for expenses statutes, bringing in all parties necessary for complete relief, etc.) might well prove insuperable toj effective relief.
IV.
Our finding that federal courts have the power to grant all necessary remedial relief is not to be construed as any indication of what we believe to be the necessary and appropriate relief in this case. We are concerned here only with a determination that federal jurisdiction for this purpose does exist. Whatever remedy is necessary must await the trial on the merits.
The other contentions of the petitioners are denied.
Affirmed.
Section 14 (a) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U. S. C. § 78n (a), provides: “It shall be unlawful for any person, by the use of the mails or by any means or instrumentality of interstate commerce or of any facility of any national securities exchange or otherwise to solicit or to permit the use of his name to solicit any proxy or consent or authorization in respect of any security (other than an exempted security) registered on any national securities exchange in contravention of such rules and regulations as the [Securities and Exchange] Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.”
Section 27 of the Act, 48 Stat. 902-903, 15 U. S. C. § 78aa, provides in part: “The district courts of the United States, the Supreme Court of the District of Columbia, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of tins title or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this title or the rules and regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to ¡'enforce any liability or duty created by this title or rules and regulations thereunder, or to enjoin any violation of such title or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant jnay be found.”
“The phrasing of the questions presented need not be identical with that set forth in the jurisdictional statement or the petition for certiorari, but the brief may not raise additional questions or change the substance of the questions already presented in those documents. Questions not presented according to this paragraph will be disregarded, save as the court, at its option, may notice a plain error not presented.”
17 CFR §240.14a-9 provides: “False or misleading statements. No solicitation subject to §§ 240.14a-l to 240.14a-10 shall be made by means of any proxy statement, form of proxy, notice of meeting, or other communication written or oral containing any statement which at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.”
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_jurisdiction
|
A
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
In The Matter of PERSPECTRON, INC., Bankrupt. Robert L. BALZANO, Trustee in Bankruptcy of Perspectron, Inc., Petitioner-Appellant, v. AERO-DYNE CORPORATION OF ILLINOIS, Respondent-Appellee, and United States of America, Reclamation Petitioner-Appellee.
No. 17199.
United States Court of Appeals, Seventh Circuit.
Feb. 12, 1970.
Anna R. Lavin, Chicago, 111., for appellant.
Thomas A. Foran, U. S. Atty., Richard A. Makarski, Asst. U. S. Atty., for reclamation-petitioner-appellee, John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.
William B. Davenport, Robert E. Pfaff, Chicago, 111., for respondent-appellee, Aero-Dyne Corp., Jenner & Block, Chicago, 111., of counsel.
Before CASTLE, Chief Judge, and MAJOR and HASTINGS, Senior Circuit Judges.
MAJOR, Senior Circuit Judge.
The receiver for Perspectron, Inc., a bankrupt (Perspectron or the bankrupt), on July 28, 1966, filed a petition for a turn-over order, subsequently adopted by the bankruptcy trustee. The petition in substance alleged that on or about June 15, 1966, equipment and material of a value of approximately $150,000 was transferred from Perspectron to AeroDyne Corporation of Illinois (AeroDyne) without consideration, for the purpose of delaying and defrauding creditors of the bankrupt.
Aero-Dyne by answer denied the allegations of the petition and alleged that it was not subject to the summary jurisdiction of the court; that the United States owned the property in question and that Aero-Dyne held it on behalf of the United States, pursuant to a contract dated June 9, 1965, under which Aero-Dyne was the prime contractor; that the government contract provided that title to the property in question was in the United States; that the contract had been incorporated in AeroDyne’s purchase order forming a subcontract with the bankrupt, and that the latter’s work on the contract as a subcontractor had been terminated by Aero-Dyne upon the bankrupt’s acknowledgment that it could not perform. It was further alleged that upon such termination the property was delivered to Aero-Dyne in order that work on the contract might be completed, and that Aero-Dyne had paid to the bankrupt all money received by it from the United States as progress payments on the government contract.
On September 8, 1966, the United States intervened and filed an answer, and on September 12, an amended answer, to the turn-over petition. In both it asserted ownership of the property in question. The amended answer challenged the summary jurisdiction of the court.
The referee held that he had summary jurisdiction of both the government and Aero-Dyne and, after a hearing, entered his order on March 27, 1967, by which it was determined that the claim of the trustee to the property involved and removed from the premises of the bankrupt by Aero-Dyne was superior to the claim of title of the United States. Both Aero-Dyne and the United States petitioned for review of the referee’s order. The district court granted such request, considered the . evidence adduced before the referee and, with the acquiescence of all parties, permitted further testimony.
On July 12, 1968, the court rendered its memorandum of decision and order, holding that real and substantial claims were advanced by Aero-Dyne and the United States which preclude the exercise of summary jurisdiction. The court concluded:
“ * * * the order of the Referee finding that summary jurisdiction existed, entered without the required findings of fact and conclusions of law, and the order of the Referee finding that the Trustee’s title to the property was superior to that of the United States, entered without jurisdiction, must be and hereby are reversed and this summary proceeding must be and is dismissed.”
From this order of dismissal the trustee appeals, and presents the issues for decision as:
“1. Did not the District Court err, on a Petition for Review, in preempting the Bankruptcy Court entirely for failure to make Findings of Fact, instead of remanding the matter with instructions to make the required findings ?
“2. Was Aero-Dyne Corporation (disdaining any right or title in itself) a ‘person aggrieved’ so as to qualify for the right of review under Section 39(c) of the Bankruptcy Act?
“3. Did the United States waive any challenge to the Summary Jurisdiction of the Bankruptcy Court?
“4. Could title to Perspectron Corporation’s inventory vest in the United States by virtue of the contract between Aero-Dyne and the government?”
In our view, the only serious question here is whether the bankruptcy court had summary jurisdiction of Aero-Dyne and the government.. If this issue be decided adversely to the trustee, any other issues are of no consequence.
The district court stated in its memorandum :
“The parties have agreed that only two questions are presented for review: First, whether the court has summary jurisdiction, and, second, whether the United States has title to -the property in question. Although the questions are somewhat interrelated in that the substantiality of the United States’ claim to title determines the existence of summary jurisdiction, the court would have no occasion to decide the second if summary jurisdiction is lacking.”
As noted, the district court reversed the referee’s conclusion that the trustee’s title to the involved property was superior to that of the United States, solely on the basis that the court was without summary jurisdiction. It follows that if the decision of the district court is affirmed, it will be without prejudice to the right of the trustee to seek relief in any appropriate plenary proceeding.
The trustee argues that findings of fact were not made by the referee and the court was without authority to reverse, but should have remanded the cause for the purpose of making such findings.
General Order 47 in Bankruptcy provides :
“Unless otherwise directed in the order of reference the report of a referee or of a special master shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous. The judge after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.”
A reading of this order makes it plain that the court is vested with a wide discretion. The trustee on brief, referring to this order, states:
“However, it is impossible for a District Court to exercise that power when it cannot understand from the absence of findings how the Referee gave effect to the important questions before him. This is essential to the office of review.”
Without expressly so stating, it seems to be implicit in this argument that the court was without jurisdiction to take any action other than to remand the case to the referee for the purpose of making findings. We think the contention must be rejected. There can hardly be doubt but that the court had jurisdiction of the parties and the subject matter, and the power to proceed, particularly under the circumstances now to be related.
The record reveals that preliminary to the hearing by the district court there was a lengthy colloquy as to the issue for decision and the procedure to be followed, participated in by the court and counsel for all the parties. Mr. Davenport, attorney for Aero-Dyne, suggested that the first issue to be determined was whether the bankruptcy court had summary jurisdiction. The court inquired, “Is there any objection to my taking this over in the light of Mr. Davenport’s statement?” Mr. Simon, general counsel for the trustee, responded, “No. I think your Honor should. We would like to dispose of this case and this would be the most expeditious way to do it.” In the colloquy Mr. Simon further stated, “The reason I said you should hear it is to expedite the proceedings * * Later, in a revealing statement, Mr. Mackey, special counsel for the trustee, expressly conceded that the issue of summary jurisdiction must first be decided.
Thereupon, with the acquiescence of counsel for all parties, the district court announced that the sole issue to be tried was whether the referee had summary jurisdiction. The case was tried on this issue and decided adversely to the trustee. Insofar as we can discern from the record, neither the trustee nor any other party at any time suggested that the court was without jurisdiction or power in the matter. This issue apparently is raised here for the first time.
The cases cited by the trustee on this point are not controlling. Generally they involve the failure of a lower court to make findings which an appellate court can review. In such eases, the reviewing court is not authorized to hear additional testimony but is restricted to the findings made by the lower court. In contrast, the district court in reviewing a decision of a referee is specifically authorized to hear additional testimony. Moreover, in the instant situation counsel for all parties, including those for the trustee, expressly acquiesced in the procedure followed by the court. In our view, the trustee’s complaint on this score is without merit.
Notwithstanding the posture in which the case was presented to the district court, the trustee argues here as it did before the referee, that the United States waived any right which it had to a plenary proceeding, citing O’Dell v. United States, 10 Cir., 326 F.2d 451, 455; Commercial Discount Co. v. Rutledge, 10 Cir., 297 F.2d 370, 373; Inter-State National Bank of Kansas City v. Luther, Trustee, 10 Cir., 221 F.2d 382; Reconstruction Finance Corp. v. Riverview State Bank, 10 Cir., 217 F.2d 455, 459, and James Talcott, Inc. v. Glavin, 3 Cir., 104 F.2d 851, 853. An examination of these cases and others discloses that they are of little aid to the trustee’s contention because of different factual situations.
In the instant situation, the United States on September 8, 1966, filed an answer to the receiver’s petition for turn-over which made no objection to the summary jurisdiction of the bankruptcy court. On the same date, however, in open court it objected to summary jurisdiction and asked leave to amend its pleading. The government on brief states that the referee orally gave the United States leave to amend its pleading within five days. In any event, within the five-day period, the United States filed its amended answer in which it objected to the summary jurisdiction. On October 3, 1966, the referee ruled that he had jurisdiction of both the government and Aero-Dyne.
Section 2(a) (7) of the Bankruptcy Act (11 U.S.C.A. 11(a) (7) ) provides in part as follows:
“ * * * and where in a controversy arising in a proceeding under this title an adverse party does not interpose objection to the summary jurisdiction of the court of bankruptcy, by answer or motion filed before the expiration of the time prescribed by law or rule of court or fixed or extended by order of court for the filing of an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction * *
We think the government cannot “be deemed to have consented” to summary jurisdiction. Its amended answer, either with or without the consent of the court, was filed within the time prescribed by Rule 15(a), Federal Rules of Civil Procedure. Moreover, all parties had notice on the day the government’s original answer was filed that it would challenge the summary jurisdiction of the court.
In Gill v. Phillips, 5 Cir., 337 F.2d 258, the court held that the referee had erroneously determined that the party involved had consented to summary jurisdiction, and stated (page 262):
“Perhaps it is appropriate to note at the outset that consent to summary jurisdiction is not lightly to be inferred. As this Court has emphasized before, the admittedly desirable end of expeditious administration of bankrupt estates should not be allowed effectively to eliminate the protection afforded litigants by the traditional safeguards of a plenary suit, with its right to trial by jury and cross-examination of witnesses. See, e.g., Fox Jewelry Co. v. Lee, 264 F.2d 720 (5 Cir.1959); Cf. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Therefore, we approach the issue of consent to summary jurisdiction with a certain degree of circumspection.
“We do not view any of Gill’s appearances in the bankruptcy proceedings as evidencing a willingness on his part that the bankruptcy court decide the preference and fraudulent conveyance issues in summary proceedings. Consent should.be inferred only from a clear manifestation by the adverse party that he is submitting a particular issue to the summary jurisdiction of the referee for determination.”
The trustee’s contentions that AeroDyne was not a “person aggrieved” under See. 39(c) of the Bankruptcy Act (Title 11 U.S.C.A. See. 67(e)), and that the United States did not have a real and substantial claim to title to the property which authorized them to maintain a petition for review, are based upon an intermingled state of facts which were developed at length by the parties in the court below. Even though we are not called upon to decide the merits of the contentions thus made, some statement of the facts appears to be essential.
On June 9, 1964, Aero-Dyne entered into a contract with the United States government for 76 recorder reproducers known as AN/PNH-4. This contract incorporated a progress payments clause in conformity with an Armed Service Procurement Regulation which provided in part as follows:
“Progress payments shall be made to the Contractor as work progresses, from time to time upon request, in amounts approved by the Contracting Officer upon the following terms and conditions:
“(a) Computation of Amounts. (1) Unless a smaller amount is requested, each progress payment shall be (i) 70 percent of the amount of the Contractor’s total cost incurred under this contract plus (ii) the amount of progress payments to subcontractors as provided in (j) below, all less the sum of previous progress payments. ******
“(d) Title. Immediately, upon the date of this contract, title to all parts; materials; inventories; work in progress; special tooling as defined in the clause of this contract entitled ‘Special Tooling’; nondurable (i.e., noncapital) tools, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, and other similar manufacturing aids not included within the definition of special tooling in such ‘Special Tooling’ clause; and drawings and technical data (to the extent delivery thereof to the Government is required by other provisions of this contract); theretofore acquired or produced by the Contractor and allocated or properly chargeable to this contract under sound and generally accepted accounting principles and practices shall forthwith vest in the Government; and title to all like property thereafter acquired or produced by the Contractor and allocated or properly chargeable to this contract as aforesaid shall forthwith vest in the Government upon said acquisition, production or allocation. Notwithstanding that title to property is in the Government through the operation of this clause, the handling and disposition of such property shall be determined by the applicable provisions of this contract such as: the Default clause and paragraph (h) of this clause; Termination for Convenience of the clause; and the Special Tooling clause.
******
“(j) Progress Payments to Subcontractors.
(1) The amount mentioned in item (a) (i) to (ii) above shall be the sum of (i) all the progress payments made by the Contractor to his subcontractors and remaining unliquidated, and (ii) unpaid billings for progress payments to subcontractors which have been approved for current payment in the ordinary course of business, when under subcontracts which conform to (2) below.
(2) Subcontracts on which progress payments to subcontractors may be included in the base for progress payments pursuant to paragraph (a) of this clause are limited to those subcontracts in which there is expected to be a long ‘lead time,’ approximately six months or more between the beginning of work and the first delivery, containing subcontract progress payment provisions which (i) are substantially similar to and as favorable to the Government as this ‘Progress Payments’ clause, no more favorable to the subcontractor than this clause is to the contractor and on a basis of not more than 70 percent of total costs or 85 percent of direct labor and material costs (except that these percentages may be 75 percent of total costs or 90 percent of direct labor and material costs for those subcontractors which are small business concerns), and (ii) make all rights of the subcontractor with respect to all property to which the Government has title under the subcontract subordinate to the rights of the Government to require delivery of such property to it in the event of default by the Contractor under this contract or in the event of the bankruptcy or insolvency of the subcontractor.” (Emphasis supplied.)
On August 31, 1964, Aero-Dyne issued its purchase order No. 3033 to Perspeetron, covering all of the work required to be done under the government contract. Robert Moffat, president of Perspectron, signed an acceptance of the purchase order under date of September 2, 1964, and at numerous times subsequently signed similar orders referred to as the subcontracts between Aero-Dyne and Perspectron. These subcontracts among other things provided:
“All other terms and conditions of [the Government Contract], which is attached herewith and expressly made a part hereof, shall be complied with.”
During the period beginning May 25, 1965 and ending March 3, 1966, Perspectron by its officers prepared eighteen requests, in the joint names of AeroDyne and Perspectron, for progress payments under the government contract. Perspectron submitted said progress payment applications through AeroDyne to the contracting officer at Fort Meade, Md. The government made progress payments to Aero-Dyne on the government contract, which in turn remitted them in exact amount by its check to Perspectron, with accompanying government voucher setting forth the government contract number and the progress payment number. Perspectron received $152,278.80 in progress payments under the government contract, on requests prepared by Perspectron.
Moffat testified on behalf of the government before the referee that in early April 1966, he had a conversation with Harry Reagan, a representative of the National Security Agency, Fort Meade, Md., and liaison man between the agency and any contractor associated with the PNH-4. In that conversation Reagan was assured that Perspectroti’s progress payments were in keeping with what its books reflected. The inventory of parts acquired by Perspectron was charged to the government contract during the period covered by the progress payments' requests.
William Hriszko, an official of Perspectron, testified that it was “very definitely a part of the procedure” at Perspectron to have each purchase order relative to a government contract contain on its face the relevant contract number. All parts ordered by Perspectron for the government contract were built to government specifications. Upon receipt of material from" a vendor at Perspectron’s receiving section, the parts were counted, allocated against their respective contract and placed in a hold area preparatory to inspection. They were then moved over to inspection and put in a hold area where, upon successful completion of quality control requirements they were released to production control, and from that point were put in a bonded stock area. Shipments received at Perspectron were packaged in various types of receptacles and properly identified with the part number in question and with the relative contract involved, with its appropriate nomenclature, in the instant situation the PNH-4. In the bonded stock area, all contracts were segregated under a numerical control system, under project numbers, and only that material relevant to each contract was contained in a specific area.
Edward J. Babecki, a government representative, was stationed at Perspectron as an inspector from May 1964 to the first week of March 1966. His testimony was similar to that of Hriszko as to the manner in which parts received by Perspectron were segregated so as to be identified with the various government contracts.
On May 25, 1966, Aero-Dyne by telegram notified Perspectron that because of its default, it was cancelling the balance of order No. 3033, dated August 31, 1964. The telegram in part stated:
“All material components, sub assemblies, work in process covered by progress payments one through 18 inclusive and all government tooling and equipment furnished under contract DA18-119-AMC-0919(X) shall be prepared for immediate shipment and delivery to Aero-Dyne Corp. * *
On June 5, 1966, Perspectron by its officers replied by letter to this telegram, in part as follows:
“It has been determined by the officers and directors of Perspectron, Inc. that a financial reorganization of said company is required. To do so in the most timely and orderly fashion and with the best interest of the government in mind, it has been agreed that all requirements on subject will be performed by Aero-Dyne Corporation, the prime Contractor.
“As a result, the inventory as it now exists, at Perspectron, Inc. will be transferred to Aero-Dyne. Said company in turn will procure the balance of the material required for use in fabrication of the equipments to be furnished under subject contract. It should be emphasized that the technical and administrative personnel employed by Perspectron will be available to Aero-Dyne at all times during the course of the contract. This will undoubtedly alleviate any problem areas which might arise in these specific areas.”
Hriszko testified that the parts pertaining to the government contract were removed from the premises of Perspeetron during the period of from about June 7 or 8 to June 11, 1966, and that to his knowledge no parts were removed which had not been identified to the government contract. Moffat testified that the items removed “were already designated” and “set aside.” The government contract was performed by Aero-Dyne, and the required units were eventually shipped to the government.
In view of the limited nature of the issues for decision, we deem it unnecessary to pursue further the facts as they pertain to the rights of the parties under the government’s contract with Aero-Dyne or the latter’s subcontract with Perspectron. Neither do we think it necessary to cite or discuss the numerous cases called to our attention which deal with pertinent principles of law. Two of such cases will suffice. In re Process-Manz Press, Inc., 7 Cir., 369 F.2d 513, a recent decision of this court, and Goggin et al. v. Consolidated Liquidating Corp. et. al., 190 F.2d 553 (CA-9).
In Process-Manz, this court reversed the district court, which had sustained the referee in holding that he had summary jurisdiction. In doing so we stated (page 516):
“The bankruptcy court is without summary jurisdiction to determine a claim without the claimant’s consent where it is necessary to weigh the force of opposing credible evidence on a substantial and controverted issue of controlling fact. In re Kansas City Journal-Post Co., [8 Cir.] 144 F.2d [808] at 815. A claim is substantial if it ‘ “discloses a contested matter of right, involving some fair doubt and reasonable room for controversy,” * * * in matters either of fact or law; and is not to be held merely colorable unless the preliminary inquiry shows it is so unsubstantial and obviously insufficient, either in fact or law, as to be plainly without color of merit, and a mere pretense.’ Harrison v. Chamberlin, 271 U.S. [191] at 195, 46 S.Ct. [467] at 469 [70 L.Ed. 897].”
Goggin on its facts and reasoning supports the claims of the United States and Aero-Dyne that they are entitled to have their rights adjudicated in a plenary hearing. In that case a referee found that he had summary jurisdiction to order the turn-over of certain funds held by Consolidated which were alleged to be owed to the bankrupt. The United States Maritime Commission had notified Consolidated prior to the bankruptcy, pursuant to the provisions of the Anti-Kickback Act, to withhold monies claimed to be due the bankrupt. There, as here, the government had intervened. The district court, on review, reversed the referee. In affirming, the court of appeals stated (page 554):
“The district court on proceedings to review held that the claim which the United States was making on Consolidated was substantial, not merely colorable, hence both those parties were entitled to have their rights adjudicated in a plenary suit.”
The district court in the instant case in its memorandum opinion stated:
“Since serious questions of fact and law determine the title question, real and substantial claims are advanced by Aero-Dyne Corporation and the United States which preclude the exercise of summary jurisdiction in this case.”
With this conclusion we agree.
The order appealed from is
Affirmed.
. In fact, the trustee, after obtaining leave from the referee, instituted on September 6, 1968 a plenary proceeding against Aero-D.vne and others, seeking damages for alleged wrongful removal of the property which is the subject matter of the instant case.
. “The Court: What I was concerned about was whether the issue was before me and the matter of whether or not the bankruptcy court has summary jurisdiction is something I must decide. Isn’t that right?
Mr. Mackey: It is, your Honor.
The Court: If I decide that the bankruptcy court does not have summary jurisdiction—
Mr. Mackey: Have you decided that it does not? No, sir.
The Court: I say if I were to decide.
Mr. Mackey: Oh, if you were. Excuse me, your Honor.
The Court: If I were, then—
Mr. Mackey: Then that would end it.
The Court: The trustee would be left to his plenary suit, isn’t that right?
Mr. Mackey: Yes, it is, your Honor.
The Court: To be filed in this court or elsewhere.
Mr. Mackey: Correct, your Honor.”
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_constit
|
C
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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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
QUINCY CABLE TV, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. KHQ, Incorporated, Spokane Television, Inc., King Broadcasting Company, Association of Independent Television Stations, Inc., National Association of Broadcasters, and Town of Quincy, Washington, Intervenors. TURNER BROADCASTING SYSTEM, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Metromedia, Inc., Community Antenna Television Association, Inc., Black Entertainment Television, National Religious Broadcasters, Television Licensees, Association of Independent Television Stations, Inc., Corporation For Public Broadcasting, National Association of Broadcasters, Spanish International Communications Corporation et al., National Association of Public Television Stations, Columbus Broadcasting Company, Inc. et al., King Broadcasting Company, National Cable Television Association, Inc., Association of Maximum Service Telecasters, Inc., McGraw-Hill Broadcasting Company, Inc. et al., National Broadcasting Company, Inc., Station Representatives Association, Taft Television and Radio Company, Inc., and Maranatha Broadcasting Company, Inc., Intervenors.
Nos. 83-1283, 83-2050.
United States Court of Appeals, District of Columbia Circuit.
Argued April 16, 1985.
Decided July 19, 1985.
John P. Cole, Jr., Washington, D.C., with whom David M. Silverman, Washington, D.C., was on initial and supplemental briefs, for Quincy Cable TV, Inc., petitioner in No. 83-1283. John P. Cole, Jr., Washington, D.C., also entered an appearance for Town of Quincy, Wash., intervenor in No. 83-1283.
Bruce D. Sokler, Washington, D.C., with whom Charles D. Ferris, Frank W. Lloyd, and L. Gregory Ballard, Washington, D.C., were on brief, for Turner Broadcasting System, Inc., petitioner in No. 83-2050.
Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., for respondents in Nos. 83-1283 and 83-2050. Bruce E. Fein, then Gen. Counsel, F.C.C., Washington, D.C., was on initial brief for respondents in No. 83-1283 and on brief for respondents in No. 83-2050. Gregory M. Christopher, Atty., F.C.C., Washington, D.C., was on initial brief for respondents and Supplemental Brief for Respondents, Intervenors, and Amici Curiae pursuant to Court Order of October 16, 1984 in No. 83-1283, and entered an appearance for respondent F.C.C. in No. 83-2050. Robert G. Nicholson and Margaret G. Halpern, Attys., Dept, of Justice, Washington, D.C., were on initial brief for respondents and the Supplemental Brief for Respondents, Intervenors, and Amici Curiae in No. 83-1283, and on brief for respondents in No. 83-2050. J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., was on Supplemental Brief for Respondents, Intervenors, and Amici Curiae in No. 83-1283 and on brief for respondents in No. 83-2050. Jack D. Smith, Gen. Counsel, F.C.C., Washington, D.C., was on Supplemental Brief for Respondents, Intervenors, and Amici Curiae in No. 83-1283. Jane E. Mago and C. Grey Pash, Jr., Attys., F.C.C., Washington, D.C., entered appearances for respondent F.C.C. in No. 83-2050.
J. Laurent Scharff, Washington, D.C., with whom James M. Smith, Washington, D. C., was on initial and supplemental briefs in No. 83-1283 and on brief in No. 83-2050, for Ass’n of Independent Television Stations, Inc. and Nat. Ass'n of Broadcasters, intervenors in Nos. 83-1283 and 83-2050, and for Ass’n of Maximum Service Telecasters, Inc., McGraw-Hill Broadcasting Co., Inc., Metromedia, Inc., Nat. Broadcasting Co., Inc., and Taft Television and Radio Co., Inc., intervenors in No. 83-2050. Jonathan D. Blake, Paul J. Berman, and Gregory M. Schmidt, Washington, D.C., entered appearances for intervenor Association of Maximum Service Telecasters, Inc. Arthur B. Goodkind and Mary M. Hendriksen, Washington, D.C., entered appearances for intervenors McGraw-Hill Broadcasting Co., Inc. et al. Howard Monderer, Washington, D.C., entered an appearance for intervenor Nat. Broadcasting Co., Inc. Erwin G. Krasnow and Michael D. Berg, Washington, D.C., entered appearances for intervenor Nat. Ass’n of Broadcasters.
Arthur Stambler, Erwin G. Krasnow, Michael D. Berg, Edward W. Hummers, Jr., and David G. Rozzelle, Washington, D.C., were on brief for Spokane Television, Inc., intervenor in No. 83-1283, and Nat. Ass’n of Broadcasters and King Broadcasting Co., intervenors in Nos. 83-1283 and 83-2050.
R. Russell Eagan, Washington, D.C., was on brief for KHQ, Inc., intervenor in No. 83-1283.
John Geoffrey Bentley, Washington, D.G., was on brief for Maranatha Broadcasting Co., Inc., intervenor in No. 83-2050. Laura Metcoff Klaus, Washington, D.C., entered an appearance for this intervenor.
Norman P. Leventhal, Meredith S. Senter, Jr., and Barbara K. Kline, Washington, D.C., were on brief for Spanish Inter. Communications Corp. et al., intervenors in No. 83-2050.
Stephen R. Effros was on brief for Community Antenna Television Ass’n, Inc., intervenor in No. 83-2050.
Debra Lee Carter, Washington, D.C., was on brief for Black Entertainment Television, intervenor in No. 83-2050. Steven Reed, Washington, D.C., entered an appearance for this intervenor.
Brenda L. Fox, Carol A. Melton, Robert St. John Roper, and Michael S. Schooler, Washington, D.C., were on brief for Nat. Cable Television Ass’n, Inc., intervenor in No. 83-2050.
Baryn S. Futa and Susan Dillon, Washington, D.C., were on brief for Corp. for Public Broadcasting and Nat. Ass’n of Public Television Stations, intervenors in No. 83-2050.
Edward W. Hummers, Jr., David G. Rozzelle, and Robert A. DePont, Washington, D.C., entered appearances for King Broadcasting Co., intervenor in Nos. 83-1283 and 83-2050.
Lawrence A. Horn, Nancy H. Hendry, Eric H. Smith, and Lewis J. Paper, Washington, D.C., were on brief for Corp. for Public Broadcasting et al., amici curiae in No. 83-1283, urging affirmance. Robert S. Blacher entered an appearance for these amici.
Daniel J. Popeo and Michael P. McDonald, Washington, D.C., were on brief for American Legal Foundation, amicus curiae in No. 83-2050, urging reversal.
Before WRIGHT, GINSBURG and BORK, Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Circuit Judge.
FCC regulations require cable television operators, upon request and without compensation, to transmit to their subscribers every over-the-air television broadcast signal that is “significantly viewed in the community” or otherwise considered local under the Commission’s rules. 47 C.F.R. §§ 76.57-76.61 (1984). Alleging that these mandatory carriage or “must-carry” rules violate the First Amendment rights of cable programmers, cable operators, and the viewing public, Turner Broadcasting Systems, Inc. (TBS), the owner of a variety of cable services, petitioned the FCC to institute rulemaking procedures to delete the offending regulations. Although acknowledging that the challenged rules deprive cable programmers of access to some audiences and “compel carriage of broadcast signals in place of alternate programming that subscribers, if given a choice, might otherwise choose,” the Commission denied TBS’s petition. Memorandum Opinion and Order, FCC 84-136, April 6, 1984 (hereinafter Opinion and Order), at 3, Joint Appendix to No. 83-2050 {Turner JA) at 3. TBS now petitions for review of that denial. In a separate action, Quincy Cable Television, Inc. (Quincy), the operator of a cable system in Quincy, Washington, petitions for review of an FCC order requiring it to carry the signals of several local broadcast stations and imposing a $5,000 “forfeiture” for its failure to do so.
In the course of reviewing those petitions, we have concluded and now hold that the must-carry rules are fundamentally at odds with the First Amendment and, as currently drafted, can no longer be permitted to stand.
I. Background
The Supreme Court has repeatedly stressed that “[e]ach medium of expression * * * must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975). See also Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 501, 101 S.Ct. 2882, 2889, 69 L.Ed.2d 800 (1981) (plurality opinion). Mindful that in applying the broad principles of the First Amendment to new media we must remain sensitive to the “differing natures, values, abuses and dangers” of each method of expression, Kovacs v. Cooper, 336 U.S. 77, 97, 69 S.Ct. 448, 459, 93 L.Ed. 513 (1949) (Jackson, J., concurring), we examine in detail the nature of cable television technology, the history and purposes of the FCC’s regulation of that technology, and prior judicial assessments of the constitutionality of that regulation.
A. Cable Television Regulation and the Origins and Purposes of the Must-Carry Rules
1.
Cable television and ordinary commercial broadcast television operate on the basis of wholly different technical and entrepreneurial principles. See generally Capital Cities Cable, Inc. v. Crisp, — U.S. -, 104 S.Ct. 2694, 2701, 81 L.Ed.2d 580 (1984). Conventional broadcasters radiate electromagnetic waves from a transmitting antenna. The waves are intercepted by the viewer’s television receiver, typically via a rooftop antenna, and decoded to produce a video image. Broadcasters derive their revenues not by selling the signal to the viewer but by selling time to advertisers. As a general rule, the larger the audience the greater the rate the broadcaster can charge.
In contrast, cable operators charge subscribers a fee for the right to view programming from a variety of broadcast and non-broadcast sources.' Although cable systems frequently have the capacity to originate programming, most of their viewing fare consists of retransmission of signals generated by independent entities. Typically, the system offers local over-the-air broadcast signals captured by a strategically located master antenna, distant broadcast signals, which are often imported via satellite, and non-broadcast signals transmitted exclusively to cable systems by satellite or microwave relay. The cable operator converts the signal received from these or other sources into an electronic impulse and delivers it to subscribers’ homes over a coaxial cable. Because the cable signal reaches the home by wire and not via the physically limited electromagnetic spectrum, cable systems have the potential, often unrealized, to transmit many more signals than the airwaves can support. Some new or recently upgraded systems have the capacity to offer more than 100 channels. More currently operational systems, however, can carry far fewer, typically from 12 to 36.
Although initially reluctant to exercise jurisdiction over cable, by the mid-1960’s the FCC had changed its position and undertook comprehensive regulation of the budding industry. See generally United States v. Southwestern Cable Co., 392 U.S. 157, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968) (canvassing early history of FCC regulation of cable); D. Le Due, Cable Television and the FCC (1973). Fully recognizing that the statutory basis for its jurisdiction was far from explicit, the Commission nonetheless believed that oversight was imperative lest the “explosive” growth of the cable industry undermine the regulatory framework already established for ordinary broadcast television. Rules re Microwave-Served CATV, First Report and Order in Docket No. 14895, 38 FCC 683, 685, 697-716 (1965) (First Report and Order)] CATV, Second Report and Order in Docket No. 14895, 2 FCC2d 725 (1966) {Second Report and Order).
The Commission’s objective was not merely to protect an established industry from the encroachment of an upstart young competitor, although such a result was clearly the byproduct of the regulatory posture that developed. Rather, the Commission took the position that without the power to regulate cable it could not discharge its statutory obligation to provide for “fair, efficient, and equitable” distribution of service among “the several States and communities.” 47 U.S.C. § 307(b) (1982). See First Report and Order, 38 FCC at 699; Second Report and Order, 2 FCC2d at 734-737. If permitted to grow unfettered, the Commission feared, cable might well supplant ordinary broadcast television. A necessary consequence of such displacement would be to undermine the FCC’s mandate to allocate the broadcast spectrum in a manner that best served the public interest. In particular, if an unregulated, unlicensed cable industry were to threaten the economic viability of broadcast television, the Commission would be powerless to effect what it saw (and continues to see) as one of its cardinal objectives: the development of a “system of [free] local broadcasting stations, such that ‘all communities of appreciable size [will] have at least one television station as an outlet for local self-expression.’ ” United States v. Southwestern Cable Co., supra, 392 U.S. at 174, 88 S.Ct. at 2003, quoting H.R.Rep. No. 87-1559, 87th Cong., 2d Sess. 3 (1962).
2.
Almost from the beginning, the must-carry rules were a centerpiece of the FCC’s efforts to actively oversee the growth of cable television. Then, as now, the applicability of the rules varied according to such factors as the quality of the broadcast signal available in the community. In general, however, the rules required cable operators, upon request, to carry any broadcast signal considered local under the Commission’s complex formula. Affected parties could petition for a waiver from their must-carry obligations, but the rules themselves drew few lines. They required carriage of every local or significantly viewed signal irrespective of the number of must-carry channels already being transmitted, the degree of programming duplication, or the channel capacity of a cable system.
Although the economic analysis initially advanced in support of the must-carry rules was somewhat complicated, the Commission’s general objective was straightforward: to assure that the advent of cable technology not undermine the financial viability of free, community-oriented television. If cable were to “drive out television broadcasting service,” the Commission reasoned, “the public as a whole would lose far more — in free service, in service to outlying areas, and in local service with local control and selection of programs— than it would gain.” First Report and Order, 38 FCC at 700. The must-carry rules, together with a comprehensive body of related regulations, would channel the development of the nascent cable industry to limit the risks it might pose to conventional broadcasting, “society’s chosen instrument for the provision of video services.” Inquiry Into the Economic Relationship Between Broadcasting and Cable Television, 71 FCC2d 632, 644 (1979) (Economic Inquiry Report).
At the time of the initial promulgation of the rules, the Commission acknowledged that it had insufficient data to “predict with reliability” the extent of the risk posed by cable. First Report and Order, 38 FCC at 711. See also Second Report and Order, 2 FCC2d at 744-745. But the economic analysis posited by the broadcasting industry (and now espoused by the Commission) painted a dire picture. First Report and Order, 38 FCC at 689. The profitability of local commercial television is dependent on advertising revenues, which in turn are dependent on the number of viewers in the audience. Self-evidently,' an advertiser will pay less per unit of air time as viewership decreases. If a significant percentage of viewers subscribe to cable and if subscribers view cable to the exclusion of broadcast television, the audience will become fragmented. “A gain of a subscriber to the [cable] system will in most cases mean the effective loss of a potential viewer for the local station.” Id. at 703. With access to a smaller (often less affluent) market, advertisers will pay less for air time and profits will decline, a consequence that both discourages others from seeking a broadcast license and, in the extreme case, might even result in financial failure of some existing stations. Only if local broadcasters were assured access to the whole of their allocated audience, the FCC believed, could the risk of audience fragmentation and the concomitant threat to free, local television be forestalled.
A central premise of this analysis was that a significant proportion of cable subscribers would cease to view local television unless such signals were carried by the cable system. At first blush, as the cable industry vigorously pointed out, this assumption was somewhat counter-intuitive. Almost without exception, the must-carry rules only mandate carriage of signals that can already be picked up off the air. Although the cable attaches to the television set through the VHF outlet, an inexpensive switch (the “A/B switch”) would enable a viewer to alternate between cable and off-air VHF signals. Indeed, connection of the cable typically has no direct effect at all on receipt of UHF signals. Thus, in principle, a cable subscriber with little or no effort could still view local broadcasts even without the benefit of the must-carry rules. If that were the case, cable’s gain would not necessarily mean broadcast television’s loss, and the Commission’s reasoning would be deprived of its major premise.
But, as the FCC pointed out when it first enacted the rules, the technical availability of off-air signals does not necessarily defeat the assumption that without the must-carry rules a significant number of cable subscribers might curtail their viewing of local broadcast television. Even so minor a task as flicking an A/B switch, the Commission suggested, “is an obvious deterrent to its use.” First Report and Order, 38 FCC at 702. Moreover, with or without a switch local signals are available to the subscriber only if the antenna remains attached. Yet, the Commission observed, one of the main selling points of cable is the prospect of dispensing with unsightly or expensive antennas. Id. at 702 n. 25. Finally, even if the antenna remains in place, cable retransmission of UHF signals usually provides a far clearer picture than is available off-air. Thus, the Commission suggested, without the benefit of must-carry UHF stations would be at a significant competitive disadvantage. Economic Inquiry Report, 71 FCC2d at 713; see also Cable Television Program Syndicated Exclusivity Rules, 79 FCC2d 663, 718 (1980) (Syndicated Exclusivity Rules.)
In sum, at the time of their original promulgation the Commission viewed the must-carry rules as critical stones in the regulatory bulwark erected to guard against destruction of free, community-oriented television. By forcing cable systems to carry local and significantly viewed broadcast signals, the Commission sought to channel the growth of cable in a manner consistent with the public’s interest in the preservation of local broadcasting.
3.
When it first promulgated the must-carry rules in the mid-1960’s, the Commission recognized that it could not prove the factual predicates of its analysis. Although frankly relying on its “collective instinct” and “intuition,” Inquiry Into Economic Relationship Between Television Broadcasting and Cable Television, 65 FCC2d 9, 14 (1977) (Notice of Inquiry), it concluded that it would be inconsistent with its responsibilities to “withhold[] action until indisputable proof of irreparable damage to the public interest in television broadcasting has been compiled — i.e., by waiting ‘until the bodies pile up’ before conceding that the problem exists.” First Report and Order, 38 FCC at 701.
In the ensuing years the Commission has repeatedly repromulgated and fine-tuned the must-carry rules. See Commission Proposals for Regulation of Cable Television, 31 FCC2d 115, 118-120 (1971); Cable Television Report and Order, 36 FCC2d 143, 173-176 (1972). It has, however, never reconsidered or seriously questioned the elaborate and concededly speculative premises on which its economic defense of the rules rests.
This approach is in sharp contrast to the Commission’s treatment of several other components of the regulatory framework imposed in the early years of its regulation of cable television. After conducting a comprehensive economic analysis based on a detailed and highly sophisticated examination of a number of discrete television markets, the Commission eliminated the distant-signal-carriage and syndicated-exclusivity rules. Like the must-carry rules, the deleted regulations were originally promulgated to protect broadcast television from competition from the expanding cable industry. See Economic Inquiry Report; Syndicated Exclusivity Rules (deleting'syndicated-exclusivity and distant-signal rules).
In the context of this wide-ranging deregulatory effort, the Commission acknowledged a radical shift in its perception of the role of cable in the array of viewing options available in a given community. Abandoning its initial view of cable as an auxiliary service that merely supplemented broadcasting by improving reception in outlying areas, the Commission now recognized cable as a legitimate, independent vehicle for providing alternative video services to the public. Economic Inquiry Report, 71 FCC2d at 645-646. With respect to the specific question of the continued value of the distant-signal and syndicated-exclusivity rules, the Commission found that its general economic analysis had failed to substantiate the intuitive fears on which the rules had been premised since the mid-1960’s.
Upon examination of the economic evidence, we conclude that competition from cable television does not pose a significant threat to conventional television or to our overall broadcasting policies. * * [Ajudience losses attributable to increased competition from cable television take place in a context of offsetting factors. Increases in population and in the level of economic activity result in a fairly steady growth in the demand for advertising exposures and in station revenues. Thus, the ability of stations to maintain existing levels of service to their communities is likely to be unimpaired in the absence of our distant signal carriage rules.
Id. at 661. Stating that the comprehensive nature of its analysis enabled it to speak “with a clarity[] which is uncommon in matters of public policy,” the Commission found that “continued regulatory intervention is not merely unnecessary, it is counterproductive.” Id. at 659.
B. Prior Constitutional Challenges to Cable Regulations
On several occasions the Supreme Court has addressed questions concerning the breadth of the FCC’s jurisdiction over cable television. See United States v. Southwestern Cable Co., supra, 392 U.S. at 178, 88 S.Ct. at 2005 (generally approving FCC jurisdiction over cable if “reasonably ancillary” to its regulation of broadcast television); United States v. Midwest Video Corp., 406 U.S. 649, 92 S.Ct. 1860, 32 L.Ed.2d 390 (1972) (Midwest I) (finding rule requiring cable operators to originate local programming within FCC’s jurisdiction); FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979) (Midwest II) (striking down as beyond the FCC’s jurisdiction rules requiring cable operators to make channels available for local access). See also Capital Cities Cable, Inc. v. Crisp, supra, — U.S. -, 104 S.Ct. 2694, 81 L.Ed.2d 580 (discussing federal preemption of state laws regulating cable). However, in marked contrast to the extensive First Amendment jurisprudence developed in the context of the broadcast media, see, e.g., FCC v. League of Women Voters of California, — U.S. -, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Court has never confronted a challenge to the constitutional validity of the must-carry rules or any other regulation affecting cable television.
In the lower federal courts questions concerning the constitutionality of various cable regulations arose almost from the first moment the Commission asserted its regulatory jurisdiction over the industry. The initial challenges, which were brought when cable was in its infancy and apocalyptic visions of its impact were common, met with little success. See, e.g., Titusville Cable TV, Inc. v. United States, 404 F.2d 1187 (3d Cir.1968); Black Hills Video Corp. v. FCC, 399 F.2d 65, 69 (8th Cir.1968); Buckeye Cablevision, Inc. v. FCC, 387 F.2d 220 (D.C.Cir.1967); Carter Mountain Transmission Corp. v. FCC, 321 F.2d 359 (D.C.Cir.), cert. denied, 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963).
These decisions took one of two paths to dispose of the cable operators’ First Amendment contentions, often in a single brief paragraph. The most common approach was simply to treat cable and broadcast television as indistinguishable for purposes of First Amendment analysis. Because it was well established that broadcast media could be subject to regulation far more intrusive than the First Amendment would tolerate in other contexts, it naturally followed for these courts that cable regulation, a variant on the same theme, should be subject to no more exacting scrutiny. See, e.g., Black Hills Video Corp. v. FCC, supra, 399 F.2d at 69 (“[i]t is irrelevant * * * that [cable] systems do not themselves use the airwaves”). Other courts undertook a somewhat more discriminating analysis. They upheld the regulations only after concluding that the restraint on speech was no greater than was reasonably required to serve the important interest of preserving local broadcasting. Buckeye Cablevision, Inc. v. FCC, supra, 387 F.2d at 225.
In recent years the lower federal courts have subjected FCC regulation of cable television to a far more rigorous constitutional analysis. It is now clearly established, for example, that cable operators engage in conduct protected by the First Amendment. See, e.g., Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1336 (D.C.Cir.1985); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1052-1057 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Most of these courts, mindful of the Supreme Court’s repeated admonitions to be sensitive to the unique features of each medium of expression, have cautioned against reflexive invocation of the more forgiving First Amendment standards applicable to broadcast regulations. See, e.g., Preferred Communications, Inc. v. City of Los Angeles, supra, 754 F.2d at 1403; Home Box Office, Inc. v. FCC, 567 F.2d 9, 44-45 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). Indeed, in Home Box Office this court noted that earlier cases that had considered the intersection of the First Amendment and cable television regulations had incorrectly relied on Supreme Court precedent developed in the context of regulation of the broadcast media. Of particular note, the court “rejected” by name the reasoning of the Eighth Circuit in Black Hills Video Corp. v. FCC, supra, the only court to have explicitly considered the constitutionality of the must-carry rules. 567 F.2d at 45 n. 80.
At issue in Home Box Office were a number of FCC regulations limiting the programming fare a cablecaster could offer its subscribers. The Commission defended the rules by suggesting that they were necessary to assure that the various forms of pay television, including cable, not degrade the quality of programming on conventional broadcast television. As in the present controversy, the Commission suggested that the competitive injury to broadcasters would be felt most acutely by those who could not afford the more expensive video services.
The court rejected the FCC’s argument and sustained the First Amendment challenge. Concluding that the regulation should be treated as an incidental burden on speech, the court applied the test announced by the Supreme Court in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Thus the regulations would be valid only if they served a substantial governmental interest and were no more intrusive than necessary to serve that interest. 567 F.2d at 48.
Measured against this standard, the court found the regulations wanting. They failed the first component of the test because the FCC had “not put itself in a position to know” whether its fears about the effect of cable television on local broadcasting were “real or merely * * * fanciful.” Id. at 50. The regulations failed to clear the second O’Brien hurdle because they were “grossly overbroad,” indiscriminately limiting the programming of cable systems whether or not the limits in fact served to protect the interests the rules purported to serve. Id. at 51.
In sum, the Supreme Court has never addressed the constitutional validity of the must-carry rules or of any of the analogous FCC regulations affecting cable television. To the extent the Court has considered the issue at all, it has described the question as “not frivolous.” Midwest II, 440 U.S. at 709 n. 19, 99 S.Ct. at 1446 n. 19. In the lower federal courts the initial trend was to sustain the regulations against First Amendment and due process challenges. In recent years, however, the courts have subjected governmental regulation of cable to far more exacting constitutional scrutiny. The 1977 decision in Home Box Office suggested that FCC regulation of cable could withstand analysis under the First Amendment only if the Commission proved that the regulation burdened speech only incidentally, served an important governmental interest, and was no broader than necessary to further that interest.
C. The TBS and Quincy Petitions
1. TBS. In 1980 TBS petitioned the FCC to institute rulemaking to consider deleting the must-carry rules. Petition For Rulemaking To Delete The Cable “Must Carry” Rules, October 15, 1980, Turner JA at 5-17. In support of its petition TBS argued that the regulatory environment had changed substantially since the original promulgation of the rules and that the factual premises and economic assumptions on which the rules were premised had long since been disproved or abandoned. Id. at 6-11. In addition, it suggested that the must carry-rules could not survive the constitutional test set out in Home Box Office. Id. at 11-16.
TBS’s economic grievance was straightforward. As a cable programmer, TBS is in the business of selling a package of programming to the independent cable operators, who actually deliver the cable signal in the communities they are franchised to serve. If, because of the must-carry rules, a significant number of a cable operator’s channels are occupied by the signals of local broadcasters, programmers will face artificially stiff competition for the limited number of channels that remain available for non-mandatory transmissions. If the cable system is “saturated” with must-carry signals, a phenomenon recognized by the Commission, the rules operate to deprive programmers of any opportunity at all to sell their services.
The TBS petition fell into something of a black hole. Although extensive comments were filed by interested members of the broadcast and cable industry, the FCC took no action. On March 21, 1983 TBS filed a Petition for Expedited Consideration, Turner JA at 43, again contending that the First Amendment as well as general principles of administrative law required reevaluation of the rules. When that petition too elicited no response, TBS sought review in this court, requesting that we compel the Commission to institute rulemaking or, at least, respond to its petition. Just before its brief was due the Commission moved the court to remand the record so that it could act on the TBS petition. On March 23, 1984 that motion was granted.
Two weeks later the Commission issued a three-page memorandum order in which it formally denied the petition for rulemaking. Opinion and Order, Turner JA at 1-4. Its First Amendment analysis was limited to a single, unadorned citation to the Eighth Circuit’s decision in Black Hills Video Corp. v. FCC, supra. The Commission acknowledged that the rules were “intended to compel carriage of broadcast signals in place of alternate programming that subscribers, if given their choice, might otherwise choose” and that the rules place cable programmers “on an unequal footing” because they “take[] cable channels out of the marketplace where nonbroadeast program originators might otherwise have been able to negotiate for their use.” Turner JA at 3. Nonetheless, it concluded that TBS had failed to demonstrate that the countervailing interest of protecting local television had ceased to justify continuation of the rules. Believing that rulemaking would be premature until “a more complete factual base,” id., were developed, the Commission denied TBS’s petition.
TBS now petitions for review of that denial, requesting, in the alternative, that we set aside the rule as unconstitutional or compel the Commission to institute rule-making to reconsider the rules.
2. Quincy. Quincy operates a cable television system in Quincy, Washington, a small town approximately 125 miles equidistant from Seattle and Spokane. At the origin of this proceeding Quincy had a 12-channel capacity, and all 12 channels were in use. Exercising its editorial and commercial discretion, Quincy had elected to provide its subscribers with a channel that originated on the cable system itself, the signals of the three network affiliates in Seattle, the largely duplicative signals of the three network affiliates in Spokane, a Spokane-based public broadcasting station, and four other channels offering a wide variety of public affairs and entertainment programming. Of the 12 channels, only the four Spokane stations could be received without the benefit of cable.
In 1979, after conducting a survey, Quincy came to believe that its subscribers would prefer to view three specialized cable programmers, including a 24-hour news service, instead of the three commercial Spokane stations. Although the three Spokane stations had not yet formally requested carriage (thus triggering Quincy’s “must-carry” obligation), Quincy recognized that such a request would almost certainly follow the announcement of its intention to delete the three signals from its system. Accordingly, Quincy wrote the Commission and, in effect, petitioned for a partial waiver from the force of the rules. Letter from Quincy Cable TV, Inc. to Willard Nichols, Chief of FCC Cable Television Bureau, November 19, 1979, Quincy JA at 37.
In April 1980 the Cable Television Bureau of the FCC denied Quincy’s waiver request. Letter from Willard Nichols, Chief of Cable Television Bureau, to Quincy Cable TV, Inc., April 28, 1980, Quincy JA at 1. Technically not under the compulsion of the must-carry rules until the Spokane stations requested carriage, Quincy deleted two of the stations from its system. It then began a long series of administrative appeals of the waiver denial. At every stage Quincy advanced, and the Bureau rejected, the argument that the must-carry rules violated the First Amendment to the Constitution. When Quincy continued to refuse carriage of the Spokane stations even after two of them formally requested carriage, the full Commission upheld the denial of the waiver and imposed a $5,000 “forfeiture.” Quincy Cable TV, Inc., 89 FCC2d 1128 (1982). Although Quincy did at that point reinstate the two Spokane stations, it continued to press its claim before the Commission. When the full Commission again upheld the imposition of the forfeiture, Quincy petitioned this court for review.
On the eve of oral argument the court learned of factual developments occurring during the pendency of the petition and remanded the
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:
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songer_genresp2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
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.
W. C. WOOD and Altamae Wood, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 17651.
United States Court of Appeals Fifth Circuit.
April 11, 1960.
Robert J. Hobby, Wentworth, T. Durant, Dallas, Tex., for appellant.
Charles K. Rice, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Arch M. Cantrall, Chief Counsel, I.R.S., Washington, D. C., John M. Morawski, Sp. Atty., I.R.S., Washington, D. C., Lee A. Jackson, Robert N. Anderson, Melva M. Graney, Attys., Dept, of Justice, Washington, D. C., Howard A. Hefi'ron, Acting Asst. Atty. Gen., Davis W. Morton, Jr., Atty., Department of Justice, Washington, D. C., for appellee.
Before HUTCHESON, JONES and WISDOM, Circuit Judges.
JONES, Circuit Judge.
The petitioners seek review of a decision of the Tax Court holding the proceeds of certain real estate sold during the years 1948 through 1953 to be taxable as ordinary income rather than as capital gains. This decision followed a determination that the sales involved were of property held primarily for sale to customers in the ordinary course of petitioner’s trade or business. Petitioners attack this determination and contend that the proceeds should be treated as capital gains under sections 117(a) and (j) of the Internal Revenue Code of 1939. 26 U.S.C.A. (I.R.C.1939) § 117. Mrs. Wood is a party because of the filing of a joint income tax return with hei husband. The record shows that she took no part in the transactions and therefore by any reference to the taxpayer we shall mean Mr. Wood.
The taxpayer is a resident of Lubbock, Texas. Early in 1945, after being in the printing business for twenty years, his doctors advised him to get out of business for reasons of health. This he did promptly, selling his business and his residence. He and his wife moved to a hotel. Wood had been active in religious pursuits for many years and, upon selling his business, he announced it to be his intention to devote the rest of his life to religious endeavors. He invested the proceeds from the sale of his business in Government bonds. In October of 1945, he was telling one of his long-time friends, an investment counsellor, of the sale of his business and the investment of the proceeds. The friend suggested that Government bonds afforded no protection against inflation and recommended that at least a part of his investment should be in common stocks or real estate. Following the suggestion of his friend, Wood decided to take his money out of the Governments and invest it in real estate strategically located on the outskirts of Lubbock. In a letter to his bookkeeper, Wood declared his intention to hold these properties and derive income from them during his life and leave them to his wife. Like statements were made to others. About this time Wood rented an office on the door of which was the caption “William C. Wood, Investments.” His telephone listing was under “Listed Investments.” He was not licensed as a real estate broker and did not act for others in real estate transactions unless his activity with respect to the Wood-lawn subdivision, which is hereafter discussed, could be so designated.
Wood’s first venture into real estate ownership was the purchase in November of 1945, of the so-called Merrill tract. The purchase price was $40,000, of which half was paid in cash and the balance was represented by promissory notes. This land was on the outskirts of Lubbock. Railroad trackage ran along the length of the property. The tract had been platted and the lots had been listed for sale with several real estate brokers by those from whom the taxpayer bought it. The taxpayer removed an old building and did other clearing. He arranged for additional trackage. He cancelled the listings of the lots in the tract which had been made by his predecessors in title. Wood had the land replatted into odd-shaped lots of different sizes with each lot having railway trackage. These things being done, the taxpayer was ready to enter into long-term leases of the several lots to tenants needing sites for industrial purposes.
Of a similar character was the so-called Nelson-Brown Addition. This too was a subdivision in a section of Lubbock suitable for industrial development. By three separate purchases, in April, 1947, January, 1950, and October, 1951, Wood acquired most of the subdivision. At his own expense, Wood arranged for railroad trackage to be brought into the property, As in the ease of the Merrill tract the taxpayer did not acquire the Nelson-Brown land for the purpose of selling it. He intended to make long-term leases and, to this end, he asked Cox and Murfee to find tenants.
The efforts made to make leases on the land in the two tracts were quite extensive and intensive. A brochure was prepared to show the attractive features of the properties as industrial sites, in which it was asserted that attractive leases could be arranged. The brochure stated, “Properties Shown are Not for Sale.” The brochure was widely distributed. Interest was developed by the brochures and otherwise. One lease was made. It contained an option to purchase which was subsequently exercised. Most of those who were interested were unwilling to make leases, usually because of the necessity of having fee ownership in order to finance the construction of improvements. Wood was unwilling to erect any improvements on the property, because he could have done so only with borrowed capital, and it was his desire to leave the property to his wife without encumbrance. When some of the interested prospects were unwilling to enter into leases but offered to buy sites, these offers were submitted by Cox or Murfee to Wood and, from time to time sales were made. During the years involved in this proceeding seven sales were made of land in the Merrill tract; two in 1949, two in 1950, and three in 1951. No sales were made in 1948, 1952 or 1953. Sales of land in the Nelson-Brown tract followed pretty much the same pattern. Two sales were made in each of the years 1949, 1950, 1951 and 1953; none in 1948 or 1952. During the period the activity was directed toward not making sales but to the making of leases. As the Tax Court pointed out in its opinion:
“Wood believed that he could lease Nelson-Brown and Merrill as industrial properties when he made his original investments in those properties. He attempted to promote the city of Lubbock, through Chamber of Commerce activities. He was made president of the local chamber in 1950 and also worked for four years in a special group of the chamber designed to promote the city. He believed that the Chamber of Commerce could attract firms to Lubbock that would lease properties.”
Although Cox became convinced that the likelihood of obtaining lessees in substantial numbers was remote, he was unable to convince Wood that this was so. Throughout all of the tax years and to and at the time of the trial before the Tax Court Wood believed that these properties could be leased for industrial purposes. The Tax Court concluded that while these properties were offered for lease, and not for sale, the taxpayer was willing to have them sold, and the properties were for sale in fact. The gains made on the sales from these two tracts were determined to be ordinary income.
Early in 1946 Wood bought an 80-acre tract just west of the Lubbock city limits. This land was then planted in cotton but Wood believed that eventually it would be good property. Wood promised Murfee the exclusive selling rights if the property was put on the market. Prior to this purchase the taxpayer had agreed to sell each of four friends ten acres in the east half of the tract purchased. He agreed with his friends that he would not market his land until theirs had been sold. With one of them, T. E. Buckner, the taxpayer agreed to repurchase any part of his parcel remaining unsold at any time. His associates desired to sell their lands as soon as possible and, upon their insistence, Wood agreed to the subdividing, platting and dedication of the entire eighty acres. The subdivision was called Woodlawn. The lots of the others moved slowly, due in part to the absence of utilities. In August of 1946 Buckner, with about three-fourths of his ten acres unsold, called upon Wood to repurchase it. To effect this repurchase Wood was required to borrow from his bank.
In February of 1947 the taxpayer was informed that the Lubbock School District would put a school on the west side of Woodlawn. He sold the school district seven and a half acres. Water, sewer and electric lines were then extended throughout Woodlawn.
Needing funds to repay the bank the money borrowed for the repurchase of the Buckner lots, Wood authorized Murfee to sell these lots and they were disposed of before the last of August, 1947. The lots of the others in the east half of the subdivision had been sold and there was a demand for those of the taxpayer. Without the knowledge of Wood, his lots in Woodlawn were advertised for sale by Murfee. Although he did not personally participate in any sales activity, the taxpayer realized that the subdivision had reached the near maximum of its development potential and he acquiesced, without objection, in the sales arranged by Murfee and did what was required of him in the closing of sales. In the last half of 1947 there were 19 sales of Woodlawn lots, in 1948 there were 47 such sales, in 1949 eight sales were effected, and in the first half of 1950 seven sales exhausted the taxpayer’s Woodlawn property. Such of these lots as were sold during the tax years of 1948 through 1950 were found, by the Tax Court to have been held primarily for sale to customers in the ordinary course of the taxpayer’s trade or business.
The taxpayer contends that both the industrial and residential properties were capital assets, and the profits from the sales of these properties were capital gains, subject to federal income taxation as such rather than as ordinary income as held by the Tax Court.
This Court, on former occasions, has considered and discussed all of the questions presented here. See, e. g., Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217; Goldberg v. Commissioner, 5 Cir., 1955, 223 F.2d 709; Smith v. Dunn, 5 Cir., 1955, 224 F.2d 353; Ross v. Commissioner, 5 Cir., 1955, 227 F.2d 265; Consolidated Naval Stores Co. v. Fahs, 5 Cir., 1955, 227 F.2d 923; Smith v. Commissioner, 5 Cir., 1956, 232 F.2d 142; Barrios’ Estate v. Commissioner, 5 Cir., 1959, 265 F.2d 517. Repetition would serve no useful purpose. We therefore consider this case in the light of the established tests and, in so doing, we find ourselves in agreement with the conclusion of the Tax Court with respect to the residential or Woodlawn tract. The Tax Court did not separately consider the residential and the industrial property. We think it is necessary to do so.
The residential tract, or that portion of it retained or reacquired by the taxpayer, was purchased for the purpose of ultimate resale after an enhancement in value. That enhancement was fully realized soon after, the school was erected in the subdivison. Wood financed and supervised the platting and subdividing of the tract. He acquiesced in the sales promotion and advertising by the agent. Over the period of thirty-five months, eighty-one sales were made with the result that all of the taxpayer’s lots in Woodlawn were disposed of. We are aware of the decisions holding that various factors here present did not require a determination that property was held primarily for sale to customers in the ordinary course of trade or business. But each case must be decided on its own peculiar facts. Smith v. Dunn, supra. Specific factors, or combinations of them are not necessarily controlling. Smith v. Commissioner, supra. The Tax Court’s holding as to the Woodlawn property is correct and is affirmed.
There was a very considerable difference in the taxpayer’s purposes and activity with respect to the industrial Merrill and Nelson-Brown properties on the one hand, and the residential Wood-lawn development on the other. These differences, we think, require a different treatment, for tax purposes, of the profits resulting from sales. The Tax Court reached the conclusion that, “The industrial lots were not held for leasing in the ordinary course of business and do not qualify as property within the ambit of Section 117(j), and we do not understand the petitioner to contend otherwise.” The contrary is vigorously asserted and we think is maintained. We do not think there is substantial evidence to support the Tax Court’s finding. The industrial sites were purchased for leasing and there was never any departure or deviation from this intention as the primary purpose. Sales were made to get funds to make payments on the property, and sales were made of some lots in order that the remainder might be made attractive to prospective tenants. These sales were in furtherance of Wood’s primary purpose of leasing these tracts. It may be that this purpose was difficult, or perhaps impossible, of accomplishment, but nevertheless it was a purpose in which Wood was sincere and steadfast. It is our decision that he was entitled to capital gains treatment on the profits realized from the sales of the industrial sites.
It will not be questioned that a property owner may hold some of it for sale to customers in the ordinary course of business and hold the remainder as capital assets. See Foran v. Commissioner, 5 Cir., 1948, 165 F.2d 705; Wood v. Commissioner, 5 Cir., 1952, 197 F.2d 859.
The decision of the Tax Court is affirmed in part and reversed in part, and the case is remanded for further proceedings in accordance with this opinion,
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_casetyp1_7-2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
TEXTILE BANKING COMPANY, Inc., Appellant and Cross-Appellee, v. H. E. WIDENER, Jr., Trustee of Lincoln Industries, Incorporated, Bankrupt, Appellee and Cross-Appellant.
No. 7783.
United States Court of Appeals Fourth Circuit.
Argued Jan. 21, 1959.
Decided March 12, 1959.
Rehearing Denied May 12, 1959.
John Miles Keefe, New York City (Penn, Stuart & Phillips, Abingdon, Va., on brief), for appellant and cross-appellee.
H. E. Widener, Jr., Bristol, Va., for appellee and cross-appellant.
Before HAYNSWORTH, Circuit Judge, and PAUL and BOREMAN, District Judges.
PAUL, District Judge.
This case involves the distribution of some of the assets of Lincoln Industries, Inc., Bankrupt, as determined by an order of the District Court entered September 4, 1958. The bankrupt was a manufacturer of furniture and will be referred to as the bankrupt or as Lincoln. We have before us cross-appeals; one by a creditor, Textile Banking Company, Inc. (hereinafter referred to as Textile) and one by H. E. Widener, Jr., Trustee in Bankruptcy (hereinafter referred to as Trustee).
Textile is a New York corporation engaged in the business of buying accounts receivable and making loans. Also involved is a concern named Cordell Industries, Inc. (hereinafter called Cordell) which was an affiliate of the bankrupt. The relation among these parties is described by the District Court as follows [166 F.Supp. 248]:
“Textile is in the business of loaning money and discounting invoices, whereby, for a consideration, it assumes the seller’s credit risk. Textile had such an arrangement with the Bankrupt, but before any of Bankrupt’s invoices were discounted Textile required the Bankrupt to enter into a factoring agreement * * * whereby Textile would have a factor’s lien on all of Bankrupt’s inventory and accounts receivable. Textile further required Cordell (Bankrupt’s affiliate) to guarantee the payment of all of Bankrupt’s invoices discounted by Textile. Textile also discounted other invoices for Cordell. Textile required Cordell to keep a substantial balance on deposit with Textile as security for the payment of the invoices discounted by it.
“On July 25, 1957, Cordell had $30,000.00 in its ‘guaranty account’ with Textile. It appears that Cor-dell is also indebted to the Bankrupt.”
Among the numerous debts owing by Lincoln at the time it was adjudicated a bankrupt the only ones which are of concern in these appeals are the following:
(1) A debt owing to Textile, later fixed in the amount of $72,000, which was secured by a lien on bankrupt’s inventory and payment of which had been guaranteed by Cordell, (2) A debt owing to the Reconstruction Finance Corporation, determined to be in the aggregate sum of $238,437.93 and secured by a deed of trust on all of the Bankrupt’s land, plant and machinery, and (3) Unpaid labor claims aggregating $7,591.65, which, under the statutory law of Virginia, were prior liens on all property of the bankrupt.
In the course of the bankruptcy proceeding both the R.F.C. and Textile petitioned the Referee that they be allowed to foreclose their respective liens. These requests were denied and it was ordered, over the objections of these creditors, that sales be made by the Trustee in Bankruptcy free of liens, with the liens transferred to the funds realized from the sales. As a result of this sale the property on which the R.F.C. had a lien brought an amount which, after paying the R.F.C. lien in full, left a surplus of $143,965.60. The property covered by Textile’s lien was sold for $62,737.50. From this there was deducted $3,775.92 for expenses stated to be “incident to the protection of the furniture pending the sale, the advertising costs and other miscellaneous expenses incident to the sale * * * Thus the amount realized for Textile under its lien was $58,-'961.58. From this sum the Court directed the deduction of a further amount of $1,600 as costs, leaving a net balance of $57,361.58 which the Court ordered applied on the $72,000 debt owing to Textile.
At the time that the property covered by Textile’s lien was sold it had in hand $30,000 deposited with it by Cordell pursuant to the latter’s obligation to secure the payment of bankrupt’s indebtedness to Textile. Following the sale of the property covered by its lien Textile applied this $30,000 on the bankrupt’s debt to it.
Questions Involved
In its appeal Textile submits the following questions for our determination:
“(a) Did the District Court err in ordering that $13,302.86 of the proceeds of the sale of property subject to appellant’s lien be denied appellant because of appellant’s recovery of $30,000.00 from a third party guarantor, Cordell, Industries, Inc.?”
“(b) Did the District Court err in deducting $1,600.00, the amount the District Court determined it would have cost appellant to liquidate the security covered by appellant’s lien in state proceedings, from the proceeds of the sale of such security?”
The cross appeal of the Trustee relates only to the manner in which the District Court disposed of the labor claims, which by virtue of the Virginia statute constituted a lien upon all property of the bankrupt. The complaint of the Trustee is thus stated in his brief:
“It is the position of the Trustee that said (labor) liens should have been preserved for the benefit of the bankrupt estate and that they should have been charged against the property on which the Textile Banking Company, Incorporated claimed its lien.”
We take up first for discussion the cross-appeal which may be briefly disposed of.
The Labor Claims
It is true that under the provisions of the Virginia law, Code 1950, § 43-24, these labor claims, having been perfected as provided by the statute (§ 43-25) were prior liens on all property of the bankrupt, real and personal, tangible and intangible. They were prior liens on the property covered by the R.F.C. lien, property covered by Textile’s lien, and on all other property of the bankrupt. This being true, no reason appears why the trustee should insist on charging these labor claims solely against that property encumbered by Textile. To permit this would be manifestly unjust. For example there is in the hands of the Trustee the sum of $143,965.60, being the excess realized from a sale of the property on which R.F.C. had a lien after paying R.F.C. in full. This fund is subject to the lien of the labor claims and no reason appears why they should not be paid from it rather than to intrench still further into the only fund from which Textile can be paid.
The Trustee’s contentions are based upon his interpretation of the effect of Section 67, sub. c(2) of the Bankruptcy Act, 11 U.S.C.A. § 107, sub. c(2). He appears to argue that the labor liens, being statutory liens, are invalid against the Trustee, but that they should be preserved for the benefit of the estate and pass to the Trustee. Concerning this argument it may first be noted that Section 67, sub. c refers only to liens on personal property. The labor liens here cover real estate as well and are not made invalid as to it. But even if, as the Trustee appears to urge, the labor liens are invalid in their entirety and should be preserved and pass to the Trustee for the benefit of the estate the amount of the lien ($7,591.65) would not be changed and it would cover the same property. The result would be to substitute the Trustee for the labor lienors. The best that the latter could do would be to rely on the priority granted wage claims, while the Trustee would hold a lien (for $7,591.65) to be exercised for the benefit of other creditors. There is nothing in Section 67, sub. c to suggest that the liens of Textile and of R.F.C. admittedly contractual in nature, would be affected in any way.
In handling this matter the District Court recognized the existence of the labor liens and the liens of R.F.C. and Textile. It pointed out that the labor liens were first liens on all of the bankrupt’s assets and that the others were liens on only limited portions of the bankrupt’s property. In this situation it applied the familiar equitable doctrine of marshalling assets. It held that since there were sufficient assets which were encumbered only by the laborers’ liens these liens should be satisfied out of such assets to the exoneration of the property pledged to R.F.C. and to Textile. In the language of the District Court:
“Textile had a lien only on Bankrupt’s inventory and accounts receivable. There were ample funds from the proceeds of the property on which RFC had its lien to pay first the laborers’ liens in full and to discharge the RFC lien in full, and to leave a substantial surplus for subsequent lienors and creditors. There were insufficient funds realized from the sale of the property on which Textile had a lien to pay its indebtedness in full. Equity demands that the principle of marshaling assets be applied.
“ ‘* * * (T)he equitable doctrine of marshaling * * * rests upon the principle that a creditor having two funds to satisfy his debt may not, by his application of them to his demand, defeat another creditor, who may resort to only one of the funds * * Merchants’ & Mechanics’ Bank v. Sewell, 5 Cir., 1932, 61 F.2d 814, 816.”
In this holding we think the District Court was entirely correct.
Textile’s Claim and Lien
As previously stated the Court found that the bankrupt owed Textile $72,000 secured by a lien on certain furniture and accounts receivable; when this property was sold it brought only $62,737.50. From this sum the Court approved the deduction of $3,775.92 for certain expenses and a further sum of $1,600 for costs. Apparently Textile agreed to the allowance of the first of these items, but it objected to the second, and assigns it as error. These allowances will be discussed later herein. They reduced the amount realized for Textile from the sale to $57,361.58. The Court then noted that Textile had received $30,000 from Cordell under the latter’s guaranty. This, together with the amount realized from the sale, made an amount in excess of Textile’s debt.
In undertaking to make application of the sum represented by the amount realized by Textile from the sale of the property plus the $30,000 received from Cordell, the Court, after consideration of various items involved, concluded that after Textile had been satisfied in full there would remain in the hands of the Trustee the sum of $13,302.86. As to this the Court said:
“Cordell’s funds held by Textile in its ‘guaranty account’ having been used to reduce the indebtedness of Bankrupt to Textile, equity requires that Cordell be subrogated to the rights of Textile in the balance of the proceeds in the ‘furniture account’ realized from the sale of the furniture on which Textile had its factor’s lien in the amount of $13,302.86.”
However, the Court noted that it appeared that Cordell was indebted to the bankrupt in some amount not ascertained and it was therefore ordered that the Trustee retain the $13,302.86 in his hands until there could be determined the amount, if any, of Cordell’s indebtedness to the bankrupt; that if any such indebtedness was found, the Trustee should apply so much of the $13,302.86 as was necessary to satisfaction of the debt, with the balance, if any, to be paid over to Textile to be held by it for the benefit of Cordell.
We are in general accord with the principles applied by the District Court in the distribution of the fund. There are, however, several items which entered into its calculations which are subject to revision, and which will be adverted to shortly.
The first error assigned by Textile is to the action of the Court in ordering the $13,302.86 balance to be retained by the Trustee for future application and in refusing to pay it over to Textile. Textile states its contention in this language.
“Appellant, a secured creditor, is entitled to all proceeds of the sale of property subject to its lien to the full amount of indebtedness owing by the Bankrupt and secured by such lien, irrespective of any amounts collected by appellant from a third-party guarantor and irrespective of any indebtedness owing by such guarantor to the Bankrupt.”
If by this it is meant to say that Textile is the beneficial owner of this balance it does not require any extensive citation of authority to reject this broad contention. It is clear that if Textile, before calling on Cordell’s guaranty, had waited to find out how much it would receive from the sale of the encumbered property, then it could have exacted from Cordell only such amount as was required to make good the deficiency on its debt. Cordell was required to pay only such amount as was necessary to the full satisfaction of Textile’s debt. And when Textile applied on its debt the full amount of the guaranty fund and also pursued its remedy under its lien, and the amount realized from the combined funds was in excess of Textile’s debt, Cordell had an equitable right to such excess. The applicable principle, on which the authorities agree, is thus related in Swarts v. Fourth Nat. Bank, 8 Cir., 117 F. 1, 12.
“A creditor who holds the obligations of a bankrupt which have been partly paid by an accommodation maker, an endorser, or a surety, may prove his claim, and have that claim allowed against the estate of the bankrupt for the full amount owing by the bankrupt upon the obligations, but if the dividends on that claim from the bankrupt estate, plus the amount paid by the surety, aggregate more than the entire amount of the obligations and interest, he holds the surplus in trust for the surety.”
In Matter of Ellerhorst, 8 Fed.Cas., p. 522, No. 4381, decided under the Bankruptcy Act of 1867, it was held:
“Where the holder of a note receives part of the amount of the same from the endorser, he is entitled to prove for the whole amount against the estate of the bankrupt maker, and holds any surplus he may receive over and above the amount of the note in trust for the endorser.”
The only question here would seem to be as to the right of the Court to order that the $13,302.86 be held by the Trustee for application upon the debt alleged to be owing by Cordell to the bankrupt, rather than turning it over to Textile from whose security it had been derived and who had an obligation to return it to Cordell and who would have held it only as trustee for Cordell.
We think the course of action directed by the District Court, was a proper exercise of its equitable powers. Actually the money was in the hands of the Trustee in Bankruptcy. But whether in his custody or that of Textile we see no difference. In either case the fund was owing to Cordell and when it appeared that the bankrupt had asserted a debt owing to it by Cordell we think it was permissible that the money be held for application on that debt. It may be noted that Textile is in no way injured since it is not entitled to the money, and Cordell, which is the beneficial owner of this balance, has not entered any complaint.
In the course of its opinion the District Court had occasion to consider the matter of interest on Textile’s debt. Contrary to Textile’s contention the Court held that it was not entitled to be paid interest from the bankrupt estate. It is not clear whether Textile now asserts that ruling as error or not. In the brief it is not posed as one of the questions for our consideration although there was some reference to it both in the brief and in oral argument.
In any event we think the District Court’s ruling was correct. It was to the effect that since the proceeds from the property covered by Textile’s lien were insufficient to pay the principal of the debt it was not entitled to collect interest from the bankrupt, citing Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244. The case cited as well as many others which might be named support this conclusion.
However the Court pointed out that under the terms of Cordell’s guaranty it was liable to Textile for interest and certain attorney’s fees. After determining the amounts of these items the Court took them into account' in the detailed calculations by which it arrived at the balance of $13,302.86 remaining for the benefit of Cordell. The result is that the interest due Textile has been paid from Cordell’s guaranty account and not from the bankrupt estate. Here again Textile has no basis for complaint. Cordell is the unprotesting loser.
Expenses of Sale
The second assignment of error by Textile relates to the action of the District Court in directing the deduction of $1,600 from the fund realized from Textile’s security — designated by the Court as “costs”. The sum of $1,600 was arrived at on the theory that if Textile had been permitted to enforce its lien the proceedings to do so would have entailed a cost of that amount, and that since the Trustee had conducted the sale this estimated sum should be charged against the fund.
It appears that the sum of $3,775.92 had already been deducted from the proceeds of Textile’s security to cover, as stated by the Court, the expense of “protection of the furniture pending the sale, the advertising costs and other miscellaneous expenses incident to the sale.” It is recited in the Court’s opinion that Textile agreed to this. This is confirmed by the fact that Textile has not questioned this allowance in this Court. In view of this we do not feel free to review this action of the lower Court. This is, however, not to be construed as giving it affirmative approval, so far as establishing a precedent is concerned.
There are certain well settled principles governing the disposition in bankruptcy cases of the proceeds from the sale of property encumbered by liens. The Act recognizes the rights of secured creditors and is concerned with their protection. The trustee in bankruptcy takes title to only such property as the bankrupt, prior to the filing of the petition, could have transferred or which could have been levied on and sold under judicial process against him. Bankruptcy Act. Section 70, sub. a(5), 11 U.S.C.A. § 110, sub. a(5).
“The trustee as successor to the title of the bankrupt takes the property in the same condition that it was held by the bankrupt; his title as successor is subject to all liens and encumbrances which were valid against the bankrupt. * * *. The design of Congress is to protect all liens, whether arising by contract or by statute, and to avoid only those which are in fraud of the act * * 6 Am.Jur. p. 1116. Citing Hiscock v. Varick Bank, 206 U.S. 28.
And again it is said, 6 Am.Jur. p. 1123:
“In other words, the trustee in bankruptcy is entitled to the equity of redemption, but to that only, in respect of property of the bankrupt subject to a valid mortgage.”
In re Tele-Tone Radio Corp., D.C., 133 F.Supp. 739, 750, expresses the principle in these words:
“Thus, when the bankrupt has lawfully assigned to a creditor certain security previous to the bankruptcy, the debtor’s only interest in such secui'ity is to the surplus remaining after payment of the debt. The security, in so far as necessary to pay the debt, has been carved out of the debtor’s estate before the bankruptcy occurs.”
In most cases where, at the time of bankruptcy, there are debts against the bankrupt sec jd on specific property the trustee is forced to decide whether he will abandon the property to the creditor as offering no equity for the estate, or whether it should be sold in the bankruptcy proceedings in the expectation that a surplus will be realized for the benefit of the general creditors. This decision is to be made in the exercise of a sound judgment under the approval of the Court. But where the Trustee has elected to sell the encumbered property he cannot intrench upon the amount of the secured debt for the payment of any of the expenses of administration, such as commissions and similar costs. Such costs can be taken only out of any surplus realized over and above the amount necessary to pay the secured debt. As stated in Remington on Bankruptcy, Sect. 2609:
“It is well settled that, ordinarily, general bankruptcy administration expenses are not chargeable against proceeds from the sale of assets covered by the mortgages or liens to the detriment of the lienholder or secured creditor.”
And in 6 Am.Jur. p. 1511, Sect. 1689, we find:
“A secured creditor need bear only the costs of enforcing his rights and the necessary expenses incurred in the preservation of the property pledged for the debt. A lien holder is not to be divested of his rights in the security by an allowance of commissions and other expenses, where the services for which they are allowed have no relation to the security.”
And this appears to be the rule whether the sale by the trustee was consented to by the lienholder or not. See Mills v. Virginia-Carolina Lumber Co., 4 Cir., 164 F. 168, 171, 21 L.R.A.,N.S., 901; In re Dawkins, D.C.S.C., 34 F.2d 581; In re Street, 3 Cir., 184 F.2d 710.
It is unquestionably the rule where, as here, the sale by the Trustee has been had over the objection of the lienholder. See 6 Am.Jur. p. 1512; Reconstruction Finance Corp. v. Rhodes, 5 Cir., 214 F.2d 606, 607, 48 A.L.R.2d 1339; In re Zehner, D.C.La., 193 F. 787, 788; In re Utt, 7 Cir., 105 F. 754; In re Hansen & Birch, D.C.Ga., 292 F. 898.
In such a case the fund on which the debt is secured cannot be intrenched upon except for payment of the actual costs of selling the property, plus in some circumstances the expense, if any, of preserving the encumbered property pending the sale.
This brings us to consideration of the specific item of $1,600 which the Court charged against Textile’s security as representing the amount that it would have cost the creditor to enforce its lien in the State court. Apparently the Court was of opinion that in any case where encumbered property is sold by a trustee in bankruptcy he may make a charge against the resulting fund in whatever amount would have been the cost of an enforcement proceeding in the State court. That is not the rule. The cost of enforcing the lien in a State court is a limit upon the amount of the charge, not its measure. We believe the correct rule to be that the security can be charged with the expense actually incurred by the Trustee in making the sale; with the proviso, however, that this cost must not exceed what it would cost the creditor to proceed in the State court. Stated otherwise, the fund may be charged with the actual costs of the sale by the trustee or the cost of enforcing the lien in a State court, whichever is the smaller sum.
The reasons for this rule are obvious. Where a sale has been made by the trustee, over the objection of the secured creditor, it is manifestly unjust that the creditor should be charged with an expense greater than he would have incurred had he been allowed to pursue his remedy in another forum. On the other hand, if the expense of the sale by the trustee is less than would have been incurred in a State court proceeding a charge of this latter sum would result in a profit to the bankrupt estate at the expense of the secured fund — a result which is also plainly unjust.
In view of what is said above it is necessary that there be a re-examination by the District Court as to the $1,600 charge. It is noted that the charge of $3,775.92 which had previously been allowed against the security fund, with the consent of the creditor, is stated to cover “the protection of the furniture pending the sale, the advertising costs and other miscellaneous costs incident to the sale.” (Emphasis added.) From this language it would appear that all of the costs incurred in selling Textile’s security had already been deducted from the fund. Since the Court had already held, quite properly, that the fund could not be charged with Trustee’s commissions or any other cost of administration it is not clear to us what other costs of sale, if any, remained to which the $1,600 was to be applied.
However, on the chance that there may be some legitimate item of cost not covered by the $3,775.92 we direct that there be further inquiry to determine this. In such situations as the one depicted here courts should require that the trustee’s report show accurately the actual cost attributable to the sale of the encumbered property, and on remand this should be done. If it then appears that the entire cost of selling the property encumbered by Textile’s lien has been included in the $3,775.92 then the $1,600 charge is improper in its entirety. If it happens that there are proper items of cost not otherwise taken care of they may be charged to the $1,600, with any balance returned to the security fund. It is evident that this course will result in a change in the amount of the fund applicable to Textile’s debt, but this pre sents a very simple arithmetical calculation easily made.
We find no merit in the cross appeal by the Trustee and as to it the judgment of the District Court is affirmed.
As to the appeal of Textile the judgment of the District Court is affirmed in all respects except as relates to the charge of $1,600 hereinbefore discussed. The case is remanded for further examination as to the propriety of such charge, or any part of it, in the light of what we have said herein.
Affirmed in part, reversed in part and remanded.
. Note. The statement of debts and assets filed by the bankrupt lists as an asset a debt due it from Oordell in the amount of $17,316.48.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_appnatpr
|
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.
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.
Charles C. CARLSON, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, and Louise C. CARLSON, Intervenor.
No. 9987.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 11, 1949.
Decided Feb. 14, 1949.
Mr. Philip M. Baker, of Washington, D. C., with whom Mr. Charles E. Thompson, of Washington, D. C., was on the brief, for appellant.
Mr. Richard A. Solomon, Counsel, Federal Communications Commission, of Washington, D. C., with whom Messrs. Benedict P. Cottone, General Counsel, and Max Goldman, Acting Assistant General Counsel, of the Federal Communications Commission, both of Washington, D. C., were on the brief, for appellee. Mr. Dee W. Pincock, Attorney, Federal Communications Commission, of Washington, D. C., also entered an appearance for appellee.
Mr. Vincent B. Welch, of Washington, D. C., with whom Mr. Robert L. Heald, of Washington, D. C., was on the brief, for intervenor Louise C. Carlson.
Before EDGERTON, PRETTYMAN, and PROCTOR, Circuit Judges.
PER CURIAM.
We find no error in the record. The decision of the Federal Communications Commission is therefore affirmed
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_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.
Ernest Dale THOMPSON and Kelly Thompson, husband and wife; and Ernest Dale Thompson, father, guardian, and next friend of Jason Thompson, a minor, Plaintiffs-Appellees, v. SHELTER MUTUAL INSURANCE, a Missouri corporation, Defendant-Appellant.
Nos. 85-1960, 85-2189.
United States Court of Appeals, Tenth Circuit.
May 22, 1989.
Joseph F. Clark, Jr., of Williams, Clark, Baker & Earl, Tulsa, Okl., for defendant-appellant.
Richard E. Elsea (Kevin A. Schoeppel with him, on the briefs) of Schoeppel, Mc-Atee & Elsea, Tulsa, Okl., for plaintiffs-ap-pellees.
Before LOGAN, BARRETT and MOORE, Circuit Judges.
LOGAN, Circuit Judge.
The dwelling and personal property of the family of Ernest Dale Thompson (collectively Thompson) were covered by a fire insurance policy issued by Shelter Mutual Insurance Co. (Shelter) when an arson fire damaged the property. Shelter admitted coverage under the policy, but only provided $500 of additional living expense money to Thompson immediately after the fire— enough for one month’s subsistence — plus another $1500 about five and a half months later. The policy had a limit of $5,000 on additional living expense payments. Shelter also disputed the amount of Thompson’s claim, and Thompson refused to accept the estimates of Shelter’s contractors as the basis for a settlement.
Eventually, Thompson brought this diversity suit against Shelter, alleging breach of contract, intentional infliction of emotional distress, and bad faith conduct by Shelter. The case was tried to a jury, which awarded Thompson damages of $35,-000 for dwelling repair, $27,500 for personal property damage, and $3,000 for additional living expenses. The jury found no intentional infliction of emotional distress, but awarded Thompson $29,500 damages on the bad faith claim. The district court also awarded Thompson attorney’s fees.
In these consolidated appeals, Shelter argues that (1) the evidence was insufficient to submit the claim of bad faith to the jury, (2) there was insufficient evidence to support the jury’s awards for dwelling repair and personal property damage, and (3) the fee awarded to Thompson’s attorneys was erroneous. We affirm, except that we condition affirmance of the personal property award on a partial remittitur of it.
I
Under Oklahoma law, which the parties agree controls this case, every insurance contract contains an implied duty of good faith and fair dealing. See, e.g., Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 914 (Okla.1982). The insurer does not breach this duty by refusing to pay a claim or by litigating a dispute with its insured if there is a “legitimate dispute” as to coverage or amount of the claim, and the insurer’s position is “reasonable and legitimate.” Manis v. Hartford Fire Ins. Co., 681 P.2d 760, 762 (Okla.1984); see also Christian v. American Home Assurance Co., 577 P.2d 899, 903-04 (Okla.1978). Rather, to prove a breach of the duty of good faith and fair dealing the insured must show by a preponderance of the evidence that the insurer failed to treat the insured fairly or that it tried to make the insured “surrender his policy or disadvantageously settle a nonexistent dispute.” Fletcher v. Western Nat’l Life Ins. Co., 10 Cal.App.3d 376, 89 Cal.Rptr. 78, 92 (1970), quoted in Christian, 577 P.2d at 901; see also Timmons, 653 P.2d at 913. Viewing the evidence in the light most favorable to the plaintiff, as we must, McCorkle v. Great Atl. Ins. Co., 637 P.2d 583, 586 (Okla.1981), we hold that Thompson’s evidence meets the minimum standard necessary for submission of the question of bad faith to the jury and to support the jury’s finding for Thompson.
Thompson introduced evidence that Shelter’s adjuster tried to intimidate Thompson when investigating the fire, that Shelter refused to give Thompson a copy of his current declaration sheet, that Shelter refused to pay Thompson sufficient living expense money even though Shelter admitted coverage and knew that Thompson would need approximately three to five months of additional living expense money while the house was repaired, that Shelter refused to negotiate with Thompson’s agent, and that Shelter unreasonably rejected Thompson's proof of loss forms. Although the focus of the bad faith claim was on the failure to pay additional living expenses, all this evidence is probative and relevant because “the jury may be shown the entire course of conduct between the parties to arrive at a determination of whether [the good faith] standard had been breached or not.” Timmons, 653 P.2d at 917.
Shelter asserts that it could not have acted in bad faith because it had no duty to pay any living expense money until the parties agreed upon Shelter’s liability for repair costs, and, because the district court found a bona fide dispute between the parties as to such costs, Shelter’s refusal to make the living expense payments was reasonable and in good faith as a matter of law. This argument does not impress us, first, because the jury was entitled to consider conduct other than the withholding of living expenses as evidence of Shelter’s bad faith. Also, “[unwarranted delay precipitates the precise economic hardship the insured sought to avoid by purchase of the policy.” Christian, 577 P.2d at 903. This especially is true with additional living expense payments, the function of which is to enable the insured to maintain, insofar as possible, the pre-fire standard of living during the period of repair and replacement. An unresolved dispute as to other policy claims does not as a matter of law excuse the failure of the insurer to pay living expense benefits, when the liability for such benefits is undisputed. The evidence presented was sufficient to create a jury question on bad faith. See McCorkle, 637 P.2d at 587 (if there is conflicting evidence regarding reasonableness of conduct, question of bad faith is for jury); see also Buzzard v. McDanel, 736 P.2d 157, 159 (Okla.1987).
II
Shelter also argues that the dwelling repair and personal property awards were not supported by competent evidence. As for the dwelling repair award of $35,-000, competent testimony indicated that the dwelling damages totalled approximately $47,000, see IV R. 293-94; plaintiffs’ exhs. C-8, N-l, and that the lower estimates offered by Shelter did not cover particular repairs or were unreasonably low and designed by the contractor to gain entry into the insurance repair business. IV R. 168-69, 173; VI R. 801-02. Thus, the award given was within the parameters of the testimony and supported by competent evidence.
The award of $27,500 for personal property damage, however, is excessive. The proofs of loss detailed personal property with a value of $22,419.21, and Thompson at no time proved or even argued for a personal property award greater than this amount. See IV R. 293-94; VII R. 844; plaintiffs’ exhs. C-8, N-l. Thompson attempts to justify the jury’s larger award, which equals the policy limits on personal property, by pointing to photographs introduced as evidence that show the fire damage to the home. Shelter argues that the figure on the proof of loss forms must be depreciated since it is apparent that the figure represents the purchase price of the personal property, while the policy provides only for reimbursement of the property’s actual value at the time of loss. Both arguments must fail. It is true that Thompson’s policy was for actual value, not replacement cost. Yet, Shelter’s only specific evidence about depreciation on Thompson’s property was a “guess” by one of its employees as to the proper amount of the total personal property award. VI R. 632; cf. plaintiffs’ exh. J-17. To reduce Thompson’s award based on this testimony would sanction an award based on “mere speculation, conjecture or surmise” which, of course, is improper. Great W. Motor Lines, Inc. v. Cozard, 417 P.2d 575, 578 (Okla.1966). Similarly, a valuation of more than $22,419.21 would be based on nothing more than a guess about the damage depicted in the photographs. When the damages awarded are unsupported by competent evidence, we may order the plaintiff to remit the amount above that which is supported by the evidence. Davon Drilling Co. v. Ginder, 467 P.2d 470, 474 (Okla.1970). Thus, we order a remittitur of $5,180.79 ($27,500.00 less $22,419.21 proved value, plus the policy’s $100.00 deductible) of the personal property award, and condition affirmance of the award of $22,319.21 upon Thompson’s agreement to the reduction. In the absence of such agreement, Shelter is entitled to a new trial on the issue of the amount of Thompson’s personal property damages.
Ill
In Oklahoma, an insured may recover costs and attorney’s fees incurred in suing the insurer if the judgment recovered exceeds all written settlement offers made by the insurer. Okla.Stat. tit. 36, § 3629(B). Shelter concedes that Thompson is entitled to a fee award because the verdict in the instant case exceeded any written settlement offer it made.
Thompson’s attorneys petitioned for fees totalling $94,212.24, which they calculated based on 716.85 hours of preparation time at $85 an hour and 115.5 hours of trial time at $125 per hour, plus a twenty-five percent enhancement. In addition, they asked for reimbursement of $1,615.55 in expenses. The district court awarded expenses in the amount claimed. The court, however, found that only 350 hours of preparation time and 50 hours of trial time were reasonably expended, and that this time should be compensated at $85 and $110 per hour, respectively. Thus, it awarded a fee of $35,250. The court also refused to segregate the fees and award only those attributable to the contract claim, holding that no clear delineation could be made between the time spent on the contract claim and the tort claims.
Shelter does not challenge the expense award or the district court’s setting of $85 and $110 per hour as reasonable rates of compensation. Nevertheless, Shelter argues that the $35,250 fee is erroneous for two reasons. First, it asserts that the attorneys’ time spent preparing and trying the bad faith claim is not compensable under the statute, and the court should have segregated and disallowed the time spent on that claim. Second, Shelter argues that the court’s award is not supported by evidence introduced at the fee hearing. We reject both contentions.
Even if Shelter is correct that some delineation could rationally be made in this case between time spent on the contract and the tort claims, see Hensley v. Eckerhart, 461 U.S. 424, 434-35, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40 (1983), such a determination would be irrelevant in this case because we hold that § 3629(B) allows fees for time spent preparing and trying a claim of bad faith, provided the plaintiff succeeds on his claim of bad faith and also meets the statutory requirement of obtaining a total judgment larger than the greatest settlement offer made by the insurer. The American rule that generally prohibits the award of attorney’s fees to the prevailing party does not apply when a statute, here § 3629(B), provides for the award of fees. An-Son Cory. v. Holland-America Ins. Co., 767 F.2d 700, 703 (10th Cir.1985). We have noted that Oklahoma’s courts have read this statute broadly, see id., and find no indication in the statute that an insured who otherwise qualifies as a “prevailing party” should not be allowed fees for attorney time spent successfully prosecuting a claim of bad faith. Indeed, it would be anomalous to read § 3629(B) to allow fees for the prosecution of a suit when the insurer had acted reasonably, albeit erroneously — with the insured obtaining a judgment greater than the largest settlement offer — while denying fees to a plaintiff who successfully sued an insurer to redress unreasonable or oppressive conduct and obtained a judgment greater than any settlement offer.
In addition, the Oklahoma Supreme Court has upheld the award of fees under § 3629(B), without mentioning their segregation between tort and contract claims, in cases in which the plaintiffs recovered both for breach of contract and for bad faith conduct. See McCorkle, 637 P.2d at 586; Oliver’s Sports Center, Inc. v. National Standard Ins. Co., 615 P.2d 291, 295 (Okla.1980). In Oliver’s Sports, the court specifically mentioned the attorneys’ efforts in trying a complicated bad faith suit. Id.
Shelter’s argument that the district court’s actual fee award is unsupported by the evidence similarly is without merit. As a matter of Oklahoma law, the district court’s award of an attorney’s fee must be upheld if reasonable, and can be modified or vacated only if the court has abused its discretion. Southwestern Bell Tel. Co. v. Parker Pest Control, Inc., 737 P.2d 1186, 1189 (Okla.1987). We find no such abuse here. Thompson’s attorneys claimed a total of 832.35 hours of compensable time, but the court awarded fees for only 400 hours, citing as some of the reasons for its reduction the inexperience of Thompson’s attorneys, excessive time spent in research and preparation, unreasonable client demands that more experienced counsel could have squelched, and time spent preparing meritless claims. The district court carefully followed the rationale of this court in Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983), and that of the Oklahoma Supreme Court in State ex rel. Burk v. City of Oklahoma City, 598 P.2d 659 (Okla.1979), in considering the relevant factors and determining a reasonable fee. Its decision is supported by the evidence and we find no abuse of discretion.
The judgment is AFFIRMED in all respects, except as to the award of personal property damages, to which we attach the condition of a remittitur reducing the judgment to $22,319.21. If Thompson agrees to the remittitur, then that award also is AFFIRMED. If not, Shelter is entitled to a new trial limited to the issue of the amount of Thompson’s personal property damages.
IT IS SO ORDERED.
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_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. K-MART CORPORATION and K-Mart Enterprises, Inc., Defendants-Appellees. In re EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner.
Nos. 81-1722, 82-1909.
United States Court of Appeals, Sixth Circuit.
Argued April 29, 1982.
Decided Dec. 8, 1982.
Carol Cresswell Moschandreas, Equal Employment Opportunity Commission, Washington, D.C., for plaintiff-appellant.
Equal Employment Opportunity Advisory Counsel, Douglas S. McDowell, McGuiness & Williams, Washington, D.C., for amicus curiae.
Richard T. Sampson-Kathleen Pontone, Semmes, Bowen & Semmes, Baltimore, Md., Peter J. Palmer, K-Mart Corp., International Headquarters, Troy, Mich., for defendants-appellees.
Before KEITH and JONES, Circuit Judges, and MILES, Chief District Judge.
Hon. Wendell A. Miles, Chief District Judge, Western District of Michigan, sitting by designation.
KEITH, Circuit Judge.
A judge of the United States District Court for the Eastern District of Michigan issued an order requiring the Equal Employment Opportunity Commission (“EEOC”) to produce former EEOC Commissioner Ethel Bent Walsh and certain current EEOC employees for deposition. The EEOC petitions this Court for a writ of mandamus ordering the district court to vacate that discovery order. For the reasons below, we grant the writ of mandamus and vacate the district judge’s order. 526 F.Supp. 121.
FACTS
On September 28, 1979, former EEOC Commissioner Ethel Bent Walsh filed a charge of discrimination against the K-Mart Corporation and K-Mart Enterprises (“K-Mart”). Walsh alleged that she had cause to believe that K-Mart discriminated against Blacks, Hispanics, and women in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976). Specifically, Walsh alleged that K-Mart practiced unlawful racial and sexual discrimination in its recruiting, hiring, job classification, job assignment, promotion and job segregation. Walsh did not state the dates on which these alleged acts of discrimination occurred. She did, however, make these allegations under oath,
ln October 1980, the EEOC issued two administrative subpoenas to K-Mart. The EEOC requested the production of various documents, and the production of a K-Mart executive for deposition. On October 29, 1980, K-Mart filed a petition with the EEOC seeking to revoke or modify the administrative subpoenas.
On December 4,1980, Walsh amended her original charge in response to the Ninth Circuit’s decision in EEOC v. Dean Witter Co., 643 F.2d 1334 (9th Cir.1980). In Dean Witter, a subpoena enforcement action, the Court held that a charge which stated that the alleged discriminatory employment practices were “continuing” was insufficient to meet the “date” requirement of Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b). Section 706(b) requires that the EEOC serve upon an employer charged with unlawful employment practices a “notice of the charge (including the date, place, and circumstances of the alleged unlawful employment practice)” 42 U.S.C. § 2000e-5, as amended. Thus, the Court denied enforcement of an administrative subpoena which the EEOC had issued to the employer.
In her amended charge, Walsh stated that “[w]hen I signed the charge, I intended to cover all the unlawful employment practices identified therein occurring from July 2,1965, continuing through at least the date of the charge, and I believed that the charge as written did cover that time period.” App. 23. She also stated that “... to clarify any possible ambiguity that may exist in view of the [Dean Witter] decision, I... amend my original charge, which is incorporated here by reference, to state that I have reason to believe that the named employers have engaged in the identified unlawful employment practices on a continuing basis from July 2, 1965 until the present.” Id. This amended charge was also under oath.
On February 27, 1981, the EEOC denied K-Mart’s request to modify or revoke the administrative subpoenas. K-Mart appealed to the General Counsel’s Office of the EEOC, and the subpoena was modified. Despite this modification, K-Mart, in a letter dated May 8, 1981, informed the EEOC that it would not comply with the administrative subpoenas.
On May 11, 1981, the EEOC filed this action in the United States District Court for the Eastern District of Michigan to enforce the administrative subpoenas. That same day, the court issued an Order to Show Cause why K-Mart should not comply with the subpoenas. A hearing was scheduled for May 22, 1981 before a United States Magistrate.
On May 20, 1981, K-Mart noticed the depositions of former EEOC Commissioner Walsh and certain EEOC employees who had been involved in the decisions to issue the charge and the administrative subpoenas to K-Mart. On May 26, 1981, the EEOC moved the district court for a protective order prohibiting K-Mart from taking the depositions of Walsh and the EEOC employees. This matter was also referred to the magistrate.
On June 5, 1981, the magistrate denied the EEOC’s request for a protective order. The magistrate did, however, limit the scope of the proposed depositions to matters relating to 1) the date of the alleged unlawful acts; 2) the standard employed for making the decision to issue the charge of unlawful discrimination; and 3) the general type or kind of information the EEOC possessed before the charges were issued. He also noted that the EEOC need not produce any documents.
The EEOC objected to the Magistrate’s Report and Recommendation. The EEOC moved the district court to reconsider the magistrate’s order allowing discovery. This motion was denied on August 27,1981. The EEOC filed a Motion for Clarification of the August 27 order. The EEOC sought to have the district court include findings of fact and conclusions of law which would indicate that discovery was necessary.
On October 27, 1981, the district court reaffirmed its earlier order requiring that the EEOC make Walsh and the other designated employees available for deposition. Thereafter, K-Mart issued subpoenas for depositions to Walsh and the other EEOC employees.
On November 6,1981, the EEOC simultaneously sought certification for an interlocutory appeal of the discovery order under 28 U.S.C. § 1292(b), and a stay of the October 27, 1981 order. That same day, the district court denied the motion for stay, and the EEOC appealed the denial of the motion for a stay to this Court. The EEOC immediately applied to the district court for a stay pending this appeal.
On November 9, 1981, Walsh was scheduled to appear at the Washington, D.C. offices of K-Mart’s counsel for a deposition at 10 a.m. However, the deposition never occurred. That morning, the EEOC applied to the United States District Court for the District of Columbia for a stay of K-Mart’s subpoena. The EEOC appeared before District Judge Thomas A. Flannery and obtained a stay of the subpoena. That same day, the EEOC sought a stay pending appeal, or, in the alternative, a petition for mandamus from this Court. Also on this date, the EEOC filed a Notice of Appeal from the district court’s August 27, and October 27, 1981 orders, and the Magistrate’s June 5, 1981 order.
On November 11, 1981, the Honorable Nathaniel R. Jones of this Court referred the motion for a stay pending appeal and the petition for a writ of mandamus to a three-judge motions panel for its consideration. Judge Jones stayed the district court’s order pending the three-judge panel’s disposition of this matter.
On January 7, 1982, K-Mart moved this Court to dismiss the appeal and the petition for a writ of mandamus, and to vacate the stay granted by Judge Jones. K-Mart alleged that the discovery order was not appealable, and that the EEOC’s notice of appeal was untimely. K-Mart also alleged there was no petition for mandamus before this Court, that any petition was untimely filed, and that mandamus relief was not available in this case. On January 28,1982, the EEOC conceded that its appeal was untimely, but continued to maintain that this Court should issue a writ of mandamus.
A motions panel of this Court concluded that portions of the EEOC’s emergency motion for a stay and statements contained in its petition and brief were sufficient to bring the petition for mandamus relief before this Court. Moreover, because the case presented a question of first impression, the panel agreed to accept jurisdiction over this case. Accordingly, the panel extended the emergency stay and referred K-Mart’s motion to dismiss to the panel designated to hear this case.
I. JURISDICTION
The threshold question on appeal is whether this Court has jurisdiction. K-Mart moved this Court to dismiss the EEOC’s appeal and the petition for a writ of mandamus. We will consider each alleged jurisdictional defect separately.
A. The Appeal
K-Mart argues that this Court does not have jurisdiction over this appeal because 1) the appeal was not timely filed pursuant to Rule 4(a)(1), Fed.R.App.P.; 2) the appeal has no effect under Rule 4(a)(4), Fed.R. App.P., since it was filed during the pend-ency of a motion to amend the district court’s order to certify the appeal under 28 U.S.C. § 1292(b); and 3) the order granting limited discovery of former Commissioner Walsh and the designated EEOC employees was not an appealable order.
The EEOC concedes that this appeal was untimely pursuant to Rule 4(a)(1). A timely notice of appeal is a mandatory jurisdictional requirement. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Therefore, we have no jurisdiction over an appeal in this case because it was not timely filed.
B. The Petition for a Writ of Mandamus
K-Mart argues that the EEOC’s petition for a writ of mandamus should be dismissed because: 1) a petition for a writ of mandamus is not before this Court; 2) assuming a petition was before this Court, that petition was not timely filed; and 3) mandamus is not available to review the discovery order at issue here. The EEOC argues 1) that the petition for a writ of mandamus fully complies with Rule 21, Fed.R.App.P.; 2) that the petition was timely filed; and 3) that mandamus relief is appropriate in this case.
The motions panel held that “portions of the EEOC’s emergency motion for stay as well as its petition and brief are sufficient to bring the petition for mandamus relief before the Court.” We reaffirm this conclusion. Rule 21(a), Fed.R.App.P., provides the requirements for bringing a petition for a writ of mandamus before this Court. The EEOC’s emergency motion for stay pending appeal and petition for writ of mandamus, and its brief and reply brief, clearly satisfy the requirements of Rule 21(a). The petition and the briefs set forth the facts necessary to understand the issues involved, the reasons mandamus relief would be appropriate, the relief sought, and the relevant portions of the district judge’s October 27, 1981 opinion.
K-Mart’s contention that the petition for a writ of mandamus was untimely is also without merit. K-Mart argues that this Court should not acknowledge a petition which was not filed within the time for appeal. However, even the cases cited by K-Mart hold that the timeliness of a petition is governed by the equitable doctrine of laches. See United States (ex rel. Arant) v. Lane, 249 U.S. 367, 371, 39 S.Ct. 293, 294, 63 L.Ed. 650 (1919) (“[Mandamus]... [is] subject to the equitable doctrine of laches.”); United States v. Olds, 426 F.2d 562, 566 (3d Cir.1970) (“[M]andamus must be sought with reasonable promptness, [but] [t]here is no inflexible rule on timeliness... ”). See also 9A Moore’s Federal Practice H 221.03 at 21-4.
K-Mart also contends that the petition is untimely under the doctrine of laches. We disagree. “[The] essence [of laches] is unreasonable delay in asserting a claim that prejudices the defendant.” Thropp v. Bache Halsey Stuart Shields, Inc., 650 F.2d 817, 822 (6th Cir.1981). In United States v. Weintraub, 613 F.2d 612 (6th Cir.1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2987, 64 L.Ed.2d 854 (1980), this Court held that “[ljaches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.”
In this case, K-Mart failed to prove the two requirements for asserting laches. First, K-Mart failed to prove that there was a lack of diligence by the EEOC or that there was an unreasonable delay in seeking mandamus relief. K-Mart argues that “the purported petition... was not filed until December 21, 1981.” The motions panel, however, held that the EEOC’s emergency motion for a stay should be treated as a petition for mandamus. The EEOC filed this emergency motion on November 9, 1981, only 15 days after the court’s October 27, 1981, opinion and order. Given the circumstances of this case, this short delay was not unreasonable and did not demonstrate a lack of diligence by the EEOC. Second, K-Mart argues that it was harmed by the delay in discovering the information at issue in this case. It would be incredible for us to conclude on this record, however, that this delay prejudiced K-Mart.
Finally, we reject the contention that mandamus is unavailable to review the discovery order at issue in this case. “Courts of Appeals, pursuant to their supervisory powers, may review in a mandamus proceeding questions of unusual importance necessary to the economical and efficient administration of justice.” In re April 1977 Grand Jury Subpoenas, 573 F.2d 936, 940 (6th Cir.1978), cert. denied, sub. nom. General Motors Corp. v. United States, 440 U.S. 934, 99 S.Ct. 1277, 59 L.Ed.2d 492 (1979). Moreover, mandamus review is appropriate to review important issues of first impression. Id. at 941. In this case, the question of whether the district court had the authority to order the depositions involved here is an extremely important one that has not been addressed previously. Consequently, this issue is subject to review by mandamus, and we will treat this interlocutory appeal as a petition for a writ of mandamus under the All Writs Statute, 28 U.S.C. § 1651.
II.
The EEOC argues that the district court exceeded its authority by ordering that Walsh and the other EEOC employees be produced for deposition. First, because Walsh’s amended charge fulfilled the requirements of section 706(b) of Title VII, there was a competent basis for the EEOC’s administrative subpoena and investigation. Second, the district court exceeded its authority and subverted the enforcement scheme of Title VII by allowing K-Mart to inquire into the facts underlying the charge.
Our review of the district court’s order is constrained because this case is before us on a petition for a writ of mandamus. The writ has been used traditionally to confine an inferior court to a lawful exercise of its jurisdiction. Schlagenhauf v. Holder, 379 U.S. 104, 109-110, 85 S.Ct. 234, 238, 13 L.Ed.2d 152 (1964); Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967); Roche v. Evaporated Milk Assn., 319 U.S. 21, 26, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). The writ can be issued where there is usurpation of judicial power or a clear abuse of discretion. Schlagenhauf v. Holder, 379 U.S. at 110, 85 S.Ct. at 238. Union Light, Heat & Power Co. v. U.S. District Court, 588 F.2d 543, 544 (6th Cir.1978), cert. dismissed sub. nom. Union Light, Heat & Power Co. v. Rubin, 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979). However, “the party seeking mandamus has ‘the burden of showing that its right to issuance of the writ is “clear and undisputable.’ ” Will v. United States, 389 U.S. at 96, 88 S.Ct. at 274.
A. The Validity of the Charges Under Section 706(b) of Title VII
A valid charge of discrimination is a jurisdictional prerequisite in subpoena enforcement proceedings. Graniteville Co. v. EEOC, 438 F.2d 32 (4th Cir.1971); EEOC v. C.A. Norgren Co., 535 F.Supp. 491, 493 (D.Col.1982). The district court did not rule on the validity of the original charge or the amended charge. See EEOC v. K-Mart Corp., 526 F.Supp. 121 (E.D.Mich.1981).
In its October 27,1981 opinion and order, the district court noted that the EEOC’s charges contained three deficiencies which justified the discovery order. First, relying upon the Dean Witter decision, the district court noted that the EEOC’s “original charge neglected to give the date or dates the alleged unlawful employment practices occurred.” 526 F.Supp. at 125.
Second, the EEOC’s amendment of the original charge raised questions “concerning the underlying validity of the date contained in the amended charge.” Id. The court stated that there was uncontroverted evidence that in charges containing a “pattern or practice” allegation, the EEOC had a policy of inserting pro-forma July 2,1965, the effective date of Title VII, as the beginning date of an alleged unlawful practice. Pro-forma insertions of the effective date of Title VII would violate section 706(b) of Title VII and 29 C.F.R. § 1601.12(a)(3), which both “require some basis in fact for the date alleged in the charge.” Id. Thus, the district court concluded that a pro-for-ma insertion of Title VII’s effective date did not satisfy the oath and affirmation requirement of section 706(b).
Third, the district court noted that ElMart raised serious questions concerning the validity of Walsh’s oath and affirmation in the amended charge. A policy of inserting pro-forma the effective date of Title VII indicated that Walsh may not have a basis in fact to confirm her belief that the discrimination occurred from the date alleged in the amended charge. Consequently, the EEOC did not have sufficient information to justify its subpoena enforcement action.
The EEOC argues that Walsh’s amended charge, on its face, fulfills the requirements of section 706(b) of Title VII and of the EEOC’s regulations. Thus, the EEOC had the authority and a statutory duty to investigate that charge of discrimination. Consequently, the first issue we must address is whether the amended charge, on its face, is valid under section 706(b) of Title VII and the EEOC’s regulations.
Section 706(b) of Title VII, 42 U.S.C. § 2000e-5(b), as amended, sets forth the requirements for a valid charge of discrimination. EEOC Commissioners may file charges of discrimination. Id. The charge must be in writing, under oath or affirmation, and contain the information and be in the form required by the EEOC. Id. Moreover, the EEOC must serve a notice of charge upon an employer accused of an unlawful employment practice. Id. The notice of the charge should include the date, place and circumstances of the alleged unlawful employment practice. Id.
The EEOC’s regulations complement the requirements of section 706(b). Charges shall be in writing, signed, and verified. 29 C.F.R. § 1601.11(a). The charge must include a “clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices.” 29 C.F.R. § 1601.12(a)(3).
In Dean Witter, 643 F.2d at 1338, the Ninth Circuit held that a charge of discrimination which stated that the unlawful employment practices were “continuing” did not satisfy the date requirement of section 706(b). The court found that the charge did not disclose whether the practices had occurred. The court reasoned that the dates of the alleged unlawful employment practices bear directly on the relevancy of an EEOC enforcement subpoena. Moreover, disclosure of the dates of the alleged practices informs the charged party and the court asked to enforce the subpoena of the proper scope of the investigation. We agree that section 706(b) requires that the EEOC include in the charge the dates of the alleged unlawful employment practices.
Walsh’s original charge was deficient under the rationale of Dean Witter, the plain language of section 706(b), and the EEOC’s regulations. As the district court noted, the original charge neglected to give the date or dates the alleged practices occurred. Therefore, it was impossible to determine what would be the temporal scope of the EEOC’s investigation.
Walsh amended the original charge, however, to state that “I have reason to believe that the named employers have engaged in the identified unlawful practices on a continuing basis from July 2, 1965 until the present.” Charges of discrimination may be amended to cure technical defects or omissions, or to clarify and amplify allegations made in the original charge. 29 C.F.R. § 1601.12(b).
In Shell Oil Co. v. United States EEOC, 676 F.2d 322 (8th Cir.1982), the then Chair of the EEOC filed a charge of discrimination that did not contain the beginning date or any references to the dates the alleged unlawful employment practices occurred. The Chair later amended the charge stating that she had reason to believe that the defendant had engaged in the unlawful practices “on a continuing basis at least from July 2, 1965, to present.” The Eighth Circuit held, inter alia, that the amended charge did not comply with the date requirement of section 706(b). The Court concluded that the charge did not adequately set out the date and the circumstances of the unlawful practices. The Court reasoned that the EEOC’s use of July 2,1965 as the beginning date of the defendant’s Title VII requirement did not inform the defendant employer of the beginning dates of the unlawful practices. The Court stated:
The purpose of disclosure of a beginning date is to protect the employer from an open-ended investigation by limiting discovery to matters relevant to the charge. Id. [643 F.2d] at 1338. Use of the effective date of Title VII does not give notice to the employer of the parameters of the investigation. We read section 706(b) to require “some basis in fact for the date alleged in the charge.” EEOC v. K-Mart Corp., 526 F.Supp. 121, 125 (E.D.Mich.1981). We find no factual basis in the EEOC’s allegation of July 2, 1965, as the beginning date of the alleged Title VII violations.
Shell Oil Co., 676 F.2d at 325-326.
We agree that the date requirement of section 706(b) is not satisfied merely by including the effective date of Title VII in the charge. A charge alleging that the unlawful employment practices began on July 2, 1965 does not give the employer, the district court, or the EEOC’s investigators any objective basis to determine the temporal scope of the investigation. The EEOC is entitled to have access only to evidence that is relevant and material to the charge of discrimination. Dean Witter, 643 F.2d at 1338; section 709 of Title VII, 42 U.S.C. § 2000e-8(a). The dates of the alleged unlawful practices are relevant to the EEOC’s investigation. Dean Witter, 643 F.2d at 1338.
In this case, Walsh amended her original charge to state that she had reason to believe that K-Mart had engaged in the unlawful practices “on a continuing basis from July 2, 1965, until the present.” The district court noted that the amended charge raised questions concerning the underlying validity of the date contained in the charge because there was uncontroverted evidence that the EEOC had a policy of inserting pro-forma the effective date of Title VII. In its reply brief, the EEOC argues that at least three charges in other enforcement actions were amended to include a date other than July 2, 1965. The existence of an EEOC policy of inserting pro-forma the effective date of Title VII is irrelevant, however, to our determination of whether the amended charge, on its face, is valid.
The EEOC’s use of the effective date of Title VII did not fulfill the requirements of section 706(b) or of 29 C.F.R. § 1601.12(a)(3). Like the charge in issue in Shell Oil, Walsh’s amended charge fails to provide the district court, K-Mart, or even the EEOC’s investigators with some objective basis of determining when the alleged unlawful practices began. Consequently, the temporal scope of the investigation cannot be determined from the face of the charge.
We realize that at the time a charge is filed, the EEOC may be uncertain as to the temporal scope of the allegedly unlawful practices. This uncertainty may be exacerbated when, as here, a pattern or practice charge is filed. Even in this situation, the EEOC should make a good faith estimate of the date the unlawful practices began. Dean Witter, 643 F.2d at 1338. The commissioner’s good faith is presumed because of section 706(b)’s oath or affirmation requirement.
We hold that the sufficiency of a charge under section 706(b) and 29 C.F.R. § 1601.12(a)(3) should be determined from the face of that charge. That neither the original charge nor the amended charge fulfilled the requirements of section 706(b) could and should have been determined from the face of these charges. Thus, the discovery ordered in this case was unwarranted. The issuance of an unwarranted order, however, does not amount to usurpation of judicial power or a clear abuse of discretion.
B. The Discovery Order
The district court’s order allowed K-Mart to take the depositions of Walsh and the designated EEOC employees, but limited the scope of these depositions. The EEOC argues that the district court exceeded its authority in ordering the depositions concerning the factual basis underlying the EEOC’s charges against K-Mart. The district court’s order exceeds the narrow scope of authority a district court has in summary subpoena enforcement proceedings and is inconsistent with the enforcement scheme of Title VII.
K-Mart argues that the district court’s refusal to grant a complete protective order is a proper exercise of discretion. The district court has the discretion to order discovery in a subpoena enforcement hearing, and allowing discovery concerning the date and legal standard used did not abuse that discretion. K-Mart questions the EEOC’s good faith as to the date of the alleged unlawful practices because 1) K-Mart allegedly did not exist in July 1965; 2) the EEOC has publicly stated that suspicion of a current practice of discrimination provides an automatic basis for inferring that discrimination began on July 2, 1965; and 3) there is evidence that the EEOC may routinely select identical dates for pattern and practice charges under certain circumstances. Moreover, K-Mart argues that former Commissioner Walsh did not swear unequivocally to the truth of the charges to the best of her knowledge and information, nor has she stated that she had “reasonable cause” to believe the truthfulness of the charges. Thus, discovery is warranted to ascertain the precise standard Walsh used in issuing the charges against K-Mart.
The district court’s order allowing discovery is not authorized by the language of Title VII or its legislative history. Section 709 of Title VII authorizes the EEOC to conduct investigations in connection with charges filed under section 706. 42 U.S.C. § 2000e-8(a). The evidence sought must be relevant to the charge under investigation. Id. The date, place, and circumstances of the alleged unlawful practices are relevant to the charge of discrimination. Dean Witter, 643 F.2d at 1338. Section 710 of Title VII provides that section 11 of the National Labor Relations Act, 29 U.S.C. § 161 applies to all investigations conducted by the EEOC. 42 U.S.C. § 2000e-9. Thus, the EEOC can issue subpoenas requiring witnesses’ testimony or the production of documents. 29 U.S.C. § 161(1). If a person under investigation refuses to comply with an administrative subpoena, the EEOC may apply to a federal court for enforcement of the subpoena. 29 U.S.C. § 161(2).
Nothing in Title VII, however, authorizes a district court in a subpoena enforcement proceeding to allow discovery concerning the facts underlying a charge of discrimination. Sections 709 and 710 restrict the district court’s inquiry in subpoena enforcement actions to whether the information sought is material and relevant. A deposition concerning the dates of the alleged unlawful practices would be relevant, but the adequacy of the date contained in the charge could and should be determined from the face of the charge. The other two areas into which the district court allowed discovery would not aid the inquiry permitted under sections 709 and 710. Moreover, whether Walsh’s charges were valid should have been determined from the face of those charges. Similarly, the legislative history of Title VII and the 1972 amendments to Title VII do not support the district court’s discovery order.
The judicially created standards for the enforcement of administrative subpoenas also fail to provide support for the district court’s order. In United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950), a case involving the investigatory powers of the Federal Trade Commission, the Supreme Court held that an agency’s investigatory power extends to matters where the “inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant.” In United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), the Court held that the Internal Revenue Service did not need to meet any standard of probable cause to obtain enforcement of an administrative summons. Instead, the Commissioner “must show [1] that the investigation will be conducted pursuant to a legitimate purpose, [2] that the inquiry be relevant to that purpose, [3] that the information sought is not already within the Commissioner’s possession, and [4] that the administrative steps required by the Code have been followed.” Id. at 57-58, 85 S.Ct. at 254. The standards articulated in United States v. Powell have been followed in subpoena enforcement actions initiated by the EEOC, the Internal Revenue Service, and the Securities and Exchange Commission.
It is well settled that the investigatory powers of the EEOC should be interpreted broadly. EEOC v. University of Pittsburgh, 643 F.2d 983 (3d Cir.), cert. denied, 454 U.S. 880, 102 S.Ct. 362, 70 L.Ed.2d 190 (1981); EEOC v. University of New Mexico, 504 F.2d 1296 (10th Cir.1974); Motorola, Inc. v. McLain, 484 F.2d 1339 (7th Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 287 (1974); EEOC v. Cambridge Tile Manufacturing Co., 590 F.2d 205, 206 (6th Cir.1979). The EEOC has the initial responsibility to determine the coverage of Title VII. EEOC v. Quick Shop Markets, Inc., 526 F.2d 802 (8th Cir.1975). Sections 709 and 710 of Title VII authorize the EEOC to issue subpoenas during its investigations, 42 U.S.C. §§ 2000e-8(a) and 2000e-9. The subpoenas must.be issued in connection with an investigation of a charge and be relevant to that charge. 42 U.S.C. § 2000e-8(a); University of Pittsburgh, 643 F.2d at 986. Moreover, the subpoena cannot be so broadly stated as to constitute a “fishing expedition.” University of New Mexico, 504 F.2d at 1301-1302.
In order to obtain enforcement of an administrative subpoena, the EEOC usually does not have to prove either probable cause, University of New Mexico, 504 F.2d at 1303, or reasonable cause to believe that the charge of discrimination is true. Graniteville v. EEOC, 438 F.2d at 36; EEOC v. South Carolina National Bank, 562 F.2d 329 (4th Cir.1977); EEOC v. Chrysler Corp., 567 F.2d 754, 755 (8th Cir.1977). Indeed, the purpose of the investigation is to determine whether probable cause, EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 312 (7th Cir.1981), or reasonable cause to bring a discrimination charge exists. Chrysler Corp., 567 F.2d at 755; Graniteville, 438 F.2d at 36. The EEOC, however, has the burden of establishing the four requirements articulated in Powell. University of Pittsburgh, 643 F.2d at 985. Moreover, as noted previously, a valid charge of discrimination is a jurisdictional prerequisite in subpoena enforcement proceedings. Graniteville, 438 F.2d 32.
The EEOC must establish probable cause to believe that the charge is true where the employer raises a substantial question that judicial enforcement of the subpoena would constitute an abuse of the court’s process. Bay Shipbuilding, 668 F.2d at 313;. South Carolina National Bank, 562 F.2d at 332. In South Carolina National Bank, the court ordered enforcement of the EEOC’s subpoena because the employer failed to show that production would be burdensome or that the action had been brought in bad faith merely to harass the employer. Id. at 332. Similarly, in Bay Shipbuilding, 668 F.2d at 311, the Court ordered enforcement of the EEOC’s subpoena without requiring an evidentiary hearing or oral argument. The Court reasoned the district court was empowered to act summarily because the employer failed to show that the investigation was undertaken for an ulterior purpose.
In EEOC v. First Alabama Bank of Birmingham, 440 F.Supp. 1381 (N.D.Ala.1977), aff’d., 611 F.2d 132 (5th Cir.1980), however, the Court refused to enforce an administrative subpoena issued by the EEOC. The Court concluded that both the issuance of the subpoena and the application for court enforcement were for an improper purpose: the personal vendetta of the EEOC investigator, thereby creating questions concerning the EEOC’s good faith.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
James WILLIAMS et al., Plaintiffs-Appellants, v. The KROGER COMPANY and Local Union No. 957, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants-Appellees.
No. 16774.
United States Court of Appeals Sixth Circuit.
Dec. 1, 1966.
Paul H. Tobias, Cincinnati, Ohio, for appellants.
J. Mack Swigert, Cincinnati, Ohio, Thomas D. Heekin, Cincinnati, Ohio, on brief, William F. Sherman, Cincinnati, Ohio, of counsel, for Kroger Co.
Robert C. Knee, Dayton, Ohio, for Local Union 957, et al.
Before WEICK, Chief Judge, and O’SULLIVAN and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
This is an appeal from an order granting summary judgment and dismissing a suit brought by some twenty employees against Local Union 957 and the Kroger Company under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (a).
The Kroger Company had warehouses in Cincinnati and Dayton, Ohio. Affiliated local unions of the International Brotherhood of Teamsters represented employees at each warehouse under separate contracts: Local 957 at the Dayton warehouse and Local 100 at the Cincinnati warehouse.
The controversy arose when Kroger closed the Dayton warehouse and transferred its operations to Cincinnati. Appellants were given the choice of either receiving vacation and severance pay or of being transferred to Cincinnati, where they would lose the seniority rights acquired under Kroger’s contract with Local 957. Appellants elected to be transferred but undertook to preserve their seniority rights under the collective bargaining agreement by filing a grievance with Local 957. This grievance was processed only through the initial steps of the grievance procedure. Both the Local 957 and Local 100 contracts provide for grievance procedure culminating in arbitration.
In their complaint appellants seek a declaratory judgment to the effect that under the Local 957 agreement they have retained seniority rights for purpose of job assignment. They also seek $10,000 in compensatory damages and $20,000 in punitive damages.
The collective bargaining agreement between Kroger and Local 957 contains the following provisions:
“Section 54 The parties recognize that from time to time the needs of the business may require changes in operations, opening of facilities, closing of facilities, or transfers of certain operations. When an operation is transferred, jobs at the new location which become available within the first 60 days after the transfer will first be offered to the employees based on seniority. Employees transferred shall be placed at the bottom of the appropriate seniority list at the new location for the purpose of lay-off and rehire. It is further understood and agreed that employees shall experience no break in their Company service as a result of the transfer, and will receive any benefits at the new location to which their total length of service entitles them. It is recognized that such changes may result in disputes regarding seniority rights. If and when such a dispute involves another local union of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, such dispute shall be first considered under Step 3 of the grievance procedure.”
The collective bargaining agreement between Kroger and Local 100 provides as follows: “On lay-offs, job assignments and rehiring the principle of seniority shall apply.”
It appears from the averments of the complaint that Kroger gave advance notice that employees transferred to Cincinnati would go to the bottom of the seniority list for all purposes, including job assignment. The complaint avers as follows:
“At a meeting on or about October 19, 1964, Company officials of a rank lesser than Mr. Korengel, informed some of the Plaintiffs that after the transfer to Cincinnati, plaintiffs would not be assigned to the jobs which become available at Woodlawn as a result of the transfer, that they would lose their jobs and go to the bottom of the seniority list at Woodlawn for all purposes, including job assignment.”
In dismissing the action, the District Judge said:
“About October 12, 1964, plaintiffs were informed by Kroger that Kroger contemplated closing the Willowburn [Dayton] warehouse and transferring its operation there to Woodlawn [Cincinnati] . They were informed on October 19, 1964, that they would lose their seniority rights for all purposes including job assignment if they accepted transfer and they were given the alternative of accepting severance and vacation pay in lieu of transfer.
“In transferring, plaintiffs moved out of the geographical or territorial jurisdiction of Local 957 in Dayton, and into the jurisdiction of Local 100 in Cincinnati. Local 100’s agreement with Kroger provides that any transferees lose their seniority for practically all purposes. Local 100, of which plaintiffs are now members, is the ex-elusive bargaining agent for its members.
“On November 11, 1964, plaintiffs filed a grievance with Local 957. This grievance has never been processed beyond initial steps even though Local 957 officials represented that they were processing it. Plaintiffs contend that their acceptance of the transfer was conditioned upon said grievance and their understanding that their rights would be determined pursuant to the procedure of Local 957. The amended complaint alleges further that the defendants and Local 100 held at least two secret meetings at which they decided not to process the grievance and that plaintiffs should lose their seniority rights.
“The affidavits of Frank Dull, President of Local 957, and Claude Stewart, Business Manager of Local 957, state that they did not process the grievance since they felt it was without merit and that plaintiffs were informed of this in March, 1965. They further stated that they met with Kroger officials prior to and after the grievance was filed in order to work out the problems forming the basis of it. They have no longer attempted to represent plaintiffs since they are now members of Local 100.
“There are also on file the affidavits of R. D. Wuerfel, Personnel Manager of Kroger, and W. R. Bedell, of Kroger’s Labor Relations Department. The former states that plaintiffs were informed of the consequences of the transfer and voluntarily made it and that Kroger has never refused to consider the grievance under the procedure of the Local 100 contract. The latter states that at the grievance meeting in Indianapolis on April 6 and 7, 1965, the dispute forming the basis of this suit was not presented and Kroger has not been requested to discuss it.
“Plaintiffs have also filed a second grievance under the procedure of the Local 100 contract. This grievance has not been resolved but is in the process of consideration.”
We agree with the District Judge that Kroger has followed the procedure required by the above quoted Section 5.4 of its contract with Local 957. Appellants therefore have failed to state a claim for breach of contract against Kroger for which relief can be granted under § 301. There being no showing of bad faith or dishonesty of purpose on the part of the Union, appellants cannot recover against the Union under § 301 for its failure to process a grievance which it found to be without merit. Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L.Ed.2d 370, rehearing denied, 376 U.S. 935, 84 S.Ct. 697, 11 L.Ed.2d 655; Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048.
We conclude that the district court was correct in granting summary judgment.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Lelia Grace FISHER, Appellant, v. The UNITED STATES LIFE INSURANCE COMPANY IN CITY OF NEW YORK, a body corporate, Appellee.
No. 7400.
United States Court of Appeals Fourth Circuit.
Argued Oct. 9, 1957.
Decided Nov. 8, 1957.
W. Giles Parker and Wylie L. Ritchey, Baltimore, Md., for appellant.
William B. Kempton, Baltimore, Md. (Robert E. Coughlan, Jr., Baltimore, Md., and Saul Lesser, New York City, on brief), for appellee.
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
HAYNSWORTH, Circuit Judge.
This is a suit upon a group life insurance policy. In accordance with the well considered views expressed in a written opinion, judgment was entered for the defendant upon a verdict of a jury which found that the plaintiff’s decedent was not an employee of a named employer within the meaning of the insuring clauses of the policy. Fisher v. United States Life Insurance Company in the City of New York, D.C., 145 F.Supp. 646. The beneficiary, by this appeal, asserts that the defense is unavailable under the terms of the incontestable clause and that her motion for judgment non obstante veredicto should have been granted.
The defendant insurance company issued its group life insurance policy in New York to the Trustees of the Oil Heat Institute of America, Distribution Division, Insurance Trust Fund, as the assured, for the benefit of employees of those heating oil dealers and distributors who chose to participate. One of the participating employers was Herman H. Fisher, Inc., of Baltimore, Maryland. The plaintiff’s decedent was the founder and the president of that company.
The policy provided life insurance for certain executive, administrative and supervisory employees, individual proprietors or partners, and provided that each employee within the defined classes, actively at work with a contributing employer on the effective date of the policy, should become insured as of that date, while each employee subsequently becoming eligible should become insured as of the date of his subsequent eligibility. The policy then specifically provided that if any employee is not regularly performing the duties of his occupation on the date he would otherwise become insured under the policy, the effective date of the insurance of such employee shall be deferred until his return to active duty. The insurance as to any employee was to terminate automatically thirty-one days after termination of his employment, and cessation of active work in a class of eligible employees was, by definition, a termination of employment, except that an employee temporarily on part-time employment, or absent because of sickness or injury, was considered to be continuously employed so long as premiums were paid.
The policy provided that all premiums, should be paid by the assured trustees and they should be non-contributory in the sense that no employee should make a contribution to the premium cost.
No individual applications or medical examinations were required. Each contributing employer sent to the trustees a list of his eligible employees together with funds to cover the premium cost of such insurance. These lists of eligible employees, together with the premium payments, were then delivered by the trustees to the insurance company. Under the terms of the insurance policy, the effectuation of the insurance was then automatic as to all eligible employees for whom the premium payment had been made. Indeed, the policy specifically provided that “The insurance shall not be invalidated by the Assured’s failure due to clerical error, to give proper notice to the Company that an employee has become insured under this policy." However, the policy provided that the insurance company would issue to the assured for delivery to each insured employee a certificate setting forth a summary of the provisions of the insurance policy, specifying the face amount of the insurance and recording the designated beneficiary.
The pertinent provisions of the policy, summarized above, are set forth in full in the margin.
Prior to the effective date of the insurance policy, Herman H. Fisher, the President of Herman H. Fisher, Inc., had suffered a cerebral embolism resulting in paralysis, and he had other mental and physical ailments. Until his death, some two and a half years after the issuance of the insurance policy, he was receiving total and permanent disability-payments under other insurance, and the jury has found that neither on the effective date of this insurance policy nor thereafter was he “regularly performing the duties of his occupation,” within the meaning of that provision of the policy which fixes the effective date of an employee’s insurance. Nonetheless, his name was included on the list- of eligible employees of Herman H. Fisher, Inc., and the insurance company issued its certificate in his name, upon which some of the provisions of the policy were summarized while others were quoted in full, the amount of the insurance was specified and the plaintiff was named as beneficiary. In the certificate, the company’s certification that Mr. Fisher, an employee, is insured under the terms of the master policy, that it would pay the face amount to the plaintiff upon his death, and that the insurance was effective as of October 1, 1952, is qualified by the words “(Provided employee is then regularly performing the duties of his occupation).”
Our consideration of this ease is not complicated by any fact or circumstance which would warrant any claim of waiver or of estoppel. The single question presented is whether or not the incontestable clause bars the defense that the plaintiff’s decedent, under the applicable terms of the insurance policy, had never become insured.
As the District Judge clearly pointed out in his opinion, it is well settled in general, and in New York whose laws govern our decision in this case, in particular, that the incontestable clause, after the passage of the stipulated period, proscribes defenses which go to the validity of the policy whether because of noncompliance with conditions or the falsity of representations or warranties. It was never intended to enlarge the coverage of the policy, to compel an insurance company to insure lives it never intended to cover or to accept risks or hazards clearly excluded by the terms of the policy. As then Chief Judge Cardozo, speaking for the New York Court of Appeals in Metropolitan Life Insurance Co. v. Conway, 252 N.Y. 449, 169 N.E. 642, said:
“The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken. * * * With such a clause the death of the insured, coupled with the payment of the premiums, will sustain a recovery in the face of a forfeiting condition. It is quite another thing to say that the same facts will prevail against a refusal to assume the risk.”
See also the opinion of Judge Chesnut, speaking for this Court, in Equitable Life Assurance Society of the U. S. v. Deem, 4 Cir., 91 F.2d 569.
The defense here is not that Mr. Fisher was not in good health on the date the group policy was issued or, indeed, that any condition or representation has been violated. The defense is simply that it is the clear intendment of the policy that all employees, within the definition of the policy, of each participating employer, were to be insured provided only the requisite premium payments were made, while persons not so employed are not within the coverage of the policy. Clearly it was the intention of the parties to the master policy to provide insurance for the benefit of people actively employed by participating employers, but, as clearly, the limitations they provided foreclose any assumption that it was intended that other persons might be covered by the insurance or that a particular employer, on a selected basis, might extend the insurance to a stranger to the defined class merely by reporting his name to the trustees and remitting the requisite premium.
The provision of the policy, expressly extending the insurance for the protection of an employee even though his name by clerical error had never been reported to the insurance company, emphasizes the fact that, subject only to the payment of the requisite premiums, the insurance was intended to extend to all members of a defined class, but to no one who was not a member of the insured class.
The individual certificates issued by the insurance company are not a part of the contract, which is contained entirely in the application of the trustees and in the group insurance policy issued to them. The certificates contain no insuring clauses or undertakings beyond the provisions of the contract and the plaintiff’s case cannot be founded upon the issuance of a certificate in the name of Mr. Fisher. See Boseman v. Connecticut General Life Insurance Co., 301 U.S. 196, 57 S.Ct. 686, 81 L.Ed. 1036, 110 A.L.R. 732. The incontestable clause contained in the policy, itself, not in the certificate, must be construed, therefore, to prohibit any defense which would deny, in effect, the validity or effectiveness of the group contract. But here the defense asserts the validity of the group contract and seeks to have it applied according to its expressed and unequivocal terms.
Our conclusion is supported by the holding of the Supreme Court of Michigan in Rasmussen v. Equitable Life Assurance Society of the United States, 293 Mich. 482, 292 N.W. 377, 379. There a group insurance policy excluded from the defined class of covered employees those who had reached or passed their fortieth birthday. Though the particular employee was found to have reached his fortieth birthday prior to the effective date of the insurance, the defense on that score was held to be not one of invalidity, but one of coverage, and the incontestable clause in the group contract was held not to bar the defense. The Court said in that case:
“The understatement of age where the ambit of the group policy is expressly limited to a given age class does not come within the protection of the incontestability provision, any more than the misstatement that one is an employee when in truth he is a stranger to the group to be covered. * * * This is not a case where the company is contesting its contract. It is insisting that the contract is complete and incontestable, and that by its very terms plaintiff’s decedent, because of his age, was not entitled to its benefits.”
The Appellate Court for the Ninth District of Ohio in Aetna Life Insurance Co. v. Hooper, 1935, 19 Ohio Law Abst., 123, reached a similar conclusion saying:
“The evidence disclosed by the record herein fails to show that the plaintiff was at any time one of those persons within the class entitled to the benefit of the contract between the employer and the defendant ; and until such showing, he had no enforceable rights under the policy in question, and the policy provision with reference to its being incontestable did not come into operation.”
We do not understand the decision, without opinion, of the New York Court of Appeals in Eagon v. Union Labor Life Insurance Co., 3 N.Y.2d 785, 164 N.Y.S.2d 37, to require a conclusion that under the law of New York the question of membership in the defined class should be treated as one of validity rather than of coverage. In that case suit was filed by the named beneficiary of a certificate holder under a group insurance contract limited by its terms to members of a union. The plaintiff’s decedent was not at the time of the effective date of the policy, nor thereafter, a member of the union. The policy in that case had been issued to the union and while it had never certified to the insurance company that the plaintiff’s decedent was a member of the union, premiums were paid and accepted on his behalf. The briefs and record in that case indicate that the primary contention of the plaintiff was that the insurance company was shown by its own records to have been informed of the situation and, thereafter, continued, until his death several years later, to accept the plaintiff’s decedent as one of the persons whose lives were covered by the policy.
Suit in the Eagon case was initially instituted in the Municipal Court for the Borough of Manhattan which entered a judgment for the beneficiary. The judgment was affirmed by the Appellate Term of the Supreme Court, one justice dissenting. On appeal to the Appellate Division, the judgment was again affirmed, one justice dissenting. 2 A.D.2d 843, 156 N.Y.S.2d 57. While the dissenting opinion in the Appellate Division deals entirely with the principle that the incontestable clause does not bar the defense that the plaintiff’s decedent was not within the insured class, making no reference to the elements of estoppel which were urged by the plaintiff as a ground for recovery nor to the fact that the incontestable clause in the Eagon case contained language which the majority might have construed to have been specifically intended to prohibit the questioning of the status of a certificate holder after one year, we cannot assume that the majority in the Appellate Division, in affirming, without opinion, the judgment below, were rejecting the reasoning of the dissenting justice and were not affirming the judgment upon the other grounds urged. When the Court of Appeals affirmed the judgment of the Appellate Division, again without opinion, its action must be taken as an approval of the result, but cannot be construed to be a rejection of the reasoning upon the one point considered by the dissenting justice below when there were other grounds urged in support of the judgment. See L. N. Jackson & Co., Inc., v. Lorentzen, D.C.S.D.N.Y., 83 F.Supp. 486. Indeed, it would be supposed that had the New York Court of Appeals intended to modify the basic principle so clearly stated by Chief Judge Cardozo in Metropolitan Life Insurance Co. v. Conway, 252 N.Y. 449, 169 N.E. 642, or to substantially restrict the application of the principle of that ease, it would not have affirmed the judgment below without opinion. But if we are permitted to consider the action of the New York Court of Appeals in affirming the judgment, without opinion, as approval of the result only and not of the legal reasoning of a lower court, we cannot speculate that it was intended as a rejection of the reasoning of the dissenting justice below or a departure from the principle of the Conway case as applied to the coverage of group life insurance contracts.
In John Hancock Mutual Life Insurance Co. of Boston, Mass. v. Dorman, 9 Cir., 108 F.2d 220, it appears that the group insurer contested the claim of a widow of a director upon the ground that he was not an employee within the meaning of the group insurance contract because he served without compensation. The Court rejected the basic contention, holding that the director was an employee and was within the coverage of the contract. It proceeded, however, to discuss the effect of the incontestable clause indicating that under the law of California the incontestable clause would bar the defense that the individual was not an employee at the inception of the policy, but would not bar the defense that he was not an employee within the meaning of the insurance contract at the time of his death. However, having found that the particular individual was in fact an employee within the coverage of the policy, what it said of the incontestable clause under the laws of California was unnecessary to its decision and does not modify our view of the laws of New York.
Bearing in mind the fundamental purpose of the parties to provide life insurance for employees actively engaged in pursuing their occupations as such and to avoid extending the coverage of the insurance to strangers to that defined employment relationship, we conclude that the incontestable clause in the language used here does not foreclose the defense that a particular individual was a stranger to the defined employment relationship and was not within the coverage of the policy at the time of the effective date of the master policy or thereafter.
We have given consideration to the statutes of the State of New York controlling group insurance contracts and prescribing certain required conditions which must be met by their terms. The provisions of the group insurance contract in question here fully comply with the requirements of the New York statutes, however, and nothing has been found in those statutes which affects our construction of the language of the policy.
The judgment of the District Court is affirmed.
. “Employees Eligible
“Definition: The term ‘employee’ as used in this policy shall mean all actively employed officers, executives, division and department heads including individual proprietors and partners actively employed in their occupation provided that such employee’s annual earnings from the contributing employer or as proprietor or partner are not less than $5,000.00.
“Each employee as defined above actively at work with a contributing employer on the effective date of the policy shall be eligible for insurance hereunder on such effective date; each employee not eligible on the effective date of the policy shall become eligible hereunder on the date he becomes actively employed with a contributing employer; provided, however, that the following classes of employees are excluded from insurance under this policy:
“Employees of an employer who has only one employee as defined herein. *****
“Effective Date Of An Employee’s Insurance
“Each employee becoming eligible as of the effective date of this policy shall become insured as of that date. Each employee becoming eligible after the effective date of this policy shall become insured as of the date of his eligibility; provided, however, that in any instance when an employee is not regularly performing the duties of his occupation on the date he would become insured in accordance with the terms of this paragraph, the effective date of such employees insurance shall be deferred until his return to active duty. The insurance shall not bo invalidated by the Assured’s failure due to clerical error, to give proper notice to the Company that an employee has become insured under this policy.
“This policy provides insurance on the non-contributory basis. Non-contributory insurance is insurance for which an employee does not contribute toward the cost.
“Termination Of Employee’s Insurance
“The insurance of an employee shall automatically terminate at the earliest time indicated below except as may be hereinafter provided:
“(a) Thirty-one days after termination of employment. Cessation of active work in the classes of employees eligible for insurance shall bo deemed termination of employment, except that while an employee is temporarily on part-time employment or is absent on account of sickness or injury, employment shall be deemed to continue until premium payments for such employee’s insurance are discontinued. The insurance of an employee who is absent from active work because of temporary lay-off, leave-of-absence, or temporary work stoppage, may be continued by the Assured upon a plan precluding individual selection, but not beyond the expiration of a period of thirty-one days following the policy month in which such temporary lay-off, leave-of-absence, or temporary work stoppage commenced.
“(b) For non-payment of premiums by the Assured on behalf of an employee in which event such insurance shall automatically terminate at the end of the period for which premium has been paid.
“(c) Upon termination of this policy except as may be provided under ‘Conversion Privilege’ hereof.
*****
“Certificates
“The Company will issue to the Assured, for delivery to each insured employee, a certificate setting forth a summary of the essential features of the insurance coverage to which the employee is entitled and to whom the benefits are payable.
* * * £ *
“Clerical error in keeping the records shall not invalidate insurance otherwise validly in force nor continue insurance otherwise validly terminated, but upon discovery of such error an equitable adjustment of premiums shall be made.
* * * * *
“The Contract
“This policy, the application of the Assured attached hereto, and the individual applications, if any, of the employees, constitute the entire contract between the parties hereto. All statements made by the Assured, or by the individuals insured, shall, ixx the absence of fraud, bo deemed representations and not warranties, and no statement shall avoid the insurance, or be used in defense of a claim under it, unless it is contained in a wi’itten application.
“The rights of the Assured or of any insured employee or of any beneficiary under this policy shall not be affected by any provision other than one contained in this policy or in the copy of the Assured’s application attached hereto or in the individual application of an insured employee.
“No agent is authorized to alter or amend this policy, to accept premiums in arrears or to extend the due date of any premium, to waive any notice or proof of claim required by this policy, or to extend the date before which any such notice or proof must be submitted. No change in this policy shall be valid unless approved by the Company and evidenced by endorsement hereon, or by amendment hereto signed by the Assured and by the Company.
“Incontestability
“This policy shall be incontestable after one year from the date of issue except for non-payment of premiums.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph Daniel BACA, Defendant-Appellant.
No. 81-1542.
United States Court of Appeals, Tenth Circuit.
Aug. 27, 1982.
Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
Ben Silva, Asst. U. S. Atty., Albuquerque, N. M. (R. E. Thompson, U. S. Atty., and Stanley K. Kotovsky, Jr., Asst. U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
Joseph Daniel Baca appeals his convictions for possession of heroin with intent to distribute it, and for distribution of heroin, both violations of 21 U.S.C. § 841(a).
A security guard at a vocational school saw Baca, a part-time student there, in the school parking lot crouched down beside his car with another man and a woman. The guard approached closely and watched Baca furtively pour gray powder from a small bottle into a plastic bag. When Baca saw the security guard, he yelled “run” and dropped the bottle. The guard seized the woman, the bottle, and a $10 bill she had in hand. Later, the Albuquerque police arrested Baca. A chemical analyst for the Albuquerque Police Department tested the powder in the bottle and concluded it was heroin. The State of New Mexico brought charges against Baca, but dropped them six months later. After another six months, pursuant to an order of the state court, the Albuquerque police destroyed the heroin. Soon thereafter, Baca was indicted, tried, and convicted of the federal offenses from which he has taken this appeal.
On appeal Baca contends (1) his due process and Brady rights were violated because he was convicted without the powdery substance being introduced into evidence, and because he was not able to independently test the substance to determine whether it was heroin; (2) he received ineffective assistance of counsel; (3) he was prejudiced by unreasonable delay occurring before he was indicted on federal charges; and (4) he was not mentally competent at the time of trial.
This Court previously has held that absent bad faith or fraudulent purpose on the part of the government, the destruction of evidence prior to trial does not necessitate reversal of a criminal conviction. Chandler v. United States, 318 F.2d 356 (10th Cir. 1963). When evidence has been lost or destroyed, courts engage in “a case-by-case assessment of the government’s culpability for the loss, together with a realistic appraisal of its significance when viewed in the light of its nature, its bearing upon critical issues in the case and strength of the government’s untainted proof.” United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980); accord United States v. Picariello, 568 F.2d 222, 227 (1st Cir. 1978); United States v. Heiden, 508 F.2d 898, 902 (9th Cir. 1974). While the possibility of unprovable governmental wrongdoing is greater when, as here, the evidence was destroyed before rather than after the indictment of defendant on the federal charges, no court appears to have applied any different analysis in the two situations. See, e.g., United States v. Grammatikos, 633 F.2d at 1018-22; United States v. Traylor, 656 F.2d 1326, 1334-35 (9th Cir. 1981); United States v. Henry, 487 F.2d 912 (9th Cir. 1973).
In the instant case evidence was destroyed not by federal authorities but by state officers pursuant to an apparently routine order of the state district court. Baca attempts to show bad faith in that the federal charges were brought shortly after the state destroyed the powder — implying that the state found the substance was not heroin, and the federal authorities, aware of that fact, purposefully delayed prosecution until after the destruction. But nothing appears in the record to show collusion or even contact between state and federal authorities prior to the destruction of the powder. The state dropped its charges in part because of Baca’s heroin addiction and mental problems. Nothing appears in the record why the federal government delayed its prosecution, although it has a policy against duplicating state prosecutions arising out of the same factual circumstances. See Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450, 451, 4 L.Ed.2d 490 (1960). Baca makes no showing of culpability on the part of the federal government for the loss of this evidence, and we decline to adopt a per se rule that destruction of important evidence by state officers prior to the issuance of a federal indictment precludes the federal government from prosecuting for violation of its laws.
Turning now to the significance of the loss of the evidence, the destroyed powder is important to this case because an essential element of the government’s burden of proof was to show that it was heroin. The ideal situation is to have the substance available for testing by the defendant. But the legal question is whether Baca was denied a fair trial because the powder was not available. See United States v. Wilks, 629 F.2d 669, 674 (10th Cir. 1980); accord United States v. Traylor, 656 F.2d 1326, 1334-35 (9th Cir. 1981) (destruction of cocaine by state authorities apparently prior to federal indictment). Baca alleges he was prejudiced because he was not able to determine whether the Albuquerque Police Department had correctly concluded that the powder was heroin. However, lack of independent verification alone is not enough to demonstrate prejudice. If it were, the government would never be permitted to prosecute when key evidence is inadvertently lost, destroyed, or stolen. In the instant case, other evidence exists to support the claim that the substance was heroin.
The Albuquerque police department expert who analyzed the powder testified regarding five standard tests he utilized to identify the substance as heroin. Baca challenges the analyst’s credentials and the accuracy of the testing process; but these issues go to credibility and were for the jury to consider. The analyst had five years experience, had taken 36 semester hours of college level chemistry, and had tested heroin approximately 50 times. We do not find either the analyst or the testing procedures so lacking in credibility as to create such substantial doubt about the identity of the substance that we should reverse the conviction as a matter of law. See State v. Chouinard, 96 N.M. 658, 634 P.2d 680, 684-85 (1981). Supporting the analyst’s expert opinion is an Albuquerque police detective’s testimony that he had a chemical technician field test the powder and “it proved to be heroin.” R.IV, 85. Also, Baca admittedly was addicted to heroin, and at the time of the seizure of the bottle at least one of his companions had needle marks consistent with recent heroin usage. Furthermore, the state’s charge against Baca for heroin possession was not dropped until about six months after Baca’s arrest. During that time his experienced legal counsel did not seek to independently examine the powder, which was still available for testing. Apparently defense counsel did not know the powder had been destroyed until the time of trial on the federal charges, and, prior to trial, he did not seek a test of the substance. We conclude that Baca has given no substantial reason to doubt that the powder was heroin. See United States v. Traylor, 656 F.2d at 1335; United States v. Arra, 630 F.2d 836, 849-50 (1st Cir. 1980).
Baca’s claim of ineffective assistance of counsel is tested by whether he received “the skill, judgment and diligence of a reasonably competent defense attorney.” See Dyer v. Crisp, 613 F.2d 275 (10th Cir.), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). Baca contends his trial counsel fell short of the mark because he failed to seek a sample of the powdery substance for independent examination. But this could have been a strategic decision since the government’s case would have been strengthened if Baca’s experts had confirmed that the substance was heroin and that information had come to the attention of the jury. The other alleged shortcomings to which Baca points are either strategic decisions or the sort of minor errors that occur in nearly every trial. The record shows Baca’s counsel provided a vigorous defense. Any impropriety with regard to Baca’s appeal was cured when the appeal was allowed, albeit belatedly.
Baca’s third claim is that he was impermissibly prejudiced by unreasonable delay between his arrest and his indictment on federal charges. Although thirteen months elapsed between Baca’s arrest and the federal indictment, half of this time was consumed by the state’s aborted prosecution. Baca’s claim of prejudice by the delay is insubstantial, and Baca has made no showing that the government deliberately delayed prosecution to its advantage. See United States v. Marion, 404 U.S. 307, 324-25, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971); United States v. Revada, 574 F.2d 1047, 1048 (10th Cir. 1978).
Finally, Baca claims that at the time of trial he was mentally incompetent.
That issue was raised at trial, and the judge ordered Baca examined, first by a local psychiatrist and later for a thirty-day period by the staff of the Medical Center for Federal Prisoners. Based upon the medical testimony, the trial court found Baca to be competent, a conclusion we must accept unless it is clearly erroneous. See Arnold v. United States, 432 F.2d 871, 874 (10th Cir. 1970). Although the doctor who testified on behalf of the Medical Center had not personally examined Baca, he was qualified to present summaries of the other doctors’ evaluations. We have reviewed the medical reports and testimony and hold that the trial court’s conclusion as to competency was not clearly erroneous.
AFFIRMED.
. The allegation is not properly founded on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). There is no showing that the destroyed powder would have been exculpatory or that the government suppressed the evidence. See United States v. Augenblick, 393 U.S. 348, 355-56, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969); Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 308, 7 L.Ed.2d 256 (1961); United States v. Arra, 630 F.2d 836, 848 (1st Cir. 1980). Under the test discussed below the courts concentrate on both the fault of the government and the prejudice to a defendant when evidence is lost or destroyed. Few of the cases focus on whether the power to sanction is founded on the court’s interest in protecting the judicial process from the illegal conduct of government officers, see Casey v. United States, 276 U.S. 413, 425, 48 S.Ct. 373, 376, 72 L.Ed. 632 (1928) (Brandéis, J., dissenting), or upon the defendant’s due process rights. We think that in ail but the most outrageous cases, if sanctions are imposed because of governmental misconduct they are based upon the supervisory power of the courts. Cf. United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366 (1973) (“[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction .. . [but the government’s supplying a critical substance in methamphetamine production] is distinctly not of that breed.”) Insofar as sanctions are based upon prejudice to the defendant, we think the foundation is the Due Process Clause, since the test we apply is whether the defendant could or did receive a fair trial under the circumstances. See United States v. Wilks, 629 F.2d 669, 674 (10th Cir. 1980); United States v. Picariello, 568 F.2d 222, 227 (1st Cir. 1978).
. We do not imply counsel had a duty to seek a test during the state prosecution, especially since he succeeded in having the state charges dismissed.
. This failure is alleged by counsel representing Baca on appeal as evidence of incompetent representation at trial. Appellant’s Br. 25. Defense counsel objected to the police analyst’s testimony on the basis of insufficient foundation as to chain of custody (R.IV, 99, 108), and asked for dismissal at the close of trial because the government failed to produce the heroin (R.V, 241). But Baca’s principal defense, rejected by the jury, was insanity.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
KERR et al. v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA et al.
No. 74-1023.
Argued November 11, 1975
Decided June 14, 1976
Marshall, J., delivered the opinion of the Court, in which all Members joined except Stevens, J., who took no part in the consideration or decision of the case.
Karl S. Mayer, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Deraid E. Oranberg, John T. Murphy, Jean M. Bor don, Deputy Attorneys General, and Edward P. O’Brien, Assistant Attorney General.
B. E. Bergesen III argued the cause for respondents. With him on the brief was Sidney M. Wolinsky.
Mr. Justice Marshall
delivered the opinion of the Court.
Petitioners, defendants in a class action, sought issuance of writs of mandamus from the United States Court of Appeals for the Ninth Circuit to compel the District Court to vacate two discovery orders. The Court of Appeals refused to issue the writs. We hold that in the circumstances of this case — and particularly in light of the availability of an alternative, less extreme, path to modification of the challenged discovery orders — issuance of the writ is inappropriate. We therefore affirm.
I
Seven prisoners in the custody of the Department of Corrections of the State of California filed a class action in the United States District Court for the Northern District of California on behalf of themselves and “on behalf of all adult male felons who now are, as well as all adult male felons who in the future will be, in the custody of the California Department of Corrections, whether confined in an institution operated by the Department or on parole.” App. 370. Among the defendants in the action are petitioners in this case: the individual members of the California Adult Authority, the Administrative Officer of the California Adult Authority, and the Director of Corrections of the State of California. Plaintiffs’ complaint alleges substantial constitutional violations in the manner in which the California Adult Authority carries out its function of determining the length and conditions of punishment for convicted criminal offenders.
In the course of discovery, plaintiffs submitted requests for the production of a number of documents pursuant to Fed. Rule Civ. Proc. 34. Petitioners’ subsequent two petitions for writs of mandamus were concerned with two classes of documents that were part of these requests. The first class, part of a series of requests first made in June 1973, and which will be referred to here as the “Adult Authority files,” is generally composed of the personnel files of all members and employees of the Adult Authority, all Adult Authority documents relating to its past, present, or future operation, and all memoranda written by the Chairman of the Adult Authority within the preceding five years. The second class of documents with which we are concerned was first requested by plaintiffs in November 1973, and will be referred to here as the “prisoners’ files.” Plaintiffs requested the opportunity to examine the files of every twentieth inmate at each California Department of Corrections institution, App. 234; the class of documents, therefore, is composed of the correctional files of a sample of the prisoners in the custody of the California' Department of Corrections.
When presented with the request for the Adult Authority files, petitioners objected, claiming that the files were irrelevant, confidential, and privileged, and suggesting that they should not be required to turn over the files to plaintiffs without prior in camera review by the District Court to evaluate the claims of privilege. Plaintiffs moved, pursuant to Fed. Rule Civ. Proc. 37, for an order compelling discovery. App. 76. The District Court referred the matter to a Magistrate for findings and recommendations, and the Magistrate recommended that the District Court order production of the Adult Authority files without undertaking an in camera inspection of the files. The District Court accepted the Magistrate’s recommendations and ordered the production of the documents. Seeking to limit distribution of the personnel files of the Adult Authority members and their employees, however, the District Court issued a protective order limiting the number of people associated with the plaintiffs who could examine those documents:
“[N]o personnel file of any member of the Adult Authority, hearing representative or executive officer, nor any copy of any of its contents, shall be shown to any person except counsel of record for the plaintiffs and no more than a total of two investigators designated by such counsel, and then only to the extent necessary to the conduct of this action.” Pet. for Cert. xvi.
Dissatisfied with the District Court’s ruling, petitioners filed a petition for a writ of mandamus under 28 U. S. C. § 1651 (a), requesting the Court of Appeals for the Ninth Circuit to vacate the District Court’s order granting plaintiffs’ motion to compel discovery. The Court of Appeals denied the petition in an opinion filed on January 17, 1975. 511 F. 2d 192. It concluded first that since “the question of relevancy ‘is to be more loosely construed at the discovery stage than at the trial,’ 8 Wright & Miller, Federal Practice and Procedure, § 2008 at 41 (1970),” issuance of the writ on the grounds of the asserted irrelevance of the documents in question was inappropriate. Id., at 196. According to the Court of Appeals, discovery of the documents was part of “a proper line of attack” in the underlying lawsuit. Ibid. The court went on to observe that petitioners had no absolute privilege that would allow them to avoid production of the documents at issue. The court did recognize, however, the existence of a qualified common-law governmental privilege “encompassing and referred to sometimes as the official or state secret privilege,” id., at 198, that could conceivably cover the requested documents. But relying on this Court’s decision in United States v. Reynolds, 345 U. S. 1 (1953), the Court of Appeals indicated that because the assertions of privilege were not personally made by high-level officials of the California Adult Authority and because the assertions of privilege were lacking in what it saw to be the requisite specificity, issuance of the writ on grounds of privilege was inappropriate:
“Neither the Chairman of the [Adult] Authority nor the Director of Corrections nor any official of these agencies asserted, in person or writing, any privilege in the district court.
“The claiming official must ' “have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced” ’ [United States v. Reynolds, 345 U. S., at 8 n. 20, quoting from Duncan v. Cammell, Laird & Co., [1942] A. C. 624, 638,] and state with specificity the rationale of the claimed privilege. . . .
“In [this] suit, petitioners’ counsel merely raised a blanket objection covering any and all documents in request numbers 7, 14, 15, 18, 20, 21 and 22. Formally claiming a privilege should involve specifying which documents or class of documents are privileged and for what reasons, especially where the nature of the requested documents does not reveal an obviously privileged matter. . . .
“In sum, the petition fails to show such an [sic] usurpation by the district court that warrants the extraordinary remedy of writ of mandamus.” 511 F. 2d, at 198-199.
A similar course was followed with regard to the requests for the prisoners’ files. When petitioners, asserting grounds of privilege, objected to the requests, plaintiffs filed a motion to compel production which the District Court referred for findings and recommendations to a Magistrate. The Magistrate recommended that petitioners be required to produce up to 200 prisoner files subject to a protective order “that would restrict examination and inspection of inmate files to attorneys for plaintiffs and for their use only in connection with this lawsuit.” Pet. for Cert. xl. The District Court accepted the Magistrate’s recommendation, but added to the recommended protective order a requirement that no prisoner's file be turned over for examination without the inmate’s consent. Id., at xxxi, xxxiii. Petitioners then filed a petition for mandamus which the Court of Appeals denied by order and without opinion on December 18, 1974. Id., at xxiii.
Petitioners sought review in this Court of the denial of both petitions. We granted certiorari. 421 U. S. 987. (1975).
II
The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Will v. United States, 389 U. S. 90, 95 (1967); Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382-385 (1953); Ex parte Fahey, 332 U. S. 258, 259 (1947). As we have observed, the writ “has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” Will v. United States, supra, at 95, quoting Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). And, while we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of “jurisdiction,” Will v. United States, supra, at 95, the fact still remains that “only exceptional circumstances amounting to a judicial 'usurpation of power’ will justify the invocation of this extraordinary remedy.” Ibid.
Our treatment of mandamus within the federal court system as an extraordinary remedy is not without good reason. As we have recognized before, mandamus actions such as the one involved in the instant case “have the unfortunate consequence of making the [district court] judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him” in the underlying case. Bankers Life & Cas. Co. v. Holland, supra, at 384-385, quoting Ex parte Fahey, supra, at 260. More importantly, particularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation. It has been Congress’ determination since the Judiciary Act of 1789 that as a general rule “appellate review should be postponed . . . until after final judgment has been rendered by the trial court.” Will v. United States, supra, at 96; Parr v. United States, 351 U. S. 513, 520-521 (1956). A judicial readiness to issue the writ of mandamus in anything less than an extraordinary situation would run the real risk of defeating the very policies sought to be furthered by that judgment of Congress.
As a means of implementing the rule that the writ will issue only in extraordinary circumstances, we have set forth various conditions for its issuance. Among these are that the party seeking issuance of the writ have no other adequate means to attain the relief he desires, Roche v. Evaporated Milk Assn., supra, at 26, and that he satisfy “the burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Bankers Life & Cas. Co. v. Holland, supra, at 384, quoting United States v. Duell, 172 U. S. 576, 582 (1899); Will v. United States, supra, at 96. Moreover, it is important to remember that issuance of the writ is in large part a matter of discretion with the court to which the petition is addressed. Schlagenhauf v. Holder, 379 U. S. 104, 112 n. 8 (1964); Parr v. United States, supra, at 520. See also Technitrol, Inc. v. McManus, 405 F. 2d 84 (CA8 1968), cert. denied, 394 U. S. 997 (1969); Pacific Car & Foundry Co. v. Pence, 403 F. 2d 949 (CA9 1968).
When looked at in the framework of these factors, it would appear that the actions of the Court of Appeals in this case should be affirmed. What petitioners are seeking here is not a declaration that the documents in question are absolutely privileged and that plaintiffs can never have access to any of them. On the contrary, petitioners request only that “production of the confidential documents not be compelled without a prior informed determination by the district court that plaintiffs’ need for them in the action below outweighs their confidentiality.” Brief for Petitioners 77-78. Petitioners ask in essence only that the District Court review the challenged documents in camera before passing on whether each one individually should or should not be disclosed. But the Court of Appeals’ opinion dealing with the Adult Authority files did not foreclose the possible necessity of such in camera review. Its denial of the writ was based largely on the grounds that the governmental privilege had not been asserted personally by anyone eligible to assert it, and that it had not been asserted with the requisite specificity. The court apparently left open the opportunity for petitioners to return to the District Court, assert the privilege more specifically and through responsible officials, and then have their request for an in camera review of the materials by the District Court reconsidered in a different light:
“Since there may be information in the requested documents which should be protected, the petitioners may assert a privilege to a particular document- or class of documents, and perhaps seek in camera inspection, at the time the documents are discovered in the district court.” 511 F. 2d, at 198-199.
Petitioners contend that by denying the petition for mandamus the Court of Appeals has afforded them no remedy at all. To the contrary, we read the above-quoted language of the opinion as providing petitioners an avenue far short of mandamus to achieve precisely the relief they seek.
To the extent that the opinion below might be regarded as ambiguous, we are fortified in our reading of it by a recognition of the serious consequences which could flow from an unwarranted failure to grant petitioners the opportunity to have the documents reviewed by the trial judge in camera before being compelled to turn them over. Petitioners’ claims of privilege rest in large part on the notion that turning over the requested documents would result in substantial injury to the State’s prison-parole system by unnecessarily chilling the free and uninhibited exchange of ideas between staff members within the system, by causing the unwarranted disclosure and consequent drying up of confidential sources, and in general by unjustifiably compromising the confidentiality of the system’s records and personnel files. In fight of the potential seriousness of these considerations and in light of the fact that the weight to be accorded them will inevitably vary with the nature of the specific documents in question, it would seem that an in camera review of the documents is a relatively costless and eminently worthwhile method to insure that the balance between petitioners’ claims of irrelevance and privilege and plaintiffs’ asserted need for the documents is correctly struck. Indeed, this Court has long held the view that in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege. E. g., United States v. Nixon, 418 U. S. 683, 706 (1974); United States v. Reynolds, 345 U. S. 1 (1953).
Insofar as discovery of the prisoners’ files is concerned, it is true that the Court of Appeals’ order denying the petition for a writ of mandamus with regard to those files was issued without any statement of reasons for the denial. However, there is no reason to think that by its order the Court of Appeals meant to foreclose petitioners from following precisely the same avenue with regard to the prisoners’ files as it gave them the opportunity to follow with regard to the Adult Authority files.
We are thus confident that the Court of Appeals did in fact intend to afford the petitioners the opportunity to apply for and, upon proper application, receive in camera review. Accordingly the orders of the Court of Appeals are affirmed.
So ordered.
Mr. Justice Stevens took no part in the consideration or decision of this case.
The seven prisoners and the class they represent will be referred to here as “plaintiffs.”
The documents were specifically described in plaintiffs’ requests numbered 7,14, 15, 18, 20, 21, and 22:
“7. All files, including all personnel files, which are maintained by the Adult Authority or by the Department of Corrections, or by any officer or employee thereof, with respect to each member, each hearing representative, and the Executive Officer of the Adult Authority.”
“14. Each report submitted by any member, hearing representative, Executive Officer, or any other employee or official of the Adult Authority . . . .”
“15. All written statements written or delivered by any member or hearing representative or the Executive Officer of the Adult Authority during the past 5 years favoring, opposing, or in any way commenting upon bills or other legislation or legislative proposal pending in the U. S. House of Representatives, the Senate of the United States, or the California Legislature.”
“18. All written proposals for any change whatsoever in the organization or operation of, qualifications for, or substantive criteria and procedures to be employed by the Adult Authority . . . .”
“20. All memoranda written by the Chairman of the Adult Authority during the past 5 years, no matter to whom sent, including without limitation memoranda sent to other government organizations, agencies or officials, or to other members, hearing representatives, officials or employees of the Adult Authority.”
“21. All documents in effect on November 15, 1972 which pertain to any Policy Statement or Resolution issued by the Adult Authority, including without limitation any file maintained on any Resolution or Policy Statement and all such documents executed or issued subsequent to that date.”
“22. All documents, however formal or informal, issued during the past calendar year, which concern the Adult Authority’s adoption of new policies, procedures, criteria, and the like, to be followed by members, hearing representatives, officials and employees . . . .” App. 52-56.
Title 28 U. S. C. § 1651 (a) provides:
“The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
While it has not yet come to trial, there have been additional developments in the underlying case during the pendency of the instant action before this Court. Since none of these developments are relevant to the resolution of the issue before us, we simply summarize them.
Subsequent to the filing of the petition for certiorari in the instant case, plaintiffs filed a second amended complaint in the underlying action in which they added allegations which led petitioners in turn to request the appointment of a three-judge District Court to hear the case. See 28 U. S. C. § 2281. The single judge then hearing the case certified it to the Chief Judge of the Court of Appeals for the Ninth Circuit as one appearing to require the convening of a three-judge court. The Chief Judge appointed the three members of the court on October 28, 1975, several days before oral argument was held in the instant case. But soon thereafter plaintiffs amended their complaint once again. This subsequent amendment made the convening of a three-judge court appear unnecessary and the three-judge court dissolved itself, remanding the entire ease to the single judge originally assigned to the case. Thus, as the matter now stands, the underlying action is being heard by a single-judge District Court.
Subsequent to our grant of certiorari but before oral argument, plaintiffs represented to this Court that they “no longer seek any of the documents which are the subject of this appeal, because the trial of [the underlying] case in District Court will be completed before this Court is able to decide [the] issues before it.” Memorandum of Respondents Concerning Mootness of Pending Matter 1-2. They therefore suggested that we hold this case moot. Plaintiffs never advised the District Court that they did not want the documents.
We deferred decision on the suggestion of mootness until after oral argument. However, at oral argument counsel for plaintiffs stated that, because the trial date for the underlying action had been substantially delayed, they had changed their minds and did indeed want the documents. Tr. of Oral Arg. 38, 40-41. While no papers were filed here formally withdrawing the suggestion of mootness, plaintiffs’ representations at oral argument, combined with the fact that the trial of the underlying action has not yet taken place, leave us with no indication that this case is moot.
The use of extraordinary writs aside, it is only in narrowly defined circumstances, see 28 U. S. C. § 1292, that the appellate jurisdiction of the courts of appeals extends to interlocutory orders.
See Metros v. United States District Court for Dist. of Colo., 441 F. 2d 313 (CA10 1971).
See United States Board of Parole v. Merhige, 487 F. 2d 25 (CA4 1973), cert. denied, 417 U. S. 918 (1974).
Petitioners also assert, citing Ford Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945), and Edelman v. Jordan, 415.U. S. 651 (1974), that discovery of material which is actually the property of the State or its agencies is limited by the Eleventh Amendment. In view of our resolution of this case and the fact that petitioners did not raise this issue either in the discovery proceedings in the District Court or in their petition for mandamus to the Court of Appeals we need not reach this issue.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_procdis
|
E
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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court uphold the dismissal by district court on procedural grounds?" 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".
MUTUAL LIFE INS. CO. OF NEW YORK v. HAYNES.
No. 9972.
Circuit Court of Appeals, Sixth Circuit.
May 24, 1945.
Peck, Shaffer & Williams, of Cincinnati, Ohio, for appellant.
Graydon, Head & Ritchey, of Cincinnati, Ohio, for appellee.
Before HICKS, HAMILTON, and MARTIN, Circuit Judges.
PER CURIAM.
It appearing that the cause of the death of the insured under the life and accident insurance policy involved in this case is a question of medical science, and as the expert medical testimony in the record based on evidential facts is conflicting as to whether the insured’s death was caused primarily by his infirmities and, without their presence, death would not have occurred, or was caused primarily by a fall, the issue was one for the jury, and wherefore the only error assigned is the failure of the trial court to direct a verdict, the judgment is affirmed. Bridge v. Metropolitan L. Insurance Company, 142 Ohio St. 521, 53 N.E.2d 350; Painesville Utopia Theatre Company v. Lautermilch, 118 Ohio St. 167, 160 N.E. 683; United States Casualty Co. v. Thrush, 21 Ohio App. 129, 152 N.E. 796.
Question: Did the court uphold the dismissal by district court on procedural grounds?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_appel2_1_4
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". Your task is to determine what subcategory of business best describes this litigant.
Pamela TULLOS, Wife of/and Ronald David Tallos, Plaintiffs-Appellees Cross-Appellants, v. RESOURCE DRILLING, INC., and Superior Oil Company, Defendants-Appellants Cross-Appellees.
No. 84-3099
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 11, 1985.
Rehearing Denied Feb. 5, 1985.
Weigand, Weigand & Meyer, Joseph J. Weigand, Jr., Houma, La., for defendants-appellants cross-appellees.
Wiedemann & Fransen, Michael A. Fenasci, A. Remy Fransen, Jr., New Orleans, La., for plaintiffs-appellees cross-appellants.
Before WILLIAMS, JOLLY, and HILL, Circuit Judges.
ROBERT MADDEN HILL, Circuit Judge:
In this maritime action, the employer, Superior Oil Company (Superior), and the vessel owner, Resource Drilling, Inc. (Resource), are appealing the judgment of the district court as to the seaman status of the injured worker, Donald Tullos, the jury’s finding of negligence under general maritime law, the jury’s finding of only ten percent contributory negligence by the seaman and the seaman’s wife’s right to a claim for loss of consortium under general maritime law. The seaman on cross-appeal is challenging the remittitur allegedly forced on him concerning the award received by his wife for loss of consortium and the court’s failure to submit to the jury the issue of arbitrary and capricious denial of maintenance and cure benefits by his employer. Because the remittitur may not be challenged on appeal if agreed to as it was here, we do not reach that issue. We affirm the judgment of the district court except as follows: the case is reversed and remanded for submission to the jury of the issue of arbitrary and capricious denial of maintenance and cure.
I. Background
Donald Tullos was an oil well inspector for Superior at the time of the injury which is the subject matter of this lawsuit. Superior hired Resource to drill an offshore oil well. Resource was the owner and operator of the drilling vessel upon which Tullos was injured on February 10, 1982. Tullos testified that he discovered mud in the pump room of the vessel, walked through it and some oil, scraped his shoes, and then ascended the stairs to the captain’s office. After encountering additional mud and oil on the stairs, he slipped and fell on the second flight of stairs, injuring his back. An employee of Resource who worked as a “mud man” testified that during February, the month in which the accident occurred, the mud pumps were leaking because of the use of improper packing material and that the overflowing mud which was mixed with diesel fuel was not being properly cleaned up. Resource introduced printouts from a pitograph which measures mud loss to show that there was no mud loss on the 9th and 10th of February. A motor man testified that the stairs were cleaned by himself, other motor men, a toolpusher, and roustabouts.
The district court found, as a matter of law, Tullos to be a Jones Act seaman. Other issues were presented to a jury in special interrogatories. The jury found Resource negligent under general maritime law and awarded $325,000 in damages to Tullos and $100,000 in damages to his wife for loss of consortium. The jury also found Tullos to have been ten percent contributorily negligent. As to Tullos’ employer, Superior, the jury found the company liable for maintenance and cure, specifically finding that Tullos had not yet reached maximum medical cure.
The district court reduced the jury awards against Resource and in favor of Tullos and his wife by ten percent in view of the finding of contributory negligence. The court also awarded maintenance and cure of $15 per day against Superior, to be paid until Tullos reaches maximum cure. The court later granted a remittitur of $60,-000 for loss of consortium.
On appeal, Superior and Resource have jointly raised the following issues: whether Tullos was a Jones Act seaman; whether a Jones Act seaman may raise a negligence claim under general maritime law against a vessel owner; whether the evidence supported the finding of negligence; whether Tullos’ fault should have been found to have been 100% or at least 50% because he admitted walking in oil and mud prior to climbing the stairs; whether the wife of a Jones Act seaman is entitled to loss of consortium under general maritime law against a vessel owner. On cross-appeal Tullos and his wife have raised the following additional issues: whether the district court violated Tullos’ due process and equal protection rights by ordering him to accept the remittitur in his wife’s separate claim for loss of consortium and whether the district court erred in ruling that as a matter of law Superior was not arbitrary and capricious in refusing maintenance and cure payments rather than submitting the question to the jury for a possible punitive damage award.
II. Discussion
1. Seaman Status
Appellants Superior and Resource first assert that the district court erred in finding Tullos to be a seaman within the meaning of the Jones Act, 46 U.S.C. § 688. Tullos alleges only that he is a seaman with respect to his employer, Superior.
Seaman status is ordinarily a question of fact for the jury. In this case, the district judge ruled that as a matter of law, Tullos was a seaman. The judge is permitted to do this as explained in Abshire v. Seacoast Products, Inc., 668 F.2d 832 (5th Cir.1982):
The Supreme Court ha[s] ... established the principle that seaman status is basically a question of fact____ This court has held, however, that the Supreme Court ... did not intend to strip the judge of his authority to direct a verdict or grant summary judgment, if there is no genuine issue of material fact to be submitted to the jury ____ Thus, although seaman status is an issue of fact, when there are no facts in dispute, a court may rule on the issue as a matter of law____ [I]f the Robison requisites are met and there is no dispute over these factors, the court may grant a summary judgment or directed verdict declaring as a matter of law that the plaintiff is a seaman.
Id. at 835 (citations omitted). This Court has even found a district court to have erred in not deciding seaman status as a matter of law when “the facts governing plaintiff’s status as a seaman were established beyond cavil.” Landry v. Amoco Production Co., 595 F.2d 1070, 1071 (5th Cir.1979). For the district court to properly have determined that Tullos was a seaman as a matter of law, there must be no basis for reasonable persons to draw conflicting inferences from the evidence. Evidence is required under the Robison test for seaman status that (1) the worker was permanently assigned to or did a substantial portion of his work on a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water), and (2) the work he performed contributed to the function of the vessel or to the accomplishment of its mission or to the operation or welfare of the vessel in terms of its maintenance. Offshore Co. v. Robison, 266 F.2d 769 (5th Cir.1959), as interpreted in Bouvier v. Krenz, 702 F.2d 89, 90 (5th Cir.1983), and Landry, 595 F.2d at 1073.
Tullos was an oil well inspector for Superior which hired Resource to drill an offshore oil well and furnish the drilling vessel on which Tullos was subsequently injured. There is no real dispute as to Tullos’ permanent assignment to the vessel. There is also no real dispute that his work contributed to the mission of the vessel— drilling an oil well.
The district court expressed concern as to whether an employee can be a seaman when his employer is not the operator of the vessel, but correctly determined that the case of Parks v. Dowell, 712 F.2d 154 (5th Cir.1983), was controlling on this issue. In Parks, the plaintiff worked on a drilling tender assisting in the drilling of a well owned by CNG. He was described as being CNG’s “company man” on the job: “He was paid by CNG to supervise the drilling operation. He was permanently assigned to the tender where he had his office and performed most of his duties.” Id. at 156. The plaintiff was found to be a seaman given that the tender was a vessel.
In reaching its conclusion that Tullos was a seaman, the district court did not consider the additional cases presented to this Court on appeal by Tullos: Reed v. Pool Offshore Co., 521 F.Supp. 324 (W.D.La.1981), and Welch v. J. Ray McDermott & Co., 336 F.Supp. 383 (W.D.La.1972). Although in Reed the plaintiff was an employee of Crown Oilfield Services, Inc. performing duties for Crown aboard Mobil’s barge when he was injured, the district court found him to be a seaman under the Robison standard of permanent assignment to a vessel upon which duties are performed in furtherance of the mission of the vessel. 521 F.Supp. at 326-27. Similarly, in Welch the plaintiff was a welding inspector employed by FB & D which contracted to perform engineering work on a pipeline. He slipped in a bathroom on a barge not owned or operated by his employer. He was also found to be a seaman under the Robison requirements. 336 F.Supp. at 384.
The undisputed facts pertaining to Tullos’ employment on the vessel owned by Resource are sufficient to satisfy the Robison requirements and permit a ruling as a matter of law that Tullos was a seaman. It should be noted, however, that meeting the Robison requirements usually merely provides sufficient evidence for seaman status to reach the jury. The district judge, in this case, however, felt bound by the very similar factual situation in Parks to make the ruling as a matter of law. He did not err in doing so.
2. Negligence under General Maritime Law
Appellants make two preliminary arguments that Tullos, acknowledged for the purposes of this issue to be a seaman, was not entitled to a negligence claim under general maritime law against the vessel owner, Resource. First, they argue that a seaman cannot have a cause of action under general maritime law. This argument overlooks the fact that Tullos is not asserting his general maritime law claim against his Jones Act employer, but against Resource, the owner of the vessel upon which he was working when he was injured. A seaman injured while performing duties for his employer aboard a vessel may sue the vessel owner under general maritime law. See Reed, 521 F.Supp. at 326-27.
Second, they argue that Tullos was on board the rig for purposes inimicable to the legitimate interests of the rig owner and therefore was owed no duty of care by the vessel owner. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959). Appellants’ argument is based on the following holding in Kermarec: “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not mimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.” Id. The intent of the holding was to eliminate distinctions between licensees and invitees as to the duty of care owed. Id. at 630, 79 S.Ct. at 409. No evidence or argument has been presented to support the allegation that Tullos was on board for purposes inimical to the vessel. To the contrary, his work on board the vessel was to monitor drilling operations by Resource which had been hired by Tullos’ employer to drill an oil and gas well in Louisiana coastal waters.
As a separate issue, appellants claim there was insufficient evidence on which to submit the question of negligence to the jury because Tullos failed to prove that Resource knew or had reason to believe that the steps had mud on them prior to Tullos’ fall. Tullos points to testimony by the “mud man” that: (1) during February the mud pumps were leaking because inadequate packing was being used on them, and (2) mud was constantly tracked throughout the pump room and stern stairwell areas by the crew. The jury may well have inferred all of the requisite elements of negligence from this testimony in combination with Tullos’ own testimony. Questions of negligence in admiralty cases are fact questions. Cheek v. Williams-McWilliams Co., 697 F.2d 649, 652 (5th Cir.1983). “The rule is well established that findings of fact in admiralty cases are binding unless clearly erroneous.” Id. The appellants have not met their burden of showing that the negligence findings were clearly erroneous.
3. Comparative Negligence
Appellants also argue that Tullos’ own actions were the sole cause of the accident and, in the alternative, that the fault was one half his. The jury found Tullos to be ten percent contributorily negligent. The clearly erroneous standard of review for facts applies to the apportionment of fault. See, e.g., Flowers Transportation, Inc. v. M/V Peanut Hollinger, 664 F.2d 112, 114 (5th Cir.1981). Based on the facts of this case, a finding of ten percent negligence by Tullos is not clearly erroneous.
4. .Loss of Consortium
Appellants rely on Beltia v. Sidney Torres Marine Transport, 701 F.2d 491 (5th Cir.1983), to support their assertion that a seaman’s wife does not have a cause of action for loss of consortium under general maritime law. The specific holding of Beltia is “that the wife of a Jones Act seaman cannot base her loss of society claims on negligence under the general maritime law.” Id. at 494. Tullos explains this holding to mean that the husband must have a claim under general maritime law and not only be claiming relief under the Jones Act. For example, in Cruz v. Hendy International Co., 638 F.2d 719, 725 (5th Cir.1981), this Court found that “the spouse of a person entitled to recover for vessel unseaworthiness [under general maritime law] has a cause of action for loss of society whether the injured person was a member of a vessel crew or was for some other reason entitled to a seaworthy vessel.” Cruz notes, however, that loss of consortium is not available in a claim of negligence under the Jones Act. Id.
Recently, this Court has discussed both Beltia and Cruz as follows: “The spouse of an injured crew member who survives his injury may recover her loss of society in an action for unseaworthiness because such an action is based on general maritime law____ However, the legislative remedy granted an injured seaman under the Jones Act does not include the right to claim such damages.” Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 479 (5th Cir.1984) (emphasis added). Tullos argues that because he did recover under general maritime law (on his negligence claim against Resource which was not his Jones Act employer), that is sufficient to support the loss of consortium claim. This argument is valid. Pamela Tullos’ loss of consortium claim was not asserted as part of the Jones Act relief sought but in conjunction with the negligence claim against Resource under general maritime law. The loss of consortium claim may stand.
5. Remittitur
Tullos may not appeal the issue he raises concerning the district court’s compelling him to accept the remittitur on his wife’s claim for loss of consortium. The law of this Circuit is clear that even if a remittitur is accepted under protest, the plaintiff cannot appeal from it given that it was accepted. See Krahn v. B.F. Goodrich Co., 559 F.2d 308, 308 (5th Cir.1977), (citing Donovan v. Penn Shipping Co., 429 U.S. 648, 649-50, 97 S.Ct. 835, 836-37, 51 L.Ed.2d 112 (1977)).
6. Arbitrary and Capricious Failure to Pay Maintenance and Cure
On' cross-appeal, Tullos has challenged the district court’s decision to remove from the jury the question of arbitrary and capricious refusal by Superior to pay maintenance and cure and his right to recover damages therefor. Tullos first raised the issue of the denial of maintenance and cure as being “wrongful” in his complaint. In the pre-trial order, Tullos phrased the issue as follows:
The defendants have arbitrarily stopped maintenance and cure payments to Mr. Tullos. Therefore, plaintiff will seek punitive damages for the defendants [sic] refusal to pay these items of compensation and will seek to recover all back payments and future payments due him and all attorney’s fees.
Tullos requested several jury instructions concerning the issue of maintenance and cure including the following one that was not given:
In the event that you find that defendant was arbitrary and capricious in its denial of maintenance and cure to an injured seaman, this failure will subject the shipowner to penalties for such failure. Arbitrary means to do something without any reason. Capricious means to do something without good reason. The penalties for arbitrary and capricious failure to pay maintenance and cure are money damages for any mental anguish, humiliation, or aggrevation [sic] of the physical injuries suffered by the seaman for the expenses incurrred [sic] by the injured seaman to hire counsel for prosecution [sic] his claims for maintenance and cure.
The district judge explained his withholding of the question of punitive damages for arbitrary and capricious denial of maintenance and cure as based on the employer’s legally valid belief that Tullos was not a seaman. Specifically, the court stated:
... I tell the plaintiffs that if they want to do any looking, I don’t propose to charge the jury on punitive damages with respect to the maintenance and cure issue, based not only upon the medical but also upon the legal proposition that until I read the Parks case, and even after I read it, if I were not bound by it, I would hold that he was not a seaman. I cannot say that it’s an unreasonable position on the part of the defendant saying that if I would have said that until you produced the Parks case, all of us agreed until then that nobody could find one case that dealt with a company [man] held to be a seaman.
... I’m going to tell the jury he’s a seaman when we get to the maintenance and cure, but I’m not going to give them the question on arbitrariness and penalty for the reasons I have said.
Tullos did not object to the district court’s refusal to include in the jury charge the issues on his arbitrary and capricious denial of maintenance and cure claims.
In addition to Parks, 712 F.2d 154, Tullos relies on two prior cases to establish his seaman status: Welch, 336 F.Supp. 383, and Reed, 521 F.Supp. 324. See supra note 2. Further, Tullos argues that it is inconsistent for Superior, who believed him to be a seaman to the extent of paying him maintenance and cure benefits, to not be held liable for the termination of those benefits based on legal doubt of his seaman status.
A threshold issue is whether Tullos’ failure to formally object to the judge’s removal of the issue of arbitrary and capricious denial of maintenance and cure from the jury bars consideration of this issue on appeal. A commentator has evaluated the requirement for objections as follows: “The requirement of an objection is to be construed practically. Since one ‘purpose of informing the court of a supposed error is to give it an opportunity to reconsider its ruling and to make any changes deemed advisable,’ there is no need for a formal objection where the court is fully aware that the party does not agree with his decision.” 5A J. Moore & J. Lucas, Moore’s Federal Practice ¶ 46.02, at 1907 (2d ed. 1984) (pertaining to Fed.R.Civ.P. 46). Fed.R.Civ.P. 51 specifically applies to objections to instructions to the jury. It states in pertinent part: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” Fed.R.Civ.P. 51.
However, this Court has recently found that objections formally required under Rule 49(a) concerning special verdicts were not required to preserve an issue on appeal when the requested instructions and verdict form were submitted to the trial court and the court’s attention was drawn to the issue in question. See Solis v. Rio Grande City Independent School, 734 F.2d 243, 248 n. 4 (5th Cir.1984). Further, this Court has previously noted that defendants failing to object to a court’s instruction to the jury that the plaintiff was a Jones Act seaman did not thereby lose their right to appellate review of the issue of seaman status being taken from the jury. See Menard v. Penrod Drilling Co., 538 F.2d 1084, 1088 n. 4 (5th Cir.1976). In the case sub judice, although the denial of the requested instruction and the court’s refusal to submit to the jury the arbitrary and capricious issue were not specifically objected to by Tullos, the issue may nevertheless be deemed to have been preserved on appeal. See Solis, supra.
It is therefore necessary to consider whether the district court erred in impliedly directing a verdict by removing the issue of arbitrary and capricious denial of benefits from the purview of the jury. The trial judge’s reasoning that Tullos’ seaman status was not clear to the court until after he read the Parks case during trial does not provide a basis for removing this issue from the jury. The court itself found Tullos to be a seaman, and Tullos’ employer, Superior, had paid him maintenance and cure due a seaman, but then terminated those benefits. It is the termination of the benefits that Tullos alleges was arbitrary and capricious and for which he sought punitive damages.
The district court also considered the evidence presented concerning the arbitrariness of the termination of maintenance and cure benefits. Tullos points to the testimony of three treating physicians who found him unable to return to his work aboard drilling rigs. The physician presented by the appellants at trial testified that where Tullos would work would not be a significant consideration “with the exception of an off-shore transit. That is, if he had to go back and forth on a boat and it was in rough seas, and he was doing that type of activity, I think that could potentially be injurious____” (emphasis added). Tullos argues that the appellants were aware of his continued disability and not only refused to pay his maintenance stipend but also all medical and hospital bills presented to them except for those from medical examiners chosen by themselves. Tullos argues that the appellants were trying to render him destitute so that he would settle the case and were “physician shopping” to create issues relative to his medical problems.
Superior contends that it ceased paying maintenance and cure on October 28, 1982 (having paid it since April 13, 1982) “because the medical evidence did not support the plaintiff’s claim that he had not reached maximum cure.” Superior does not argue that any question of Tullos’ seaman status played any role in its decision to discontinue maintenance and cure payments. Superior lists all of the physicians that Tullos saw from February 16, 1982, to May 14, 1982, for whose care Superior paid. However, when on October 28, 1982, Tullos saw an orthopedic surgeon selected by Superior, Dr. G. Gernon Brown, who found no evidence of injury and expressed the opinion that Tullos could return to work, Superior terminated its maintenance and cure payments. On the same day, Tullos’ attorney wrote Superior requesting reinstatement of payments.
As to the diagnoses and prognoses of the physicians, they are not so clear and consistent as to validate removing the issue of arbitrary and capricious denial of the maintenance and cure from the jury. The diagnoses varied from soft tissue injury or chronic back sprain to a “lumbar facet syndrome” requiring spinal fusion to “spondylitis” to no indication of any organic disorder by certain tests. “[T]he cut-off point for maintenance and cure is not that at which the seaman recovers sufficiently to return to his old job but rather the time of maximum possible cure.” Lirette v. K & B Boat Rentals, Inc., 579 F.2d 968, 969 (5th Cir.1978). “It is the medical, not the judicial, determination of permanency that terminates the right to maintenance and cure .... ” Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 202 (1st Cir.1980) (citing Vella v. Ford Motor Co., 421 U.S. 1, 4, 95 S.Ct. 1381, 1383, 43 L.Ed.2d 682 (1975)); cf. Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1115-17 (5th Cir.1984). However, such a determination should be unequivocal to terminate the right to maintenance and cure. 626 F.2d at 202. In the case sub judice, extensive controversy was present in the medical opinions.
A punitive damage claim in the context of the denial or termination of maintenance and cure at one time was limited only to reasonable attorneys’ fees. See e.g., Lirette, 579 F.2d at 969; Kraljic v. Berman Enterprises, Inc., 575 F.2d 412, 416 (2d Cir.1978); Blanchard v. Cheramie, 485 F.2d 328, 331 (5th Cir.1973). However, subsequent cases “have established that, in addition to ... attorneys’ fees, punitive damages for [willful and arbitrary] refusal are available under the general maritime law.” Holmes v. J. Ray McDermott & Co., 734 F.2d 1110, 1118 (5th Cir.1984); accord Harper v. Zapata Off-Shore Co., 741 F.2d 87, 88 (5th Cir.1984). Examples of employer behavior that could merit punitive damages have included (1) laxness in investigating a claim; (2) termination of benefits in response to the seaman’s retention of counsel or refusal of a settlement offer; (3) failure to reinstate benefits after diagnosis of an ailment previously not determined medically. See Harper v. Zapata Off-Shore Co., 741 F.2d 87, 90 (5th Cir.1984); Holmes, 734 F.2d at 1118. The latter example was the situation in Holmes. Although the facts of the case sub judice are not as compelling in showing arbitrary and willful conduct by the employer, they are sufficient for a jury question: Superior was requested by counsel to reinstate benefits and further diagnoses were obtained such that it was not medically certain that Tullos had reached maximum cure. There is some question of the promptness with which Tullos informed Superior of his subsequent medical diagnoses and expenses, but any delay was not sufficient to remove the question from the jury. See Harrell v. Dixon Bay Transportation Co., 718 F.2d 123, 129-30 (5th Cir.1983). It should be noted that in its most recent opinion on the subject, this Court expressed its belief “that the willful, wanton and callous conduct required to ground an award of punitive damages requires an element of bad faith.” Harper, 741 F.2d at 90. The jury needs to resolve whether Superior’s reliance on a report requested from its own physician to terminate benefits in conjunction with a refusal to pay further medical bills submitted was done in bad faith. The issue of whether Tullos had reached maximum cure was presented to the jury which found that he had not. Sufficient evidence was presented to raise a jury question as to the arbitrariness or capriciousness of the denial of his benefits in view of the continuing conflicting diagnoses and prognoses. In essence, Superior chose one doctor from many and followed his recommendation. This may not be arbitrary and capricious, but it is sufficient evidence entitling Tullos to have the jury resolve his arbitrary and capricious claim.
For the foregoing reasons, the judgment below is AFFIRMED in part; REVERSED and REMANDED in part for submission to a jury on the issue of arbitrary and capricious denial of maintenance and cure.
. In fact, Tullos specifically argues, in another context, that he is not a seaman with respect to Resource. His negligence claim against Resource under general maritime law, it is argued, permitted his wife to bring a claim for loss of consortium, which she could not do as the wife of a Jones Act seaman.
. Appellants imply some impropriety in these cases not being brought to the attention of the court by Tullos at trial. While the additional cases are not necessary to the resolution of the issue of seaman status on appeal, nothing precludes our considering them.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "mining". What subcategory of business best describes this litigant?
A. oil and gas
B. coal
C. metals
D. other
E. unclear
Answer:
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songer_usc1
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29
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16175.
United States Court of Appeals Seventh Circuit.
March 26, 1969.
Lee C. Shaw, Walter P. Loomis, Jr., Chicago, 111., George G. Gallantz, New York City, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Richard S. Rodin, Warren M. Davison, Attys., N.L.R.B., Washington, D. C., for respondent.
Before CASTLE, Chief Judge, MAJOR and HASTINGS, Senior Circuit Judges, and KILEY, SWYGERT, FAIRCHILD, CUMMINGS and KERNER, Circuit Judges,
KILEY, Circuit Judge.
The National Labor Relations Board found that State Farm Mutual Automobile Insurance Company violated Sections 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Insurance Workers International Union, AFL-CIO, which had been certified to represent a unit of employees. The Board ordered the Company to bargain with the Union. The Company petitioned this court to review and set aside the Board’s order, and the Board cross-petitioned for enforcement of its order. A panel of this court, in an opinion (one judge dissenting) issued August 8, 1968, set aside the Board’s order. Subsequently, this court granted the Board’s petition for rehearing en banc. We now enforce the Board’s order.
Petitioner is a multi-state insurance company. All of its business decisions, such as job benefits, holidays, overtime, sick leave, recruitment and salary ranges are made at its home office in Blooming-ton, Illinois. Petitioner is divided into twenty-one regions across the country. The Northeastern Region, pertinent to this ease, comprises New York, New Jersey, and the New England states, and its headquarters is at Wayne, New Jersey. It is headed by a regional vice-president assisted by two deputy regional vice-presidents. The vice-president directs all operations in the region, including recruitment, interviewing job applicants, promotions, and salaries.
The Northeastern Region is divided into four divisions, including two automobile insurance divisions, one covering New York and the other New Jersey and New England. A division manager, who is responsible for overseeing the claim processing operations of the company, heads each division. He also makes salary and employment recommendations to the regional vice-president.
The New York automobile division is divided into four districts, each headed by a division claims superintendent, who is in charge of about five offices and supervises about thirty-five adjusters. The responsibilities of a divisional claims superintendent include: supervising the instruction of claims personnel under his jurisdiction; training the claims supervisory personnel; examining claims files; recommending company action concerning promotion, salary changes, hiring, and disciplinary action; interviewing and initially screening applicants for claims agent jobs; administering the over-all day to day claims handling within his jurisdiction; and visiting the claims field offices.
The proceedings before us began with a representation petition filed by the Union. The Company moved to dismiss the petition on the ground of inappropriateness of the unit. The Board rejected both the Union’s contention that the smallest appropriate unit was a single claims office, and the Company’s contention that the smallest appropriate unit was the Northeastern Region, or, alternatively, the New York State unit. The Board designated “the divisional unit of employees supervised by a divisional superintendent” as the smallest appropriate unit.
Thereafter the Board conducted representational elections in two claims districts in New York. In the unit before us, the Union won the election and was certified as the bargaining representative.
The Union then requested the Company to bargain. The Company refused on the ground that the unit found by the Board was inappropriate. The Union filed an unfair labor practice charge alleging an unlawful refusal to bargain. The General Counsel issued a complaint, and the Company’s response admitted the refusal to bargain, reasserting the inappropriateness of the unit. The Board granted the General Counsel’s “Motion for Summary Judgment and Judgment on the Pleadings,” over the Company’s objection that it was entitled to a further hearing on the appropriate unit and issued the order which is now before this court.
The Company contends that the order should be set aside because the unit determination is unreasonable and the Board’s refusal to hold the further hearing requested by the Company violated Section 10(b) of the National Labor Relations Act.
The Board has a wide discretion in designating appropriate units. It is not required by the Act to choose the most appropriate unit, but only to choose an appropriate unit within the range of several appropriate units in a given factual situation. The Board may look to various factors to determine what units are appropriate. The company organization, the numerical size of the unit, the geographical distribution of the employees in the unit, the type of work done by the employees in the unit, the responsibilities of the unit supervisor, the organizability of the unit, and the extent to which the unit has already been organized, are all revelant considerations and no one factor is determinative. NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). Section 9(b) itself states that the unit shall be chosen “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act.” Where the facts underlying a Board determination of an appropriate unit are not contested, the Board’s determination will not be overturned unless it is arbitrary or unreasonable. May Dept. Stores Co. v. NLRB, 326 U.S. 376, 66 S.Ct. 203, 90 L.Ed. 145 (1945); NLRB v. Krieger-Ragsdale & Co., 379 F.2d 517 (7th Cir. 1967), cert. denied, 389 U.S. 1041, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968).
The unit chosen by the Board in this case contains about thirty-five employees who do similar work under similar conditions; geographically the unit, on the average, covers one-fourth of New York State; the Union has successfully organized one of the units; the leader of the unit chosen is the Company official who directly controls and supervises the day to day work of the employees; under the Company’s organization the next larger unit would, on the average, cover a multi-state area; the smallest unit under the Company’s organization which has a leader, the regional vice-president, with any formal control over employee policy would cover all of New York, New Jersey, and New England; and the smallest unit where there is substantial control over employee policy, the Bloomington Home Office, is nation-wide. Under these circumstances, the reasonableness of the Board’s determination is clear.
The fact that the next largest unit available under the Company’s organizational structure covers a multi-state area is of particular significance. In 1944 the Board adopted a policy of refusing to authorize an appropriate unit in the insurance industry which was less than state-wide, on the theory that this would promote the organization of employees by unions. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635 (1944). The Board, however, subsequently abandoned this rule because
As a practical matter * * * such state-wide or company-wide organization has not materialized, and the result of the rule has been to arrest the organizational development of insurance agents to an extent certainly never contemplated by the Act, or for that matter by the Board that decided the Metropolitan Life case. Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961).
Adoption of the Company’s position here would prevent the Board from choosing a less than state-wide unit for bargaining and would therefore “arrest the organizational development of insurance agents” in highly centralized insurance companies and would prevent the employees from enjoying “the fullest freedom in exercising the rights guaranteed by” the National Labor Relations Act, 29 U.S.C. 159(b). The Quaker City rationale also refutes the Company’s alternative contention that the most appropriate unit covers all of New York State.
Finally, the Board’s decision is consistent with other Board decisions that the courts have previously approved. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963); Singer Sewing Machine Co. v. NLRB, 329 F.2d 200, 12 A.L.R.3d 775 (4th Cir. 1964). In Quaker City the duties of the head of the unit chosen as appropriate by the Board were described by the court as follows:
The District Manager generally supervises the day to day operations of the office, operating under general rules set by the home office. He recommends the hiring, firing, and disciplining of the office employees and he may, under certain conditions, fire summarily. He trains the local employees, and, within limits set out by the company, makes recommendations as to promotions, increases and allowances.
That authority does not significantly differ from the authority of the divisional claims superintendent in the case before us, and in Quaker City the Board’s choice of an appropriate bargaining unit was approved. Moreover, in Quaker City the district manager had only six employees under him, while the supervisor in this case has approximately five times that number. The head of the unit in Singer also had substantially the same power as the divisional claims superintendent here, and in that case the Board’s unit determination was also approved.
The Company relies mainly on NLRB v. Frisch’s Big Boy Ill-Mar. Inc., 356 F.2d 895 (7th Cir. 1966), and on NLRB v. Purity Food Stores, Inc., 376 F.2d 497 (1st Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 337, 19 L.Ed.2d 368 (1967). In Frisch this court rejected the Board’s determination that a single retail store was an appropriate unit, where the Company had ten stores in Indianapolis, Indiana. The store managers there had considerably less authority than the district managers here. Yet the court recognized that an eleventh store located sixty miles away in Muncie, Indiana, might constitute, a separate bargaining unit.
In Purity the First Circuit rejected the Board’s determination that a single retail outlet constituted an appropriate unit where the Company operated a chain of seven outlets, all located within thirty miles of the Company’s central office. The court stated that Purity was “a small, compact, homogeneous, centralized and integrated operation” and that “the ‘independence’ of the stores * * * amounts to no more than a few miles of physical separation.” Neither of these cases is controlling or persuasive on the facts here.
The Board states that in each similar case since Quaker City it has relied primarily upon the “autonomous” character of the “single district office” and the “over-all immediate supervision” exercised by the district office manager. In each ease, on different facts, the district office head may possess varying degrees of autonomy depending upon the degree to which he may exercise significant managerial power over the employees he superintends. We think the Board could find sufficient autonomy and supervisory authority here to justify its choice of an appropriate unit.
The Board did not abuse its discretion in entering the order before us, and the order does not offend the Act’s limitation that designation of an appropriate unit must not be controlled by the extent to which the unit has already been organized. NLRB v. Quaker City Life Ins. Co., 319 F.2d 690 (4th Cir. 1963). We conclude that we should not set aside the Board’s order on the ground that the unit chosen was inappropriate.
In opposing the General Counsel’s motion for summary judgment, the Company moved for an order transferring the ease to a Trial Examiner for further hearing on the unit issue. The Board denied the motion, finding that no issue had been presented requiring a hearing. In the Board’s view, the factual issues concerning the appropriateness of the unit were resolved in the representation proceeding, and absent newly discovered or previously unavailable evidence, the issues need not be relitigated.
The Company insisted that since the Board, in the representation proceeding, chose as appropriate a unit advocated by neither party, the Company did not present evidence in its possession with respect to that unit. The Company claimed it was entitled to an opportunity to present this evidence in the unfair labor practice proceedings.
The Board denied the further hearing on two grounds: It stated that the evidence sought to be introduced was available at the representation proceeding, and the Company’s failure to produce it at that time precluded introduction of the evidence on the same issue in the unfair labor practice proceeding. The Board also concluded that the proffered evidence was merely cumulative to evidence heard in the representation proceeding. We agree with the Board. NLRB v. International Die Sinker’s Conference, 402 F.2d 407, 411 (7th Cir. 1968).
A representation proceeding is not adversary in the usual sense, but is designed primarily to enable the Board to fulfill its statutory function with respect to the certification of bargaining representatives. Part of the function is, of course, determination of an appropriate bargaining unit. When that determination is an issue in a lepresentation proceeding, all persons concerned have the duty to produce all information relevant to the issue. The Board’s determination is not confined to the units suggested by the parties, but it may choose any unit which it reasonably deems appropriate. Local 620, Allied Industrial Workers of America v. NLRB, 375 F.2d 707, 710-11 (6th Cir. 1967); S. D. Warren Co. v. NLRB, 353 F.2d 494, 499 (1st Cir. 1965).
The issue of an appropriate unit was the subject of an extensive hearing in the representation proceeding. There was substantial evidence introduced of the entire organizational structure of the Company. Having failed to produce relevant evidence it possessed in that proceeding, the Company had no right to another opportunity to present evidence at the expense of the exercise of the employees’ collective bargaining rights. Rockwell Mfg. Co., Kearney Div., v. NLRB, 330 F.2d 795, 797-798 (7th Cir. 1964).
The evidence proffered in the unfair labor practice hearing was intended to show that the unit chosen in the representation hearing was subject to change in the geographical area supervised by divisional claims superintendents. But in the representation proceeding it was specifically found that “The number of these superintendents in each division is subject to change according to the volume of business and geographic distribution of field claims offices in the division; * * * ” The Board, therefore, did not abuse its discretion in denying the motion for a further hearing, as no useful purpose would have been served by receiving the Company’s evidence. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 157-158, 61 S.Ct. 908, 85 L.Ed. 1251 (1940).
Having concluded that none of the grounds urged by the Company for setting aside the order is valid, the Board’s order will be enforced.
MAJOR, Senior Circuit Judge, dissents, with which HASTINGS, Senior Circuit Judge, concurs.
I feel obliged to dissent from the majority opinion rendered on the Board’s petition for rehearing en banc which allows the Board’s petition for enforcement, thereby nullifying the August 8, 1968 panel decision of this court.
This dissent is directed squarely at the decision under review, with the findings and conclusions contained therein. I am not concerned with the many cases which stand for the well recognized proposition that our scope of review is limited and that the Board has a wide discretion in determining an appropriate bargaining unit. Such cases are not controlling here because the Board’s order, in my view, is based upon a fallacious premise and its decision is clearly erroneous, arbitrary and capricious.
Furthermore, I am not impressed with the Board’s two-fold argument in support of its unit determination, apparently embraced by the majority, (1) that it is in accordance with its policy, and (2) that owing to the circumstances of the case it would have great difficulty in determining a more appropriate unit. I realize the Board’s policy is entitled to serious consideration but I disagree with the idea that it can be utilized as a substitute for facts, which it appears the Board would have us do. Likewise, the fact that the Board might have difficulty in determining some other unit as appropriate furnishes no justification for its determination that the unit under consideration is appropriate.
In the beginning it is well to keep in mind what the Board characterizes as the descending supervisory chain: (1) the company’s home office at Blooming-ton, Illinois; (2) its regional office at Wayne, N. J.; (3) its division managers; (4) its divisional claims superintendents, and (5) its claims superintendents. The functions of each link of this chain are described in the Board’s decision as follows:
“National personnel policies are determined at the home office in Bloom-ington ; sick leave, group medical, life, and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, and similar conditions and benefits of employment. These policies are effectively construed and implemented by the several regional offices. Against the background of policies and practices established by the home office, decisions as to the applicability of these policies and procedures to claim representatives are made by the regional supervisory authorities. Ultimately, most of the final decision-making authority in each Region is vested in the office of the Regional Vice-President. For instance, the Region makes annual reviews of the performance of each employee, for the purpose of determining whether he should be granted a salary increase (within a range predetermined by the home office). The Claim Superintendent will fill out a form to initiate such reviews, giving its comments and recommendations. The Divisional Superintendent will then make his recommendation in the portion of the form designed for his entry. Finally, the Division manager will add his recommendation, and the form will then be submitted to the office of the Regional Vice-President, where this official or his deputy will approve or disapprove the increase.” (Italics supplied.)
It states:
“Looking primarily to the autonomous character of the single district office petitioned for in Quaker City [134 N.L.R.B. 960], and the overall immediate supervision exercised by the district office manager, we concluded that a unit consisting of the employees in the district office was an appropriate bargaining unit. Since that case, we have found appropriate other single-office units which exhibited a similar degree of autonomy, and have also authorized groupings of single offices where considerations of geography or the employer’s administrative structure lent coherence to such multiple-office units.” (Italics supplied.)
Then follows the heart of the decision:
“The evidence of record in the case before us presents a significantly different picture of field operating procedure from that developed in the insurance agents cases cited above. It seems clear that the smallest component of the Employer’s business structure which may be said to be relatively autonomous in its operation is not the field claims office, but rather the divisional unit of employees supervised by a Divisional Superintendent. By virtue of the managerial authority reposed in the three Divisional Superintendents, who represent a supervisory focal point for their respective groups of 39, 32, and 29 claim representatives, these functionaries appear to exercise powers most closely analogous to those possessed by the district office managers in the earlier cases. A finding, therefore, that bargaining units could properly be demarcated by the supervisory jurisdiction of each Divisional Superintendent would be wholly in keeping with the principles applied in the insurance agents cases.” (Italics supplied.)
Thus, the Board concedes that the operating procedure in this case “presents a significantly different picture” from that of the insurance agents cases upon which it relies, but nevertheless concludes that its unit determination “would be wholly in keeping with the principles” applied in such cases.
Neither on brief nor in oral argument before this court did the Board criticize or take issue with a statement contained in our panel decision:
“The Board’s reasoning rests upon two premises: (1) the unit determination was ‘relatively autonomous in its operation,’ and (2) ‘the managerial authority reposed in the three Divisional Superintendents.’ It is significant to note that the Board did not find that the unit was autonomous but only that it was ‘relatively’ so, without explanation as to why the qualifying word. Perhaps the explanation can be found in the dictionary, which defines ‘autonomous’ as ‘having the right or power of self-government; undertaken or carried on without outside control; existing or capable of existing independently.’ Webster’s Seventh New Collegiate Dictionary.”
In my judgment, the record is devoid of any proof that the unit determined by the Board possessed autonomy, “relative autonomy” as found in its decision, or “substantial autonomy” as stated in its brief. On the contrary, the record clearly demonstrates that the unit determined was non-autonomous.
The Board in its decision states that “sick leave, group medical, life and other insurance programs, vacations, credit unions, travel allowances, promotion procedures, similar conditions and benefits of employment” are established in the home office and “are effectively construed and implemented by the several regional offices.” The Board further found that “decisions as to the applicability of these policies and procedures” are “vested in the office of the Regional Vice President.”
Further support for the view that the divisional claim superintendents were without managerial authority to resolve issues subject to collective bargaining is shown by a statement in the Board’s original brief:
“Most of the final decision-making authority in each Region ultimately resides in the office of the regional vice president. Thus, for example, the Region annually reviews each claims representative’s performance for the purpose of determining whether he should be granted a salary increase (within a range established by the home office in Bloomington). The claim superintendent initiates such reviews by filling out a prescribed form, in which he includes comments and recommendations. In turn, the divisional claim superintendent will add his recommendation in the portion of the form designated for such use. Finally, the division manager will add his recommendation, and the form will then be submitted to the office of the regional vice president or his deputy will make the final decision.” (Italics supplied.)
In short, the divisional claim superintendents were without authority to make any decisions on matters which might be involved in collective bargaining. On such matters they accepted recommendations from those below (claim superintendents) ; approved or disapproved and passed them on to those above (division managers), and received orders and directions from those above which they executed in an administrative but not in a managerial capacity.
There are numerous court decisions which support the view that the autonomous nature of the unit determined and the managerial authority of the divisional claim superintendents, admittedly the basis for the Board’s decision, should be rejected.
In N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895, this court refused to enforce the Board’s order concerned with a single restaurant in an integrated chain because the unit designated was inappropriate. The main issue in the case was whether the unit determined was autonomous, as found by the Board. Relative to this issue we stated (page 896):
“The only factual contention made by petitioner [the Board] which requires notice is that each restaurant has ‘autonomy’ because each restaurant manager has certain powers. However, the undisputed facts appearing in the record show that a common labor policy affecting all employees is formulated and administered by the president, as chief executive, and certain other officers of the corporations. Reporting to him are three area supervisors each of whom has a share of the Indianapolis restaurants to cover. These area supervisors visit the restaurants frequently.” (Italics supplied.)
In deciding this issue we stated (page 897):
“It is evident to us that the decisions left to the managers do not involve any significant element of judgment as to employment relations. * * *
“It is obvious to us that none of the store managers will be deciding questions affecting the employees in the context of collective bargaining.” (Italics supplied.)
The majority opinion, in the attempt to distinguish this case on its facts, states, “The store managers there had considerably less authority than the district managers here.” With this statement I disagree but, in any event, the pertinent point is the court’s reasoning and conclusion, which read as though written for this case.
In N.L.R.B. v. Purity Food Stores, Inc., 376 F.2d 497, 501, the First Circuit cited with approval our opinion in Frisch’s and refused to enforce the Board’s order on the ground that its unit determination was inappropriate. The Board found a single supermarket to be an appropriate bargaining unit, based on the authority of the manager and the autonomy of the store. In rejecting the Board’s determination the court stated (page 500):
“The Board rested its conclusion basically on lack of store-wide bargaining history and on its view that the Peabody store was so economically independent of the other retail stores and possessed such ‘significant autonomy’ within the respondent’s over-all operation that separation of that store from the others for purposes of collective bargaining would not obstruct centralized control and effective operation of the chain. We cannot agree.” (Italics supplied.)
The Board in its brief, in support of the instant petition, states:
“ * * * individual cases in which the courts of appeals have set aside such determinations as arbitrary or capricious may be regarded either as proper reversals of administrative action, under all the circumstances, or as aberrational abuses of judicial power.”
In a footnote the Board states:
“For purposes of the instant petition for rehearing, it is irrelevant whether the Court’s decision in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., 356 F.2d 895 (1966) is regarded as the former or the latter.”
While the Board does not state in which category it places this court, the implication is plain. Even so, our feelings are soothed by the opinion of the Fifth Circuit in N.L.R.B. v. Davis Cafeteria, Inc., 396 F.2d 18. In that case the court refused to enforce the Board’s order on the ground that the bargaining unit selected was inappropriate. Referring to Frisch’s and Purity, the court stated (page 20):
“In view of the elucidating opinions in the Purity Foods case, in N.L.R.B. v. Frisch’s Big Boy Ill-Mar, Inc., supra, * * * it would serve no precedental value for us to repeat what we have previously said, or what the First and Seventh Circuits have already so well said. In the circumstances of this case, labor policy is centrally determined, and where local managers do not have authority to decide questions which would be subjects of collective bargaining, the two respondent cafeterias do not constitute an appropriate bargaining unit.” (Italics supplied.)
Called to our attention subsequent to the instant hearing en banc is a decision of the Second Circuit in N.L.R.B. v. Solis Theatre Corp., and Interboro Circuit, Inc., 403 F.2d 381, decided November 14, 1968. In that case the court refused enforcement of the Board’s order on the ground that the Board improperly determined the bargaining unit. Concluding its statement of the facts, the court stated (page 383):
“It appears, therefore, that instead of being in a decision making position, the ‘manager’ has little or no authority on labor policy but is subject to detailed instructions from the central office.
“The Courts of Appeals have been reluctant to sanction bargaining units whose managers lack the authority to resolve issues which would be the subject of collective bargaining.”
Following this statement, the court cites with approval our opinion in Frisch’s, the First Circuit opinion in Purity, and the Fifth Circuit opinion in Dams.
I would deny enforcement of the Board’s order for reasons so clearly revealed in its decision.
. 29 U.S.C. §160
sjí $ 5}C 8}í }¡í The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. * * * * *
. In Singer the Board’s order was denied enforcement on other grounds.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
ONE LOT EMERALD CUT STONES AND ONE RING v. UNITED STATES
No. 72-376.
Decided December 11, 1972
Per Curiam.
On June 5, 1969, Francisco Farkac Klementova entered the United States without declaring to United States Customs one lot of emerald cut stones and one ring. Klementova was indicted, tried, and acquitted of charges of violating 18 U. S. C. § 545 by willfully and knowingly, with intent to defraud the United States, smuggling the articles into the United States without submitting to the required customs procedures. Following the acquittal, the Government instituted a forfeiture action in the United States District Court, Southern District of Florida, under 18 U. S. C. § 545 and § 497 of the Tariff Act of 1930, 46 Stat. 728, 19 U. S. C. § 1497. Klementova intervened in the proceeding and argued that his acquittal of charges of violating 18 U. S. C. § 545 barred the forfeiture. The District Court held that the forfeiture was barred by collateral estoppel and the Fifth Amendment. The United States Court of Appeals for the Fifth Circuit reversed, holding that a forfeiture action pursuant to 19 U. S. C. § 1497 was not barred by an acquittal of charges of violating 18 U. S. C. § 545. We grant certiorari, affirm, and thereby resolve a conflict among the circuits as to whether a forfeiture is barred in these circumstances.
Collateral estoppel would bar a forfeiture under § 1497 if, in the earlier criminal proceeding, the elements of a § 1497 forfeiture had been resolved against the Government. Ashe v. Swenson, 397 U. S. 436, 443 (1970). But in this case acquittal on the criminal charge did not necessarily resolve the issues in the forfeiture action. For the Government to secure a conviction under § 545, it must prove the physical act of unlawful importation as well as a knowing and willful intent to defraud the United States. An acquittal on the criminal charge may have involved a finding that the physical act was not done with the requisite intent. Indeed, the court that tried the criminal charge specifically found that the Government had failed to establish intent. To succeed in a forfeiture action under § 1497, on the other hand, the Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent. Thus, the criminal acquittal may not be regarded as a determination that the property was not unlawfully brought into the United States, and the forfeiture proceeding will not involve an issue previously litigated and finally determined between these parties.
Moreover, the difference in the burden of proof in criminal and civil cases precludes application of the doctrine of collateral estoppel. The acquittal of the criminal charges may have only represented “ 'an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ ” Helvering v. Mitchell, 303 U. S. 391, 397 (1938). As to the issues raised, it does not constitute an adjudication on the preponderance-of-the-evidence burden applicable in civil proceedings. See Murphy v. United States, 272 U. S. 630 (1926); Stone v. United States, 167 U. S. 178 (1897).
If for no other reason, the forfeiture is not barred by the Double Jeopardy Clause of the Fifth Amendment because it involves neither two criminal trials nor two criminal punishments. “Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense.” Helvering v. Mitchell, supra, at 399. See also United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943). Forfeiture under § 1497 is a civil sanction. The provision was originally enacted as § 497 of the Tariff Act of 1922, 42 Stat. 964. The Tariff Act of 1930 re-enacted the forfeiture remedy, 46 Stat. 728, and added § 593, 46 Stat. 751, which became 18 U. S. C. § 545. The forfeiture provision fell within Title IY of the Act, which contained the “Administrative Provisions.” Part III of that title, of which § 1497 was a part, dealt with “Ascertainment, Collection, and Recovery of Duties.” Section 545, on the other hand, was part of the “Enforcement Provisions” and became part of the Criminal Code of the United States. The fact that the sanctions were separate and distinct and were contained in different parts of the statutory scheme is relevant in determining the character of the forfeiture. Congress could and did order both civil and criminal sanctions, clearly distinguishing them. There is no reason for frustrating that design. See Helvering v. Mitchell, supra, at 404.
The § 1497 forfeiture is intended to aid in the enforcement of tariff regulations. It prevents forbidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses. In other contexts we have recognized that such purposes characterize remedial rather than punitive sanctions. See id., at 401; United States ex rel. Marcus v. Hess, supra, at 549-550; Rex Trailer Co. v. United States, 350 U. S. 148, 151-154 (1956). Moreover, it cannot be said that the measure of recovery fixed by Congress in § 1497 is so unreasonable or excessive that it transforms what was clearly intended as a civil remedy into a criminal penalty. Rex Trailer Co. v. United States, supra, at 154. See Murphy v. United States, supra; United States ex rel. Marcus v. Hess, supra.
“Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforcible by civil proceedings .... In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.” Helvering v. Mitchell, supra, at 400.
The question of whether a given sanction is civil or criminal is one of statutory construction.- Id., at 399. It appears that the § 1497 forfeiture is civil and remedial, and, as a result, its imposition is not barred by an acquittal of charges of violating § 545.
Affirmed.
“Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
“Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
“Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
“Proof of defendant’s possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section.
“Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States.
“The term ‘United States/ as used in this section, shall not include the Philippine Islands, Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, or Guam.”
Title 19 U. S. C. § 1497 provides:
“Any article not included in the declaration and entry as made, and, before examination of the baggage was begun, not mentioned in writing by such person, if written declaration and entry was required, or orally if written declaration and entry was not required, shall be subject to forfeiture and such person shall be liable to a penalty equal to the value of such article.”
In United States v. Two Hundred and One Fifty-Pound Bags of Furazolidone, No. 71-1329 (1971), cert. denied, 405 U. S. 964 (1972), the Court of Appeals for the Eighth Circuit affirmed a summary judgment on the basis of a previous acquittal of charges of violating § 545 in favor of the owner of property in a forfeiture action commenced by the Government under 18 U. S. C. § 545 and 19 U. S. C. § 1460. The Court of Appeals for the First Circuit agrees with the view of the Fifth Circuit in the present case. See Leiser v. United States, 234 F. 2d 648, cert. denied, 352 U. S. 893 (1956).
We need not, and do not, decide whether an acquittal under § 545 bars a forfeiture under § 545.
The judge at the criminal trial specifically stated:
“He is, obviously, a sophisticated dealer in emeralds and other jewelry.
“I don’t condone nor do I approve, for one minute, what he did in this instance. I think he knew that that jewelry — that that ring and those emeralds should have been declared.
“He made a declaration of some cigarettes and some whiskey, several other little odd, meager items there, but I’m not persuaded beyond a reasonable doubt that he did what he did with the intent to defraud the United States.”
The difference in the issues involved in the criminal proceeding, on the one hand, and the forfeiture action, on the other, serves to distinguish Coffey v. United States, 116 U. S. 436 (1886), relied upon by the District Court in the present case. Coffey involved a forfeiture action commenced after an acquittal. This Court noted, in holding the forfeiture barred, that “[t]he information [for forfeiture] is founded on §§3257, 3450 and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.” Id., at 442. The Court specifically distinguished the situation where “a certain intent must be proved to support the indictment, which need not be proved to support the civil action.” Id., at 443. See also Stone v. United States, 167 U. S. 178 (1897).
The District Court relied upon the following language in United States v. U. S. Coin & Currency, 401 U. S. 715, 718 (1971):
“But as Boyd v. United States, 116 U. S. 616, 634 (1886), makes clear, 'proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offences committed by him, though they may be civil in form, are in their nature criminal’ for Fifth Amendment purposes.” (Emphasis in United States v. U. S. Coin & Currency.)
Section 1497 does not result in a forfeiture by reason of the commission of a criminal offense. A forfeiture results from the act of importation without following customs procedures; no criminal offense, much less a criminal conviction, is required. Cf. id., at 718-722.
One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693 (1965), is likewise inapposite for it dealt with a forfeiture that could not be had without a “determination that the criminal law has been violated.” Id., at 701.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_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.
ATLANTIC CORPORATION, Defendant, Appellant, v. UNITED STATES of America et al., Appellees.
No. 6038.
United States Court of Appeals First Circuit.
Dec. 31, 1962.
Roland E. Shaine, Boston, Mass., Henry Gesmer and Brown, Rudnick, Freed & Gesmer, Boston, Mass., on the brief, for appellant.
Thomas A. Skornia, Attorney, Department of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Joseph Kovner, Attorneys, Department of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Daniel B. Bickford, Asst. U. S. Atty., on the brief, for appellee, United States of America.
John W. Blakeney, Boston, Mass., Blakeney & Blakeney, Boston, Mass., on the brief, for appellee, Continental Casualty Company.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This is a case in which we might be tempted to wonder whether appellant can ever make the full circuit home. However, the only question before us is whether it was properly called out before reaching first, and we will confine ourselves to that single issue. Appellant, Atlantic Corporation, a Massachusetts corporation, is one of a number of parties defendant named in a complaint filed in 1958 by the United States under 26 U.S.C. § 7403 to enforce liens totalling $102,000 for certain 1956 and 1957 taxes owed by defendant taxpayer, A. V. Taurasi Co., a Massachusetts contracting company. The liens were asserted against funds of half a million dollars or more held by defendant Commonwealth of Massachusetts. On the pleadings the funds consist of “retained percentages” (see Mass.G.L. c. 30, § 39) and possibly other amounts due taxpayer under three road construction contracts with the Commonwealth. The other defendants, in addition to taxpayer and its receiver in bankruptcy, are Continental Casualty Co. and Hartford Accident & Indemnity Co., its sureties on the first, and other two contracts, respectively, and a substantial number of its alleged suppliers of labor and materials, largely Massachusetts corporations or citizens. Appellant and all other defendants except the Commonwealth are alleged to have possible interests, by contract, lien, or otherwise, in the funds, but all such interests, according to the complaint, are inferior to the government’s tax liens.
The defendant laborers and material-men answered that their interests were superior. The surety companies, Hartford in the form of a formal cross-claim, Continental as a separate “defense,” agreed that the funds should be first used to pay the defendant laborers and materialmen, and alleged that any balance should be paid to themselves under their contracts with taxpayer. Continental further alleged that by decree of the Massachusetts Superior Court, dated the day the complaint was filed, the Commonwealth had been ordered to disburse the retained percentages under the contract secured by Continental to the laborers and materialmen to the exclusion of Atlantic. Finally, Atlantic answered that its claim, in the amount of $106,000, came ahead of the government, or any other defendant, by virtue of assignments from taxpayer under all three contracts. It prayed that this be adjudged, and that said amount be ordered paid to it. Thereafter, on motion of the government, the Commonwealth was enjoined from distributing the funds until further order of court.
On May 7, 1962, a so-called stipulation of dismissal with prejudice as against Continental, signed by the government and by Continental, was filed, and initialled by the court. On the same day the court allowed the government’s motion for a dissolution of the injunction. On May 29 the government moved “pursuant to Rule 41(b) of the Rules of Civil Procedure that the above entitled action be dismissed without prejudice.” This motion was heard on June 4, and on June 6 the court filed a memorandum stating that the government’s motion was allowed against all defendants except Atlantic, and that the “case is retained for the adjudication of the claim of Atlantic Corporation.” Thereafter the government renewed its full motion, and following a hearing the court handed down an opinion reciting that the government had “discharged the liens,” that the court had previously “allowed the motion as to all parties except the United States and the Atlantic Corporation * * * [and] the Court now allows the government’s motion in full as it no longer has jurisdiction of this cause.” Subsequently a formal order was entered dismissing the case. Atlantic duly appealed from all of these actions.
This case involves a series of misconceptions, beginning with the government’s attempt to dismiss under the wrong section of the rule. In this court the government concedes that it was not entitled to a dismissal under Rule 41 (b), and that it was not entitled as of right to a dismissal as against Atlantic without prejudice under Rule 41(a) (2). It has stipulated that the dismissal may be made with prejudice so far as its claim to a prior lien on the funds is concerned. Atlantic is apprehensive nonetheless, and argues that there should be no dismissal on any basis because of the effect of a dismissal (as determined by the district court) upon the court’s jurisdiction to adjudicate Atlantic’s rights as against the other claimants.
The presence or absence of the government had nothing to do with the court’s jurisdiction over the balance of the case. If Atlantic had a proper cross-claim against its co-defendants this gave the court ancillary jurisdiction even though all the parties to the cross-claim were citizens of the same state. City of Boston v. Boston Edison Co., 1 Cir., 1958, 260 F.2d 872; R. M. Smythe & Co. v. Chase National Bank of New York, 2 Cir., 1961, 291 F.2d 721; Childress v. Cook, 5 Cir., 1957, 245 F.2d 798. The termination of the original action would not affect this. This is but one illustration of the elementary principle that jurisdiction which has once attached is not lost by subsequent events. See discussion in Home Ins. Co. of New York v. Trotter, 8 Cir., 1942, 130 F.2d 800, at 804. The district court’s seeming view that it lost jurisdiction of an otherwise justiciable matter was erroneous. Rather, the question was whether it ever had such jurisdiction.
While Atlantic’s pleading was not drawn with technical proficiency, in substance it was clearly an attempt to assert a cross-claim for a determination of preference, and payment, as against its co-defendants. Its propriety depends upon whether it was a claim “arising out of the transaction or occurrence that is the subject matter * * * of the original action * * * or relating to any property that is the subject matter of the original action,” so as to constitute a permissible cross-claim within F.R.Civ. P. 13(g). Plainly Atlantic’s claim did not arise out of the original transaction or occurrence. The question, accordingly, is how broadly we should read the “property" clause.
There are two reasons why it may be proper to permit a defendant to proceed by way of cross-claim instead of by independent suit, which may be denominated necessity and convenience. Obviously the court must avoid granting relief which would work affirmative injustice as between parties defendant. This could occur both in cases which might be said to involve the original transaction or occurrence, see Rickey Land & Cattle Co. v. Miller & Lux, 1910, 218 U.S. 258, 263, 31 S.Ct. 11, 54 L.Ed. 1032, and in broader situations where, because the court had taken possession of property, it must correctly administer it. Morgan’s, etc., Co. v. Texas Central Ry„ 1890, 137 U.S. 171, 11 S.Ct. 61, 34 L.Ed. 625. In the event of necessity there could be no requirement of independent jurisdiction. Rickey Land & Cattle Co. v. Miller & Lux, supra. The second, and more common situation is where the court, having embarked upon an issue, might reasonably be asked, as a matter of convenience to the parties, to deal with the ramifications which readily lent themselves to contemporaneous solution, that is to say, to make a “complete determination of the matters already in litigation.” Morgan’s, etc., Co. v. Texas Central Ry., supra, 137 at 201, 11 S.Ct. at 70; City of Boston v. Boston Edison Co., supra. Although in these cases, too, the courts have not experienced jurisdictional doubts, we agree with the suggestion in Childress v. Cook, supra, that the very fact that cross-claims require no independent jurisdiction is reason for not allowing too broad a scope.
In the case at bar, had the alleged fund been deposited in court it would be appropriate to determine all issues affecting its ultimate disposition. But since it was not we agree with the court in Pettyjohn v. Pettyjohn, 8 Cir., 1951, 192 F.2d 322, that not only does Atlantic’s claim clearly not arise out of the original transaction or occurrence, but the court’s possession of “property” is too slight of itself to justify its entertainment.
There is an additional reason in the present case for refusing to entertain Atlantic’s cross-claim. Its co-defendants, taxpayer’s suppliers of labor and materials, possessed a special statutory status. Under then Mass.G.L. (Ter.Ed.) c. 30, § 39, the funds due from the Commonwealth, at least to the extent of the “retained percentages,” were to be sought in a special proceeding in the superior court from which general creditors were excluded. J. J. Struzziery Co. v. A. V. Taurasi Co., 1960, 340 Mass. 481, 165 N.E.2d 120, supra, n. 1. For the district court to entertain Atlantic’s cross-claim would work serious interference with this statutory scheme. Atlantic’s argument based on the fact that it was excluded from the state court does not suggest to us that it should be admitted here, but just the reverse.
Judgment will be entered affirming the judgment of the District Court except that such judgment is modified to dismiss with prejudice the government’s complaint insofar as it sought to declare rights in the funds superior to rights, if any, of appellant. Costs to Continental Casualty Co., only.
. See J. J. Struzziery Co. v. A. V. Taurasi Co., 1960, 340 Mass. 481, 165 N.E.2d 120, a case decided against appellant on the merits by the denial of its motion to intervene, 340 Mass, at 487, 165 N.E.2d at 123, and establishing a broad principle with respect to “retained percentages,” infra. For reasons not worth detailing we do not agree, however, with the claim of certain appellees that this appeal is moot.
. This decree has since been affirmed. See n. 1, supra.
. To some extent we have simplified the facts and telescoped various pleadings.
. This did not dismiss Continental from the ease so far as any claims against it by Atlantic were concerned. Rudloff v. Johnson. 8 Cir., 1959. 267 F.2d 708.
. In the light of this case it may be thought that the Advisory Committee’s reason for suggesting the addition of the “property” provision to Rule 13 in 1940, see 28 U.S.C.A., may have been fear that the rule, as previously expressed, failed to provide for as full jurisdiction as had been formerly recognized in federal equity cases. The rights of the junior encumbrancer that were asserted to be in. the Committee’s mind do not strictly arise out of the original transaction or occurrence. Dunham v. Smith, 1929, 97 Fla. 380, 120 So. 761. At the same time it is clear that nothing in the rule was intended to confer general jurisdiction upon the court where it had not previously existed. F.R.Civ.P. 82; see Pettyjohn v. Pettyjohn, infra.
. Pettyjohn, v. Pettyjohn is not only on all fours with the facts at bar, but it is interesting to note that the writing judge was one particularly aware that appropriate affirmative relief to defendants does not require a separate jurisdictional basis. See Coastal Air Lines v. Dockery, 8 Cir., 1950, 180 F.2d 874; Home Ins. Co. of New York v. Trotter, 8 Cir., 130 F.2d 800, supra.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. Frank H. MOLITOR, Appellee. Frank H. MOLITOR, Appellant, v. UNITED STATES of America, Appellee.
No. 18747.
United States Court of Appeals Ninth Circuit.
Oct. 28, 1964.
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Earl J. Silbert, David I. Granger, Dept, of Justice, Washington, D. C., Brockman Adams, U. S. Atty., Seattle, Wash., for-appellant-cross appellee.
George S. Lundin, Geraghty, Volinn & Lundin, Seattle, Wash., for appelleecross appellant.
Before MADDEN, Judge of the-United States Coux-t of Claims, and. JERTBERG and DUNIWAY, Circuit. Judges.
JERTBERG, Circuit Judge.
We have before us in this case two-appeals, one by the United States, and" the other by Frank H. Molitor, hereinafter “Molitor”, and involving Social Security and Income taxes withheld from wages received by the employees of Anchorage Bus Company, Inc., a corporation.
There is no dispute that for the last, quarter of 1955 and the first quax*ter of 1956, the Anchorage Bus Company owed to the United States withholding and federal insurance contributions act. (FICA) taxes in the amount of $11,-143.58, which amount the corporation never paid. On December 23, 1957, the-above amount was assessed against Molitor as a responsible person who had willfully failed to collect, account fox', and pay over the taxes in question, pux-suant to Section 6671(b) and Section 6672 of the Internal Revenue Code of 1954. Because of Molitor’s failure to pay any portion of this assessment, the Commissioner of Internal Revenue, acting: through his agents, and pursuant to levy, held a sale of real property belonging to Molitor on July 13, 1959, from the proceeds of which sale the amount of $7,-756.79 was applied to the assessment, leaving an unpaid balance of $3,947.15.
Molitor filed a claim for refund in the amount of $7,196.43 on February 9, 1962, which claim was rejected on April 2, 1962. Within the time provided in Section 6532 of the Internal Revenue Code of 1954, and on April 24, 1962, Molitor brought an action in the District Court for a refund of said amount plus interest, and also prayed that the assessed balance of $3,947.15 plus interest be abated and that the United States be enjoined from in any manner attempting to collect the same. The United States filed a counterclaim for the unpaid balance of $3,947.15.
The findings of fact and conclusions of law made by the District Court contain the following conclusions of law:
“In an action to recover monies assessed and collected pursuant to Section 6672 of the Internal Revenue Code of 1954, the plaintiff has the burden of proving that he was not the person required to perform the duties set forth in Section 6672 .and, further, the plaintiff has the burden of proving he did not act willfully in failing to perform any of the duties set forth in Section 6672.
“In an action for the recovery of monies alleged to have been erroneously and illegally assessed and collected pursuant to Section 6672 of the Internal Revenue Code of 1954, the defendant, upon its counterclaim for the unpaid balance of any assessments which are the subject of the plaintiff’s claim, has the burden of proving that the plaintiff was the person required to perform the duties set forth in Section 6672 and, further, the defendant has the burden of proving that the plaintiff acted willfully in failing to perform any of the duties set forth in Section 6672.
“The plaintiff has not sustained his burden of proof upon his claim and the claim is dismissed.
“The defendant has not sustained its burden of proof upon its counterclaim and the counterclaim is dismissed.”
The judgment was made and entered on the 15th day of March, 1963, and provides that Molitor take nothing by his complaint; that the complaint be dismissed with prejudice; that the United States take nothing by way of its counterclaim and that the counterclaim be dismissed with prejudice. Judgment further provided that Molitor is not and shall not be obligated to the Government of the United States for the balance of the penalty assessment made against Molitor by the Government, and that any liens based thereon be and are declared to be null and void.
On May 14, 1963, the United States filed its notice of appeal from the judgment entered on the 15th day of March, 1963, and on May 21, 1963, Molitor filed his cross-appeal from said final judgment.
Because Molitor’s cross-appeal was filed more than sixty days after entry of judgment, we will first consider the contention of the United States that this court is without jurisdiction over the cross-appeal because the same was untimely filed. Rule 8(1), rules of this Court, provides that the Federal Rules of Civil Procedure, whenever applicable, are hereby adopted as part of the rules of this Court. Rule 73(a), Rule of Civil Procedure, in relevant part provides that when an appeal is permitted by law from a District Court to the Court of Appeals, the time within which the appeal may be taken shall be thirty days from the entry of the judgment appealed from, unless a shorter time is provided by law, except that in any action in which the United States is a party, the time as to all parties shall be sixty days from such entry. Sixty days from the entry of judgment in the instant case expired on May 14, 1963, and seven days before Molitor filed his cross-appeal. The reasons set forth by Molitor in his brief for failure to file his cross-appeal within the sixty day period are:
“In the Molitor case, the Government filed its notice of appeal on the sixtieth day. No notice of appeal had been filed by Molitor. The reason for this was, that, although Molitor was not in full accord with the decision of the District Court, he was satisfied enough with the judgment rendered and did not want to appeal independently. However, when he learned that the Government had appealed he decided then that a cross-appeal was necessary to preserve his rights. By this time, since the Government had filed its notice of appeal on the sixtieth day, it was impossible for Molitor to file notice of cross-appeal within the sixty day period.”
The only exception appearing in Rule 73(a) providing for an extension of time in which to file a notice of appeal is “that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the distinct court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Molitor does not contend that his failure to file within the sixty day period resulted from excusable neglect based on a failure on his part to learn of the entry of the judgment.
It is well established that a notice of appeal must be timely filed so as to confer jurisdiction upon this Court to consider such appeal. Smith v. Stone, 308 F.2d 15, 17 (9th Cir. 1962); Smith v. United States, 272 F.2d 228, 229 (9th Cir. 1959), certiorari denied, 362 U.S. 954, 80 S.Ct. 868, 4 L.Ed.2d 871 (1960), rehearing denied, 362 U.S. 992, 80 S.Ct. 1080, 4 L.Ed.2d 1024 (1960); Stafford v. Russell, 220 F.2d 853, 854 (9th Cir. 1955); Fern v. United States, 213 F.2d 674, 676, 15 Alaska 31 (9th Cir. 1954).
Molitor’s cross-appeal must be and is hereby dismissed on the ground that this court is without jurisdiction to entertain it. The dismissal of the cross-appeal renders moot Molitor’s assignment of error on the part of the District Court in denying Molitor’s motion made under Rule 34 of the Federal Rules of Civil Procedure, seeking to compel the United States to produce its administrative file and any papers it planned to use' at the trial.
We shall now consider the appeal of the United States.
Section 3101 of the Internal Revenue Code of 1954, imposes on the income of every individual a tax equal to a specified percentage of his wages received by him with respect to employment, as defined, as a contribution to his insurance under Social Security and related programs. [FICA].
Section 3102 of the Internal Revenue Code of 1954, imposes upon the employer the duty to collect this tax by deducting the amount of the taxes from the wages as and when paid.
Section 3402, provides for the collection of income taxes at source by requiring every employer to deduct and withhold a percentage of the wages paid to employees. The amount of taxes withheld by an employer constitutes, pursuant to section 7501, a special fund, in trust, for the United States. If a per.son, as defined in Section 6671(b), who is required to collect the tax, wilfully fails to collect, truthfully account for .and pay over such tax, that person is liable under Section 6672 for a penalty equal to the amount of the tax.
There is no dispute as to the correctness of the amount of the assessment made against Molitor. The parties agreed in the pre-trial order, and the District Court found, that the United States assessed the amount of $11,143.58 against Molitor on December 23, 1957, and that the balance claimed in the ■ counterclaim is the sum of $3,947.15.
The court found upon substantial evidence that during the last quarter of 1955 and the first quarter of 1956, Molitor was the chief executive officer of Anchorage Bus Company, Inc., and had the power during said periods to control •expenditures by the company.
As previously noted, the District ■Court concluded that in Molitor’s suit for refund he had the burden of proving that he was not a person responsible for performing the duties set forth in § 6672, and that if he were such a person, he had not wilfully failed to perform those duties. The District Court held that Molitor had failed to sustain that burden. The District Court also ruled that the United States, on its counterclaim, had the burden of proving that Molitor was a person responsible for performing the duties set forth in § 6672, and that if such a person, he willfully failed to perform those duties. The District Court held that the United States had failed to sustain such burden.
The United States specifies the District Court erred:
(1) in failing to give proper weight to the assessment in satisfying the burden of proof of the United States on its counterclaim; and
(2) in the alternative, in concluding that the United States did not meet its burden of proof on its counterclaim.
The errors relied upon by the United States raise chiefly a burden of proof problem.
The United States states in its brief, and we agree, that:
“The counterclaim made by the United States in this case was no different from a suit brought against taxpayer [Molitor] to collect the unpaid balance of the assessment against him for the income and social security taxes owed by the Anchorage Bus Company, Inc. In such a suit, the burden of proof is admittedly on the United States as the initiator of the action to establish the liability of the taxpayer. Bowers v. American Surety Co., 30 F.2d 244, 245 (C.A.2d), certiorari denied, 279 U.S. 865, [49 S.Ct. 480, 73 L.Ed. 1003] 9 Mertens, Law of Federal Income Taxation, (Rev.) Sec. 49.218.”
The United States argues that it satisfied the burden of proof resting upon it when it introduced into evidence the administrative assessment made against Molitor, and in this connection asserts:
(1) that the presumption of administrative regularity arising from the assessment constitutes a prima facie proof that Molitor is a person responsible for performing the duties set forth in § 6672, and that he wilfully failed to perform such duties; and
(2) that such prima facie proof is sufficient when unassailed to establish Molitor’s liability.
From such premises the United States argues that since the District Court concluded, in Molitor’s suit for refund, that he had the burden of proving that he was not a person responsible for performing the duties set forth in § 6672, and that if he were such a person, he had not willfully failed to perform those duties, and since the District Court held that Molitor had failed to sustain his burden of proof on such matters, the Court should have concluded that the assessment was unassailed and that the District Court, therefore, should have entered judgment in favor of the United States on its counterclaim, and having failed to do so, this Court should.
We agree that if Molitor had adduced no evidence contesting the prima fade proof arising from the assessment that Molitor was a person responsible for performing the duties set forth in § 6672, and that he willfully failed to perform such duties, the United States would have been entitled to judgment against Molitor in the amount of $3,947.15. However, Molitor adduced evidence on such matters by the testimony of five witnesses, whose' testimony was received in the form of depositions, and by his own testimony in. person.
In support of its position the United States relies primarily upon what it designates as “the leading case on this subject”, United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131 (1882). In that case the Supreme Court specifically approved — with one exception not relevant here — the trial court’s charge to the jury, which reads as follows:
“When, therefore, an assessment has been made by this officer it is to be presumed until such presumption is overcome by proof to the contrary that it was made upon sufficient evidence, and it is not necessary that the evidence upon which the commissioner acted should be laid before the jury. In other words: the jury have a right to presume, until the contrary appears, that when the commissioner made the assessment in question he had before him proofs which were sufficient to satisfy a just and fair-minded person that such assessment ought to be made; and before the jury can disregard the assessment they should be convinced by the evidence that the commissioner acted in making it in a manner unjust to the defendant distiller and unwarranted by the actual facts. Such an assessment is not, however, conclusive evidence of the liability of the distiller; it is open to attack; it is prima facie proof only of such liability, and prima facie evidence is such evidence as is sufficient, when unassailed, to establish a given fact, and it remains suffi•cient for that purpose until it is rebutted and overcome. * * * 'Upon introduction of the assessment in evidence a prima facie case of liability on the part of the defendant, Lewis Rindskopf, is made. The burden of proof then falls upon the ■defendants, who may proceed to introduce evidence to overcome the assessment by showing that the defendant, Lewis Rindskopf, did not, ■during the period covered by the assessment, manufacture and remove from his distillery spirits upon which the tax was not paid.
“And upon it being so made to appear, the burden of proof then shifts to the plaintiffs, and it then becomes incumbent on the plaintiffs, to maintain and establish the correctness of the assessment by sufficient and competent evidence. * * The order of proof which has been maintained upon the trial is in consonance with the rules of law applicable to such a case, which have just been stated.”
In the course of its opinion the court stated:
“The assessment of the Commissioner of Internal Revenue was only prima facie evidence of the amount due as taxes upon the spirits distilled between the dates mentioned. It ■established a prima facie case of liability against the distiller, and nothing more. If not impeached, it was sufficient to justify a recovery; but every material fact upon which his liability was asserted was open to contestation. The distiller an,d his sureties were at liberty to show that no spirits, or a less quantity than that stated by the commissioner, were distilled within that period mentioned, and thus entirely, or in part, overthrow the assessment. They were also at liberty to show a payment of the tax assessed, in whole or in part, and thus discharge or reduce the distiller’s liability. To the extent, however, in which the assessment was not impaired, there was evidence of the amount due.”
The United States appears to recognize the principles set forth in Rindskopf when it states in its brief: “Had the taxpayer, however, come forward with sufficient evidence to establish that he was not responsible for the tax or that he did not willfully fail to pay it, then the Government would have had to come forward with the evidence to justify the assessment.”
We are unable to determine from the record what weight or consideration, if any, the District Court gave to the testimony adduced by Molitor challenging the prima facie proof of liability arising from the assessment, since factors of credibility of witnesses are involved which the District Court is in a position to appraise, and we are not, and since the District Court made no findings of fact on the issues of willfulness, and who is the responsible person. Likewise we are unable to determine from the record what weight or consideration, if any, the District Court gave to the presumption of administrative regularity arising from the assessment in ascertaining whether the United States had sustained its burden of proof.
We believe that the proper and appropriate course to follow in view of the state of the record in this case is to, and we do, vacate and set aside that portion of the judgment entered by the District Court relating to the counterclaim of the United States, and to, and we do, remand the cause to the District Court for reconsideration, and for the making of findings on the issues of “who is a responsible person” and “willfulness”. The reconsideration and redetermination shall, in the discretion of the court, be made on the present record oías supplemented by further hearing in the event either party shall desire to offer further evidence, and shall be consistent with the views hereinafter expressed in this opinion.
Molitor contends on this appeal that the United States is not entitled to the benefit of the presumption of administrative regularity arising from the assessment levied against him by the United States because the “taxpayer” involved is not he, but is the Anchorage Bus Company, Inc. His further contention is that since § 6672 imposes a penalty “equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over”, the burden of proof provision contained in 26 U.S.C. § 7454 arises. That section provides:
“Burden of proof in fraud and transferee cases
“(a) Fraud. — In any proceeding involving the issue whether the petitioner has been guilty of fraud with intent to evade tax, the burden of proof in respect of such issue shall be upon the Secretary or his delegate.”
In Bloom v. United States, 272 F.2d 215 (9th Cir. 1959), cert. denied 363 U.S. 803, 80 S.Ct. 1236, 4 L.Ed.2d 1146; this court effectively disposed of Molitor’s first contention as stated at page 221 of 272 F.2d:
“In our view, Section 2707(a) [the predecessor to § 6672] imposes a separate and distinct liability upon the officer of the corporation who has the duty or is responsible for the collection and payment of the tax and who willfully fails either to collect the tax or to pay it over. While this liability is denominated ‘penalty’ it is ‘to be assessed and collected in the same manner as taxes are assessed and collected.’ While it might be said that the assessment made on appellant is derivative of the assessments made on the corporation, in that they both relate to taxes collected or withheld by the corporation, the liability imposed upon appellant by Section 2707(a) is statutory and in such cases the statutory limitations are controlling.”
It is our view that a person determined to be liable under § 6672, by operation of this section, is in effect the taxpayer. Clearly, if the United States had sued the Anchorage Bus Company, Inc., to collect the taxes, the United States would have had the benefit of the presumption. United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131 (1882).
We see no reason in principle why the benefit of the presumption should be denied to the United States in the instant case. In accord see United States v. Strebler, 313 F.2d 402 (8th Cir. 1963).
We believe that § 7454 is inapplicable to this suit. The counterclaim filed against appellant was not designed to impose criminal sanctions but is a civil action to insure payment to the United States of a tax already collected or deducted by the employer, whose employees have already received credit on their taxes in their individual returns. § 6672 does not provide for a “double” penalty. As we stated in Bloom v. United States, supra, at page 223 of 272 F.2d:
“ * * * there need not be present an intent to defraud or deprive the United States of the taxes collected or withheld for its account, nor need bad motives be present in order to invoke the sanctions * * * ”
of Section 6672.
Cause remanded to the District Court for reconsideration and redetermination as hereinbefore set forth.
Internal Revenue Code of 1954:
1. Ҥ 3101. Rate of tax
“In addition to other taxes, there is hereby imposed on the income of every individual a tax equal to the following percentages of the wages (as defined in section 3121(a)) received by him with respect to employment (as defined in section 3121(b))—
“(1) with respect to wages received during the calendar years 1955 to 1959, both inclusive, the rate shall be 2 percent ; * * (26 U.S.C.1958, ed., See. 3101.)
. Ҥ 3102. Deduction of tax from wages
“(a) Requirement. — The tax imposed by section 3101 shall be collected by the employer of the taxpayer, by deducting the amount of the tax from the wages as and when paid. * * * ” (26 U.S.C. 195S ed., Sec. 3102.)
. Ҥ 3402 [as amended by Sec. 2(a) Act of August 9, 1955, e. 666, 69 Stat. 605], Income tax collected at source
“(a) Requirement of withholding.— Every employer making payment of wages shall deduct and withhold upon such wages (except as provided in subsection (j)) a tax equal to 18 percent of the amount by which the wages exceed the number of withholding exemptions claimed, multiplied by the amount of one such exemption as shown in subsection (b) (1). * * *” (26 U.S.O. 1958 ed., Sec. 3402.)
. Ҥ 7501. Liability for taxes withheld or collected
“(a) General rule. — Whenever any person is required to collect or withold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose. * * * ” (26 U.S.O. 1958 ed., Sec. 7501.)
. Ҥ 6671. Rules for application of assessable penalties
“(b) Person defined. — The term ‘person’, as used in this subchapter, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.” (26 U.S.O. 1958 ed., Sec. 6671.)
. Ҥ 6672. Failure to collect and pay over tax, or attempt to evade or defeat tax
“Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is applicable.” (26 U.S.O. 1958 ed., Sec. 6672.)
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_origin
|
D
|
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.
In the Matter of Edwin R. POWELL and Joshua E. Turner, Individually, and the Partnership Known as Powell & Turner, Composed of Edwin R. Powell and Joshua E. Turner, Alleged Bankrupts. Edwin R. Powell and Joshua E. Turner, Individually, and the Partnership Known as Powell & Turner, Composed of Edwin R. Powell and Joshua E. Turner, Appellants.
No. 11372.
United States Court of Appeals Third Circuit.
Argued Nov. 18, 1954.
Decided Nov. 26, 1954.
Samuel R. Russell, Georgetown, Del., (Tunnell & Tunnell, Georgetown, Del., on the brief), for appellants.
William Prickett, Wilmington, Del. (John E. Mulder, Wexler, Mulder & Weisman, Philadelphia, Pa., on the brief), for appellees.
Before GOODRICH, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
This case presents the question whether on á given date Edwin R. Powell and Joshua E. Turner were farmers and thus immune to an involuntary adjudication of bankruptcy under Section 4 of the Bankruptcy Act, 11 U.S.C.A. § 22. The referee found that they were not. This finding was approved by the district judge who set out his reasons in a thoroughly considered opinion. In re Powell, D.C.D.Del.1954, 121 F.Supp. 33. There is, in our judgment, ample evidence to support his conclusion.
The judgment of the district court will be 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_declarationuncon
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to indentify whether the Court declared unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance. Note that the Court need not necessarily specify in many words that a law has been declared unconstitutional. Where federal law pre-empts a state statute or a local ordinance, unconstitutionality does not result unless the Court's opinion so states. Nor are administrative regulations the subject of declarations of unconstitutionality unless the declaration also applies to the law on which it is based. Also excluded are federal or state court-made rules.
GROPPI v. WISCONSIN
No. 26.
Argued December 7, 1970—
Decided January 25, 1971
Stewart, J., delivered the opinion of the Court, in which Douglas, HarlaN, BrennaN, White, and Marshall, JJ., joined. Black-mun, J., filed a concurring opinion, in Which Burger, C. J., joined, post, p. 512. Black, J., filed a dissenting opinion, post, p. 515.
Elizabeth B. Dubois argued the causé for appellant. With her on the briefs were Jack - Greenberg, Michael Meltsner, Anthony G. Amsterdam, Thomas M. Jacobson, and Robert E. Sutton.
Sverre O. Tinglum, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief wére Robert W. Warren, Attorney General, and Roy G. Mita, Assistant Attorney General.
Mr. Justice Stewart
delivered .the opinion of the Court.
On. August 31, 1967, during a period of civil disturbances in Milwaukee, Wisconsin, the appellant,- a Roman Catholic priest, was arrested in that city on a charge of resisting arrest. Under Wisconsin law that offense is a misdemeanor, punishable by a fine of not more than $500 or imprisonment in the county jail for not more than one year, or both. After a senes of continuances, the appellant was brought to trial before a jury in a Milwaukee County court on February 8, 1968. The first morning of the trial was occupied with qualifying the jurors, during the course of which the appellant exhausted all of his peremptory challenges. The trial then proceeded, and at its conclusion the jury convicted the appellant as charged.
Prior to the trial, counsel for the appellant filed a motion for a change of venue from Milwaukee County “to a county where community prejudice against this defendant does not exist and where an impartial jury trial can be had.” The motion asked the court to take judicial notice of “the massive coverage by all news media in this community of the activities of this defendant,” or, in the alternative, that “the defendant be permitted to offer proof of the nature and extent thereof, its effect upon this community and on the right of defendant to an impartial jury trial.” The trial judge denied the motion, making clear that his ruling was based exclusively on his view that Wisconsin law did not permit a change of venue in misdemeanor cases.
On appeal, the Supreme Court of Wisconsin affirmed the conviction. 41 W,is. 2d 312, 164 N. W. 2d 266. It held that the trial judge had been correct in his understanding that a Wisconsin statute foreclosed thé possibility of a change of venue in a misdemeanor prosecution. It further held that this state law was constitutionally valid, pointing out that “it would be extremely unusual for a community as a whole to prejudge the guilt of any person charged with a misdemeanor.” 41 Wis. 2d, at 317, 164 N. W. 2d, at 268. The court also noted that a defendant in a Wisconsin misdemeanor prosecution has a right to ask for continuances and to challenge prospective jurors on voir dire, and if “these measures are still not sufficient to provide an impartial jury, the verdict can be set aside after trial based on the denial of a fair and impartial trial.” 41 Wis. 2d, at 321, 164 N. W. 2d, at 270. Two members of the court dissented, helieving that the state statute did not absolutely forbid a change of venue in a misdemeanor prosecution, and that if the statute did contain such a prohibition it was constitutionally invalid. 41 Wis. 2d, at 325, 164 N. W. 2d, at 272.
This appeal followed, and we noted probable jurisdiction. 398 U. S. 957. As the case reaches us we must, of course, accept the construction that the Supremq Court of Wisconsin has put upon the state statute. E. g., Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 688. The question before us, therefore, goes to the constitutionality of a state law that categorically prevents a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole ground that the charge against him is labeled a misdemeanor. We hold that this question was answered correctly by the dissenting justices in' the Supreme Court of Wisconsin.
The issue in this case is not whether the Fourteenth Amendment requires a State to accord a jury trial to- a defendant on a charge such as the appellant faeed here. The issue concerns, rather, the nature of the jury trial that the Fourteenth Amendment commands, when trial, by jury is what the State has purported to accord. We had occasion to consider this precise question almost 10 years ago in Irvin v. Dowd, 366 U. S. 717. There we found that an Indiana conviction could not constitutionally stand because the jury had been infected by community prejudice before the trial had commenced. What the Court said in that case is wholly relevant here:
“In essence, the right to jury .trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors. The failure to. accord an accused a fair hearing violates even the minimal standards of due process. In re Oliver, 333 U. S. 257; Tumey v. Ohio, 273 U. S. 510. ‘A fair trial' in a fair tribunal is a basic requirement of due process.’ In re Murchison, 349 U. S. 133, 136. In the ultimate analysis, only the jury can strip a man of his liberty .or his life. In the language of Lord Coke, a juror must be as ‘indifferent as he stands unsworne.’ Co. Litt. 155b. His verdict must be based upon the evidence developed at the trial. Cf. Thompson v. City of Louisville, 362 U. S. 199. This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies. It was so written into our law as early as 1807 by Chief Justice Marshall in 1 Burr’s Trial 416 . . . .” 366 U. S., at 722. .
There are many ways- to try to assure the kind of impartial jury that the Fourteenth Amendment guarantees. In Sheppard v. Maxwell, 384 U. S. 333, the Court enumerated many of the procedures available, particularly in the context of a jury threatened by the poisonous influence of prejudicial publicity during the course of the trial itself. 384 U. S., at 357-363. Here we are concerned with the methods available to assure an impartial ■ jury in a situation where, because of prejudicial publicity or for some other reason, the community from which the jury is to be drawn may already be permeated with hostility toward the defendant. The problem is an ancient one. Mr. Justice Holmes stated no more than a commonplace when, two generations ago, he noted that “[a]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.” Frank v. Mangum, 237 U. S. 309, 349 (dissenting opinion).
One way to try to meet the problem is to grant a continuance of the trial in the hope that in the course of time, the fires of prejudice will cool. But this hope may not be realized, and continuances, particularly if they are repeated, work against the important values implicit in the constitutional guarantee of a. speedy trial. Another way is to provide a method of jury qualification that will promote, through the exercise of challenges to the ve-nire — peremptory and for cause — the exclusion of prospective jurors infected with the prejudice of the community from which they come. But this protection, as Irvin v. Dowd, supra, shows, is not always adequate to effectuate the constitutional guarantee.
Oh at least one occasion this Court has explicitly held that only a change of venue was constitutionally , sufficient to assure the kind of impartial jury that is guaranteed by the Fourteenth Amendment. That was. in the case of Rideau v. Louisiana, 373 U. S. 723. We held that, “it was a denial of due process, of law to refuse the request for a change of venue, after the people óf Calcasieu Parish had been exposed repeatedly and in depth” to the prejudicial pretrial publicity there involved. 373 U. S., at 726. Ridedu was not decided until 1963, but its message echoes more than 200 years of human experience in the endless quest for the fair administration of criminal justice.
It is doubtless true, as the Supreme Court of Wisconsin said, that community prejudice is not often' aroused against a man accused only of a misdemeanor. But under the Constitution a defendant must be given an opportunity to show that a change of venue is required in his case. The Wisconsin statute wholly denied that opportunity to the appellant.
Accordingly, the judgment is vacated, and the case is remanded to the Supreme Court of Wisconsin for further proceedings not inconsistent with this opinion.
It is so ordered.
“Whoever knowingly resists or obstructs an officer while such officer is doing any act in his official capacity and with lawful authority, may be fined not more than $500 or imprisoned not more than one year in countv i,.il or both.” Wis. Stat. § 946.41 (1) (1967).
Apparently no transcript was made of the voir dire proceedings.
The court: “So, therefore, the change of venue as asked for in_the motion for a change of venue will be denied; it not being provided for in the Wisconsin Statutes. . . . No, I’m denying the motion for a change of venue because this is a misdemeanor case and not a felony. And the Wisconsin Statute does not provide for a change of venue in a misdemeanor matter.”
The relevant statute in effect at the time of the appellant’s trial was Wis. Stat. §956.03 (3) (1967), which provided:
“If a defendant who is charged with a felony files his affidavit that an impartial trial cannot be had in the county, the court may change the venue of the action to any county where an impartial trial can be had. Only one change may be granted under this subsection.”
Wis. Stat. § 971.22, effective July 1) 1970, now permits a change of venue in all criminal cases. See Wis. Laws 1969, c. 255, p. 650.
We reject the suggestion that the appellant is not in a position to attack the statute because he made an insufficient showing of community prejudice. His motion for a change of venue explicitly asked in the alternative that he be permitted to “offer proof” of the nature and extent of the local prejudice against him. His motion was denied in its entirety, thus foreclosing any opportunity to produce evidence of a prejudiced community. The trial court’s ruling was, of course, wholly consistent with its view that it was powerless to grant a change of venue under Wisconsin law, regardless of what showing of local prejudice might have been made.
Accord, Pamplin v. Mason, 364 F. 2d 1 (CA5); State ex rel. Ricco v. Biggs, 198 Ore. 413, 255 P. 2d 1055.
That question was answered affirmatively in Baldwin v. New York, 399 U. S. 66.
Wisconsin grants a. right to trial by jury in all misdemeanor cases. See State ex rel. Murphy v. Voss, 34 Wis. 2d 501, 505, 149 N. W. 2d 595, 597; State ex rel. Sauk County District Attorney v. Gollmar, 32 Wis. 2d 406, 410, 1145 N, W. 2d 670, 672.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ttf . . . an impartial jury . . . .” (Emphasis added.)
See Klopfer v. North Carolina, 386 U. S. 213; Smith v. Hooey, 393 U. S. 374; Dickey v. Florida, 398. U. S. 30; id., at 39 (BrenNan, J., concurring). .
See generally Broeder, Voir Dire Examinations: An Empirical Study, 38 S. Cal. L. RSv. 503 (1965).
See Rex v. Harris, 3 Burr. 1330, 1333, 97 Eng. Rep. 858, 859 (K. B. 1762): “Notwithstanding the locality of some sorts of actions, or of informations for misdemeanors, if the matter can not be tried at all, or can not be fairly and impartially, tried in the proper county, it shall be tried in the next adjoining county.” (Lord Mansfield.)
See also Crocker v. Justices of the Superior Court, 208 Mass. 162, 178-179, 94 N. E. 369, 376-377 (1911):
“This review demonstrates that the great .weight of authority ■ supports .the view that courts, which by statute or .custom, possess a jurisdiction like that of the Kings Bench before our revolution, have the right to change the place of trial, when justice requires it, to a county; where an impartial trial may be had.
•“. . . There can be no justice in a trial by jurors inflamed by passion, warped by prejudice, awed by violence, menaced by the virulence of public opinion or manifestly biased by any influences operating either openly or insidiously to such an extent as to poison the judgment and prevent the freedom of fair action. Justice cannot be assured in a trial where other considerations enter the minds of those who are to decide than the single desire to ascertain and •declare the truth according to the law and the evidence. A court of general jurisdiction ought not to be left powerless under the law to do within reason all that the conditions of society and human nature permit to provide an unprejudiced panel for a jury trial.”
See also, e. g., State v. Albee, 61 N. H. 423, 60 Am. Rep. 325 (1881).
Whether corrective relief can be afforded the appellant short of a new trial will be for the Wisconsin courts to determine in the first instance. Cf. Coleman v. Alabama, 399 U. S. 1, 10-11.
Question: Did the Court declare unconstitutional an act of Congress; a state or territorial statute, regulation, or constitutional provision; or a municipal or other local ordinance?
A. No declaration of unconstitutionality
B. Act of Congress declared unconstitutional
C. State or territorial law, regulation, or constitutional provision unconstitutional
D. Municipal or other local ordinance unconstitutional
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HERSHKOWITZ v. UNITED STATES.
No. 6454.
Circuit Court of Appeals, Sixth Circuit.
June 29, 1933.
H. F. Gliek, of Cleveland, Ohio, for appellant.
Mare J. Wolpaw, of Cleveland, Ohio (Wilfred J. Mahon, of Cleveland, Ohio, on the brief), for the United States.
Before MOORMAN, HICKENLOOPER, and SIMONS, Circuit Judges.
PER CURIAM.
The appeal involves validity of searches made by prohibition officers without warrant, the first of the appellant’s automobile and the second of his dwelling. Agents of the Prohibition Department had on a date prior to the search observed appellant unloading what appeared to be bags of corn sugar from his automobile. They had followed the car from a known com sugar supply house. They noted a strong odor of whisky mash about the premises where the sugar was unloaded. Three days later other agents approached the premises. They also noted the odor of whisky mash, and observed appellant carrying a can from the house to the ear parked on the driveway in the rear. Crawling over a fence, they approached the appellant and asked him what he had, stating they wanted some whisky. Appellant replied, “I don’t know you fellows.” One of the agents pulled the can out of the ear, found it to contain whisky, and placed the appellant under arrest.
Following the arrest, the agents searched the dwelling house, gaining access by keys found on appellant’s person. On the second floor they discovered a still, whisky, and empty cans. In the attic were found mash, corn sugar, barrels, and yeast. Appellant was in- . dieted on three counts, charging (1) possession, (2) manufacture, (3) maintaining ;a nuisance. A motion to suppress the evidence was overruled, and conviction on all three counts followed. A general sentence of fine and imprisonment was imposed.
The search of the automobile was not unreasonable. The officers had probable cause to believe the law was being violated. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629, 74 A. L. R. 1407. The search of the house was illegal. It was conceded at the trial that the premises were occupied by the appellant as his private dwelling. We cannot, on the record, say otherwise. The facts within the knowledge of the officers were insufficient to support the issue of a search warrant, Grau v. United States, 287 U. S. 124, 53 S. Ct. 38, 77 L. Ed. 212, and it must follow that search without warrant under the circumstances is at least equally within the condemnation of the Fourth Amendment. Nor can the search be justified as an incident of the arrest. Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409. The officers already had evidence of possession. Further search could only be exploratory for the purpose of bringing to light other crimes. We think the court was in error in failing to grant the motion to suppress in so far as it related to evidence found upon search of the house.
The sentence imposed up«n appellant was general, and since it provides for both fine and imprisonment, and cannot therefore be sustained by conviction on the possession count alone, even though possession is therein charged as a second offense, we direct the following disposition of the case:
The judgment below on count 1 is affirmed, but the sentence is set aside, and as to it the cause is remanded for resentenee. The judgments on counts 2 and 3 are reversed, and as to them the cause is remanded for new trial, it being assumed that, if there is no evidence of guilt other than that disclosed by the invalid search, the two counts will on motion he dismissed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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sc_respondent
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028
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
UNITED JEWISH ORGANIZATIONS OF WILLIAMSBURGH, INC., et al. v. CAREY, GOVERNOR OF NEW YORK, et al.
No. 75-104.
Argued October 6, 1976
Decided March 1, 1977
White, J., announced the Court’s judgment, and delivered an opinion in which Stevens, J., joined; in all but Part IV of which Brennan and Blackmun, JJ., joined; and in Parts I and IV of which Rehnquist, J., joined. Brennan, J., filed an opinion concurring in part, post, p. 168. Stewart, J., filed an opinion concurring in the judgment, in which Powell, J., joined, post, p. 179. Burger, C. J., filed a dissenting opinion, post, p. 180. Marshall, J., took no part in the consideration or decision of the case.
Nathan Lewin argued the cause and filed a brief for petitioners.
George D. Zuckerman, Assistant Attorney General of New York, argued the cause for respondents Carey et al. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, John P. Rupp, Brian K. Landsberg, and William C. Graves. Louis H. Pollak argued the cause for respondents NAACP et al. With him on the brief were Jack Greenberg and Eric Schnapper.
Briefs of amici curiae urging reversal were filed by Will Maslow, Shad Polier, Larry M. Lavinsky, Arnold Forster, and James Lipsig for the American Jewish Congress et al.; by Steven M. Bernstein and Julius Berman for the Board for Legal Assistance to the Jewish Poor, Inc., et al.; and by Dennis Rapps and Samuel Rabinove for the National Jewish Commission on Law and Public Affairs et al.
Mr. Justice White
announced the judgment of the Court and filed an opinion in which Mr. Justice Stevens joined; Parts I, II, and III of which are joined by Mr. Justice Brennan and Mr. Justice Blackmun; and Parts I and IV of which joined by Mr. Justice Rehnquist.
Section 5 of the Voting Rights Act of 1965 prohibits a State or political subdivision subject to § 4 of the Act from implementing a legislative reapportionment unless it has obtained a declaratory judgment from the District Court for the District of Columbia, or a ruling from the Attorney General of the United States, that the reapportionment “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color....” The question presented is whether, in the circumstances of this case, the use of racial criteria by the State of New York in its attempt to comply with § 5 of the Voting Rights Act and to secure the approval of the Attorney General violated the Fourteenth or Fifteenth Amendment.
I
Kings County, N. Y., together with New York (Manhattan) and Bronx Counties, became subject to §§ 4 and 5 of the Act, by virtue of a determination by the Attorney General that a literacy test was used in these three counties as of November 1, 1968, and a determination by the Director of the Census that fewer than 50% of the voting-age residents of these three counties voted in the Presidential election of 1968. Litigation to secure exemption from the Act was unsuccessful, and it became necessary for New York to secure the approval of the Attorney General or of the United States District Court for the District of Columbia for its 1972 reapportionment statute insofar as that statute concerned Kings, New York, and Bronx Counties. On January 31, 1974, the provisions of the statute districting these counties for congressional, state senate, and state assembly seats were submitted to the Attorney General. In accordance with the regulations governing his § 5 review, the Attorney General considered submissions from interested parties criticizing and defending the plan. Those submissions included assertions that voting in these counties was racially polarized and that the district lines had been created with the purpose or effect of diluting the voting strength of nonwhites (blacks and Puerto Ricans). On April 1, 1974, the Attorney General concluded that, as to certain districts in Kings County covering the Bedford-Stuyvesant area of Brooklyn, the State had not met the burden placed on it by § 5 and the regulations thereunder to demonstrate that the redistricting had neither the purpose nor the effect of abridging the right to vote by reason of race on color.
Under § 5, the State could have challenged the Attorney General’s objections to the redistricting plan by filing a declaratory judgment action in a three-judge court in the District of Columbia. Instead, the State sought to meet what it understood to be the Attorney General’s objections and to secure his approval in order that the 1974 primary and general elections could go forward under the 1972 statute. A revised plan, submitted to the Attorney General on May 31, 1974, in its essentials did not change the number of districts with nonwhite majorities, but did change the size of the non white majorities in most of those districts. Under the 1972 plan, Kings County had three state senate districts with nonwhite majorities of approximately 91%, 61%, and 53%; under the revised 1974 plan, there were again three districts with nonwhite majorities, but now all three were between 70% and 75% nonwhite. As for state assembly districts, both the 1972 and the 1974 plans provided for seven districts with nonwhite majorities. However, under the 1972 plan, there were four between 85% and 95% nonwhite, and three were approximately 76%, 61%, and 52%, respectively; under the 1974 plan, the two smallest nonwhite majorities were increased to 65% and 67.5%, and the two largest non white majorities were decreased from greater than 90% to between 80% and 90%. The report of the legislative committee on reapportionment stated that these changes were made “to overcome Justice Department objections” by creating more “substantial nonwhite majorities” in two assembly districts and two senate districts.
One of the communities affected by these revisions in the Kings County reapportionment plan was the Williamsburgh area, where about 30,000 Hasidic Jews live. Under the 1972 plan, the Hasidic community was located entirely in one assembly district (61% nonwhite) and one senate district (37% nonwhite); in order to create substantial nonwhite majorities in these districts, the 1974 revisions split the Hasidic community between two senate and two assembly districts. A staff member of the legislative reapportionment committee testified that in the course of meetings and telephone conversations with Justice Department officials, he “got the feeling... that 65 percent would be probably an approved figure” for the nonwhite population in the assembly district in which the Hasidic community was located, a district approximately 61% nonwhite under the 1972 plan. To attain the 65% figure, a portion of the white population, including part of the Hasidic community, was reassigned to an adjoining district.
Shortly after the State submitted this revised redistricting plan for Kings County to the Attorney General, petitioners sued on behalf of the Hasidic Jewish community of Williamsburgh, alleging that the 1974 plan “would dilute the value of each plaintiff’s franchise by halving its effectiveness,” solely for the purpose of achieving a racial quota and therefore in violation of the Fourteenth Amendment. Petitioners also alleged that they were assigned to electoral districts solely on the basis of race, and that this racial assignment diluted their voting power in violation of the Fifteenth Amendment. Petitioners sought an injunction restraining New York officials from enforcing the new redistricting plan and a declaratory judgment that the Attorney General of the United States had used unconstitutional and improper standards in objecting to the 1972 plan.
On June 20, 1974, the District Court held a hearing on petitioners’ motion for a preliminary injunction. On July 1, 1974, the Attorney General informed the State of New York that he did not object to the implementation of the revised plan. The Attorney General moved to be dismissed as a party on the ground that the relief sought against him could be obtained only in the District Court for the District of Columbia and only by a State or political subdivision subject to the Voting Rights Act; the State and the intervenor NAACP moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The District Court granted the motions to dismiss the complaint, reasoning that petitioners enjoyed no constitutional right in reapportionment to separate community recognition as Hasidic Jews, that the redistricting did not disenfranchise petitioners, and that racial considerations were permissible to correct past discrimination. United Jewish Organizations v. Wilson, 377 F. Supp. 1164, 1165-1166 (EDNY 1974).
A divided Court of Appeals affirmed. 510 F. 2d 512 (CA2 1975). The majority first held that the Attorney General had to be dismissed as a party because the court had no jurisdiction to review his objection to the 1972 plan. After agreeing with the District Court that petitioners had no constitutional right to separate community recognition in reapportionment—a holding not challenged by petitioners here—the Court of Appeals went on to address petitioners’ claims as white voters that the 1974 plan denied them equal protection of the laws and abridged their right to vote on the basis of race. The court noted that the 1974 plan left approximately 70% of the senate and assembly districts in Kings County with white majorities; given that only 65% of the population of the county was white, the 1974 plan would not underrepresent the white population, assuming that voting followed racial lines. Id., at 523, and n. 21. Petitioners thus could not claim that the plan canceled out the voting strength of whites as a racial group, under this Court’s decisions in White v. Regester, 412 U. S. 755 (1973), and Whitcomb v. Chavis, 403 U. S. 124 (1971). The court then observed that the case did not present the question whether a legislature, “starting afresh,” could draw lines on a racial basis so as to bolster nonwhite voting strength, but rather the “narrower” question whether a State could use racial considerations in drawing lines in an effort to secure the Attorney General’s approval under the Voting Rights Act. 510 F. 2d, at 524. The court thought this question answered by this Court’s decision in Allen v. State Board of Elections, 393 U. S. 544, 569 (1969), where a change from district to at-large voting for county supervisors was held to be covered by § 5 of the Act. The court below reasoned that the Act contemplated that the Attorney General and the state legislature would have “to think in racial terms”; because the Act “necessarily deals with race or color, corrective action under it must do the same.” 510 F. 2d, at 525. (Emphasis in original; footnote omitted.) The court held that
“so long as a districting, even though based on racial considerations, is in conformity with the unchallenged directive of and has the approval of the Attorney General of the United States under the Act, at least absent a clear showing that the resultant legislative reapportionment is unfairly prejudicial to white or nonwhite, that districting is not subject to challenge.” Ibid.
We granted certiorari, 423 U. S. 945 (1975). We affirm.
II
Petitioners argue that the New York Legislature, although seeking to comply with the Voting Rights Act as construed by the Attorney General, has violated the Fourteenth and Fifteenth Amendments by deliberately revising its reapportionment plan along racial lines. In rejecting petitioners’ claims, we address four propositions: First, that whatever might be true in other contexts, the use of racial criteria in districting and apportionment is never permissible; second, that even if racial considerations may be used to redraw district lines in order to remedy the residual effects of past unconstitutional reapportionments, there are no findings here of prior discriminations that would require or justify as a remedy that white voters be reassigned in order to increase the size of black majorities in certain districts; third, that the use of a “racial quota” in redistricting is never acceptable; and fourth, that even if the foregoing general propositions are infirm, what New York actually did in this case was unconstitutional, particularly its use of a 65% nonwhite racial quota for certain districts. The first three arguments, as we now explain, are foreclosed by our cases construing and sustaining the constitutionality of the Voting Rights Act; the fourth we address in Parts III and IV.
It is apparent from the face of the Act, from its legislative history, and from our cases that the Act itself was broadly remedial in the sense that it was “designed by Congress to banish the blight of racial discrimination in voting....” South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966). It is also plain, however, that after “repeatedly try[ing] to cope with the problem by facilitating case-by-case litigation against voting discrimination,” id., at 313, Congress became dissatisfied with this approach, which required judicial findings of unconstitutional discrimination in specific situations and judicially approved remedies to cure that discrimination. Instead, Congress devised more stringent measures, one of which, § 5, required the covered States to seek the approval of either the Attorney General or of a three-judge court in the District of Columbia whenever they sought to implement new voting procedures. Under § 4, a State became subject to § 5 whenever it was administratively determined that certain conditions which experience had proved were indicative of racial discrimination in voting had existed in the area—in the case of New York, as already indicated, supra, at 148, that a literacy test was in use in certain counties in 1968 and that fewer than 50% of the voting-age residents in these counties voted in the Presidential election that year. At that point, New York could have escaped coverage by demonstrating to the appropriate court that the test had not been used to discriminate within the past 10 years, which New York was unable to do. See n. 3, supra.
Given this coverage of the counties involved, it is evident that the Act’s prohibition against instituting new voting procedures without the approval of the Attorney General or the three-judge District Court is not dependent upon proving past unconstitutional apportionments and that in operation the Act is aimed at preventing the use of new procedures until their capacity for discrimination has been examined by the Attorney General or by a court. Although recognizing that the “stringent new remedies,” including § 5, were “an uncommon exercise of congressional power,” we nevertheless sustained the Act as a “permissibly decisive” response to “the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetrating voting discrimination in the face of adverse federal court decrees.” South Carolina v. Katzenbach, supra, at 334-335 (footnote omitted).
It is also clear that under § 5, new or revised reapportionment plans are among those voting procedures, standards, or practices that may not be adopted by a covered State without the Attorney General’s or a three-judge court’s ruling that the plan “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” In Allen v. State Board of Elections, on which the Court of Appeals relied below, we held that a change from district to at-large voting for county supervisors had to be submitted for federal approval under § 5, because of the potential for a “dilution” of minority voting power which could “nullify [its] ability to elect the candidate of [its] choice....” 393 U. S., at 569. When it renewed the Voting Rights Act in 1970 and again in 1975, Congress was well aware of the application of § 5 to redistricting. In its 1970 extension, Congress relied on findings by the United States Commission on Civil Rights that the newly gained voting strength of minorities was in danger of being diluted by redistricting plans that divided minority communities among predominantly white districts. In 1975, Congress was unmistakably cognizant of this new phase in the effort to eliminate voting discrimination. Former Attorney General Katzenbach testified that § 5 “has had its broadest impact... in the areas of redistricting and reapportionment,” and the Senate and House reports recommending the extension of the Act referred specifically to the Attorney General’s role in screening redistricting plans to protect the opportunities for nonwhites to be elected to public office.
As the Court of Appeals understood the Act and our decision in Allen, compliance with the Act in reapportionment cases would often necessitate the use of racial considerations in drawing district lines. That the Court of Appeals correctly read the Act has become clearer from later cases.
In Beer v. United States, 425 U. S. 130 (1976), the Court considered the question of what criteria a legislative reapportionment must satisfy under § 5 of the Voting Rights Act to demonstrate that it does not have the “effect” of denying or abridging the right to vote on account of race. Beer established that the Voting Rights Act does not permit the implementation of a reapportionment that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” 425 U. S., at 141. This test was satisfied where the reapportionment increased the percentage of districts where members of racial minorities protected by the Act were in the majority. See ibid. But if this test were not met, clearance by the Attorney General or the District Court for the District of Columbia could not be given, and the reapportionment could not be implemented.
The reapportionment at issue in Beer was approved by this Court, because New Orleans had created one councilmanic district with a majority of black voters where none existed before. But had there been districts with black majorities under the previous law and had New Orleans in fact decreased the number of majority black districts, it would have had to modify its plan in order to implement its reapportionment by carving out a large enough black majority in however many additional districts would be necessary to satisfy the Beer test. There was division on the Court as to what a State must show to satisfy §5; but all eight Justices who participated in the decision implicitly accepted the proposition that a State may revise its reapportionment plan to comply with § 5 by increasing the percentage of black voters in a particular district until it has produced a clear majority. See 425 U. S., at 141-142; id., at 144 (White, J., dissenting) ; id., at 158-161 (Marshall, J., dissenting). Indeed, the plan eventually approved by this Court in Beer was drawn with the purpose of avoiding dilution of the black vote by attaining at least a 54% majority of black voters in one district while preventing a 90% concentration. See App. in Beer v. United States, O. T. 1975, No. 73-1869, pp. 341-342.
The Court has taken a similar approach in applying § 5 to the extension of city boundaries through annexation. Where the annexation has the effect of reducing the percentage of blacks in the city, the proscribed “effect” on voting rights can be avoided by a post-annexation districting plan which “fairly reflects the strength of the Negro community as it exists after the annexation” and which “would afford [it] representation reasonably equivalent to [its] political strength in the enlarged community.” City of Richmond v. United States, 422 U. S. 358, 370-371 (1975). Accord, City of Petersburg v. United States, 354 F. Supp. 1021 (DC 1972), summarily aff’d, 410 U. S. 962 (1973). In City of Richmond, the Court approved an annexation which reduced the proportion of blacks in the city from 52% to 42%, because the post-annexation ward system created four out of nine wards with substantial black majorities of 64%. Had the redistricting failed to “fairly [reflect] the strength of the Negro community,” however, it would follow from the Court’s decision that the Constitution would permit the city to modify its plan by deliberately creating black majorities in a sufficient number of wards to satisfy statutory requirements.
Implicit in Beer and City of Richmond, then, is the proposition that the Constitution does not prevent a State subject to the Voting Rights Act from deliberately creating or preserving black majorities in particular districts in order to ensure that its reapportionment plan complies with § 5. That proposition must be rejected and § 5 held unconstitutional to that extent if we are to accept petitioners’ view that racial criteria may never be used in redistricting or that they may be used, if at all, only as a specific remedy for past unconstitutional apportionments. We are unwilling to overturn our prior cases, however. Section 5 and its authorization for racial redistricting where appropriate to avoid abridging the right to vote on account of race or color are constitutional. Contrary to petitioners’ first argument, neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment. Nor is petitioners’ second argument valid. The permissible use of racial criteria is not confined to eliminating the effects of past discriminatory districting or apportionment.
Moreover, in the process of drawing black majority districts in order to comply with § 5, the State must decide how substantial those majorities must be in order to satisfy the Voting Rights Act. The figure used in drawing the Beer plan, for example, was 54% of registered voters. At a minimum and by definition, a “black majority district” must be more than 50% black. But whatever the specific percentage, the State will inevitably arrive at it as a necessary means to ensure the opportunity for the election of a black representative and to obtain approval of its reapportionment plan. Unless we adopted an unconstitutional construction of § 5 in Beer and City of Richmond, a reapportionment cannot violate the Fourteenth or Fifteenth Amendment merely because a State uses specific numerical quotas in establishing a certain number of black majority districts. Our cases under § 5 stand for at least this much.
III
Having rejected these three broad objections to the use of racial criteria in redistricting under the Voting Rights Act, we turn to the fourth question, which is whether the racial criteria New York used in this case—the revision of the 1972 plan to create 65% nonwhite majorities in two additional senate and two additional assembly districts—were constitutionally infirm. We hold they are not, on two separate grounds. The first is addressed in this Part III, the second in Part IV.
The first ground is that petitioners have not shown, or
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
sc_authoritydecision
|
G
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
MacGREGOR v. WESTINGHOUSE ELECTRIC & MANUFACTURING CO.
No. 28.
Reargued November 14, 1946.
Decided January 6, 1947.
William B. Jaspert reargued the cause and filed a brief for petitioner.
Jo. Baily Brown reargued the cause and filed a brief for respondent.
Acting Solicitor General Washington, Assistant Attorney General Berge, Charles H. Weston and Philip Marcus filed a brief for the United States, as amicus curiae.
Mr. Justice Black
delivered the opinion of the Court.
This case, like that of Edward Katzinger Co. v. Chicago Metallic Mfg. Co., ante, p. 394, this day decided, involves the right of a patent licensee to defend a suit for royalties only under a licensing agreement which contains a price-fixing provision. Certain subsidiary questions are also raised.
Westinghouse Electric & Manufacturing Company owned Jones’ Patent No. 1,651,709. The invention claimed was a brazing “solder comprising copper and phosphorus as the main and essential constituents.” Westinghouse sued MacGregor for infringement. The litigation was settled, and MacGregor took a license from Westinghouse authorizing MacGregor to make, use, and sell solder containing the constituents described in Westinghouse’s patent claim. MacGregor agreed to pay 10% royalties on the net selling price of the solder. Sections 5 and 6 of the license agreement, set out below, required MacGregor to sell the solder for no less than the price Westinghouse charged its own customers. MacGregor paid royalties on solder he made and sold which contained only phosphorus and copper. Later he began to make and sell solders composed of phosphorus, copper, and tin, or phosphorus, copper, and silver. For a time he paid royalties on these. But he also applied for and obtained patents on these two latter solders which added tin and silver respectively to the phosphorus-copper combination. MacGregor then declined to pay royalties on these solders on the ground that they were not covered by Westinghouse’s patent. Westinghouse brought this suit for an accounting and payment of unpaid royalties in a Pennsylvania state court. Mac-Gregor filed an answer denying liability and asserting a counterclaim. His answer asserted that the solders which were described in his patents were not covered by Westinghouse’s patent. He alleged that the effort of Westinghouse to make him pay royalties on these solders constituted an unlawful exercise of Westinghouse’s patent monopoly and that Westinghouse should not be allowed to recover in the courts for this reason. In a counterclaim, he maintained that by inadvertence and mistake he had paid royalties on solders covered by his own patents. He charged that if the Westinghouse patent should be construed to cover these latter solders, it was invalid. He further contended that the price-fixing provision was a violation of the Sherman Act and the Clayton Act and constituted an unlawful use of Westinghouse’s patent monopoly which rendered the whole license agreement illegal. In his counterclaim MacGregor asked, not only for judgment for refund of the royalties alleged to have been inadvertently paid, but also for damages on account of the illegal restraint imposed upon him by the agreement.
The state trial court declined to consider the validity of the patent, holding that it was presumed to be valid, and that MacGregor as a licensee had no right to challenge it. Assuming the patent and all the claims in it to be valid on this theory, the state court found the claims broad enough in scope to cover all the solders manufactured and sold by MacGregor. The trial court did not give a like presumption to the validity of the patents issued to MacGregor, but held that the solders covered by those patents infringed the presumptively valid patents of Westinghouse. The state supreme court affirmed. 350 Pa. 333, 38 A. 2d 244. It agreed with the trial court that MacGregor was estopped to attack the validity of Westinghouse's patent. It recognized that there could be no estoppel in the present case under our decision in Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173, but for its interpretation of the Sola decision as applying only to suits in which the licensor sought affirmative relief to enforce compliance with the price-fixing provision. Since no such relief was asked in this case, the state supreme court felt that there was no existing controversy which involved the price-fixing provision- — that the questions of their effect and validity were “moot.” Thus it assumed, as did the petitioner in Katzinger Co. v. Chicago Metallic Mfg. Co., supra, that a royalty agreement was severable from price-fixing covenants.
For the reasons stated in today's Katzinger opinion we hold that the covenant to pay royalties was'not severable from the covenant to sell at fixed prices. Since Mac-Gregor invoked federal law to sustain his challenge to the validity of the patent, the alleged misuse of the patent, and the price-fixing covenant, his contentions raised federal questions not governed by state estoppel or contract severability rules. Sola Electric Co. v. Jefferson Electric Co., supra, 176-177; Scott Paper Co. v. Marcalus Co., 326 U. S. 249. Accordingly, we hold as a matter of federal law that the state supreme court was wrong in affirming the judgment in this cause on the ground that the licensee, MacGregor, was estopped to offer proof of his allegation of invalidity. This error will require, as the state court anticipated, that the cause be remanded for a new trial to determine the validity of Westinghouse’s patent. For we do not think that the present state of this record justifies acceptance of MacGregor’s contention that we should now pass on validity of the patent. If it be determined on remand that the patent is invalid, there is no question but that, as MacGregor contends, the price-fixing agreement violates the anti-trust laws. Katzinger Co. v. Chicago Metallic Co., supra; Sola Electric Co. v. Jefferson Electric Co., supra, at 175; Scott Paper Co. v. Marcalus Co., supra.
But there are alternative federal questions raised here by MacGregor upon which decision might turn even though Westinghouse’s patent be held valid. MacGregor pleaded that the price-fixing agreement so effectively wiped out all competition to Westinghouse in the manufacture and sale of these solders that the whole license contract should be held illegal as a violation of the Sherman and Clayton Acts. MacGregor also contended that the license contract should be held unenforceable in the courts on the ground that Westinghouse had attempted to use it to extend the patent’s scope beyond its lawful coverage. But since the cause must again be tried in the state court we shall not pass on either of these contentions at this time.
The judgment is reversed and the case remanded to the Supreme Court of Pennsylvania for proceedings not inconsistent with this opinion.
Reversed and remanded.
“5. Westinghouse grants this license on the express condition that the prices, terms and conditions of sale for use or sale in the United States of America, its territories and possessions of brazing solders embodying the invention covered by said Letters Patent and so long as such brazing solders continue to be covered by said patent, shall be no more favorable to the customer than those which from time to time Westinghouse establishes and maintains for its own sales of similar or competing brazing solders under such patent to such or other similarly situated customer purchasing in like quantities. Mac-Gregor shall be notified of all such prices, terms and conditions of sale fixed by Westinghouse.
“The prices, terms and conditions of sale of Westinghouse may be changed by Westinghouse from time to time, notice being given MacGregor, but not less than five days’ notice shall be given before any such change shall go into effect.
“6. It is agreed that it shall be regarded as an evasion of this agreement amounting to a breach thereof for MacGregor to reduce Westinghouse’s sale price or alter Westinghouse’s selling terms and conditions of sale directly or indirectly either through its own organization, its agents or others by any device, subterfuge or evasion or by any means whatever or to make the prices lower or the terms or conditions more favorable than those set forth by Westinghouse.”
Copper, phosphorus and tin solder is Patent No. 2,125,680; copper, phosphorus and silver solder is Patent No. 2,162,627.
The agreement to fix prices, if unlawful at all, was so whether it was executed or not. United States v. Socony-Vacuum Oil Co., 310 U. S. 150; American Tobacco Co. v. United States, 328 U. S. 781, 810. But this agreement by MacGregor to sell at fixed prices was no mere token, for the trial court found that on July 11, 1940, Westinghouse called MacGregor’s attention to his obligation to observe user and distributor prices, and that on October 23, 1940, Westinghouse, through one of its attorneys, wrote MacGregor’s attorney that “if MacGregor sells direct to the user, he should conform to the user prices established, and when he sells direct to the dealer, he should conform to the dealer prices established.” The oral testimony of Westinghouse’s representatives construed the contract as requiring Mac-Gregor to maintain the prices. Moreover, the record before us shows that MacGregor positively testified that he had maintained the Westinghouse prices on the copper-phosphorus combination because he considered himself bound to do so under the license contract.
Since the case is to be remanded for trial of the validity of the patent, we find it unnecessary to consider the propriety in any event of indulging a presumption of validity in favor of Westinghouse’s patent without giving a presumption of a patentable difference to those of MacGregor. See Miller v. Eagle Manufacturing Co., 151 U. S. 186, 208.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_suffic
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" 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".
UNITED STATES of America, Plaintiff-Appellee, v. Richard BAUM and Joseph Scapoli, Defendants-Appellants.
Nos. 370, 468, Docket 72-1966, 72-2134.
United States Court of Appeals, Second Circuit.
Argued Jan. 3, 1973.
Decided March 22, 1973.
As Amended on Denial of Rehearing June 4, 1973.
Michael B. Mukasey, Peter L. Trueb-ner, John W. Nields, Jr., Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., 'for appellee.
Arthur S. Olick, Kreindler, Relkin, 01-ick & Goldberg, New York City, for defendant-appellant Baum.
Irving Anolik, New York City, Lanna, Coppola & Rosato, Yonkers, N. Y., for defendant-appellant Scapoli.
Before FRIENDLY, Chief Judge, FEINBERG, Circuit Judge, and HOLDEN, District Judge.
Chief Judge of the District Court for the District of Vermont, sitting by designation.
HOLDEN, District Judge:
Richard Baum and Joseph Scapoli appeal their conviction, after trial by jury, of criminal possession of Panasonic radios stolen from a foreign and interstate shipment of freight, knowing the same to have been stolen, in violation of 18 U.S.C. § 659. The trial began on July 17, 1972 in the Southern District of New York, Judge MacMahon presiding. The evidence was completed and the cause submitted on the same day. The jury returned its verdict the following morning, finding the appellants guilty. Their co-defendant Stuart Fields was acquitted.
On November 12, 1971 a ship’s container, holding approximately one thousand cartons of Panasonic radios, was stolen from the Hoboken, New Jersey terminal of Smith Transport, an interstate carrier. The container included five different models of radios manufactured in Japan by the Matsushita Electric Company, under the trade name Panasonic and ordered by Leeds Fox, a customer in New Jersey. The models in the ship’s container were designated as R-70, R-1241, RC-7021, RE-7670 and RF-951.
Fields and Scapoli were business associates. They operated a radio, tape and record shop known as The Royal Rhythm No. 1 Record Shop, North Main Street, Yonkers, New York. They also operated another store known as The Music Man. Fields and Scapoli were retailers and distributors of Panasonic radios.
About five o’clock in the afternoon of November 12, 1971 an unidentified tractor trailer unit was halted near the front door of the Royal Rhythm store in Yonkers. Keith Lurkens, a government witness at the trial, arrived to pick up his girlfriend, who was employed at the Royal Rhythm. Lurkens was requested by Fields and Scapoli to assist them in unloading “a couple of packages” from the truck. The witness complied and during the next hour aided in the removal of fifty or sixty cartons, bearing the Panasonic seal, from the trailer to the store basement.
During the following week, on November 19, an agent of the Federal Bureau of Investigation observed two men, who were not specifically identified at the trial, arrive at the Royal Rhythm store in Yonkers. They proceeded to remove a number of cartons, bearing three of the model numbers and the Panasonic label, which corresponded with those in the stolen shipment. The boxes were loaded into a small van that was later identified as registered to Jaymie Records. After loading, the truck departed. It was followed by the agent. It proceeded from Yonkers to New York City and traveled on to the residence of one Fernando Gil, 5912 Xenia Street, Queens. The execution of a warranted search of the garage at the Gil premises the following day produced four cartons of radios, model RF-951, six cartons of model RE-7670 and forty-four cartons of model RC-7021.
On the next day the defendant Baum and another man, identified as Sam Bari, also known as Sam Cope, arrived at Royal Rhythm in a bronze Dodge Van. The vehicle was loaded with cartons bearing the name Panasonic, which included forty-five boxes, the model number 7021. Baum was taken into custody at the Royal Rhythm.
At about the same time agents of the Federal Bureau of Investigation executed a search warrant and recovered forty-four Panasonic radios from the Royal Rhythm store. The recovery included nineteen model R-1241, twenty model R-70, one RF-951, two RE-7670 and two model RC-7021. Further down the same street, other radios, which came from the Royal Rhythm store, were recovered.
In a telephone conversation with the defendant Scapoli, following the search of November 20, Special Agent Teel of the F.B.I. inquired about the source of the radios that were uncovered. Scapoli responded: “I won’t kid you. I got the radios from someone off the street at a great price, and I have nothing to prove that I bought them.”
A search of Scapoli’s father’s garage December 1, 1971 yielded 447 cartons of Panasonic radios model RC-7021, 22 cartons of model RF-951, along with several loose sets in models which corresponded with those that were the subject of the theft from the terminal at Hoboken.
The appellants join to challenge the convictions on two common claims of error. First, they contend that the evidence is insufficient to establish that the radios recovered from them were stolen. Secondly, it is urged that that evidence is insufficient to prove that either defendant knew the radios were Stolen.
Conviction for possession of goods stolen from interstate shipment requires evidence of dominion and control of the property that was the subject of the theft. United States v. Kearse, 444 F.2d 62, 63 (2d Cir. 1971); United States v. Casalinuovo, 350 F.2d 207, 209 (2d Cir. 1965). The evidence is clear and undisputed that both defendants were in actual possession of various cartons of Panasonic radios that were of the same models as those contained in the shipment stolen from the freight terminal at Hoboken. Both defendants manually transported the property in the shipping cartons. The goods were seized at the Royal Rhythm, a store jointly owned and operated by the defendant Scapoli. Other cartons were recovered in the van registered to Jaymie Records, a business enterprise of the defendant Baum’s association. The record presents substantially more than the mere presence as bystanders, at or near the contraband. The defendants were observed as active participants in the transportation and disposition of the property. See, United States v. Romano, 382 U.S. 136, 141, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965).
Neither appellant questions the fact that a ship’s containers loaded with 906 cartons of Panasonic radios, imported from Japan, of the type and model seized from their possession were stolen on November 12, 1971. However, they maintain the prosecution failed to prove that the radios taken from their possession were stolen property within 18 U.S.C. § 659.
The Government was not required to present direct evidence that the radios found in the defendants’ possession were stolen. United States v. DeKunchak, 467 F.2d 432, 436 (2d Cir. 1972); United States v. Marcus, 429 F.2d 654, 656 (3d Cir. 1970). There was substantial convincing evidence from which the jury could infer the cartons which the Government recovered from them were indeed the same property that was the subject of the theft, from the terminal at Hoboken.
The radios were unloaded at the Royal Rhythm store the day the shipment was stolen from the freight terminal. The Royal Rhythm store sold only two or three Panasonic radios in a week. No preparation had been made to receive the shipment. The cartons were soon transported to distant storage locations.
“Possession of the fruits of crime, recently after its commission, justifies the inference that the possession is guilty possession, and, though only prima facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or accounted for in some way consistent with innocence.” Wilson v. United States, 162 U.S. 613, 619, 16 S.Ct. 895, 898, 40 L.Ed. 1090 (1896). Rugendorf v. United States, 376 U.S. 528, 536, 84 S.Ct. 825, 11 L.Ed.2d 887 (1963).
The defendant Baum offered no accounting for his possession of the stolen property. The explanation given by Scapoli that he got the radios off the street at a great price is not consistent with innocence. There is ample evidence to sustain the jury’s finding that the defendant Scapoli knew the radios were stolen from interstate shipment. Surely with the testimony of the witness Greenhalgh, which is later considered, there is evidence to sustain such a finding as to the defendant Baum. See United States v. DeKunchak, supra, 467 F.2d at 436; United States v. Casalinuovo, supra, 350 F.2d at 209 (2d Cir. 1965); United States v. Crisafi, 304 F.2d 803, 804 (2d Cir. 1962).
In referring to the cartons found in the possession of the defendant Baum, Agent Smith testified that authorization had been obtained “to arrest anyone in custody of the cartons which had been identified as stolen.” The defendants’ objection was sustained and the court ordered the answer to be stricken. The appellant’s argument that the failure of the trial judge to further admonish the jury, particularly in the absence of a request, is without substance.
The remaining question concerns evidence of a prior offense which involved the defendant Baum and the Government’s witness Lawrence Greenhalgh. Both appellants claim prejudice by the evidence given by this witness.
Before trial, counsel for the defendant Baum requested the names, addresses and telephone numbers of all Government witnesses which the prosecution intended to call, together with any record of prior felony convictions. At the hearing in the discovery motion, defense counsel stated that the United States Attorney had informed Baum that various persons in custody would testify against him concerning his character and past criminal activity. It was urged upon the court that the defendant had no knowledge of these matters and since the prospective witnesses were in custody, disclosure could have no detrimental effect on their safety or well-being. The motion was denied.
Greenhalgh was offered as the Government’s final witness to prove Baum’s knowledge that the radios were stolen. The defendants Fields and Scapoli moved for severance on the ground that the proposed evidence, although offered against' Baum alone, would prejudice them as well. Over the objection of all defendants, the witness testified that he met Baum shortly before the Easter holidays in 1970 and sold him a trailer load of 42,000 records for $52,000. He related that the records were sold to Baum in several deliveries at his store on Flat-bush Avenue in Brooklyn. Baum was known to the witness as “Dick from Jaymie Records.” According to Green-halgh, the first payment of $12,000 was in cash.
At the completion of direct examination the defendant Baum asked for a continuance until the next day in order' to prepare for cross-examination. The court inquired if counsel had the witness’ criminal record. When the question was answered in the affirmative, the court indicated that was enough and ordered the trial to proceed.
On cross examination the witness testified that he asked the government for a reduction of his sentence as consideration for testifying concerning his conviction for possession of a trailer load of stolen goods. He also gave evidence that he had been involved in some sixty-two hijackings.
The witness testified that he was brought to Baum’s store by Joseph Diaz. Greenhalgh insisted that no check was given to him nor to Diaz by Baum, and that, payment for the records was in cash. Counsel renewed the request for a continuance to produce the checks which were given by Baum to Diaz. The request for a continuance was denied when the government unilaterally stipulated that if the defendant’s bookkeeper were called, he would testify that a check for $4,697 was paid by Baum to Diaz on June 17, 1970.
The question of the reception of evidence of the knowing possession of stolen goods, other than the crime charged in the indictment, is unsettled by conflicting precedents. See, 2 J. Wigmore § 326 (3d Ed.). In this circuit it is clear that such evidence may be received, discriminately. There is no hard and fast rule to control in all cases. Admissibility is governed by considerations explained by Judge Learned Hand writing in United States v. Brand, 79 F.2d 605, 606 (2d Cir. 1935):
The argument [for exclusion] is based on the doctrine of Regina v. Oddy, 2 Denison, C.C. 272, Copperman v. People, 56 N.Y. 591, and Edwards v. U.S., 18 F.2d 402 (C.C.A. 8), that evidence of the receipt of other stolen goods is not admissible unless the prosecution proves that the accused knew them to have been stolen. At least in this circuit there is no such doctrine . . . for the competence of such evidence does not depend upon conformity with any fixed conditions, such as upon direct proof of scienter, or the identity of the thief in the ear-Her instance, or of the victim, or the number of instances in which the accused received stolen goods, or the similarity of the goods stolen. These are all relevant circumstances but not necessary constituents. Nor can we see any basis for distinguishing between knowledge and intent in such cases. The judge must decide each time whether the other instance or instances form a basis for sound inference as to the guilty knowledge of the accused in the transaction under inquiry ; that is all that can be ■ said about the matter.
It is clear that Judge MacMahon’s admission of Greenhalgh’s testimony cannot be disturbed on the question of relevancy. The court’s, ruling was well within the boundaries of a long line of decisions that extend from Sapir v. United States, 174 F. 219 (2d Cir. 1909) to United States v. Birrell, 447 F.2d 1168, 1173 (2d Cir. 1971). See also Proposed Federal Rules of Evidence 404(b).
Yet the question presented in this appeal cannot be answered in terms of relevance and probative value alone. The appellant Baum contends the prejudicial impact of Greenhalgh’s testimony, coupled with the denial of prior witness identification by the government deprived the accused of a fair trial.
Given the undoubtable relevancy,' the question is not that the evidence is without probative value, but that it probes too deeply into the past life and character of the accused concerning conduct which the indictment does not call -upon him to answer. Wigmore has mar-shalled the varied reasons for exclusion of prior criminal conduct and reduced them to three: “(1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts; (2) the tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offenses; — (3) the injustice of attacking one necessarily unprepared to demonstrate the attacking evidence is fabricated. . . . ” J. Wigmore, Evidence § 194, pp. 646, 648 (3d Ed.). Each and all of these factors are present in Baum’s case.
The question of the admissibility of the 1970 offense requires the trial judge to balance all the relevant considerations that might bear on the competing factors of probative value against undue prejudice. United States v. Bradwell, 388 F.2d 619, 620-622 (2d Cir. 1968); United States v. Deaton, 381 F.2d 114, 117 (2d Cir. 1967). The balance was found in favor of the needs of the government to prove guilty knowledge at the risk of prejudice to the accused.
While this ruling was a proper exercise of the district court’s discretion, cf. United States v. Bradwell, supra, 388 F.2d at 622, the effect of the evidence was such as to require that the defense be given fair opportunity to meet it. The government offer, as far as the defense was concerned, was made in the dark. The identity of the witness and the substance of his testimony was apparently unknown to the trial judge — and it was withheld from the defense until Greenhalgh was called as the prosecution’s final witness of the trial.
Confronted for the first time with the accusation of prior criminal conduct and the identity of the accuser, the defendant had little or no opportunity to meet the impact of this attack in the midst of the trial. This precarious predicament was precipitated by the prosecutor.
Ordinarily it is disclosure, rather than suppression, that promotes the proper administration of criminal justice. See Dennis v. United States, 384 U.S. 855, 870, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); United States v. Youngblood, 379 F.2d 365 (2d Cir. 1967).
There were no valid considerations to justify the concealment of Greenhalgh’s identity as a prospective witness, as in United States v. Persico, 425 F.2d 1375 (2d Cir. 1970). Greenhalgh was in federal custody. Advance disclosure presented no possible source of present danger to the witness or others. There was no thought that this witness would be reluctant to testify upon disclosure since he was a volunteer who solicited the government to call upon him in the hope of early release from confinement.
It is the duty of the government to present its case against the defendant fairly. Little can be added to Justice Traynor’s statement — “A defendant has hardly had a fair trial if he has been denied the opportunity to discover evidence or information crucial to his defense.”
The failure to reveal Greenhalgh’s identity until he was presented as a witness, confronted the trial judge with the hard choice of interruption of the trial or denial to the defense of a reasonable opportunity of meeting the severe impact of this aspect of the prosecutor’s evidence. Such tactics were condemned, and called for the reversal in United States v. Kelly, 420 F.2d 26, 29 (2d Cir. 1969). In the language of Judge Smith “The course of the government smacks too much of a trial by ambush, in violation of the spirit of the rules.” To be sure, Baum’s attorney did not make a very forceful showing in the district court of what cross-examination or rebuttal material he could secure. But in a case so close as this, we would rather give the defendant the benefit of the doubt than let the Government reap even a slight possibility of benefit from what we regard as a lack of candor unworthy of a prosecutor.
Here, no reason for nondisclosure was advanced by the government. Greenhalgh’s testimony was crucial to the prosecution; it was equally crucial to the defense. Cf. Rovario v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); United States ex rel Wilkins, 326 F.2d 135, 140 (2d Cir. 1964). We hold a new trial is required to afford the defendant Baum a fair opportunity to meet the critical and damaging proof of an offense not presented against him in the indictment.
Scapoli’s appeal has a different bearing. When Greenhalgh’s testimony was given concerning his dealing with Baum, and at the request of counsel for his co-defendants, Judge MacMahon specifically cautioned the jury — -“Yes, none of it is binding on the defendants Scapoli and Fields. This testimony is being taken solely on the question of whether the defendant Baum committed a prior similar act if you believe this witness, whether he knew that the goods in question were stolen.”
Later, in submitting the case, the court referred to Greenhalgh’s testimony and specifically instructed the jury on this point. — “You may not and you must not consider that testimony against any defendant other than Baum. In short, you cannot consider him in any way in determining the guilt or innocence of the defendants Fields or Seapoli.”
The fact that Fields was acquitted is a convincing indication that the jury heeded the court’s cautionary instructions. Absent anything to the contrary, we take it that they did. We find no error in the court's failure to grant the defendant Scapoli’s motion for severance.
The judgment of conviction of the defendant Seapoli is affirmed. The judgment is reversed as to the defendant Baum and the case remanded.
. During a pretrial conference, called by the court, counsel for the defendants Fields and Scapoli stipulated that the radios recovered from these defendants were stolen from an interstate shipment in Hoboken, New Jersey. Counsel for Baum asked for an opportunity to discuss with co-counsel whether he should Similarly stipulate as to his client. The result of the consultation is not shown in the record.
. After Greenhalgh’s direct examination Baum’s counsel requested:
Mr. Todel: As a result of having this witness called, the Government calling this witness, I would want a continuance because to check out certain information which I am in the process of doing now, and I would like to have this witness called back tomorrow so that I can be in a position to—
The Court: Oh, no. Your client is there. He knows whether this happened or whether it didn’t.
Mr. Todel: It is not with reference to what did or didn’t happen, your Honor, but it is a question of my preparing a cross-examination of this particular witness.
The Court: Do you have his criminal record ?
Mr. Todel: Yes, I do.
The Court: That is enough.
. Absent these factors or other valid considerations, prevailing concepts of criminal justice oblige the prosecuting attorney to disclose to the defense the names and addresses of witnesses he intends to call at the trial. American Bar Association Standards Relating to Discovery and Procedure Before Trial § 2.1 (iv) (Approved Draft 1970) ; Proposed Rules of Federal Criminal Procedure § 16(a)(1) (VI), 48 F.R.D. 553 (1970) ; 3 C. Wright, Federal Practice and Procedure (Criminal) § 254, p. 514.
. Traynor, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228, 242 (1964).
. Unlike Scapoli, however, there was no evidence that Fields knew the property was “bought on the street at a great price” without any evidence of title.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc1
|
45
|
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.
SOUTHERN RAILWAY COMPANY et al., Plaintiffs-Appellants, v. Doyle COMBS et al., Defendants-Appellees.
Nos. 73-1525, 73-1526.
United States Court of Appeals, Sixth Circuit.
Aug. 14, 1973.
John A. Lloyd, Jr., Cincinnati, Ohio, for plaintiffs-appellants, Southern Railway Co. and others; Daniel P. Dooley, Cincinnati, Ohio, on brief; Frost & Jacobs, Cincinnati, Ohio, of counsel.
Covington & Burling, Charles A. Hor-sky, Washington, D. C., for plaintiff-appellant Brotherhood of Railway Airline & Steamship Clerks; Walter F. Smith and Thomas J. Kircher, Cincinnati, Ohio, on brief; William J. Donlon, Gen. Counsel, Brotherhood of Railway, Airline and Steamship Clerks, Rosemont, Smith, Latimer & Swing, Cincinnati, Ohio, of counsel.
Jonas B. Katz, Cincinnati, Ohio, for def endants-appellees.
Harlington Wood, Jr., Asst. Atty. Gen., William W. Milligan, U. S. Atty., Walter H. Fleischer, Judith S. Feigin, Attys., Dept, of Justice, Washington, D. C., on brief for the United States as amicus curiae.
Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and MOYNA-HAN, District Judge.*
PHILLIPS, Chief Judge.
This is an appeal from the District Court’s denial of a motion for a preliminary injunction in a labor dispute. Plaintiff-appellant companies, the Southern Railway Company (Southern), the Cincinnati-New Orleans & Texas-Pacific Railway Company (C.N.O. & T.P.), Central of Georgia Railroad Company and Central of Georgia Motor Transport Company (Motor Transport) are highly interrelated components of an integrated rail system commonly referred to as the Southern Railway System. In Cincinnati, Ohio, these companies conduct extensive operations at a train yard and terminal facility known as the Gest Street Yards.
Plaintiff-appellant union is the Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO (Brotherhood). The Brotherhood has been certified as the collective bargaining agent for the employees of all the appellant companies. Pursuant to this certification the Brotherhood entered into collective bargaining agreements with the individual corporations which agreements were in effect at the time of the present dispute.
The defendant-appellees include six former employees of K. & 0. Transportation Services and their collective bargaining agent, Local 100, Truck Drivers, Chauffeurs and Helpers Union (Local 100). Local 100 does not have any contract with any of the appellant companies. Nor have the six individual defendants-appellees ever been employed by any of the appellant companies.
The Southern Railway System’s Gest Street activities include the intra-yard transfer of freight and cargo incident to the carriers’ “piggy-back” operations. This involves the movement of goods, originally delivered to the Yard by independent motor carriers, to flat cars for rail movement and conversely the transfer of incoming cargo from flat cars to the trucks of awaiting consignees. Prior to March 15, 1973, this intra-yard transfer was performed by K. & O. Transportation Services. K. & O. was and is engaged in the general business of freight and cargo transfer in and about greater Cincinnati. K. & 0. employed eight individuals in connection with its Gest Street operations. These employees were represented by Local 100. Six of these individuals are appellees herein.
The carriers decided not to renew their contract with K. & 0. upon its expiration on March 15, 1973. Instead they entered into a new agreement with their own affiliate, Motor Transport. Substantially all of Motor Transport’s activities on a national level involve similar intra-yard operations at various Southern Railway System facilities.
When the termination of the K. & 0. contract was announced, all eight K. & 0. employees applied for jobs with Motor Transport. Because of the Motor Transport agreement with the Brotherhood only two K. & 0. employees were offered employment. Thereupon the remaining six applicants commenced peaceful picketing at both entrances to the Gest Street Yards.
On the same day that picketing began, C.N.O. & T.P. brought suit in the Common Pleas Court of Hamilton County, Ohio, to enjoin the picketing. An ex parte temporary restraining order was granted. Before a hearing on the motion for a temporary injunction could be held, the defendants removed the ease to the District Court. At that time the complaint was amended to include as plaintiffs all companies operating out of the Gest Street Yards. In addition the Brotherhood was permitted to intervene as a party plaintiff and Local 100 voluntarily became a party defendant.
The District Court conducted a hearing, made findings of fact, and on April 11, 1973, concluded that the motion for a preliminary injunction must be denied. On that same date appellants filed a notice of appeal to this court. On April 12, 1973, this court granted appellants’ motion for an injunction pending appeal. A subsequent application to stay the injunction was denied on May 15, 1973, by Circuit Justice Potter Stewart.
With respect to the picketing, the District Court made the following findings of fact:
“The defendants clearly will resume picketing if the state court order be dissolved and the injunction motions be denied.
“The brief picketing did
(a) interfere with the performance of work by plaintiff’s own employees, and
(b) deter shippers from entering and/or delivering freight to the yard.
“It will, if permitted to continue, result in shutting down the yards and in irreparable loss to the plaintiffs. The end objective of the picketing is to force Transport to comply with Local 100’s request that Transport employ six of its members and specifieally the six individual truck driver defendants who formerly did truck driving work in connection with the operation of Gest Street. The means to accomplish this objective as suggested by the picketing is to deter shippers from shipping across and drivers from driving across the picket line.
“Necessarily, the discharging of Brotherhood employees of Transport is an objective of the picketing. The same is true with respect to the application of the contract between Transport and Brotherhood to the Gest Street operation and/or the prevention of seniority job bidding under the seniority provisions of their contract. The defendants (individual and Local 100) have and do assert the claimed right of the Teamster members to employment and in that sense assert a right of recognition.”
The District Court properly recognized the general rule that federal courts do not have jurisdiction to enjoin picketing arising out of a labor dispute but that this rule is inapplicable where the parties may invoke the conciliatory procedures of the Railway Labor Act. Brotherhood of Locomotive Engineers v. L. & N. R. Co., 373 U.S. 33, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963); Southern Ry. Co. v. Brotherhood of Locomotive Firemen and Enginemen, 119 U.S.App. D.C. 91, 337 F.2d 127 (1964). The District Court held that the special exception for Railway Labor Act cases was inapplicable here as it found that Motor Transport was not a “carrier” and that the pickets were not “employees” under the Act.
The National Mediation Board first asserted jurisdiction over Motor Transport in 1958. At that time the International Brotherhood of Teamsters petitioned the National Labor Relations Board for a certification that the union was the bargaining agent for Motor Transport employees in Georgia. The N.L.R.B., as is its custom in cases where it appears that the N.M.B. may have jurisdiction, requested the N.M.B’s advice regarding possible coverage by the Railway Labor Act, 45 U.S.C. § 151 et seq. The N.M.B. conducted an extensive study and concluded that Motor Transport was a “carrier” under 45 U.S.C. § 151, First, and therefore subject to the Act. Thereafter the Teamsters voluntarily withdrew their petition.
In 1967 and in 1969 the N.M.B. again asserted jurisdiction over Motor Transport. Pursuant to the 1969 assertion, the Brotherhood was certified as the collective bargaining agent for the “carrier’s” employees. Under the authority of this certification, the Brotherhood entered into a “systemwide” collective bargaining agreement with Motor Transport.
We conclude that this is an appropriate situation to employ the doctrine of primary jurisdiction to obtain the views of the agency charged by Congress with the administration of the Act, the National Mediation Board.
The doctrine of primary jurisdiction does not determine whether a court or an administrative body ultimately shall be responsible for resolving an issue. Rather it is used to determine which tribunal shall make the initial determination. The doctrine permits courts to suspend the resolution of issues, which are originally cognizable in the courts, until such time as an administrative body, with special competence in the field, has an opportunity to present its views. United States v. Western Pac. RR. Co., 352 U.S. 59, 63-64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Crain v. Blue Grass Stockyards Co., 399 F.2d 868 (6th Cir. 1968); 3 K. Davis, Administrative Law § 19.01 (1958). This concept was recently summarized in Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970), wherein the Court stated:
“When there is a basis for judicial action, independent of agency proceedings, courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved.” 400 U.S. at 68, 91 S.Ct. at 208.
Here we are calling upon the agency to interpret the statute upon which its jurisdiction rests. This differs from the traditional primary jurisdiction ease wherein complex issues of fact or the interpretation of administrative rules are involved. Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576 (1952). However, where the interpretation of specific statutory provisions involve consideration of broad national policies, courts have not hesitated to defer questions of jurisdiction to insure the most thoughtful resolution. Locust Cartage . Co., Inc. v. Transamerican Freight Lines, Inc., 430 F.2d 334 (1st Cir.), cert, denied, 400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d 383 (1970); J. M. Huber Corp. v. Denman, 367 F.2d 104 (5th Cir. 1966). In J. M. Huber Corp. v. Denman, Judge Brown wrote:
“At the outset we recognize that this is a new application of the doctrine of primary jurisdiction. But considering the broad aim of this device and the consequent flexibility of it there is really nothing startling about submitting to an agency for initial decision the question of its own jurisdiction.
“That that question of law happens to be one of jurisdiction does not force a different result. To the contrary, justification for judicial deferral of the jurisdictional question for initial resolution by an agency is even stronger than for a non-jurisdietional question. This is demonstrated by the many cases upholding the jurisdiction of administrative agencies to determine the coverage of their respective statutes and barring all attempts through judicial proceedings to avoid such determination.” (Footnotes omitted.) 367 F.2d at 111-112.
We believe deference to the N. M.B. is appropriate in this case because far reaching considerations of national policy underlie the legal issues. The District Court decided that the “trucking service” exception to the Act’s definition of “carrier” precludes Motor Transport’s qualification. Research into the meaning of this exception indicates an inadequacy of recorded indicia of Congressional intent. By availing ourselves of the Board’s experience, we believe the groundwork will be laid for, “ . a more informed and precise determination by the Court of the scope and meaning of the statute. . . . ” Federal Maritime Board v. Isbrandtsen Co., Inc., 356 U.S. 481, 498-499, 78 S.Ct. 851, 862, 2 L.Ed.2d 926 (1958).
Another area in which the views of the National Mediation Board will be necessary .is the applicability of the Act to a situation where those individuals picketing the Yard have never been directly employed by any company presently operating at the Gest Street Yards. Here too we believe an expression of the Board’s position will facilitate the ultimate resolution of the controversy.
The injunction heretofore issued on April 12, 1973, by this court will remain in effect until the issuance of the mandate in this case and thereupon will be dissolved. Should any party desire further injunctive-relief pendente lite, application should be made before the District Court. See, Brawner Building, Inc. v. Shehyn, 143 U.S.App.D.C. 125, 442 F. 2d 847 (1971).
The decision of the District Court is vacated. The case is remanded for further proceedings not inconsistent with this opinion. No costs are taxed. Each party will bear his or its own costs.
Honorable Bernard T. Moynalian, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.
. Local 100 is affiliated with the International Brotherhood of Teamsters.
. Signs carried during the initial stages of the picketing read:
“Central of Georgia Div. of Southern R.R. Refuses to Hire Members of Teamsters Local 100.”
. The Norris-LaGuardia Act, 29 U.S.O. § 101 et seq.
. 45 U.S.O. § 151, First, defines “carrier” as:
“First. The term ‘carrier’ includes any express company, sleeping-car company, carrier by railroad, subject to the Interstate Commerce Act, and any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad.....”
. 45 U.S.O. jj 151, Fifth, defines “employee” as:
“Fifth. The term ‘employee’ as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise anti direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission, . . .”
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_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.
ROAH HOOK BRICK CO. v. ERIE R. CO. et al. UNITED STATES v. THE ROAH HOOK et al.
No. 136, Docket No. 21522.
United States Court of Appeals Second Circuit.
Argued Jan. 6, 1950.
Decided Jan. 25, 1950.
Chauncey I. Clark, of New York City (Burlingham, Veeder, Clark & Hupper and Hervey C. Allen, Jr., all of New York City, on the brief), for Agwilines, Inc.
Charles W. Hagen, of New York City (Hagen & Eidenbach, Henry C. Eidenbach, and Nelson J. Johnson, all of New York City, on the brief), for Erie R. Co.
William H. Postner, Sp. Atty., Dept, of Justice, New York City (J. Vincent Keogh, U. S. Atty., of Brooklyn, N. Y.), for the United States.
Frank C. Mason, of New York City (Mahar & Mason, of New York City, on the brief), for Roah Hook Brick Co.
George A. Garvey, of .New York City, for The Jarka Corporation.
James Neil Senecal, of New York City, for Lee & Simmons, Inc., and Simmons, Lee Corporation.
Foley & Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for Carroll Towing Co.
Before L. HAND, Chief Judge, SWAN and CLARK, Circuit Judges.
CLARK, Circuit Judge.
These proceedings in admiralty, which were consolidated for trial below and for this appeal, concern the fixing of liability for damage to the scow Roah Hook and loss of a substantial part of her cargo by reason of the fact that in the early morning of November 12, 1943, she broke away from her berth at Pier 36, North River, and was damaged while drifting down the river. Since the facts found by the district court are supported by the evidence, we are accepting them on this appeal. They appear in substantial part, together with the court’s conclusions, in the report appearing in D. C., 77 F.Supp. 840, to which we make reference. We restate briefly the facts we deem essential.
In November, 1943, the United States purchased a large supply of automobile parts in Indiana for shipment by its steamship Will Rogers from Pier 36, North River, to Russia. Accordingly the Erie Railroad Company was engaged to furnish a scow to carry this cargo from the Erie Terminal at Weehawken, New Jersey, to Pier 36 for loading upon the steamship. The Erie used for this purpose the scow Roah Hook, which it had chartered from the owners, the Roah Hook Brick Company. Pier 36 was a terminal operated by Agwil-ines, Inc., acting as terminal operator under a contract with the War Shipping Administration.
On November 10, an Erie tug brought the scow to Pier 36. The Will Rogers was on the south side of the pier and was being loaded from other lighters in accordance with the requirements of the stevedores. Hanging off the end of Pier 36 one after another were five other scows, extending about 200 feet out into the river. The captain of the tug, acting on instructions from someone on the dock, moored the Roah Hook outside this flotilla, and the scow’s "barge gave the manifest immediately to a •clerk of the terminal operator. Space was available on the north side of the pier where the Roah Hook could have been berthed.
Before the Erie tug left, another vessel, heading out into the river from the north side of the pier, hit the line holding the in-wardmost of the six scows to the pier, causing the line to part and the flotilla to go .adrift. The Erie captain at that time obtained a new line and made sure that all lines were secure before departing. During the next two days the flotilla went adrift .and had to be shoved back whenever the shifting tugs took out barges or placed barges in the tier of scows.
At 6 p.m. on November 11 the stevedores >quit work for the day, and Agwilines permitted the shifting tugs to tie up and stop work. Some time after midnight that night the entire flotilla broke away from the end •of the pier and drifted down river. While the scows were drifting free the Roah Hook was damaged, losing overboard a substantial part of her cargo.
The Roah Hook Brick Company, owner of the damaged scow, filed a charter libel against the Erie Railroad for the damage suffered during the charter period. Erie impleaded Agwilines, R. A. Nicol & Co., Inc., the New York agent of the United States, the United States itself, the Jarka Corporation, which provided the stevedores, and the Carroll Towing Company, Inc., which operated the shifting tugs. The Carroll Towing Company then impleaded the owner and the charterer of another tug involved in this activity. The exceptions of the United States having been overruled, The Roah Hook, D.C.E.D.N.Y., 64 F.Supp. 288, it then impleaded Agwilines and the others under Admiralty Rule 56, 28 U.S.C. A. In a second action the United States filed a libel in a cause of contract and cargo damage against the scow Roah Hook, the Erie Railroad, Agwilines, the Jarka Corporation, and the several tugboat owners and charterers. The various proceedings were then tried together.
After trial, the district court found the Erie Railroad primarily liable and Agwi-lines secondarily liable for the damages to the scow, while it found Agwilines primarily liable and the Railroad secondarily liable for loss of the cargo. In its opinion the court had said that it did not find any liability on the part of the Erie as to the cargo, 77 F.Supp. at page 846; but in its findings and conclusions and decree, several months later, Erie was actually held for the secondary liability just stated. In both libels the action was dismissed as to all other parties. Both the Erie Railroad and Agwilines have appealed from each decree, and the United States and Roah Hook Brick Company have appealed from the dismissal of the other parties to protect themselves in case the decrees against the railroad and the terminal operator should be reversed.
Agwilines argues that the liability imposed upon it should be borne by the United States on the ground that it was a mere wharfinger and never had possession of or a duty toward the scow or cargo. We think, however, that the WARSHIPTERMOP contract between the War Shipping Administration and Agwilines makes it clear that Agwilines was an independent contractor and was to take care of loaded lighters until their turn came to be put alongside the vessel. Thus sec. 11(2) (b) of the contract required Agwilines to “* * receive, deliver and handle cargo; do and perform all the duties and functions usually and customarily done and performed by a terminal operator; perform the work” and 11(2) (c) promised that Agwilines would “* * * when incident to its terminal operations, shift lighters, barges, scows, cars or carfloats and load and discharge the same.” Agwilines agreed in sec. 11(6) to be liable for any and all damage arising through its negligence or fault.
Agwilines makes much of the fact that the clerk who received the manifest for the Roah Hook was paid his salary by R. A. Nicol & Co., the government’s agent. We think that this would probably be immaterial in any event, and is certainly so in view of sec. 11(25) of the contract, which specifically provides that all persons employed in performing the work are the employees of the terminal operator, rather than the Administrator.
In sum we conclude that Agwilines was acting as an independent contractor, and that the United States was properly exonerated from liability. And since there is no evidence to indicate that they were in any way at fault, the stevedores, the tugboat companies, and R. A. Nicol '& Co. were properly exonerated.
The issue, then, lies between Agwilines and the Erie Railroad as to the liability for damage to the scow and the loss of the cargo. Agwilines’ principal contention is that the scow was never delivered to it, and that the only proper place where delivery could be made was to the tackle of the Will Rogers. Even though the bill of lading provided for delivery to the ship, nevertheless, as has been said in a different context, “this construction must be interpreted to mean that there shall always be accorded to the carrier a reasonably immediate access to the point of loading or unloading.” Circuit Judge Sparks, speaking for the three-judge court in Elgin, J. & E. Ry. Co. v. United States, D.C.N.D.Ind., 18 F.Supp. 19, 23. There was no access to the Will Rogers available here, and yet the scow had to be close at hand so that it might be available when the stevedores were ready for it. We cannot think that it was not enough for the Erie to leave the scow with the terminal operator, hired by the government to receive cargo, until it could be brought alongside the Will Rogers. In Palmer v. Agwilines, Inc., 2 Cir., 135 F.2d 689, we held on facts similar to these that the barge and its contents had come within the actual control of the terminal’ operator and were thus delivered to the terminal operator. Here, too, the terminal operator had control over and possession of the scow, had accepted the manifest for it, and had directed it to a particular berth. Thus it was properly delivered to Agwilines.
Since the scow had been delivered to Agwilines, the latter had a duty of reasonable care to it. “We have several times decided that the relation of bailor and bailee, stricti juris, is not necessary in order to impose upon a consignee, or other person with whom a barge may be left, the duty of reasonable care to. protect her until the owner or the charterer takes her back into possession.” C. F. Harms Co. v. Erie R. Co., 2 Cir., 167 F.2d 562, 563. Cf. Norfolk Tidewater Terminals v. Wood Towing Corp., 4 Cir., 94 F.2d 164. The court below found that Agwilines had breached this duty by permitting the scow to hang at the end of the dock unprotected when a berth was available at the north side of the pier and when the flotilla had gone adrift several times previously and indicated the possible danger. We have no doubt of the correctness of this holding. Conners Marine Co. v. Besson & Co., 2 Cir., 94 F.2d 572.
Agwilines points out that there is an internal inconsistency in holding it primarily liable for the cargo and the Erie primarily liable for the scow. We agree that the court’s Conclusion 5, which held the Erie’s carelessness in leaving the scow where it did to be the proximate cause of damage to the scow, and its Conclusion 11,.which held Agwilines’ negligence the proximate cause of damage to the cargo, cannot both be correct. Whatever caused the scow to be damaged caused the cargo to be lost.
While the Erie may have been careless in accepting the directions to moor the Roah Hook where it did, this carelessness was at best a very remote factor in the accident. To tie a scow to the end of the pier under the prevailing weather conditions was not in itself negligent. Brigham v. Cornell Steamboat Co., 2 Cir., 18 F.2d 92. Indeed, since the Erie moored the scow at the direction of the operator, it might well be held relieved of its duty to determine whether or not the berth was safe. Cf. Cities Service Transp. Co. v. Gulf Refining Co., 2 Cir., 79 F.2d 521; The Mascot, D.C.N.J., 28 F.Supp. 770.
As the findings show, the Erie in fact did more then rely on the directions to moor the Roah Hook at the outside of the flotilla at the end of the pier. When the lines were parted and the scows went adrift while the Erie tug was still on the scene, it took pains to provide new line and to make sure that all the scows were secure. There is no evidence to suggest that the scows might not have remained perfectly safe at the end of the pier had they been left as they were when the Erie tug left. But after the tug had departed, the flotilla went adrift several times as a result of the terminal activities. There is much to indicate that it was this later activity which made the position of the scow perilous, as the terminal operator should have known and remedied. Moreover, when storm warnings were hoisted the next morning—long after the Erie tug had left the scene—Agwilines took no action to safeguard the barge. It should have anticipated the heavy winds and strong ebb tide which doubtless had a part in causing the flotilla to break free. Hence the negligence of Agwilines was the proximate cause of the loss, and the Erie’s carelessness, if any, was but a remote condition, not a cause. Thus the inconsistency pointed out in the conclusions below is to be remedied by holding Agwilines primarily liable for the damage to the scow as well as for the loss of the cargo.
Even though damage be not the result of his negligence, a charterer is secondarily liable for damage to a vessel during the charter period. O’Donnell Transp. Co. v. M. & J. Tracy, Inc., 2 Cir., 150 F.2d 735. In accord with this well-settled principle the Erie concedes, and we hold, that it is secondarily liable for the damage to the scow. There is no ground, however, on which to hold it secondarily liable for the cargo which was lost through the negligence of the terminal operator to whom it had made a proper delivery. Moreover, its delivery frees it from any liability as connecting carrier.
The interlocutory decree in favor of Roah Hook Brick Company in the first libel is reversed in part, on the appeal of the Erie Railroad Company, to provide that recovery shall be primarily from respondent Agwi-lines, Inc., and only secondarily from Erie Railroad Company; in other respects it is affirmed. The interlocutory decree in favor of United States of America in the second libel is reversed in part, on the appeal of the Erie Railroad Company, to provide for the dismissal of the libel against that company; in other respects it is affirmed.
. In still a third proceeding, tried at the same time, Roah Hook Brick Company petitioned for exoneration from or limitation of liability as owner of the scow Roah Hook; there has, however, been no appeal from the decree granting its petition.
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_initiate
|
B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Richard A. LEONARD, Defendant-Appellant.
No. 78-5744.
United States Court of Appeals, Fifth Circuit.
Jan. 15, 1980.
Thomas M. West (Court-Appointed), Frank L. Derrickson, Atlanta, Ga., for defendant-appellant.
Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
Richard A. Leonard was convicted of conspiracy to murder John Charles Widener, a fellow prisoner in the Atlanta Federal Penitentiary. He was also convicted of first degree murder and of conveying a weapon inside the prison. He was sentenced to serve a life sentence for conspiracy to commit murder, a life sentence for murder, and ten years for conveying the weapon.
Prior to trial, Leonard filed notice pursuant to Federal Rule of Criminal Procedure 12.2(b) that he intended to rely on a defense of insanity and that he intended to introduce expert testimony at trial relating to whether defendant possessed the mental state required before one can be convicted for the offense of murder or conspiracy to murder. After this motion and in response to a Government motion, made pursuant to Rule 12.2(c), the district court ordered Leonard to undergo an examination by a psychiatrist. Subsequent to the examination but before trial, however, defendant stipulated to his mental competency at the time of the alleged offenses and waived the issue. At trial the prosecution cross-examined Leonard as to the statements made by him to the prosecution psychiatrist.
On appeal, defendant raises several issues besides the one involving Rule 12. These concern the defendant’s motion for continuance, his request for a mental competency hearing [to determine competency to stand trial] and the court’s denial thereof, his motion to exclude evidence of a serological examination, the defendant’s access to witnesses, the abbreviated “Allen” charge given the jury and a portion of instructions given the jury. Because we find it necessary to reverse on the basis of the violation of Rule 12, and absent the likelihood of reoccurrence of these matters upon retrial, we do not reach these other issues.
Rule 12.2(b) requires a defendant to give notice prior to trial of his intention to rely on the defense of insanity. Subdivision “c” of this rule gives the trial court authority upon motion of the Government to order the defendant to submit to an examination by a psychiatrist designated by the court. Subdivision “c” also provides:
No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
On its face, Rule 12.2(c) precludes the use upon the issue of guilt of statements made by Leonard in the course of the court-ordered psychiatric examination. The rule reflects a clear congressional intent that such statements not be used in a proceeding on the issue of guilt, but rather that they be used solely on the issue of sanity. As the legislative history makes clear, the purpose of Rule 12.2(c) is to secure the defendant’s Fifth Amendment right against self-incrimination. See Historical Note, following 18 U.S.C. Rule 12.2. Because sanity at the time of the commission of the alleged offense bears heavily on the issue of guilt, it implicates Fifth Amendment concerns. Thus, there is a sharp distinction between the use of the defendant’s statements made during a court-ordered psychiatric examination on the issue of sanity and the use, before the “fact finders” (here a jury), of incriminating statements made during such psychiatric examination on the issue of guilt and before guilt had been determined. See Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir. 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1979); United States v. Bennett, 148 U.S.App.D.C. 364, 370-72, 460 F.2d 872, 878-80 (D.C.Cir.1972). Therefore, central to the court’s authority to order a defendant to submit to a psychiatric examination is what we believe to be a clear understanding that the function of statements obtained during the examination is limited to the sanity issue.
There is another obvious rationale behind the rule. Both the Government and the defendant may need the assistance of expert testimony on the issue of sanity. In many cases, psychiatrists would not be able to obtain reliable testimony unless they were free to inquire into the prior conduct of the defendant, including his participation in the criminal activity with which he is charged. Moreover, the psychiatric inquiry cannot succeed unless the defendant cooperates; a defendant’s mental condition would not be discovered in many instances unless the psychiatrist can engage in a candid conversation with the defendant about it. Therefore, it may be appropriate and even in some cases necessary for the psychiatrist, when testifying on the issue of sanity, to disclose the criminal activity related to him by the defendant.
Thus, drawing on the language of the rule and the reasoning behind it, Leonard’s statements introduced at trial for impeachment purposes were inadmissible under Rule 12.2(c). To secure the reliability of the psychiatric interview as well as to prevent the infringement of the defendant’s Fifth Amendment rights, Leonard’s right to a competency determination to prove insanity cannot be conditioned on allowing the statements obtained at such a determination to be used by the Government for evidence on issues other than sanity. The legislative history of the rule supports this conclusion. The Conference Committee Notes, the Senate Debate, and the House Debate all indicate that facts related in a psychiatric examination should not be admissible on the issue of guilt and that the only purpose for which the statements can be admitted is to determine the issue of sanity. See Historical Note, supra; 121 Cong.Rec. 25843, 25986 (1975).
The Government urges us to adopt case law developed under 18 U.S.C. § 4244 as binding on the interpretation of Rule 12.2. Section 4244 permits the court to order a psychiatric examination in cases where there is a question concerning the competency to stand trial. Like Rule 12.2, Section 4244 precludes the admission into evidence on the issue of guilt any statement made by the defendant. We reject the assertion that the similarity in language in the two provisions demands application of precedent developed under Section 4244 to Rule 12.2 for several reasons.
To support its contention, the Government relies principally on United States v. Castenada, 555 F.2d 605 (7th Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 152, 54 L.Ed.2d 113 (1977). In that case, defendant appealed his conviction on the ground that 18 U.S.C. § 4244 precludes the admission into evidence on the issue of guilt of any statement made by the defendant. The Seventh Circuit held that Section 4244 does not bar the use of statements by the accused for purposes of impeachment. The court relied on the “Miranda exception to impeachment” to support the distinction between precluding the admission of evidence on the issue of guilt in the case in chief and admitting otherwise inadmissible evidence for purposes of impeachment. Id. at 609. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1970).
We do not find the reasoning applied in Castenada persuasive on the issue presented here. First, Castenada involved the construction of a separate statute, 18 U.S.C. § 4244, and not a Federal Rule of Criminal Procedure. Legislative history does not indicate that existing case law developed under Section 4244 was enacted into the rule; instead it emphasizes that the two provisions are to be treated separately. See Notes of Advisory Committee on Rules, Historical Note, supra.
Additionally, there is a reasoned basis to treat the prophylactic rule concerning a competency hearing less stringently than that concerning the insanity defense. Unlike an examination to ascertain competence to stand trial, the purpose of an interview to probe sanity at the time of the commission of the charged offense is to obtain from the accused information bearing directly on his guilt. See United States v. Malcolm, 475 F.2d 420, 425 (9th Cir. 1973). Insanity at the time of the offense charged involves an intent question that eventually may negate a basic element of the offense. Statements from the defendant are most critical to a determination of the intent question that is basic to the issue of mental capacity to commit a crime. Because such statements are focused on the time of the commission of the crime, there is a greater likelihood of soliciting statements that breach a defendant’s Fifth Amendment rights. On the other hand, determining the defendant’s capacity to stand trial under Section 4244 does not primarily concern his mental state at the time of the commission of the alleged crime but concerns his mental condition at the time of trial.
We conclude that a firm rule that prevents the prosecution from relying on statements of a defendant given during the course of a compelled psychiatric examination for impeachment purposes not only protects the integrity and reliability of the psychiatric interview but also prevents infringement on the defendant’s Fifth Amendment rights. We, therefore, give effect to the apparent command of Rule 12.-2(c). Accordingly, we REVERSE the ruling of the trial court and REMAND for a new trial.
. The following is a portion of the cross-examination of the defendant by Government counsel:
Q And you testified that you followed them as they went down toward the ramp and step area, with Joe-Joe hitting away, was that your testimony?
A I testified that he stabbed J.C. somewhere in the chest and J.C. bent over and spun around and started running and he ran out into — you got the ramp on this side and you got the walkway on this side and Joe-Joe was trying to hit him. J.C. started running and I stayed there I guess — I don’t have a recollection of a time I stood there but maybe a minute, five, ten minutes, fifteen seconds, but I went on out and when I got out they was halfway down what you call that walkway, you know. I stood a little bit down from the safety building and it was just like a shock, you know, just — I don’t know what you call it, you know. I don’t know what to do really.
Q Your recollection of all this is fairly detailed today, isn’t it?
A Well, I was there.
Q Do you recall being interviewed by a psychiatrist named Dr. Bachus on September 26, 1978?
A Yes, ma’am.
Q Do you recall him asking you, Mr. Leonard, what happened and do you recall answering “I don’t know what happened. A dark cloud just seemed to come down over me”?
A Yes, ma’am.
Q Do you recall him asking you to develop what you meant and do you recall answering “I saw Widener and Williams struggling. Williams ran toward him and grabbed Leonard,” you.
A Yes, ma’am.
Q That you recalled that next you pushed Williams away and then a dark shadow came over you and the next thing you knew Williams was pulling on you.
A Yes, ma’am.
Q A dark shadow came over you. The shadow lifted and it was “as if 1 opened my eyes and my last recollection was seeing Widener coming after me with a hatchet in his hand. After the shadow lifted, I was aware that I was still in the prison yard, was bleeding, had blood all over me. So I knew something had happened.” Do you recall stating that answer?
A Yes, ma’am.
Q That is not quite the same thing you testified today, is it?
A No, ma’am.
Q Has your recollection gotten a lot better in the last few weeks—
A No, ma’am.
Q —than when you talked to the doctor?
A No, ma’am.
Q You lied to the doctor then?
A Yes, ma’am.
Q You lied when you told him a dark cloud had come over you?
A Yes, ma’am.
Q You lied when you told him Mr. Widener was coming after you with a hatchet?
MR. DERRICKSON: Your Honor, he has answered. She has been over this and he has answered. He has admitted he made those statements. It seems to me that is sufficient.
THE COURT: Well, she is entitled to determine which is correct. Ask him which is correct.
MR. DERRICKSON: Well, she already asked him and he answered.
THE COURT: She asked him once. She is asking him about another fact now but don’t belabor—
MISS CARNES: Yes, sir.
Q And you also lied when you said Williams had come toward you and grabbed you, is that correct?
A Yes, ma’am.
Q Because your testimony today is actually you went down and grabbed him away.
A Yes, ma’am.
. Whether these statements are admissible in a separate determination for sentencing purposes once guilt has been determined need not be decided in this case. Cf. Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) (defendant may not be compelled to speak to a psychiatrist for the purpose of determining dangerousness when psychiatrist can use defendant’s statements against him at the sentencing phase of a capital trial). Nor do we discuss the use of a defendant’s statements at a separate determination on the issue of sanity.
. A defendant can be barred from raising the issue of insanity as a defense if he did not submit to an examination by the court-designated psychiatrist. See Smith v. Estelle, supra, at 704. This Circuit has found that empowering the court to order a psychiatric examination concerning the insanity defense does not violate per se the defendant’s rights under the Fifth Amendment. See United States v. Cohen, 530 F.2d 43, 47 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976). The holding in Cohen rested on the premise that, if a defendant raises insanity as a defense and introduces psychiatric testimony, “the government will seldom have a satisfactory method of meeting defendant’s proof on the issue of sanity except by the testimony of a psychiatrist it selects . . who has had the opportunity to form a reliable opinion by examining the accused.” Id. at 48. More importantly, however, the court recognized that eliciting statements at a compulsory examination is not unconstitutional per se because any statement about the offense itself could be suppressed. Id. at 47.
. Both the Advisory Committee’s Notes and the Report of the House Judiciary Committee specifically contemplate a separate determination of the issue of sanity. See Historical Note, supra. This is because use of the defendant’s statements elicited at a psychiatric examination solely at a hearing to determine sanity encounters no self-incrimination objection under the rule.
. 18 U.S.C. § 4244 provides in applicable part:
No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
. Although the defendant in Castenada, unlike the situation in the case before us, opened the door on direct examination to the content of the statements made during his competency examination, we do not rely on that distinction.
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:
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songer_counsel1
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
DEMOS v. UNITED STATES.
No. 14340.
United States Court of Appeals Fifth Circuit.
June 26, 1953.
Rehearing Denied Aug. 6, 1953.
M. C. Gonzales, San Antonio, Tex., for appellant.
C. F. Herring, U. S. Atty., and Bradford F. Miller, Asst. U. S. Atty., San Antonio, Tex., for appellee.
Before HOLMES, BORAH and RIVES, Circuit Judges.
RIVES, Circuit Judge.
The appellant was indicted along with one Richard A. Najera for having sold heroin to Sam F. Stowers in violation of Title 26 U.S.C. § 2554(a) In Counts 2 and 3 of the same indictment, Richard A. Najera was indicted for two subsequent sales of heroin to Sam F. Stowers. Najera entered a plea of guilty to Counts 2 and 3, and both lie and appellant stood trial under Count 1 of the indictment. The jury found both guilty as charged. Appellant’s sentence, as a second offender, was the minimum five year term of imprisonment [26 U.S.C.A. § 2557(b) (1)] and a fine of $100.00.
For reversal appellant makes two in-sistences: (1) that the evidence was insufficient to sustain the verdict and judgment; and (2) that the undisputed evidence established the defense of entrapment.
Sam F. Stowers was a Government narcotic agent stationed at Dallas, Texas, and was sent “on this one job” to San Antonio in that capacity. He came with “a letter of introduction from a police character in Dallas” to an ex-convict named Frazier in San Antonio. Frazier introduced him to Najera, and Najera testified:
“He (Frazier) was with us for about two or three days first, when he first got that heroin for him, because I told him that I was scared of him, I didn’t know him, or anything like that, and he said, ‘Well, I will get some for him, so that you will know that he is all right,’ and then he got some for him * *
Najera further testified that thereafter he had sold heroin to Stowers on two occasions prior to the time laid in Count 1 of the indictment.
Stowers was the only witness introduced on behalf of the Government. He testified that he had heard that the appellant operated as a “fence”, taking stolen groceries for sale on the black market, and he sought to gain her confidence by apparently engaging in that illicit trade. He purchased some groceries and meat for which he paid $57.41; and with two boxes on the back scat of his automobile containing his purchases, he drove to the appellant’s house and parked his car. Immediately, apparently by coincidence, Najera drove up by the side of his car and asked him what he was doing there. He told Najera that he had a load of groceries in the back seat of the car that he had to get rid of. He walked on ahead of Najera to appellant’s house, knocked on the door, introduced himself to the appellant as Jesse Thomas, and stated that he had a load of groceries and wanted someone to help carry them in the house. Najera and the appellant had a conversation in Spanish and Najera and Stowers walked to the automobile, picked up the two boxes of groceries, and carried them into the house, where their values were tabulated and the appellant paid Stowers $25.00 or approximately one-half price for the groceries. What then occurred is best told in the language of the witness, which we have quoted in the margin.
Stowers thereafter made repeated efforts to purchase heroin from the appellant, but each time without success, “She always left it hanging in the balance, so to speak”. On one occasion he offered her $90.00 for her to deliver to him three grams of heroin. She refused but told him that she would contact Najera and try to have him deliver the heroin.
The appellant did not testify in her own behalf and the court properly charged the jury that such was her privilege, and that her failure to testify should not be considered as any evidence of guilt. Najera testified admitting that he was an addict to heroin and was guilty of making a number of sales to Stowers, denying that he made the sale charged in Count 1 of the indictment or that the appellant had any connection with any of the sales. He testified' that, when Stowers brought the supposedly stolen groceries, he happened to be at the appellant’s home in the performance of some carpenter repair work for the appellant. He lived on the opposite side of San Antonio from appellant. The appellant was a half sister of Najera’s wife.
There was no motion for a directed verdict on the ground of the insufficiency of the evidence. The appellant’s counsel recognizes the validity of the rule that, in the present state of the record, the evidence will be reviewed by this Court only to prevent a manifest miscarriage of justice. Thomas v. United States, 5 Cir., 189 F.2d 430. By that test, in our opinion, the evidence was clearly sufficient to sustain the appellant’s conviction.
The appellant did move the court to instruct the jury to return a verdict of not guilty on her behalf, “on the grounds that the undisputed evidence shows a careful and deliberate planned entrapment of said defendant”. The court denied that motion ■but orally charged the jury as to the defense ■of entrapment as set out in the margin .
The opinion of the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, is the controlling authority in the federal courts on the defense of entrapment. Among other authorities, that opinion refers to the leading case of Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143, opinion by Circuit Judge Sanborn, and to the decision of this Circuit in Gargano v. United States, 24 F.2d 625, opinion by Circuit Judge Bryan. The defense is permitted upon the theory that, though the acts of the defendant come within the letter of the statute, they may be foreign to its purpose. “Fundamentally, the question is whether the defense, if the facts bear it out, takes the case out of the purview of the statute because it cannot be supposed that the Congress intended that the letter of its enactment should be used to support such a gross perversion of its purpose.” Sorrells v. United States, supra, 287 U.S. at page 452, 53 S.Ct. at page 216. The controlling question was stated to he “whether the defendant is a person otherwise innocent whom .the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials.” Id. 287 U.S. at page 451, 53 S.Ct. at page 216. The opinion carefully draws attention that,
“ * * * the defense of entrapment is not simply that the particular act was committed at the instance of government officials. That is often the case where the proper action of these officials leads to the revelation of criminal enterprises. Grimm v. United States, supra [156 U.S. 604, 610, 15 S.Ct. 470, 39 L.Ed. 550], The predisposition and criminal design of the defendant are relevant.” Id. 287 U.S. at page 451, 53 S.Ct. at page 216.
In the case from this Circuit, Gargano v. United States, supra, 24 F.2d at page 625, it was well said that, “ * * * the test was whether the offense originated in the mind of the accused, or in the mind of the official * * For the offense to originate in the mind of the defendant, it was not necessary that the defendant he the instigator of the particular sale or act, hut only that she have the general intention to commit such an offense whenever the opportunity offered.
While the appellant’s former conviction would have been admissible before the jury when it appeared that she was relying on the defense of entrapment, see Carlton v. United States, 9 Cir., 198 F.2d 795, it was not actually brought forth until the pre-sentence hearing. Nor did the Gov-eminent produce evidence before the jury to show its grounds for suspecting that the appellant was engaged in the illicit traffic in drugs, or to show her pre-disposition to commit the offense. The jury were authorized, however, to consider the appellant’s willingness to commit the crime as evidenced by her ready compliance with the agent’s request. The evidence in this case on the issue of entrapment does not seem to us nearly so strong for the defendant as was the evidence recited in Sorrells v. United States, supra, and yet in that case the extent of the holding of the Supreme Court was “that the trial court was in error in holding that as a matter of law there was no entrapment and in refusing to submit the issue to the jury.” Sorrells v. United States, supra, 287 U.S. at page 452, 53 S.Ct. at page 216. See also Hunter v. United States, 5 Cir., 62 F.2d 217; Weathers v. United States, 5 Cir., 117 F.2d 585., In the instant case the District Court submitted the issue to the jury in a charge (Footnote 3, supra) to which appellant’s counsel stated that he had no objections. It appearing that there is no error in the record, the judgment is,.
Affirmed.
. Title 26 U.S.C. § 2254(a) reads as follows :
“(a) General requirement. It shall bo unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 2550(a) except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Secretary.”
. “Q. She was paying you half-price for the groceries? A. Half price, that is right. I then told Mrs. Demos I had some business that I would like to talk to her about, and would she come with me to the front room, and we then left the kitchen and went into the front room of the house, and I then told Mrs. Demos that I had just come into town from Dallas, and that I had about two thousand dollars, that I had just made a good store in Dallas, and I had my wife working for me; in other words, I told her that my wife had stolen the groceries, and I told her that even though I had all this money, I was not going to throw it away, and I was going to work immediately in S»n Antonio.
“Q. You all talked about stealing groceries, is that right? A. Yes, sir. And I then told Mrs. Demos that my wife was hooked on stuff.
“Q. And what did you mean by that? A. Heroin, morphine or dilaudid.
“Q. A dope addict, in other words? A. Yes, narcotics, and that X had to have quite a bit of it to keep her working; in other words she would get sick if she didn’t get it, and at that time I didn’t need the money, but X did need some stuff — some narcotics, and I also told her that I thought I was going to try to get rid of my wife, because she was trying to get me hooked on the stuff myself * * *.
* * * *
"Mr. Herring:
"You told her that you didn’t want to get hooked on the stuff yourself, and what did she say then? A. She said, ‘That’s smart; it is bad to get to fooling with it,’ and then I told her that I was down here from Dallas, that there was a pick-up on me up there, and I gave her the license number of the car that I was driving, and asked her to check around to see if the police were — if they knew I was in San Antonio, or were looking for the ear.
“Q. By pick up, you meant that there was a warrant out for you up there at that time? A. Yes, sir, and we then left the living room and went into the dining room, which was located between the living room and the kitchen, and I wrote down that license number for her on a sheet of paper — I believe it was on a white envelope, and we then returned to the front room, and I then told Mrs. Demos that should I get picked up by the police in San Antonio, I would have to be released in a hurry before they found out that there was a pick-up on me in Dallas, Texas, and she then told me that if I ever got picked up — my wife and I — , that she—
* * * * *
“She told me to call her immediately, and gave me a telephone number at which to reach her, and that number was <3-5417 — I believe, but I am not sure about that number — and I then asked Mrs. Demos, I said, ‘How much does one gram of the stuff sell for, thirty or thirty-five dollars?” and she replied, ‘That’s right,’ and I said ‘I would appreciate it very much if you would help me out on obtaining some stuff,’ and she said ‘Go out on the front pox-eh and wait, and I will call Kios.’
“Mx\ Herring:
“Q. Who is Kios? A. The defendant Najera, and I then walked out on the front porch and was joined almost immediately by him, and he said, ‘How much was it you wanted?’ and I said, ‘One gram,’ and he then told me to drive around the block and to pax-k by the railroad track; that was at the corner of Rogers and Orosby Streets, and about one minute after I arrived, he walked up to the car, and handed me two small cellophane packages, for which I paid him thirty dollars, and then I left the vicinity.”
. “If you are satisfied that prior to the commission of the acts alleged to constitute the crime, that the defendant Ade-laida Lita Demos never conceived any intention of committing the offense, but that the officers of the Government incited and by persuasion and representations lured her to commit the offense alleged in order to entrap, arrest, and prosecute her therefor, then those facts are fatal to the prosecution and the defendant Adelaida Lita Demos is entitled to a verdict of not guilty.
“When it is suspected that a crime is ■being committed and the question is as to •who the guilty persons are, traps may be laid and baited in order to catch the guilty person. A suspected person may be tested by being offered opportunity to transgress in such manner as is usual therein. The question is not one of laying a trap or of trickiness or deceit which is permissible in order to detect a person in the commission of crime, but is one of seduction or improper inducement to commit the crime. In other words, the officers or informers may give the defendant an opportunity to violate the law, but they cannot by persuasion or inducement cause him to commit a crime which he would not otherwise have committed and thereafter successfully prosecute him.”
. See full opinion of Judge Learned Hand in United States v. Sherman, 2 Cir., 200 F.2d 880 & 882.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_amicus
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E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine or not there was any amicus participation before the court of appeals.
RICHARD ANDERSON PHOTOGRAPHY, Plaintiff-Appellant, v. Deborah BROWN; Radford University, Defendants-Appellees. and VISITORS OF RADFORD UNIVERSITY; Bernice Thieblot; Armand Thieblot, Defendants, v. NATIONAL MUSIC PUBLISHERS’ ASSOCIATION, INC.; American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; Music Publishers’ Association of the United States, Inc.; The Songwriters Guild of America; Volunteer Lawyers for the Arts, Inc.; Barbara Ringer; John M. Kernochan; William F. Patry; Association of American Publishers; Association of American University Presses, Inc.; Information Industry Association, American Intellectual Property Law Association, Amici Curiae.
No. 87-1610.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1987.
Decided July 20, 1988.
Steven B. Rosenfeld (Peter L. Felcher, Marjorie L. Van Dercook, Paul, Weiss, Rif-kind, Wharton & Garrison, New York City, on brief), for Amici Curiae Nat. Music Publishers’ Ass’n, Inc., American Society of Composers, Authors and Publishers, Broadcast Music, Inc., Music Publishers’ Ass’n of the U.S., and the Songwriters Guild of America.
John M. DiJoseph (Sattler & DiJoseph, Arlington, Va., on brief), for appellant.
Richard Crosswell East, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Paul J. Forch, Sr. Asst. Atty. Gen., Richmond, Va., on brief), for appellees.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Harry G. Iwasko, Jr., Asst. Atty. Gen., Philip J. Smith, Asst. Atty. Gen., Lansing, Mich., on brief, for Amicus Curiae, The State of Mich, in support of appellees Radford University, et al.
Irwin Karp, Harriette K. Dorsen, New York City, on brief, for Amici Curiae Volunteer Lawyers for the Arts, Inc.
Barbara Ringer, Washington, D.C., John M. Kernochan, New York City, and William F. Patry, Washington, D.C., in support of appellant Richard Anderson Photography.
Jon A. Baumgarten, Minna Schrag, Andrew W. Reich, Proskauer, Rose, Goetz & Mendelsohn, New York City, on brief, for Amici Curiae The Ass’n of American Publishers, Inc., American Ass’n of University Presses, Inc. and Information Industry Ass’n.
Before PHILLIPS and CHAPMAN, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.
JAMES DICKSON PHILLIPS, Circuit Judge:
This appeal presents the questions whether the eleventh amendment provides immunity to a state educational institution, its governing board, and one of its officials, as sued in her official capacity, on a claim for damages under the Copyright Act of 1976, 17 U.S.C. § 101 et seq. (the Act), and whether state law provides immunity to the state official as sued in her individual capacity. The district court found both eleventh amendment and state law immunity and dismissed all the claims. We affirm the dismissals on eleventh amendment grounds as to the state institution and its board and the official in her official capacity, though for different reasons than those given by the district court. We reverse the dismissal of the claim against the state official in her individual capacity on state law immunity grounds and remand that claim for further proceedings.
I
In 1981, Radford University, an educational instrumentality of the Commonwealth of Virginia (Radford), contracted with the North Charles Street Design Organization (NCSDO) of Baltimore, Maryland, to produce a student prospectus. NCSDO in turn contracted with the plaintiff-appellant in this action, Richard Anderson Photography, Inc. (Anderson), to provide the photographs for use in Rad-ford’s 1982 student prospectus. Anderson took and obtained copyrights for a large set of photographs, some of which ultimately were published in the 1982 prospectus, per the contract.
At some point, Anderson concluded that Radford, through defendant-appellee Deborah Brown, Radford’s Director of Public Information and Relations, was making unauthorized use of the photographs in violation of Anderson’s exclusive rights under 17 U.S.C. §§ 106(1), (2), (3) and (5). Anderson then brought this action against Radford, its governing board, and Brown, alleging such a violation and seeking in-junctive and monetary relief. When Rad-ford returned the photographs, Anderson dropped the claim for injunctive relief but continued to pursue the claim for damages against all the named defendants.
The defendants then jointly moved for dismissal of the action on the basis of their eleventh amendment immunity as, respectively, instrumentalities and an official of the state. Anderson responded by urging alternatively that Congress in the Copyright Act had directly abrogated the states’ eleventh amendment immunity to suits under that Act, or that the Commonwealth of Virginia had constructively consented to being sued for violations of the Act by participating, through the use of copyright materials, in an activity regulated by Congress.
The district court dismissed the claims against Radford, its Board, and Brown insofar as she was sued in her official capacity. Specifically the court held that Congress did not have the power to abrogate the states’ eleventh amendment immunity except under section 5 of the fourteenth amendment, a source of power not available in its enactment of the Copyright Act. The court did not address the further question whether, had the power existed, Congress had effectively exercised it. The court also rejected Anderson’s alternative claim that the Commonwealth had constructively consented to suit, thereby waiving its eleventh amendment immunity by participating, through use of copyright materials, in congressionally regulated activity. See Richard Anderson Photography, Inc. v. Radford Univ., 633 F.Supp. 1154, 1158-60 (W.D.Va.1986).
The district court, however, then sua sponte raised and invited briefing on the issue whether Brown might be liable on Anderson’s claim in her individual capacity. In response, Brown contended that because in the conduct charged to her she was acting within the scope of her official authority, she could only be sued in her official capacity, in which capacity she had properly been held immune to suit under the eleventh amendment. Anderson responded that because Brown’s conduct was allegedly illegal, she could not be considered as acting within her official authority, so that she was exposed to individual liability free of the eleventh amendment’s immunity.
The district court, however, rejected both parties’ contentions on this point and held, sua sponte, that Brown could be sued in her individual capacity for the copyright violation charged to her, but that in that capacity she was entitled, under Virginia state law, to the immunity provided by Virginia law to state officials in the performance of discretionary functions. On this basis, the court dismissed the claim against Brown in her individual capacity.
This appeal by Anderson followed.
II
With respect to its claims against Rad-ford, the Radford Board, and Brown in her official capacity, hence effectively against the state, Anderson renews its arguments that the eleventh amendment provides no immunity. Two alternative theories are advanced.
The first theory is that Congress has directly abrogated the states’ eleventh amendment immunity in its enactment of the Copyright Act. This argument in turn has two elements: first, that Congress has power under the Copyright and Patent Clause of the United States Constitution, art. I, § 8, cl. 8, directly to abrogate the immunity of nonconsenting states to suits under the Act; and second, that Congress has effectively done so in the Copyright Act.
The second theory is that here the state, in any event, has constructively consented to suit, thereby impliedly waiving its immunity, by participating in federally regulated conduct through its own copyright activities.
While these are conceptually different theories, they pose, under current doctrine, a common issue: whether Congress has effectively expressed its intention either directly to abrogate immunity, without regard to the states’ consent, or to exact “constructive consent” to suit, hence, an “implied waiver” of immunity from the states as a condition of their participation in federally regulated, here copyright, activity. Because the same basic test of congressional intent applies to both, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247, 105 S.Ct. 3142, 3149-50, 87 L.Ed.2d 171 (1985); Welch v. State Dept. of Highways, — U.S. -, 107 S.Ct. 2941, 2947-48, 97 L.Ed.2d 389 (1987), and because resolving that issue may avoid the need to address any more fundamental issues of Congress’ constitutional power to abrogate, see Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), we look first to the issue of congressional intent. See Welch, 107 S.Ct. at 2946-47.
That test, as recently refined by the Supreme Court in a series of critical decisions, is a most stringent one, couched deliberately in terms of constraints both upon the legislative power and the judicial interpretive process. Specifically, the Court has now held that because of the “fundamental nature of the interests implicated by the Eleventh Amendment,” Atascadero, 473 U.S. at 242, 105 S.Ct. at 3147, and “the vital role of the doctrine of sovereign immunity in our federal system,” Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (Pennhurst II):
Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute ... [and] it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides the guarantees of the Eleventh Amendment.
Atascadero, 473 U.S. at 242-43, 105 S.Ct. at 3147; see also Welch, 107 S.Ct. at 2946 (applying Atascadero test). As the Court sees it, the dual constraints are interdependent: “The requirement that Congress unequivocally express this intention in the statutory language ensures such [judicial] certainty.” Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147.
Applying the Atascadero/Welch test, we hold that, laying aside all questions of its constitutional power to abrogate by either means, Congress has not in the Copyright Act so unequivocally expressed its intention to abrogate either directly, without regard to consent, or indirectly by exacting consent as a condition of participation, as to allow us to find an override of the eleventh amendment immunity here invoked by the state defendants.
Though, as indicated, the basic inquiry into congressional intent is the same under both the “direct abrogation” and “implied waiver” theories of eleventh amendment override, there are differences between the two that require separate inquiries. We take the theories in the order stated.
A
In considering whether Congress has unequivocally expressed an intention in the Copyright Act directly to abrogate eleventh amendment immunity, we start with the core substantive, remedial, and jurisdictional provisions of the Act as the most likely sources of any such expression.
Section 501 creates the basic right of action. It provides that the registered owner of any of the exclusive rights conferred under the Copyright Act, see 17 U.S.C. §§ 106-118, may institute an action for infringement against an infringer of any of those rights. See 17 U.S.C. § 501(b). Section 501 describes an infringer as follows:
(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright.
(Emphasis added.)
Sections 504 and 505 provide for monetary remedies against an infringer in the form of actual or statutory damages, costs and attorney’s fees, except as against the United States or its officers. Section 502 provides for injunctive relief: “[a]ny court having jurisdiction of a civil action arising under” the Act may “grant temporary and final injunctions ... as it may deem reasonable to prevent or restrain infringement of a copyright.” Additionally, § 301 provides that any rights equivalent to those governed by the Act existent under the common law or statutes of any state are preempted.
The Act does not itself provide for federal jurisdiction over suits brought pursuant to its provisions. Because of the need for national uniformity of copyright law, however, Congress has separately provided for exclusive federal jurisdiction over civil actions arising under the Act. See 28 U.S.C. § 1338(a).
It is clear, therefore, that the effect of these core substantive, remedial and jurisdictional provisions is to provide a general right of action, exclusively maintainable in the federal courts, under which both monetary and injunctive relief may be obtained against “anyone who violates any of the exclusive rights of the copyright owner.” 17 U.S.C. § 501(a). Anderson’s basic argument is that this general authorization for enforcement actions against “anyone” sufficiently expresses Congress’ intent that the states, as entities necessarily included within the descriptive “anyone,” shall be subject to suit for the full range of remedies provided by the Act. To this there is a short and decisive response: such a general authorization, for suit against “anyone” in federal court is not, in itself, a sufficiently clear and unequivocal indication of congressional intent to subject unconsenting states to suits for money damages in federal court. See Welch, 107 S.Ct. at 2947; Atascadero, 473 U.S. at 246, 105 S.Ct. at 3149.
This does not, however, end the matter. Anderson rightly contends that our inquiry must focus on the language of the statute as a whole. We agree that we are not limited in our inquiry to the core provisions authorizing suit and generally describing those who may sue and be sued to enforce the Act’s substantive rights. “Rather, we [must] seek to understand a given provision by determining how it fits into the larger statute of which it is a part.” In re McVey Trucking, 812 F.2d 311, 326 (7th Cir.1987). We therefore look to other provisions of the Act which Anderson and associated amici contend make congressional intention to abrogate sufficiently clear when read in conjunction with the basic provisions just discussed.
The provisions on which Anderson relies are 17 U.S.C. §§ 107, 108, 110(2), 110(6), 111(a), 112, 118(d)(3), 601 and 602. We consider them in order.
Section 107 provides for certain specified uses of copyrighted materials that will not be considered as infringements. See 17 U.S.C. § 107. These “fair uses” include reproduction of multiple copies for classroom use by teachers. Anderson argues that this provision is superfluous if state schools are to be considered immune from suit. This argument is without merit not only because, as we discuss below, a teacher’s immunity from suit is not coextensive with that of the state, but also because the limitations in § 107 can be read as applying to teachers in local school districts that might not, in any event, share the states’ eleventh amendment immunity. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280-81, 97 S.Ct. 568, 573-73, 50 L.Ed.2d 471 (1977). Likewise, the explicit limitations on a copyright holder’s exclusive rights pertaining to use of the copyrighted work by “libraries and archives” found in § 108, can be read as applicable to private and local institutions and therefore are not superfluous absent congressional abrogation of the states’ eleventh amendment immunity.
Anderson also relies heavily on § 110(2) of the Copyright Act which includes as noninfringing activities the performance or display of a “nondramatic literary or musical work” if:
(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and
(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and
(C) the transmission is made primarily for—
(i) reception in classrooms or similar places normally devoted to instruction, or
(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
(iii)reception by officers or employees of governmental bodies as a part of their official duties or employment.
Anderson contends that use of the phrase “governmental bodies” in this provision is a sufficiently clear indication of congressional intent to subject the states to damage suits for copyright infringement in federal court. The argument is that if it were otherwise, Congress would not have excepted some of the states’ activities from liability under § 110(2) through use of the phrase “governmental bodies.” We conclude, however, that the phrase “governmental bodies” in this context has the same ambiguity for the purpose at hand as do the provisions in §§ 107-108. Clearly the phrase could be read as applicable only to local governments or to actions by government officials so that the states’ continued immunity would not render § 110(2) superfluous.
The Seventh Circuit’s recent decision in In re McVey Trucking, 812 F.2d 311 (7th Cir.1987), is not to the contrary. There, in the course of determining that the Bankruptcy Code abrogates the states’ eleventh amendment immunity, the court concluded that the phrase “governmental units” contained in § 106(c) of the Code, was intended to include the states as the targets of suit, hence expressly to have abrogated immunity. Id. at 326. But the McVey court reached this conclusion by looking to a definitional provision of the Code that defined “governmental unit” as including states. Id. While there is some question whether “clear and unequivocal intent” can properly be found through reference to such definitional provisions, see United States v. Union Gas Co., 832 F.2d 1343, 1347-50 (3d Cir.1987), it is not necessary for us to consider that issue here. Nowhere in the definitional provisions or elsewhere in the body of the Copyright Act is the phrase “governmental bodies” defined explicitly as including states. Section 110(2) therefore fails to support Anderson’s claim that the Act directly abrogates the states’ eleventh amendment immunity. For the same reasons, §§ 110(6), 110(8), 111(a), 112, and 118(d)(3), also using the phrase “governmental body” without explicit reference to states as distinct from local governments, fail to support Anderson’s argument.
Anderson next argues that § 601 of the Act, a provision that lapsed on July 1,1986, would be superfluous if Congress had not intended the states to be subject to damage suits in federal court under the Copyright Act. Section 601 merely prohibited the importation into the United States of predominantly nondramatic literary works not published in the United States or Canada. See 17 U.S.C. § 601(a). Section 601 was tied to § 501 in that a plaintiff's illegal importation under § 601 was a complete defense to plaintiffs suit for infringement “with respect to all of the nondramatic literary material comprised in the work.” 17 U.S.C. § 601(d). Section 601(b)(3) provided, however, that the defense did not apply, in pertinent part, “where importation is sought under the authority or for the use, other than in schools, of the Government of the United States or of any State or political subdivision of a State.” 17 U.S.C. § 601(b)(3). Laying aside the point that a lapsed statutory provision lacks persuasive force, we decline to conclude that by disallowing an otherwise valid defense to an infringement action when the allegedly infringed work’s importation was “sought under the authority or for the use ... of any State,” id., Congress evidenced an intent to subject the state itself to an action for damages for infringement in federal court.
Anderson’s final argument draws on § 602 of the Act, which provides, in pertinent part, that:
(a) Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies of phonorecords under section 106, actionable under section 501. This subsection does not apply to—
(1) importation of copies or phono-records under the authority or for the use of the Government of the United States or of any State or political subdivision of a State, but not including copies or phonorecords for use in schools, or copies of any audiovisual work imported for purposes other than archival use.
17 U.S.C. § 602(a)(1).
The argument is that the exception in subdivision (1) relating to importations “under the authority or for the use of ... any state” would not be required were states already subject to general immunity. If the subdivision (1) exception referred to importation “by” any state rather than “under the authority or for the use of ... any State,” this provision might support Anderson’s argument. As it stands, however, the exception can most logically, certainly arguably, be read as exempting from liability only those private persons or public officials acting in their individual capacity who import copyright materials under governmental authority or for governmental use. Section 601 is not, therefore, an unequivocal indication of Congress’s intent to subject the state itself to an action for damages for infringement.
For these reasons, we hold that the language of the Copyright Act, considered as a whole, does not clearly and unequivocally indicate Congress’s intent to create a cause of action for money damages enforceable against the states in federal court, thereby directly abrogating the states’ eleventh amendment immunity.
B
Anderson’s alternative theory is, as indicated, that the Commonwealth of Virginia has “constructively consented” to suit and thereby “impliedly waived” its immunity to suits for damages under the Copyright Act by its own participation in the conduct federally regulated by that Act. In support of this theory, Anderson and its associated amici rely on the doctrine of “implied waiver by participation” as applied most critically in Parden v. Terminal Ry. of Alabama Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). In Parden, the Court did hold that general language in the FELA, 45 U.S.C. §§ 51-60, making that Act applicable to “every common carrier” engaged in interstate commerce, permitted an injured employee of a state-owned railroad to sue the state for money damages under the FELA. “Implied waiver” of the state’s eleventh amendment immunity was found in its participation, as owner and operator of a railroad engaged in interstate commerce, in conduct regulated by the FELA, in the face of language in that Act which, without definitional limitation, exposed to suits for damages “every common carrier” so engaged.
Were this holding in Parden still authoritative, Anderson’s argument might well prevail. There is no question but that the state here has participated, as truly as did the state in Parden, in federally regulated conduct. The general language in § 501 of the Copyright Act defining as an “infringer” subject to suits for damages “anyone” who violates that Act’s substantive provisions would seem as inclusive of states as was the descriptive “every common carrier” which was held in Parden to have that effect.
But Parden is not still authoritative on the critical point of Anderson’s alternative contention. Some years after Parden, the Court in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), raised cautions about too freely using notions of “constructive consent” through participation in federally regulated conduct to find the states’ eleventh amendment immunity overridden. Id. at 673, 94 S.Ct. at 1360 (“not a doctrine commonly associated with the surrender of constitutional rights”). Later, in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985), the Court gave even harder content to the Edelman caution, holding that to find the eleventh amendment immunity overridden by this means, there must be not only an unequivocal indication of state participation in federally regulated activity, id. at 238 n. 1, 105 S.Ct. at 3145 n. 1, but a congressional expression of intent to condition participation upon consent as clear and unequivocal as that required to abrogate directly the immunity of unconsenting states. Id. at 247, 105 S.Ct. at 3149-50. After Atascadero, it was obvious that that decision’s stringent test for finding “implied waiver” by “constructive consent” drew Parden’s much looser, approach in serious question, and in fairly short order the Supreme Court resolved the matter by confirming the Atascadero test as the authoritative one. In Welch v. State Dept. of Highways & Pub. Transp., — U.S. -, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987), one question was whether a state had constructively consented to suits in federal courts under the Jones Act, 46 U.S.C.App. § 688, by operating a ferry under conditions invoking the provisions of that Act. Directly in issue — in fact dispositive of the point — was whether Parden, which had found immunity waived for FELA purposes by the state’s operation of a railroad, controlled to dictate the same result under the closely related (indeed borrowed) Jones Act provisions as applied to state employed seamen. The Welch court held flatly that though Parden had not before been expressly overruled, several decisions, culminating in Atascadero, had now left “no doubt that [its] discussion of congressional intent to negate Eleventh Amendment immunity is no longer good law.” Welch, 107 S.Ct. at 2948. The more stringent test most recently applied in Atascadero was reaffirmed and Parden was expressly overruled “to the extent ... inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language.” Id.
Here, the critical language of the Copyright Act, as analyzed in Part II.A above, no more unequivocally expresses an intention to condition participation by the states upon their constructive consent to suit than it does to effect a direct abrogation of their immunity without regard to their actual or constructive consent. Cf. Welch, 107 S.Ct. at 2946-48 (applying parallel tests of congressional intent to both “direct abrogation” and “constructive consent” contentions); Atascadero, 473 U.S. at 242-47, 105 S.Ct. at 3147-50 (same).
For these reasons, we hold that there has been no implied waiver of eleventh amendment immunity by the Commonwealth’s participation in federally regulated copyright activity.
Ill
As indicated, after holding, as we have now affirmed, that the claim against Brown in her official capacity was barred by the eleventh amendment, the district court ruled further, sua sponte, that she was also immune to the claim in her individual capacity, on the basis of the immunity accorded by state law to state officials sued in their individual capacities for conduct taken in the performance of discretionary functions. Notwithstanding this ruling according her absolute immunity in her individual capacity, Brown continues to maintain on this appeal, as she has throughout, that on a more fundamental basis the claim against her is one that can only be considered one in her official capacity, as to which she enjoys eleventh amendment immunity.
Both theories of immunity being properly before us, whether as raised by Brown as appellant or as invoked sua sponte by the district court, we consider them in turn.
A
We agree with the district court that the circumstances do not warrant treating the claim against Brown as necessarily only one in her official capacity. We hold instead, with the district court, and against Brown’s contention, that the claim may properly be considered one against her in her individual capacity.
There are of course circumstances under which a claim against a state official for monetary relief can only be considered as one in the defendant’s official capacity, hence one effectively against the state and therefore subject to eleventh amendment immunity. The test is whether “the judgment sought ... would require an official to do that which he could only do by virtue of the fact that he is an official, that quoad hoc he is the State.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 714, 69 S.Ct. 1457, 1474, 93 L.Ed. 1628 (1948) (Frankfurter, J., dissenting); see also Edelman, 415 U.S. at 664-65, 94 S.Ct. at 1356-57 (action to compel state official to release withheld welfare benefits is effectively one seeking monetary relief from the State itself; hence barred by the eleventh amendment).
The claim against Brown here is obviously not of that character. Brown could obviously pay a judgment for money damages independently of her status as a state official, and without any consequences to the state’s fisc. See American Civil Liberties Union, Inc. v. Finch, 638 F.2d 1336, 1341 (5th Cir.1981). The mere fact that her conduct was undertaken in the course of her state employment does not of course relieve her of individual liability, even if her employer could not be sued for it. A state may no more than an individual principal give its agent authority to commit torts without civil recourse. Larson, 337 U.S. at 694 n. 15, 69 S.Ct. at 1463 n. 15.
Brown is therefore amenable to suit in her individual capacity for the claimed copyright violation.
B
That leads to the question whether, as the district court ruled, Brown is nevertheless immune to such an action by virtue of discretionary function immunity as conferred by state law.
The answer is simple. Without regard to the exact nature of any such state law of immunity and to whether, if generally applicable, it would apply here, state law cannot provide immunity to persons sued for violating the Copyright Act in the way here alleged. The Supremacy Clause, U.S. Const. art. VI cl. 2, precludes any such application of state immunity law. While the Constitution does not give Congress exclusive authority over copyright to the exclusion of any state laws, Goldstein v. California, 412 U.S. 546, 553, 93 S.Ct. 2303, 2308, 37 L.Ed.2d 163 (1973), the states cannot either enhance or diminish the scope of protection afforded to those categories of writings that “Congress determines ... worthy of national protection.” Id. at 559, 93 S.Ct. at 2311. See also 17 U.S.C. § 301. Because the materials here in issue fall within the “national protection” provided by the Copyright Act, any immunity provided by state law for violators of rights in those materials would obviously dimmish the scope of the Act’s protection.
State law therefore provides no immunity to Brown against a claim in her individual capacity, though she may obviously invoke any of the numerous defenses that may be available to her under the Act itself.
We therefore reverse the district court’s ruling that Brown is immune under state law to the claim against her in her individual capacity, and remand that claim for further proceedings.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS.
. There is no contention that the state has expressly waived its immunity by statute or constitution.
. By referring to this theory of eleventh amendment override alternatively as "indirect abrogation” or “exacted consent,” we simply draw on still other ways to describe what has come more commonly to be described interchangeably as “constructive consent” or “implied waiver.” Both of these latter descriptives refer to the states’ ultimate conduct which perfects the override by this particular means. The former de-scriptives refer instead to the congressional action which sets this process in motion. All serve equally well. The virtue of the descrip-tives that refer to the congressional action is that they emphasize the critical point here in issue, whether Congress has indeed taken the critical initiating step from which "implied waiver" or "constructive consent” by the states may have followed. "Indirect abrogation” by “exacting constructive consent” serves also to distinguish this process from “direct abrogation without consent.” Obviously no substantive difference is intended.
. We note that several courts that recently have found the language of the Copyright Act insufficient to abrogate the states’ eleventh amendment immunity seemingly have confined their analysis to the language of § 501. See, e.g., BV Eng'g, Inc. v. University of California, Los Angeles, 657 F.Supp. 1246, 1250 (C.D.Cal.1987); Woelffer v. Happy States of America, Inc., 626 F.Supp. 499, 504 (N.D.Ill.1985). We agree with Anderson that the broader inquiry is required.
. A point noted by the district court as it considered the question before the decision in Welch.
Question: Was there any amicus participation before the court of appeals?
A. no amicus participation on either side
B. 1 separate amicus brief was filed
C. 2 separate amicus briefs were filed
D. 3 separate amicus briefs were filed
E. 4 separate amicus briefs were filed
F. 5 separate amicus briefs were filed
G. 6 separate amicus briefs were filed
H. 7 separate amicus briefs were filed
I. 8 or more separate amicus briefs were filed
J. not ascertained
Answer:
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sc_casedisposition
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
LEE v. ILLINOIS
No. 84-6807.
Argued December 9, 1985
Decided June 3, 1986
Brennan, J., delivered the opinion of the Court, in which White, Marshall, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 547.
Dan W. Evers argued the cause for petitioner. With him on the briefs was Randy E. Blue.
Jill Wine-Banks, First Assistant Attorney General of Illinois, argued the cause for respondent. With her on the brief were Neil F. Hartigan, Attorney General, and Mark L. Rotert.
Justice Brennan
delivered the opinion of the Court.
Petitioner and a codefendant, charged with committing a double murder, were tried jointly in a bench trial. Neither defendant testified at trial. In finding petitioner guilty as charged, the trial judge expressly relied on portions of the co-defendant’s confession, obtained by police at the time of arrest, as substantive evidence against petitioner. The question for decision is whether such reliance by the judge upon the codefendant’s confession violated petitioner’s rights as secured by the Confrontation Clause of the Sixth Amendment, as applied to the States through the Fourteenth Amendment.
I
In February 1982, police officers of East St. Louis asked petitioner Millie Lee to come to the police station to help identify a badly burned body that the police had discovered in an apartment in the housing complex in which Lee lived. While Lee was examining photographs of the body, a detective noticed that she began to cry. The detective advised Lee of her Miranda rights, and began to question her about the whereabouts of her aunt, Mattie Darden, with whom Lee shared an apartment. After giving a number of confused and conflicting accounts concerning when she had last seen or talked to her aunt, Lee finally admitted that she and her boyfriend, Edwin Thomas, had been involved in the stabbing of both Aunt Beedie and her friend, Odessa Harris, and that the body was her Aunt Beedie’s. At that point, the officers questioning Lee again read her her Miranda rights, placed her under arrest, and continued to question her. After concluding their interview with Lee, the police presented her with a typewritten account of her statement, which included at the top of the first page a recitation and waiver of her Miranda rights. Lee read and signed each page of the confession.
Petitioner’s codefendant, Edwin Thomas, arrived at the police station, ostensibly for “questioning” about the homicides, while police officers were still in the process of interviewing Lee; nonetheless, the police apparently were sufficiently informed of Thomas’ involvement such that upon his arrival, he was read his rights and confronted by an officer with his alleged participation in the murders. Thomas indicated at that point that he “wanted to think about” whether to talk to the police.
During her questioning by the police, Millie Lee had asked to see Edwin Thomas; after being advised of his rights, Thomas asked if he could see Lee. After they obtained Lee’s confession, the police allowed the two to meet. Lee and Thomas were permitted to kiss and to hug, and one of the officers then asked Lee, in the presence of Thomas, “what was the statement you had just given us implicating Edwin?” Lee said to Thomas: “They know about the whole thing, don’t you love me Edwin, didn’t you in fact say . . . that we wouldn’t let one or the other take the rap alone.” Brief for Respondent 6. At that point, Thomas gave a statement to the police, which was later typed and then presented to Thomas for his review and signature.
According to Lee’s statement, on the evening of February 11, 1982, she and Thomas were at home in the apartment that Lee shared with Aunt Beedie when the aunt and her friend Odessa Harris arrived at approximately 8:30 or 9 p.m. Aunt Beedie and Odessa went into the bedroom, while Lee did the dishes in the kitchen. Thomas, who had been watching television, joined Lee in the kitchen, and the two apparently had .“two or three words not really an argument.” Odessa then came out of the bedroom to the kitchen and asked “what the hell was going on.” As related in Lee’s confession, Odessa “said we ought to be ashamed of ourselves arguing and making all that noise. I told her it was none of her business that she didn’t live here.” Odessa returned to the bedroom. App. 6.
As Lee’s account further related, after Odessa returned to the bedroom Lee called her back into the kitchen in order to confirm whether Aunt Beedie had “really” paid the rent. Odessa assured Lee that the rent had indeed been paid, and then complained once more about the fact that Lee and Thomas had been arguing. As Odessa left the kitchen to return to the bedroom, she passed Thomas and gave him “dirty looks.” When Odessa turned her head Thomas got up from his chair and stabbed Odessa in the back with a 24-inch-long knife. Odessa fell on the floor, and called out to Aunt Beedie. Lee explained that she then
“ran, well I don’t know if I ran or walked into the bedroom. Edwin was standing over by the kitchen cabinet with the knife in his hand with blood on it. Odessa was laying there moaning. When I went into the bedroom my aunt Beety was sitting on the bed and then she got up and had a knife in her hand. I don’t know where the knife came from, my aunt usually kept her gun by her bed. I don’t know what kind of gun it is. When my aunt got up off the bed she told me to get out of her way or she would kill me and then she swung at me with the knife. I ran into the kitchen and got a butcher knife that was sitting on the kitchen table and then I went back into the bedroom where my aunt was and then I stabbed her. I kept stabbing her. The first time I stabbed her, I hit her in the chest, I kept stabbing her and I really don’t know where else I stabbed her, I had my eyes closed some of the time.” Id., at 7.
Lee’s statement also included an account of some of the circumstances leading up to the killing:
“Me, and Edwin had talked about stop[p]ing aunt Mattie from harassing me before. She would come in drunk or would get on the phone and tell people that I never did anything for her that I wouldn’t give her anything to eat, or anything since I had a boyfriend. . . . Edwin used to get mad when my aunt would talk about me and that he couldn’t take much more of what my auntie was doing, that when he began talking about doing something to aunt Beetty [sic] but he never said what. Odessa was always jumping up in my face and one time about a month ago me and Odessa got into an argument about my dress that I let Odessa use and Edwin seen her get in my face that time. He, Edwin just couldn’t stand to see my auntie or Odessa harass me anymore. Things just kept adding up and adding up and the night that we killed Odessa and my aunt Beetty [sic] Edwin just couldn’t take anymore.” Id., at 12.
Thomas’ confession paralleled Lee’s in several respects. It described the argument between himself and Lee, the confrontation with Odessa in the kitchen, and the stabbings of Odessa and then Aunt Beedie. However, Thomas’ statement provided an altogether different version of how he and Lee came to commit the murders. Most significantly, Thomas stated that he and Lee had previously discussed killing Aunt Beedie, and referred to conversations immediately prior to the murders that suggested a premeditated plan to kill. According to Thomas, after Odessa scolded Lee for arguing with Thomas:
“This is when I asked [Lee] ‘did she still want to go through with it?’ I was referring to what -we had plained [sic] before about killing Aunt Beedie. We had talked about doing something to Aunt Beedie, but we had not figure out just what we would do. We had never before discussed doing anything to Odessa just Aunt Beedie, because we were tired of Aunt Beedie getting drunk, and coming home and ‘going off’ on [Lee]. . . . After asking [Lee], ‘did she still want to do it?’ [Lee] first gave me a funny look, as though she was not going to do it, she stared into space for awhile, then she looked at me and said, ‘yes.’
“We decided that if we did something to Aunt Beedie, we had to do somthing [sic] with Odessa. We wanted Odessa to leave, but she stayed there. We had plained [sic] that [Lee] was suppose [sic] to get Odessa to stand, with her back toward the front room, looking into the kitchen, while I would grab her from the back, using the big knife.” Id., at 17-18.
Lee’s statement, by contrast, suggested that it was Thomas who had been provoked by Aunt Beedie’s behavior and Thomas who had snapped the night of the murders. Her statement made no mention of an alleged decision by herself and Thomas to “go through with it,” nor, of course, did it indicate that the two had formulated a plan to induce Odessa to return to the kitchen where Thomas would kill her. On the contrary, Lee asserted that on the night of the killings “Edwin just couldn’t take anymore.”
Lee and Thomas were charged in a two-count indictment with murder. Count one charged them with the murder of Aunt Beedie, and count two with the murder of Odessa. They were appointed separate counsel for trial.
On the day of trial, counsel for the two defendants withdrew motions for severance and for trial by jury. In withdrawing the motion for separate trials, counsel for Thomas explained that “[sjince we are having a Bench Trial, the Court would only consider the evidence proper to each defendant, we feel that there is no longer any need for that motion.” The court then asked petitioner’s lawyer whether that was her understanding as well. She replied: “Yes, your Honor. I have conferred with Miss Lee. We would ask the Court to consider the evidence separately for each defendant.” The judge replied: “It will be done that way.” Tr. 3.
Neither defendant testified at trial, except on behalf of their respective motions to suppress their statements on the ground that they were given involuntarily, motions that were denied by the trial judge.
At trial both the prosecution and the defendants relied heavily on the confessions. In closing, counsel for petitioner called the court’s attention to Lee’s confession, and argued that it showed that Lee was “not responsible for the death of Odessa Harris. ... As I read her statement, she was not personally involved in the stabbing of Odessa Harris. Mr. Thomas was.” Id., at 232-233. Counsel maintained that under Illinois law, in order to be guilty of murder a person must be involved before or during the commission of the offense, and that Lee’s confession simply could not fairly be read to support such a finding. With respect to Aunt Beedie’s killing, counsel urged the court to consider the lesser charge of voluntary manslaughter. According to counsel, Lee’s statement indicated that Aunt Beedie had had a knife, that Lee and Aunt Beedie had struggled, and that the stabbing occurred as a result of that struggle. Counsel suggested that Lee had acted either upon the “unreasonable belief that her act of stabbing Mattie Darden constituted self-defense” or, in the alternative, that the killing “was the result of a sudden and intense passion resulting from serious provocation.” Brief for Petitioner 5.
In rebuttal, the prosecutor described Lee’s arguments in support of lesser offenses as “interesting. ” He answered the suggestion that the evidence showed insufficient intent to support murder by asserting that “once you read the confession of Millie Lee, you will note that she indicates in her statement that before anything begins, . . . that she and Edwin spoke together ... at which time Edwin asked her, ‘Are you ready?’ And she, after thinking awhile, said, ‘Yes.’” The prosecutor maintained that this exchange, which he incorrectly attributed to Lee’s statement, and which had in fact appeared only in Thomas’ confession, demonstrated a willingness on the part of Lee to “go through with whatever plan” the two had formulated with respect to the victims, and thus that there had been an agreement to kill. The State also argued in closing — again erroneously drawing from Thomas’, not Lee’s, confession — that Lee “did in fact aid and assist and encourage this whole operation, by drawing Odessa out of the bedroom”; the prosecutor argued that this was evident from Thomas’ statement that it was necessary to kill Odessa in order to go ahead with the plan to kill Aunt Beedie. To prove Lee’s intent to kill and to rebut her theories of self-defense and sudden and intense passion, the State pointed to Thomas’ assertion that he had asked Lee if she was willing to go through with what they had talked about, and her reply “I’m scared, but I will go through with it.” Tr. 236.
In finding Lee guilty of the murders of Aunt Beedie and Odessa, and explaining why he rejected Lee’s assertions that she had not participated in the killing of Odessa and that she acted either in self-defense or under intense and sudden passion with respect to the stabbing of Aunt Beedie, the trial judge expressly relied on Thomas’ confession and his version of the killings, particularly with respect to the decision to kill Aunt Beedie allegedly made earlier by Lee and Thomas. Lee’s contentions, the judge declared, were
“disputed by the statement of her co-defendant, who stated that he asked Miss Lee do you want to go through with it. A previously conceived plan to dispose of Miss Darden. And after some thinking . . . she responded that she did. There is no showing that they acted under a sudden and intense passion, in fact prior to the stabbing, according to his own confession, the defendant took a knife . . . and awaited the arrival of Miss Harris into the kitchen, in fact had his co-defendant call her so she could come out. Now that isn’t a sudden and intense passion.” App. 25.
Lee was sentenced to a term of 40 years’ incarceration for the murder of Odessa, and life imprisonment for the murder of Aunt Beedie.
On appeal, Lee contended, among other things, that her Confrontation Clause rights were violated by the trial court’s consideration of Thomas’ confession against her. The state appeals court conceded that the trial court considered Thomas’ confession in finding Lee guilty, but held that since the defendants’ confessions were “interlocking,” they did not fall within the rule of Bruton v. United States, 391 U. S. 123 (1968), which, the court stated, was that the “admission of a codefendant’s extrajudicial statement that inculpates the other defendant violates the defendant’s Sixth Amendment right to confront witnesses against him.” 129 Ill. App. 3d 1197, 491 N. E. 2d 1391 (1984). The court did not explain what it meant by saying that the confessions were “interlocking,” how the confessions interlocked, or how or why the Bruton analysis would be altered when confessions did interlock. The Illinois Supreme Court denied leave to appeal. We granted certiorari. 473 U. S. 904 (1985).
II
The State of Illinois concedes that this case involves the use of a codefendant’s confession as substantive evidence against petitioner. Brief for Respondent 9. Illinois also correctly recognizes that the admissibility of the evidence as a matter of state law is not the issue in this case; rather, it properly identifies the question presented to be “whether that substantive use of the hearsay confession denied Petitioner rights guaranteed her under the Confrontation Clause. ...” Id., at 11. It contends, in essence, that Lee’s Sixth Amendment rights were not violated because Thomas was unavailable and his statement was “reliable” enough to warrant its untested admission into evidence against Lee. See Ohio v. Roberts, 448 U. S. 56 (1980). We need not address the question of Thomas’ availability, for we hold that Thomas’ statement, as the confession of an accomplice, was presumptively unreliable and that it did not bear sufficient independent “indicia of reliability” to overcome that presumption.
A
In Pointer v. Texas, 380 U. S. 400 (1965), this Court unanimously held that the Confrontation Clause was applicable to the States, and in doing so, remarked that it “cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.” Id., at 404. Citing and quoting from such cases as Kirby v. United States, 174 U. S. 47 (1899), Alford v. United States, 282 U. S. 687 (1931), Greene v. McElroy, 360 U. S. 474 (1959), In re Oliver, 333 U. S. 257 (1948), and Turner v. Louisiana, 379 U. S. 466 (1965), we observed that “[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer, supra, at 405.
On one level, the right to confront and cross-examine adverse witnesses contributes to the establishment of a system of criminal justice in which the perception as well as the reality of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society’s interest in having the accused and accuser engage in an open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown — and hence unchallengeable — individuals.
But the confrontation guarantee serves not only symbolic goals. The right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials. In California v. Green, 399 U. S. 149, 158 (1970), we identified how the mechanisms of confrontation and cross-examination advance the pursuit of truth in criminal trials. Confrontation, we noted,
“(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility” (footnote omitted). Ibid.
Our cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination. As has been noted, such a confession “is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. . . . More than this, however, the arrest statements of a co-defendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Bruton v. United States, 391 U. S., at 141 (White, J., dissenting) (citations omitted).
Thus, in Douglas v. Alabama, 380 U. S. 415 (1965), we reversed a conviction because a confession purportedly made by the defendant’s accomplice was read to the jury by the prosecutor. Because the accomplice in that case, while called to the witness stand, invoked his privilege against self-incrimination and refused to answer questions put to him, we held that the defendant’s “inability to cross-examine [the accomplice] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause.” Id., at 419. This holding, on which the Court was unanimously agreed, was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.
Over the years since Douglas, the Court has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants. Even Justice Harlan, who was generally averse to what he regarded as an expansive reading of the confrontation right, stated that he “would be prepared to hold as a matter of due process that a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of the guilt of an accused, absent some circumstance indicating authorization or adoption.” Dutton v. Evans, 400 U. S. 74, 98 (1970) (concurring in judgment).
Our ruling in Bruton illustrates the extent of the Court’s concern that the admission of this type of evidence will distort the truthfinding process. In Bruton, we held that the Confrontation Clause rights of the petitioner were violated when his codefendant’s confession was admitted at their joint trial, despite the fact that the judge in that case had carefully instructed the jury that the confession was admissible only against the codefendant. We based our decision in Bruton on the fact that a confession that incriminates an accomplice is so “inevitably suspect” and “devastating” that the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied. Bruton, supra, at 136.
Although in the present case the state court apparently relied on Bruton in reaching its decision, this is not strictly speaking a Bruton case because we are not here concerned with the effectiveness of limiting instructions in preventing spill-over prejudice to a defendant when his codefendant’s confession is admitted against the codefendant at a joint trial. Rather, this case is strikingly similar to Douglas. Here, as in Douglas, the State sought to use hearsay evidence as substantive evidence against the accused. In both cases, the hearsay in question was a confession made by an alleged accomplice, and in neither case was the defendant able to confront and cross-examine the declarant. Whatever differences there are between the cases show clearly that in the present case the Confrontation Clause concerns are of even greater consequence than in Douglas. In Douglas, the accomplice’s confession was read by the prosecutor to the uncooperative declarant in order to “refresh [his] recollection,” 380 U. S., at 316, and was thus technically not evidence that was admitted against the accused; in the present case, Thomas’ statement was, of course, admitted into evidence by the judge following a suppression hearing. Moreover, here, unlike Douglas, it is not necessary to speculate as to whether the factfinder would consider the uncross-examined hearsay; the judge expressly so relied. In this case the Court does not address a hypothetical. The danger against which the Confrontation Clause was erected — the conviction of a defendant based, at least in part, on presumptively unreliable evidence — actually occurred.
B
Illinois contends that Thomas’ statement bears sufficient “indicia of reliability” to rebut the presumption of unreliability that attaches to codefendants’ confessions, citing as support our decision in Ohio v. Roberts, 448 U. S., at 66 (citations omitted). While we agree that the presumption may be rebutted, we are not persuaded that it has been in this case.
In Roberts, we recognized that even if certain hearsay evidence does not fall within “a firmly rooted hearsay exception” and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a “showing of particularized guarantees of trustworthiness.” Ibid. However, we also emphasized that “[reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that ‘there is no material departure from the reason of the general rule.’” Id., at 65, quoting Snyder v. Massachusetts, 291 U. S. 97, 107 (1934). Illinois’ asserted grounds for holding Thomas’ statement to be reliable with respect to Lee’s culpability simply do not meet this standard.
First, contrary to Illinois’ contention, the circumstances surrounding the confession do not rebut the presumption that Thomas’ statement could not be trusted as regards Lee’s participation in the murders. When Thomas was taken in for questioning and read his rights he refused to talk to the police. The confession was elicited only after Thomas was told that Lee had already implicated him and only after he was implored by Lee to share “the rap” with her. The unsworn statement was given in response to the questions of police, who, having already interrogated Lee, no doubt knew what they were looking for, and the statement was not tested in any manner by contemporaneous cross-examination by counsel, or its equivalent. Although, as the State points out, the confession was found to be voluntary for Fifth Amendment purposes, such a finding does not bear on the question of whether the confession was also free from any desire, motive, or impulse Thomas may have had either to mitigate the appearance of his own culpability by spreading the blame or to overstate Lee’s involvement in retaliation for her having implicated him in the murders. It is worth noting that the record indicates that Thomas not only had a theoretical motive to distort the facts to Lee’s detriment, but that he also was actively considering the possibility of becoming her adversary: prior to trial, Thomas contemplated becoming a witness for the State against Lee. This record evidence documents a reality of the criminal process, namely, that once partners in a crime recognize that the “jig is up,” they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.
We also reject Illinois’ second basis for establishing reliability, namely, that because Lee’s and Thomas’ confessions “interlock” on some points, Thomas’ confession should be deemed trustworthy in its entirety. Obviously, when co-defendants’ confessions are identical in all material respects, the likelihood that they are accurate is significantly increased. But a confession is not necessarily rendered reliable simply because some of the facts it contains “interlock” with the facts in the defendant’s statement. See Parker v. Randolph, 442 U. S. 62, 79 (1979) (Blackmun, J., concurring in part and concurring in judgment). The true danger inherent in this type of hearsay is, in fact, its selective reliability. As we have consistently recognized, a codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another. If those portions of the codefendant’s purportedly “interlocking” statement which bear to any significant degree on the defendant’s participation in the crime are not thoroughly substantiated by the defendant’s own confession, the admission of the statement poses too serious a threat to the accuracy of the verdict to be countenanced by the Sixth Amendment. In other words, when the discrepancies between the statements are not insignificant, the codefendant’s confession may not be admitted.
In this case, the confessions overlap in their factual recitations to a great exteht. However, they clearly diverge with respect to Lee’s participation in the planning of her aunt’s death, Lee’s facilitation of the murder of Odessa, and certain factual circumstances relevant to the couple’s premeditation. For example, Lee’s confession states that Thomas was “talking about doing something to aunt Beetty [sic] but he never said what,” App. 12, and does not refer at all to the joint plan to do “something to Aunt Beedie” which Thomas repeatedly mentions in his confession. Id., at 17. Nor does Lee’s confession give any indication that Lee and Thomas colluded to “do somthing [sic] with Odessa,” id., at 18, as does Thomas’ statement. Lee states that she called Odessa into the kitchen only to discuss the rent and that Thomas assaulted Odessa after Odessa had left the kitchen, given Thomas a “dirty loo[k],” and was walking toward the bedroom. Id., at 6. By contrast, Thomas indicates that “[Lee] was suppose [sic] to get Odessa to stand, with her back toward the front room, looking into the kitchen” so that Thomas could stab her from the back, id., at 18, and that he actually attacked Odessa while she was in the kitchen at Lee’s beckoning. Id., at 19. Finally, there are certain factual discrepancies in the two statements which bear on Lee’s alleged pre-existing intent to kill the two women. For example, Thomas states that the couple had thought to put on gloves before the killings, id., at 20, while Lee states that they put on gloves only to dispose of the bodies. Id., at 10.
The subjects upon which these two confessions do not “interlock” cannot in any way be characterized as irrelevant or trivial. The discrepancies between the two go to the very issues in dispute at trial: the roles played by the two defendants in the killing of Odessa, and the question of premeditation in the killing of Aunt Beedie.
In sum, we are not convinced that there exist sufficient “indicia of reliability,” flowing from either the circumstances surrounding the confession or the “interlocking” character of the confessions, to overcome the weighty presumption against the admission of such uncross-examined evidence. We therefore hold that on the record before us, there is no occasion to depart from the time-honored teaching that a co-defendant’s confession inculpating the accused is inherently unreliable, and that convictions supported by such evidence violate the constitutional right of confrontation.
By holding that the consideration of Thomas’ untested confession against Lee violated Lee’s Confrontation Clause rights, we do not foreclose the possibility that this error was harmless when assessed in the context of the entire case against Lee. See Schneble v. Florida, 405 U. S. 427 (1972). However, because the Illinois courts are in a better position to assess the remaining evidence in light of the substantive state law of murder, we leave this determination in the first instance to the state courts. Accordingly, the judgment of the Appellate Court of Illinois, Fifth Judicial District, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him . . . .”
Mattie Darden was known also as “Aunt Beety” or “Aunt Beedie.”
It is evident that the prosecutor, in arguing Lee’s guilt, invited the court to consider Thomas’ confession, an invitation that the court accepted and which generated the error that we address in this opinion. However, there has been no claim made regarding the significance, if any, of prosecutorial misconduct or mistake that results in inadmissible hearsay evidence being brought to the attention of the factfinder, and we thus do not address the question.
We have previously turned to McCormick’s definition of hearsay as “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” E. Cleary, McCormick on Evidence §246, p. 584 (2d ed. 1972). We have also quoted approvingly McCormick’s caveat that “[s]implification has a measure of falsification.” Ibid, (quoted in Ohio v. Roberts, 448 U. S., at 62, n. 4).
We reject respondent’s categorization of the hearsay involved in this case as a simple “declaration against penal interest.” That concept defines too large a class for meaningful Confrontation Clause analysis. We decide this case as involving a confession by an accomplice which incriminates a criminal defendant.
Illinois makes the somewhat surprising argument — an argument, incidentally, that was not made before the state court — that this case does not present any Confrontation Clause issue since Lee was afforded an opportunity to cross-examine Thomas diming the suppression hearing. We disagree.
The function of a suppression hearing is to determine the voluntariness, and hence the admissibility for Fifth Amendment purposes, of a confession. The truth or falsity of the statement is not relevant to the voluntariness inquiry, and no such testimony was given by Thomas. Counsel for both Lee and Thomas specifically stated that their clients were testifying “for purposes of the motion to suppress the confession only.” Tr. 205, 219. Before either defendant took the stand, the court announced: “Let the record show the testimony of this defendant will be used solely for the purpose of sustaining the motion to suppress previously made.” Id., at 205.
Thus, there was no opportunity to cross-examine Thomas with respect to the reliability of the statement, especially as it may have related to Lee, and thus no opportunity for cross-examination sufficient to satisfy the demands of the Confrontation Clause. Cf. Jackson v. Denno, 378 U. S. 368, 376-377 (1964) (A defendant’s constitutional right to a hearing to object to the use of a confession involves a determination of voluntariness, “a determination uninfluenced by the truth or falsity of the confession”).
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_circuit
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E
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
LA FEVER, INC., Plaintiff-Appellant, v. ALL-STAR INSURANCE CORPORATION, Defendant-Appellee. LA FEVER, INC., Plaintiff-Appellant, v. WESTERN WORLD INSURANCE COMPANY, INC., Defendant-Appellee.
No. 76-2310.
United States Court of Appeals, Fifth Circuit.
April 28, 1978.
Maurice Rosen, No. Miami Beach, Fla., for plaintiff-appellant.
George J. Baya, Miami, Fla., for defendants-appellees.
Before TUTTLE, COLEMAN , and CLARK, Circuit Judges.
Judge Coleman did not participate in the consideration or decision of this case. Pursuant to 28 U.S.C. § 46(d), the case is decided by a quorum of the court.
CHARLES CLARK, Circuit Judge:
La Fever, Inc., appeals from an order denying its motion for a new trial based on the recanting affidavit of a witness. At an evidentiary hearing before the district judge who also presided over the original jury trial, the witness reaffirmed his trial testimony. The district court found that the witness had undoubtedly committed perjury. However, the court also found that the witness was wholly unworthy of belief as to any testimony or affidavit given, and therefore it could not determine which of the witness’ versions of the facts was perjurious.
La Fever challenges the legal standard applied by the district court in making these findings. It urges that when a material witness recants, a trial court has no further discretion and a new trial must be granted, citing Martin v. United States, 17 F.2d 973 (5th Cir.), cert. denied, 275 U.S. 527, 48 S.Ct. 20, 72 L.Ed. 408 (1927), which states that in a criminal action the court has a duty to grant a new trial where a government witness admits on oath that he gave perjured or mistaken testimony as to a material issue. The problem for appellant’s argument here is similar to that faced by the appellant Martin in his appeal. The assertion of perjury was not proven. Martin was refused new trial relief because that court was unable to find, just as the trial judge was here, that the recanting affidavit was true.
Decisions subsequent to Martin have spoken to the legal standard for determining whether perjury has been committed. Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), citing Martin, set out this three-part approach to new trial requests: [A] new trial should be granted when,
(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
(b) That without it the jury might have reached a different conclusion.
(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial, (emphasis in original)
Our circuit referred to Larrison as setting “well defined standards” in Newman v. United States, 238 F.2d 861, 862 (5th Cir. 1956). Does then the Larrison requirement that the court be “reasonably well satisfied that the testimony given by a material witness is false” require us in this civil case to apply some standard of review which differs from the clearly erroneous testing we would normally give to fact findings of the trial court? No is the answer, for two reasons.
First, this circuit has never applied any part of the Larrison standards to review of a new trial ruling in a civil case. English v. Mattson, 214 F.2d 406, (5th Cir. 1954), reviewed the denial of a new trial in a double recantation setting almost identical to that present in the case at bar. There we stated:
It has been uniformly held that according to Rule 59 of Civil Procedure, 28 U.S.C.A., a motion for new trial is addressed to the sound discretion of the trial judge, and will not be disturbed except for a clear abuse of that discretion. Such a motion grounded upon newly discovered evidence will not be granted unless (1) the facts discovered are of such a nature that they would probably change the outcome; (2) the facts alleged are actually newly discovered and could not have been discovered earlier by proper diligence; and (3) the facts are not merely cumulative or impeaching.
214 F.2d at 409.
In Fulenwider v. Wheeler, 262 F.2d 97, 100 (5th Cir. 1959), a civil case involving a motion for a new trial based on the affidavit of a recanting witness, we stated:
it is in the absence of a clear abuse of discretion for the trial judge and not the appellate judges to say whether the case is one for-setting aside the verdict, and the district judge should not set aside a verdict on such a motion unless it appears to him that the tendered evidence is of such a nature that if offered on a new trial, it would probably change the outcome.
Second, any distinction in the standards is immaterial to resolution of the instant appeal. This is clearly established in United States v. Johnson, 327 U.S. 106, 66 S.Ct. 464, 90 L.Ed. 562 (1946). There the Court reversed the Seventh Circuit for overturning a trial judge’s finding that perjury did not exist in denying a new trial in a criminal case. The Court explicitly pretermitted a determination of whether the Larrison standard or the civil case new trial standard should have been the guide. More importantly, Johnson was emphatic in stating that an appellate court could not intervene to reverse a trial court’s findings of fact unless it should “clearly appear that the findings are not supported by any evidence.” 327 U.S. at 112, 66 S.Ct. at 466. See also United States v. Mackin, 183 U.S.App.D.C. 65, 561 F.2d 958 (1977).
The record establishes that the trial court’s findings here are not clearly erroneous. Perjury was not proven. The judgment appealed from is
AFFIRMED.
. English, in turn, relies on Glade v. Allied Electric Products, Inc., 135 F.2d 590 (7th Cir. 1943), a case decided by the Seventh Circuit subsequent to Larrison, which upholds the denial of a bill of review in a civil action without citing its criminal case precedent in Larrison.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_crmproc2
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52
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Appellee, v. Edwin Charles FORTES, Jr., Defendant, Appellant. UNITED STATES of America, Appellee, v. Sandra Elaine JEMISON, Defendant, Appellant.
Nos. 79-1124, 79-1125.
United States Court of Appeals, First Circuit.
Argued Oct. 4, 1979.
Decided April 1, 1980.
Wallace W. Sherwood, Boston, Mass., by appointment of the Court, with whom Bruce W. Carroll, Boston, Mass., was on brief, for defendant, appellant Edwin Charles Fortes, Jr.
Peter M. Lauriat, Boston, Mass., by appointment of the Court, with whom Herrick & Smith, Boston, Mass., was on brief, for defendant, appellant Sandra Elaine Jemi-son.
Robert B. Collings, First Asst. U. S. Atty., Chief, Criminal Division, Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and BONSAL, Senior District Judge.
Of the Southern District of New York, sitting by designation.
LEVIN H. CAMPBELL, Circuit Judge.
Following a jury trial in the District Court for the District of Massachusetts appellants Fortes and Jemison were convicted of armed robbery under 18 U.S.C. § 2113(d). Each appeals on a variety of grounds. We affirm the convictions.
On March 23, 1978, two individuals robbed the Tri-Town Mall branch of the Hancock Bank and Trust Company of $3,173. Eyewitnesses testified that the two participants were wearing camouflage jump suits and dark ski masks; detailed description or positive identification was not available. The eyewitnesses agreed, however, that there was a difference in height between the two robbers; in addition several eyewitnesses thought the taller of the two was a male, the shorter a female. The taller individual carried a sawed-off shotgun, which one witness identified as a pump action type; the other was unarmed. Only the armed participant spoke during the robbery. This individual at first remained in the lobby area of the bank while his partner entered the teller’s area carrying what one witness described as a blue canvas-like book bag. Thereafter, the individual holding the weapon pulled out a section of the teller’s cage and jumped over the counter into the teller’s area, with the other participant now returning to the customer area of the bank. The individual with the shotgun then came from behind the teller’s area carrying, in the words of one eyewitness, a grayish-white type bag “under his arm... like a football”; one of the bank tellers who witnessed the robbery described this as a bag of coins. At this point the two individuals left the bank and were seen running into the nearby woods. After the robbery, the head teller noticed that $1,000 in dimes was missing from the vault. She testified that these dimes were rolled in green and white striped wrappers and were packaged inside a white cloth bag which had been delivered the previous day by the Federal Reserve. In addition this witness testified that after the robber had fled she observed a so-called dye-pack security device lying on the bank floor.
In order to link Fortes and Jemison with this robbery, the government relied heavily on the testimony of Anton Ward, who at the time of trial was serving a three-year prison sentence for conspiracy to commit bank robbery imposed by the United States District Court for the District of Connecticut. Ward testified at length as to his relationship and activities with the appellants between December 1977 and early April 1978. He said that on two occasions prior to the March robbery, Fortes, with Jemison present, showed him various weapons, including a 12-gauge pump action sawed-off shotgun. In addition, Ward stated that on these occasions Fortes also displayed boots,' ski hoods, pink or flesh-colored plastic masks and coveralls. Ward further testified that on March 24,1978, the day following the robbery, Fortes and Jemi-son arrived in Connecticut, and that while helping them unload the trunk of their car, he noticed a blue bag which was quite heavy. Fortes, according to Ward, invited him to look in the bag; Ward complied, noticing rolls of dimes in green and white wrappers. Fortes, in response to Ward’s inquiries, indicated he had about $200 there. Ward testified that he and a companion— Beverly Brookshire (Fortes’ mother) — later took $30 of these dimes and exchanged them for “dollar money,” returning the paper currency to Fortes.
Ward testified that on the day following appellants’ arrival in Connecticut, he asked Fortes and Jemison “if they did a bank robbery.” Fortes answered that they had, describing the details of the robbery, including the facts that Fortes had held the shotgun during the robbery while Jemison took the money; that Jemison had a hard time separating the “red money” from the “regular money”; that Fortes had grabbed a thousand dollars in dimes; that Fortes ran from the bank carrying the dimes like a football; and that Fortes left the area in a station wagon. Fortes later showed Ward a brown LTD station wagon parked in Hartford, Connecticut, which Fortes explained had been rented by a friend and driven down from Boston..
Other testimony of Ward further implicated the appellants in the robbery. Ward testified that on April 7, 1978, some two weeks after the robbery, Jemison emptied a car ashtray filled with dime wrappers into a storm drain at the end of the parking area in front of Ward’s apartment. The government later introduced fragments of green and white paper that had been recovered by FBI agent Richard Foster from a storm drain located on the side of the carport and driveway serving that apartment. Ward also testified that Jemison was asked by Beverly Brookshire why so little money was taken during the robbery. According to Ward, Jemison responded that her nervousness and the fact that she had to separate the “red money" explained the relatively small haul. Fortes later indicated that about $3,000 had been taken.
Besides the foregoing, the government presented certain additional evidence including weapons, masks, and other physical evidence seized from a stolen Ford LTD station wagon linked with Fortes and Ward. This evidence, as well as further testimony introduced against the appellants, is described at greater length in our discussion of the various issues raised on appeal.
The defense was based largely on alibi testimony given by Jemison, her mother, and her aunt. In addition to denying that she or Fortes had been present at or participated in the bank robbery, Jemison described her encounters with Anton Ward and her relationship with Fortes and Beverly Brookshire during the period from December 1977 to April 1978. Jemison said that Ward displayed various weapons in front of her in December 1977. And, she continued, Ward stole a blue bag from a sporting goods, shop sometime in early March of 1978; the next time she saw this bag was on March 29 when Ward took it, full of dimes, from his apartment to his car. Ward then exchanged a quantity of these dimes into currency, using the proceeds to take Jemison and Beverly Brookshire shopping and to dinner in Hartford. Jemison further contradicted Ward’s version of events by testifying that it was Brookshire, not she, who emptied the contents of the automobile ashtray in the vicinity of Ward’s Connecticut apartment. Jemison concluded her testimony by firmly denying that she had participated in the March 23 robbery. Fortes did not take the stand.
I.
Fortes challenges the district court’s denial of his motion to suppress as evidence certain items seized from a brown Ford LTD station wagon and a footlocker found in the rear part of that vehicle. The station wagon, which federal officials knew had been stolen from a rental agency, was. seized without a warrant from an apartment parking lot in Hartford, Connecticut by those officials on April 7, 1978. The vehicle and footlocker were searched pursuant to a warrant on April 10. Among the items recovered from the footlocker were a sawed-off Remington Model 870 12-gaug’e shotgun, two handguns, three black ski hoods, three plastic masks, two blue nylon bags, and a pair of size seven women’s track shoes. A small box containing a comb was also discovered in the glove compartment of the LTD. During the trial, the government introduced evidence that Fortes’ fingerprints had been found on that box and that the track shoes found in the footlocker fit Jemison. The government also introduced as evidence one of the blue nylon bags; this was identified by a bank teller as “the same type of bag” carried by one of the participants in the robbery. In addition, the government introduced into evidence the Remington shotgun. At trial, one witness, a bank teller, testified that this resembled the weapon held by the taller individual throughout the robbery. Another witness, a bank customer present during the holdup, first testified that the shotgun used during the incident “was a Remington Model 870, with a sawed-off barrel,” and expressed the opinion that the shotgun seized during the vehicle and footlocker search was “basically the same model.”
Fortes, in challenging the district court’s denial of his suppression motion, focuses on the search of the footlocker, contending that “the warrant application for the footlocker was defective as it failed to show a substantial basis for the conclusion that the items sought would be found inside the footlocker.” Upon reviewing the affidavit filed by Special Agent Richard Foster of the FBI in support of his application for the search warrant, we find little strength in this contention. The affidavit, framed largely in terms of the affiant’s personal observations, indicated among other things that the Ford LTD station wagon had been rented March 20, 1978 and reported stolen on April 7, nearly one week after it was due to be returned to the rental agency; that on April 6, 1978 the same vehicle was observed “being used... to ‘case’ the Cromwell Savings Bank, Cromwell, Connecticut”; and that on April 7 Fortes and Ward were observed driving the station wagon to Hartford, Connecticut where it was abandoned and later recovered and towed by federal officials to the Federal Building garage. The affidavit further stated that a reliable confidential informant had named Fortes as one of the participants in a February 1978 robbery of a Berlin, Connecticut bank. The affidavit also indicated that a “CB" radio identical to one previously stolen along with a 1977 Dodge Charger was “visible on the floor of the passenger side front” of the Ford LTD and that the same stolen Dodge Charger had been used as an escape vehicle in the February Berlin robbery. The affidavit stated that various listed items, including two handguns, a sawed-off pump action shotgun, ski masks, face masks and coveralls had been depicted in photographs taken by bank surveillance cameras during the Berlin robbery and another earlier Connecticut robbery described in the affidavit. The affidavit concluded with an expression of the affiant’s belief, based upon the above information, that the listed items and other incriminating evidence were presently being concealed in the Ford station wagon and the footlocker located in the back of that vehicle.
Prior to issuing the warrant the magistrate was thus presented with information that during the period immediately preceding its seizure the stolen Ford LTD had been used to “case” a bank and had been driven and abandoned by an individual reliably identified as having participated in a recent robbery of a Berlin, Connecticut savings bank. Further, the affidavit linked the Ford station wagon through physical evidence, the stolen CB radio, with another stolen vehicle that had been used as a means of escape in the Berlin robbery. The affidavit then went on to identify, in detail, paraphernalia used in both the Berlin robbery and another earlier Connecticut robbery. We believe that, considering the “type of crime, the nature of the [described] items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide [such] property,” United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970), the above information supplied the magistrate with reasonable cause to suspect that the robbery paraphernalia would be found somewhere in the stolen Ford station wagon. Cf. United States v. Samson, 533 F.2d 721, 723 (1st Cir.), cert. denied, 429 U.S. 845, 97 S.Ct. 126, 50 L.Ed.2d 116 (1976); United States v. Picariello, 568 F.2d 222, 227 (1st Cir. 1978). And there was no less reason to suspect that a locked footlocker stored in the rear of that stolen vehicle would provide a likely place in which those items used during past robberies might be found. A locked container of that type would be a logical place to conceal such highly incriminating objects. Clearly the magistrate had reasonable cause to believe “that the specific ‘things’ to be searched for and seized [were] located on the property to which entry [was] sought.” Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1977, 56 L.Ed.2d 525 (1978). We thus think the warrant was validly issued and affirm the district court’s denial of Fortes’ suppression motion.
II.
Jemison challenges the district court’s admission, against her, of certain statements made by Fortes on two occasions during the days following the robbery. These statements were introduced through the testimony of Anton Ward. Ward testified that Fortes and Jemison arrived in Connecticut on March 24, 1978, the day following the robbery. Ward recounted that while helping appellants unload their car, he noticed in the trunk a blue bag which was quite heavy. Following Fortes’ suggestion, Ward looked in the bag and observed rolls of dimes in green and white wrappers. Fortes, in response to Ward’s inquiries, purportedly stated that the bag contained “about $200.” At the time this testimony was received, the court excluded it as to Jemison, giving it effect only as to Fortes.
Ward continued by testifying about a conversation that he said took place the following day, March 25, in the living room of his apartment. Ward stated that both Fortes and Jemison were present during the conversation. Ward testified that at this time he asked appellants “if they did a bank robbery,” and that Fortes answered affirmatively, providing details of the robbery. Fortes’ recitation, according to Ward, contained a description of Jemison’s participation, including the information that she had taken the bank’s money while Fortes held a shotgun and that she had difficulty separating the “red money” from the “regular money.” Jemison objected repeatedly to the admission of Fortes’ statements against her. These objections were overruled. After Ward completed relating his version of Fortes’ description of the bank robbery, the government requested that Ward’s earlier testimony concerning the contents of the blue bag be admitted against Jemison. The request was granted.
We turn first to Jemison’s challenge to the admission against her of Ward’s testimony concerning the later March 25 conversation in which Fortes detailed his participation, with Jemison, in the robbery. This testimony was properly received against Jemison under Fed.R.Evid. 801(d)(2)(B), which allows the introduction of so-called adoptive admissions, including admissions by silence or acquiescence. See IV Wigmore § 1071 (Chadbourn rev. 1972). The general rule has been stated as follows:
“ ‘When a statement tending to incriminate one accused of committing a crime is made in his presence and hearing and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution against him, as evidence of his acquiescence in its truth’ * * * if made ‘under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth.’ ”
Arpan v. United States, 260 F.2d 649, 655 (8th Cir. 1958) (citations omitted). See Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895).
Prior to the admission of Ward’s testimony as to Fortes’ depiction of the robbery scenario, including his remarks implicating Jemison, the following ensued:
“Q. Directing your attention to the morning hours of [March 25], do you recall having a conversation, sir, with Mr. Fortes and Miss Jemison; yes or no?
A. Yes.
Q. Where did that conversation take place?
A. In the living room downstairs.
Q. And both Miss Jemison and Mr. Fortes were present?
A. Yes, sir.
Q. And at this time, sir, did you say anything to Mr. Fortes and Miss Jemison with respect to the dimes?
A. Yes, sir.
Q. What did you say?
A. I asked them if they did a bank robbery.
Q. Did one of them make a reply?
A. Yes, sir.
Q. Who was that?
A. Fortes.
Q. Was Miss Jemison present at the time he replied?
A. Yes, sir.
Q. What did he say?”
At this point Ward was allowed, over objection, to relate Fortes’ description of the robbery which included a description of Jemison’s participation therein. The government, at each new turn in the testimony, asked Ward whether Jemison had been present when Fortes made a particular remark detailing Jemison’s conduct during the robbery. Ward answered affirmatively each time. Despite these facts, Jemison argues that “there was not sufficient foundation laid for the Court to make a preliminary determination that [the] conversation was admissible against [her]... We do not agree. First, we have no difficulty in concluding that an inquiry of two persons as to whether they had “done a bank robbery,” followed by an affirmative response by one of them describing his participation with the other in the crime, is the type of exchange to which the silence of the unresponsive accomplice, assuming he is present and conscious of the conversation, “gives consent.” IV Wigmore § 1071, at 102 (Chadbourn rev. 1972). See Campbell v. United States, 269 F.2d 688 (1st Cir. 1959), vacated on other grounds, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428; 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501; United States v. Schroeder, 433 F.2d 846 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971). Further, sufficient facts were introduced preliminarily to show, by way of foundation, that Jemison heard the statements detailing her conduct in the robbery and comprehended them. See Campbell, supra at 690; United States v. Moore, 522 F.2d 1068, 1075-76 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976); Arpan v. United States, supra at 655. Ward testified several times that Jemison was present during the conversation and implied that he had directed his questions to both Jemison and Fortes, asking “if they did a bank robbery.” We thus do not have the situation which existed in cases cited by Jemison where no evidence was offered to show that the defendant against whom the statements were introduced had any relation to the conversation in issue, although he might have been somewhere present in the room in which the conversation took place. See Arpan, supra at 655-56; Moore, supra at 1076. We note also that Jemison failed to object to this line of questioning specifically on the grounds of insufficient foundation, see Fed. R.Evid. 103(a)(1); she likewise did not request that the government elicit fuller preliminary information; and on cross-examination of Ward, Jemison did not attempt to rebut the foundation laid by the government as to her presence at the time of the conversation or her ability to hear or understand Fortes’ incriminating comments. Cf. Arpan, supra at 655; Orser v. United States, 362 F.2d 580, 583-84 (5th Cir. 1966). In these circumstances, we find that Fortes’ inculpatory remarks, recounted by Ward, were properly admitted against Jemison. The ultimate weight given them was, of course, a matter for the jury. See Campbell, supra at 691. Cf. Arpan, supra at 655; Moore, supra at 1075.
We likewise find no error in the admission against Jemison of Ward’s earlier testimony concerning his conversation with Fortes about the contents of the blue bag. While admission of this testimony would scarcely be grounds for reversal even if erroneous, it was properly admitted under Fed.R.Evid. 801(d)(2)(E), which permits the admission against a party of the statements of a joint venturer made during the course of and in furtherance of that venture. See United States v. Hickey, 596 F.2d 1082, 1089 (1st Cir. 1979); 11 Moore’s Federal Practice § 801.01[7]. The district court, it will be recalled, at first admitted the testimony solely against Fortes. It was allowed against Jemison only after the court had heard Ward’s later recitation of Fortes’ description of Jemison’s joint participation in the robbery. This latter evidence furnished the foundation for a finding of joint enterprise required before Rule 801(d)(2)(E) could come into play. See United States v. Petrozziello, 548 F.2d 20 (1st Cir. 1977). Jemison contends, however, that “by the time Fortes spoke to Ward in Connecticut about the contents of the blue bag. any joint venture had ended.” Whether this was so depends upon whether the “criminal purposes of [the] conspiracy” had been attained. Grunewald v. United States, 353 U.S. 391, 401-02, 77 S.Ct. 963, 972, 1 L.Ed.2d 931 (1957); United States v. Hickey, supra at 1089. In the Hickey case, faced with a similar question, we said,
“Here, the robbers’ objective cannot be defined as the narrow one of robbing the Hancock Bank — that act was completed even before the robbers separated. Robbing the bank was merely the means to the central objective, which was to obtain cash illegally. See Atkins v. United States, 307 F.2d 937, 940 (9th Cir. 1962). Essential to this objective was the need to divide the money and to escape with it undetected. The district court could have believed that it was in furtherance of this that [the defendants] went directly to [the] apartment.”
Id. at 1090-91.
The evidence in the present case showed that Fortes and Jemison went to Ward’s apartment in Connecticut on the day following the robbery, where they took up residence, and stored much of the robbery paraphernalia and loot. Under these circumstances, Fortes’ statement to Ward— made upon arrival at the hideaway while Ward helped Fortes unload a bag filled with the stolen rolled dimes prior to their carrying it into the apartment — was in furtherance of a venture that was not yet complete. See Hickey, supra at 1090; McCormick on Evidence § 267, at 645 (2d ed. 1972).
Ward was cross-examined extensively by counsel for both Jemison and Fortes on a variety of matters including his conviction for conspiracy to commit bank robbery, his familiarity with weapons, including shotguns, his past ownership of approximately 21 firearms, various prior inconsistent statements, and the termination of his employment as a police officer. During the course of this cross-examination, Ward was asked by counsel for Jemison whether he had ever been involved in the sale of cocaine. The government objected, and at a bench conference Jemison’s attorney made an offer of proof in which he explained that he wished to introduce evidence of such conduct as a “prior bad act” impeaching Ward’s credibility. The district court refused to allow this line of questioning. Further along in cross-examination, counsel for Fortes questioned Ward concerning his former employment as a police officer and the fact that he had been fired from the department. Ward was asked whether he had told the truth to investigating officers concerning the incident which led to his firing. The government’s objection to this question was likewise sustained.
Fortes and Jemison contend that the district court’s evidentiary rulings unduly hampered their ability to effectively cross-examine Ward, a witness whose testimony on direct was central to the government’s case. They point to Fed.R.Evid. 608(b) in support of their position. That rule provides:
“(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.”
The district court’s discretion under this Rule is — while not unlimited, see Wiseman v. Reposa, 463 F.2d 226 (1st Cir. 1972) — very substantial. United States v. Nogueira, 585 F.2d 23 (1st Cir. 1978); see also Tigges v. Cataldo, 611 F.2d 936 (1st Cir. 1979). Rule 608(b) has been worded specifically to emphasize the discretionary power of the trial judge. 3 Weinstein’s Evidence, Weinstein and Berger 1608[05], at 608-23; Report on Rule 608 by the House Committee on the Judiciary.
In refusing to allow cross-examination concerning Ward’s possible involvement in the sale of cocaine, the district court observed that selling cocaine was not probative of truthfulness or untruthfulness; this necessary precondition to admissibility under Rule 608 having not been met, the court refused the proffered testimony. That ruling was plainly within the bounds of the court’s discretion. Whether and in what circumstances involvement in a drug transaction might ever be considered probative of a witness’ veracity is a matter we need not pursue.
The attempt to cross-examine Ward as to his truthfulness in responding to investigators probing the incident surrounding his discharge as a police officer stands on a somewhat different footing. A witness’ response to a question whether he told the truth on a previous occasion could well be probative of his character for truthfulness or untruthfulness. Cf. Tigges, supra, at 939 n.3. And, when a case turns to a large extent on the credibility of defendant’s accuser, broad cross-examination of that principal witness should be allowed. See Nogueira, supra at 26. Still, the district court is not bound to allow examination into every incident, no matter how remote in time and circumstance, that may possibly bear upon the witness’ veracity. Id. at 25. In reviewing the trial judge’s exercise of discretion, one factor to be considered is the extent to which the excluded question bears upon character traits that were otherwise sufficiently explored. The court need not permit unending excursions into each and every matter touching upon veracity if a reasonably complete picture has already been developed.
In the present case, the district court allowed extensive inquiry by the defense into Ward’s past conduct and statements insofar as these might bear upon his character for truthfulness. He was shown to have been presently serving a jail sentence for conspiracy to commit bank robbery, and the jury was presented with much else indicating his unreliable character and questionable trustworthiness. Allowing further inquiry into the matter in question would thus have added little to what was already evident. We accordingly find no abuse in the court’s refusal to permit the proposed cross-examination.
Fortes and Jemison next challenge the district court’s refusal, in two instances, to limit the scope of the government’s inquiry into certain of their activities during the period following the robbery. Basically, their contention is that by allowing these inquiries the government improperly presented evidence of unrelated criminal conduct to the jury and thus, in effect, put appellants’ bad character in issue contrary to Rule 404 of the Federal Rules of Evidence.
Appellants’ first challenge concerns the testimony of Special Agent Richard Foster of the FBI. Foster testified as to his observations of Fortes, Jemison, Ward and Brookshire during the early days of April 1978. Specifically, he recounted the activities of those individuals in order to lay a foundation linking appellants to the brown Ford LTD station wagon later seized and searched by federal officials. It will be recalled that several incriminating items were recovered from that vehicle. Appellants maintain that as “it is common knowledge that the FBI would not have placed the defendants under surveillance unless it believed these individuals were committing or about to commit a crime,” this testimony allowed the government to imply that the appellants were involved in some sort of criminal activity not the subject of the present trial. The district court, in rejecting a similar contention raised at trial, observed, “I don’t see how you can draw that conclusion, from [the evidence presented]. What triggered the F.B.I.’s involvement... we don’t know.” We are in agreement with the district court. The government did not question Foster in a manner which might have suggested that Fortes and Jemison were involved in any unrelated illegal activities. Nor did Agent Foster’s responses contain any suggestion that the appellants were placed under FBI surveillance because of their involvement in a criminal enterprise other than the one with which they were charged in the present case. The testimony given by Foster was relevant to show appellants’ connection with a vehicle from which robbery paraphernalia was recovered and also to corroborate certain testimony given earlier by Anton Ward. The government confined its inquiry within permissible bounds, and the trial court’s refusal to further limit that questioning was a proper exercise-of its discretion. See Feij.R.Evid. 402, 403.
Appellants similarly challenge the sweep of the prosecution’s cross-examination of Jemison, who took the stand after the defense had presented its chief alibi witnesses. Jemison, on direct examination, had repeated the substance of that alibi testimony, and then detailed her relationship with Fortes, Ward, and Beverly Brookshire during the period from December 1977 through early April 1978. Jemison recounted that Ward, while visiting her apartment, once displayed to her two pistols and “a lot of ammunition.” Jemison testified that Fortes was present at this time. In addition, Jemison testified that Ward had stolen from a ski shop the blue bag introduced by the government and identified by a bank teller as the same type used by a participant in the robbery. Again, Jemison recalled that Fortes had been present on this occasion. Jemison further testified that the next time she saw this blue bag was during the last week in March when Ward took it, full of rolled dimes, from his apartment; Jemison later accompanied Ward while he exchanged a quantity of these dimes for paper currency. In fact Jemison recounted that Ward used some of this currency to treat her and Beverly Brookshire to shopping, dinner and drinks. Jemison continued her testimony by recalling various events occurring during the first week of April 1978 — for example, that she, Fortes, Ward and Brookshire “went to the movies” one night. More importantly, Jemison also testified that on April 6 Ward placed the blue bag in a larger, nylon bag and that on April 7, Ward transferred that bag into a footlocker located in the rear of a brown Ford LTD station wagon. Jemison testified that she and Fortes were both present when this transfer took place.
On cross-examination, the government delved more fully into some of the events described by Jemison during her direct testimony. In answer to the government’s questions, Jemison explained that during a January 1978 visit to Ward’s apartment he showed her, with Fortes present, three shotguns, a bulletproof vest and some pistols. Jemison recognized one of these pistols as the same handgun earlier displayed during Ward’s visit to her apartment. Jemison also further detailed Ward’s theft of the blue bag from the ski shop, and the frequent contact she and Fortes had with Ward during the period in question. On one occasion, Jemison testified, she allowed Ward the use of her apartment for two weeks. Jemison also testified that on March 25, 1978 (two days following the robbery) she and Fortes moved to Connecticut, and that they planned to stay with Ward at his Middletown apartment indefinitely. Jemison further recalled that at the end of March, Fortes made a trip from Middletown back to Boston in order, among other reasons, “to pick up some marihuana.”
The government, continuing its cross-examination, questioned Jemison in detail as to her activities on April 5,1978, specifically probing her knowledge concerning the retrieval of a station wagon from a parking lot in West Hartford, Connecticut. Jemison stated that prior to that incident she, Fortes, Brookshire and Ward had first proceeded to a different parking lot. Jemison was asked to recount what had transpired there. Counsel for both Fortes and Jemi-son objected, and at a bench conference Jemison’s attorney stated, “I believe. there is going to be testimony about a car being stolen in the second parking lot..” After hearing argument, the court determined that the government could continue its inquiry, observing, “[Wje’ve covered, on direct examination, the comings and goings, and what she did, what she was doing, and all the rest of it, during an extended period in December of ’77 through April, and I think the government is entitled to pursue what she was doing in the company of these people, what their relationships were. If in the course of it, they stole the car, it’s too bad.”
The government then questioned Jemison as follows:
“Q. What was your purpose in going to Hartford?
A. Because Anton wanted to steal a car. Q. Who wanted to steal a car?
A. Anton Ward.
Q. You knew that before you left?
A. Yes, sir, I did.”
After this Jemison detailed the car theft, describing how Ward, carrying what was “most likely” a tool set, and Fortes approached the vehicle, entered it, started it and drove away.
Jemison and Fortes contend that by allowing this testimony the district court committed prejudicial error. Appellants assert that the introduction of evidence of the car theft put their character in issue contrary to the guidelines of Fed.R.Evid. 404 and that whatever probative value the evidence might have had was far outweighed by its prejudicial effect.
We begin by considering the propriety of admitting this testimony against Jemison and stating the familiar proposition that evidence otherwise relevant is not rendered inadmissible merely because its tendency is to prove the commission of some other crime. United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975). “The test of admissibility requires balancing the prejudicial potential of the evidence against its probative value, and that task is committed primarily to the trial court.” Id. Here, we find no abuse. Jemison on direct examination testified extensively as to her activities and relationships with Fortes, Ward and Brook-shire during December 1977 to April 1978. She recalled specifically various events occurring during the first week of April, a period during which dimes were exchanged and robbery implements transported, the same period in which the car theft occurred. The import of her testimony was that she had been a bystander of sorts, while Ward, by displaying weapons, exchanging dimes and concealing and transferring items possibly used in the robbery, was the active participant. Indeed, drawing in part upon this picture, it was the theory of the defense that Anton Ward (with an accomplice) and not defendants had robbed the bank.
To deny the government the leeway to fully develop the true nature of Jemison’s relationships and participation would be to deprive it of the opportunity to use cross-examination in its most traditional role. See V Wigmore § 1368, at 36-37 (Chadbourn rev. 1974). Having raised as a subject the events of the first half of 1978 and having described her own part in those events in rather passive terms, Jemison opened the door to a full and not just a selective discussion of these matters. Cf. United States v. Helina, 549 F.2d 713, 719 (9th Cir. 1977); United States v. Fairchild, 505 F.2d 1378,1383 (
Question: What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_counsel
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES of America, Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY and the Texas and Pacific Railway Company, Appellants.
No. 76-1653.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 17, 1977.
Decided April 20, 1977.
R. W. Yost, St. Louis, Mo., for appellants; Mark M. Hennelly, St. Louis, Mo., on brief.
Paul M. Tschirhart, Atty., U. S. Dept, of Justice, Washington, D. C., for appellee; Rex E. Lee, Asst. Atty. Gen., Barry A. Short, U. S. Atty., John H. Broadley, Washington, D. C., on brief.
Before CLARK, Associate Justice, Retired, GIBSON, Chief Judge, and HEA-NEY, Circuit Judge.
TOM C. CLARK, Associate Justice, Retired, Supreme Court of the United States, sitting by designation.
HEANEY, Circuit Judge.
Congressional concern over the rapid increase in railroad accidents and the damage threatened by the release of volatile or explosive, substances during such incidents lead to the enactment of the Federal Railroad Safety Act of 1970. 1970 U.S.Code Cong, and Admin.News, pp. 4104, 4105. The authority of the Secretary of Transportation or his agents to inspect and evaluate railroad track and roadbeds is an integral feature of the legislative scheme. See 45 U.S.C. § 437(a). It enables the Secretary to detect accident-causing hazards and to use this information to issue appropriate maintenance orders or safety-related rules and regulations. To carry out its inspection authority, the Administrator of the Federal Railway Administration (FRA) developed a track measurement program which utilizes two test cars to measure track sections and records all detected imperfections. Since April, 1975, the FRA has inspected thousands of miles of track under the measurement program. All railroads previously inspected have supplied train crews to operate the two test cars and assumed liability for their negligence.
On March 19, 1976, Missouri Pacific Railroad Company (MoPac) was informed by letter that the FRA planned to inspect MoPac’s tracks under the measurement program. MoPac requested a meeting with FRA officials to discuss the nature and terms of the inspection. At this meeting, the parties were unable to resolve differences over the risk of liability for accidents arising out of the negligence of crew members. On April 15,1976, MoPac advised the FRA that the inspection could proceed if the FRA supplied its own crew or provided insurance coverage for crew members provided by MoPac. Upon receipt of this response, the government sought an injunction against MoPac and a declaratory judgment that the FRA need not comply with the stated conditions. The District Court concluded that the FRA could require MoPac to provide the crew to operate the test cars and to assume liability for accidents arising out of their negligence. United States v. Missouri Pac. R. Co., 417 F.Supp. 312 (E.D.Mo.1976).
MoPac’s appeal of the District Court’s decision poses two issues: (1) whether in the performance of its statutorily mandated inspection responsibilities, the FRA is authorized to compel regulated railroads to bear the risk stated above, and (2) whether in adopting this cost-sharing practice, the FRA was required to follow a formal hearing and rule-making procedure.
Section 431(a) of the Act empowers the Secretary of Transportation to prescribe appropriate rules, regulations and standards for all areas of railroad safety, 45 U.S.C. § 431(a)(1), and to conduct necessary research, testing and evaluation. 45 U.S.C. § 431(a)(2). The statute is explicit in requiring that hearings precede all rule-making or standard development authorized by § 431(a)(1), 45 U.S.C. § 431(b), but no similar requirement attends the exercise of investigatory powers. Section 432 dispenses with the hearing requirement and enables a more immediate response to emergency situations if inspection tests reveal an unsafe condition which threatens death or injury to persons. 45 U.S.C. § 432. The Secretary may prohibit further use of a particular facility based solely on the results of an inspection program. Affected parties may request subsequent review of the Secretary’s order in an adjudicatory proceeding. Id. Section 437(a) vests the Secretary with broad investigatory powers to perform the fact-finding needed for rule-making under § 431(a) and the detection of emergency hazards under § 432. 45 U.S.C. § 437(a). Under § 439(a), the Secretary is empowered to seek injunctive relief to restrain violations of the Act. 45 U.S.C. § 439(a).
It seems clear that the Act’s principal goals cannot be accomplished without an effective inspecting and fact-finding program. A House Report on the bill reveals Congress’s particular concern over the rash of recent accidents involving volatile and explosive substances. 1970 U.S.Code Cong, and Admin.News, pp. 4104, 4105, 4107. Prevention and cure of such accidents, however, is possible only through the implementation of an inspection program aimed at advance detection of potential hazards. In this way, the prevention of similar disasters is dependent on the Secretary’s inspection authority. Similarly, the Secretary’s plenary authority to promulgate rules and standards in all areas of railroad safety cannot be effectively performed without adequate information developed from testing and evaluation.
Section 437(c) provides:
To carry out the Secretary’s * * * responsibilities under this subchapter, * * * agents of the Secretary * * are authorized to enter upon, inspect, and examine rail facilities, equipment, rolling stock, operations, and pertinent records at reasonable times and in a reasonable manner. (Emphasis added.)
45 U.S.C. § 437(c).
Since the goals of the Act are remedial in nature, we must construe the statute liberally. 45 U.S.C. § 421. Lily v. Grand Trunk Western Railroad Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1943); United States v. California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567 (1936). In light of Congress’s clear intent to grant plenary authority in this area and in light of the critical role inspection programs play in the accomplishment of this goal, we hold that the underlined passage countenances reasonable cooperation by inspected railroads. Thus, we must determine whether it is reasonable for the FRA to require that MoPac provide crew members for the test cars and assume liability for their negligence during the inspection.
At the outset, we should note that both the public and the railroads benefit substantially from the FRA’s inspection program. As the District Court concluded, the anticipated results “include not only safety considerations but also ‘. . . railway maintenance, improv[ed] ride quality for passengers and freight * * * ’.” United States v. Missouri Pac. R. Co., supra at 417 F.Supp. 313-314. MoPac’s contentions regarding cost must, in our view, be considered in light of the substantial benefit they stand to gain from cooperating in the program.
Even though the inspected railroad derives considerable benefit from the program, the FRA assumes virtually every identifiable cost of operation including the following:
(1) Salary and wages for the train and engine crews. This cost includes directly related deadheading, lodging, and the proportional payroll additive expenses for retirement, insurance and vacation provisions relating to those wages.
(2) Supplies furnished to FRA such as fuel, water, electricity and other similar supplies.
(3) Costs arising from carrier actions to service or repair the equipment.
(4) Costs relating to security measures necessary to protect the equipment.
(5) Costs relating to the nonoperation movement of the inspection vehicles, including terminal usage, interchange fees, switching charges and deadheading movement at the published rates.
United States v. Missouri Pac. R. Co., supra at 417 F.Supp. 313-314.
For the most part, these are reimbursement-type costs; that is, they are paid to make the railroad “whole” for most expenses incurred while operating the inspection program. The only costs MoPac must bear are those caused by the negligence of its crew members. There are several reasons why we feel it is not unreasonable for MoPac to bear this expense. First, the likelihood of an accident payout is minimal. The test vehicle proceeds at a normal rate of speed, is only two cars in length, and requires few crew members. The testing procedure is not a hazardous one and involves no new risks for MoPac crew members. Second, MoPac’s past accident payout record suggests that their risk of liability is insubstantial. MoPac self-insures for liabilities under $5 million. Its accident payouts approximate 1.0% of its gross operating revenue. MoPac estimates that it would cost them $87,000 to provide the testing service as a common carrier. Of this $87,000 figure, less than $1,000 would be attributable to accident payouts. Finally, safe performance of the testing operation is probably best insured by imposing liability on MoPac for the negligence of its crew members. The risk of loss may help insure careful selection and proper supervision of the crew members.
MoPac argues that its insurance-related expenditures would be unnecessary if the FRA supplied its own crew to operate the test vehicle. This was an alternative that the FRA could have adopted, but its failure to do so was not unreasonable. Safety problems might arise if FRA crews operated the test cars over track unfamiliar to them. Moreover, it is conceded that if FRA supplied a crew, the railroad would have to provide an experienced engineer and conductor to give instructions; and if they gave negligent advice, MoPac might well incur liability for injuries proximately caused.
We next consider whether the practice of requiring crew members from inspected railroads should have been adopted through the promulgation of a rule after opportunity for hearing. In essence, MoPac contends that the term “reasonable” in § 437(c) is so broad that the Administrator ought to have better defined its scope through the rule-making process. We agree that the Administrator might have proceeded in this manner and believe he should have if he intended the railroads to bear a significant portion of the costs. However, the Administrator decided to give a very narrow meaning to the term “reasonable” and to have the government assume virtually all costs of the testing procedure. Also, legislative history reflects Congress’s concern that inspection commence as soon as possible. Under these circumstances, we do not believe formal rule-making was necessary. See K. Davis, Discretionary Justice 52 (1969).
For these reasons, we affirm the decision of the District Court.
. The Secretary has delegated to the Administrator of the Federal Railway Administration the authority to carry out the functions vested in him by the Federal Railroad Safety Act of 1970. 49 C.F.R. § 1.49(n). When we refer to the powers entrusted to the Secretary under the Act, it should be understood that the FRA is now performing them as the Secretary’s agent.
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
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.
UNITED STATES of America, Appellee, v. Vincent SCHWENOHA and Nathan Suess, Appellants.
No. 71, Docket 31240.
United States Court of Appeals Second Circuit.
Argued Sept. 25, 1967.
Decided Sept. 28, 1967.
Frederick F. Greenman, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, Robert G. Morvillo, Pierre N. Leval, Asst. U. S. Attys., of counsel), for appellee.
Samuel Rowe, New York City, for appellants.
Before MOORE, SMITH and KAUFMAN, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
This appeal reveals a typical stock fraud upon the public which the Securities Act of 1933, 15 U.S.C. § 77a et seq., was designed to prevent. Vincent Schwenoha purchased in 1956 all the outstanding stock of the Belmont Divide Mining Corporation, a paper corporation that had ceased doing business in 1924. He and others devised a plan to sell this worthless stock to the public without registering it with the Securities and Exchange Commission. The corporation’s name was changed to Belmont Oil Corporation, certain oil leases of unspecified value were given to the corporation to create the appearance of assets, the stock was split ten for one to create more shares to sell to the public and placed in the names of nominees to conceal the fact of control by a handful of conspirators. Nathan Suess then joined the conspiracy and assisted in finding brokers who would sell the worthless stock to the naive and trusting public. Calling himself the public relations man for Belmont Oil, Suess met with co-defendants Edward Cantor and Michael Canter at the office of their brokerage firm, Peerless-New York, Inc., and arranged for them to maintain a market for Belmont stock and also to sell the stock to the public. These and other brokers sold Belmont to the public for about one dollar per share by typical boiler-room methods. Eight co-defendants pleaded guilty; appellants were convicted by a jury of conspiracy and also found guilty of causing unregistered Belmont stock to be mailed on July 14, August 6, and October 2, 1959 for the purposes of sale and delivery after sale.
Appellants’ main contention is that the stock was exempt from the registration requirements of the Securities Act because it was issued originally in 1919, long before the passage of the Act in 1933. They rely on section 3(a) (1) of the Act, 15 U.S.C. § 77c(a) (1), which exempts from registration “any security which, prior to or within sixty days after May 27, 1933, has been sold or disposed of by the issuer or bona fide offered to the public, * * * ” But, their dependence on this argument ignores the language of the remaining portion of that sentence, which states, “but this exemption shall not apply to any new offering of any such security by an issuer or underwriter subsequent to such sixty days * * * ” It is undisputed that the sale of Belmont stock to the public was a new offering, and there is little question that appellants were issuers or underwriters. See 15 U.S.C. § 77b(ll); Securities and Exchange Commission v. Culpepper, 270 F.2d 241 (2d Cir. 1959). The evidence is overwhelming that they and others acted together to control Belmont Oil thoroughly and completely, and that they knew the stock they sold to various brokers would be resold to the public; in truth, that was their ultimate goal.
Moreover, appellants urge that Judge Palmieri committed reversible error by not charging the jury with respect to the applicable five-year statute of limitations. This claim is wholly without merit because it is undisputed that the mailings for which appellants were convicted occurred between July 14 and October 2, 1959. Accordingly, the acts occurred within five years of the filing of the indictment on July 14, 1964. Burnet v. Willingham Loan & Trust Co., 282 U.S. 437, 51 S.Ct. 185, 75 L.Ed. 448 (1931). Appellants call to our attention, however, that they individually did not commit acts within the statutory period. In this connection, Schwenoha urges that he testified that he withdrew from the conspiracy in March 1959. But as we noted in United States v. Borelli, 336 F.2d 376, 388 (2d Cir. 1964), cert. denied sub nom. Cinquegrano v. United States, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), “mere cessation of activity is not enough to start the running of the statute; there must be affirmative action, either the making of a clean breast to the authorities, * * * or communication of the abandonment in a manner reasonably calculated to reach co-conspirators.” The record is clear that the alleged withdrawal does not come close to meeting this test; in any event, no exception was taken to the failure to charge on the issue of withdrawal. See F.R.Crim.P. 30; United States v. Kahaner, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S. Ct. 74, 11 L.Ed.2d 65 (1963). The evidence of withdrawal being insufficient to raise a question for the jury, a fortiori appellants’ motion for acquittal on this ground was properly denied.
We have examined appellants’ other claims and find them to be without merit. The judgment is affirmed.
. A mistrial was declared as to one co-defendant; five corporate co-defendants were tried separately.
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_origin
|
E
|
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.
David MACKEY, et al., Plaintiffs-Appellants, v. JUDY’S FOODS, INC., et al., Defendants-Appellees.
No. 87-5391.
United States Court of Appeals, Sixth Circuit.
Argued July 29, 1988.
Decided Feb. 10, 1989.
Thomas P. Malone (argued), Minneapolis, Minn., Raymond G. Prince, Nashville, Tenn., Alan Mark Turk, for plaintiffs-appellants.
Tyree B. Harris, Nashville, Tenn., Mark H. Lynch (argued), Covington & Burling, Washington, D.C., for defendants-appel-lees.
Before: MILBURN and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.
BOGGS, Circuit Judge.
Mackey and other franchisees sued franchisors, Judy’s Foods and its parent companies, claiming fraud, breach of contract, violation of the Tennessee Consumer Protection Act and intentional infliction of emotional distress. The district court granted summary judgment for the franchisors based on its determination that the statutes of limitations and a validly executed release signed by the franchisees and Judy’s Foods barred all of the claims brought by the franchisees. 654 F.Supp. 1465 (M.D.Tenn.1987).
We agree with the district court that all of the franchisees’ claims are barred by either the applicable statute of limitations or the release. Therefore, we affirm the decision granting summary judgment to the franchisors.
I
Judy’s Foods, originally formed by General Care Corporation and later sold to the Hospital Corporation of America, was a franchise operation selling fast food. When it first began selling franchises, Judy’s Foods was illegally appropriating the format of Wendy’s International. In 1979, the franchisees in this action signed a Prospective Licensing Agreement, creating the option for them to own and operate two restaurants in Alabama. The contract specified that Tennessee law would apply to its interpretation. At this time, Judy’s Foods knew that it would have to change its format to avoid litigation by Wendy’s, but did not tell the franchisees about this or any other problems relating to the operation of the franchises.
The franchisees built their restaurants according to the original format, unaware that they would have to change that format shortly thereafter. When the franchisees finally learned of the suit which was ultimately filed by Wendy’s, the franchisors told them that the suit was without merit. The franchisors gave the franchisees $12,-000 to change the format of the two restaurants, but denied that the change was related to problems with Wendy’s.
Dyer, one of the franchisees, began contacting the franchisors with complaints in June 1979, alleging that Judy’s Foods was not living up to its agreement. The franchisees claim to have relied on promises in the licensing agreement that the franchisors would open over 500 restaurants nationwide, and would advertise nationally. However, in January 1980, the franchisors suspended the offer and sale of franchises.
In 1980, there were two meetings of franchisees. Dyer attended both of those meetings. He claims that there was no mention of litigation at either meeting, but his notes from the first meeting include the phrase “legal action,” and a legal committee was established at this meeting. Dyer was not on the legal committee, but did chair a committee which included a plaintiff in another suit against the franchisors. In addition, attorneys who would later represent other franchisees in their suits against the franchisors were also present at this first meeting.
The second meeting was held in November 1980, after other franchisees had filed suits against the franchisors in May, August and September of 1980. The plaintiffs in those suits, and their attorneys, were present at this meeting. Again, Dyer claims that there was no mention of litigation at this meeting.
On May 20, 1981, Mr. Grammer, a franchisee and plaintiff in one of the other suits against the franchisors, sent a letter and questionnaire to all franchisees asking for help with his suit and suggesting that other franchisees initiate their own suits. However, the franchisees claim that this letter was followed by a letter from the franchisors alleging that Grammer’s suit was “unfounded.” The franchisees contend that they believed the franchisors rather than Grammer, and they thus thought Grammer’s suit was baseless.
On November 9, 1981, the franchisees and Judy’s Foods, but not Judy’s Foods’ parent corporations, General Care Corporation and Hospital Corporation of America, signed a termination and cross-release agreement. An employee of the franchisors explained that the document was like a divorce, and also informed the franchisees that there were other suits pending against Judy’s Foods at the time. Judy’s Foods paid the franchisees $20,000 in consideration for signing the release and the franchisees paid Judy’s Foods $2,900 in royalties and equipment costs which were in arrears.
Almost a year later, the jury in one of the other suits against the franchisors awarded a large sum to the franchisees. Other large awards followed in the other suits. Dyer’s brother sent him a newspaper clipping reporting one of the verdicts. This is when Dyer claims he first knew of the existence of the franchisees’ cause of action against the franchisors.
Both a magistrate and the district court found that the franchisees had actual notice of the existence of their claims by the first meeting of the franchisees in November 1980. Thus, their claims accrued at that time. The court held that various statutes of limitations barred all claims except the contract claim. The district court, unlike the magistrate, applied Alabama’s substantive contract law to the interpretation of the release. Because Alabama law requires the tendering back of consideration (which the franchisees failed to do) before one can challenge the validity of a release, the court ruled that the release barred the remaining contract claim.
II
Summary judgment is appropriate when the moving party can show that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
In deciding what substantive law applies, one must first look to the forum state’s choice of law statute. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975). However, we must apply the procedural law, including statutes of limitations, of the forum state, Tennessee. Whitfield v. City of Knoxville, 756 F.2d 455, 461 (6th Cir.1985). Clearly, Tennessee law governs the claim under the Tennessee Consumer Protection Act. Tenn.Code Ann. § 47-18-101 et seq. (1980). We must then determine, by reference to the Tennessee choice of laws statutes, what law applies to the tort claims, the contract claim, and the release.
Tennessee choice of law rules indicate that the law of the state in which the tort claim arises controls. Winters v. Maxey, 481 S.W.2d 755 (Tenn.1972); Parsons v. American Trust & Banking Co., 168 Tenn. 49, 73 S.W.2d 698 (1934). Thus, Alabama law provides the substantive law for resolution of the plaintiffs’ tort claims.
As regards the contract claims, under Tennessee law, the validity of a contract and the substantive rights of the parties to the contract are governed by the law of the state contemplated by the parties; in the absence of evidence to the contrary, the parties are presumed to have intended to contract pursuant to the laws of the state in which the contract was entered into. Boatland, Inc. v. Brunswick Corp., 558 F.2d 818, 821 (6th Cir.1977). Here, the parties entered into the contract in Tennessee, and the licensing agreement provided that Tennessee law would govern any disputes arising from the contract. Thus, the contract claim must be analyzed under Tennessee law.
A release is treated differently from other contracts for choice of laws purposes when considering the effect of the release on tort claims involving nonparties to the release. State ex rel. Neff v. Cotton Belt Insurance Co., Inc., No. 87-101-11, slip op. (Tenn.Ct.App., December 2, 1987) [1987 WL 28386]; Restatement, Conflict of Laws § 389; Wharton, Conflicts of Laws (3rd ed.) § 475(b); 76 C.J.S. Release § 39; Western Newspaper Union v. Woodward, 133 F.Supp. 17 (W.D.Mo.1955). However, when the effect of the release on the contract claims between the parties to the release is considered, it is to'be treated as a standard contract. Restatement (2d) of Conflicts of Laws, § 170, Comment b. Thus, just as Tennessee law applies to the licensing agreement, so too does Tennessee law apply to the effect of the release on the contract claim. Neff, slip. op. No. 87-101-11 (Tenn.Ct.App., December 2, 1987).
Thus, the tort claims are governed by Alabama substantive law; the contract claim is governed by Tennessee substantive law; and the release, as it affects the parties to the release, is governed by Tennessee substantive law, also. Tennessee statutes of limitations apply to all claims in that those statutes are procedural.
Ill
Before turning to an analysis of how the various statutes of limitations affect the plaintiffs’ claims, we must first determine when those claims accrued. A claim accrues when the plaintiffs discover their injury or “through the exercise of reasonable care and diligence [it] should have been discovered.” McCroskey v. Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn.1975). Both the magistrate and the trial judge found as fact that the plaintiffs knew or should have known, through the exercise of reasonable diligence, of their injury and its source by November 4, 1980, three years and two months before they filed suit. We agree. Plaintiff Dyer complained to Judy’s Foods on June 19, 1979 in a letter. The plaintiffs in the other suits had enough information to file their suits in May, August, and September 1980. All of those plaintiffs were present at the February 1980 meeting, and one of them was on the committee that Dyer chaired. Plaintiff Dyer’s own notes from that meeting contain the phrase “legal action.” In addition, the plaintiffs were aware that General Care Corp. had sold Judy’s Foods to the Hospital Corporation of America by November 9,1979. Any one of these facts taken alone might not have alerted the plaintiffs to the defendants’ questionable conduct; however, taken together, with the use of reasonable diligence they should have alerted the plaintiffs to the existence of their causes of action. Further, even when, as here, plaintiffs argue that a statute of limitations should be tolled for equitable reasons by the fraudulent concealment of the causes of action, the statute is tolled “only during the period when the plaintiff has no knowledge that a wrong has occurred, and, as a reasonable person is not put on inquiry.” Security Bank & Trust Co. v. Fabricating, Inc., 673 S.W.2d 860, 865 (Tenn.1983) (citation omitted). Because we agree with the district judge that no reasonable juror could find that the plaintiffs were not put on notice by November 1980 of their claims against the defendants, we must agree with the trial judge that the claims accrued no later than that date.
A
In that the Tennessee Consumer Protection Act claim is governed by the Act’s one-year statute of limitations, Tenn.Code Ann. § 47-18-110, the plaintiffs’ claims under that statute obviously.are time-barred. We must determine the effects of the applicable statutes of limitations on the other claims raised by the plaintiffs.
B
In Tennessee, the appropriate statute of limitations is determined by the type of injuries claimed and the damages sought. The gravamen of most of the tort claims sounds in fraud. The appropriate statute of limitations in fraud actions is three years. Tenn.Code Ann. § 28-3-105. The claim for intentional infliction of emotional distress is most closely analogous to an action for injury to the person, and thus the one-year statue of limitations applies. Tenn.Code Ann. § 28-3-204. Because we agree with the district court that the claims accrued no later than November 1980, and because this suit was filed three years and two months after that time, we agree with the district judge that all of the tort claims are barred by the applicable statute of limitations.
IV
The only remaining claim is the claim for breach of contract. That claim is only against Judy’s, Inc., and not the other defendants. Tennessee’s statute of limitations for contract claims is six years. Tenn.Code Ann. § 28-3-109. Thus, this claim is not time-barred. However, because this claim involves only the parties who signed the release, and because we agree with the district judge that the release remains in full effect, we affirm the holding of the district court that the release barred the claim for breach of contract.
Both Tennessee and Alabama law require the tender back of the consideration for the release within a reasonable time after discovering the alleged fraud if a party wishes to rescind and repudiate the release. Boles v. Blackstock, 484 So.2d 1077 (Ala.1986) (citing Jehle-Slauson Construction Co. v. Hood-Rich Architects and Consulting Engineers, 435 So.2d 716, 719 (Ala.1983)) and Edmondson v. Dressman, 469 So.2d 571 (Ala.1985); Cordell v. Sky Rides of America, Inc., 404 S.W.2d 488, 489 (Tenn.1966). The district judge found that the franchisees had not even attempted to return the consideration they received for signing the release. The franchisees do not contest this finding. Thus, the franchisees cannot challenge the validity of the release; the release remains in full effect.
The terms of the release are very clear. It released Judy’s Foods from “all claims for damages arising out of any agreement with Judy’s.” Dyer testified in his deposition that he understood that he would not be able to sue Judy’s once he signed the release. It is clear that the franchisees knew what the release said as well as the consequences of signing it. Since it remains in full effect, it bars the franchisees’ contract claims. Thus, although we hold that Tennessee law applies to this claim, under either Alabama or Tennessee law, the result would be the same: the release bars the breach of contract claim.
V
Thus, we find that the trial judge was correct in holding that the relevant statutes of limitations bar all claims except the breach of contract claim. Further, we agree that the release bars the breach of contract claim. Thus, all of the claims alleged by the franchisees are barred by either the applicable statute of limitations or the release. The judgment of the district court is AFFIRMED.
. The franchisees claim that the franchisors did not raise this claim before this appeal, and, thus, they are barred from raising it here. They are mistaken. In the franchisors' answer to the original complaint in this action, the franchisees’ Twelfth Defense states: "Any and all claims made by plaintiffs have been discharged by appropriate releases.”
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_casedisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
BARTKUS v. ILLINOIS.
No. 39.
Argued November 19, 1957.
Decided January 6, 1958.
Walter T. Fisher, acting under appointment by the Court, 352 U. S. 958, argued the cause and filed a brief for petitioner.
William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were Latham Castle, Attorney General, and Theodore G. Maher as, Assistant Attorney General.
Per Curiam.
The judgment is affirmed by an equally divided Court.
Mr. Justice Brennan took no part in the consideration or decision of this case.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
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.
Peggy GOLDMAN-FRANKIE, et al., Plaintiffs-Appellees, v. Richard AUSTIN, et al., Defendants-Appellants.
No. 82-1747.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 25, 1983.
Decided Feb. 15, 1984.
Frank J. Kelley, Atty. Gen. of Mich., Michael Moquin, Asst. Atty. Gen., argued, Lansing, Mich., for defendants-appellants.
George Washington, Donald B. Green-spon, Detroit, Mich., argued, for plaintiffs-appellees.
Before JONES and KRUPANSKY, Circuit Judges, and SPIEGEL, District Judge.
Hon. S. Arthur Spiegel, United States District Judge for the Southern District of Ohio, sitting by designation.
KRUPANSKY, Circuit Judge.
This is an appeal from an order of the District Court for the Eastern District of Michigan granting the motion of plaintiffs-appellees for summary judgment and ordering that the name of plaintiff-appellee Peggy Goldman-Frankie appear on the November 2, 1982 ballot as an independent candidate for a seat on the Michigan State Board of Education.
The underlying facts to this controversy are not in dispute. Goldman-Frankie was intent upon becoming an independent candidate for a seat on the Michigan Board of Education in the 1982 election. There were two major obstacles to this endeavor. First, Michigan election laws incorporate no procedure by which an independent candidate may gain access to the ballot although M.C.L.A. § 168.685(1) provides that a “new political party” may obtain ballot access by filing a petition bearing signatures equal to 1% of the number of votes received by the successful candidate for secretary of state at the last election for that office.
The second impediment to Goldman-Frankie’s candidacy was the Mich. Const, of 1963, Art. VIII § 3, which reads in pertinent part:
The state board of education shall consist of eight members who shall be nominated by party conventions and elected at large for terms of eight years as prescribed by law. (emphasis added).
Goldman-Frankie was not a candidate of a qualifying party under § 168.685(1), nor was she nominated by a party convention. Nevertheless, on May 26, 1982, Goldman-Frankie filed a “Declaration of Candidacy” with defendant Richard A. Austin, the Secretary of State of Michigan. Goldman-Frankie was informed by members of the State Board of Canvassers that her name could not be placed on the ballot because state law did not include a procedure for placement of independent candidates on the ballot for the Michigan State Board of Education.
On July 16, 1982, Goldman-Frankie and two persons who declared their intention to vote for her filed a complaint in the United States District Court for the Eastern District of Michigan seeking preliminary and permanent injunctive relief. The complaint named Austin and the members of the State Board of Canvassers as defendants. On August 20, 1982, after expediting review of the merits and entertaining oral argument by the parties, the trial court granted plaintiffs’ motion for summary judgment and ordered the defendants to place Goldman-Frankie’s name on the November 2,1982 ballot. Defendants appealed.
Initially, this Court observes that although the election has been conducted and the vote duly certified, the action is within the purview of the “capable of repetition yet evading review” doctrine. See Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1282, n. 8, 39 L.Ed.2d 714 (1974). Accord: Anderson v. Celebrezze, -- U.S. --, --, 103 S.Ct. 1564, 1567, n. 3, 75 L.Ed.2d 547 (1983).
Counsel for appellants conceded at oral argument that the only procedure available to independent candidates to have their names placed upon the ballot is by court order. The plaintiffs charge that the absence of a reasonable means of access to the ballot violates the Equal Protection Clause.
Plaintiffs’ charge poses no new issue of constitutional law. First, it is settled that restrictions on access to the ballot impinge on the fundamental right to associate for the advancement of political beliefs and the fundamental right to vote. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). Pursuant to the fundamental rights strand of equal protection analysis, a State must prove that its limitation “is necessary to serve a compelling interest.” Illinois State Board of Elections v. Socialist Workers Party, supra, 440 U.S. at 184, 99 S.Ct. at 990; American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1974); Williams v. Rhodes, supra, 393 U.S. at 31, 89 S.Ct. at 10. Cf. Anderson v. Celebrezze, supra,-U.S. at --, 103 S.Ct. at 1569, n. 7; Clements v. Fashing, 457 U.S. 957, 962-65, 102 S.Ct. 2836, 2843-45, 73 L.Ed.2d 508 (1982).
Secondly, the Supreme Court has expressly recognized that an independent candidate must be afforded a reasonable opportunity to obtain a ballot position and that the State cannot establish, as a condition precedent to the position, the membership in or formation of a political party. Storer v. Brown, supra. In Storer the State argued that restrictions on independent candidates were inconsequential because the State had provided a valid procedure for newly organized political parties to obtain ballot position. The Supreme Court soundly rejected the argument:
The political party and the independent candidate approaches to political activity are entirely different and neither is a satisfactory substitute for the other. A new party organization contemplates a statewide, ongoing organization with distinctive political character. Its goal is typically to gain control of the machinery of state government by electing its candidates to public office. From the standpoint of a potential supporter, affiliation with the new party would mean giving up his ties with another party or sacrificing his own independent status, even though his possible interest in the new party centers around a particular candidate for a particular office. For the candidate himself, it would mean undertaking the serious responsibilities of qualified party status under California law, such as the conduct of a primary, holding party conventions, and the promulgation of party platforms. But more fundamentally, the candidate, who is by definition an independent and desires to remain one, must now consider himself a party man, surrendering his independent status. Must he necessarily choose the political party route if he wants to appear on the ballot in the general election? We think not.
* * * * * *
[W]e perceive no sufficient state interest in conditioning ballot position for an independent candidate on his forming a new political party as long as the State is free to assure itself that the candidate is a serious contender, truly independent, and with a satisfactory level of community support.
415 U.S. 745-46, 94 S.Ct. 1286-87 (footnote omitted).
Following Storer, several cases arose as a result of the independent candidacy of former Senator Eugene J. McCarthy in his quest for the presidency of the United States, most notably, McCarthy v. Briscoe, 429 U.S. 1317, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976). In Briscoe, Senator McCarthy and several of his supporters challenged the Texas election laws which, like those of Michigan, did not afford an opportunity for an independent to qualify for a position on the ballot for the office of president. The district and appellate courts agreed that the Texas election scheme was unconstitutional but refused to order McCarthy’s name placed on the ballot for fear of disrupting the Texas election process.
Thereafter, McCarthy supporters petitioned Justice Powell for relief in his capacity as a Circuit Justice. Citing Storer v. Brown, supra, Justice Powell stated that “the Court [has] flatly rejected the notion that an independent [can] be forced to seek ballot position by joining or organizing a political party.” McCarthy v. Briscoe, supra, 429 U.S. at 1320, 97 S.Ct. at 12. Accordingly, Justice Powell approved the district court’s characterization of the Texas election laws “as demonstrating an ‘intransigent and discriminatory position’ and an ‘incomprehensible policy’ ”. Id at 1321, 97 S.Ct. at 12. Finally, Justice Powell took judicial notice of Senator McCarthy’s stature as a nationally known figure, his 1968 presidential candidacy and the fact that he had qualified for the ballot in many other states. Justice Powell concluded that these facts demonstrated “the requisite community support” and he therefore ordered that Senator McCarthy’s name be placed upon the Texas ballot.
Justice Powell’s decision in Briscoe was both preceded and followed by lower court decisions declaring unconstitutional state election schemes — including the one in Michigan — which precluded ballot access for Senator McCarthy as an independent candidate. See e.g., McCarthy v. Exon, 424 F.Supp. 1143 (D.Neb.) summ. aff’d, 429 U.S. 972, 97 S.Ct. 479, 50 L.Ed.2d 581 (1976); McCarthy v. Austin, 423 F.Supp. 990 (W.D.Mich.1976); McCarthy v. Tribbitt, 421 F.Supp. 1193 (D.Del.1976); McCarthy v. Askew, 420 F.Supp. 775 (S.D.Fla.1976) aff’d, 540 F.2d 1254 (5th Cir.1976). See also MacBride v. Exon, 558 F.2d 443 (8th Cir.1977); MacBride v. Askew, 541 F.2d 465 (5th Cir.1976).
Despite existing legal precedent, particularly McCarthy v. Austin, supra, wherein the Michigan scheme was expressly declared unconstitutional for its failure to provide independent candidates for public office with a means of access to the ballot, the Michigan legislature continued to ignore the evolving judicial pronouncements as late as the 1980 presidential election. In that election Gus Hall and Angela Davis, running as independent candidates in Michigan for president and vice-president, respectively, were forced to resort to the federal court to obtain ballot position. Hall v. Austin, 495 F.Supp. 782 (E.D.Mich.1980).
Michigan has, to date, failed to remedy the situation. This Court is therefor compelled to again declare, in absolute terms, that the Michigan election laws, so far as they foreclose independent candidates access to the ballot, are unconstitutional.
Defendants urge that, even assuming the election laws are otherwise constitutionally deficient, Goldman-Frankie was not entitled to relief. Defendants assert that the McCarthy precedent is inapposite because those cases involved federal office whereas Goldman-Frankie was seeking a state office and the state constitution, specifically, Art. VIII § 3, mandated party nomination as the vehicle to ballot access for Michigan Board of Education candidates.
The arguments are not persuasive. “Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections.” Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506 (1964). While the State may well have decided to make seats on the Michigan Board of Education appointive positions, thereby removing the voters’ direct impact on the holders, see Sailors v. Kent County Bd. of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 1080, 16 L.Ed.2d 169 (1966); Kramer v. Union Free School District, 395 U.S. 621, 628-30, 89 S.Ct. 1886, 1890-91, 23 L.Ed.2d 583 (1969). See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10, 102 S.Ct. 2194, 2200, 72 L.Ed.2d 628 (1982); Hadley v. Junior College District of Metropolitan Kansas City Missouri, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). Hence, Art. VIII § 3, which, in effect, grants to the electorate a franchise to select members of the Michigan Board of Education and then limits that franchise to those who support a party nominated candidate, is unconstitutional.
The defendants’ argument that the lower court and this court are bound by Jones v. Hare, 440 F.2d 685 (6th Cir.) cert. denied, 404 U.S. 911, 92 S.Ct. 237, 30 L.Ed.2d 184 (1971), is not convincing. In Jones, this Court rejected a broad attack on Michigan’s election laws and constitutional provisions including Art. VIII § 3. The Court found the “nominal formation of a so-called ‘political party’ ” a reasonable requirement for gaining access to the ballot. Id., at 686. As the pronouncements of the Supreme Court in Storer v. Brown and its progeny make clear, Jones v. Hare has been overruled.
Finally, we affirm the relief mandated by the district court — ordering Goldman-Frankie’s name on the ballot. McCarthy v. Briscoe, supra. Although Goldman-Frankie’s demonstration of the requisite community support was not compelling, the Court finds it sufficient to warrant the relief granted by the district court.
In accordance with the foregoing, the judgment of the district court must be and hereby is Affirmed. Costs to be borne by the appellants.
. Goldman-Frankie received 28,620 votes.
., Although this Court has applied an Equal Protection analysis in arriving at a decision, the Supreme Court has recognized that ballot access cases are equally cognizable under the First Amendment. Anderson v. Celebrezze, supra, -- U.S. at --, 103 S.Ct. at 1569, n. 7.
. For a more detailed review of the McCarthy litigation, see Armor & Marcus, The Bloodless Revolution of 1976, 62 A.B.A.J. 1108 (1977).
. In 1972 Goldman-Frankie was a candidate for the Wayne State University Board of Governors on the Communist Party ticket and received 14,903 votes. In 1974 she ran for Michigan State Board of Education, again on the Communist Party Ticket, and received 5,936 votes.
The federal courts must, of course, remain careful not to burden Michigan ballots with frivolous candidates. However, it would be understandable if the courts looked with increasing disfavor on the State’s arguments regarding requisite support for a candidate when the State possesses the power to establish a uniform method of assuring such support and continuously refuses to do so.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_respond1_3_3
|
K
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
John E. DEMARINIS, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent.
No. 83-7489.
United States Court of Appeals, Ninth Circuit.
Argued Nov. 18, 1983.
Submitted March 21, 1984.
Decided March 21, 1984.
John William Cumming, Eureka, Cal., for petitioner.
Dennis A. Paquette, Dept. of Labor, Washington, D.C., for respondent.
Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.
GOODWIN, Circuit Judge:
John E. Demarinis appeals from the Assistant Secretary of Labor’s decision that he is ineligible for Redwood Employee Protection Program (REPP) benefits under Title II of the Redwood National Park Expansion Act of 1978, Pub.L. No. 95-250, §§ 201-13, 92 Stat. 163, 172-82.
Demarinis was employed as a lab technician for over nine years with the Samoa Lumber Mill of the Louisiana-Pacific Corporation. In early November, 1978, the hourly employees went on strike, and Demarinis was temporarily assigned to an eight-hour graveyard shift tending the boiler. During this period he worked overtime to complete his regular duties as a lab technician. On November 8, 1978, he refused to work a twelve-hour graveyard shift tending the boiler, and was discharged from his position as a lab technician. Demarinis testified before the administrative law judge that he did not refuse to work, but rather sought to be reassigned away from the graveyard shift.
The California Employment Development Department (EDD) found Demarinis eligible for both State unemployment compensation benefits and REPP benefits. An administrative law judge affirmed on the grounds that the refusal to work constituted a voluntary leaving with “good cause” as defined in Cal.Unemp.Ins.Code § 1256. De-marinis began collecting his benefits.
Several months later, the EDD changed its eligibility policy and decided that a voluntary leaving with good cause did not constitute a qualifying layoff as defined in the Redwood Act. Demarinis was issued a notice that because he voluntarily left his employment and therefore was not “laid off”, he was not an eligible employee under the Redwood Act. An ALJ and the Secretary affirmed the EDD’s new determination of ineligibility.
This appeal presents a question of statutory interpretation. Title II of the Act, section 213(f), provides that where there is more than one reasonable interpretation of the Act, the Secretary shall adopt the construction which is the most favorable to employees. See Local 3—98, International Woodworkers of America v. Donovan, 713 F.2d 436, 439 (9th Cir.1983). This rule also applies to the interpretation of Redwood Act regulations. David v. Donovan, 698 F.2d 1057 (9th Cir.1983).
In this case the Secretary’s own regulations preclude him from reconsidering De-marinis’ eligibility for REPP benefits. 29 C.F.R. § 92.50(c) provides that the EDD may reconsider determinations of eligibility on the same terms and under the same conditions as it may reconsider its own determinations made under California unemployment insurance statutes and regulations.
The California Unemployment Insurance Code, § 1332(a), provides that a determination may be reconsidered within twenty days after mailing or service of the notice of determination. The Secretary clearly has not met this time limit. The Secretary claims that California unemployment insurance regulations permit him to reconsider Demarinis’ claim, citing 22 Cal.Adm.Code §§ 1326-1 through 1326-6. Section 1326-1(b)(4), which describes the “usual procedures” followed in handling a claim, see § 1326-l(b), comes closest to supporting the Secretary. This subsection says that the claimant reports periodically to the EDD for an interview concerning his or her efforts to find work, and states that the interview “is designed’ to discover any potential eligibility issue.” This language at most authorizes the Secretary to redetermine a claimant’s eligibility if the factual situation changes, e.g., if he or she finds another job. It does not authorize him to reconsider eligibility when he changes his interpretation of the applicable law, because the interviews are not designed to discover changes in the law.
The Secretary is bound by his own regulations. United States v. Nixon, 418 U.S. 683, 696, 94 S.Ct. 3090, 3101, 41 L.Ed.2d 1039 (1974); 2 K. Davis, Administrative Law Treatise § 7:21 (2d ed. 1979). He is not permitted to redetermine whether De-marinis quit or was laid off now that the 20 day period has expired.
In a somewhat similar case we held on equitable grounds that the Secretary was not free to redetermine whether an employee had been laid off before or after the effective date of the Act many months after the state agency had found the worker to be eligible. See Egbert v. Donovan, 720 F.2d 1122 (9th Cir.1983).
Construing the statutory scheme as a whole, we hold that the Secretary was time barred from redetermining Demarinis’ eligibility and that the petition must be allowed.
Judgment for Petitioner.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
|
songer_appel1_1_4
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
Juan E. MULLER, Domingo Occhiuto, and Ingeniero Enrique Pagliettini, d/b/a Bigua, S.R.L., Plaintiffs-Appellants, v. Raymond S. GROBAN, Dora Groban, and Sidney J. Groban, d/b/a Groban Supply Co., Defendants-Appellants.
No. 14780.
United States Court of Appeals Seventh Circuit.
April 8, 1965.
Thomas W. Bloss, George W. Rauch, Charles A. Kelly, Chicago, Ill. (Hubachek, Kelly, Miller & Rauch, Chicago, Ill., of counsel), for plaintiffs-appellants.
Irwin I. Zatz, Howard Arvey, Edwin A. Walden, Chicago, Ill. (Arvey, Hodes & Mantynband, Chicago, Ill., of counsel), for defendants-appellees.
Before DUFFY, CASTLE, and SWYGERT, Circuit Judges.
SWYGERT, Circuit Judge.
Plaintiffs Juan E. Muller, Domingo Oechiuto, and Ingeniero Enrique Pagliettini, d/b/a Biguá, S.R.L., an Argentine company, brought this diversity action against defendants Raymond S. Groban, Dora Groban, and Sidney J. Groban, d/b/a Groban Supply Co. of Chicago. The action was for breach of a contract in which the Groban company agreed to sell Biguá two unused marine engine assemblies. The complaint alleged that Groban shipped plaintiff used, partially reconditioned engine assemblies and that plaintiff’s customers refused to accept them. Damages in the amount of $57,-970, together with interest, was demanded. The complaint listed the separate items of damages. These included $3,590 as the difference between the purchase price of the assemblies and their actual value, $6,000 as the cost of replacement goods “for fulfillment of Plaintiffs’ customer’s contract,” and $1,000 for shipping expenses of replaced items.
On its own motion the district court issued a rule to show cause why the complaint should not be dismissed for failure to allege in good faith the requisite jurisdictional amount. After once continuing the hearing on the rule to show cause, the court entered an order which recited that “as a matter of law and upon the face of the complaint, the consequential damages alleged therein are not a proper measure of damages.” The complaint was dismissed for the reason that the amount in controversy, exclusive of interest and costs, did not exceed the sum of $10,000 as required by section 1332 of the Judicial Code, 28 U.S.C. § 1332.
The contract was attached as an exhibit to the complaint and indicates that the engine assemblies were being shipped to plaintiff’s customer, Ramser-Brouch Marítima Y Pesquera, S.R.L., Buenos Aires. Plaintiff states that if permitted to prove its case, the bills of lading and invoices will show that the engines were shipped “e and f” to Buenos Aires from the United States Naval Surplus Stores in Norfolk, Virginia. On this basis plaintiff claims that the contract was performed in Virginia. Defendant, on the other hand, says that performance occurred in Chicago, Illinois, from where the c and f documents of sale were forwarded to plaintiff.
Both parties recognize that in diversity cases, the federal courts apply the substantive law of the forum state, Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), including the conflicts of law rules of that state, Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). They also agree that under Illinois law the measure of damages for breach of contract is controlled by the law of the state where the contract is to be performed if the law of that state is different from the law of the state where the contract was executed. Benedict v. Dakin, 243 Ill. 384, 90 N.E. 712 (1909); Wm. J. Lemp Brewing Co. v. Ems Brewing Co., 164 F.2d 290 (7th Cir. 1947). The contestants part company, however, in asserting the place of performance of the contract in question — plaintiff contending that performance took place in Virginia and defendant contending that the contract was performed in Illinois. Plaintiff maintains that under the law of Virginia consequential damages such as plaintiff seeks are recoverable and that therefore more than $10,000 is in controversy. Defendant argues that under the law of Illinois, in the absence of special circumstances, only direct damages are recoverable for the breach of a sales contract, and that this precludes plaintiff from seeking damages in excess of $10,000 since the direct damages are admitted not to equal that sum.
It is not necessary to determine the correctness of the parties’ respective assertions concerning the law of Illinois and the law of Virginia with regard to damages for the breach of an executory sales contract. The very dispute between the parties over the place of the contract’s performance is sufficient to show that this case presented a factual issue that can be resolved only by a trial. The case should not have been dismissed by the district judge sua sponte on the basis that the complaint showed as a matter of law that the requisite jurisdictional amount was lacking.
Defendants contend that the district court gave plaintiff ample opportunity to offer evidence in support of jurisdiction, but that plaintiff offered no evidence and elected to stand upon its complaint. Plaintiff was not required to sustain its claim twice, once preliminarily to show jurisdiction and again at trial. Of course, sham pleadings are not to be allowed to sustain a claim of jurisdiction when a party has alleged excessive damages in bad faith. Nevertheless, as this court observed in Columbia Pictures Corp. et al. v. Grengs et al., 257 F.2d 45, 47 (7th Cir. 1958), “[T]he plaintiff need not twice establish his proof of value— once before trial on the merits and later on the merits when issues are joined under complaint and answer.”
To dismiss a claim because of bad faith in alleging the jurisdictional amount, it must be certain that the valid portion of the claim is for less than the requisite amount. This was made clear in Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), where the Court said: “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction.” Accord, Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961).
As we have noted, there is a genuine dispute about the facts which the parties contend the evidence will establish and as to the applicable law in determining the damages to be allowed. For that reason it cannot be said with “legal certainty” that plaintiff has in bad faith alleged damages which do not meet the jurisdictional standard. The dispute can be resolved only upon trial and not by a mere reading of the complaint.
The order of dismissal is reversed and the cause remanded for further proceedings.
. C and f means that the price quoted to the purchaser includes the cost of the goods and freight charges to place of destination. Under this type of contract delivery to the carrier is delivery to the buyer, passing title and x-isk to the buyer.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer:
|
sc_lcdispositiondirection
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. ATLANTIC RESEARCH CORP.
No. 06-562.
Argued April 23, 2007
Decided June 11, 2007
Thomas, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Hungar argued the cause for the United States. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General McKeown, Kannon K. Shanmugam, Ronald M. Spritzer, and Ellen J. Durkee.
Owen Thomas Armstrong, Jr., argued the cause for respondent. With him on the brief was Frank L. Steeves.
Jay D. Geck, Deputy Solicitor General of Washington, argued the cause for the State of Washington et al. as amici curiae urging affirmance. With him on the brief were Robert M. McKenna, Attorney General, Maureen Hart, Solicitor General, and Michael L. Dunning, Assistant Attorney General, Linda Singer, Acting Attorney General of the District of Columbia, Salvador J. Antonetti Stutts, Solicitor General of Puerto Rico, and the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Richard Blumenthal of Connecticut, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W. Nixon of Missouri, Mike McGrath of Montana, Catherine Cortez Masto of Nevada, Kelly A. Ayotte of New Hampshire, Stuart Rabner of New Jersey, Gary K. King of New Mexico, Andrew M. Cuomo of New York, Roy Cooper of North Carolina, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and J. B. Van Hollen of Wisconsin.
Briefs of amici curiae urging reversal were filed for Cooper Industries, LLC, et al. by Dale E. Stephenson, Allen A Kacenjar, Jay N. Varón, and G. Michael Halfenger; and for the Huron Valley Steel Corp. by Jack D. Shumate and Karen Pilat.
Briefs of amici curiae urging affirmance were filed for the City of New York by Michael A Cardozo, Leonard J. Koemer, and Daniel Greene; for the Association of California Water Agencies et al. by Paul S. Weiland, Frederic A Fudacz, and Alfred E. Smith; for Aviall Services, Inc., by Richard Faulk, Jeffrey M. Gaba, and Stacy R. Obenhaus; for E. I. Du Pont de Nemours and Co. et al. by Mark I. Levy and William H. Hyatt, Jr.; for Ford Motor Co. et al. by John McGahren; for Consolidated Edison Co. of New York, Inc., by Carter G. Phillips, Angus Macbeth, Stephen B. Kinnaird, Woody N. Peterson, Richard W Babinecz, and Peter P. Garam; for Lockheed Martin Corp. by Miguel A. Estrada, Michael K. Murphy, Amir C. Tayrani, and James R. Buckley; for the Metropolitan Water Reclamation District of Greater Chicago by Harvey M. Sheldon, Joel D. Bertocchi, Stephen R. Swofford, and Frederick M. Feldman; for the Natural Resources Defense Council et al. by Jerry S. Phillips; for the Superfund Settlements Project et al. by Michael W Steinberg; for the United States Conference of Mayors by Paul E. Gutermann and Thomas C. Goldstein; and for Former Administrator of the United States Environmental Protection Agency Carol M. Browner et al. by Joel M. Gross.
Briefs of amici curiae were filed for Reading Co. by James C. Martin; and for James Kotrous by Jacqueline L. McDonald and Michael E. Vergara.
Justice Thomas
delivered the opinion of the Court.
Two provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) — §§ 107(a) and 113(f) — allow private parties to recover expenses associated with cleaning up contaminated sites. 42 U. S. C. §§ 9607(a), 9613(f). In this case, we must decide a question left open in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004): whether § 107(a) provides so-called potentially responsible parties (PRPs), 42 U. S. C. §§9607(a)(l)-(4), with a cause of action to recover costs from other PRPs. We hold that it does.
I
A
Courts have frequently grappled with whether and how PRPs may recoup CERCLA-related costs from other PRPs. The questions lie at the intersection of two statutory provisions — CERCLA §§ 107(a) and 113(f). Section 107(a) defines four categories of PRPs, 94 Stat. 2781, 42 U. S. C. §§9607(a)(l)-(4), and makes them liable for, among other things:
“(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; [and]
“(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.” §§ 9607(a)(4)(A)-(B).
Enacted as part of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 100 Stat. 1613, § 113(f) authorizes one PRP to sue another for contribution in certain circumstances. 42 U. S. G. § 9613(f).
Prior to the advent of § 113(f)’s express contribution right, some courts held that § 107(a)(4)(B) provided a cause of action for a private party to recover voluntarily incurred response costs and to seek contribution after having been sued. See Cooper Industries, supra, at 161-162 (collecting cases); Key Tronic Corp. v. United States, 511 U. S. 809, 816, n. 7 (1994) (same). After SARA’s enactment, however, some Courts of Appeals believed it necessary to “direc[t] traffic between” §§ 107(a) and 113(f). 459 F. 3d 827, 832 (CA8 2006) (case below). As a result, many Courts of Appeals held that § 113(f) was the exclusive remedy for PRPs. See Cooper Industries, supra, at 169 (collecting cases). But as courts prevented PRPs from suing under § 107(a), they expanded § 113(f) to allow PRPs to seek “contribution” even in the absence of a suit under § 106 or § 107(a). Aviall Servs., Inc. v. Cooper Industries, Inc., 312 F. 3d 677, 681 (CA5 2002) (en banc).
In Cooper Industries, we held that a private party could seek contribution from other liable parties only after having been sued under § 106 or § 107(a). 543 U. S., at 161. This narrower interpretation of § 113(f) caused several Courts of Appeals to reconsider whether PRPs have rights under § 107(a)(4)(B), an issue we declined to address in Cooper Industries. Id., at 168. After revisiting the issue, some courts have permitted § 107(a) actions by PRPs. See Consolidated Edison Co. of N. Y. v. UGI Utilities, Inc., 423 F. 3d 90 (CA2 2005); Metropolitan Water Reclamation Dist. of Greater Chicago v. North American Galvanizing & Coatings, Inc., 473 F. 3d 824 (CA7 2007). However, at least one court continues to hold that § 113(f) provides the exclusive cause of action available to PRPs. E. I. DuPont de Nemours & Co. v. United States, 460 F. 3d 515 (CA3 2006). Today, we resolve this issue.
B
In this ease, respondent Atlantic Research leased property at the Shumaker Naval Ammunition Depot, a facility operated by the Department of Defense. At the site, Atlantic Research retrofitted rocket motors for petitioner United States. Using a high-pressure water spray, Atlantic Research removed pieces of propellant from the motors. It then burned the propellant pieces. Some of the resultant wastewater and burned fuel contaminated soil and ground water at the site.
Atlantic Research cleaned the site at its own expense and then sought to recover some of its costs by suing the United States under both §§ 107(a) and 113(f). After our decision in Cooper Industries foreclosed relief under § 113(f), Atlantic Research amended its complaint to seek relief under § 107(a) and federal common law. The United States moved to dismiss, arguing that § 107(a) does not allow PRPs (such as Atlantic Research) to recover costs. The District Court granted the motion to dismiss, relying on a case decided prior to our decision in Cooper Industries, Dico, Inc. v. Amoco Oil Co., 340 F. 3d 525 (CA8 2003).
The Court of Appeals for the Eighth Circuit reversed. Recognizing that Cooper Industries undermined the reasoning of its prior precedent, 459 F. 3d, at 830, n. 4, the Court of Appeals joined the Second and Seventh Circuits in holding that § 113(f) does not provide “the exclusive .route by which [PRPs] may recover cleanup costs.” Id., at 834 (citing Consolidated Edison Co., supra). The court reasoned that § 107(a)(4)(B) authorized suit by any .person other than the persons permitted to sue under § 107(a)(4)(A). 459 F. 3d, at 835. Accordingly, it held that § 107(a)(4)(B) provides a cause of action to Atlantic Research. To prevent perceived conflict between §§ 107(a)(4)(B) and 113(f)(1), the Court of Appeals reasoned that PRPs that “have been subject to §§ 106 or 107 enforcement actions are still required to use §113, thereby ensuring its continued vitality.” Id., at 836-837. We granted certiorari, 549 U. S. 1177 (2007), and now affirm.
II
A
The parties' dispute centers on what “other person[s]” may sue under § 107(a)(4)(B). The Government argues that “any other person" refers to any person not identified as a PRP in §§107(a)(1)-(4). In other words, subparagraph (B) permits suit only by non-PRPs and thus bars Atlantic Research’s claim. Atlantic Research counters that subparagraph (B) takes its cue from subparagraph (A), not the earlier paragraphs (1M4). In accord with the Court of Appeals, Atlantic Research believes that subparagraph (B) provides a cause of action to anyone except the United States, a State, or an Indian tribe — the persons listed in subparagraph (A). We agree with Atlantic Research.
Statutes must “be read as a whole.” King v. St Vincent’s Hospital, 502 U. S. 215, 221 (1991). Applying that maxim, the language of subparagraph (B) can be understood only with reference to subparagraph (A). The provisions are adjacent and have remarkably similar structures. Each concerns certain costs that have been incurred by certain entities and that bear a specified relationship to the national contingency plan. Bolstering the structural link, the text also denotes a relationship between the two provisions. By using the phrase “other necessary costs,” subparagraph (B) refers to and differentiates the relevant costs from those listed in subparagraph (A).
In light of the relationship between the subparagraphs, it is natural to read the phrase “any other person” by referring to the immediately preceding subparagraph (A), which permits suit only by the United States, a State, or an Indian tribe. The phrase “any other person” therefore means any person other than those three. See 42 U. S. C. § 9601(21) (defining “person” to include the United States and the various States). Consequently, the plain language of subparagraph (B) authorizes cost-recovery actions by 'any private party, including PRPs. See Key Tronic, 511 U. S., at 818 (stating in dictum that § 107 “impliedly authorizes private parties to recover cleanup costs from other PRP[s]” (emphasis added)).
The Government’s interpretation makes little textual sense. In subparagraph (B), the phrase “any other necessary costs” and the phrase “any other person” both refer to antecedents — “costs” and “person[s]” — located in some previous statutory provision. Although “any other necessary costs” clearly references the costs in subparagraph (A), the Government would inexplicably interpret “any other person” to refer not to the persons listed in subparagraph (A) but to the persons listed as PRPs in paragraphs (l)-(4). Nothing in the text of § 107(a)(4)(B) suggests an intent to refer to antecedents located in two different statutory provisions. Reading the statute in the manner suggested by the Government would destroy the symmetry of §§ 107(a)(4)(A) and (B) and render subparagraph (B) internally confusing.
Moreover, the statute defines PRPs so broadly as to sweep in virtually all persons likely to incur cleanup costs. Hence, if PRPs do not qualify as “any other person” for purposes of § 107(a)(4)(B), it is unclear what private party would. The Government posits that § 107(a)(4)(B) authorizes relief for “innocent” private parties — for instance, a landowner whose land has been contaminated by another. But even parties not responsible for contamination may fall within the broad definitions of PRPs in §§ 107(a)(l)-(4). See 42 U. S. C. § 9607(a)(1) (listing “the owner and operator of a ... facility” as a PRP); see also United States v. Alcan Aluminum Corp., 315 F. 3d 179, 184 (CA2 2003) (“CERCLA §9607 is a strict liability statute”). The Government’s reading of the text logically precludes all PRPs, innocent or not, from recovering cleanup costs. Accordingly, accepting the Government’s interpretation would reduce the number of potential plaintiffs to almost zero, rendering § 107(a)(4)(B) a dead letter. See Louisville & Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911) (“We must have regard to all the words used by Congress, and as far as possible give effect to them”).
According to the Government, our interpretation suffers from the same infirmity because it causes the phrase “any other person” to duplicate work done by other text. In the Government’s view, the phrase “any other necessary costs” “already precludes governmental entities from recovering under” § 107(a)(4)(B). Brief for United States 20. Even assuming the Government is correct, it does not alter our conclusion. The phrase “any other person” performs a significant function simply by clarifying that subparagraph (B) excludes the persons enumerated in subparagraph (A). In any event, our hesitancy to construe statutes to render language superfluous does not require us to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplus-age rather than adopt a textually dubious construction that threatens to render the entire provision a nullity.
B
The Government also argues that our interpretation will create friction between §§ 107(a) and 113(f), the very harm courts of appeals have previously tried to avoid. In particular, the Government maintains that our interpretation, by offering PRPs a choice between §§ 107(a) and 113(f), effectively allows PRPs to circumvent §113(f)’s shorter statute of limitations. See 42 U. S. C. §§ 9613(g)(2)-(3). Furthermore, the Government argues, PRPs will eschew equitable apportionment under § 113(f) in favor of joint and several liability under § 107(a). Finally, the Government contends that our interpretation eviscerates the settlement bar set forth in § 113(f)(2).
We have previously recognized that §§ 107(a) and 113(f) provide two “clearly distinct” remedies. Cooper Industries, 543 U. S., at 163, n. 3. “CERCLA provide[s] for a right to cost recovery in certain circumstances, § 107(a), and separate rights to contribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).” Id., at 163 (emphasis added). The Government, however, uses the word “contribution” as if it were synonymous with any apportionment of expenses among PRPs. Brief for United States 33, n. 14 (“Contribution is merely a form of cost recovery, not a wholly independent type of relief”); see also, e. g., Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d 1298, 1301 (CA9 1997) (“Because all PRPs are liable under the statute, a claim by one PRP against another PRP necessarily is for contribution”). This imprecise usage confuses the complementary yet distinct nature of the rights established in §§ 107(a) and 113(f).
Section 113(f) explicitly grants PRPs a right to contribution. Contribution is defined as the “tortfeasor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” Black’s Law Dictionary 353 (8th ed. 2004). Nothing in § 113(f) suggests that Congress used the term “contribution” in anything other than this traditional sense. The statute authorizes a PRP to seek contribution “during or following” a suit under §106 or § 107(a).. 42 U.S.C. § 9613(f)(1). Thus, § 113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP’s right to contribution under § 113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties.
By contrast, § 107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under § 107(a) without any establishment of liability to a third party. Moreover, § 107(a) permits a PRP to recover only the costs it has “incurred” in cleaning up a site. 42 U. S. C. § 9607(a)(4)(B). When a party pays to satisfy a settlement agreement or a court judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred.
Accordingly, the remedies available in §§ 107(a) and 113(f) complement each other by providing causes of action “to persons in different procedural circumstances.” Consolidated Edison, 423 F. 3d, at 99; see also E. I. DuPont de Nemours, 460 F. 3d, at 548 (Sloviter, J., dissenting). Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under § 106 or § 107(a). And § 107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue § 113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under § 107(a). As a result, though eligible to seek contribution under § 113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under § 107(a). Thus, at least in the case of reimbursement, the PRP cannot choose the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for § 113(f) contribution claims.
For similar reasons, a PRP could not avoid § 113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under § 107(a). The choice of remedies simply does not exist. In any event, a defendant PRP in such a § 107(a) suit could blunt any inequitable distribution of costs by filing a § 113(f) counterclaim. 459 F. 3d, at 835; see also Consolidated Edison, supra, at 100, n. 9 (collecting cases). Resolution of a § 113(f) counterclaim would necessitate the equitable apportionment of costs among the liable parties, including the PRP that filed the § 107(a) action. 42 U. S. C. § 9613(f)(1) (“In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate”).
Finally, permitting PRPs to seek recovery under § 107(a) will not eviscerate the settlement bar set forth in § 113(f)(2). That provision prohibits § 113(f) contribution claims against “[a] person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement . . . .” 42 U. S. C. § 9613(f)(2). The settlement bar does not by its terms protect against cost-recovery liability under § 107(a). For several reasons, we doubt this supposed loophole would discourage settlement. First, as stated above, a defendant PRP may trigger equitable apportionment by filing a § 113(f) counterclaim. A district court applying traditional rules of equity would undoubtedly consider any prior settlement as part of the liability calculus. Cf. 4 Restatement (Second) of Torts §886A(2), p. 337 (1977) (“No tortfeasor can be required to make contribution beyond his own equitable share of the liability”)- Second, the settlement bar continues to provide significant protection from contribution suits by PRPs that have inequitably reimbursed the costs incurred by another party. Third, settlement carries the inherent benefit of finally resolving liability as to the United States or a State.
Ill
Because the plain terms of § 107(a)(4)(B) allow a PRP to recover costs from other PRPs, the statute provides Atlantic Research with a cause of action. We therefore affirm the judgment of the Court of Appeals.
It is so ordered.
Section 113(f)(1) permits private parties to seek contribution during or following a civil action under §106 or § 107(a). 42 U. S. C. § 9613(f)(1). Section 113(f)(3)(B) permits private parties to seek contribution after they have settled their liability with the Government. § 9613(f)(3)(B).
CERCLA § 107(a) lists four broad categories of persons as PRPs, by definition liable to other persons for various costs:
“(1) the owner and operator of a vessel or a facility,
“(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
“(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
“(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for [various costs].” 42 U. S. C. §§ 9607(a)(1)-(4).
“The national contingency plan specifies procedures for preparing and responding to contaminations and was promulgated by the Environmental Protection Agency. . . .” Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161, n. 2 (2004) (citing 40 CFR pt. 300 (2004)).
Congress amended the statute in 2002 to exempt some bona fide prospective purchasers (BFPPs) from liability under. § 107(a). See 42 U. S. C. § 9607(r)(l) (2000 ed., Supp. IV). The Government claims that these persons are non-PRPs and therefore qualify as “any other person” under its interpretation of § 107(a)(4)(B). Prior to 2002, however, the statute made this small set of persons liable as PRPs. Accordingly, even if BFPPs now give some life to the Government’s interpretation of § 107(a)(4)(B), it would be implausible at best to conclude that § 107(a)(4)(B) lay dormant until the enactment of § 107(r)(l) in 2002.
Similarly, § 113(f)(3)(B) permits a PRP to seek contribution after it “has resolved its liability to the United States or a State... in an administrative or judicially approved settlement____” 42 U. S. C. § 9613(f)(3)(B).
We do not suggest that §§ 107(a)(4)(B) and 113(f) have no overlap at all. Key Tronic, Corp. v. United States, 511 U. S. 809, 816 (1994) (stating the statutes provide “similar and somewhat overlapping remedies]”)For instance, we recognize that a PRP may sustain expenses pursuant to a consent decree following a suit under § 106 or § 107(a). See, e. g., United Technologies Corp. v. Browning-Ferris Industries, Inc., 33 F. 3d 96, 97 (CA1 1994). In such a case, the PRP does not incur costs voluntarily but does not reimburse the costs of another party. We do not decide whether these compelled costs of response are recoverable under § 113(f), § 107(a), or both. For our purposes, it suffices to demonstrate that costs incurred voluntarily are recoverable only by way of § 107(a)(4)(B), and costs of reimbursement to another person pursuant to a legal judgment or settlement are recoverable only under § 113(f). Thus, at a minimum, neither remedy swallows the other, contrary to the Government’s argument.
We assume without deciding that § 107(a) provides for joint and several liability.
Because § 107(a) expressly permits PRPs to seek cost recovery, we need not address the alternative holding of the Court of Appeals that § 107(a) contains an additional implied right to contribution for PRPs who are not eligible for relief under § 113(f). Cf. Cooper Industries, 543 U. S., at 171 (citing Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 (1981)).
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Earle CLARKE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Nos. 89-3477, 90-3125.
United States Court of Appeals, Third Circuit.
Argued Jan. 19, 1990.
Decided May 24, 1990.
Lawrence H. Rudnick (argued), Steel, Rubin and Rudnick, Philadelphia, Pa., for petitioner.
Joseph F. Ciolino, David J. Kline, Lori L. Scialabba (argued), Office of Immigration Litigation, Civ. Div., U.S. Dept, of Justice, Washington, D.C., for respondent.
Before HIGGINBOTHAM, Chief Judge, BECKER and NYGAARD, Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Chief Judge.
Petitioner Earle Clarke is a Jamaican citizen who prevailed in deportation proceedings brought by the respondent Immigration and Naturalization Service (“INS”). He now petitions for review of a decision by the Board of Immigration Appeals (“BIA”) denying his request for attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504. Because we conclude that the EAJA does not apply to deportation proceedings before the INS, we will deny Clarke’s consolidated petitions for review.
I. Background
The INS commenced deportation proceedings against the petitioner on August 10, 1988, with the issuance of an Order to Show Cause charging that Clarke was de-portable under 8 U.S.C. § 1251(a)(ll) as an alien who had been convicted of knowingly and intentionally possessing a controlled substance. On January 10, 1989, an immigration judge dismissed the deportation proceedings after a hearing because the INS did not present a certified record of Clarke’s conviction, and because of the agency’s apparent concession at the hearing that his conviction under Pennsylvania’s Accelerated Rehabilitative Disposition Program was an insufficient basis for deportation under section 1251(a)(ll). Administrative Record (“A.R.”) at 40-41.
On January 17, 1989, Clarke submitted an application to the immigration judge for attorneys’ fees and costs under the EAJA. In his July 10, 1989 decision denying this application, the immigration judge found that Clarke met the basic requirements for an EAJA award, but concluded that the BIA’s holdings in Matter of Anselmo, Interim Decision 3105 (BIA 1989), and Matter of Fede, Interim Decision 3106 (BIA 1989), and the Attorney General’s regulation on the EAJA’s coverage in Department of Justice proceedings, 28 C.F.R. § 24.103, required him to dismiss Clarke’s EAJA application for lack of jurisdiction.
Clarke appealed the immigration judge’s decision to the BIA. Replying on Matter of Fede and 28 C.F.R. § 24.103, the BIA determined that “absent a regulatory change or controlling court order, an immigration judge has no authority under law or regulation to consider an application for attorney fees under the provisions of the EAJA.” A.R. at 3. Accordingly, the BIA dismissed Clarke’s appeal and denied his application for attorneys’ fees.
II. Discussion
This case requires us to determine whether the Equal Access to Justice Act applies to deportation proceedings. We have plenary review over the agency’s determination of this question of law. See INS v. Cardoza-Fonseca, 480 U.S. 421, 445-48, 107 S.Ct. 1207, 1220-22, 94 L.Ed.2d 434 (1987).
Under the Equal Access to Justice Act, parties in certain adversary administrative proceedings may recover attorneys’ fees and costs from the government. In pertinent part, 5 U.S.C. § 504(a)(1) provides that “[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.” Under 5 U.S.C. § 504(b)(l)(C)(i), an “adversary adjudication” is defined as “an adjudication under section 554 of this title [5 U.S.C. § 554] in which the position of the United States is represented by counsel or otherwise....” Section 554 of Title 5 defines the scope and coverage of the Administrative Procedure Act (“APA”). The dispositive issue in this case is whether deportation proceedings are adversary adjudications “under section 554” of the APA and are thus covered by the EAJA.
If an adjudication “under section 554” means an adjudication “governed by” or “conducted under” section 554 of the APA, then the EAJA clearly does not apply to deportation proceedings. In section 242(b) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1252(b), Congress provided that the regulations governing deportation proceedings promulgated under that Act “shall be the sole and exclusive procedure for determining the deportability of an alien under this section.” In Marcello v. Bonds, 349 U.S. 302, 75 S.Ct. 757, 99 L.Ed. 1107 (1955), the Supreme Court interpreted this provision to mean that the APA’s hearing procedures do not apply to deportation proceedings before INS hearing officers. The Court noted that although the APA served as a “model” for the hearing provisions of the immigration statute, the Immigration and Nationality Act is the governing enactment in deportation matters:
[W]e cannot ignore the background of the 1952 immigration legislation, its laborious adaptation of the Administrative Procedure Act to the deportation process, the specific points at which deviations from the Administrative Procedure Act were made, the recognition in the legislative history of this adaptive technique and of the particular deviations, and the direction in the statute that the methods therein prescribed shall be the sole and exclusive procedure for deportation proceedings. Unless we are to require the Congress to employ magical passwords in order to effectuate an exemption from the Administrative Procedure Act, we must hold that the present statute expressly supersedes the hearing provisions of that Act.
Id. at 310, 75 S.Ct. at 762. Following Mar-cello, this court has held that the review of adjustment of status and deportation orders by the Board of Immigration Appeals is also exempt from APA requirements. Giambanco v. INS, 531 F.2d 141, 144 (3d Cir.1976). See also Cisternas-Estay v. INS, 531 F.2d 155, 158-59 (3d Cir.) (APA does not apply to BIA review of order denying suspension of deportation), cert. denied, 429 U.S. 853, 97 S.Ct. 145, 50 L.Ed.2d 127 (1976); Ho Chong Tsao v. INS, 538 F.2d 667, 669 (5th Cir.1976) (APA does not apply to BIA review of deportation order), cert. denied, 430 U.S. 906, 97 S.Ct. 1176, 51 L.Ed.2d 582 (1977).
Clarke concedes that the exclusive hearing procedures of 8 U.S.C. § 1252(b) supersede the hearing provisions of the APA, and thus that section 554 does not govern INS deportation proceedings. However, he argues that, for the purposes of the EAJA, an adjudication “under section 554” does not mean an adjudication “governed by” section 554. Clarke asserts that the phrase “an adjudication under section 554” encompasses adjudications that are conducted consistent with the substantive requirements of section 554, even if they are not directly governed by that provision. Because the procedures governing deportation hearings under the Immigration and Nationality Act are similar to the procedures described in section 554, Clarke contends, deportation proceedings are “adversary adjudications” within the meaning of 5 U.S.C. 504(b)(1)(C).
In support of his position, Clarke cites Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc), in which the United States Court of Appeals for the Ninth Circuit held that the EAJA applies to deportation proceedings. That court stated that the phrase “an adjudication under section 554” was ambiguous as the language could mean either an adjudication “governed by” the APA or an adjudication “as defined by” the APA. It considered that both constructions were “plausible,” but that the broader reading was supported by the EAJA’s legislative history, its remedial purposes, and the interpretation given the statute by the Administrative Conference of the United States (“ACUS”). Id. at 1023-26.
Although we share the concern of the court in Escobar Ruiz about the difficulties faced by unrepresented aliens in deportation proceedings, see id. at 1026, we cannot legitimately act on our concern by applying the EAJA to deportation proceedings. Given the Supreme Court’s admonishment that statutes waiving the government’s general immunity from attorneys’ fee claims must be “construed strictly in favor of the sovereign” and not “[ejnlarged ... beyond what the language requires,” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983) (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951), and Eastern Transportation Co. v. United States, 272 U.S. 675, 686, 47 S.Ct. 289, 291, 71 L.Ed. 472 (1927)), Escobar Ruiz’s interpretation of “an adjudication under section 554” strikes us as strained and untenable.
In our view, Escobar Ruiz was justifiably criticized in Owens v. Brock, 860 F.2d 1363 (6th Cir.1988), and St. Louis Fuel and Supply Co., Inc. v. FERC, 890 F.2d 446 (D.C.Cir.1989), for its expansive statutory interpretation. In Owens, the United States Court of Appeals for the Sixth Circuit held that workers’ compensation hearings conducted pursuant to the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., are not adversary adjudications under the EAJA, since FECA explicitly excludes such proceedings from section 554. The court rejected Escobar Ruiz’s view that EAJA’s legislative history showed that the statutory phrase “under section 554” meant “as defined by section 554.” The court noted that a 1980 House Conference report described an “adversary adjudication” as “an agency adjudication defined under the Administrative Proceduref ] Act where the agency takes a position through representation by counsel or otherwise.” Owens, 860 F.2d at 1365 (quoting H.R.Conf.Rep. No. 1434, 96th Cong., 2d Sess. 23, reprinted in 1980 U.S. Code Cong. & Admin.News at 4953, 5012 (emphasis added)). However, the Owens court observed that this bit of legislative history furnished only “ephemeral” support for the expansive holding in Escobar Ruiz.
The use of the words “defined under” by the House Conference report is not particularly instructive. There is no evidence in the legislative history to indicate that the conference committee understood the term “defined under” to include within EAJA coverage those proceedings that are not governed by section 554 but instead are merely conducted in a similar manner. In fact, the use of a concrete term such as “defined” leads us to believe it probable that Congress intended precisely the opposite interpretation of section 504(b)(1)(C) from the one taken by the Ninth Circuit.
860 F.2d at 1366. The court also rejected the Ninth Circuit’s reliance on the ACUS’s model rules on the implementation of the EAJA, noting that “the ACUS rules both eschew a broad interpretation of 504(b)(1)(C) and embrace the ‘governed under’ standard rejected in Escobar Ruiz.” Id.
In St. Louis Fuel, the United States Court of Appeals for the District of Columbia also rejected a broad interpretation of “under section 554.” The court there observed that proceedings challenging a Department of Energy’s price regulation remedial order were not “adversary adjudications” under, the EAJA. The court observed that, unlike section 554, the statutory authority for such proceedings, 42 U.S.C. § 7193(c), did not require hearings to be held “on the record.” The court observed that the statutory language and the legislative history did not establish that “Congress intended to require full agency adherence to all section 554 procedural components.” 890 F.2d at 449 (emphasis in original).
Like the Owens court, the court in St. Louis Fuel criticized Escobar Ruiz for its expansive analysis of the EAJA’s legislative history. Id. at 450-51. The St. Louis Fuel court also took issue with Escobar Ruiz’s statutory construction, pointing out that the word “under” appears several times in the EAJA, in places where the term clearly means “subject [or pursuant] to” or “by reason of the authority of.” Id. at 450. The court stated, and we agree, that the word “under” in 5 U.S.C. § 504(b)(l)(C)(i) cannot be construed broadly, “because the usage of the word in EAJA itself tugs against such creative reading, and because we are bound to hon- or the canon that waivers of the sovereign’s immunity must be strictly construed.” Id. at 449-50.
The Escobar Ruiz court was persuaded that the EAJA’s applicability to disability determination proceedings under the Social Security Act established that Congress favored a broad interpretation of “adjudication under section 554.” In the legislative history of the 1985 EAJA amendment and extension, Congress confirmed that Social Security hearings “in which the Secretary is represented are covered by the [EAJA].” Escobar Ruiz, 838 F.2d at 1026-27 (quoting H.R.Rep. No. 120, 99th Cong., 1st Sess., pts. 1, 10, reprinted in 1985 U.S.Code Cong. & Admin.News at 132, 138-39). After first noting the uncertainty about the APA’s applicability to social security proceedings, the Escobar Ruiz court found that it was “clear from this history that Congress did not consider the uncertainty as to the APA’s applicability ... relevant to the question of the EAJA’s applicability.... Rather, Congress was concerned only with the fact that social security hearings are of the type defined under section 554.” Id. at 1027.
For a number of reasons, we are unable to draw such a clear conclusion from the legislative history. First, we note that while the Supreme Court has never retreated from the essential holding in Marcello that the APA does not apply to deportation hearings, the Supreme Court, like this court, has never ruled definitively on the applicability of the APA to Social Security proceedings. Somewhat to the contrary, the Court has observed that “the social security administrative procedure does not vary from that prescribed by the APA.” Richardson v. Perales, 402 U.S. 389, 409, 91 S.Ct. 1420, 1431, 28 L.Ed.2d 842 (1971). In any event, the EAJA’s 1985 legislative history strongly suggests that Congress believed social security proceedings to be covered by section 554, but considered that the hearings were not “adversary adjudications” within the meaning of EAJA because the position of the United States was typically not represented by counsel. H.R. Rep. No. 120, supra, reprinted in 1985 U.S.Code Cong. & Admin.News at 138.
Second, we observe that, in amending and extending the EAJA in 1985, Congress remained silent about EAJA’s application to deportation proceedings despite the Attorney General’s clear 1984 regulation which excluded deportation proceedings from EAJA’s reach, 28 C.F.R. § 24.103. Although we cannot assume that Congress implicitly ratified the Attorney General’s interpretation of the EAJA’s reach, we likewise cannot conclude from the ambiguous legislative record that Congress intended to overturn that regulation.
Third, there is nothing in the EAJA’s legislative history that qualifies or explains Congress’ pronouncement in § 292 of the Immigration and Naturalization Act of 1952, 8 U.S.C. § 1362, that an alien in deportation proceedings “shall have the privilege of being represented {at no expense to the Government) by such counsel, authorized to practice in such proceedings, as he shall choose” (emphasis added). Clarke suggests that the parenthetical language simply reflects Congress’ intent that the right to counsel in deportation proceedings not be extended to include the right to appointed counsel for indigent aliens. Viewed in this light, the petitioner’s argument that this language should not be construed as an independent statutory bar against fee-shifting is plausible. See Escobar Ruiz, 838 F.2d at 1027-29. However, it is also plausible that Congress, in providing for fee-shifting in the EAJA, did not intend to disturb its longstanding proscription against government funding of counsel for aliens in deportation proceedings. In the absence of a more definitive expression of legislative intent, and in view of the limited nature of statutory exceptions to sovereign immunity, we do not believe that we can resolve this ambiguity in Clarke’s favor.
Finally, we note that in two instances Congress expanded the 5 U.S.C. § 504(b)(1)(C) definition of “adversary adjudication” to include proceedings that had previously been considered outside - the EAJA’s scope. In 1985, Congress legislatively overruled the holding of Fidelity Construction Co. v. U.S., 700 F.2d 1379 (Fed.Cir.), cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983), by amending section 504(b)(1)(C) to include certain administrative proceedings under section 6 of the Contract Disputes Act of 1978, 41 U.S.C. § 605. Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, § 1(c)(2)(B), 99 Stat. 184 (1985). See H.R.Rep. No. 120, supra, reprinted in 1985 U.S.Code Cong. & Admin.News at 144. In 1986, Congress further amended the same section of the EAJA to include proceedings under the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. § 3801. Budget Reconciliation Act of 1986, Pub.L. No. 99-509, § 6103(c), 100 Stat.1948 (1986). Although these amendments are certainly not determinative of the EAJA’s applicability to other administrative proceedings, they do show Congress’ inclination to act affirmatively to extend the EAJA to include proceedings that do not clearly meet the statutory definition of “adversary adjudications.” This history makes us reluctant to imply a legislative intent to include deportation proceedings within the EAJA.
We agree with the court in St. Louis Fuel that the coverage of the EAJA should be determined by a bright-line rule: “[ajttorneys’ fees may be awarded in adversary adjudications that are governed by APA section 554; they may not be awarded in adversary adjudications that Congress did not subject to that section.” 890 F.2d at 451. A more creative interpretation of the statutory language would involve the court in case-by-case determinations of “whether a particular proceeding is close enough to a section 554 hearing to be an adjudication ‘as defined by’ that section or ‘of the type referred to’ in it.” Id.
III. Conclusion
We recognize that the essential objective of the EAJA — to ensure that persons “will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in vindication of their rights” H.R.Rep. No. 120, supra, reprinted in 1985 U.S.Code Cong. & Admin.News at 132-33 — would certainly be served by making the statute applicable to deportation proceedings. However, we believe that our holding is compelled by the canons of statutory interpretation and the limited nature of waivers of sovereign immunity. It is the province of Congress, not the courts, to rewrite the statute to include proceedings that are not clearly within its scope.
In sum, the petitioner has failed to demonstrate that Congress intended for the EAJA to apply to administrative deportation proceedings. By its terms, the EAJA applies to adversary proceedings “under” 5 U.S.C. § 554. In our view, the clear and unambiguous meaning of this statutory language is that the EAJA is to apply only to those proceedings conducted under the authority of section 554. Because deportation proceedings are not governed by section 554, and because this case does not present one of those “rare and exceptional circumstances” where legislative history justifies departure from the plain words of the statute, Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981) (quoting Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930)), we hold that the EAJA does not apply to deportation proceedings before the Immigration and Naturalization Service.
Accordingly, we will affirm the decision of the Board of Immigration Appeals and deny the petitions for review.
. On July 17, 1989, Clarke filed a petition for review of the immigration judge's decision in this court, which was docketed under No. 89-3477. Two days later, he filed an administrative appeal of the immigration judge's decision with the BIA. On February 14, 1990, after oral argument in this case, the BIA issued an order dismissing his administrative appeal and denying his application for attorneys’ fees and costs. On March 9, 1990, Clarke filed a petition for review of the BIA decision, which was docketed under No. 90-3125. With the agreement of both parties, we have consolidated the petitions.
. In Matter of Anselmo, the Board of Immigration Appeals held that deportation proceedings are not covered by the EAJA because they are not "adversary adjudications” within the meaning of 5 U.S.C. § 504(b)(1)(C). The BIA also stated that it was without authority to contravene 28 C.F.R. § 24.103, the Attorney General’s regulation on EAJA’s applicability to Department of Justice Proceedings. See note 3, infra. However, the BIA also held that the contrary ruling of the court in Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir.1988) (en banc), was to be followed in deportation cases arising within the Ninth Circuit.
In Matter of Fede, the BIA applied its Anselmo holding to an exclusion proceeding arising in the Eleventh Circuit. The BIA stated that because an immigration judge has "no authority to consider an application for attorney fees and costs under the EAJA,” the judge properly denied the petitioner’s EAJA application. Fede, Interim Decision 3106 at 4.
. 28 C.F.R. § 24.103 specifies the administrative proceedings conducted by the Department of Justice which are covered by the Equal Access to Justice Act. INS deportation proceedings are not among the enumerated proceedings.
. Under the definition of "adversary adjudication” in 5 U.S.C. § 504(b)(l)(C)(i) the position of the government must be "represented by counsel or otherwise.” That requirement is satisfied here. The position of the United States in the underlying administrative proceeding was represented by an INS attorney, as is typically the situation in deportation cases.
. We note also that in Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089 (7th Cir.1984), a pre-Escobar Ruiz decision, the court held that labor certification proceedings before the Department of Labor were not adversary adjudications "under section 554” because hearings were not statutorily required, a prerequisite for coverage under that section. The court rejected an "expansive reading” of the phrase "adjudication under section 554," noting that because the EAJA is "a waiver of the sovereign’s traditional immunity from claims for attorney’s fees", it had to be "construed strictly in favor of the United States.” 730 F.2d at 1093.
. FECA expressly provides in 5 U.S.C. § 8124(b)(2) that the hearing officer in workers’ compensation proceedings "is not bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by section 554 of this title_” (emphasis added). Although the language exempting FECA hearings from APA requirements is perhaps more explicit than the exclusivity clause of 8 U.S.C. § 1252(b), we believe that the latter provision is equally emphatic in its effect, as it states that the statutory procedure for deportation proceedings is “the sole and exclusive procedure for determining the deportability of an alien....”
. St. Louis Fuel, 890 F.2d at 450, cited the following EAJA provisions to support its statutory analysis:
A party seeking an award of fees and other expenses shall, ... submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section....
5 U.S.C. § 504(a)(2).
If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a)....
5 U.S.C. § 504(c)(2).
Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.
5 U.S.C. § 504(d).
(emphasis added).
. See Keegan v. Heckler, 744 F.2d 972, 975 (3d Cir.1984) (assuming, without directly deciding, that the liberal APA evidentiary rules apply to hearings before the Social Security Administration); Ginsburg v. Richardson, 436 F.2d 1146, 1148 n. 1 (3d Cir.) (stating that the court need not determine whether the APA supersedes the Social Security Act with respect to judicial review of final agency decisions, because the standards of judicial review under both statutes are identical), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142 (1971).
. More recently, the Court noted that “for purposes of the EAJA Social Security benefit proceedings are not ‘adversarial’ within the meaning of [5 U.S.C.] § 504(b)(1)(C) either initially or on remand from a court.” Sullivan v. Hudson, — U.S. —, 109 S.Ct. 2248, 2257, 104 L.Ed.2d 941 (1989). However, this conclusion was not based on the inapplicability of the APA to disability proceedings, but was based on the fact that the "plain language" of § 504(b)(1)(C) "requires that the United States be represented by 'counsel or otherwise,’ and neither is true in this context.” Id.
. We note that case-by-case litigation over application of the Escobar Ruiz definition of "under section 554” has already begun in the Ninth Circuit. See Haire v. United States, 869 F.2d 531 (9th Cir.1989) (holding that administrative proceedings under the Export Administration Act are not adversary adjudications within the meaning of the EAJA).
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_partywinning
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
SCHACHT v. UNITED STATES
No. 628.
Argued March 31, 1970
Decided May 25, 1970
David H. Berg argued the cause for petitioner, pro hac vice. With him on the brief was Chris Dixie.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Joseph J. Connolly, Beatrice Rosenberg, and Sidney M. Glazer.
Mr. Justice Black
delivered the opinion of the Court.
The petitioner, Daniel Jay Schacht, was indicted in a United States District Court for violating 18 U. S. C. § 702, which makes it a crime for any person “without authority [to wear] the uniform or a distinctive part thereof ... of any of the armed forces of the United States . ...” He was tried and convicted by a jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month prison term, the maximum sentence allowable under 18 U. S. C. § 702. There is no doubt that Schacht did wear distinctive parts of the uniform of the United States Army and that he was not a member of the Armed Forces. He has defended his conduct since the beginning, however, on the ground that he was authorized to wear the uniform by an Act of Congress, 10 U. S. C. § 772 (f), which provides as follows:
“When wearing by persons not on active duty authorized.
“(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.” (Emphasis added.)
Schacht argued in the trial court and in this Court that he wore the army uniform as an “actor” in a “theatrical production” performed several times between 6:30 and 8:30 a.m. on December 4, 1967, in front of the Armed Forces Induction Center at Houston, Texas. The street skit in which Schacht wore the army uniform as a costume was designed, in his view, to expose the evil of the American presence in Vietnam and was part of a larger, peaceful antiwar demonstration at the induction center that morning. The Court of Appeals’ opinion affirming the conviction summarized the facts surrounding the skit as follows:
“The evidence indicates that the demonstration in Houston was part of a nationally coordinated movement which was to take place contemporaneously at several places throughout the country. The appellants and their colleagues prepared a script to be followed at the. induction center and they actually rehearsed their roles at least once prior to the appointed day before a student organization called the 'Humanists.’
“The skit was composed of three people. There was Schacht who was dressed in a uniform and cap. A second person was wearing 'military colored’ coveralls. The third person was outfitted in typical Viet Cong apparel. The first two men carried water pistols. One of them would yell, 'Be an able American,’ and then they would shoot the Viet Cong with their pistols. The pistols expelled a red liquid which, when it struck the victim, created the impression that he was bleeding. Once the victim fell down the other two would walk up to him and exclaim, ‘My God, this is a pregnant woman.’ Without noticeable variation this skit was reenacted several times during the morning of the demonstration.” 414 F. 2d 630, 632.
I
Our previous cases would seem to make it clear that 18 U. S. C. § 702, making it an offense to wear our military uniforms without authority is, standing alone, a valid statute on' its face. See, e. g., United States v. O’Brien, 391 U. S. 367 (1968). But the general prohibition of 18 U. S. C. § 702 cannot always stand alone in view of 10 U. S. C. § 772, which authorizes the wearing of military uniforms under certain conditions and circumstances including the circumstance of an actor portraying a member of the armed services in a “theatrical production.” 10 U. S. C. §772 (f). The Government’s argument in this case seems to imply that somehow what these amateur actors did in Houston should not be treated as a “theatrical production” within the meaning of § 772 (f). We are unable to follow such a suggestion. Certainly theatrical productions need not always be performed in buildings or even on a defined area such as a conventional stage. Nor need they be performed by professional actors or be heavily financed or elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by amateurs, have played an important part in the entertainment and the education of the people of the world. Here, the record shows without dispute the preparation and repeated presentation by amateur actors of a short play designed to create in the audience an understanding of and opposition to our participation in the Vietnam war. Supra, at 60 and this page. It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays. Of course, we need not decide here all the questions concerning what is and what is not within the scope of § 772 (f). We need only find, as we emphatically do, that the street skit in which Schacht participated was a “theatrical production” within the meaning of that section.
This brings us to petitioner’s complaint that giving force and effect to the last clause of § 772 (f) would impose an unconstitutional restraint on his right of free speech. We agree. This clause on its face simply restricts § 772 (f)’s authorization to those dramatic portrayals that do not “tend to discredit” the military, but, when this restriction is read together with 18 U. S. C. § 702, it becomes clear that Congress has in effect made it a crime for an actor wearing a military uniform to say things during his performance critical of the conduct or policies of the Armed Forces. An actor, like everyone else in our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize the Government during a dramatic performance. The last clause of § 772 (f) denies this constitutional right to an actor who is wearing a military uniform by making it a crime for him to say things that tend to bring the military into discredit and disrepute. In the present case Schacht was free to participate in any skit at the demonstration that praised the Army, but under the final clause of § 772 (f) he could be convicted of a federal offense if his portrayal attacked the Army instead of praising it. In light of our earlier finding that the skit in which Schacht participated was a “theatrical production” within the meaning of § 772 (f), it follows that his conviction can be sustained only if he can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final clause of § 772 (f), which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To preserve the constitutionality of § 772 (f) that final clause must be stricken from the section.
II
The Government’s brief and argument seriously contend that this Court is without jurisdiction to consider and decide the merits of this case on the ground that the petition for certiorari was not timely filed under Rule 22 (2) of the Rules of this Court. This Rule provides that a petition for certiorari to review a court of appeals’ judgment in a criminal case “shall be deemed in time when . . . filed with the clerk within thirty days after the entry of such judgment.” We cannot accept the view that this time requirement is jurisdictional and cannot be waived by the Court. Rule 22 (2) contains no language that calls for so harsh an interpretation, and it must be remembered that this rule was not enacted by Congress but was promulgated by this Court under authority of Congress to prescribe rules concerning the time limitations for taking appeals and applying for certiorari in criminal cases. See 18 U. S. C. § 3772; Rule 37, Fed. Rules Crim. Proc. The procedural rules adopted by the Court for the orderly transaction of its business are not jurisdictional and can be relaxed by the Court in the exercise of its discretion when the ends of justice so require. This discretion has been expressly declared in several opinions of the Court. See Taglianetti v. United States, 394 U. S. 316, n. 1 (1969); Heflin v. United States, 358 U. S. 415, 418 n. 7 (1959). See also R. Stern & E. Gressman, Supreme Court Practice 242-244 (4th ed. 1969), and the cases cited therein. It is true that the Taglianetti and Heflin cases dealt with this time question only in footnotes. But this is no reason to disregard their holdings and in fact indicates the Court deemed a footnote adequate treatment to give the issue.
When the petition for certiorari was filed in this case it was accompanied by a motion, supported by affidavits, asking that we grant certiorari despite the fact that the petition was filed 101 days after the appropriate period for filing the petition had expired. Affidavits filed with the motion, not denied or challenged by the Government, present facts showing that petitioner had acted in good faith and that the delay in filing the petition for cer-tiorari was brought about by circumstances largely beyond his control. Without detailing these circumstances, it is sufficient to note here that after consideration of the motion and affidavits this Court on December 15, 1969, granted the motion, three Justices dissenting. The decision of this Court waiving the time defect and permitting the untimely filing of the petition was thus made several months ago, and no new facts warranting a reconsideration of that decision have been presented to us.
For the reasons stated in Parts I and II of this opinion, the judgment of the Court of Appeals is
Reversed.
Title 18 U. S. C. § 702 provides as follows:
“Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined not more than $250 or imprisoned not more than six months, or both.”
Schacht wore a blouse of the type currently authorized for Army enlisted men with a shoulder patch designating service in Europe. The buttons on his blouse were of the official Army design. On his head Schacht wore an outmoded military hat. Affixed to the hat in an inverted position was the eagle insignia currently worn on the hats of Army officers.
The precise language of 10 U. S. C. § 772 (f) derives from the 1956 revision of Titles 10 and 32, which was undertaken for the purpose of combining laws affecting the Armed Forces, eliminating duplicate provisions, and clarifying statutory language. At that time the phrase “actor in a theatrical or motion-picture production” was substituted for the previous phrase “in any playhouse or theater or in moving-picture films while actually engaged in representing therein a military . . . character . . . .” 39 Stat. 216-217. Although the 1956 revision and codification, were not in general intended to make substantive changes, changes were made for the purpose of clarifying and updating language. The shift to the present version of § 772 (f) clearly reflects an intent to move to broader, more flexible language which, for example, would include television as well as other types of theatrical productions wherever presented. H. R. Rep. No. 970, 84th Cong., 1st Sess., 8; Statements of Senators O’Mahoney and Wiley, 102 Cong. Rec. 13944, 13953 (July 23, 1956).
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
|
songer_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Frank R. JACKLOVICH, as well for the United States of America as for himself, Plaintiff-Appellant, v. INTERLAKE, INC., Defendant-Appellee.
No. 71-1382.
United States Court of Appeals, Seventh Circuit.
April 4, 1972.
Marshall Patner, Alexander Polikoff, Thomas R. Meites, Chicago, Ill., Sheldon Plager, Champaign, Ill., for plaintiff-appellant.
Henry L. Pitts, W. Gerald Thursby, Clifton A. Lake, Chicago, Ill., for defendant-appellee; Hackbert, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., of counsel.
Before KILEY, CUMMINGS and SPRECHER, Circuit Judges.
CUMMINGS, Circuit Judge.
In this qui tam action, plaintiff sued “as well for the United States of America as for himself” under Sections 13 and 16 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. §§ 407 and 411-412). He alleged that in May 1969 defendant Interlake, Inc. was found guilty of discharging and depositing refuse matter from its Riverdale, Illinois, steel mill into the Little Calumet River during June 1968. That conviction occurred in a suit brought by the United States Attorney for the Northern District of Illinois on the basis of information provided by plaintiff and resulted in a fine, one-half of which was paid to plaintiff pursuant to Section 16 of the Act. See United States v. Interlake Steel Corp., 297 F.Supp. 912 (N.D.Ill.1969).
The complaint asserts that plaintiff observed 26 subsequent instances of discharge into the river by defendant from June 1969 through October 1970. Plaintiff purportedly gave the bulk of this information to the United States Attorney for the Northern District of Illinois and to the Department of the Army, but the Government instituted no further proceedings against Interlake under this Act. Pursuant to the first sentence of Section 16 of the 1899 Act (33 U.S.C.A. § 411), he requested the district court to require Interlake to pay a fine not exceeding $2,500 nor less than $500 for each of these 26 violations, one-half to the United States and one-half to plaintiff, who commendably agreed to pay his net recovery to not-for-profit organizations “for use in the prevention of water pollution or the restoration of water quality in navigable waters of the United States.”
Expressly following Bass Anglers Sportsman’s Society v. United States Plywood-Champion Papers, 324 F.Supp. 302 (S.D.Tex.1971), the district court granted defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted, holding that the relevant part of Section 16 of the Act is a criminal statute and does not authorize the bringing of a qui tam action. This appeal followed.
The sole question before us is whether the first sentence of Section 16 of the Rivers and Harbors Act of 1899 authorizes a qui tam action. It provides as follows:
“Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act], shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.” (33 U.S.C.A. § 411)
Section 17 of the Act provides in part:
“The Department of Justice shall conduct the legal proceedings necessary to enforce the provisions of sections * * * 407 [and] * * * 411 * * * of this title [Sections 13 and 16 of the Act]; and it shall be the duty of United States attorneys to vigorously prosecute all offenders against the same whenever requested to do so by the Secretary of the Army or by any of the officials hereinafter designated * * *." (33 U.S.C.A. § 413)
An examination of the above portion of Section 16 readily discloses that it is a criminal provision. Persons guilty of violating Section 13 (see note 2 supra) are made guilty of a misdemeanor, resulting in a fine or imprisonment, or both. There must be a criminal conviction before half of the criminal penalty is to be paid to the informer. No qui tam action is authorized. This interpretation is buttressed by Section 17, for it places the enforcement powers as to Sections 13 and 16 in the hands of the Department of Justice, with offenders to be prosecuted by the appropriate United States Attorneys. In the present ease, for reasons undisclosed in the record, the United States Attorney for the Northern District of Illinois has not seen fit to prosecute Interlake for the 26 instances of discharge described in this complaint, and he cannot be compelled to initiate another criminal action against Interlake. United States v. Jones, 438 F.2d 461, 468 (7th Cir. 1971); United States v. Cox, 342 F.2d 167, 171-172 (5th Cir.) (en banc), certiorari denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Pugach v. Klein, 193 F.Supp. 630, 634-635 (S.D.N.Y.1961). Since the informer’s right to recover half the fine depends on a conviction in proceedings brought by the Government, plaintiff is remediless here. Two Courts of Appeals and twelve district courts that have considered the problem have unanimously so held.
Plaintiff attempts to avoid this result by reliance upon the last portion of Section 16 of the Act. That portion makes it a misdemeanor for masters, pilots, engineers, and other persons acting as such to engage in substantive violations of the statute. It then provides:
“Any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title [Sections 13, 14 and 15 of the Act] shall be liable for the pecuniary penalties specified in section 411 of this title [the first part of Section 16 of the Act], and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof”. (33 U.S.C.A. § 412; emphasis supplied)
Plaintiff claims that the phrase “pecuniary penalties specified” in this part of Section 16 of the Act means that civil penalties may be assessed under the previous criminal fine language of Section 16. We do not accept this strained construction in view of the plain language to the contrary in the earlier part of Section 16. Moreover, the underscored language was obviously used to limit the in rem liability against any vessel used in violation of the Act to a maximum of $2,500 and minimum of $500, as provided in the first sentence of Section 16. United States v. The Republic No. 2, 64 F.Supp. 373, 377 (S.D.Tex.1946); and United States v. The M/V Martin, 198 F.Supp. 171, 176 (S.D.Ill.1961), affirmed, 313 F.2d 851 (7th Cir. 1963), are not to the contrary because those were both in rem actions brought by the United States. We believe their references to “the pecuniary penalties specified” in Section 16 were merely to show the measure of the in rem liability under the last part of Section 16, in accord with the statutory scheme as it clearly appears. Simply put, the availability of an in rem action with liability in part measured by criminal penalties prescribed in the preceding portion of the statute does not imply the availability of a civil remedy under the preceding portion. On the contrary, the difference in the types of proceedings provided for in distinct provisions of the statute emphasizes the criminal character of that afforded in the first sentence of Section 16. See Helvering v. Mitchell, 303 U.S. 391, 404, 58 S.Ct. 630, 82 L.Ed. 917.
Plaintiff also contends that the first sentence of Section 16 authorizes a civil action for monetary penalties because the Government has brought civil actions to enjoin violations of other provisions of the Act. However, plaintiff has cited no ease in which the Government has proceeded civilly under the first sentence of Section 16, which provides that the mode of recovery of the penalties imposed thereunder is by a criminal action. Merely because other provisions of the Act may be enforced by civil injunctive action does not mean that plaintiff can recover monetary penalties under the opening sentence of Section 16 by way of a qui tarn action. Moreover, while civil remedies for violations of penal statutes are sometimes implied in favor of those whose special protection is the statutory purpose, the bare fact that Section 16 of the Act affords a portion of the criminal penalty assessed upon conviction to an informer is an insufficient basis on which to deprive alleged violators of the procedural protections attendant upon a criminal prosecution. Cf. Helvering v. Mitchell, 303 U.S. 391, 402-403, 58 S.Ct. 630, 82 L.Ed. 917. What the appellant seeks to accomplish here is not collateral civil enforcement of a standard of conduct prescribed in a penal statute especially for his benefit, but recovery of the criminal penalty without the necessity of the criminal prosecution the statute clearly requires.
Plaintiff relies on Adams v. Woods, 6 U.S. 336, 2 Cranch. 336, 2 L.Ed. 297, but the anti-slave trade statute involved there specifically provided for the informer. to sue for the fine, as did the Ohio anti-gambling statute in Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157. Likewise, in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443, the statute permitted informer suits to “be brought and carried on by any person.” See 317 U.S. at 546, 63 S.Ct. at 385. Although the Government presented strong policy arguments against the informer’s scheme involved in the Marcus case, the Court held that in view of the clear statutory policy there permitting informer suits, the proper forum for change was Congress (317 U.S. at 546-547, 63 S.Ct. 379), and shortly thereafter Congress accepted the challenge by repealing R.S. 3493 and revising R.S. 3491. It should be noted too that in Marcus the penalty involved was civil in nature, whereas the pertinent part of Section 16 of this Act requires a criminal conviction before an informer may share in the penalty. 317 U.S. at 549-552, 63 S.Ct. 379.
Our holding that only the United States may bring and prosecute an action to impose the penalty described by the Rivers and Harbors Act is reinforced by the Eighth Circuit’s opinion in Williams v. Wells Fargo Co., Express, 177 F. 352, 354-356 (8th Cir. 1910). There a postal statute provided that one-half of the penalties and forfeitures imposed for violation of the postal laws should be recoverable “to the use of the person' informing and prosecuting for the same.” The court stated that such language (which is much broader than the key part of Section 16 of the Rivers and Harbors Act) standing alone would impliedly authorize an informer to bring a qui tam action. Nevertheless, the court held that a qui tam suit was prohibited because another section of the postal laws required that all suits for recovery of penalties or forfeitures thereunder “shall be brought in the name of the United States.” Similarly here, Section 17 of this Act commits the enforcement of Sections 13 and 16 of the Rivers and Harbors Act to the Department of Justice, thus also prohibiting qui tam actions by informers.
While we share the public’s growing concern with pollution of public waters, the present design of the 1899 Rivers and Harbors Act does not permit qui tam actions to recover penalties for the discharge of refuse matter into navigable streams. Congress is the proper forum for amending the statute to permit such actions.
Affirmed.
. The phrase “qui tam” is derived from the common law action, “qui tam pro domino rege quam pro se ipso in hac parte sequitur” — who as well for the king as for himself sues in this matter.
. Section 13 of the Act makes it unlawful to discharge or deposit refuse matter from a manufacturing establishment into navigable waters of the United States. The most pertinent part of Section 16 is reproduced infra, early in the text of this opinion.
. The court below did not file an opinion because it would not “add anything to what has already been written.”
. Roscoe Pound’s statement that an informer may sue in his own name “where a penalty is given to him in whole or in part for that reason alone” is not to the contrary, for he was not discussing a criminal statute which is expressly to be enforced by the Department of Justice. See Pound, Actions on Penal Statutes, 42 Central Law Journal 135 (1908).
Plaintiff also relies on 28 U.S.C.A. § 2461(a) which permits civil actions to recover “a civil fine, penalty or pecuniary forfeiture * * * prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof." (Emphasis supplied.) However, as seen, in Section 17 of the 1899 Act, Congress has explicitly provided for the Department of Justice to enforce Sections 13 and 16 of that Act, so that Section 2461(a) does not authorize the criminal fine specified in the first part of Section 16 to be recovered in a civil action.
. According to its regulations, the Corps of Engineers of the Department of the Army does not take action (see 33 U.S.C.A. § 413) where violations are “minor, unintentional or accidental” and generally does not recommend prosecution (see Id.) where an alleged violation is “trivial, apparently, unpremeditated and results in no material public injury,” but only “in all cases of willful or intentional violations.” 33 C.F.R. §§ 209.395 and 209.400. See United States v. Interlake Steel Corp., 297 F.Supp. 912, 915 (N.D.Ill.1969).
. Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 457 F.2d 81 (2d Cir., 1972); Bass Anglers Sportsman’s Soc’y v. Koppers Co., 447 F.2d 1304 (5th Cir. 1971) (per curiam), affirming, 324 F.Supp. 412 (S.D.M.D. & N.D.Ala.1971; joint opinion of three district judges); Gerbing v. ITT-Rayonier, Inc., 332. F.Supp. 309 (M.D.Fla.1971); Mitchell v. Tenneco Chemicals, Inc., 331 F.Supp. 1031 (D.S.C.1971); Lavagnino v. Porto-Mix Concrete, Inc., 330 F.Supp. 323 (D.Colo.1971); Connecticut Action Now, Inc. v. Roberts Plating Co., Inc., 330 F.Supp. 695 (D.Conn.1971); Bass Anglers Sportsman’s Soc’y v. Scholze Tannery, 329 F.Supp. 339 (E.D.Tenn.1971); United States ex rel. Mattson v. Northwest Paper Co., 327 F.Supp. 87 (D.Minn.1971); Enquist v. Quaker Oats Co., 327 F.Supp. 347 (D.Neb.1971); United States v. Florida-Vanderbilt Development Corp., 326 F.Supp. 289 (S.D.Fla.1971); Durning v. ITT-Rayonier, Inc., 325 F.Supp. 446 (W.D.Wash.1970); Bass Anglers Sportsman’s Soc’y v. United States Plywood-Champion Papers, Inc., 324 F.Supp. 302 (S.D.Tex.1971); Reuss v. Moss-America, Inc., 323 F.Supp. 848 (E.D.Wis.1971).
. See, e. g., United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed. 2d 908, United States v. Florida Light and Power Co., 311 F.Supp. 1391 (S.D.Fla.1970).
. See 31 U.S.C.A. § 232 and 31 U.S.C.A. § 234 Historical Note.
. See also Allen v. Craig, 102 Or. 254, 201 P. 1079 (1921); People ex rel. Wegner v. Hartford Life Ins. Co., 186 Ill.App. 117 (1914); State ex rel. Rodes v. Warner, 197 Mo. 650, 94 S.W. 962 (1906); and Omaha & R. V. Ry. v. Hale, 45 Neb. 418, 63 N.W. 849 (1895). Contrary eases relied upon by plaintiff involve such different statutory language as to be unpersuasive. Since it is clear that qui tam actions are not permitted under this particular statutory language, it is unnecessary to consider the English common law history and precedents.
. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537, 547, 63 S.Ct. 379, 87 L.Ed. 443. Plaintiff relies on footnote 4 of the Marcus opinion which states in part as follows:
“Statutes providing for a reward to informers which do not specifically either authorize or forbid the informer to institute the action are construed to authorize him to sue, Adams v. Woods [6 U.S. 336], 2 Cranch. 336 [2 L.Ed. 297].”
As seen, the statute in Adams specifically authorized the informer to sue to recover half the fíne. Here Section 17 of the Act forbids the informer to sue because the enforcement powers are committed to the Department of Justice, and the critical part of Section 16 itself provides only for criminal proceedings.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_r_bus
|
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 "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BAYLESS v. UNITED STATES.
No. 12684.
Circuit Court of Appeals, Eighth Circuit
Feb. 8, 1945.
Donald H. Latshaw, of Kansas City, Mo., for appellant.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.
Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.
WOODROUGH, Circuit Judge.
This appeal is taken from a judgment on jury verdict rendered July 15, 1943, convicting the appellant of a violation of 18 U.S.C.A. § 408, the National Motor Vehicle Theft Act, committed on the 8th day of September, 1937, and sentencing him to‘ five years’ imprisonment, to be served consecutively after another twenty year sentence for another crime which we considered in Bayless v. United States, 147 F.2d 169.
The record shows that prior to the trial of this case appellant duly filed his plea in bar in which he alleged that he had been arraigned upon the indictment herein on the 31st day of January, 1938, and had then pleaded guilty thereto and had then been sentenced to imprisonment on account of the crime charged in the indictment for the term of five years, being the maximum imprisonment under the statute. That it was a condition of the sentence of 1938 that it should be served concurrently with another sentence of twenty years then being imposed upon appellant for another crime. That the appellant had been subjected to imprisonment pursuant to the five year sentence so rendered against him on account of the crime charged against him in the present indictment and had served the full measure of the imprisonment therein prescribed, having remained incarcerated under said sentence in the federal penitentiaries at Leavenworth and Alcatraz Island 'from February 1, 1938, until the 8th day of. May, 1943. That on said 8th day of May, 1943, he was discharged from imprisonment at Alcatraz pursuant to a writ of habeas corpus, and taken before the court at Kansas City to answer to the same indictment for the same violation of the Dyer Act. That the attempt of the government to subject the appellant to trial upon this indictment for the identical offense for which he had suffered the full punishment prescribed in the sentence rendered thereon was contrary to the Fifth Amendment to the constitution and constituted double jeopardy, forbidden by the amendment, and that he was entitled to be discharged from any further proceedings under this indictment.
The allegations of the plea in bar appear not to have been traversed by the government, and from the record as a whole it appears that they are true. Nevertheless, the plea in bar was overruled and the trial upon the indictment herein .to which the appellant was thereupon subjected resulted in his conviction and fhe imposition of a new sentence to five more years’ imprisonment from which he appeals.
We are satisfied that the plea in bar stated a complete defense to the further prosecution of appellant under the indictment herein and the plea in bar should have been sustained.
Though it appears that while appellant was imprisoned in Alcatraz he obtained a writ of habeas corpus which discharged him from imprisonment in May, 1943, the record before us does not include the habeas corpus proceedings. But from February 1, 1938, up until February 1, 1943, appellant was serving the other longer sentence for his other crime concurrently with his five-year sentence under the present indictment. We may assume that as appellant was held under two sentences up to February 1, 1943, probably both were alleged in his petition for habeas corpus. But obviously after February 1, 1943, when he had completed five years’ imprisonment, appellant would not knowingly invite inquiry into the validity of the sentence that he had then completely served. The five-year sentence on its face had ceased to afford grounds for detaining him in prison, and upon that fact appearing, the- judge in the habeas corpus proceedings would have no occasion to inquire into the validity of the sentence. Whether valid or invalid, it had served the purpose of a valid sentence and had caused the maximum imprisonment for the .crime to be served and all questions as to whether it ought -to have been rendered or not were entirely moot.
It is the theory of the government that the action of the court in the habeas corpus proceedings operated to avoid the former plea of guilty and the five year sentence rendered thereon and to restore the prosecution for trial. But that action was not taken until more than three months after the full five year term of imprisonment had been served and after the sentence had been fully executed, according to the uncontradicted allegations of the plea in bar. The habeas corpus proceedings could not, therefore, justify such restoration of the prosecution.
So far as we have been able to discover, this appeal presents the only instance in our history where a man who has been sentenced and has served the maximum imprisonment for a crime has then been brought back and in the face of that record retried on the same charge and sentenced to serve the maximum over again. We do not sanction the precedent.
On the record before us we hold that the judgment and sentence appealed from undertake to punish the appellant twice for the same offense, contrary to the Fifth Amendment, and are erroneous. The judgment is reversed with direction to set aside the verdict and recall any commitment that may have issued under the sentence.
Reversed with directions.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_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.
PECOS VALLEY COTTON OIL, INC., a New Mexico Corporation, and Cimar-ron Insurance Company, Plaintiffs-Appellants, v. FIREMAN’S FUND INSURANCE COMPANY, and National Surety Corporation, Defendants-Appellees.
No. 84-1933.
United States Court of Appeals, Tenth Circuit.
Jan. 8, 1986.
Thomas L. Marek, of Marek & Yarbro, Carlsbad, N.M., for plaintiffs-appellants.
James H. Johansen, of Shaffer, Butt, Thornton & Baehr, Albuquerque, N.M., for defendants-appellees.
Before LOGAN, SETH, and SEYMOUR, Circuit Judges.
LOGAN, Circuit Judge.
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); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.
In this diversity case tried to the court, the district judge granted defendants’ motion under Fed.R.Civ.P. 41(b) made at the close of plaintiff’s evidence, holding that plaintiffs had shown no right to relief. Plaintiffs appealed; we affirm.
Plaintiffs are Pecos Valley Cotton Oil, Inc. and its general liability insurer, Cimar-ron Insurance Company. Defendants are the insurers of a tractor/trailer rig owned by William W. Taylor, III, an independent contractor who was injured on Pecos Valley’s premises while he was delivering cottonseed to Pecos Valley. Taylor sued Pecos Valley for damages arising out of his injuries. This lawsuit is over which insurance company is obligated to defend Pecos Valley against Taylor’s claim.
Taylor had driven his truck onto a ramp at Pecos Valley in order to transfer the cottonseed from his truck into a seed pit. A large iron door covered the seed pit. While Taylor was opening the back of his truck, the seed pit door, which was open at the time, fell on Taylor and injured him. The district court found that the door fell because of an improper weld, which is not challenged on appeal. In fact, Pecos Valley’s local manager testified that an improper weld caused the accident.
In this action, Pecos Valley seeks a declaratory judgment that Taylor’s insurance policy on the tractor/trailer, issued by Fireman’s Fund Insurance Company, a subsidiary of National Surety Corporation, covers Pecos Valley pursuant to an omnibus coverage clause that extends coverage to anyone “using” the vehicle. The policy also includes a loading/unloading exclusion that precludes coverage for: “[bjodily injury or property damage resulting from the loading of property before it has been put in or on the covered auto or the unloading of property after it has been taken off or out of the covered auto.” R. I, 11. Pecos Valley contends that because it was actually in the process of unloading the tractor/trailer when the injury occurred, it is covered by Taylor’s insurance policy and that defendants are obligated to defend Pecos Valley.
There have been many cases involving construction of loading/unloading clauses in automobile insurance policies. The difficult issue in most is whether the loading/unloading process had begun or whether the claimant was an authorized user of the vehicle. In this case, the trial court assumed that the unloading process had begun and that Pecos Valley was an authorized user of the tractor/trailer. Yet nearly all the cases require a causal connection between the loading/unloading and the accident. It is on this basis that the district court denied relief, finding an insufficient causal connection between the unloading of the cottonseed and the accident. Some courts might disagree. See, e.g., Unigard Mutual Insurance Co. v. State Farm Mutual Insurance Co., 466 F.2d 865, 867 (10th Cir.1972) (covered unloading activity not confined to actual use of vehicle under Oklahoma law); Caribou Four Corners, Inc. v. Truck Insurance Exchange, 443 F.2d 796, 801-02 (10th Cir.1971) (applying “but for” causation test under Utah law). Here, however, we must apply New Mexico law. The district court held that, under New Mexico law, Pecos Valley must show that its use of the vehicle was the “efficient and predominating cause” of the accident in order to be entitled to coverage under the insurance contract, relying on Southern California Petroleum Corp. v. Royal Indemnity Co., 70 N.M. 24, 369 P.2d 407 (1962).
In Southern California the Supreme Court of New Mexico indicated that “efficient and predominating cause” refers to a close causal relationship between the use of the vehicle and the accident; mere coincidence of the two events is insufficient. 369 P.2d at 411. It found no liability for an accident that occurred during the unloading of a cement truck to cement an oil well when the proximate cause of the accident was the negligence of the well owner or others.
Courts requiring a direct causal relationship between the use of the vehicle and the accident in a “loading/unloading” case have not found the requisite relationship in situations similar to the instant case. See, e.g., Kaufman v. Liberty Mutual Insurance Co., 264 F.2d 863, 868 (3d Cir.1959) (opening of cellar door set in sidewalk to facilitate delivery not directly connected to injury to pedestrian); Indiana Lumberman’s Mutual Insurance Co. v. Statesman Insurance Co., 260 Ind. 32, 291 N.E.2d 897, 899 (1973) (collapse of stairs during delivery was predominant cause of injury, not use of vehicle).
The district court found that Pecos Valley was not within the policy’s coverage because the predominant cause of the accident was a faulty weld, not the unloading of the tractor/trailer. The district court applied the correct legal standard and its conclusion is fully supported by the evidence. Accordingly, we AFFIRM the decision of the district court.
. By negative inference, and standard insurance policy interpretation, all other loading and unloading activity, within these two outside limits, remains covered under the general omnibus clause.
. Insurance cases discuss this causal connection problem in two contexts. In the first, a causal connection may have been missing because the loading or unloading had either terminated or not yet begun. In the second, although the loading or unloading process had begun, the causal connection may have been missing because there was a separate or supervening cause. The instant case raises the causal connection problem in the second context.
. Plaintiffs correctly observe that the causation discussion in Southern California was not necessary to the decision in that case. Absent a more conclusive decision, however, it is the best indication that we have on how New Mexico would determine this issue. See Hardy Salt Co. v. Southern Pac. Transp. Co., 501 F.2d 1156, 1163 (10th Cir.) ("considered dicta” of state courts should be applied), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974).
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_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellee, v. Lloyd Edward WRIGHT, Appellant.
No. 20104.
United States Court of Appeals, Eighth Circuit.
Nov. 4, 1970.
Wayne George Patton, St. Louis, Mo., for appellant.
William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before MATTHES, Chief Judge, HEANEY, Circuit Judge, and VAN PELT, Senior District Judge.
MATTHES, Chief Judge.
Lloyd Edward Wright was charged by indictment with robbing the New Age Federal Savings and Loan Association, St. Louis, Missouri, on September 11, 1969 and with assaulting and placing in jeopardy the life of the president of that institution by use of a firearm in violation of 18 U.S.C. § 2113(a) and (d). Wright was found guilty by a jury as charged, and on December 23, 1969, the district court sentenced him to 5 years imprisonment.
On appeal, Wright contends that courtroom identifications of him by witnesses Pamela Thomas and Walter Younge, Jr., should have been excluded; that the testimony of an alleged accomplice, Alphonso Byndon, was incompetent and further that an extrajudicial statement brought out by the Government in the examination of Byndon deprived him of a fair trial. We consider these alleged errors seriatim.
Appellant claims that the in-court identifications should have been excluded, because the Government failed to establish that the identifications were not tainted by a pretrial lineup which may have been conducted either in the absence of counsel or in an impermissibly suggestive manner.
At trial, Walter Younge, Jr. testified that at the time of the robbery he was on an open balcony which overlooked the main floor and the tellers’ counter, and that from this vantage point he was able to observe the hold-up. Younge made a positive, unequivocal, in-court identification of appellant as one of the two robbers. Younge stated that he was able to observe Wright the entire time he was in the loan association and that he had a clear, unobstructed view of his face several times, because appellant’s mask or scarf kept slipping off. Younge further testified that he watched the robbers from a window as they left the building and then chased them down the street. There is nothing in the record to indicate that Younge ever viewed a lineup or that he had identified appellant other than at trial.
Mrs. Pamela Thomas, an employee of the association, testified that she was working at the tellers’ counter on the main floor at the time of the robbery. She identified appellant in court as one of the two robbers, and stated that she saw his face during the hold-up, because his mask or scarf fell down a number of times. On cross-examination Mrs. Thomas stated that she could be mistaken in her identification of appellant, but that she thought he was one of the holdup men. She also testified that she had viewed a lineup but had been unable to identify anyone.
We note at the outset that the admissibility of these in-court identifications is questioned for the first time on this appeal. The admissibility of this evidence was not challenged prior to trial by a motion to suppress or during trial by objection or motion to strike. Nor was this ground included in the motion for new trial after the verdict was returned. Thus, the trial court was not afforded the opportunity to explore or rule upon the admissibility of these in-court identifications. In Solomon v. United States, 133 U.S.App.D.C. 103, 408 F.2d 1306 (1969), an in-court identification was challenged for the first time on appeal on the ground that it was tainted by a prior precinct station identification which was said to have been conducted in the absence of counsel and in impermissibly suggestive circumstances. As in the instant case, because defense counsel did not object to the in-court identification no hearing was conducted to elucidate the facts surrounding the precinct identification. The court did not know if it had been made in the course of a proper lineup, if appellant had counsel present or if he had waived his right to counsel. Nor had defense counsel brought out these crucial facts on cross-examination. In discussing the failure of the defense to raise the Wade claim before or during trial, the court noted:
“The proper way to raise a Wade objection is by a motion to suppress identification testimony before trial. That procedure allows a suppression hearing and a decision on the disputed evidence before a jury is empaneled, and promotes an orderly and uninterrupted trial. A distinctly second-best procedure is a defense motion to suppress during trial. That procedure at least allows decision of the constitutional issue before fatally prejudicial testimony comes before the jury. When Wade objections are raised for the first time on appeal, decision of them in the appellant’s favor would often require a new trial or at least a remand for a hearing — litigation which could have been avoided had proper procedures been followed.” Id. at 1309.
The court went on to state that for these reasons it was reluctant to consider Wade claims raised for the first time on appeal, but that even when no objection is made at trial, Rule 52(b), Fed.R. Crim.P. required the court to exercise its discretion whether to notice “plain errors or defects affecting substantial rights.” However, as we held in United States v. Wenner, 417 F.2d 979, 982 (8th Cir. 1969), cert. denied, 396 U.S. 1047, 90 S.Ct. 700, 24 L.Ed.2d 692 (1970), “. . . because of the inadequacy of the record resulting from appellant’s silence in the district court we are not in a position to intelligently and responsibly consider and decide these questions under the ‘plain error’ rule.”
Moreover, we do not view this case as one appropriate for a remand to the trial court for a hearing. Here, not only does the record fail to show that witnesses Thomas and Younge ever identified appellant prior to trial, but it is not even contended on appeal that these witnesses ever viewed or identified appellant in a lineup. Further, the record does not show, and it is not alleged on appeal, that appellant was presented in a lineup in the absence of counsel or that a lineup was conducted in an impermissibly suggestive manner. Compare United States v. Yalez, 431 F.2d 622 (8th Cir., 1970). Under these circumstances, and confining our holding to the facts in this case, we believe that a remand to the district court would not be a proper exercise of our discretionary authority. Cf. Gray v. United States, 114 U.S.App.D.C. 77, 311 F.2d 126 (1962), cert. denied, 374 U.S. 838, 83 S.Ct. 1886, 10 L.Ed.2d 1057 (1963). The record before us does not demonstrate error affecting appellant’s substantial rights by the reception into evidence of the eyewitness in-court identifications.
In so holding, however, we sanction the suggestion of the District of Columbia Court of Appeals in Solomon v. United States, supra, 408 F.2d at 1309, that “it would be better practice if District Judges, when confronted by eases which appear to involve identification testimony, would on the record and out of the presence of the jury inquire of defense counsel whether they object on Wade or Stovall grounds to any identification testimony which might be offered.” Such a procedure would promote the orderly administration of justice so often disrupted by questions belatedly raised for the first time on appeal or on motions collaterally attacking convictions.
We turn next to the allegation that “the court erred in permitting the testimony of an alleged accomplice, Alphonso Byndon, to be considered by the jury, when Byndon offered no competent evidence against appellant, and further committed error in that an extrajudicial statement was brought out by the Government, which deprived appellant of a fair trial.” First, the record clearly shows that Byndon’s testimony was both competent and relevant. He testified that a robbery of the New Age Federal Savings and Loan Association was committed on September 11, 1969; that he participated in this crime, and that he was armed with a sawed-off shotgun. He freely testified as to all the details of the robbery, and further stated that he had an accomplice in the perpetration of the hold-up. However, when asked by the prosecutor to name his accomplice, Byndon replied that he would “rather not say.” Since Byndon had already pled guilty to the robbery, he neither could nor did he attempt to invoke the Fifth Amendment privilege against self-incrimination as justification for his refusal to respond. Under these circumstances, we believe the district court could have directed him to answer, but for reasons not shown on the record, the court did not do so.
The prosecutor then twice attempted to ask Byndon if he had told F.B.I. agents who his accomplice was. Objections by defense counsel were interjected before completion of each question. Out of an abundance of caution, the district court sustained each of the two objections, and the matter was not pursued further. Defense counsel did not move that the questions be stricken, nor did he request that the jury be specially instructed. Nevertheless, it is now urged on appeal that the Government’s reference to Byndon’s statement to F.B.I. agents implied to'the jury that appellant had been previously identified as an accomplice to the robbery, and that the inference which arose from this line of questioning was prejudicial to appellant and deprived him of a fair trial. An assiduous examination of the record leads us to conclude that there is no merit to this contention. We have carefully considered the cases cited by appellant in support of this argument and find them inapposite. This case does not involve a situation where substantial and incriminating matter was presented to the jury through prolonged and repetitive questioning or by reading an extrajudicial confession. The record does not support any inference of prosecutorial misconduct or a deliberate attempt by the Government to exploit a witness’ refusal to answer on the ground of a properly invoked testimonial privilege. Nor is this a case in which a witness’ refusal to testify is the primary or sole source of the inference that the appellant engaged in criminal activity with the witness. Appellant was identified by two eyewitnesses and the record conclusively demonstrates there were two participants. Any possible implications arising from the two thwarted questions attempted by the Government are cumulative at best.
In summary, we are unable to perceive that these uncompleted and unanswered inquiries resulted in substantial prejudice to appellant. The trial court, in sustaining objections to the questions, afforded appellant all the relief sought. No requests for instructions or other curative devices were made. On facts similar to those presented here, the Supreme Court in Namet v. United States, 373 U.S. 179, 190, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963) held:
“The petitioner would have us hold that even in these circumstances the court committed reversible error because it did not, sim sponte, take some affirmative action. We see no reason to require such extravagant protection against errors which were not obviously prejudicial and which the petitioner himself appeared to disregard.”
See also, Reiss v. United States, 324 F.2d 680, 683 (1st Cir. 1963), cert. denied, Jacobs v. United States, 376 U.S. 911, 84 S.Ct. 667, 11 L.Ed.2d 609 (1964).
Affirmed.
. Sentence was ordered to be served consecutive to a 15-year term imposed on Wright in the district court on December 1, 1969 after conviction upon his plea of guilty to armed robbery of the same institution on October 9, 1969 in violation of 18 U.S.C. § 2113(a) and (d).
. The record shows that counsel approached the bench and that a discussion was had out of the hearing of the jury. However, the record does not reveal the district court’s ruling or reasoning on Byndon’s refusal to respond to the Government’s questions.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED STATES of America, Appellee, v. David Henry HOLMES, Appellant.
No. 352, Docket 32788.
United States Court of Appeals Second Circuit.
Argued Dec. 10, 1969.
Decided Jan. 12, 1970.
Stewart H. Jones, U. S. Atty., Hartford, Conn., for appellee.
Karl Fleischmann, Hartford, Conn. (Satter & Fleischmann, Hartford, Conn., on the brief), for appellant.
Before MOORE and KAUFMAN, Circuit Judges, and RYAN, District Judge.
Of the District of Montana, sitting by designation.
IRVING R. KAUFMAN, Circuit Judge:
The question before us on this appeal is whether a Selective Service registrant who orally asserts conscientious objections to military service at the induction station is entitled to have this claim considered and evaluated by the Selective Service System.
David Holmes registered with Selective Service Local Board No. 1 in Hartford, Connecticut on October 5, 1961. For the next several years, while an undergraduate at Trinity College in Hartford and a graduate student at Trinity and the University of Michigan, he had a student deferment (class II-S). On October 10, 1967, shortly after Holmes had notified his local board that he was no longer a student at the University of Michigan, he was placed in class I-A. Two months later he accepted a position as an assistant instructor in history at Eastern Connecticut State College. On this ground, he requested, and was granted, an occupational deferment (class II-A). This deferment expired April 1, 1968, but Holmes was assured by the board that he would be allowed to complete the spring semester. Since he planned to continue teaching after the end of this semester, Holmes considered this assurance inadequate and, shortly after April 1, he began to devote considerable effort to securing another occupational deferment. These efforts were not to cease until the following December 3, the date on which he was ultimately required to report for induction. During the first part of this period, the summer of 1968, Holmes’s teaching plans for September 1968 were in flux. In the end, he decided to remain at Eastern Connecticut State College where he secured a position as a part-time instructor teaching two history courses in the evening session/ The local board determined that this position did not merit an occupational deferment, and, on October 10, the state Appeal Board affirmed this decision. In early November Holmes twice requested his board to reopen his classification, first on the ground that he was teaching three rather than two courses and, second, because he would become a full-time teacher in the second semester. The board denied both requests and, on November 15, ordered him to report for induction on December 3, 1968. Immediately after the issuance of this induction order, the President of the College requested that Holmes’s induction be postponed until the end of the academic year, June 1969, but the request was denied on November 27. Two days after this denial, the College President again attempted to have Holmes’s induction deferred, this time for a shorter period expiring February 1, 1969.
As required by the induction order, Holmes reported to the induction station on the morning of December 3. At that time he was without knowledge of any action state Selective Service headquarters had taken upon the President’s second request. He brought this matter to the attention of a Lt. Lukoff, an officer at the induction station, who, after telephoning state headquarters, advised Holmes that the request had been de- ' nied.
During his processing at the induction station, Holmes declined to sign a form oath swearing to comply with the requirements for serving on active duty and fulfilling subsequent reserve commitments. When asked by the processing officer why he was following this course of action, Holmes responded that he intended to refuse induction “on grounds of conscience.” Lt. Lukoff was then notified of this intent, but precisely what transpired in the resulting conversations between Lukoff and Holmes is somewhat murky.
Holmes testified he clearly informed Lukoff that his. refusal to submit to induction was based “on grounds of conscience” but that he was not given an opportunity to reduce his views to writing ; Lukoff testified that, although Holmes might have employed the word “conscience,” he recalled Holmes expressing only generalized statements of moral opposition and disillusionment with the system. Lukoff also stated that although his recollection was somewhat hazy, he assumed Holmes had been asked whether he wished to make a written or oral statement, an opportunity customarily given to all who had expressed an intention to refuse induction.
It is undisputed that Holmes was given three opportunities to take the oath of induction and that each time he refused to do so. Thereafter, the induction station notified the local board merely that Holmes had been found fully acceptable and had refused induction. The local board thereupon reported Holmes to the United States Attorney as a delinquent. Accordingly, there was no consideration within the Selective Service System of the claim for conscientious objector status which Holmes insisted he had made at the induction station.
On December 20, 1968 Holmes was indicted on charges of refusing to submit to induction. Three months after indictment and one week before his trial, he notified his local board for the first time that he was a conscientious objector and that he had presented this claim at the induction station. His conviction on the charges set forth in the indictment followed a trial before Judge Blumenfeld, sitting without a jury. It rested on the district judge’s conclusions that a Selective Service registrant must lodge a written request for reclassification if he wishes his local board to take any action and that an oral request will avail him nothing, even if meritorious.
In view of this disposition, the sole question before us on this appeal is whether a claim for classification as a conscientious objector presented orally at the induction station merits consideration and evaluation by the Selective Service System. Although we have not previously been presented with this precise pattern of facts, we do not write on a tabula rasa. We have already held that despite the inconvenience occasioned by the reopening of a registrant’s classification after he has been called for induction, a registrant whose conscientious objections crystallize only after the issurance of an induction order and who presents his request for classification as a conscientious objector at the earliest possible time, is entitled to have his classification reopened and considered anew. United States v. Gearey, 368 F.2d 144 (2d Cir. 1966), cert. denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967). Moreover, we have decided that it matters not that a registrant mistakenly presented his request to the officials at the induction station rather than to the local board. “[A] legally untutored registrant should [not] be penalized for his failure to distinguish between * * * two agencies,” which form, part of a single continuing process. United States v. Stafford, 389 F.2d 215 (2d Cir. 1968). Stafford requires us therefore to view Holmes's statement at the induction station as having been addressed to an appropriate body.
The sole distinction we can perceive between the instant case and Stafford is that Stafford presented his claim in writing while Holmes allegedly made his orally. The district court, however, considered this distinction crucial, basing its decision on the requirements of the Selective Service regulation governing the reopening of classifications, 32 C.F.R. § 1625.2. This regulation states that “[t]he local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant” or (b) “upon its own motion if such action is based upon facts not considered when the registrant was classified,” and if such facts have been brought to the attention of a member of the board, reduced to writing, and placed in the registrant’s file. See 32 C.F.R. § 1623.1(b). We read this regulation to provide that a local board may not reopen a registrant’s classification solely on the basis of his oral statements. We do not read it, however, as authorization to totally ignore a registrant’s oral statements. In reaching the conclusion that a local board or induction personnel may not totally ignore oral requests for reclassification, we are mindful of the Supreme Court’s admonition that “[Registrants are not to be treated as though they were engaged in formal litigation assisted by counsel.” Simmons v. United States, 348 U.S. 397, 404 n. 5, 75 S.Ct. 397, 401, 99 L.Ed. 453 (1955). This caveat has particular vitality in conscientious objector cases. For example, in our decisions in Gearey and Stafford we gave recognition to this maxim by instructing that the Selective Service regulation which provides that only in extraordinary circumstances shall a registrant’s classification be reopened after issuance of an induction order, see, 32 C.F.R. § 1625.2, should not be applied to foreclose all conscientious objector claims presented after an induction order is issued. The rationale for these decisions was that imminence of induction could cause previously inchoate feelings suddenly to crystallize into firm and sincere conscientious objections to military service.
The facts before us indicate that Holmes might well have gone to the induction station with the belief that his induction would be deferred because of the request of the President of Eastern Connecticut State College. He was not faced with the realization that he was about to be inducted until he learned of the denial of the President’s request from Lt. Lukoff — some time after he arrived at the induction station. In the light of our decisions in Gearey and Stafford, it would be somewhat anomalous for us, considering the facts before us, to require a registrant on all occasions either to prepare a formal written statement of his views in advance of his induction date or to forfeit his claim of conscientious objector status.
Accordingly, we hold that if Holmes did make an oral claim at the induction station for classification as a conscientious objector, the officers at the station should have brought this claim to the attention of the local board. See United States v. Stafford, 389 F.2d 215, 219 (2d Cir. 1968). In any event, it would have been quite simple to have explained to Holmes the necessity for a full written statement and then to have given him an opportunity to make it or to have reduced to writing in his behalf —on a form readily available — the oral statement he wished to make. Since, as we have stated, local boards are already required to take cognizance of late-maturing conscientious objector claims, see United States v. Stafford, supra, and in light of Lt. Lukoff’s testimony that it is already the policy of induction stations to afford an opportunity to make a written or oral statement to all prospective inductees who signify an intent to refuse induction, we see little merit to the argument that this decision will place extraordinary burdens on the Selective Service System.
Because the district court failed to resolve the conflicting versions of the exchanges between Holmes and Lukoff, we are in no position to determine whether Holmes did in fact present an oral claim for conscientious objector status. We remand, therefore, for the district court to determine whether Lt. Lukoff, or any other officer at the induction station, could reasonably have been expected to construe Holmes’s statements as expressions of conscientious objections to military service.
Even if any one of the officers could have been expected to have interpreted the statements as a request for classification as a conscientious objector, we see no reason to dismiss the indictment. United States v. Gearey, supra. In that event, the district judge should require the local board to determine at what point Holmes’s alleged convictions matured and, if they matured after issuance of the induction order, whether he is entitled to classification as a conscientious objector. If the board should find either that Holmes’s beliefs crystallized prior to issuance of the induction order or that his beliefs are not sincere and in conformity with the statutory standards, and if the district court should determine that this finding is supported by the necessary basis in fact, his conviction may stand. United .States v. Gearey, supra,; United States v. Stafford, supra. Only if the district court finds that Holmes made a claim for conscientious objector status prior to refusing induction and if the board decides both that his convictions matured after the issuance of the induction order and that their content and the sincerity with which they are held entitles Holmes to classification as a conscientious objector must the indictment be dismissed.
Remanded for proceedings in accordance with this opinion.
. This uncertainty stems irom the failure of the district court to resolve conflicts in the testimony. The court considered this unnecessary because under its view of the law, Holmes could not prevail even if all of his testimony were accepted.
. His conscientious objection was set forth in a letter to his local board. The able district judge quite properly gave no weight to this letter. Events which occur after a refusal to submit to induction are generally not relevant to whether there was a duty to submit. Palmer v. United States, 401 F.2d 226 (9th Cir. 1968).
. The means by which these new facts are generally reduced to writing is Selective Service Form 119 (Report of Oral Information). Whenever a member or employee of a Selective Service Board receives oral information from the registrant or some other individual as a result of a personal visit or telephone call, he notes the substance of this information on Form 119. The information may then be considered by the board in determing the registrant’s classification.
. For a description of the form which could be utilized by the officials at the induction station, see note 3 supra.
. As we stated in Gearey, the only objection to this disposition is the argument that, if his conscientious objector claim had been considered and rejected on the merits by his local board, Holmes might have submitted to induction. However, Holmes, as did Gearey, testified that under no circumstances could he or would he be inducted into the armed services.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
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